HomeMy WebLinkAboutFOSTER, ROBERT&OLGA-2004
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:,i~¡,fiANCF Nor REr,li/i¡im
S-/ WOf/K M!W P,'WCEED
IT CLŒK UF COUNCIL
¡lATE: It> -I oS -01./ THE CITY OF SANTA ANA, CALIFORNIA
e.', fwlt J AGREEMENT FOR ACQUISITION OF
(t::. JDY5~~ REAL PROPERTY AND ESCROW INSTRUCTIONS
THIS AGREEMENT, entered into this 71ay of Jñ YJ If , 2004, by and between the CITY OF
SANTA ANA, a charter city and municipal corporation duly organized under the Constitution and laws of the
State of Cali fomi a (hereinafter referred to as the "City"), ROBERT R. FOSTER AND OLGA Z. FOSTER
(hereinafter called "Seller"), regardless of number or gender;
A-2004-109
WITNESSETH
For and in consideration of their promises, covenants and agreements hereinafter set forth, and subject to the
terms, conditions and provisions hereinafter set forth, Seller agrees to sell to City, and City agrees to purchase
trom Seller, all that certain real property (hereinafter referred to as "said real property") described as follows:
All that certain real property located in the State of California, County of Orange, City of Santa Ana, described
as follows:
SEE EXHIBIT "A" ATTACHED HERETO
AND BY THIS REFERENCE MADE A PART HEREOF
(Commonly known as 1249 W, Second Street, Santa Ana, CA)
Said sale and purchase of said real property shall be in accordance with and subject to all ofthe fo1lowing terms,
conditions, promises, covenants, agreements and provisions, to wit:
I. Convevance bv Seller. Seller agrees to convey said real property to City, by Grant Deed, at the office of
First American Title Insurance Company, 2 First American Way, Santa Ana, California, within thirty (30) days
trom and after the date on which the Ci ty has approved this Agreement.
2. Title to be Conveved. (a) Seller agrees that, except as may hereinafter be otherwise expressly provided,
said real property shall be conveyed by Seller to City, as aforesaid, tree and clear of any and all conditions,
restrictions, reservations, exceptions, easements, assessments, profits, limitations, encumbrances, liens, leases,
clouds or defects in title except those exceptions shown in Paragraph 14 below. Seller hereby warrants that the
title to said real property to be conveyed by Seller to City shall be tree and clear as above provided. Seller
further agrees that acceptance by City of any deed to said real property, with or without knowledge of any
condition, restriction, reservation, exception, easement, assessment, profit, limitation, encumbrance, lien, lease,
cloud or defect in title, shall not constitute a waiver by City of its right to the full and clear title hereinabove
agreed to be conveyed by Se1ler to City, nor of any right which might accrue to City because of the failure of
Seller to convey title as hereinabove provided.
3. Title Insurance. Seller agrees to deliver to City, concurrently with the conveyance of said real property
to City, within the time and at the place hereinabove specified for said conveyance of said real property, a policy
of title insurance to be issued by the above mentioned title company, with the City therein named as the insured,
in the amount THREE HUNDRED TWENTY FIVE THOUSAND DOLLARS AND Noll 00 ($325,000) insuring the title of
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the City to said real property is tree and clear of any and all conditions, restrictions, reservations, exceptions,
easements, assessments, profits, limitations, encumbrances, liens, teases, clouds or defects in title, excepting
such specific ones as city rnay hereinafter expressly agree to take subject to. Acceptance by City of any such
policy of insurance, whether such insurance complies with the requirements of this paragraph or not, shall not
constitute a waiver by City of its right to such insurance as is herein required of Seller, nor a waiver by the City
of any rights of action for damages or any other rights which may accrue to City by reason of the failure of
Seller to convey title or to provide title insurance as required in this Agreement.
4. Escrow. City agrees to open an escrow at the office of First American Title Insurance Company, 2 First
American Way, Santa Ana, California, (the Escrow Agent) within five (5) days trom and after the date on which
the City has approved this Agreement. This Agreement constitutes the joint escrow instructions of the City and
the Seller and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of
the escrow.
The Escrow Agent hereby is empowered to act under this Agreement, and upon indicating its acceptance of this
Section 4 and of the General Provisions described in Exhibit "B" attached hereto and incorporated herein by this
reference, in writing, delivered to the City and to the Seller within five (5) days after delivery of this Agreement,
shall carry out its duties as Escrow Agent hereunder.
City agrees to bear and Escrow Agent is hereby authorized to charge to the City the cost of any transfer taxes,
recording fees, cost of title insurance, reconveyance fees, document preparation fees, escrow fees and any other
closing costs incidental to the conveying of said real property to City. Penalties for prepayment of bona fide
obligations secured by any existing deed of trust or mortgage shall be waived pursuant to Civil Code Procedures
Section 1265.240.
The liability to the Escrow Agent under this Agreement is limited to performance of the obligations imposed
upon it under Section 4, Section 6, Section II and Exhibit "B" of the General Provisions of this Agreement.
5. Propertv Taxes. Such real property taxes, if any, on said real property for the fiscal year within which
said real property is conveyed to City as are unpaid at the time of said conveyance shall be cleared and paid in
accordance with the provisions of Section 4986 of the Revenue and Taxation Code of the State of California.
Seller shall be eligible for a refund under Section 5096.7 of the Revenue and Taxation Code of the State of
California for that portion of property taxes on said real property for said fiscal year which have been paid prior
to the date the deed conveying said real property to City is recorded which is allocable to that portion of the
fiscal year which begins on the date the deed conveying said real property to City is recorded and made
uncollectible if unpaid by reason of Section 4986 of the Revenue and Taxation Code of the State of California.
All unpaid taxes on said real property for any and all years prior to the fiscal year within which said conveyance
is made shall be paid by Seller before conveyance of said real property to City.
6. Pavrnent of Purchase Price. City agrees to pay to Seller, and Seller agrees to accept trom City, as and for
the full purchase price for said real property, fixtures & equipment (improvements pertaining to the realty),
goodwill (if any), severance damages, and relocation claims pursuant to Government Code §7260 et seq., the total
sum of THREE HUNDRED TWENTY FIVE THOUSAND DOLLARS AND Noll 00 ($325,000). City agrees to deposit
said purchase price in escrow with the Escrow Agent within THIRTY (30) days trom and after the date on
which the City has approved this Agreement, and the Escrow Agent is hereby authorized to pay the same to
Seller upon and after:
(a)
Conveyance of said real property by Seller to City as hereinabove provided;
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(b)
Acceptance by City of a Grant Deed conveying said real property to City;
(c)
Delivery to City ofthe policy of title insurance as hereinabove provided;
(d)
Recordation of the Deed conveying said real property to City.
7. Possession. Seller agrees to deliver to City, on the date the Deed conveying said real property to City is
recorded, quiet and peaceful possession of said real property, which shall be made tree by Seller of all personal
property.
8. Rental and Occupancv Bv Seller. Seller agrees to execute a complete, current and correct statement of
rentals, on a form furnished to Seller, and deliver same to City within fifteen (IS) days hereof with copies of any
written leases or rental agreements attached. All rents will be prorated as of the close of escrow on the basis of
a 30-day month consistent with that statement, subject to approval of City. Seller hereby agrees not to rent any
units on the premises which are now vacant, or which may be vacated by present occupants prior to close of
escrow.
Seller hereby warrants that the rental statement referred to shall include the terms of all rental agreements,
tenancies, and leases (written, unwritten, recorded, or unrecorded) and Seller agrees to hold City harmless trom
all liability trom any such leases or agreements. Seller also warrants that there are no oral or written leases on
all or any portion of property, exceeding a period of one month, except the Rental Agreement between Seller
and Candida Rivera
9. Waivers. The waiver by City of any breach of any covenant or agreement herein contained on the part of
Seller shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or
agreement nor a waiver of any breach of any other covenants or agreements contained herein.
10. Heirs. Assigns. Etc. This Agreement, and all the terms, covenants and conditions hereof, shall apply to
and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto.
I I. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to
be made, time is and shall be of the essence.
12. Permission to Enter on Premises. Seller hereby grants City, and its authorized agents, permission to
enter upon said real property at all reasonable times prior to close of escrow for the purpose of making necessary
inspections.
13. Just Compensation. Seller acknowledges and agrees that said purchase price is just compensation at fair
market value for said real property and includes any and all fixtures and equipment, goodwill (if any) and
severance.
14. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988,
in the City of Santa Ana 92702, County of Orange, State of California. The mailing address of the Seller is:
Robert R. and Olga Z. Foster
33791 Pequito Drive
Dana Point, CA 92629
15.
Exceptions. City agrees to accept title to said real property subject to the following: NONE.
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16. Entire Agreement. It is mutually agreed that the parties hereto have herein set forth the whole of their
Agreement. Performance of this Agreement by City shall lay at rest, each, every' and allissue(s) that were raised
or could have been raised in connection with the acquisition of said real property by City.
17. Hazardous Waste. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant,
occupant, or user of the Property used, generated, released, discharged, stored, or disposed of any hazardous
waste, toxic substances, or related materials ("Hazardous Materials") on, under, in, or about the Property, or
transported any Hazardous Materials to or trom the Property. Seller shall not cause or pe=it the presence, use,
generation, release, discharge, storage, or disposal of any Hazardous Materials on, under, in, or about, or the
transportation of any Hazardous Materials to or trom, the Property. The term "Hazardous Material" shall mean
any substance, material, or waste which is or becomes regulated by any local governmental authority, the State
of California, or the United States Government, including, but not limited to, any material or substance which is
(i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section
25II5, 25II 7 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code,
Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as "hazardous substance" under Section
25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act), (iii) defined as a "hazardous material", "hazardous substance", or "hazardous waste"
under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials
Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 2528 I of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances),
(v) petroleum, (vi) asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as
"hazardous" or "extremely hazardous" pursuant to Article I I of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 3 I I of the Clean Water
Act, (33 U.S.c. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.c. S6901 et seq. (42 U.S.C. S6903) or (xi) defined as a "hazardous
substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, as
amended by Liability Act, 42. U.S.C. S9601 et seq. (42 U.S.C. S9601).
18. Compliance With Environmental Laws. To the best of Seller's knowledge the Property complies with all
applicable laws and governmental regulations including, without limitation, all applicable federal, state, and
local laws pertaining to air and water quality, hazardous waste, waste disposal, and other environmental matters,
including, but not limited to, the Clean Water, Clean Air, Federal Water Pollution Control, Solid Waste
Disposal, Resource Conservation Recovery and Comprehensive Environmental Response Compensation and
Liability Acts, and the California Environment Quality Act, and the rules, regulations, and ordinances of the city
within which the subject property is located, the California Department of Health Services, the Regional Water
Quality Control Board, the State Water Resources Control Board, the Environmental Protection Agency, and all
applicable federal, state, and local agencies and bureaus.
19. Indemnity. Seller agrees to indemnify, defend and hold the City harmless trom and against any claim,
action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense
(including, without limitation, attorneys' fees), resulting trom, arising out of, or based Upon (i) the presence,
release, use, generation, discharge, storage, or disposal of any Hazardous Material on, under, in or about, or the
transportation of any such materials to or trom, the Property, or (ii) the violation, or alleged violation, of any
statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release,
discharge, storage, disposal, or transportation of Hazardous Materials on, under, in, or about, to or trom, the
Property. This indemnity shall include, without limitation, any damage, liability, fine, penalty, punitive damage,
cost, or expense arising trom or out of any claim, action, suit or proceeding for personal injury (including
sickness, disease, or death, tangible or intangible property damage, compensation for lost wages, business
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income, profits or other economic loss, damage to the natura] resource or the environment, nuisance, pollution,
contamination, leak, spill, release, or other adverse effect on the environment). This indemnity extends only to
liability created prior to or up to the date this escrow shall close. Seller shall not be responsible for acts or
omissions to act post close of this escrow.
20. Contingencv. It is understood and agreed between the parties hereto that the completion of this
transaction, and the escrow created hereby, is contingent upon the specific acceptance and approval of the City
herein. The execution of these documents and the delivery of same to Escrow Agent constitutes said acceptance
and approval.
21. Modification and Amendment.
signed by the Seller and City.
This Agreement may not be modified or amended except in writing
22. Partial Invaliditv. Any provision of this Agreement that is unenforceable or invalid or the conclusion of
which would adversely affect the validity, legality, or enforcement of this Agreement shall have no effect, but
all the remaining provisions of this Agreement shall remain in full force.
23. Captions. Captions and headings in this Agreement, including the title of this Agreement, are for
convenience only and are not to be considered in construing this Agreement.
24. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
25. No Reliance Bv One Party On The Other. Each party has received independent legal advice trom its
attorneys with respect to the divisibility of executing this Agreement and the meaning of the provisions hereof
The provisions of this Agreement shall be construed as to their fair meaning, and not for or against any party based
upon any attribution to such party as the source of the language in question.
26. No Third Party Beneficiary. This Agreement is intended to benefit only the parties hereto and no other
person or entity has or shall acquire any rights hereunder.
27. Dutv To Cooperate Further. Each party hereby agrees that it shall, upon request of the other, execute and
deliver such further documents (in form and substance reasonably acceptable to the party to be charged) and do
such other acts and things as are reasonably necessary and appropriate to effectuate the terms and conditions of this
Agreement, without cost.
28. Applicabilitv of Agreement To Ass~. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties to this Agreement.
29. Authoritv to Execute Agreement. Each undersigned represents and warrants that its signature hereinbelow
has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the
event that such authority or power is not, in fact, held by the signatory or is withdrawn.
30. Incorporation of Exhibits. All Exhibits referenced herein and attached hereto shall be incorporated as if
fully set forth in the body of this Agreement.
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31. Release. The parties hereto hereby agree that all rights under Section 1542 of the Civil Code of the State
of California are hereby waived. Civil Code section 1542 provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
Notwithstanding the provisions of Civil Code section 1542, Seller hereby irrevocably and
unconditionally releases and forever discharges the City and each and all of its officers, agents, directors,
supervisors, employees, representatives, and its successors and assigns and all persons acting by, through, under,
or in concert with the City trorn any and all charges, complaints, claims, and liabilities of any kind or nature
whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as "claim" or "claims") which
Seller at any time heretofore had or claimed to have or which Seller at any time hereafter may have or claim to
have, including, without limitation, any and all claims related or in any manner incidental to this transaction.
The parties have executed this Agreement as of the date first written above.
SELLER: Robert R. Foster and Olga Z. Foster
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By: Robert R. Foster
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B I ::-Þðtter
ATTEST:
CITY OF SANTA ANA
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BY: , :~< ~¿¡;¿Z
David N, Ream
City Manager
~ð~~j~ø
j (f-. Patricia E. Healy
1) Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
BY:~'<..-~
Lisa Storck
Assistant City Attorney
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BXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
LOT 13 IN BLOCK B OF THE BESSONETT TRACT, AS SHOWN ON A MAP RECORDED
IN BOOK 24, PAGE 73 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA. .
EXCEPT THEREFROM THE WESTERLY 10 FEET AS CONVEYED TO THE CITY OF
SANTA ANA, A MUNCIP AL CORPORATION, IN AN INSTRUMENT RECORDED
MAY 24,1951 IN BOOK 2192, PAGE 468 OF OFFICIAL RECORDS.
EXHIBIT "B"
GENERAL ESCROW PROVISIONS
AU disbursements shaU be made by Escrow's check. AU funds received in this escrow shall be deposited in one
or more of your general escrow accounts with any bank doing business in the State of California and may be
transferred to any other general escrow account or accounts. The expression "close of escrow" means the date
on which instruments referred to herein are filed for record. AU adjustments are to be made on the basis of a 30-
day month. Recordation of any instruments delivered through this escrow, if necessary or proper in the issuance
of a policy of title insurance caUed for, is hereby authorized.
There shaU be no prorations of any existing insurance policies in this escrow.
You are to furnish a copy of these instructions, amendments thereto, closing statements and/or any other
documents deposited in this escrow to the lender or lenders, the real estate broker or brokers and/or the attorney
or attorneys involved in this transaction upon request of such lenders, brokers or attorneys.
Should you before or after close of escrow receive or become aware of any conflicting demands or claims with
respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein
affected hereby, you shaU have the right to discontinue any or aU further acts on your part until such conflict is
resolved to your satisfaction, and you shaU have the further right to commence or defend any action or
proceedings for the determination of such conflict. The parties hereto jointly and severally agree to pay all
costs, damages, judgments and expenses, including reasonable attorney's fees, suffered or incurred by you in
connection with, or arising out of this escrow, including, but without limiting the generality of the foregoing, a
suit in interpleader brought by you. In the event you file a suit in interpleader, you shaU ipso facto be fuUy
released and discharged trom aU obligations imposed upon you in this escrow.
If for any reason funds are retained or remain in escrow, you are to deduct theretrom a reasonable monthly
charge as custodian thereof of not less than $ I 0.00 per month.
Time is declared to be the essence of these instructions. If you are unable to comply within the time specified
herein and such additional time as is required to make an examination of the official records, you wiU return aH
documents, money or property to the party entitled thereto upon satisfactory written demand and authorization.
Any amendment of and/or supplement to any instructions must be in writing. The seUer agrees to seU and the
buyer agrees to buy the property herein described upon the terms hereof
. These escrow instructions, and amendments hereto, may be executed in one or more counterparts, each of which
independently shaU have the same effect as if it were the original, and aU of which taken together shaU
constitute one and the same instruction.
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When recorded, please mail this ¡
instrument and tax statements to:
Clerk of the Council
City of Santa Ana
20 Civic Center Plaza, M-30
Santa Ana, California 92701
Free recording requested by
THE CITY OF SANTA ANA PER
USE
GOVERNMENT CODE SECTION 6103.
SPACE ABOVE THIS LINE FOR RECORDER'S
CANCEL APPROVED AS TO APPROVED BY DESCRIPTION DESCRIPTION A.P. R1W MAP PROJECT
TAXES FORMBY ATrY DIRECTOR WRITTEN BY CHECKED-D.Ie. NUMBER NUMBER NUMBER
X 008-092-30 1819
1249 ('f. Second Avenue, Santa Ana 8092
Address IADDroximateLo.::atoin) DEED NUMBER
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, ROBERT R. FOSTER AND OLGA
Z. FOSTER, Do Hereby Grant to THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized
under the Constitution and laws of the State of Califomia, fee simple title to the real property in the City of Santa Ana,
County of Orange, State of Califomia, described as folIows:
SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF;
For: Robert R. Foster and Olga Z Foster
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~tl11r R. ~~
By: Robert R. Foster.
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By: Olga. Fost.) ---"
DatedYrìI"--~ 001/
before me,
. . ..
personally known to me (or þroved to me on the basis ofsatisfactory
evidence) to be the person(s) whose name(s)øare subscrib~d to the
within instrument and acknowledged to me that)él.~(e/they executed
the same in ¥,,¥r/their authorized capacity(ies), and that by ~r!
their signatures) on the instrument the person(s) or the entity upon be~
half of which the person(s) acted, executed the instrument.
) ~ A A .~.~ . . . . Ñ. ;'C'LA~~~
~ ~ COIIII. .144.72.
iñ . . NotIIry PUbllc~8I1forni8 I;
W . ORANGe COUNTY ..
~r. .~~~..Hov':~7,.f
WITNESS my hand and official seal.
Signature n,
.2Z: ~'d .
<:'.; fl1JNL.
MAIL TAX STATEMENTS AS DiRECTED ABOVE
(This area for official notary seal)
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EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF
ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS:
LOT 13 IN BLOCK B OF THE BESSONETT TRACT, AS SHOWN ON A MAP RECORDED
IN BOOK 24, PAGE 73 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY,
CALIFORNIA.
EXCEPT THEREFROM THE WESTERLY 10 FEET AS CONVEYED TO THE CITY OF
SANTA ANA, A MUNCIPAL CORPORATION, IN AN INSTRUMENT RECORDED
MAY 24, 1951 IN BOOK 2192, PAGE 468 OF OFFICIAL RECORDS.
9
CITY OF SANTA ANA
PUBLIC WORKS AGENCY
20 Civic Center Plaza
P.O. Box] 988, M-36
Santa Ana, California 92702
TRANSMITTAL
TO:
Clerk of the Council
DATE:
June] 0, 2004
SUBJECT:
Signature requests on Purchase Agreement for a portion of property at 1249 W. Second Street,
Santa Ana, CA.
WE ARE ENCLOSING:
THE FOLLOWING:
FOR:
x
Under Separate Cover
Herewith
Via Mail
x
Letter
Plans
Specifications
Originals
Agreements
Drawings
Other
x
Your Review
Your Approval
Your Infornlation
Your Files
Your Use
Your Signature
Your Comment
REMARKS: On June 7, 2004 the City Council authorized the City Manager and Clerk of the
Council to execute an purchase agreement for the purchase the property at 1249 W. Second St.
Santa Ana. This is part of the Bristol Widening Project No. 1819.
Please obtain the appropriate signatures and return to our office as soon as possible.
Ifwc may be offurther;?SSistanc pI case contact me at (714) 647-5067.
sincerel~
.~. £
@ ~ Kent Jor sen
V Right of Way Coordinator