HomeMy WebLinkAboutEast Balboa, Blvd, 608 & Washington St, 209 (Palm Lot)RECORDING REQUESTED BY .
CHICAGO TITLE COMPANY,
AND WHEN RECORDED MAIL TO
Name
CITY OF NEWPORT BEACH
staOt a Municipal Corporation
c(ty a 3300 Newport Blvd.
state
zlP Newport Beach CA 92663
RECORDING FEE EXEMPT PER
SEC. 6103 & 27383
GOVT. CODE 13
VAL
Title Order NO, 41 IdO cl 11'1�-'Grow No,q
This Document was electronically recorded by
Chicago Title Commercial
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder !
NO FEE
2010000124954 02:22pm 031161'10
106 401 D11 A36 4
0,00 0.00 0.00 0100 9.00 0.00 0.00 0.00
Assessors Parcel Number: o48.11Cr04 and 048.116.05 SPACE ABOVE THIS LINE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
This DEED OF TRUST, made
CITY OF NEWPORT BEACH, a Municipal Corporation
whose address is 3300 Newport Blvd., Newport Beach, California 92883
(Numwr and Street) (C -Ry) (Stets)
CHICAGO TITLE COMPANY, a California Corporation, herein called TRUSTEE, and
LEVON GUGASIAN AND Z.AROUHI M. GUGASIAN
Trustor Irrevocably grants, transfers and assigns to Trustee In Trust, with Power of Sale that property In
izip Coda)
between
herein called TRUSTOR,
herein called BENEFICIARY,
CITY OF NEWPORT BEACH County of ORANGE State of California, described as:
LOTS 7, 8, 9, 10 AND 11, IN BLOCK 7, BALBOA TRACT, IN THE CITY OF NEWPORT BEACH, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS PER MAP THEREOF RECORDED IN BOOK 7, PAGE 11, OF
MISCELLANEOUS MAPS.
Together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Senefiolaryto
collect and apply such rents, issues and profits.
For the Purpose of Securing (1) payment of the sum of $ 1,500,000.00 with interest thereon according to the terms of a promissory note or
notes of even date herewith made by Trustor, payable to order of the Beneficiary, and extensions or renewals thereof; (2) the performance of each
agreement of Trustor incorporated by reference or contained herein or reciting it is so secured; (3) Payment of additional sums and Interest thereon which
may hereafter be loaned to Trustor, or his or her successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this
Deed of Trust.
A. To protect the security of this Deed of Trust, and with respect to the property above described, Trustor agrees:
(1) To keep said property in good condition and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and
materials furnished therefore; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit
or permit waste thereof, not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all
other acts which from the character or use of sold property may be reasonably necessary, the specific enumerations herein not excluding the general,
(2) To provide maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire
or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as beneficiary may determine, or at
option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice,
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay
all costs and expenses, Including cost of evidence of title and attorney's fees in a reasonable sum, in any action or proceeding In which Beneficiary or
Trustee may appear, and in any suit brought by Beneficiary to foreclose this Dead of Trust.
(4) TO pay: at least ten days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water stock;
when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs,
fees and expenses of this Trust.
Should Trustor fait to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice
to or demand upon Trustor and without releasing Trustor from any obligation hereof, may; make or do the same in such manner and to such extern as either
may deem necessary to protect the security hereof. Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and
defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge, or lien which in the judgment of either appears to be prior or superior hereto: and, In exercising any such powers,
pay necessary expenses, employ counsel and pay his or her reasonable fees.
Page 1
(5) To pay immediately and without demand all sums so expended by Beneficiary or 1'rustee, with interest from date, of expenditure at the amount
allowed by law in effect at the date hereof, and to pay for any statement provided for by law In effect at the dale hereof regarding the obligation secured
hereby, any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned
and shall be paid to Beneficiary who may apply or release such moneys received by him or her In the same manner and with the same effect as above
provided for disposition of proceeds of fire or other insurance,
(2) That by accepVng payment of any sum secured hereby after its due date, Beneficiary does not waive his or her right either to require prompt
payment when due of all other sums so secured or to declare default for failure so to pay,
(3) That at any time or from time to time, without liability therefore and without notice, upon written request of Beneficiary and presentation of this
Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indeMedness secured hereby, Trustee
may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting any easement thereon; or join In any extension
agreement or any agreement subordinating the len or charge hereof. yy
Truste)eTf atcancellaionnand retentionsorfiother dispos,ton as ll Trustee inrits solebdiscretionemayachoose anndnuponspaymenthof its fees, and
steeoshall
reconvey, without warraniv the property then held hereunder, The recitals in such reconveyance of any matters or facts shall be concluslve proof of the
truthfulness thereof, The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto".
(5) That as additional security, Truslor hereby gives to and confers upon Beneficiary the right, power and authority during the continuance of these
Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor In payment of any
Indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and
payableu Upon any such default, Beneficiary may at any time without notice, either In person, by agent, or by a receiver to be appointed by a court, and
without regard to the adequacy of any security for the Indebtedness hereby secured, enter upon and take possession of saidproperty or any part thereof,
in his or her own name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs
and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Seneficlety
may determine. The entering upon and taking possession of said property, the collection of such rents, issues and profits and the application thereof as
aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
(6) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary may
declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written
notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit
with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
then required by law, such
as
demandouTrustor lshall sell isaid prorperrty at the of said
place fixed by it n said oticeof sale eithersasgiven
a whole
or In separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash In lawful money of the United States,
time bo time thereaftesalr Trustee may postpone sale of ail or any portion of said property by public announcement at such time and place of sale, and from
y postpone such sale b public announcement at the time fixed by the preceding postponement Trustee shall deliver to such
purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or
facts shalt be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at
such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the
proceeds of sale to payment of: all sums expended under the terms hereof, not Bien repaid, with accrued interest at the amount allowed by lawn effect
at the date hereof; all otheYYr sums then secured hereby; and the remainder, If any, to the person or persons legally entitled thereto.
successor Beneficiary, or
toa
nyT ustee named herein orof yacting hereunder which Instrument, executedbyby 1 e Beneficiary and duly writing,
substitute
dgled and
recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such
successor Trustee or Trustees, who shall without conveyance from the Trustee predecessor, succeed to all Its title, estate, rights, powers and duties.
Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and
the name and address of the new Trustee.
(8) That this Deed applies to, inures to the benefit of, and binds ail parties hereto, their heirs, legatees, devisees, administrators, executors,
successors, and assigns. The term Beneficiary shaft mean the owner and holder, including pledges, of the note secured hereby, whether or not named as
Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or the neuter, and the singular
number includes the plural.
obligated to 1Trustee
any parply heretTrust
of pendinglsale under any othereed of acknowledged, of any Is action o proeeedingin whichp provided
by
nefiiciary dr Trustee
shall be a party unless 4brought by Trustee.
Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge thereof does not exceed the maximum allowed by
laws.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him or her at his or her address
hereinbefore set forth.
Dat(A(VA "At 15 �'o ♦ O Signature of Trustor
STATE OF CALIFORNIA
COUNTY OF
On
(here insert name and title of the officer)
personally appeared
me.
who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same In
hisfher/their authorized capacity(tes), and that by his/her/their
signature(s) on the Instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the Instrument.
I certify under PENALTY OF PERJURY under the laws of the state of
California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
SIGNATURES ON FOLLOWING PAGE
Page 2 (This area for official notedal seal)
IN WITNESS WHEREOF, the City has signed Deed of Trust on the date set forth below.
Dated:MMI D
ATTEST:
By: ,
Leflanf I. Brown,
City Cleric
APPROVED AS TO FORM
OFFICE OF THE CITY ATTORNEY
,��
B . -3,15. 10
Leonie Mulvihill,
Assistant City Attorney
CITY O. NEW RT BEACH, a
municip corporat and charter city
By:
--
Michael F. Henn, Mayor Pro Tem
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of 0f K
On f � qt o
Date
personally appeared
SHANA ELISE STANLEY
Cammission * 1861499
i . Notary Public - Callfomla z
0 Orange County
M Comm. Expires Au 16, 2013
Place Notary Seal and/or Stamp Above
who proved to me on the basis of satisfactory
evidence to be the perso*) whose name(s) is/are
subscribed to the within instrument and acknowledged
to me that he/she tiiE7 executed the same in
his/i4erftheir authorized capacity(iee), and that by
his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph Is true and correct.
WITNESS my hand and official seal.
Signature:
Afw&tr-,,
Signature of Notary 120611c;
OPTIONAL A.
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual _
❑ Partner — ❑ Limited 0 General Top of thumb here
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
❑ Corporate Officer — Title(s):
❑ Individual MINN.•
❑ Partner --- ❑ Limited ❑ General Top of thumb here
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
02008 National Notary Association- 9350 De Soto Ave., P.O. Box 2402 - Chateworlh, CA 81313.2402-www.NaUonsiNotary.org Item 115907 Reorder. Call Toll -Free 1.800878.8827
1 � r/
AGREEMENT FOR ACQUISITION AND SALE OF REAL
PROPERTY BY AND BETWEEN THE CITY OF NEWPORT
BEACH AND LEVON AND ZAROUHI GUGASIAN
This AGREEMENT FOR ACQUISITION AND SALE OF REAL PROPERTY
( "Agreement ") is entered into by and between the CITY OF NEWPORT BEACH, a
municipal corporation and Charter city (the "City "), and LEVON GUGASIAN and
ZAROUHI M. GUGASIAN, husband and wife as joint tenants ( "Seller "), for acquisition
by the City of certain real property owned by Seller and is made on the basis of the
following facts, intentions and understandings.
RECITALS
A. Seller is the present owner of that certain real property consisting of two adjacent
parcels generally located at 608 East Balboa Boulevard and 209 Washington
Street, Newport Beach, California ( "Property "), identified as Assessor's Parcel
Numbers 048- 116 -04 and 048 - 116 -05, and more particularly described in
Exhibit "A" ( "Legal Description ") which is attached hereto and incorporated herein
by reference.
B. Seller is to convey fee simple merchantable title in the Property ( "Seller's
Interest ") to City in accordance with the terms of this Agreement.
C. City desires to acquire Property for possible redevelopment, and Seller agrees to
sell, assign and transfer Property on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. Purchase and Sale of Property. Subject to the prior satisfaction of the
Conditions to Closing set forth in Section 3 hereof, City shall acquire from Seller the
Property. The parties agree on the basis of an appraisal in accordance with the
negotiation of this transaction that the value of the Property is Three Million Five
Hundred Thousand Dollars ($3,500,000.00) (the "Property Purchase Price "), to which
the Parties allocate Two Million, Five Hundred and Fifty Thousand Dollars
($2,550,000.00) for the 608 East Balboa Boulevard parcel (the "608 Parcel "), and Nine
Hundred and Fifty Thousand Dollars ($950,000.00) for the 209 Washington Street
parcel. The Parties acknowledge that Twenty -Six Thousand, Five Hundred Dollars
($26,500.00) of the Two Million, Five Hundred and Fifty Thousand Dollars allocated for
the 608 Parcel shall constitute consideration for personal property and fixtures existing
on the 608 Parcel which are included in the subject transaction. The City anticipates
such funds used for the Property Purchase Price will be derived from parking in lieu
fees rather than from the City's General Fund.
2. Closing. This transaction shall close ( "Closing ") within thirty (30) days of
the satisfaction of the Conditions to Closing set forth in Section 3, but in any event not
later than one hundred and twenty (120) days after the City has approved this
Agreement (the "Outside Date "). The Closing shall occur at the office of the Escrow
Agent (as hereinafter defined) within Orange County at a time and place reasonably
agreed on by the parties. The "Closing" shall mean the time and day the Grant Deed is
filed for recording with the Orange County Recorder. The "Closing Date" shall mean the
day on which the Closing occurs.
3. Conditions to Closing. The Conditions to the Closing are as follows:
(a) Conveyance to City of good and marketable title to the
Property free of any and all interests, encumbrances, liens, easements, rights of
possession or other clouds of title other than the Leases set forth in the Schedule of
Leases attached hereto as Exhibit C and such liens, encumbrances, clouds or
conditions as may be approved in writing by the City's City Manager, or designee; and
(b) Delivery of a CLTA owner's extended coverage title
insurance policy on the Property, at Seller's expense, in the amount of the full Purchase
Price, subject only to such liens, encumbrances, clouds or conditions as may be
approved in writing by the City's City Manager, or designee; and
(c) Satisfaction of all of Seller's obligations enumerated in
Section 4 hereof; and
(d) Satisfaction of all of City's obligations enumerated in
Section 5 hereof; and
(e) City's written approval of the Preliminary Title Report for the
Property as required under Section 13 of this Agreement; and
(f) City's written acceptance of the Leases or rental agreements
set forth in the Schedule of Leases attached hereto as Exhibit C.
(g) City's environmental consultant providing to City evidence
deemed sufficient by City, in writing that the Property is clear of hazardous
contamination, or City's acceptance, in writing, that the level of any hazardous
contamination is acceptable to City. The cost of said site investigation shall be at the
expense of City;
(h) Pursuant to the California Environmental Quality Act
( "CEQA ") Guidelines Section 15004(b)(2)(A) and applicable case law, City conditions its
purchase and use of the Property on the completion and approval of an environmental
analysis. Said approval is at the sole and absolute discretion of City, and shall be
conveyed to Seller in writing prior to the Close of Escrow. By purchasing the Property,
City is not committing itself to any definite course of action on any future project. City
retains its full authority and right to consider all feasible mitigation measures and
alternatives for any future project, including a no project alternative; and,
(i) Seller's execution of an affidavit of exemption from the
Foreign Investment in Real Property Tax Act ( "FIRPTA ").
Agreement For Acquisition And Sale Of Real Property
2
4. Seller's Obligations. Seller shall deliver the following to escrow no later
than 12:00 o'clock noon, one (1) business day before the anticipated Closing:
(a) Grant Deed to Property executed by Seller and notarized in
the form of Exhibit "B" attached hereto and incorporated herein by this reference (the
"Grant Deed ").
(b) Transfer all security deposits or advance rental payments
held by Seller or any third -party to the City.
5. City's Obligations. No later than 12:00 o'clock noon one (1) business
day before the anticipated Closing, City shall deliver to escrow the following:
(a) The Certificate of Acceptance (Attachment "1" to Exhibit "B ")
signed by City's authorized representative in the form attached to the Grant Deed;
(b) First installment payment of One Million, Nine Hundred
Thousand Dollars ($1,900,000.00) and amounts required to be paid by the City by
Section 12 hereof; and,
(c) A fully executed Promissory Note in favor of Seller, in a form
substantially similar to the one attached hereto as Exhibit D, providing that Buyer shall
pay to Seller the balance of the Purchase Price (One Million, Five Hundred Thousand
Dollars or $1,500,000.00) payable in two equal installments, the first payment due one
year from the Closing Date, and the second payment due two years from the Closing
Date, with interest accruing at two percent (2 %) per annum.
6. Representations and Warranties.
6.1 The City represents and warrants to the Seller as follows:
(a) To the best of the City's knowledge, there are no actions,
suits, material claims, legal proceedings, or any other proceedings affecting this
Agreement thereof, at law, or in equity before any court or governmental agency,
domestic or foreign; and
(b) To the best of the City's knowledge, neither the execution of
this Agreement nor the performance of the obligations herein will conflict with, or breach
any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or
other agreement; and
(c) City is not a "foreign person" within the parameters of
FIRPTA, or is exempt from the provisions of FIRPTA, or that the City has complied and
will comply with all the requirements under FIRPTA; and
6.2 The Seller represents and warrants to the City as follows:
Agreement For Acquisition And Sale Of Real
3
(a) The Seller has full right, power and lawful authority to grant,
sell and convey the Property as provided herein; and
(b) To the best of the Seller's knowledge, and except as
disclosed in writing to City, including the Schedule of Leases attached hereto as
Exhibit C, there are no tenants or other persons who have a lawful interest in the
Property; and
(c) The Seller, at the time of the execution of this Agreement, is
in possession of the Property in fee simple and is the lawful owner of and has good
indefeasible title to the Property; and
(d) To the best of the Seller's knowledge, there are no pending
or threatened actions, suits, material claims, legal proceedings, or any other
proceedings affecting the Property or any portion thereof, at law, or in equity before any
court or governmental agency, domestic or foreign; and
(e) To the best of the Seller's knowledge, and except as
disclosed in writing to City, there are no service contracts or other contracts affecting
the Property; and
(f) Until the Closing, the Seller shall not do anything which
would impair the Seller's title to the Property; and
(g) To the best of the Seller's knowledge, neither the execution
of this Agreement nor the performance of the obligations herein will conflict with, or
breach any of the provisions of any bond, note, evidence of indebtedness, contract,
lease, or other agreement or instrument which affects the Property; and
(h) The Seller agrees to convey by grant deed to City
marketable fee simple title to the Property free and clear of all recorded and unrecorded
liens, encumbrances, assessments, easements, leases, and taxes EXCEPT the Leases
set forth on the Schedule of Leases attached hereto as Exhibit C, quasi - public utility,
public alley, public street easements, and rights of way of record, and such other liens
or encumbrances approved in writing by City's City Manager or designee; and
(i) The Sellers are not a "foreign person" within the parameters
of FIRPTA, or are exempt from the provisions of FIRPTA, or that the Seller's have
complied and will comply with all the requirements under FIRPTA.
0) Until the Closing, the Seller shall, upon learning of any fact
or condition which would cause any of the warranties and representations in this
Section 6.2 not to be true as of Closing, immediately give written notice of such fact or
condition to City.
6.3 The representations and warranties set forth in this Section 6 and
Section 8 shall survive close of escrow.
Agreement For Acquisition And Sale 0I Rea! Property
— - -- 4
7. Release and Waiver. The amount of the Property Value has been
determined based upon negotiations at arm's- length and an appraisal mutually agreed
upon by the Parties submitted by Richard A. Fuller, MAI on October 15, 2009, and does
not include consideration for any amounts required to be paid for relocation assistance
pursuant to the Relocation Assistance Act (Government Code Section 7260, et seq.)
and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970 (42 U.S.C. Section 4601, et seq.), and any other applicable federal, state or local
enactment, regulation or practice. Seller has been fully advised by counsel of their
choosing and forever waives and disclaims any claim for relocation benefits or
assistance or any compensation based upon loss of goodwill, severance damages,
improvements pertaining to the really, attorneys fees, interest, court cost, or otherwise,
and waive any right to receive an offer based on an appraisal, and agrees that the
Purchase Price shall be the sole payment and compensation to the Seller for the sale of
the Seller's Interest in the Property. If the City receives any claim for relocation
assistance pursuant to the Relocation Assistance Act and the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970 during the Escrow period,
the City reserves the right to renegotiate the Purchase Price or to cancel Escrow if the
Parties cannot agree upon a modified Purchase Price.
8. Condition of the Property.
Hazardous Waste. The Seller acknowledges with respect to the Property that to the
best of the Seller's knowledge, Hazardous Materials ( "Hazardous Materials ") were not
used, generated, stored, released, discharged or disposed of on, under, in, or about the
Property or transported to or from the Property. The Seller represents with respect to
the Property, that the Seller nor any other person or entity under the control of, or with
the knowledge of the Seller will cause or permit the use, generation, storage, release,
discharge, or disposal of any Hazardous Materials on, under, in, or about the subject
property. As used in this Agreement the term "Hazardous Materials" shall mean any
substance, material, or waste which is or becomes, prior to the closing date, 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 25115, 25117 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 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Code of Regulations,
Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section
311 of the Clean Water Act, (33 U.S.C. §1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
section 6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances"
pursuant to Section 101 of the Comprehensive Environmental Response,
Agreement For Acquisition And Sale Of Real Property
Compensation, and Liability Act, 42 U.S.C. Section 6901 et seq. The Seller shall be
responsible for the removal of all Hazardous Materials, if any, before the Seller
relinquishes actual possession of the Property, subject to the City's approval of Seller's
satisfactory removal of all Hazardous Materials. City shall have the right to fully inspect
the Property prior the Close of Escrow and shall provide written notice of its approval or
non - approval of the removal of Hazardous Materials to its satisfaction prior to the Close
of Escrow. If the removal of Hazardous Materials by Seller has not been completed to
City's satisfaction no later than one (1) business day before Close of Escrow, City
reserves the right to cancel Escrow and terminate this transaction.
9. Compliance with Environmental Laws. To the best of the Seller's
knowledge, the Property and its present use 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 Environmental 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 City, and all applicable
federal, state, and local agencies and bureaus.
10. Indemnity. The Seller agrees to indemnify, defend and hold City
harmless from and against any claim, action, suit, proceeding, loss, cost, damage,
liability, deficiency, fine, penalty, punitive damage, or expense (including, without
limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence,
release, use, generation, discharge, storage or disposal of any Hazardous Materials on,
under, in or about, or the transportation of any such Hazardous Materials to or from, 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 from, the Property. This indemnity shall include, without limitation, any
damage, liability, fine, penalty, punitive damage, cost or expense arising from 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
income, profits or other economic loss, damage to the natural resource or the
environment, nuisance, contamination, leak, spill, release or other adverse effect on the
environment. This indemnity extends only to liability created prior to the Closing Date.
11. Environmental Contingency. This Agreement, or escrow created
hereby, is additionally contingent upon the City receiving satisfactory evidence, in the
form of an environmental assessment report, from a licensed contractor who is
acceptable to the City in its sole and absolute discretion and who shall be hired by the
City, showing that the Property is free from any Hazardous Materials in the soil or
groundwater, or any other environmental conditions which may affect the value of the
Property. In the event the City is not able to obtain such an environmental assessment
report, the City is entitled to conduct such further and other examination and testing as it
Agreement For Acquisition And Sale Of Real Property
6
or any responsible governmental agency may require or request to determine the
nature, source, scope, and extent of such Hazardous Materials, or it may terminate this
transaction and cancel escrow. Such environmental assessment report shall be
completed within ninety (90) calendar days of opening of escrow. If a licensed
contractor selected by the City determines that there are Hazardous Materials in, on or
under the Property, including in the groundwater, then the City may elect to:
(i) terminate this transaction and cancel escrow, or (ii) negotiate a modified purchase
price with Seller and purchase the subject Property. The City shall provide written
notice to the Seller of its election to terminate the transaction and cancel escrow under
this paragraph within thirty (30) days from the completion of the environmental
assessment report. Regardless of which option is selected by the City in the event
Hazardous Materials are found in, on or under the subject property, neither Party
waives or relinquishes any common law or statutory rights it or they may have against
one another or third persons arising from or related to the cause or source of the
Hazardous Materials, or for contribution or indemnity as a result of site evaluation,
remediation and clean -up costs and liability.
12. Escrow. Within ten (10) days after the execution of this Agreement by
City and the Seller, the parties shall open escrow with an escrow company agreed to by
all parties (the "Escrow Agent ").
12.1 City shall deposit $100,000.00 with Escrow Agent within three days
of opening escrow as a deposit toward the Purchase Price (the "Initial Deposit ").
The Initial Deposit shall be refundable in full to the City if any of the conditions set
forth in Section 3, 8 or 11 of this Agreement cannot be satisfied or completed.
12.2 The City shall pay one -half (1/2) all escrow fees, charges and costs
(the "Escrow Fees ") consisting of the following:
(a) The Escrow Agent's fee;
(b) The cost of any documentary transfer taxes, if any, on the
Property Grant Deed;
(c) Fees for recording and filing all documents required by this
Agreement in connection with the transfer of Property, including the Property Grant
Deed; and
12.3 The Seller shall pay one -half (112) all escrow fees, charges and
costs (the "Escrow Fees ") consisting of the following:
(a) The Escrow Agent's fee;
(b) The cost of any documentary transfer taxes, if any, on the
Property Grant Deed;
(c) Fees for recording and filing all documents required by this
Agreement in connection with the transfer of Property, including the Property Grant
Deed; and
Agreement For Acquisition And Sale Of Real Property
— 7
(d) The full costs of an CLTA owner's extended insurance
coverage, including any land survey costs for the Property in the amount of the Property
Purchase Price.
13. Preliminary Title Reports. Within five (5) business days after the
opening of escrow, the Seller, at the Seller's expense, shall furnish City with a
Preliminary Title Report on the Property issued by a title company mutually agreed to by
both Parties. The Preliminary Title Report shall be accompanied by legible copies of
all underlying documents for all exceptions ( "Exceptions ") set forth in the Preliminary
Title Report. The City shall have ten (10) business days from receipt of the Preliminary
Title Report within which to give written notice to the Seller of the City's approval or
disapproval of any of such Exceptions. The City's failure to give written approval of the
Preliminary Title Report within such time limit shall be deemed disapproval of the
Preliminary Title Report. No deeds of trust, mortgages or other liens, except for the lien
of property taxes and assessments not yet due, shall be approved Exceptions. If the
City notifies the Seller of its disapproval of any Exceptions in the Preliminary Title
Report, or is deemed to have disapproved the Preliminary Title Report, the Seller shall
have the right, but not the obligation, to remove any disapproved Exceptions within thirty
(30) days after receiving written notice of the City's disapproval or provide assurances
satisfactory to the reviewing party that such Exception(s) will be removed on or before
the Closing. If the Seller cannot or does not elect to remove any of the disapproved
Exceptions within that period, the City shall have ten (10) days after the expiration of
such thirty (30) day period to either give the Seller written notice that the City elects to
proceed with the acquisition subject to the disapproved Exceptions or to give the Seller
written notice that the City elects to terminate this Agreement. The City shall have the
right to approve or disapprove any Exceptions reported by the Title Company after the
City has approved the condition of title for the Property. Neither party shall voluntarily
create any new exceptions to title following the date of this Agreement.
14. Escrow Instructions. This Agreement constitutes the joint escrow
instructions of the City and the Seller, and Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. The parties hereto agree
to do all acts reasonably necessary to close this escrow in the shortest possible lime.
14.1 By 12 o'clock noon, the last business day before Closing, the City
and the Seller will deposit the documents as required by Section 4 and 5 hereof with
Escrow Agent. The City and the Seller agree to deposit with Escrow Agent any
additional instruments as may be necessary to complete this transaction or required by
escrow.
14.2 Insurance policies for fire or casualty are not to be transferred, and
Seller will cancel its policies after the Closing.
14.3 All funds received in this escrow shall be deposited with other
escrow funds in a general escrow account(s) and may be transferred to any other such
escrow trust account in any State or National Bank doing business in the State of
California. All disbursements shall be made by check from such account.
Agreement For Acquisition And Sale Of Real Property
14.4 If in the opinion of the City it is necessary or convenient in order to
accomplish the Closing of this transaction, City may require that the parties sign
supplemental escrow instructions as may be required by the Escrow Agent; provided
that if there is any inconsistency between this Agreement and the supplemental escrow
instructions, then the provisions of this Agreement shall control. The Parties agree to
execute such other and further documents as may be necessary, helpful or appropriate
to effectuate the provisions of this Agreement. The Closing shall take place when the
conditions of Closing as set forth in Section 3 have been satisfied.
14.5 Escrow Agent is instructed to release City's escrow closing and the
Seller's escrow closing statement to the parties as identified in Section 19.4 of this
Agreement.
15. Tax Adjustment Procedure. Escrow Agent is authorized and is
instructed to comply with the following:
15.1 Pay and charge the Seller for any unpaid delinquent taxes against
the Property and /or penalties and interest thereon, and for any delinquent or non -
delinquent assessments or bonds against the Property; and
15.2 Pay and charge the Seller for all taxes against the Property which
will be due at the end of the current assessment period ending either December 10 or
April 10; and
15.3 The Seller shall have the sole right, after the Closing, to apply to
the County Tax Collector of Orange County for a refund of the amount over and above
the amount of the Seller's pro rata share of taxes then due. This refund would apply to
the period after the City's acquisition of the Property, pursuant to Revenue and Taxation
Code Section 5096.7: and
15.4 Escrow Agent shall forward a separate receipt and check for
prorated taxes to Seller pursuant to paragraph 15.3 above, with separate written notice
to City.
16. Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
16.1 Pay and charge the Seller for any amount necessary to place title
of the Property in the condition necessary to satisfy Section 3 of this Agreement; and
16.2 Charge City for Escrow Fees in accordance with Section 12 of this
Agreement; and
16.3 Disburse funds, deliver and record the Grant Deeds and Certificate
of Acceptance when conditions of this escrow have been fulfilled by City and the Seller;
and
16.4 Do such other actions as necessary, including obtaining policies of
title insurance, to fulfill its obligations under this Agreement; and
Agreement For Acquisition And Sale Of Real Property _
9
16.5 If the provisions of FIRPTA apply to the transaction memorialized in
this Agreement, and unless City or the Seller are not a "foreign person" or an exemption
applies, the Escrow Agent shall deduct and withhold from the Seller's proceeds in
connection with the conveyance of the Property, ten percent (10 %) of the gross sales
price and shall otherwise comply with all applicable provisions of FIRPTA. City and the
Seller agree to execute and deliver as directed by Escrow Agent any instrument,
affidavit, and statement, and to perform any act reasonably necessary to comply with
the provisions of FIRPTA and regulations promulgated thereunder. City and the Seller
expressly agree to execute a Certificate of Non - Foreign Status by individual transferor
and /or a Seller's Certification of Compliance with Real Estate Reporting Requirement of
the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be
supplied by Escrow Agent; and
16.6 Prepare and file with all appropriate governmental or taxing
authorities a uniform settlement statement, closing statement, tax withholding forms
including an IRS 1099 -S form, and be responsible for withholding taxes, if any such
forms are provided for or required by law.
16.7 All time limits within which any matter herein specified is to be
performed may be extended, but only by mutual agreement of the parties hereto and
amendment of this Agreement. Any amendment of, or supplement to, this Agreement
must be in writing, and signed by all parties hereto.
17. Termination. If escrow is not in condition to close by the Outside Date,
then either party which has fully performed under this Agreement may, in writing,
demand the return of money or property and terminate this Agreement. If neither party
has fully complied with the provisions of escrow, no demand for return of documents
shall be recognized and this Agreement shall not terminate until five (5) days after
Escrow Agent shall have delivered copies of such demand to all other parties at the
respective addresses shown in this Agreement. If any objections are raised within said
five (5) day period, Escrow Agent is authorized to hold all papers and documents until
instructed by a court of competent jurisdiction or by mutual written instructions of the
parties. Termination of this Agreement shall be without prejudice as to whatever legal
rights either party may have against the other arising from this Agreement. If no
demand is made, the Escrow Agent shall proceed with the Closing as soon as escrow is
in condition to Close.
18. Loss or Damage. Loss or damage to Property, by fire or other casualty,
occurring prior to the recordation of the Grant Deed shall be at the risk of the Seller. In
the event that loss or damage to Property, by fire or other casualty, occurs prior to
recordation of the Grant Deed, City may elect to require that the Seller pay to City the
proceeds of any insurance which may become payable to the Seller by reason thereof,
or to permit such proceeds to be used for the restoration of the damage done, or to
reduce the Seller Property Purchase Price by an amount equal to the diminution in
value of Kincaid Property by reason of such loss or damage or the amount of insurance
payable to the Seller, whichever is greater.
19. General Provisions.
Agreement For Acquisition And Sale Of Real Property
10
19.1 Brokers. The City represents and warrants to Seller that it has not
used any finder, broker or real estate agent in connection with this transaction, and
agrees that it shall indemnify and hold the other harmless from and against all
brokerage commissions or finder's fees and claims therefor, payable in connection with
the disposition of the Property and resulting from the acts or omissions of such
indemnifying party. If Seller elects to be represented by a real estate agent or broker,
Seller shall be liable for the payment of any and all commission or fees for Seller's real
estate agent or broker, and such commission or fees shall be paid for by Seller out of
the proceeds of the sale of the Property herein.
19.2 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the City and the Seller and their respective heirs,
personal representatives, successors and assigns. City shall have the right to assign
this Agreement or any interest or right under this Agreement or under the escrow
without obtaining the prior consent of the Seller.
19.3 Attorneys' Fees. In any action between the parties to interpret,
enforce, award, modify or rescind any of the terms or provisions of this Agreement, or
any action otherwise commenced or taken in connection with this Agreement, both
parties shall be responsible for their respective litigation costs and attorneys' fees.
19.4 Approvals and Notices. Any approval, disapproval, demand,
document or other notice ( "Notice ") which either party may desire or be required to give
to the other party under this Agreement must be in writing and may be given by any
commercially acceptable means to the party to whom the Notice is directed at the
address of the party as set forth below, or at any other address as that party may later
designate by Notice. Any Notice given under this paragraph, whether personally or by
mail, shall be deemed received only upon actual receipt by the intended party.
To Seller: Levon and Zarouhi M. Gugasian
11 Ridgeline Drive
Newport Beach, CA 92660
To City: City of Newport Beach
Attention: City Manager
PO Box 1768
Newport Beach, CA 92658 -8915
19.5 Jurisdiction and Venue. This Agreement shall be construed under
the laws of the State of California in effect at the time of the signing of this Agreement.
The parties consent to the jurisdiction of the California courts with venue in County of
Orange.
19.6 Titles and Captions. Titles and captions are for convenience of
reference only and do not define, describe or limit the scope or the intent of this
Agreement or of any of its terms. Reference to section numbers are to sections in this
Agreement, unless expressly stated otherwise.
Agreement For Acquisition And Sale Of Real
11
19.7 Interpretation. As used in this Agreement, masculine, feminine or
neuter gender and the singular or plural number shall each be deemed to include the
others where and when the context so dictates. The word "including" shall be construed
as if followed by the words "without limitation." This Agreement shall be interpreted as
though prepared jointly by both parties.
19.8 No Waiver. A waiver by either party of a breach of any of the
covenants, conditions or agreements under this Agreement to be performed by the
other party shall not be construed as a waiver of any succeeding breach of the same or
other covenants, agreements, restrictions or conditions of this Agreement.
19.9 Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each instance
signed on behalf of each party.
19.10 Severability. If any term, provision, condition or covenant of this
Agreement or its application to any party or circumstances shall be held, to any extent,
invalid or unenforceable, the remainder of this Agreement, and the application of the
term, provision, condition or covenant to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be affected, and shall be
valid and enforceable to the fullest extent permitted by law.
19.11 Offer. Any delivery of unsigned copies of this Agreement is solely
for the purpose of review by the party to whom delivered, and neither the delivery nor
any prior communications between the parties, whether oral or written, shall in any way
be construed as an offer by City, nor in any way imply that City is under any obligation
to enter the transaction which is the subject of this Agreement. The signing of this
Agreement by the Seller constitutes an offer which shall not be deemed accepted by
City unless and until the City has signed this Agreement. The Seller agrees that his
offer shall be acceptable and cannot be revoked for a period of thirty (30) days. This is
not a binding agreement unless and until executed on behalf of City after approval and
adoption of a resolution or minute action by the City's City Council in full compliance
with the City's Charter, ordinances, and regulations.
19.12 Right of Access. City shall first be entitled to possession of the
Property on the Closing Date. Prior to such date, City and its representatives, agents,
employees, contractors and designees shall have the right of access to the Property at
all reasonable times for the purpose of making necessary and appropriate inspections,
tests, borings, samplings, surveys, etc. The City shall save and protect the Sellers
against any claims resulting from such access or use of Property undertaken pursuant
to this Section.
19.13 Computation of Time. The time in which any act is to be done
under this Agreement is computed by excluding the first day (such as the day escrow
opens), and including the last day, unless the last day is a holiday or Saturday or
Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays
as specified in Section 6700 and 6701 of the California Government Code. If any act is
to be done by a particular time during a day, that time shall be Pacific Time Zone time.
Agreement For Acquisition And Sale Of Real Property
19.14 Legal Advice. Each party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they
do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matters set forth
in this Agreement, or have knowingly chosen not to consult legal counsel as to the
matters set forth in this Agreement; and, they have freely signed this Agreement without
any reliance upon any agreement, promise, statement or representation by or on behalf
of the other party, or their respective agents, employees, or attorneys, except as
specifically set forth in this Agreement, and without duress or coercion, whether
economic or otherwise.
19.15 Time of Essence. Time is expressly made of the essence with
respect to the performance by City and the Seller of each and every obligation and
condition of this Agreement including, without limitation, the Closing.
19.16 Cooperation. Each party agrees to cooperate with the other in the
Closing of this transaction and, in that regard, to sign any and all documents which may
be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of
this Agreement including, but not limited to, releases or additional agreements.
19.17 Acquisition Not Under Threat of Eminent Domain. City possesses
the power, under California law, to acquire the property by eminent domain, but it is not
contemplating the use of its eminent domain power as part of the acquisition of the
Property.
19.18 Agreement in Total.
(a) Entire Agreement. This Agreement contains the entire
understanding between the parties relating to the transaction contemplated by this
Agreement. The Seller is entering this Agreement based solely upon the
representations set forth herein and upon the Seller's own independent investigation of
any and all facts the Seller deems material. No subsequent agreement, representation,
or promise made by either party hereto, or by or to an employee, officer, agent or
representative of either party shall be of any effect unless it is in writing and executed by
the party to be bound thereby.
(b) Counterpart s. This Agreement may be signed in multiple
counterparts which, when signed by all parties, shall constitute a binding agreement.
(c) Exhibits Incorporated by Reference. All exhibits and
attachments attached to this Agreement are incorporated in this Agreement by this
reference. This Agreement includes eighteen (_) pages and Exhibits "A" through "D."
Agreement For Acquisition And Sale Of Real Property
- - 13 -
IN WITNESS WHEREOF, the City and the Seller have signed this Agreement on
the dates set forth below.
SEl I co.
LE%
Dated: )4i, 7, l D By:
ZAROUHI M. GUGASIAN
Qi. 7 /
Dated: By:
Zarouhi M. Gugasian
Dated:
ATTEST:
By:
Leilani Brown, City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
M
Mynette D. Beauchamp,
Assistant City Attorney
CITY:
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
M
David Kiff, City Manager
Agreement For Acquisition And Sale Of Real Property
14
IN WITNESS WHEREOF, the City and the Seller have signed this Agreement on
the dates set forth below.
Dated:
Dated:
Dated:
ATTEST:�(�
By:
Leilani Brown, City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
Myk6tte b. B a champ,
Assistant Cit A omey
SELLER:
LEVON GUGASIAN
M
Levon Gugasian
ZAROUHI M. GUGASIAN
M
Zarouhi M. Gugasian
CITY:
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
By:
Keith Curry, Mayor
Agreement For Acquisition And Sale Of Real Property
14
EXHIBIT "A"
LEGAL DESCRIPTION OF SUBJECT PROPERTY
Lots 7, 8, 9, 10 and 11, in Block 7, Balboa Tract, in the City of Newport Beach, County
of Orange, State of California, as per map thereof recorded in Book 7, Page 11, of
Miscellaneous Maps.
A -1
EXHIBIT "B"
GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
City Clerk
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, California 92663 -3884
RECORDING FEE EXEMPT PER
GOVT. CODE SEC. 6103 & 27383
(Space Above for Recorder's Use)
DOCUMENTARY TRANSFER TAX $ NONE
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
LEO GUGASIAN, a married man as his sole and separate property ( ?),hereby
GRANT(S) to the City of Newport Beach, a municipal corporation, the real property in
the City of Newport Beach, County of Orange, State of California, described as follows:
Dated:
[To be inserted]
Dated: By:
ME
ATTACHMENT NO. "1" TO EXHIBIT "B"
CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property,
by and between the City of Newport Beach, a
municipal corporation, as Grantee, and Levon and Zarouhi M. Gugasian, husband and
wife as joint tenants, as Grantors, is hereby accepted on by the
undersigned officer on behalf of the City of Newport Beach pursuant to authority
conferred by Resolution No. 1992 -82 of the City Council adopted on July 27, 1992. The
City consents to the recordation of said document in the Office of the Recorder of
Orange County, State of Califomia.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
Mynette D. Beauchamp,
Assistant City Attomey
ATTEST:
By:
Leilani I. Brown,
City Clerk
State of California )
County of ORANGE )
CITY OF NEWPORT BEACH,
A Municipal Corporation
M-
David Kiff,
City Manager
On before me, , Notary Public, personally appeared
DAVID KIFF, who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his authorized
capacity(ies), and that by his signature on the instrument the person, or the entity upon behalf of which
the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California
County of ORANGE
On before me, , Notary Public, personally
appeared LEVON GUGASIAN, who proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that he executed the same
in his authorized capacity(ies), and that by his signature on the instrument the person, or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
Signature
State of California
County of ORANGE
On before me, , Notary Public, personally
appeared ZAROUHI M. GUGASIAN, who proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity(ies), and that by his signature on the instrument the person, or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certffy under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal
Signature
EXHIBIT "C"
SCHEDULE OF LEASES
NONE
C -1
EXHIBIT "D"
SAMPLE PROMISSORY NOTE
DQ NO 'f DESI ROY PH IS NOU: W licu paid. [his no[e, with Drnl of I'mm securing same, nm91 be surrmdored to 'I rustee for
canccllawn before recon,eyance will be made.
NOTE SECURED BY DEED OF TRUST
$1,500,000.00 Newport Beach, California , 2010
In installments as herein stated, for value received, THE CITY OF NEWPORT BEACH, A
MUNICIPAL CORPORATION, promises to pay to LEVON GUGASIAN AND ZAROUHI
GUGASIAN, Husband and Wife, as Joint Tenants, or order, at Newport Beach, California, the
principal sum of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000.00) with
interest thereon from , 2010, on the unpaid principal at the rate of two
percent (2 %) per annum in installments as follows:
A single principal payment of SEVEN HUNDRED FIFTY THOUSAND DOLLARS
($750,000.00), plus all accrued interest, shall be due and payable twelve (12)
months from the dale of this note, namely on 2011.
A second and final payment of principal in the amount of SEVEN HUNDRED
FIFTY THOUSAND DOLLARS ($750,000.00), plus all accrued interest, shall be
due and payable twenty four (24) months from the date of this note, namely on
, 2011, at which this note shall fully mature and be fully due
and payable.
Should default be made in payment of any installment of principal and interest, the whole sum
of principal and interest shall, at the option of the holder of this note, become immediately due.
If any payment is more than ten (10) days late, a late charge in the amount of ten percent (10 %)
of the payment shall be due and payable. Principal and interest payable in lawful money of
the United States.
This note is secured by a DEED OF TRUST to CHICAGO TITLE COMPANY, a California
corporation, as Trustee.
[signatures on following page]
IN WITNESS WHEREOF, the City has signed this Note Secured by Deed of Trust on the
date set forth below.
Dated:
r_iI1 *3IF
By:
Leilani Brown, City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
Mynette D. Beauchamp,
Assistant City Attorney
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
In
D. Curry, Mayor
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
Name
CITY OF NEWPORT BEACH
Strew a Municipal Corporatkut
Address
city a 33DD Newport BIM.
Slab
Zip Newport Beach, CA 92663
Title Order No. Escrow No
Assessors Parcel Number: ors Irsoa are as 11&4)5 SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH ASSIGNMENT OF RENTS
This DEED OF TRUST, made between
CITY OF NEWPORT BEACH, a Municipal Corporation wren called TRUSTOR.
whose address is 3300 Newport Blvd. Newpon Beach, California 9266.9
ft r,a Strew) Iryl is.) (EvC )
CHICAGO TITLE COMPANY, a California Corporation, herein called TRUSTEE. and
LEVON GUGASIAN AND ZAROUHI M. GUGASIAN
herein cased BENEFICIARY.
TrUSldr irrevocably grants, banisters and assigns to Trustee in Trust. win Power of Sale that property in
CITY OF NEWPORT BEACH County of ORANGE . State of California, described as
LOTS 7, 8, 9, 10 AND 11. IN BLOCK 7, BALBOA TRACT, IN THE CITY OF NEWPORT BEACH, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS PER MAP THEREOF RECORDED IN BOOK 7, PAGE 11, OF
MISCELLANEOUS MAPS.
Together with the rents, Issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to
collect and apply such rerds, issues and profits.
For the Purpose of Securing (1) payment of the sum of b I.sdo.000 0o with interest thereon according to the terms of a promissory rote or
notes of even date herewith made by Truslm. payable to order of the Berefcary, and extensions m renewals thereof; (2) the performance of each
agreement of Truster incorporated by reference or contaned herein or reubng it is so secured; (3) Payment of additional sums and Interest thereon which
may hereafter be loaned to Tnrsta, or his or her successors a assigns, when evidenced by a promissory note or notes reciting that they are severed by this
Deed of Trust.
A. 1'0 protect the security of this Deed Of Trust, and with respect to the property atom described. Trustor agrees'.
(1) To keep saki property in good oordilion and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed. damaged or destroyed Lemon and to pay when due all claims for labor performed and
materials furnished therefore, to comply with an laws affecting said property or requiring any alterations or improvements to be made thereon, not to 00a mil
or permit waste t erecl: nil to commit, suffer or permit any ad upon said property in violation of law, to wllivate. frigate, fertilize, fumigate. prime and do as
other acts which from tho character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general.
(2) To provide mWrnam and deliver to Beneficiary fire msurance satisfactory to and with loss payable to Beneficiary The amount collected under any fire
or other insurance policy may be appled by Beneficiary upon any indebtedness secured hereby and in such meter as beneficiary may determine, or at
option of Beneficiary the enfire amount so collected or any part thereof may be released to Tr. slor. Such application or release shall not are or waive any
del" or notice of delauht hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding pupoding to affect Ire secrity hereof or the rights or powers of Beneficary or Trustee', and to pay
Off costs and expenses. Including cost of evderrce of title and atomet+s tees in a reasonable sum. in any action or proceeding in vetch Be efclary or
Trustee may appear. and in any suit brought by Beneficiary to foreclose the Deed of Trust.
(4) To pay. at least ter, days cefore delinquency all taxes and assessments affectag said property. including assessments on appurtenant water stock,
when due, all encumbrances, charges and liens. with Interest, on said property or any part thereof, which appear to be prior or superior hereto: all Costs,
fees and expenses of this Tnusl.
Should Truster fag to make any payment or to do any ad as herein pmwded, than Beneficiary or Trustee, but without obligation So to do and withoul notice
to or demand upon Tnustor and mthorA releasing Trustor from any obligation hereof. may make or do the same In such manner and to such extent as either
may deem necessary to protect the security hereof. Beneficiary or Trustee being authorized to enter upon said property for such purposas; appear in and
defend any action M proceeding purposing to affect the security hereof or the rights w powefs of Beneficiary or Trustee, pay, pvc ase. contest or
compromise any encumbrance. charge, Of lien wrnch in the judgment of ether appears to be prior or superior hereto: and, in exercising any such powers,
pay necessary expenses. employ coi~. and pay his or her reasonable fees
Pads I
J5) To pay immediately and w l oul demand all sums so erpcndod by 6, neficia%or Trustee, wit mutest from dale, of expenditure at the amount
allowed by law In eyed at the date hereof, and to pa for any slatenenl provided f« tly lrw In effect at the date hereof regard �nq the GoYOation secured
hereby. any amount demanded by the Beneficiary not to exceed Ito: maximum allowed by law at the time when said statement is demanded.
& It Is mutualy agreed
(I) (hat any award of damages in o«neclbn wilh any condemnation for public use of or mjury to said property or any pool thereof Is hereby assgned
and shall be Gaid to Beneficiary who may app, or release such moneys received by him « her In the same mamef and with to same effect as above
provided for tllsposrtlon of p«aeds of fee «other Insurance.
(2) That by accap�n9 payrncnl of any sum secufetl hereby after Its due date. Berefcary, does nol waive his « her right either to requre prompt
payment when due
'ring other sums so secured or to declare default for fa ore so to pay.
(7) That at any time « from tare to lima, without liability ,heref«e and without notice, upon written request of Benefictary and preseolalim of this
Deed and said rote for emd«sefrenl, and without affecting the personal liabiwy of any person 1« payment of the indebtedmus secured hereby. Trustee
may. nex "any pan of said property; consent to the rnaorg of any maD «plat thereof; join in granting any easement IrWa0n; Of join In any extension
agreement of am/ agreement Subordinating the lien or charge hereof
(4) That upon wridon reauesl of beneficiary stating that all sums secured hereby have been pad. and upon surrender of this Deed and said note to
Trustee lor c3nCetlaWn ad retention or other disposition as Trustee in its sole discretion may choose and upon payment of Its fees. Trustee shall
reconvey, wtlheu warramy, the propeM then Lod heraurder, The recitals in such reconveyance of arty masers or fads shall be conCUerva proof or the
huthfulness thereat The ramee in such recdmeyance may be described as the person «persons legally eniled thereto -.
(5) That 85 additional seanry. Trust« he" gives to and confers upon Beneficiary the nght. power and authority, during the continuance of these
Trusts, to collect the rents, issues and profits of said property reserving unto Truster the right. prior to any default by Truslot In payr«ml of any
Indebtedness scared hereby or In performance or any agreemerl hereunder. to tolled and retain such rents. issues and profits as they tiecorhe due and
payyaable. Upon any such default, Beneficiary may at anry lime without notice, either in pereon, by agent. N by a receive to be appointed by a court. and
wdhoU regard to the adequacy of any security f« the Indebtedness hereby secured, enter upon and lake possesscn of sad pooerty « any pan thereof,
In his or her own name sue for or olXerwlse tolled such rents. Issues, and profits. including those past due and unpaid, antl apply brie same, less costs
and expenses of operation and collection, including reasonable atlorneTrs fees, upon any irdebledoess secured hereby. and In such order as Beneficiary
may deteny*w The entenrg upon and taking possession of Said property, the collection of such rents. issues and profits and the appacebon thefeof as
aforesaid, shall not are «waive any detau0 or mlim of default hereuMer or invalidate any ad done pursuant to such notice.
(6) That upon default by Tnnbr In payment of any Indebedness secured hereby or in perfrancia of any agreement her&x9W. Beneficiary, rimy
declare all sums secured hereby inn ately due and payable by delivery to Trustee of written declaration d default and d «nand f« sale and of MMen
notice of delaull and of election to cause lobe said said properly, which nice Trustee shall cause 10 be tied for record. Benefcary also shall deposit
with Trustee this Deed. said note and as documents evidencing expenditures secured hereby
Alter the lapse of such time as may then be requred by law following the recordation of said wfim of default. and notice of sale having been given as
then requred by law. Trustee WIPW demand on Truster. shall sell said property at the time and place fixed by it In said notice of sale. ether as a whole
or in separate parcels. end In such order as 0 may deleari e. at public suclto t to the highest bidder f« cash in lawful money of the United States,
Payable at firm of sale. Trustee may postpone sale of all «any portion of said propert by pubtic amwncem it at such time and place of sale, and from
one to lime thereafter may poslp«ne such sale by Dubuc anno rroemi rM at the time Xxed Dy the preceding postfonement. Truslae shelf deliver to such
purchaser its deed conveying the property so sold. but without any covenant or warranty, express or implied. The recitals in such deed of any matters «
lacls shall be conclusive proof of the truthfulness thereof. Any person. including Trust«. Trustee. « Beneficiary as hereinafter defined, may purchase at
such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust. ineudmg cost of ewdwce of btle n connection with sale. Trustee shall apply the
proceeds or sale to payment of all sums expended udeir the terms hereof, n« ,hen repaid. with accrued inlerest at the amount allowed by law In effect
at the data hereof. alit ciher sums then Seared hereby; and the remainder, of any, to the person or persons "ally entitled thereto.
(7) Benefldery, « any success« in owrorshlp of any Indebtedness secured hereby, may from time to tune. by instrument in waiting. substitute a
Successor « successors to any Trustee named herein or acting hereunder. which inSMumem. executed by de Beneficiary and duty advwMedgBd and
recorded in the office of the retarder of the corny, or counties where said property is situated. shall be concusve proof of pr substitution of such
successor Tnatee « Trustees, who shall without corwayanm from the Tmslee Puredecessor, succeed to all its Lille. estate, rIgMS. pdNCls and dUbeS.
Said nsbvneni mull certain the name of the original Trust«. Trustee and Benencary hereunder, the book and page where t k Deed is recorded and
the name and address of the new Trustee.
(8) Thal this Deed applies to. mfes to the benefit of, and binds all partes hereto. their heirs. legatees. devisees, adninlstfators, executors,
successors. and assgr e. Tie lens Beneficiary shall mean the owner arid holder. Including pledges. of the note secured hereby. whether or not named as
Beneficiary herein In tss Deed, whenever the context so requires. the masmW a gender includes the femnine andIm the nailer, and the Singular
number includes the phial.
(9) The Trustee accepts this Trust when thiS Deed, duty executed and acknowledged. Is made a public fcord as provided W law Tnutee is not
odgated to notify any parry h«elo of pending sale under any other Deed of Trust or of any action « pr6ceedng in yRhich Trust«, Beneficiary or Trustee
shall be a party unless t by Trustee.
Beneficiary may charge for a statement regarding the obligation severed hereby, provided the charge thereof does not exceed the maximum allowed by
laws.
The undersigned Truster, requests that a copy of any notice of default and any notice of sale hereunder be (nailed to him or her at his or her address
herembefore, sal forth.
Dated Signature of Tint«
STATE OF CALIFORNIA
COUNTY OF _
0
.— {Ihue Irroen name and the d the oaloeq
me.
who proved to me on the basis of satisfactory evidence to be the
per ion(s) whose name(s) iglare subscnbed to the vmrwn instrument
and acknowledged to ire that heyslelthey executed the Same in
hamwlt het authorized capacdyges). and that by hisaheraheir
agnatrre(s) on the imtrunent the persor(s). «the entity upon behalf
of vduch the persons) acted. executed the nstru nerht.
1 cendy under PFNALTY OF PERJURY under the laws of the slate of
California that the foregoing paragraph Is true and correct.
WITNESS my hand and ofbdal Seal
SIGNATURES ON FOLLOWING PAGE
Signature.
.. .
efpa 2 ITna alto• for rang rvlaW rent
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO CHICAGO TITLE COMPANY
The undersigned is the legal ovmes and holder of the note of roles, and of all other videbtedness secured by the foragomg Deed of Trust Said
note a notes together wtM all other indebtedness secured by aan beed of trust have been fully paid and satished. and you are hereby requested and
directed. on payment to you of any sums owing to you under %he terms of said Deed of Trust. to cancel said note or notes above mentioned. and all
other evidence of indebtedness secured by said Deed of Trust delivered to you herewslh, together wilh the said Deed of Trust, and to recamrsy. without
warranty, to Me parties designated by the terms of said Deed of Trust, all the estate now held by you under the same
Dated
Please mail Deed of Trust.
Note and Reoari"yanoe to
Do not lase or desbW this Deed or Trust OR THE NOTE ishkh it sea+rns Doer mvsl be doMmi,64 to the Tw! for cen agayo+ Coble reowrmya We CO mode
* ® Chicago Title
Cpee
IN WITNESS WHEREOF, the City has signed this Deed of Trust on the date set forth below.
�i
ATTEST:
By:
Leilani Brown, City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
Mynette D. Beauchamp,
Assistant City Attorney
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
By:
Keith D. Curry, Mayor
05/27/ 2010 THU 10: 40 FAX 6443139 NB City Atty' S 0£fiCe
U &,'20/ 2010 12: Y 1 4 :: ul .' f
E tion's A986,
6.3, 4986.5, -& 2 of the Revenue Taxation Code
ir': r�td dib", II,
Assessor Department of Orange County
REQUEST FOR CANCELLATION OF TAXES ON
PROPERTY ACQUIRED BY PUBLIC AGENCIES
Please supply the following information. You may mail the completed form to:
Orange County Assessor
Attn Mapping
PO Box 149
Santa Ana Ca 92702
®002/002
I r" d i r..
or fax a copy to 714.834 -2185, Include copies of relevant maps. Any questions, call 714 -834- 2758.
Failure to supply all requested information may result in delays or denial of the request.
Name of acquiring Public Agency City of Newport Beach Agency Mailing Address
Did the Agency acquire fee title? Yes x No _ 3300 Newport Blvd.
If no, was the interest: P.O. Box 1768
Easement? Please specify type of easement, Newport Beach, CA 92658
Or other? Please specify type of Interest
APN
Ail oo TRA
(Taff Rate Area)
Points
Year
Auditor Use Only
Auditor Use Only
048- 116 -04
All
048 - 116 -05
All
"Was the entire APN acquired or only a portion?
a e area is for Assess&/: and
Auditor use
608 East Balboa Blvd. & 209 Washington St.,` " ° "r
Street address of property Beach
Instrument number of acquiring document _ Date of cancellation
Was title acquired by a Final Order of Condemnation?. Yes _ No X
include documentation if the cancellation date is other than the recording date of the acquiring document.
Remarks: Date of recording: March 16, 2010
Document # 201000012495&
Form is to be signed by an authorized agent for the acquiring public agency. Please indicate a phone number and a
contact person for any questions we may have, A copy of the signed form will be returned to the Agency at the
above indicated address unless a different matting address is indicated below.
Signed ° a -- Title ity Manager phone 949- 644 -3000
Dava Ciff
Mailing Address 3300 Newport Blvd., PO Box 1768, Newport Beach, CA 92658
F., d<eeeane rl.n nniv Nefnm Th:c I -n
Approved Yes No Not approved for the following reason:
Referred to SSE No change in assessed value
Other
Worked by Date , ? Jr- 3 a Date Received C) -2
Approved by co��— Date Released
�,q t7l
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
7 ADD a�io
'THE CITY CO(1P1CIL
CrfY OF NEWPORT REACH
Agenda Item No. 26
January 26, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Leigh M. De Santis, Economic Development Administrator
949 - 644 -3207, Idesantis @newportbeachca.gov
SUBJECT: Purchase and Sale Agreement for Acquisition of 608 E. Balboa
Boulevard and 209 Washington Street
RECOMMENDATIONS:
1. Approve and authorize the mayor to sign the attached Purchase and Sale
Agreement by and between the City of Newport Beach and Levon Gugasian and
Zarouhi Gugasian, husband and wife, for the purchase by the City of 608 E.
Balboa Boulevard and 209 Washington Street.
2. Approve budget amendment transferring funds as follows:
• $1,294,268 from the Neighborhood Enhancement B Reserve Account
(010 -3769) to 7024- C3002008,
• $138,897 from the Off Street Parking Reserve Account (010 -3766) to
7022- C3002008, and
• $671,335 from the In -Lieu Parking Reserve Account (010 -3767) to 7021-
03002008.
DISCUSSION:
Background:
The City Council, at a closed session on October 27, 2009, provided negotiation
instructions to its negotiating team for the acquisition of 608 E Balboa Boulevard and
209 Washington Street. Additional instructions were sought and provided on November
24, 2009. The team was able to reach agreement with the Sellers in keeping with the
Council's instructions. The property is being purchased for expansion of the City at-
grade public parking lot located on the same block.
Purchase & Sale Agreement
January 26, 2010
Page 2
Terms of Agreement:
Attached to this report for your review and approval is the Purchase and Sale
Agreement. Mr. and Mrs. Gugasian have signed the Agreement.
The Terms of the Agreement are as follows:
1. Consideration
a. Purchase Price: .$3,500,000
b. Payment Schedule
i. Opening of Escrow: $100,000, refundable if title or environmental
issues are unacceptable to Buyer
ii. Close of Escrow: $1,900,000
iii. First anniversary C /E: $750,000 with interest accruing at 2%
iv. Second anniversary C /E: $750,000 with interest accruing at 2%
2. Title Insurance
Seller to provide preliminary title report and policy of title insurance covering
full purchase price
3. Escrow
a. Escrow company to be selected jointly
b. Costs of escrow to be shared equally by Buyer and Seller
c. Documentary transfer tax to be paid by Seller
d. Escrow may not close until City has approved an environmental
determination on the project.
4. Real Estate Commissions
a. Buyer is not represented by real estate agent or broker
b. If Seller is represented by real estate agent or broker, any commission or
fees to be paid for by Seller out of proceeds of sale
5. Environmental Contamination Assessment
a. Purchase to be contingent on no environmental contamination on
property, or contamination at a level acceptable to Buyer
b. Buyer to be responsible for cost of environmental assessment of property
c. Environmental assessment to be completed within ninety (90) days of
opening escrow
Purchase & Sale Agreement
January 26, 2010
Page 3
d. Buyer to have thirty (30) days from completion of environmental
assessment to waive contingency or withdraw from transaction
e. Seller remains responsible for any environmental contamination existing
prior to close of escrow
6. Voluntary Transaction /Relocation Assistance
a. Buyer is not contemplating use of eminent domain
b. If Buyer receives any claims for relocation assistance, Buyer reserves
right to renegotiate purchase price
7. City Council Approval/ California Environmental Quality Act (CEQA)
a. Any agreement for Buyer to purchase property is not valid without
approval by City Council, including City Council approval of environmental
determination pursuant to CEQA
b. Close of escrow to be contingent upon completion of CEQA analysis to
Buyer's satisfaction
Environmental Review:
City staff will be conducting the CEQA review based on the project being the
acquisition, demolition of the existing structure and the expansion of the existing at-
grade public parking lot. Results of the Phase 1 environmental assessment are needed
to complete the CEQA analysis. Staff has selected a firm to complete this work, and it
will be completed well within the 90 -day timeframe noted in the terms. The terms of the
Purchase and Sale Agreement provide, and the escrow instructions will include, that
escrow may not close until the City has approved an environmental determination on
the project.
Funding Availability:
To implement this transaction and build the at -grade parking lot will require $2.1 million
dollars in fiscal year 2010 with two additional annual installments of $750,000 in fiscal
years 2011 & 2012. The money will be used as follows.
Escrow Deposit 100,000 refundable if escrow does not close
Payment due at the Close of Escrow 1,900,000
Phase I Environmental 2,550
Escrow costs 1,950
Demolition 50,000
Construction 50,000
FY 2010 Appropriation $2,104,500
Purchase & Sale Agreement
January 26, 2010
Page 4
FY 2011 Installment $750,000
FY 2012 Installment $750.000
TOTAL $3,604,500
The initial $2,104,500 dollars will be appropriated from three separate reserve accounts:
Neighborhood Enhancement B, In -Lieu Parking, and Off Street Parking. These three
accounts were originally established as depositories for funds to be used to create off -
street parking. The FY 2010 appropriation will fully commit the balances in the three
reserve accounts. This commitment will cause all three accounts to briefly go negative.
They will return to positive balances as more revenue is recognized. Staff projects that
all but $134,858 should be repaid by June 30, 2010. The remaining balance will be
earned in FY 2011. The remaining balance of installment purchase agreement will
obligate the General Fund to pay the seller $750,000 in fiscal years 2011 and 2012
which will be appropriated from future revenue sources.
Prepared by:
Leigh M. De Santis,
Economic Development Administrator
Submitted by:
SYiaron Z. Wood
Assistant City ager
Attachments: Purchase and Sale Agreement
Budget Amendment
AGREEMENT FOR ACQUISITION AND SALE OF REAL
PROPERTY BY AND BETWEEN THE CITY OF NEWPORT
BEACH AND LEVON AND ZAROUHI GUGASIAN
This AGREEMENT FOR ACQUISITION AND SALE OF REAL PROPERTY
( "Agreement ") is entered into by and between the CITY OF NEWPORT BEACH, a
municipal corporation and Charter city (the "City'), and LEVON GUGASIAN and
ZAROUHI M. GUGASIAN, husband and wife as joint tenants ( "Seller"), for acquisition
by the City of certain real property owned by Seller and is made on the basis of the
following facts, intentions and understandings.
RECITALS
A. Seller is the present owner of that certain real property consisting of two adjacent
parcels generally located at 608 East Balboa Boulevard and 209 Washington
Street, Newport Beach, California ( "Property "), identified as Assessor's Parcel
Numbers 048 -116 -04 and 048 - 116 -05, and more particularly described in
Exhibit "A" ( "Legal Description ") which is attached hereto and incorporated herein
by reference.
B. Seller is to convey fee simple merchantable title in the Property ( "Setters
Interest") to City in accordance with the terms of this Agreement.
C. City desires to acquire Property, for possible redevelopment, and Seller agrees to
sell, assign and transfer Property on the terms and conditions set forth in this
Agreement.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. Purchase and Sale of Property. Subject to the prior satisfaction of the
Conditions to Closing set forth in Section 3 hereof, City shall acquire from Seller the
Property. The parties agree on the basis of an appraisal in accordance with the
negotiation of this transaction that the value of the Property is Three Million Five
Hundred Thousand Dollars ($3,500,000.00) (the "Property Purchase Price"); to which
the Parties allocate Two Million, Five Hundred and Fifty Thousand Dollars
($2,550,000.00) for the 608 East Balboa Boulevard parcel (the "608 Parcel"), and Nine
Hundred and Fifty Thousand Dollars ($950,000.00) for the 209 Washington Street
parcel. The Parties acknowledge that Twenty-Six Thousand, Five Hundred Dollars
($26,500.00) of the Two Million, Five Hundred and Fifty Thousand Dollars allocated for
the 608 Parcel shall constitute consideration for personal property and fixtures existing
on the 608 Parcel which are included in the subject transaction. The City anticipates
such funds used for the Property Purchase Price will be derived from parking in lieu
fees rather than from the City's General Fund.
2. Closing. This transaction shall close (`Closing ") within thirty (30) days of
the satisfaction of the Conditions to Closing set forth in Section 3, but in any event not
later than one hundred and twenty (120) days after the City has approved this
Agreement (the "Outside Date "). The Closing shall occur at the office of the Escrow
Agent (as hereinafter defined) within Orange County at a time and place reasonably
agreed on by the parties. The "Closing" shall mean the time and day the Grant Deed is
filed for recording with the Orange County Recorder. The "Closing Date" shall mean the
day on which the Closing occurs.
3. Conditions to Closing. The Conditions to the Closing are as follows
(a) Conveyance to City of good and marketable title to the
Property free of any and all interests, encumbrances, liens, easements, rights or
possession or other clouds of title other than the Leases set forth in the Schedule of
Leases attached hereto as Exhibit C and such liens, encumbrances, clouds or
conditions as may be approved in writing by the City's City Manager, or designee; and
(b) Delivery of a CLTA owner's extended coverage title
insurance policy on the Property, at Seller's expense, in the amount of the full Purchase
Price, subject only to such liens, encumbrances, clouds or conditions as may be
approved in writing by the City's City Manager, or designee; and
(c) Satisfaction of all of Seller's obligations enumerated in
Section 4 hereof, and
(d) Satisfaction of all of City's obligations enumerated in
Section 5 hereof; and
(e) City's written approval of the Preliminary Title Report for the
Property as required under Section 13 of this Agreement; and
(f) City's written acceptance of the Leases or rental agreements
set forth in the Schedule of Leases attached hereto as Exhibit C.
(g) City's environmental consultant providing to City evidence
deemed sufficient by City, in writing that the Property is clear of hazardous
contamination, or City's acceptance, in writing, that the level of any hazardous
contamination is acceptable to City. The cost of said site investigation shall be at the
expense of City;
(h) Pursuant to the California Environmental Quality Act
( "CEQA ") Guidelines Section 15004(b)(2)(A) and applicable case law, City conditions its
purchase and use of the Property on the completion and approval of an environmental
analysis. Said approval is at the sole and absolute discretion of City, and shall be
conveyed to Seller in writing prior to the Close of Escrow. By purchasing the Property,
City is not committing itself to any definite course of action on any future project. City
retains its full authority and right to consider all feasible mitigation measures and
alternatives for any future project, including a no project alternative; and,
(i) Seller's execution of an affidavit of exemption from the
Foreign Investment in Real Property Tax Act ( "FIRPTA ").
Agreement For Acquisition And Sale Of Real Property
2
4. Seller's Obligations. Seller shall deliver the following to escrow no later
than 12:00 o'clock noon, one (1) business day before the anticipated Closing:
(a) Grant Deed to Property executed by Seller and notarized in
the form of Exhibit "B" attached hereto and incorporated herein by this reference (the
"Grant Deed ").
(b) Transfer all security deposits or advance rental payments
held by Seller or any third -party to the City.
5. City's Obligations. No later than 12:00 o'clock noon one (1) business
day before the anticipated Closing, City shall deliver to escrow the following:
(a) The Certificate of Acceptance (Attachment "1" to Exhibit "B")
signed by City's authorized representative in the form attached to the Grant Deed;
(b) First installment payment of One Million, Nine Hundred
Thousand Dollars ($1,900,000.00) and amounts required to be paid by the City by
Section 12 hereof; and,
(c) A fully executed Promissory Note in favor of Seller, in a form
substantially similar to the one attached hereto as Exhibit D, providing that Buyer shall
pay to Seller the balance of the Purchase Price (One Million, Five Hundred Thousand
Dollars or $1,500,000.00) payable in two equal installments, the first payment due one
year from the Closing Date, and the second payment due two years from the Closing
Date, with interest accruing at two percent (2 %) per annum.
6. Representations and Warranties.
6.1 The City represents and warrants to the Seller as follows
(a) To the best of the City's knowledge, there are no actions,
suits, material claims, legal proceedings, or any other proceedings affecting this
Agreement thereof, at law, or in equity before any court or governmental agency,
domestic or foreign; and
(b) To the best of the City's knowledge, neither the execution of
this Agreement nor the performance of the obligations herein will conflict with, or breach
any of the provisions of any bond, note, evidence of indebtedness, contract, lease, or
other agreement; and
. (c) City is not a "foreign person" within the parameters of
FIRPTA, or is exempt from the provisions of FIRPTA, or that the City has complied and
will comply with all the requirements under FIRPTA; and
6.2 The Seller represents and warrants to the City as follows:
Agreement For Acquisition And Sale Of Real Property
3
(a) The Seller has full right, power and lawful authority to grant,
sell and convey the Property as provided herein; and
(b) To the best of the Seller's knowledge, and except as
disclosed in writing to City, including the Schedule of Leases attached hereto as
Exhibit C, there are no tenants or other persons who have a lawful interest in the
Property; and
(c) The Seller, at the time of the execution of this Agreement, is
in possession of the Property in fee simple and is the lawful owner of and has good
indefeasible title to the Property; and
(d) To the best of the Seller's knowledge, there are no pending
or threatened actions, suits, material claims, legal proceedings, or any other
proceedings affecting the Property or any portion thereof, at law, or in equity before any
court or governmental agency, domestic or foreign; and
(e) To the best of the Seller's knowledge, and except as
disclosed in writing to City, there are no service contracts or other contracts affecting
the Property; and
(f) Until the Closing, the Seller shall not do anything which
would impair the Seller's title to the Property; and
(g) To the best of the Seller's knowledge, neither the execution
of this Agreement nor the performance of the obligations herein will conflict with, or
breach any of the provisions of any bond, note, evidence of indebtedness, contract,
lease, or other agreement or instrument which affects the Property; and
(h) The Seller agrees to convey by grant deed to City
marketable fee simple title to the Property free and clear of all recorded and unrecorded
liens, encumbrances, assessments, easements, leases, and taxes EXCEPT the Leases
set forth on the Schedule of Leases attached hereto as Exhibit C, quasi - public utility,
public alley, public street easements, and rights of way of record, and such other liens
or encumbrances approved in writing by City's City Manager or designee; and
(i) The Sellers are not a "foreign person" within the parameters
of FIRPTA, or are exempt from the provisions of FIRPTA, or that the Seller's have
complied and will comply with all the requirements under FIRPTA.
0) Until the Closing, the Seller shall, upon learning of any fact
or condition which would cause any of the warranties and representations in this
Section 6.2 not to be true as of Closing, immediately give written notice of such fact or
condition to City.
6.3 The representations and warranties set forth in this Section 6 and
Section 8 shall survive close of escrow.
Agreement For Acquisition And Sale Of Real Property
4.
7. Release and Waiver. The amount of the Property Value has been
determined based upon negotiations at arm's- length and an appraisal mutually agreed
upon by the Parties submitted by Richard A. Fuller, MAI on October 15, 2009, and does
not include consideration for any amounts required to be paid for relocation assistance
pursuant to the Relocation Assistance Act (Government Code Section 7260, et seq.)
and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970 (42 U.S.C. Section 4601, et seq.), and any other applicable federal, state or local
enactment, regulation or practice. Seller has been fully advised by counsel of their
choosing and forever waives and disclaims any claim for relocation benefits or
assistance or any compensation based upon loss of goodwill, severance damages,
improvements pertaining to the realty, attorneys fees, interest, court cost, or otherwise,
and waive any right to receive an offer based on an appraisal, and agrees that the
Purchase Price shall be the sole payment and compensation to the Seller for the sale of
the Seder's Interest in the Property. If the City receives any claim for relocation
assistance pursuant to the Relocation Assistance Act and the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970 during the Escrow period,
the City reserves the right to renegotiate the Purchase Price or to cancel Escrow if the
Parties cannot agree upon a modified Purchase Price.
8. Condition of the Property.
Hazardous Waste... The Seller acknowledges with respect to the. Property that to the
best of the Sellers knowledge, Hazardous Materials ( "Hazardous Materials ") were not
used, generated; stored; .released; discharged or disposed of on, under, in, or about the
Property or transported to or from the Property. The Seller represents with respect to
the Property, that the Seller nor any other person or entity under the control of, or with
the knowledge of the Seller will cause or permit the use, generation, storage, release,
discharge, or disposal of any Hazardous. Materials on, under,. in, or about the subject
property. As used in this.Agreement.the term "Hazardous Materials" shall mean any
substance, material, or waste which is or becomes; prior to the closing date, 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 25115, 25117 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 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi). friable asbestos, (vii) polychlorinated
biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Code of Regulations,
Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section
311 of the Clean Water Act, (33 U.S.C. §1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
section 6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances"
pursuant to Section 101 of the Comprehensive Environmental Response,
Agreement Fer Acquisition And Sale Of Real Property
5 — — -
Compensation, and Liability Act, 42 U.S.C. Section 6901 et seq. The Seller shall be
responsible for the removal of all Hazardous Materials, if any, before the Seller
relinquishes actual possession of the Property, subject to the City's approval of Seller's
satisfactory removal of all Hazardous Materials. City shall have the right to fully inspect
the Property prior the Close of Escrow and shall provide written notice of its approval or
non - approval of the removal of Hazardous Materials to its satisfaction prior to the Close
of Escrow. If the removal of Hazardous Materials by Seller has not been completed to
City's satisfaction no later than one (1) business day before Close of Escrow, City
reserves the right to cancel Escrow and terminate this transaction.
9. Compliance with Environmental Laws. To the best of the Seller's
knowledge, the Property and its present use 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 Environmental 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 City, and all applicable
federal, state, and local agencies and bureaus.
10. Indemnity. The Seller agrees to indemnify, defend and hold City
harmless from and against any claim, action, suit, proceeding, loss, cost, damage,
liability, deficiency, fine, penalty, punitive damage, or expense (including, without
limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence,
release, use, generation, discharge, storage or disposal of any Hazardous Materials on,
under, in or about, or the transportation of any such Hazardous Materials to or from, 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 from, the Property. This indemnity shall include, without limitation, any
damage, liability, fine, penalty, punitive damage, cost or expense arising from 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
income, profits or other economic loss, damage to the natural resource or the
environment, nuisance, contamination, leak, spill, release or other adverse effect on the
environment. This indemnity extends only to liability created prior to the Closing Date.
11. Environmental Contingency. This Agreement, or escrow created
hereby, is additionally contingent upon the City receiving satisfactory evidence, in the
form of an environmental assessment report, from a licensed contractor who is
acceptable to the City in its sole and absolute discretion and who shall be hired by the
City, showing that the Property is free from any Hazardous Materials in the soil or
groundwater, or any other environmental conditions which may affect the value of the
Property. In the event the City is not able to obtain such an environmental assessment
report, the City is entitled to conduct such further and other examination and testing as it
Agreement For Acquisition And Sale Of Real Property
— - 6
or any responsible governmental agency may require or request to determine the
nature, source, scope, and extent of such Hazardous Materials, or it may terminate this
transaction and cancel escrow. Such environmental assessment report shall be
completed within ninety (90) calendar days of opening of escrow. If a licensed
contractor selected by the City determines that there are Hazardous Materials in, on or
under the Property, including in the groundwater, then the City may elect to:
(i) terminate this transaction and cancel escrow, or (ii) negotiate a modified purchase
price with Seller and purchase the subject Property. The City shall provide written
notice to the Seller of its election to terminate the transaction and cancel escrow under
this paragraph within thirty (30) days from the completion of the environmental
assessment report. Regardless of which option is selected by the City in the event
Hazardous Materials are found in, on or under the subject property, neither Party
waives or relinquishes any common law or statutory rights it or they may have against
one another or third persons arising from or related to the cause or source of the
Hazardous Materials, or for contribution or indemnity as a result of site evaluation,
remediation and clean -up costs and liability.
12. Escrow. Within ten (10) days after the execution of this Agreement by
City and the Seller, the parties shall open escrow with an escrow company agreed to by
all parties (the "Escrow Agent'.
12.1 City shall deposit $100,000.00 with Escrow Agent within three days
of opening escrow as a deposit toward the Purchase Price (the "Initial Deposit ").
The Initial Deposit shall be.refundable in full.to the City if any of the conditions set
forth in Section 3j.8 or 11 of this Agreement cannot be satisfied or completed.
12.2 The City shall pay one -half (1/2) all escrow fees, charges and costs
(the "Escrow Fees ") consisting of the following:
(a) The Escrow Agent's fee;
(b) The cost of any documentary transfer taxes, if any, on the
Property Grant Deed;
(c) Fees for recording and filing all documents required by this
Agreement in connection with the transfer of Property, including the Property Grant
Deed; and
12.3 The Seller shall pay one -half (1/2) all escrow fees, charges and
costs (the "Escrow Fees ") consisting of the following:
(a) The Escrow Agent's fee;
(b) The cost of any documentary transfer taxes, if any, on the
Property Grant Deed;
(c) Fees for recording and filing all documents required by this
Agreement in connection with the transfer of Property, including the Property Grant
Deed; and
Agreement For Acquisition And Sale Of Real Property
7
(d) The full costs of an CLTA owner's extended insurance
coverage, including any land survey costs for the Property in the amount of the Property
Purchase Price.
13. Preliminary Title Reports. Within five (5) business days after the
opening of escrow, the Seller, at the Seller's expense, shall furnish City with a
Preliminary Title Report on the Property issued by a title company mutually agreed to by
both Parties. The Preliminary Title Report shall be accompanied by legible copies of
all underlying documents for all exceptions ( "Exceptions ") set forth in the Preliminary
Title Report. The City shall have ten (10) business days from receipt of the Preliminary
Title Report within which to give written notice to the Seller of the City's approval or
disapproval of any of such Exceptions. The City's failure to give written approval of the
Preliminary Title Report within such time limit shall be deemed disapproval of the
Preliminary Title Report. No deeds of trust, mortgages or other liens, except for the lien
of property taxes and assessments not yet due, shall be approved Exceptions. If the
City notifies the Seller of its disapproval of any Exceptions in the Preliminary Title
Report, or is deemed to have disapproved the Preliminary Title Report, the Seller shall
have the right, but not the obligation, to remove any disapproved Exceptions within thirty
(30) days after receiving written notice of the City's disapproval or provide assurances
satisfactory to the reviewing. party that such Exception(s) will be removed on or, before
the Closing. If the Seller cannot or does not elect to remove any of the disapproved
Exceptions within that period, the City shall have ten (10) days after the expiration of
such thirty (30) day period to either give the Seller written notice that the City elects to
proceed with the acquisition subject to the disapproved Exceptions or to give the Seller
written notice that the City elects to terminate this Agreement. The City shall have the
right to.approve or disapprove any Exceptions reported by the Title Company after the
City has approved the condition of title for the Property. Neither party shall voluntarily
create any new exceptions to title following the date of this Agreement.
14. Escrow Instructions. This Agreement constitutes the joint escrow
instructions of the City and the Seller, and Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. The parties hereto agree
to do all acts reasonably necessary to close this escrow in the shortest possible time.
14.1 By 12 o'clock noon, the last business day before Closing, the City
and the Seller will deposit the documents as required by Section 4 and 5 hereof with
Escrow Agent. The City and the Seller agree to deposit with Escrow Agent any
additional instruments as may be necessary to complete this transaction or required by
escrow.
14.2 Insurance policies for fire or casualty are not to be transferred, and
Seller will cancel its policies after the Closing.
14.3 All funds received in this escrow shall be deposited with other
escrow funds in a general escrow account(s) and may be transferred to any other such
escrow trust account in any State or National Bank doing business in the State of
California. All disbursements shall be made by check from such account.
__ Agreement For Acquisition And Sale Of Real Property
8
14.4 If in the opinion of the City it is necessary or convenient in order to
accomplish the Closing of this transaction, City may require that the parties sign
supplemental escrow instructions as may be required by the Escrow Agent; provided
that if there is any inconsistency between this Agreement and the supplemental escrow
instructions, then the provisions of this Agreement shall control. The Parties agree to
execute such other and further documents as may be necessary, helpful or appropriate
to effectuate the provisions of this Agreement. The Closing shall take place when the
conditions of Closing as set forth in Section 3 have been satisfied.
14.5 Escrow Agent is instructed to release City's escrow closing and the
Seller's escrow closing statement to the parties as identified in Section 19.4 of this
Agreement.
15. Tax Adjustment Procedure. Escrow Agent is authorized and is
instructed to comply with the following:
15.1 Pay and charge the Seller for any unpaid delinquent taxes against
the Property and/or penalties and interest thereon, and for any delinquent or non -
delinquent assessments or bonds against the Property; and
15.2 Pay and charge the Seller for all taxes against the Property. which
will be due at the end of the current assessment period ending either December 10 or
April 10; and
15.3 The Seller shall have the sole right, after the Closing, to apply to
the County Tax Collector of Orange County for a refund of the amount over and above
the amount of the Seller's pro rata share of taxes then due. This refund would apply to
the period after the City's acquisition of the Property, pursuant to Revenue and Taxation
Code Section 5096.7; and
15.4 Escrow Agent shall forward a separate receipt and check for
prorated taxes to Seller pursuant to paragraph 15.3 above, with separate written notice
to City.
16. Authority of Escrow Agent Escrow Agent is authorized to, and shall:
16.1 Pay and charge the Seller for any amount necessary to place title
of the Property in the condition necessary to satisfy Section 3 of this Agreement; and
16.2 Charge City for Escrow Fees in accordance with Section 12 of this
Agreement; and
16.3 Disburse funds, deliver and record the Grant Deeds and Certificate
of Acceptance when conditions of this escrow have been fulfilled by City and the Seller,
and
16.4 Do such other actions as necessary, including obtaining policies of
title insurance, to fulfill its obligations under this Agreement; and
Agreement For Acquisition And Sale Of Real Property
9
16.5 If the provisions of FIRPTA apply to the transaction memorialized in
this Agreement, and unless City or the Seller are not a "foreign person" or an exemption
applies, the Escrow Agent shall deduct and withhold from the Seller's proceeds in
connection with the conveyance of the Property, ten percent (10 %) of the gross sales
price and shall otherwise comply with all applicable provisions of FIRPTA. City and the
Seller agree to execute and deliver as directed by Escrow Agent any instrument,
affidavit, and statement, and to perform any act reasonably necessary to comply with
the provisions of FIRPTA and regulations promulgated thereunder. City and the Seller
expressly agree to execute a Certificate of Non - Foreign Status by individual transferor
and/or a Seller's Certification of Compliance with Real Estate Reporting Requirement of
the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be
supplied by Escrow Agent; and
16.6 Prepare and file with all appropriate governmental or taxing
authorities a uniform settlement statement, closing statement, tax withholding forms
including an IRS 1099 -S form, and be responsible for withholding taxes, if any such
forms are provided for or required by law.
16.7 All time limits within which any matter herein specified is to be
performed may be extended, but only by mutual agreement of the parties hereto and
amendment. of.this..Agreement. Any amendment of, or supplement.to, this Agreement
must be in writing, and signed by all parties hereto.
17. Termination. If escrow is not in condition to close by the Outside Date,
then either party which has fully performed under this Agreement may, in writing,
demand. the. return of money or property and terminate this Agreement. If neither party
has fully - complied with the provisions of escrow, no demand for return of documents
shall be irecognized and this Agreement shall not terminate until five (5) days after
Escrow Agent shall have delivered copies of such demand to all other parties at the
respective addresses shown in this Agreement. If any objections are raised within said
five (5) day period, Escrow Agent is authorized to hold all papers and documents until
instructed by a court of competent jurisdiction or by mutual written instructions of the
parties. Termination of this Agreement shall be without prejudice as to whatever legal
rights either party may have against the other arising from this Agreement. If no
demand is made, the Escrow Agent shall proceed with the Closing as soon as escrow is
in condition to Close.
18. Loss or Damage. Loss or damage to Property, by fire or other casualty,
occurring prior to the recordation of the Grant Deed shall be at the risk of the Seller. In
the event that loss or damage to Property, by fire or other casualty, occurs prior to
recordation of the Grant Deed, City may elect to require that the Seller pay to City the
proceeds of any insurance which may become payable to the Seller by reason thereof,
or to permit such proceeds to be used for the restoration of the damage done, or to
reduce the Seller Property Purchase Price by an amount equal to the diminution in
value of Kincaid Property by reason of such loss or damage or the amount of insurance
payable to the Seller, whichever is greater.
19. General Provisions.
Agreement For Acquisition And Sale Of Real Property
110
19.1 Brokers. The City represents and warrants to Seller that it has not
used any finder, broker or real estate agent in connection with this transaction, and
agrees that it shall indemnify and hold the other harmless from and against all
brokerage commissions or finder's fees and claims therefor, payable in connection with
the disposition of the Property and resulting from the acts or omissions of such
indemnifying party. If Seller elects to be represented by a real estate agent or broker,
Seller shall be liable for the payment of any and all commission or fees for Seller's real
estate agent or broker, and such commission or fees shall be paid for by Seller out of
the proceeds of the sale of the Property herein.
19.2 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the City and the Seller and their respective heirs,
personal representatives, successors and assigns. City shall have the right to assign
this Agreement or any interest or right under this Agreement or under the escrow
without obtaining the prior consent of the Seller.
19.3 Attorneys' Fees. In any action between the parties to interpret,
enforce, award, modify or rescind any of the terms or provisions of this Agreement, or
any action otherwise commenced or taken in connection with this Agreement, both
parties shall be responsible for their respective litigation costs and attorneys' fees.
19.4 Approvals and Notices. Any approval, disapproval, demand,
document or other notice ( "Notice") which either party may desire or be required to give
to the other party under this Agreement must be in writing and may be given by any
commercially acceptable means to the party to whom the Notice is directed at the
address of the party as set forth below, or at any other address as that party may later
designate by Notice. Any Notice given under this paragraph, whether personally or by
mail, shall be deemed received only upon actual receipt by the intended party.
To Seller: Levon and Zarouhi M. Gugasian
11 Ridgeline Drive
Newport Beach, CA 92660
To City: City of Newport Beach
Attention: City Manager
PO Box 1768
Newport Beach, CA 92658 -8915
19.5 Jurisdiction and Venue. This Agreement shall be construed under
the laws of the State of California in effect at the time of the signing of this Agreement.
The parties consent to the jurisdiction of the California courts with venue in County of
Orange.
19.6 Titles and Captions. Titles and captions are for convenience of
reference only and do not define, describe or limit the scope or the intent of this
Agreement or of any of its terms. Reference to section numbers are to sections in this
Agreement, unless expressly stated otherwise.
Agreement For Acquisition And Sale Of Real Property
11
19.7 Interpretation. As used in this Agreement, masculine, feminine or
neuter gender and the singular or plural number shall each be deemed to include the
others where and when the context so dictates. The word "including" shall be construed
as if followed by the words "without limitation." This Agreement shall be interpreted as
though prepared jointly by both parties.
19.8 No Waiver. A waiver by either party of a breach of any of the
covenants, conditions or agreements under this Agreement to be performed by the
other party shall not be construed as a waiver of any succeeding breach of the same or
other covenants, agreements, restrictions or conditions of this Agreement.
19.9 Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each instance
signed on behalf of each party.
19.10 Severabilitv. If any term, provision, condition or covenant of this
Agreement or its application to any party or circumstances shall be held, to any extent,
invalid or unenforceable, the remainder of this Agreement, and the application of the
term, provision, condition or covenant to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be affected, and shall be
valid and enforceable to the fullest extent permitted by law.
19.11 Offer. Any delivery of unsigned copies of this Agreement is solely
for the purpose of review by the party to whom delivered, and neither the delivery nor
any prior communications between the parties, whether oral or written, shall in any way
be construed as am offer by City, nor in any way imply that City is under any obligation
toz enter the transaction which is the subject of this Agreement. The signing of this
Agreement by the Seller constitutes an offer which shall not be deemed accepted by
City unless and until the City has signed this Agreement. The Seller agrees that his
offer shall be acceptable and cannot be revoked for a period of thirty (30) days. This is
not binding agreement unless and until executed on behalf of City after approval and
adoption of a resolution or minute action by the City's City Council in full compliance
with the City's Charter, ordinances, and regulations.
19.12 Right of Access. City shall first be entitled to possession of the
Property on the Closing Date. Prior to such date, City and its representatives, agents,
employees, contractors and designees shall have the right of access to the Property at
all reasonable times for the purpose of making necessary and appropriate inspections,
tests, borings, samplings, surveys, etc. The City shall save and protect the Sellers
against any claims resulting from such access or use of Property undertaken pursuant
to this Section.
19.13 Computation of Time. The time in which any act is to be done
under this Agreement is computed. by excluding the first day (such as the day escrow
opens), and including the last day, unless the last day is a holiday or Saturday or
Sunday, and then that day is also excluded. The term °holiday" shall mean all holidays
as specified in Section 6700 and 6701 of the California Government Code. If any act is
to be done by a particular time during a day, that time shall be Pack Time Zone time.
Agreement For Acquisition And Sale Of Real Property
12
19.14 Legal Advice. Each party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they
do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matters set forth
in this Agreement, or have knowingly chosen not to consult legal counsel as to the
matters set forth in this Agreement; and, they have freely signed this Agreement without
any reliance upon any agreement, promise, statement or representation by or on behalf
of the other party, or their respective agents, employees, or attorneys, except as
specifically set forth in this Agreement, and without duress or coercion, whether
economic or otherwise.
19.15 Time of Essence. Time is expressly made of the essence with
respect to the performance by City and the Seller of each and every obligation and
condition of this Agreement including, without limitation, the Closing.
19.16 Cooperation. Each party agrees to cooperate with the other in the
Closing of this transaction and, in that regard, to sign any and all documents which may
be reasonably necessary, helpful, or appropriate to cant' out the purposes and intent of
this Agreement including, but not limited to, releases or additional agreements.
19.17 Acquisition Not Under Threat of Eminent Domain. City possesses
the power, under 'California law, to acquire the property by eminent domain; but it is not
contemplating the .use of its eminent domain power as part of the acquisition of the
Property.
19.18 Agreement in Total.
(a) Entire-:Agreement. This Agreement contains the entire
understanding between the parties relating to the transaction contemplated by this
Agreement. The Seller is entering this Agreement based solely upon the
representations set forth herein and upon the Seller's own independent investigation of
any and all facts the Seller deems material. No subsequent agreement, representation,
or promise made by either party hereto, or by or to an employee, officer, agent or
representative of either party shall be of any effect unless it is in writing and executed by
the party to be bound thereby.
(b) Counterparts. This Agreement may be signed in multiple
counterparts which, when signed by all parties, shall constitute a binding agreement.
(c) Exhibits Incorporated by Reference. All exhibits and
attachments attached to this Agreement are incorporated in this Agreement by this
reference. This Agreement includes eighteen (___) pages and Exhibits "A° through "D."
_ gTement For Acquisition And Sale of Real Property
13
IN WITNESS WHEREOF, the City and the Seller have signed this Agreement on
the dates set forth below.
SEl I =o.
LEN
Dated: 1!2L, 7v !0 By:
` ZAROUHI M. GUGASIAN
Dated: A, I D By: �-
Zarouhi M. Gugasian
Dated:
CITY:
CITY OF NEWPORT BEACH, a municipal
corporation and charter city
By:
David Kiff, City Manager
ATTEST:
0
Leilani Brown, City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
0
Mynette D. Beauchamp,
Assistant City Attorney
Agreement For Acquisition And Sale Of Real Property
14
EXHIBIT "A"
LEGAL DESCRIPTION OF SUBJECT PROPERTY
Lots 7, 8, 9, 10 and 11, in Block 7, Balboa Tract, in the City of Newport Beach, County
of Orange, State of California, as per map thereof recorded in Book 7, Page 11, of
Miscellaneous Maps.
A -1'
EXHIBIT "B"
GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
City Clerk
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, California 92663 -3884
RECORDING FEE EXEMPT PER
GOVT. CODE SEC. 6103 & 27383
(Space Above for Recorder's Use)
DOCUMENTARY TRANSFER TAX $ NONE
GRANT DEED
FOR A VALUABLE CONSIDERATION; receipt of which is hereby acknowledged,
LEO.GUGASIAN, a married man as his sole and separate property ( ?),hereby
GRANT(S) to the City of Newport Beach, a municipal corporation, the real property in
the City of Newport Beach, County of Orange, State of California, described as follows:
[To be inserted]
Dated: By:
Dated: By:
M
ATTACHMENT NO. "1" TO EXHIBIT "B"
CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property,
by and between the City of Newport Beach, a
municipal corporation, as Grantee, and Leo Gugasian, a married man as
as Grantor, is hereby accepted on by the undersigned officer on behalf
of the City of Newport Beach pursuant to authority conferred by Resolution No. 1992 -82
of the City Council adopted on July 27, 1992. The City consents to the recordation of
said document in the Office of the Recorder of Orange County, State of California.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
OFFICE OF THE CITY ATTORNEY A Municipal Corporation
By: By:
Mynette D. Beauchamp, David Kiff,
Assistant City Attorney City Manager
ATTEST:
Leilani I. Brown,
City Clerk
State of California
County of ORANGE
On before me, Notary Public, personally appeared
DAVID KIFF, who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his authorized
capacity(ies), and that by his signature on the instrument the person, or the entity upon behalf of which
the person(s) acted, executed the instrument
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct
WITNESS my hand and official seal.
Signature
(Seal)
State of California )
County of ORANGE )
On before me, , Notary Public, personally
appeared LEO GUGASIAN, who proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument and acknowledged to me that he executed the same
in his authorized capacity(ies), and that by his signature on the instrument the person, or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
EXHIBIT "C"
SCHEDULE OF LEASES
C -1
EXHIBIT "D"
SAMPLE PROMISSORY NOTE
City of Newport Beach
BUDGET AMENDMENT
2009 -10
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
Pq Increase Expenditure Appropriations AND
Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from General Fund reserves
EXPLANATION:
This budget amendment is requested to provide for the following:
NO, BA- 10BA -028
AMOUNT: $2,1oa,5oo.00
Increase in Budgetary Fund Balance
X Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
To increase expenditure appropriations from Neighborhood Enhancement B Off Street Parking and In -Lieu Parking Reserves
to facilitate the purchase and sale agreement for the acquisition of 608 E. Balboa Boulevard,
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Number
Fund Account
Description
010 3769
Gen. Fund - Reserve: Neighborhood Enhancement B
010 3766
General Fund - Reserve: Off Street Parking
010 3767
General Fund - Reserve: In Lieu Parking
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
Description
Division
Number
7024
Neighborhood Enhancement B
Account
Number
C3002008
608 E Balboa Blvd Acquisition
Division
Number
7022
Off Street Parking
Account
Number
C3002008
608 E Balboa Blvd Acquisition
Division
Number
7021
In Lieu Parking
Account
Number
C3002008
608 E Balboa Blvd Acquisition
Division
Number
Account
Number
Signed:
Signed:
Signed:
Administrative Approval: City Manager
City Council Approval: City Clerk
Amount
Debit Credit
$1,294,268.00 '
$138,897.00
$671,335.00 '
$1,294,268.00
$138,897.00
$671,355.00
Automatic System Entry.
i ir�r I o
Date
Date
Date