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HomeMy WebLinkAbout15 - Sale of Ackerman Propertyf ) ITEM TO: I�� SUBJECT: Members of the Newport Beach City Council Dave Kiff, Deputy City Manager Sale of Ackerman Property (2114-2122 West Oceanfront Street) BY THE Ci s Y COUivC;IL FY OF NEWPCMT P,-CA -112nd 2001 RECOMMENDED (1) Authorize the City Manager to execute all documents associated with the ACTION: early Option to Purchase the Ackerman Property at 2114-2122 West Oceanfront and 106-110 22nd Street. (2) When the sale is complete, the City Manager shall direct the establishment of a lifetime annuity that dedicates 75% of interest income to high-tech library equipment and 25% to scholarships for "needy, qualified students." (3) Direct the City Manager to review and report back to City Council on any recommended changes to the administration of the scholarship portion of the Ackerman Fund. BACKGROUND: Since 1991, the City and the University of California, Irvine (UCI) have administered the mixed -use building at 2114-2122 West Oceanfront and 106-110 22nd Street known collectively as the Ackerman Property. 2114-2122 West Oceanfront 106-110 22nd Street The W Oceanfront building includes: The 22nd Street building includes: • Scotty's Fish Fry (restaurant) • Let it Roll (skate shop) • Henry's Grocery • Newport 32 Flavors, and • The Beach Ball (bar) • Ocean Nail Salon. • Blackies by the Sea (restaurant & bar) • PJ's Surfrider (surf and sporting goods) and • Four apartment residences. The Trident Capital Group has managed the Ackerman property on the City and UCI's behalf since December 1992. The City earns about $200,000 per year from the property ($185,000 in rent and $15,000 in interest income). This amount is the result of a 60%-40% split with UCI (thus, UCI receives about $277,500 annually from the property). Relevant documents about the Ackerman Property include the Carl Ackerman Family Trust (which describes how Ackerman directed the property's proceeds to be used), the Masterlease with the property managers (which describes rental payments, property management, and an Option to Purchase), and the City Council's Policy F-16 (which re -affirms the distribution of proceeds per Mr. Ackerman's Trust Agreement). Trust History. On January 15, 1991, Carl W. Ackerman via his Family Trust gave the City and UCI the property at 2114-2122 West Oceanfront and 106-110 2nd Street. He directed that the University of California, Irvine retain 60% ownership and the City retain 40%. He later amended the Trust (March 19, 1991— Attachment A) to authorize the City to spend "up to 75%" of its share of the property for the purchase of "high tech student hands-on equipment for the Newport Beach Public Library to be made available for students using the Public Library." Council Policy F-16. City Council Policy F-16 directs our administration of Ackerman Trust revenues. The Policy (Attachment B) reads (in part): "The proceeds (of the Ackerman Property) are to be distributed ... sixty (60) percent ... to the University of California, Irvine, to be used for scholarship funding for needy qualified students... (and) forty (40%) ... to the City of Newport Beach to be used ... to acquire high-tech library equipment (75%)" and for "scholarship funding for needy qualified students (25%). "It shall be at the City's discretion what high tech library equipment to acquire, and how to award the scholarship funds to needy qualified students." Scholarships and High -Tech Equipment. The City has chosen to use 25% of the City's share of the Ackerman revenue (25% of 40%) to establish a Scholarship Fund for the children of City employees (see Attachment C). Recent practice has been for the City to allocate only a portion of the interest from this Fund for scholarships - as such, the Ackerman Donation Fund Balance (scholarship portion) has grown over time. In June 2001, the Fund Balance may hold about $135,303. In the last several years, the City's Human Resources Department has awarded: $1,500 each to three children of City Employees (2000) $1,500 each to five children of City Employees (1999) $1,500 each to four children of City Employees (1998) $1,000 each to three children of City Employees (1997) Arguably, the Trust did not envision the City using rental income to create a lifetime annuity for scholarships for the children of City employees. Another interpretation of the Trust language might direct us to fully distribute the rent proceeds plus related interest annually to the children of City employees and to other "needy, qualified students" in the area. Since 1991, the other 75% of the City's share of the Ackerman Fund (75% of 40%) has enabled the Library to purchase about $500,000 worth of high-tech library equipment. The Library Board of Trustees works with the City Librarian to determine which technologies to purchase. The "high-tech equipment" portion of the Fund may have about $30,054 in the Fund by June 2001. Masterlease. The Trident Capital Group (operating as 2116 Ocean Front Associates and lessees) entered into a Masterlease with the City and UCI (operating as the Carl Ackerman Trust as lessors) for the management of the Ackerman Properties on December 16,1992. The Masterlease sets forth the understanding and rights regarding the operation of the Property. The Masterlease: • Allows the premises to be used for commercial and residential activities; • Sets a term of 14.5 years (from January 1,1993 through July 31, 2007); • Requires the lessors to pay $15,416.67/month to the Trust for rent; • Sets forth an Option to Purchase for the Lessor, including a section describing the Dates for Exercise of Option: (i) during the period December 1, 2002 through November 30, 2007; (ii) For ninety (90) days following the taking of the Premises by condemnation ... • Sets forth an Option Price of $1,940,000 (for the December 1, 2002 to November 30, 2003 period), $2,042,000 (for the December 1, 2003 to November 30, 2005 period), and so forth. Early Option Proposal. In late 2000, Mr. Bruce Kahl of Kahl and Goviea Commercial Real Estate proposed exercising the Option to Purchase within the Ackerman Masterlease which would allow Kahl to purchase the Ackerman property. The Masterlease authorizes Kahl to purchase the Ackerman property for $1,940,000 "during the period of December 1, 2002 though November 30, 2003" (see Attachment D). Mr. Kahl intends to "renovate (the) buildings on 22nd Street" -- thus the request to exercise the Option so that Kahl can secure a construction loan. Staff from UCI told us on December 27, 2000, that the University Regents will accept an early exercise of the Option if the City does as well. From purely a "time value of money" perspective, the City should take his offer today. $1,940,000 is worth more today than it will be in November 30, 2003 -- the last day at which he can exercise the same Option (which we must accept at that time if exercised). In the event that the property is sold, Ackerman's Trust says that "I (Ackerman) request that income derived from the proceeds of said sale be distributed for scholarship purposes and that the principal remain in tact (sic), it being my intent that the income from the proceeds of the sale be used for scholarship purposes and the principal remain indefinitely in tact (sic again)." We believe that the direction set forth in the October 5,1978 version of the Trust carries forward through the Trust's subsequent amendments and therefore obligates the City to invest any sale proceeds at going -rate interest and distribute interest according to Council Policy F-16's 75%-25% split. If the property were sold, UCI would receive $1,164,000 (60%), while the City would receive $776,000 (40%). Unlike the ongoing Ackerman property rental revenue we have received through today, the $776,000 in sale proceeds would be used as a lifetime annuity for both high-tech equipment and scholarships for "needy, qualified students." Sale of Oceanfront Land. The City Charter (§1402) prohibits us from "selling or conveying any waterfront or beach property, excepting to the State or County for use as a public beach or park." This section has been amended by the voters six times. The City Attorney believes that §1402 of the Charter does not prohibit the City from selling the Ackerman property, since a public street, sidewalk, and parking facility separate the building from the waterfront. This Agenda Item asks the Council to authorize the City Manager to sell the Ackerman Property by preparing the necessary paperwork (including an amendment to the Masterlease specifically authorizing an early exercise of the Option) and executing the sale documents. Per the Trust, revenue from the sale shall be invested as a lifetime annuity, with interest on the principal used to fund high-tech library equipment (75%) and scholarships (25%). The Item also asks the City Manager to review current practices relating to the Scholarship Fund and to report back to the Council on any recommended changes. ATTACHMENTS: Attachment A -- Council Policy F-16 (Ackerman Trust) Attachment B - Operative Trust Language Attachment C - Scholarship Program Sheet for 2000 Attachment D - Operative Masterlease Language (Option) MW.(A~ A ACKERMAN TRUST PURPOSE: F-16 To establish City policy for the distribution of the proceeds of the income from the Ackerman Property. POLICY: Per the terms of the Carl Ackerman Family Trust, the proceeds of the lease revenue for certain property in McFadden Square is to be divided between the University of California, Irvine, and the City of Newport Beach. The proceeds are to be distributed as follows: Sixty (60) percent of the proceeds are to be distributed to the University of California, Irvine, to be used for scholarship funding for needy qualified students. Forty (40) percent of the proceeds are to be distributed to the City of Newport Beach to be used in the following manner: Seventy-five (75) percent of the City's share shall be used to acquire high- tech library equipment. Twenty-five (25) percent of the City's share shall be used for scholarship funding for needy qualified students. The following procedures are established to meet the terms of the Ackerman Trust. The City shall deposit all proceeds from the lease of Ackerman property into an expendable trust fund. Periodic payments shall be made from this expendable trust fund, to the University of California, Irvine, in the amount of sixty (60) percent of the proceeds. Periodic payments shall be made from this expendable trust fund to the City of Newport Beach Library Fund in the amount of thirty (30) percent of the proceeds to be used for the acquisition of high tech library equipment. Periodic payments shall be made from this expendable trust fund to the City of Newport Beach Scholarship Fund in the amount of ten (10) percent of the proceeds to be used for scholarship funding for needy qualified students. F-16 It shall be at the City's discretion what high tech library equipment to acquire, and how to award the scholarship funds to needy qualified students. Adopted - January 24,1994 A, www G AMENDMENT TO THE CARL W. ACKERMAN FAMILY TRUST DATED OCTOBER 5, 1978 Carl W. Ackerman, hereinafter referred to as "Settlor", does hereby amend his Declaration of Trust dated October 5, 1978 which was previously amended on January 15, 19-91 and again on March 15, 1991, as follows: 1. Certain Charitable Uses. Subparagraph (c) of paragraph 5.1.2 of the Trust is amended to provide that the gift of property designated therein is made to the City of Newport Beach with the understanding that 60% of the net proceeds available for distribution from the income of the property or from the sale or refinancing of the property shall be given to the University of California, Irvine Foundation for the purpose of scholarship funding for needy, qualified students. Notwith- standing the provisions of subparagraph (f) of paragraph 5.1.2 of my Trust, and as an exception thereto, I authorize the City of Newport Beach to use up to three-quarters (75%) of the gift made to the City by my Trust for purposes of purchasing high-tech student hands on equipment for the Newport Beach Public Library to be made available for students using the Public Library. This exception applies only to that portion of the proceeds of the property (40%) that are available to the City and shall not apply to that portion of the proceeds of the property (60%) that are to be held by the City and distributed to the University of California, Irvine Foundation. M In all other respects, the Carl W. Ackerman Family Trust dated October 6, 1978, as previously amended on January 15, 1991 and again on March 15, 1991, shall remain in full force and effect and is hereby republished. This Amendment was executed at Newport Beach, California on March 19, 1991. ' KENN5TH R. HOD ES "Trustee" This Amendment was executed at Anaheim, California on March 19, 1991. HP.NS J. BUECHELE �— "Trustee" The undersigned states: I certify that I have read the foregoing Amendment to Trust and that it correctly states the terms and conditions under which the Trust Estate is to be held, managed and disposed of by the Trustee. I approve the Amendment to Trust in all particulars and request that the Trustee accept and execute it. This Amendment was executed at Fullerton, California on March 19, 1991. CARL W. ACKERMAN "Settlor" �0 )n x CITY OF NEWPORT BEACH SCHOLARSHIP PROGRAM History, Purpose and Funding: The Newport Beach City Scholarship Program was established in 1981. Its purpose is to assist qualified students in obtaining a higher education. Funds for the program are provided through a private donation. Eligibility: Any child of a regular full-time employee who is either graduating from high school, or graduating from a two-year community college program and applying to a four- year college/university is eligible to compete for a City Scholarship. The term "child" includes legally adopted children as well as any child who resides with a City employee and derives full support from the employee. The scholarship is to be used for a four-year college or university and cannot be used for a two-year college program. To qualify, the student must have maintained a cumulative G. P.A. of 3.0 or better. Basis for Selection: The criteria used for selection include: scholastic standing; leadership at school or in the community; an essay not exceeding 500 words on career and life plans; and financial need. Course of Study: There is no limitation as to the course of study. Either technical or non- technical subjects may be studied as long as they are intended to lead toward an academic degree. Amount of Scholarship: The scholarship amount awarded varies from year to year. The annual Newport Beach City Scholarship award may be used for tuition, books, laboratory fees, academic fees and room & board. The scholarship recipient may select any accredited four-year college or university. Application: An application is attached for your convenience. When completed, it should be returned to the Human Resources Office, P.O. Box 1768, Newport Beach CA 92658- 8915. Deadline: The application booklet must be returned to the Human Resources Office no later than May 5, 2000. Reference letters, transcripts, and results of any achievement tests taken must be included with the application booklet. If you have any questions about the scholarship, please call the Human Resources Office at (949) 644-3300. pcecwr,Hmfm b 41. LESSEE'S OPTION TO PURCHASE THE PREMISES: LESSOR hereby grants to LESSEE, the right and option to purchase the PREMISES at the price and on the terms and conditions set forth below during the Term: (hereinafter referred to as the ,Option Tc Purchase"). a. OPTION PERIOD: The Option To Purchase shall be effective commencing on August 1, 1992, and shall continue in full force and effect until 5:OOpm July 31, 2007. On July 31, 2007, at 5 p.m., the Option To Purchase shall terminate and be of no further force or effect unless extended or exercised as herein provided (the "Option Period"). b. EXTENSION OF OPTION PERIOD: The Option To Purchase may only be extended by an agreement in writing which is mutually acceptable to LESSOR and LESSEE. C. DATES FOR EXERCISE OF OPTION: The Option to Purchase may be exercised only during the following time periods: (the "Option Exercise Period"). (i) During the period December 1, 2002 through November 30, 2007; (ii) For ninety (90) days following the taking of the PREMISES by 35 condemnation as described in Section 22 hereof. d. METHOD OF EXERCISE OF OPTION: The Option To Purchase must be exercised by the LESSEE giving notice in writing to LESSOR at any time during the Option Exercise Period of its election to exercise the -option. LESSEE must, within .ten (10 ) days after giving such notice of exercise, cause an escrow to be opened with Heritage Escrow, Newport Beach or any other escrow chosen by LESSEE and deposit the sum of Ten Thousand Dollars ($10,000) (the "Escrow Deposit") therein and execute escrow instructions consistent with the terms of this Section 41. The escrow instructions shall provide for a closing date no more than ninety (90) days after the date of the opening of the escrow. Escrow shall be deemed to have been opened on the date that both parties have executed the escrow instruction. LESSOR agrees to promptly execute and deposit signed escrow instructions as Seller, provided such instructions are in accordance with this MASTERLEASE. e. OPTION PRICE• The price at which the Option To Purchase may be exercised (the "Option Price") shall be: (1) The Option Price during the eleventh year of the MASTERLEASE shall be the sum of ONE MILLION NINE HUNDRED FORTY THOUSAND DOLLARS ($1, 940, 000) (December 1, 2002 to November 30, 36 2003) . (2) The Option Price during the twelfth and thirteenth year of the MASTERLEASE shall be the sum of TWO MILLION FORTY-TWO THOUSAND DOLLARS ($2,042,00) (December 1, 2003 to November 30, 2005). ( 3 ) The Option Price during the fourteenth year of the MASTERLEASE (December 1, 2005 to November 30, 2006) shall be the sum of TWO MILLION ONE HUNDRED FORTY-FOUR THOUSAND DOLLARS ($2,144,000). (4) The Option Price during the fifteenth year of the MASTERLEASE (December 1, 2006 to November 30, 2007) shall be the sum of TWO MILLION TWO HUNDRED FIFTY-ONE THOUSAND DOLLARS ($2,251,000). (5) The Option Price shall be paid in cash and LESSOR shall pay the Option Price less the Escrow Deposit and less the Deposit into escrow prior to the close of escrow. f. CONDITIONS OF PURCHASE: LESSOR shall deliver to LESSEE an executed grant deed in recordable form conveying the PREMISES to LESSEE. Title to the PREMISES shall be conveyed to LESSEE free and clear of all lien, encumbrances, covenants, conditions, restrictions, easements, and rights of way of record, and other matters of record, except (i) current taxes which are liens not yet delinquent, (ii) anything of record or not of 37