HomeMy WebLinkAboutAGENDA REPORT 2010 1201 CC REG ITEM 09EITEM 9.E.
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AGENDA REPORT L01,6. ao,o a
TO: Honorable City Council
FROM: Steven Kueny, City Manager%
DATE: November 23, 2010 (CC Meeting of 12/1/10)
SUBJECT: Consider Purchase and Sale Agreement for Purchase of APN 519 -0-
210 -055 and Resolution Amending the Fiscal Year 2010/2011 Budget
to Appropriate $60,000 from the Endowment Fund (2800)
BACKGROUND / DISCUSSION
For several years, one of the City Council's top priorities has been to enhance open
space and greenbelts. Recently, approximately 380 acres of property owned by
Bordiers Nursery south of Tierra Rejada Road was purchased out of foreclosure
proceedings by the primary lender, Heartland Recovery. The property was
subsequently placed in escrow by Mr. Ralph Mahan, and the City has been working with
these two parties to acquire a portion of the site, specifically an approximate 80 acre
parcel located west of Tierra Rejada Road (Attachment 1). This property is outside of
the City limits and is within the Tierra Rejada Greenbelt. The intent of the purchase is to
protect the ridgelines adjacent to the City and to control and preserve open space
consistent with permitted uses.
The proposed Purchase and Sale Agreement (Attachment 2) will confirm the terms of
the purchase by the City, and escrow would be opened. Since the seller is a lender and
has never used the property, it is being sold in "as is" condition. Since portions of the
property were used for farming, a Phase I and possibly a Phase 2 environmental
investigation will be conducted. After the Agreement is effective, the City will have 45
days to investigate the property.
The purchase price is $1,925,000.00 plus a brokerage fee of $48,125.00. Additional
costs include the environmental investigation, legal fees, typical escrow, and title
insurance if the City decides to purchase an ALTA Title Insurance Policy. At this time,
these collective costs are estimated not to exceed $2,000,000.00; and staff is
requesting an appropriation of $60,000.00 from the Endowment Fund to fund the
Escrow Deposit, environmental investigation and legal costs. The balance of the funds
needed will be requested prior to the close of escrow if the City Council decides to
185
Honorable City Council
Re: Purchase and Sale Agreement & Appropriation from Endowment Fund
November 23, 2010 (CC Meeting of 12/1 /10)
Page 2
complete the purchase. The acquisition could also be funded from the General Fund
Reserve or Special Projects Fund.
This property is part of the Tierra Rejada Groundwater Basin. At the present time,
groundwater may be pumped for use on the site since pumping of water is not
controlled by the courts or a regulatory agency. There is not an active well on the site.
FISCAL IMPACT
The purchase is estimated to cost $2,000,000.00. The annual cost to maintain the
property is estimated at about $25,000.00 including property taxes, since the property is
outside of the Moorpark City limits, weed abatement and incidental items such as fence
maintenance. It is possible the City could lease portions of the property for agriculture
or nursery uses but would need to evaluate the costs and benefits with the need to
provide water. A very preliminary cost estimate for providing a well is $50,000.00.
STAFF RECOMMENDATION ROLL CALL VOTE
1. Approve the Purchase and Sale Agreement and authorize Mayor to sign it
subject to final language approval of the City Manager and City Attorney; and
2. Adopt Resolution No. 2010 - Amending the FY 2010/11 Budget to
appropriate $60,000.00 from the Endowment Fund to fund the escrow deposit,
environmental investigation, and legal costs.
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Attachments:
1) Location of APN 519 -0- 210 -055 (2 pages)
2) Draft Purchase and Sale Agreement
3) Resolution No. 2010 - to Allocate $60,000.00 from Endowment Fund
S:\Purchase and Sale Agr for APN 519 -0- 210 -055 Agenda Rpt 2010 1201.doc
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Attachment 2)
DRAFT
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT FOR PURCHASE AND SALE OF PROPERTY AND
JOINT ESCROW INSTRUCTIONS ( "Agreement ") is made and entered into this
day of , 2010 ( "Acceptance or Effective Date "), whereby Heartland
Recovery, California F #1, LLC ( "Seller"), agrees to sell, and City of Moorpark ( "Buyer "),
agrees to purchase, on the terms and conditions hereinafter set forth, the following:
(a) That certain real property (the "Land ") in the County of Ventura,
State of California, as more particularly described in Exhibit "A" attached hereto; and
(b) All rights (including water and mineral rights), privileges,
easements, tenements, rights of way and appurtenances which belong to or appertain
to the Land (the "Appurtenances "). The Land and Appurtenances are collectively
referred to herein as the "Property."
The terms and conditions of this Agreement and the instructions to
Lawyer's Title ( "Title Company" and "Escrow Holder ") with regard to the escrow
( "Escrow ") created pursuant hereto are as follows:
SALE OF PROPERTY.
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller agrees to sell the Property to Buyer, and Buyer agrees to
purchase the Property from Seller, upon the terms and conditions herein set forth.
2. PURCHASE PRICE AND BROKERAGE FEE.
The total purchase price ( "Purchase Price ") for the Property and
any and all interests Seller has in the Property shall be One Million, Nine Hundred
Twenty -Five Thousand Dollars ($1,925,000.00).
(a) Buyer shall give a good faith deposit in the amount of Fifty
Thousand Dollars ($50,000.00) (together with any interest earned thereon, the
"Deposit "), made payable to Lawyer's Title within five (5) business days after Escrow
has been opened. The Deposit shall be applied as a credit against the Purchase Price
at Closing and, except as may otherwise be provided in this Agreement, shall be
returned to Buyer on any cancellation or termination of this Agreement.
(b) Buyer shall be responsible to pay a brokerage fee in the
amount of Forty-Eight Thousand, One Hundred Twenty Five Dollars ($48,125.00) upon
close of escrow to JOHN W. NEWTON & ASSOCIATES, INC., dba MOORPARK
ADVANTAGE REALTY.
-1- 189
Attachment 2)
3. ESCROW.
3.1 Opening of Escrow.
Within three (3) business days following the Effective Date
hereof, Buyer and Seller shall open escrow ( "Escrow ") with Escrow Holder by delivering
an executed Agreement, or copy hereof, to Escrow Holder. Escrow Holder shall notify
Buyer and Seller, in writing, of the date Escrow is opened and the scheduled Closing
Date. In addition, Buyer and Seller agree to execute, deliver and be bound by any
reasonable or customary supplemental escrow instructions of Escrow Holder or other
instruments as may reasonably be required by Escrow Holder in order to consummate
the transaction contemplated by this Agreement. Any such supplemental instructions
shall not conflict with, amend or supersede any portions of this Agreement. If there is
any inconsistency between such supplemental instructions and this Agreement, this
Agreement shall control.
3.2 Close of Escrow.
For purposes of this Agreement, the "Close of Escrow" or
"Closing" shall be defined as the date the Grant Deed conveying the Property to Buyer
is recorded in the Official Records of Ventura County, California. The "Closing Date"
shall be , unless otherwise subsequently agreed to in
writing signed by buyer and seller. The new "Close of Escrow" shall occur as soon as
possible thereafter.
(a) Buyer does not intend to occupy the property as
Buyer's primary residence.
(b) Possession to be delivered to Buyer at 2:00 p.m. on
the date of "Close of Escrow ", but no later than two days after "Close of Escrow ", in all
events free from all claims to possession or title by third parties.
4. TITLE INVESTIGATION
4.1 Title Insurance.
Promptly following the full execution of this Agreement,
Escrow Agent shall cause Title Company to issue to Buyer (with a copy to Seller) a
preliminary title report for a Standard Form CLTA (or if requested by Buyer, ALTA)
Owner's Policy of Title Insurance for the Property, setting forth all liens, encumbrances,
easements, restrictions, conditions, pending litigation, judgments, administrative
proceedings, and other matters affecting Seller's title to the Property ( "Preliminary
Report"), together with copies of all documents relating to title exceptions referred to in
the Preliminary Report ( "Title Exception Documents "). Buyer shall approve or
disapprove each exception shown in the Preliminary Report and each encroachment,
overlap, or boundary line dispute, or any other matter that affects title to the Property or
that violates any law, rule, or regulation reflected therein (each an "Exception ") within
forty-five (45) days following the receipt of the Preliminary Report and all Title Exception
-2- 190
Attachment 2)
Documents ( "Title Approval Period "). Buyer's failure to disapprove within the Title
Approval Period shall be deemed approval of the Exceptions. If any Exception is
disapproved (each a "Disapproved Exception "), Seller shall, within twenty one (21) days
following receipt of Buyer's disapproval ( "Cure Period "), use its best efforts to cause
each Disapproved Exception to be discharged, satisfied, released, or terminated, as the
case may be, of record, and in a form that is reasonably satisfactory to Buyer and
Escrow Agent, all at Seller's sole cost and expense. Upon Seller's written request and
with Buyer's approval, Escrow Agent will be authorized to disburse from the cash
portion of the Purchase Price and proceeds otherwise disbursable to Seller upon
Closing the sum sufficient to discharge or endorse over any Disapproved Exception that
may be discharged or endorsed over only by the payment of money. If Seller is unable
to obtain a discharge, satisfaction, release, or termination within the Cure Period
specified above, Buyer shall have the right, by written notice given within ten (10) days
following the expiration of the Cure Period, to:
(a) Waive the Disapproved Exception(s) and proceed with
Closing, accepting title to the Property subject to the Disapproved Exception, or
(b) Terminate this Agreement and receive the return of the
Deposit, whereupon Seller and Buyer shall be released from all further liability and
obligation under this Agreement, except for such as has accrued prior to the date of
termination.
4.2 Title Exceptions.
It is understood and agreed that, whether or not Purchaser
gives its disapproval pursuant to Section 4.1, any encumbrances, security interests,
liens, deeds of trust and /or mortgages which secure, in whole or in part, any monetary
indebtedness not arising by, through or under Buyer shall be deemed to be
Disapproved Exceptions and shall be paid off, satisfied, released and /or discharged by
Seller at or prior to Closing.
4.3 Title Policy.
Seller shall cause the Title Company to issue its Standard
CTLA Owner's form Policy of Title Insurance ( "Title Policy ") in the amount of the
Purchase Price showing good and marketable title to the Property vested in Buyer
subject only to the exceptions to title approved in Section 4.1. Buyer may, at Buyer's
option, elect to cause the Title Company to issue an ALTA form Title Policy with such
extended coverage protection and other endorsements as Buyer may request of Title
Company. All additional cost and expense of such ALTA Title Policy, endorsements
and extended coverage protection (above the cost and expense of the Standard CTLA
Owner's form Policy of Title Insurance) shall be borne by Buyer, including the cost of
any survey of the Property that may be required to obtain such coverage.
-3- 191
Attachment 2)
4.4 Investigation Period.
From and after the Effective Date to and including the date
which is forty -five (45) days after the Effective Date (the "Investigation Period "), Buyer,
and its agents, consultants, contractors, engineers, surveyors, attorneys, and
employees shall, at no cost or expense to Seller, have the right to enter on to the
Property to conduct and make any and all customary studies, tests, examinations,
inquiries, inspections and investigations of or concerning the Property, its soils,
geological and environmental condition and to otherwise confirm any and all matters
which Buyer may reasonably desire to confirm with respect to the Property and Buyer's
intended use thereof (collectively, the "Investigations "). Without Seller's written consent,
Buyer shall neither make nor cause to be made: invasive or destructive Investigations;
or inspections by any governmental building or zoning inspector or government
employee (other than those employed by Buyer), unless required by law. Buyer shall:
(i) keep the Property free and clear of liens; (ii) repair all damage arising from Buyer
Investigations; and (iii) indemnify and hold Seller harmless for all resulting liabilities,
claims, demands, damages, and costs resulting from Buyer's Investigations, except to
the extent due to Seller's negligence or willful misconduct. Seller shall make the
Property available for all Buyer investigations between the hours of 8:00 a.m. and 5:00
p.m. Monday through Friday. Seller shall have water, gas, electricity on and operable.
Buyer shall give Seller, at no cost, and without any representation or warranty
whatsoever as to accuracy or completeness, copies of all Buyer Investigation reports
obtained by Buyer, upon availability, but no later than forty -five (45) days after
Investigation Period. If any matter disclosed by Buyer's Investigations, or if any matter
disclosed by the Materials (as defined in Section 15.5), is disapproved of by Buyer
(each a "Disapproved Matter "), Seller shall, within twenty -one (21) days following receipt
of Buyer's disapproval ( "Remedy Period "), use its best efforts to cause each
Disapproved Matter to be corrected, discharged, released, or terminate the Disapproved
Matters within the Remedy Period specified above, Buyer shall have the right, by written
notice given within ten (10) days following the expiration of the Remedy Period, to:
(a) Waive the Disapproved Matters) and proceed with
Closing, accepting title to the Property subject to the Disapproved Matter(s), or
(b) Terminate this Agreement and receive the return of
the Deposit, whereupon Seller and Buyer shall be released from all further liability and
obligation under this Agreement, except for such as has accrued prior to the date of
termination.
4.5 Extension of Investigation Period.
At Buyer's option and by written notice given to Seller and Escrow
Holder prior to the expiration of the Title Approval Period or Investigation Period, as
applicable, Buyer may extend the Title Approval Period and /or Investigation Period by
up to fifteen (15) days to permit Buyer to complete any survey or Phase II
Environmental Assessment Report, as applicable, which Buyer has elected to perform.
In such event, if the Closing Date would otherwise occur prior to the expiration of such
-4- 192
Attachment 2)
extension, the Closing Date shall be extended, as necessary, to permit such extension
and to allow for the notices and Cure Period and Remedy Period, as applicable,
provided for in Section 4.1 and 4.4.
5. SELLER'S DELIVERIES.
Prior to the Close of Escrow, Seller shall deposit or cause to be
deposited into Escrow for delivery to Buyer at Closing the following:
(a) A duly executed and acknowledged Grant Deed in the Title
Company's usual form;
(b) A Certificate of Non - Foreign Status required under Section
1445(b) of the Internal Revenue Code;
(c) A Certificate pursuant to California Revenue and Taxation
Code Section 18662 pertaining to Seller's status as a resident of California or as having
a corporate permanent place of business in California;
(d) Any other document provided for herein or reasonably
required by Escrow Holder;
(e) Real Estate Transfer Disclosure; and
(f) Natural Hazard Disclosure.
6. BUYER'S DELIVERIES.
Prior to the Close of Escrow, Buyer shall deposit or cause to be
deposited into Escrow, to be delivered to Seller upon the Closing, the following:
(a) The Purchase Price plus the Brokerage Fee, less the
Deposit, in accordance with Section 2; and
(b) Any other document provided for herein or reasonably
required by Escrow Holder.
7. [INTENTIONALLY LEFT BLANK]
8. AUTHORIZATION TO RECORD DOCUMENTS AND DISBURSE
FUNDS.
Escrow Holder is hereby authorized and directed to record the
documents and disburse the funds and documents called for hereunder pursuant to the
written closing instructions, if any, of Buyer and Seller delivered prior to Closing,
provided each of the following conditions have been or will concurrently with the Close
of Escrow be fulfilled;
-5- 193
Attachment 2)
(a) Title Company has committed to issue to Buyer the Title
Policy with liability equal to the Purchase Price, in accordance with Section 4 above;
(b) Seller shall have deposited in Escrow the documents and
instruments required of it under Section 5;
(c) Buyer shall have deposited into Escrow the funds,
documents and instruments required of it under Section 6; and
(d) Escrow Holder is authorized to record any instrument
delivered through this Escrow if necessary or proper for the issuance of the Title Policy
referred to above.
9. COSTS AND EXPENSES.
The Seller shall pay one -half of the Escrow Holder's Escrow fee
and that portion of the premium for the title policy equal to the cost of a CLTA standard
coverage title policy in the amount of the Purchase Price, plus the cost of any
endorsements obtained in connection with Disapproved Exceptions. Any additional Title
Policy costs, including the cost of an ALTA policy or any endorsements requested by
the Buyer, shall be borne by the Buyer. Buyer agrees to pay all other usual fees,
charges, and costs which arise from Escrow.
10. PRORATION.
The following proration shall be made between Buyer and Seller by
Escrow Holder at the Close of Escrow, computed as of the closing date:
10.1 Taxes.
Real property taxes, special taxes, and assessments shall
be prorated as of the Close of Escrow based upon the latest available tax information.
Seller shall be responsible for all special taxes and assessments accrued against the
Property to and including the day prior to the Close of Escrow based upon payment of
such assessments in installments to the greatest extent permitted. Unless any special
tax or assessment payment or installment specifies the time period for which such
payment is owed, it shall be presumed that such payment is for the full year immediately
preceding the day upon which such payment is due.
11. WAIVER BY SELLER.
Seller knowingly and voluntarily waives the following rights: the
right to seek any compensation for the acquisition of the property in any amount greater
than that set forth in Section 2 herein; the right to claim relocation benefits or
assistance; the right to claim damage or injury to business goodwill; the right to claim
loss of rent; the right to claim severance damages; the right to claim fixtures and
equipment; or any similar right or claim arising out of the acquisition of the Property.
-6- 194
Attachment 2)
12. SELLER'S REPRESENTATIONS.
In consideration of Buyer entering into this Agreement and as an
inducement to Buyer to purchase the Property, Seller makes the following
representations, each of which (i) is a condition to Close of Escrow, (ii) is true as of the
Effective Date and will be true as of the Closing, and (iii) is material and is being relied
upon by Buyer.
12.1 Authority.
Seller has full power and authority to enter into this
Agreement and to consummate the transactions contemplated herein without obtaining
the consent or approval of any other person, entity or governmental authority. The
persons whose names are set forth below hereby personally represent and warrant that
they have full power and authority to sign the name of Seller to this Agreement and to
cause this Agreement to be a binding obligation of Seller.
12.2 Litigation.
There is no litigation, bankruptcy or receivership proceeding
or any other proceeding pending, or, to Seller's knowledge, threatened against, relating
to, or involving Seller's interest in the Property, nor does Seller know or have any
reasonable ground to know of any basis for any such action. No consents or waivers of
or by any third party are necessary to permit the consummation by Seller of the
transactions contemplated pursuant to this Agreement.
12.3 Compliance with Laws.
Seller has received no notice and has no actual knowledge
of any violation of applicable law, ordinance, rule, regulation or requirement of any
governmental agency, body or subdivision affecting or relating to the Property,
including, without limitation, any subdivision, building, use or environmental law,
ordinance, rule, requirement or regulation.
12.4 Governmental Notices.
Seller shall deliver to Buyer each and every notice or
communication Seller receives from any governmental body relating to the Property or
any portion thereof upon Seller's receipt of the same.
12.5 Leases.
There are no leases or other agreements (either oral or
written) affecting or relating to the right of any party with respect to the possession of
the Property, or any portion thereof.
-7- 195
Attachment 2)
12.6 Future Action.
From and after the date hereof, without the prior written
consent of Buyer, Seller shall not execute nor consent to the execution of any lease of
any portion of the Property or any other instrument which may result in an alteration of
the condition of title.
12.7 Hazardous Materials.
The Property is being sold on an "as is" basis and the Seller
makes no representations or warranties with regard to the existence of Hazardous
Materials on or below the surface of the Property, including, without limitation,
contamination of the soil, subsoil or ground water, which constitute a violation or any
law, rule or regulation of any government entity having jurisdiction thereof or which
expose Buyer to liability to third parties.
12.8 Environmental Violations.
The Seller is selling the Property on an "as is" basis and
makes no representations or warranties with regard to environmental violations.
12.9 Work and Materials Furnished.
Bills for work done and materials furnished with respect to
the Property have been paid in full by Seller or will be discharged and paid in full by
Seller by the date of Closing.
12.10 Not a Foreign Person.
Seller is not, and never has been, a "foreign person" within
the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal Revenue Code of
1954, as amended, or California Revenue and Taxation Code Section 18662, and Seller
will furnish to Buyer, prior to the Closing, an affidavit in form satisfactory to Buyer
confirming the same.
12.11 Declaration, Covenants, Restrictions.
Other than as identified in the Title Report, there are no
declarations or covenants affecting the use of the Property; and there is no association
which has been formed for the purpose of managing any portion of the Property.
12.12 Contracts.
Except as may be disclosed by the Title Documents, there
are no contracts or agreements relating to the operation, development, management or
ownership of the Property or any portion thereof.
-8- 196
Attachment 2)
12.13 Truthfulness at Closing.
Except as expressly herein otherwise provided, the
representations and warranties of Seller set forth in this Agreement shall be true on and
as of the Close of Escrow as if those representations and warranties were made on and
as of such time.
13. BUYER'S REPRESENTATIONS.
In consideration of Seller entering into this Agreement and as an
inducement to Seller to sell the Property to Buyer, Buyer makes the following
representations, each of which is material and is being relied upon by Seller:
13.1 Authority.
Buyer has full power and authority to enter into this
Agreement and to consummate the transactions contemplated herein without obtaining
the consent or approval of any other person, entity or governmental authority. The
person(s) whose name(s) are set forth below hereby personally represent and warrant
that they have full power and authority to sign the name of Buyer to this Agreement and
to cause this Agreement to be a binding obligation of Buyer.
13.2 Truthfulness at Closing.
The representations of Buyer set forth in this Agreement
shall be true on and as of the Close of Escrow as if those representations and
warranties were made on and as of such time.
14. DEFAULT.
14.1 Liquidated Damages.
If Buyer commits a material default under this Agreement
and the close of escrow fails to occur by reason of such default, then in such event, the
escrow holder may be instructed by Seller to cancel the escrow and Seller and Buyer
shall thereupon each be released from its obligations hereunder and the deposit shall
be returned to Buyer. Buyer and Seller agree that based upon the circumstances now
existing known and unknown, it would be impractical or extremely difficult to establish
Seller's damages by reason of Buyer's default. Accordingly, Buyer and Seller agree
that it would be reasonable at such time to award Seller "liquidated damages" equal to
Five Thousand Dollars ($5,000.00). For the purpose of the foregoing provisions of this
section, Buyer shall be deemed to have committed a material default under this
Agreement at the time Buyer is in fact in default and /or Buyer notifies Seller of Buyer's
election to terminate this Agreement and the escrow at a time when Buyer does not
have the right under the terms of this Agreement to so terminate this Agreement or the
escrow. Seller and Buyer acknowledge and agree that the applicable foregoing amount
of liquidated damages are reasonable as liquidated damages and shall be Seller's sole
-9- 197
Attachment 2)
and exclusive remedy in lieu of any other relief, right of remedy, at law or in equity, to
which Seller might otherwise be entitled by reason of Buyer's default.
Accordingly, if Buyer fails to complete the purchase of the
property and such failure constitutes a breach of this Agreement, Seller may instruct the
escrow holder to cancel the escrow, whereupon Seller shall be relieved from all liability
hereunder. Seller and Buyer acknowledge that they have read and understand the
provisions of this section and by their initials immediately below agree to be bound by its
terms.
Seller's Initials Buyer's Initials
14.2 Seller's Default.
In the event that Seller shall fail to perform Seller's
obligations hereunder, Buyer shall have the option to: (i) extend the Closing for such
time as Buyer chooses to allow Seller to remedy such default, (ii) waive such default in
writing, (iii) pursue all legal or equitable remedies available to it, including, without
limitation, terminating this Agreement by written notice to Seller prior to cure of the
default. In the event of termination of this Agreement pursuant to this Section 14.2 or
otherwise as a result of Seller's default, the parties shall be discharged from any further
obligation and liabilities hereunder, and the Deposit shall be immediately released to
Buyer.
15. MISCELLANEOUS.
15.1 Risk of Loss
The risk of loss or damage to the Property until the Closing
is assumed by Seller. If any damage occurs to the Property prior to Closing, Seller shall
promptly give Buyer written notice of the occurrence thereof and of the amount of any
insurance proceeds available for the repair of such damage. Buyer at its sole option
may terminate this Agreement by written notice given to Seller within thirty (30) days of
Buyer's receipt of such notice, in which case the Deposit and any other monies and
documents deposited with Escrow Holder shall be returned to Buyer and this
Agreement shall be null and void. If Buyer does not give such notice, or gives notice
that it will nonetheless proceed with the Closing, then this Agreement will remain in full
force and effect and Seller shall assign any available insurance proceeds to Buyer at or
before the Closing.
15.2 Notices.
All notice or other communications required or permitted
hereunder shall be in writing, and shall be personally delivered; sent by registered or
certified mail, postage prepaid, return receipt requested; scanned and delivered by
-10- 198
Attachment 2)
email; delivered or sent by telex, telecopy, or overnight courier and shall be deemed
received upon the earlier of (i) if personally delivered, the date of delivery to the address
of the person to receive such notice, (ii) if mailed, three (3) business days after the date
of posting by the United States Post Office, (iii) if sent by overnight courier, when
delivered to the specified address, or (iv) if given by telex, telecopy or email, when sent.
To Buyer: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Seller: Heartland Recovery, California F #1, LLC
To Escrow Holder: Lawyer's Title Company
1701 Solar Drive, Ste. 250
Oxnard, CA 93030
Attn: Judy Cook
Notice of change of address shall be given by written notice in the manner detailed in
this Section. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to constitute receipt of
the notice, demand, request or communication sent.
15.3 Assignment.
Buyer may not assign, transfer or convey its rights or
obligations under this Agreement without the prior written consent of Seller, and release
to Seller of Buyer's Good Faith Deposit; provided, however, that Buyer shall in no event
be released from its obligations hereunder by reason of any assignment. No
assignment or transfer, if permitted, shall be effective unless each assignee or
transferee expressly agrees in writing to be bound by the terms and conditions of this
Agreement. Any purported assignment, transfer, or encumbrance in violation of the
foregoing may, at the option of Seller, be deemed null and void or be a default
hereunder.
15.4 Seller's Use of Property.
From and after the date of Seller's execution hereof, Seller
shall maintain the Property in the same condition and state of repair as on the Effective
Date, and Seller shall not grant or convey any easement, lease, license, permit,
encumbrance, lien or any other legal or beneficial interest in or to the Property,
improvements thereon, mineral or water rights appurtenant thereto, or any other
property rights whatsoever without the prior written consent of Buyer, nor shall Seller
violate, or allow the violation of any law, ordinance, rule or regulation affecting the
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Attachment 2)
Property. Seller shall do or cause to be done all things reasonably within its control to
preserve intact and unimpaired any and all easements, grants, appurtenances,
privileges and licenses in favor of or constituting any portion of the Property. Further,
Seller agrees to pay, as and when due, all payments on any liens or encumbrances
presently affecting the Property and any and all taxes, assessments and levies in
respect of the Property through the Close of Escrow.
15.5 Delivery of Materials.
Seller shall deliver to Buyer, at no expense to Buyer, within
ten (10) days of Seller's execution hereof, copies of any and all contracts affecting the
Property (including service and materials contracts), soils investigations and reports,
water and sewer studies, topographic maps, photographs, mapping, platting and other
materials, if any, concerning the Property, which are owned by Seller or are in Seller's
possession (collectively, the "Materials ").
15.6 Survival and Conditions Precedent.
Agreements, representations, covenants and warranties
contained in this Agreement or any amendment or supplement hereto shall survive
Closing and delivery of deed hereunder and shall not be merged thereby, and, in
addition to any effect any of the same have in law or in equity, all of the same will be
deemed to be conditions precedent to the Buyer's obligations hereunder, whether so
expressed or not. Seller acknowledges that all of the conditions to this Agreement
which are for the sole benefit of the Buyer may unilaterally be waived by the Buyer only
in writing.
16. GENERAL PROVISIONS.
16.1 Required Actions of Buyer and Seller.
Buyer and Seller agree to execute such further instruments
and documents and to consummate the purchase and sale herein contemplated, and to
effectuate the intent of this Agreement.
16.2 Time of Essence.
TIME IS OF THE ESSENCE OF EACH AND EVERY TERM,
CONDITION, OBLIGATION AND PROVISION HEREOF.
16.3 Counterparts.
This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute
one and the same instrument. Faxed copies of signed documents may be considered
as originals.
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Attachment 2)
16.4 Captions.
Any captions to, or headings of, the paragraph or
subparagraphs of this Agreement are solely for the convenience of the parties hereto,
are not a part of this Agreement, and shall not be used for the interpretation or
determination of the validity of this Agreement or any provision hereof.
16.5 No Obligations to Third Parties.
Except as otherwise expressly provided herein, the
execution and delivery of this Agreement shall not be deemed to confer any rights upon,
nor obligate any of the parties hereto, to any person or entity other than the parties
hereto.
this reference.
16.6 Exhibits.
The Exhibit attached hereto is hereby incorporated herein by
16.7 Amendment to this Agreement.
The terms of this Agreement may not be modified or
amended except by an instrument in writing executed by each of the parties hereto.
16.8 Waiver.
The waiver or failure to enforce any provision of this
Agreement shall not operate as a waiver of any future breach of any such provision or
any other provision hereof.
16.9 Applicable Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
16.10 Fees and Other Expenses.
Except as otherwise provided herein, each of the parties
shall pay its own attorneys', consultants' and other fees and expenses in connection
with this Agreement.
16.11 Entire Agreement.
This Agreement supersedes any prior agreements,
negotiations and communications, oral or written, and contains the entire agreement
between Buyer and Seller as to the subject matter hereof. No subsequent agreement,
representation, or promise made by ether party hereto, or by or to an employee, officer,
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Attachment 2)
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.
16.12 Successors and Assigns.
Subject to any limitations on assignment contained herein,
this Agreement shall be binding upon and shall inure to the benefit of the successors
and assigns of the parties hereto.
16.13 No Presumption.
Each provision of this Agreement has been independently
and freely negotiated by both parties as if this Agreement were drafted by both parties.
In the event of any ambiguity in this Agreement, the parties waive any presumption or
rule requiring or permitting interpretation of said ambiguity against or in favor of either
party.
16.14 Attorneys' Fees.
In the event that either party is required to commence any
action or proceedings against the other in order to enforce the provisions hereof, or in
order to obtain damages for the alleged breach of any of the provisions hereof, the
prevailing party (which shall be the party receiving the larger award or otherwise
receiving the more significant relief) therein shall be entitled to recover, in addition to
any amounts or relief otherwise awarded, all reasonable costs incurred in connection
therewith, including reasonable attorneys' fees.
16.15 Survival.
Except as otherwise provided herein, all covenants,
agreements, representations and warranties set forth in this Agreement or in any
certificate or instrument executed or delivered pursuant to this Agreement shall survive
the Closing and shall not merge into any deed, assignment or other instrument
executed or delivered pursuant hereto.
16.16 IRS Real Estate Sales Reporting.
Buyer and Seller hereby appoint Escrow Agent as, and
Escrow Agent agrees to act as "the person responsible for closing" the transactions
which are the subject of this Agreement, pursuant to Internal Revenue Code of 1986
Section 6045(e). Escrow Agent shall prepare and file the informational return (IRS
Form 1099 -S) required by and otherwise comply with the terms of IRS Section 6045(e).
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Attachment 2)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
This Agreement creates certain legal rights and responsibilities as described
herein and all parties should consider obtaining legal advice prior to execution of it.
"Buyer" City of Moorpark
By:
Steven Kueny
City Manager
ATTEST:
Maureen Benson
City Clerk
"Seller" Heartland Recovery, California F #1, LLC
in
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Attachment 2)
Exhibit "A"
LEGAL DESCRIPTION
Assessor Parcel Number (APN): 519 -0- 210 -055
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Attachment 3)
RESOLUTION NO. 2010 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA AMENDING THE FISCAL YEAR 2010/2011
BUDGET TO ALLOCATE $60,000 FROM THE ENDOWMENT FUND
(2800) TO THE PARKS AND RECREATION DEPARTMENT FOR OPEN
SPACE ACQUISITION
WHEREAS, on June 16, 2010, the City Council adopted the Operating and
Capital Improvement Budget for Fiscal Year 2010/2011; and
WHEREAS, a staff report has been presented to the City Council requesting a
$60,000 budget appropriation from the Endowment Fund (2800) for open space
acquisition outside the City limits south of Tierra Rejada Road; and
WHEREAS, Exhibit "A" hereof describes said budget amendment and its
resultant impacts to the budget line item.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1: That a Budget Amendment of $60,000 as more particularly
described in Exhibit "A ", is hereby approved.
SECTION 2: The City Clerk shall certify to the adoption of this resolution and
shall cause a certified resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 1S' day of December, 2010.
Janice S. Parvin, Mayor
ATTEST:
Maureen Benson, City Clerk
EXHIBIT A: Budget Amendment
205
Budget Amendment for
Endowment Fund (2800)
for Open Space Acquisition
FY 2010/2011
A. Fund Allocation
Exhibit A
Fund Description
Account
Amount
Endowment Fund
2800 -5500
60,000
60,000
$60,000
Total
60,000
B. Expenditure Appropriation
Fund
Adopted
Budget
Budget
Change
Revised Budget
2800 - 7800 - 7840 -9610
$0
60,000
$60,000
$60,000
Finance Approval:
206