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HomeMy WebLinkAboutAGENDA REPORT 2009 0318 CC SPC ITEM 05ArrEm 5.A. CITY OF MOORPARK, CAS.1FC°1,11 10.4 City Council Meeting of.. --oleo? ACT1ON;� MOORPARK CITY COUNCIL y AGENDA REPORT 13Y.- TO: Honorable City Council FROM: Barry K. Hogan, Deputy City Manager DATE: March 17, 2009 (Special CC Meetin of 3/18/2009) SUBJECT: Consider Approval of a Real Property Agreement between Essex Portfolio, L.P. and the City of Moorpark Regarding Acquisition of Land for Vehicular Access to the U.S. Post Office DISCUSSION Essex Portfolio, L.P. is the owner of land immediately north of the Post Office. Public access via an improved road is needed to serve the Post Office which is now under construction. The attached Agreement between the City of Moorpark and Essex Portfolio, L.P., when executed, would allow the City to acquire a portion of the Essex property for roadway purposes. It is the City's intent, upon acquisition of the property, to construct the extension of the existing High Street in order to provide vehicular access to the Post Office, its public parking and it's parking for its employees. Approval of this Agreement will avoid the need for eminent domain action. STAFF RECOMMENDATION 1. Approve the attached Agreement, subject to final language approval by the City Manager and City Attorney, and authorize the City Manager to sign the Agreement. ATTACHMENTS: 1. Real Property Acquisition Agreement \ \mor_pri_sery \Department Share \Community Development\DEV PMTS \R P D \2004 -06 Essex Apts\Agenda Rpts \CC090318 Special Mtg Aquisition.doc 000001 CC ATTACHMENT 1 CITY AGREEMENT NUMBER: ASSESSORS PARCEL NUMBER: 511 -0- 020 -225 (Ventura County) PROJECT: U. S. Postal Service Vehicular Access REAL PROPERTY ACQUISITION AGREEMENT THIS REAL PROPERTY ACQUSITION AGREEMENT ( "Agreement ") is made and entered into this day of , 2009 ( "Effective Date ") by and between the CITY OF MOORPARK, a California municipal corporation and general law city ( "City ") and ESSEX PORTFOLIO, L.P., a California limited partnership ( "Grantor "). RECITALS This Agreement is made with reference to the following facts and circumstances, which are deemed material to the Agreement: A. Grantor is the owner of that certain real property located in the City of Moorpark, County of Ventura, State of California, generally referred to in Residential Planned Development Permit 2004 -06 and identified by Assessor's Parcel Number 511 -0 -020 -225 ( "Property "). B. The City requires the acquisition of a fee interest to a portion of the Property as described and depicted in the Grant Deed attached as Exhibit 1" to this Agreement ( "Real Property Interests ") for the construction of vehicular access to the approved U. S. Post Office and the construction of drainage improvements in conjunction with the Post Office development ("Project"). C. Grantor now desires to transfer title of the Real Property Interests in the Property and Grantor is willing to sell the Property on the terms and conditions set forth in this Agreement. IN CONSIDERATION OF THE PROMISES, COVENANTS AND REPRESENTATIONS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS: 1) For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor agrees to transfer the Real Property Interests to City, and City agrees to acquire the Real Property Interests from Grantor, upon the terms and conditions herein set forth. Page 1 of 11 \ \mor_pri_sery \Department Share \Community Development \DEV PMTS \R P D \2004 -06 Essex Apts\Property Dedication\Age d Attachment.doc 0002 2) Concurrent with this Agreement, Grantor agrees to execute (with notarized signatures by all required signatories) and deliver to City a copy of the Grant Deed attached hereto as Exhibit 1." Upon receipt, City is authorized to record the Grant Deed with the Ventura County Recorder, which will complete the conveyance of the Real Property Interests from Grantor to City subject to the terms of this Agreement. 3) The method by which the compensation for Grantor's conveyance of the Real Property Interests to the City ( "Purchase Price ") shall be as follows: a. City will have, at the City's sole cost and expense, the Real Property Interests appraised by a licensed, independent MAI appraiser with at least five (5) years experience appraising similar types of real property as the Real Property Interests (an "Appraiser ") within four (4) months from the Effective Date ( "City Appraisal "). In the case that the City Appraisal is not completed and delivered to Grantor within said four (4) month period, then the Purchase Price shall be the value of the Grantor Appraisal (as defined below). If the City Appraisal's value of the Real Property Interests is acceptable to Grantor, then Grantor shall be paid said value within twenty (20) days following Grantor's written notice to City of Grantor's acceptance of the City Appraisal. b. If the City Appraisal's value of the Real Property Interests is not acceptable to Grantor, then Grantor has two (2) months from Grantor's receipt of the City Appraisal to have completed, at the City's sole cost and expense, an appraisal of the Real Property Interests by an Appraiser ( "Grantor Appraisal "). If Grantor's Appraisal has not been completed within two (2) months from Grantor's receipt of the City Appraisal, then the Purchase Price shall be the value of the City Appraisal. If the Grantor Appraisal's value of the Real Property Interests is acceptable to City, then Grantor shall be paid said value within twenty (20) days following City's written notice to Grantor of City's acceptance of the Grantor Appraisal. C. If the City Appraisal's value of the Real Property Interests is not acceptable to Grantor, and the Grantor Appraisal was timely prepared and its value of the Real Property Interests is not acceptable to City, then City and Grantor will have completed a mutually- selected third Appraiser, the cost and expense of which shall be paid solely by the City, to appraise the value of the Real Property Interests ( "Joint Appraisal "). In the event the City and Grantor are unable to mutually select an Appraiser to prepare the Joint Appraisal within twenty (20) days of the last of the City's or the Grantor's rejection of the others appraisal, City and Grantor shall select two proposed appraisers; thereafter, each party will have the opportunity to strike one of the other parties' proposed appraisers. The appraiser ultimately selected to prepare the Joint Appraisal will be drawn from one of the remaining Page 2 of 11 \ \mor_pri_sery \Department Share \Community Development\DEV PMTS \R P D \2004 -06 Essex Apts\Property Dedication\Agenda Attachment.doc 000003 proposed appraisers by a neutral third party in a random, lottery-style process, the mechanics of which to be dictated by the City in its sole discretion such Appraiser, the costs of which shall be paid for solely by the City. In all circumstances, the Property shall be appraised in the City Appraisal, Grantor Appraisal and Joint Appraisal using the following criteria: 0 the date of value for shall be February 1, 2009; 0 the appraisal shall be of the land only, as vacant, and shall not consider any improvements existing thereon; 0 the land shall be valued on an "as is" basis; 0 the applicable zoning shall be RE, Rural Residential; 0 no compensation shall be included for damages to the remainder ( "severance damages"). d. In the event the City and Grantor have, within six months from the Effective Date, finalized a written agreement to develop the Apartment Project which assigns a different value to the transfer of the Real Property Interests to City, the value prescribed in the subsequent written agreement will supersede the value of the Real Property Interests set forth in this paragraph of the Agreement 4) Grantor, and its representatives, predecessors, successors, subsequent transferees, attorneys, assigns and agents, and each of them, agree to knowingly and voluntarily waive, and release and discharge City for liability or responsibility for or related to any right Grantor has, has had, or may in the future have to any claim for compensation, damages or liability of any kind, whether known or unknown, foreseen or unforeseen, relating in any way to or arising out of City's acquisition of the Real Property Interests and /or construction of the project for which the Real Property Interests is being acquired In that regard, Grantor, and its representatives, predecessors, successors, subsequent transferees, attorneys, assigns and agents, and each of them, knowingly and voluntarily waive, discharge and release City's employees, agents, officers, servants, representatives, contractors, attorneys and assigns, from the following: compensation for injury to the remainder ( "severance damages "), relocation assistance, precondemnation damages, loss of goodwill and /or lost profits, loss or impairment of any "bonus value" attributable to any lease, damage to improvements pertaining to the realty, damage or loss to machinery, fixtures and /or equipment, any right to repurchase or leaseback the Real Property Interests, any right to receive any notices pursuant to Code of Civil Procedure section 1245.245, any and all rights conferred upon Page 3 of 11 \ \mor_pri_sery \Department Share \Community Development\DEV PMTS \R P D \2004 -06 Essex Apts \Property Dedication\Agendb O Attachment.doc 4 Grantor pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025, attorney's fees and costs, and any other claim to compensation or damages arising out of City's acquisition of the Real Property Interests and /or the construction and /or use of the project for which the Real Property Interests is being acquired In that regard, Grantor acknowledges that it is familiar with the provisions of California Civil Code Section 1542, which is expressly understood by each party hereto to provide as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Grantor being aware of said code section hereby expressly waives any and all rights it may have thereunder, as well as under any other statute or common law principles of similar effect. GRANTOR'S INITIALS 5) Grantor warrants that there are no leases or licenses affecting all or any portion of the Real Property Interests. City will have no obligation to pay or provide any payments or compensation for or to any holder of a lease or license of the Real Property Interests, and Grantor agrees to hold City harmless and reimburse City for any and all of its losses and expenses, including relocation assistance costs, occasioned by reason of any undisclosed lease or license, and any and all such costs may be deducted from the payment set forth in Paragraph 3 of this Agreement. 6) Grantor represents and warrants, to the best of Grantor's actual knowledge, and subject to environmental reports regarding the property, the following a) During Grantor's ownership of the Real Property Interests, Grantor knows of no disposal, releases, or threatened releases of hazardous substances on, from, or under the Real Property Interests. Grantor further represents and warrants that Grantor has no knowledge of any disposal, release, or threatened release of hazardous substances on, from, or under the Real Property Interests, which may have occurred prior to Grantor taking title to the Real Property Interests. b) There is no pending claim, lawsuit, agency proceeding, or any administrative challenge concerning the presence or use of hazardous substances on the Real Property Interests. Page 4 of 11 \ \mor_pri_serv\Department Share \Community Development\DEV PMTS \R P D \2004 -06 Essex Apts \Property Dedication\Agenda Attachment.doc 000005 c) Grantor has not used the Real Property Interests for any industrial operations that use hazardous substances. The Grantor is not aware of any such prior use of the Real Property Interests. d) Grantor has not installed any underground storage tanks, above ground storage tanks, barrels, sumps, impoundments or other containers used to contain hazardous substances on any part of the Real Property Interests. Grantor is not aware of any such prior installations. e) The undersigned signatories for Grantor are fully authorized to enter into this Agreement and constitute all persons required to execute this Agreement on behalf of Grantor. 7) All notices regarding the Grant Deed or under the terms of this Agreement must be made by either personal delivery or by mail with proof of delivery to the addressees below, which contact information the parties may change at any time by giving notice under this section: Grantor: ESSEX PORTFOLIO, L.P. 925 East Meadow Drive Palo Alto, CA 94303 Attention: John D. Eudy Copies to: ESSEX PORTFOLIO, L.P. 925 East Meadow Drive Palo Alto, CA 94303 Attention: Jordan Ritter And ESSEX PORTFOLIO, L.P. 22120 Clarendon Street, Suite 200 Woodland Hills, CA 91367 Attention: Maura Lederer City: City of Moorpark Attention: City Clerk City Hall 799 Moorpark Avenue Moorpark, CA 93021 Copies to: Burke, Williams & Sorensen, LLP 444 S. Flower Street, 24th Floor Los Angeles, CA 90071 Attention: Joseph M. Montes, Esq. Page 5 of 11 \ \mor_pri_sery \Department Share \Community Development\DEV PMTS \R P D \2004 -06 Essex Apts \Property Dedication\Agenda Attachment.doc 000006 8) This Agreement is binding upon the heirs, devisees, executors, administrators, legal representatives, successors, subsequent transferees and assigns of the parties. 9) Each of the agreements, representations, warranties, waivers and releases contained herein will survive the recordation of, and will not be merged into, the Grant Deed. 10) This Agreement contains the entire understanding between the parties relating to the transactions contemplated by this Agreement, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged in this Agreement and are of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. This Agreement includes Exhibit I" , which is incorporated herein. 11) This Agreement will be interpreted as though prepared jointly by both parties. Any alteration, change or modification of or to this Agreement, in order to become effective, must be made in writing and in each instance signed on behalf of each party. This Agreement will be interpreted and governed under the laws of the State of California. 12) Time is expressly made of the essence with respect to the performance by the parties of each and every obligation and condition of this Agreement. 13) This Agreement may be executed in counterparts, each of which will be deemed an original, and all such counterparts together will constitute one and the same instrument. 14) City agrees that all costs and expenses incurred by City and /or Grantor in connection with the negotiation and /or implementation of the terms of this Agreement shall be paid for by City, including, consultants' fees and costs. 15) City acknowledges that the is no necessity for the relocation of the existing Southern California Edison (SCE) 66kv power poles as a result of City's improvement of access for the U. S. Post Office. Page 6 of 11 \ \mor_pri_sery \Department Share \Community Development\DEV PMTS \R P D \2004 -06 Essex Apts \Property Dedication\Agenda Attachment.doc 000007 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first set forth hereinabove. GRANTOR: ESSEX PORTFOLIO, L.P., a California limited partnership By: Essex Property Trust, Inc., a Maryland corporation, its general partner By. Its: CITY OF MOORPARK By. Steven Kueny, City Manager ATTEST: Deborah Traffenstedt, City Clerk Page 7 of 11 \ \mor_pri_sery \Department Share \Community Development\DEV PMTS \R P D \2004 -06 Essex Apts\Property Dedication\Agenb00008 Attachment.doc Exhibit "1" RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk CITY OF MOORPARK 799 Moorpark Avenue Moorpark, CA 93021 Exempt Recording Per Government Code Sections 6103 and 27383 Space Above This Line For Recorder's Use GRANT DEED A.P. NOS.: THE UNDERSIGNED GRANTOR DECLARES THAT THE CITY OF MOORPARK IS ACQUIRING TITLE AND IS EXEMPT FROM DOCUMENTARY TRANSFER TAX PURSUANT TO R & T 11922 FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, ESSEX PORTFOLIO, L.P., a California limited partnership ( "Grantor "), hereby grants to the CITY OF MOORPARK, a California municipal corporation and general law city ( "Grantee "), the fee interest in that certain real property located in the City of Moorpark, County of Ventura, State of California, described in Exhibit "A" attached hereto and incorporated herein by this reference. IN WITNESS WHEREOF, the undersigned has executed this Grant Deed on 2009, to be effective upon its recordation in the Official Records of the County of Ventura, California. GRANTOR: By. Its: ATTEST: Secretary Page 8 of 11 \ \mor_pri_sery \Department Share \Community Development \DEV PMTS \R P D \2004 -06 Essex Apts \Property Dedication\Agenda Attachment.doc 000009 DEED CERTIFICATION CITY OF MOORPARK This is to certify that the interest in real property conveyed by the Grant Deed dated ,2009 from ESSEX PORTFOLIO, L.P., a California limited partnership, to the CITY OF MOORPARK is hereby accepted by the undersigned officer or agent on behalf of the City Council of the City of Moorpark pursuant to authority conferred by Resolution No. of the City Council of the City of Moorpark adopted on and the Grantee consents to the recordation thereof by its duly authorized officer. Dated: CITY OF MOORPARK Deborah Traffenstedt, City Clerk Page 9 of 11 \ \mor_pri_sery \Department Share \Community Development \DEV PMTS \R P D \2004 -06 Essex Apts \Property Dedication\Agenda Attachment.doc 000010 ACKNOWLEDGMENT State of California ) )ss County of ) On , 2009, before me, (Name of Notary) personally appeared 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 his /her /their authorized capacity(ies), 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. 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. (Seal) (Notary Signature) Page 10 of 11 \ \mor_pri_sery \Department Share \Community Development \DEV PMTS \R P D \2004 -06 Essex Apts\Property Dedication\Agenda Attachment.doc 000011L EXHIBIT "A" TO GRANT DEED Legal Description of Property Page 11 of 11 \ \mor_pri_sery \Department Share \Community Development\DEV PMTS \R P D \2004 -06 Essex Apts \Property Dedication\Agend Attachment.doc 600012.