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HomeMy WebLinkAboutDeeds & Easements-8A-1995E_CCv0001.pdf CITY OF REDLANDS AGREEMENT FOR THE EXCHANGE OF PROPERTIES AND ESCROW INSTRUCTIONS THIS AGREEMENT FOR EXCHANGE OF PROPERTIES AND ESCROW INSTRUCTIONS ("Agreement"), dated Sept. 11 , 1995, ("Effective Date") is made and entered into by and between James Y. King and Ai-Ken Shen("Partners"),and the City of Redlands ("City") (sometimes collectively referred to herein as the "Parties"). RECITALS A. Whereas,Partners own approximately 42,095 square feet(.966 acres)of real property located at the northwest comer of Reservoir Road and Wabash Avenue in the City of Redlands (the "City"), San Bernardino County, California, which is more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Partners' Property"); and B. Whereas, City owns approximately 49,226 square feet(1.1310 acres)of real property known as the Wabash Avenue right-of-way located in the City of Redlands, San Bernardino County, California, which is more particularly described in Exhibit "B" attached hereto and incorporated herein by reference (the "City Property"); and C. Whereas, Partners and City agree to exchange the Partners' Property for the City Property subject to the terms and conditions contained herein; NOW THEREFORE, in consideration of the mutual promises contained herein,the City of Redlands and James Y. King and Ai-Ken Shen agree as follows: AGREEMENT I TITLE AND DESCRIPTION OF PROPERTIES TO BE EXCHANGED City and Partners shall exchange the Properties identified in Exhibits "A" and "B" upon the Close of Escrow, and by grant deed convey to each other good and marketable fee title to the City Property and Partners' Property, respectively, as evidenced by Standard form A.L.T.A. Joint Protection Policies of Title Insurance in amounts equal to the value of the City Property and Partners' Property-, respectively, issued by Commonwealth Title Company (the "Title Company") showing title vested in the City of Redlands and James Y. King and Ai-Ken Shen, subject to the exceptions to title approved by the Parties pursuant to Sections 2.I and 3.1 below. City and Partners each shall be responsible for the premium for the standard policy of title insurance for the respective Properties. Any additional endorsements or policy coverage requested by either Party shall be at the Party's sole cost and expense. 1.1 City shall deposit into Escrow, and release to Partners at Close of Escrow, a sum of Five Hundred Dollars ($500.00) representing the difference in land value between the Properties. 2. CONDITIONS OF TRANSFER-- CITY City's obligation to perform this Agreement and transfer ownership of the City Property shall be subject to the satisfaction of the following conditions, which are for City's benefit only. In the event any of the following contingencies are not satisfied within the specified time limit(s). City may, at its sole option, either waive such conditions or terminate this Agreement. 2.1 Approval of Title. Promptly after execution of this Agreement by the Parties, Escrow Holder shall deliver to City a current preliminary title report("PTR") covering the Partners' Property from the Title Company. City shall have seven(7)days after receipt of the PTR to approve or disapprove the status of title to the Partners' Property as disclosed in the PTR. Any disapproval of status of title shall be within the reasonable discretion of City and shall be limited to monetary encumbrances and covenants, conditions, restrictions, and easements of record which adversely affect the intended use of the Partners' Property. Any exception not disapproved in writing within the seven (7) day period shall be deemed approved by City, and shall constitute a permitted exception hereunder. Any objection to a title exception shall be in writing, and the Parties shall thereafter have seven(7) days within which to use reasonable efforts to cure or to provide assurance of the cure of the title defect and cause such item to be removed from the title policy to be issued at Close of Escrow. The term "reasonable efforts," as used in this Paragraph 2.1, shall not include any obligation of City to spend any money or to file a lawsuit or maintain any legal action to correct any exceptions within the seven(7)day period. City shall, in writing,notify Partners of any disapproved title exceptions which Parties are unable to cause to be removed prior to or at Closing. City shall then,within five(5)business days thereafter, elect by giving written notice to Partners and Escrow Holder (i) to terminate this Agreement, or (ii) to waive its disapproval of such exceptions, in which case such exceptions shall then be deemed to be permitted exceptions. City's failure to give such notice shall be deemed an election to terminate this Agreement. In the event City elects to terminate this Agreement, City shall be relieved from any further liabilities and/or obligations under this Agreement. 2.2 Inspections. City or City's agent shall have the right to physically inspect and perform such tests, including an environmental investigation, and to perform such zoning and economic feasibility and suitability studies (hereinafter collectively "Inspections") on the Partners' Property as City deems necessary. All Inspections shall be done at City's sole cost and expense. Upon completion of such Inspections, the Partners' Property shall be returned to its original condition. City shall have the right, in the exercise of its good faith discretion, to approve or disapprove of the condition of the Partners' Property as disclosed in such Inspections within thirty (3)0) days from the Effective Date of this Agreement. Any disapproval of the condition of the Partners' Property shall be in writing and given to Partners within such thirty (3 0)day , period. In the event City does not disapprove the condition of the Partners' Property within the thirty (30) day period, this condition shall be deemed waived. In the event City disapproves the condition of the mep 1 Partners' Property within the thirty(30) day period, this Agreement shall terminate and the Parties shall be relieved from any further liabilities and/or obligations under this Agreement. 3. CONDITIONS OF TRANSFER--PARTNERS Partners' obligation to perform this Agreement and transfer ownership of the Partners' Property shall be subject to the satisfaction of the following conditions, which are for Partners' benefit only. In the event any of the following contingencies are not satisfied within the specified time limit(s), Partners may, at their sole option, either waive such conditions or terminate this Agreement. 3.1 Approval of Title. Promptly after execution of this Agreement by the Parties, Escrow Holder shall deliver to Partners a current preliminary title report("PTR")covering the City's Property from the Title Company. Partners shall have seven (7) days after receipt of the PTR to approve or disapprove the status of title to the City's Property as disclosed in the PTR. Any disapproval of status of title shall be within the reasonable discretion of Partners and shall be limited to monetary encumbrances and covenants, conditions, restrictions, and easements of record which adversely affect the intended use of the City's Property. Any exception not disapproved in writing within the seven(7) day period shall be deemed approved by the Partners, and shall constitute a permitted exception hereunder. Any objection to a title exception shall be in writing, and the Parties shall thereafter have seven (7) days within which to use reasonable efforts to cure or to provide assurance of the cure of the title defect and cause such item to be removed from the title policy to be issued at Close of Escrow. The term "reasonable efforts," as used in this Paragraph 3.1, shall not include any obligation of the Partners to spend any money or to file a lawsuit or maintain any legal action to correct any exceptions within the seven (7) day period. Partners shall, in writing, notify City of any disapproved title exceptions which Parties are unable to cause to be removed prior to or at Closing. Partners shall then,within five(5)business days thereafter,elect by giving written notice to City and Escrow Holder (i) to terminate this Agreement,or (ii) to waive its disapproval of such exceptions,in which case such exceptions shall then be deemed to be permitted exceptions. Partners' failure to give such notice shall be deemed an election to terminate this Agreement. In the event the Partners elect to terminate this Agreement, Partners shall be relieved from any further liabilities and/or obligations under this Agreement. 3.2 Inspections. Partners or Partners'agent shall have the right to physically inspect and perform such tests, including an environmental investigation, and to perform such zoning and economic feasibility and suitability studies (hereinafter collectively "Inspections") on the City's Property as Partners deem necessary. All Inspections shall be done at Partners' sole cost and expense. Upon completion of such Inspections, the City Property shall be returned to its original condition. Partners shall have the right, in the exercise of its good faith discretion, to approve or disapprove of the condition of the City Property as disclosed in such Inspections within thirty (30) days from the Effective Date of this Agreement. Any disapproval of the condition of the City Property shall be in writing and given to City within such thirty (30) day period. In the event Partners do not disapprove the condition of the City Property within the thirty (30)day period, this mep 1 3 condition shall be deemed waived. In the event Partners disapproves the condition of the City Property within the thirty (30) day period, this Agreement shall terminate and the Parties shall be relieved from any further liabilities and/or obligations under this Agreement. 4. ESCROW 4.1 Opening. The exchange of the Partners' Property for the City Property shall be completed through an escrow("Escrow")to be opened at the Redlands office of Guardian Escrow, Inc., (the "Escrow Holder"). Within five(5)days after the mutual execution of this Agreement, City shall deposit with the Escrow Holder one fully executed counterpart of this Agreement, which shall constitute the Escrow instructions along with any additional Escrow instructions executed by the Parties pursuant to Section 4.5 of this Agreement. The date of delivery to Escrow Holder of such fully executed counterpart shall be deemed the opening of escrow ("Opening of Escrow") and Escrow Holder shall notify the Parties in writing of the Opening of Escrow date, the date set for Close of Escrow,and its acceptance of the escrow instructions. 4.2 Closing. Escrow shall close, if at all, on or before the date which is thirty(30)days after the Effective Date of this Agreement. 4.3 Costs. The Parties shall each pay fifty percent (50%) of all the escrow costs and charges normally paid in an escrow closing in San Bernardino County. 4.4 Prorations. Current real property taxes, bonds and assessments shall be prorated at the date of recordation of the deed, on the basis of a thirty (30) day month. 4.5 Additional Documents. The Parties shall execute such additional Escrow instructions as Escrow Holder may reasonably require to act as Escrow Holder,but in no event shall said additional Escrow instructions increase the rights of one party against the other party hereto or modify the terms and conditions of this Agreement. 4.6 Delivery of Documents. Escrow Holder shall prepare the Grant Deeds for the properties to be exchanged, and City shall deposit into Escrow the sum of$500.00, at least one (1) business day prior to the Close of Escrow. 4.7 Vesting. Unless otherwise agreed by the Parties in escrow, title to the Partners' Property shall vest at Close of Escrow in the name of City of Redlands,a municipal corporation and title to the City Property shall vest at Close of Escrow in the name of James Y. King. 5. CITY'S REPRESENTATIONS,WARRANTIES AND ACKNOWLEDGEMENTS City hereby makes the following representations, warranties, and acknowledgements and agrees that such representations, warranties and acknowledgements shall survive the Close of Escrow. Inep 1 5.1 City has full right,power,and authority to execute this Agreement and to convey fee simple title to the City Property to Partners as provided herein. 5.2 City is not a foreign person. under Section 1445 Internal Revenue Code and will execute a Certificate of Ton-foreign status and deposit same into the Escrow prior to the Close of Escrow. 5.3 Except as otherwise disclosed in this Agreement or disclosed in any reports to be delivered hereunder, City has no actual knowledge of any violations or alleged violations of any federal, state,county or either governmental or law, statute, ordinance,regulation or administrative or judicial order with respect to the City Property. 5.4 This Agreement has been duly executed by City and constitutes the valid and binding Agreement of City enforceable against City in accordance with its terms. 6. PARTNER'S REPRESENTATIONS AND WARRANTIES Partners hereby make the following representations, warranties;and acknowledgments and agrees that such representations, warranties and acknowledgements shall survive the Close of Escrow. 6.1 Partners hereby represent and warrant that the person executing this Agreement has the full authority and power to enter into this Agreement on behalf of Partners to convey the Partners' Property to City, and to take all actions required of it by the terms of this Agreement. 6.2 All the documents executed by Partners at the Close of Escrow will be duly authorized, executed, and delivered and will be legal, valid, and binding obligations of Partners enforceable against Partners in accordance with their respective terms, and will not violate any agreement to which Partners is a party or to which it is subject. 6.3 Except as otherwise disclosed in this Agreement or disclosed in any reports to be delivered hereunder, Partners have no actual knowledge of any violations or alleged violations of any federal, state, county or other governmental or law, statute, ordinance, regulation or administrative or judicial order with respect to the Partners' Property. 7. NOTICE Unless otherwise provided herein, any notice, tender, or delivery to be given hereunder by either party to the other may be effected by personal delivery in writing or by registered or certified mail, postage prepaid,return receipt requested, and shall be deemed communicated upon delivery or as of mailing. Mailed notices shall be addressed as set forth below,but each party may change his address by written notice in accordance with this Section. mep 1 5 Partners: City: Mr. James Y. King City of Redlands 2021 Canyon Drive P.O. Box 3005 Hollywood, California 90068-3606 Redlands, California 92373 Attention: Administrative Services Director 8. GENERAL PROVISIONS 8.1 Entire Agreement. This Agreement supersedes any prior oral or w=ritten agreement and contains the entire agreement of the Parties as to the matters covered hereby. All obligations of City and Partners under this Agreement and the Escrow shall be joint and several. 8.2 Time is of the Essence. Time is of the essence of this Agreement and the Escrow referred to herein. 8.3 Captions and Construction. The captions appearing at the commencement of the paragraphs hereof are descriptive only and for convenience in reference. Should there be any conflict between any such caption and the paragraph at the head of which it appears,the paragraph shall control and govern in the construction of this Agreement. This Agreement shall be construed as a whole and in accordance with its fair meaning. Organization is for convenience and shall not be used in construing meaning. 8.4 CAy's Performance. Close of Escrow and performance of any duty imposed on City by this Agreement is conditioned on Partners' full performance of all duties imposed on Partners in this Agreement. 8.5 Partners' Performance. Close of Escrow and performance of any duty imposed on Partners by this Agreement is conditioned on City's full performance of all duties imposed on City in this Agreement. 8.6 Counterparts. This Agreement may be executed in any number of counterparts each of which shall be deemed an original,but all of which, when taken together, shall constitute one and the same instrument. 8.7 Successors and Assigns. Each covenant and condition contained in this Agreement shall inure to the benefit of and be binding on the Parties to this Agreement, their respective heirs, personal representatives, assigns, and other successors in interest. 8.8 Attorney's Fees. If any party shall bring an action against another arising out of this Agreement,then the party in whose favor the final judgement is entered shall be entitled to have and recover from the other party its reasonable attorney's fees and other reasonable expenses in connection with such action or proceedings, in addition to its recoverable court costs. mep 1 9. HAZARDOUS SUBSTANCES The Parties represent and warrant that, to the best of the Parties' knowledge there exists no "Hazardous Materials" (as such term is herein defined)nor oil -wells, underground storage tanks, or pipelines in, on, under, or about the City's Property and the Partners' Property. The Parties understand and agrees that in the event the Parties incur any loss or liability concerning Hazardous Materials and/or oil wells and/or underground storage tanks and/or pipelines whether attributable to events occurring prior to or following the effective date of the Agreement, then the Parties may look to current or prior owners of the City's Property and the Partners' Property, for any liability or indemnification regarding Hazardous Materials and/or oil wells and/or underground storage tanks and/or pipelines. The Parties shall,from and after the Effective Date of this Agreement,and defend,indemnify and hold harmless the other Parties, and their officers, employees, agents and representatives (collectively, the "Indemnified Parties") from and against any and all Environmental Claims, Environmental Cleanup Liability, Environmental Compliance Costs, and any other claims, actions, suits, legal or administrative orders or proceedings, demands or other liabilities resulting at any time from the physical and/or environmental conditions of the City's Property and the Partners' Property whether before or after the Effective Date or from the existence of any Hazardous Materials or the release or threatened release of any Hazardous Materials of any kind whatsoever, in, on, or under the Property occurring at any time whether before or after the Effective Date, including but not limited to, all foreseeable and unforeseeable damages, fees, costs, losses and expenses, directly or indirectly arising therefrom, and including fines and penalties of any nature whatsoever, assessed, levied or asserted against any Indemnified Parties to the extent that the fines and/or penalties are the result of a violation or an alleged violation of any Environmental Law. For the purpose of this Section, the following terms shall have the following meanings: (a) "Environmental Claim" means any claim for personal injury, death and/or property damage made, asserted or prosecuted by or on behalf of any third party, including, without limitation,any governmental entity,relating to the City's Property and the Partners' Property or its operations and arising or alleged to arise under any Environmental Law. Z:� (b) "Environmental Cleanup Liability" means any cost or expense of any nature whatsoever incurred to contain,remove,remedy,clean up,or abate any contamination or any Hazardous Materials on or under all or any. part of the City's Property and the Partners' Property,including the ground water thereunder, including,without limitation,(i) any direct costs or expenses for investigation, study, assessment, legal representation,cost recovery by governmental agencies, or ongoing monitoring in connection therewith and (ii) any cost, expense,loss or damage incurred with respect to the Property or its operation as a result of actions or measures necessary to implement or effectuate any such containment, removal, remediation,treatment, cleanup or abatement. CD rt 7 (c) "Environmental Compliance Cost" means any cost or expense of any nature whatsoever necessary to enable the City's Property and the Partners' Property to comply with all applicable Environmental Laws in effect. "Environmental Compliance Cost" shall include all costs necessary to demonstrate that the City's Property and the Partners' Property is capable of such compliance. (d) "Environmental Law" means any federal, state or local statute, ordinance, rule, regulation, order, consent decree,judgment or common-law doctrine, and provisions and conditions of permits, licenses and other operating authorizations relating to (i)pollution or protection of the environment, including natural resources, (ii) exposure of persons, including employees,to Hazardous Materials or other products,raw materials, chemicals or other substances, (iii) protection of the public health or welfare from the effects of by- products,wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities, or (iv) regulation of the manufacture, use or introduction into commerce of chemical substances, including, without limitation, their manufacture, formulation, labeling, distribution,transportation, handling, storage and disposal. (e) "Hazardous Material" is defined to include any hazardous or toxic substance,material or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government. The term "Hazardous Material" includes, without limitation, any material or substance which is: (i) petroleum or oil or gas or any direct or derivative product or by product thereof-, (ii) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under Sections 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); (iii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iv) defined as a "hazardous material," "hazardous substance" or "hazardous waste"under Sections 255010)and(k)and 25501.1 of the California Health and Safety Code,Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (v) 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); (vi) "used oil" as defined under Section 25250.1 of the California Health and Safety Code; (vii) asbestos; (viii) listed under Article 9 or defined as hazardous or extremely hazardous pursuant to Article I of Title 22 of the California Code of Regulations. Division 4, Chapter 310-, (ix) defined as waste or a hazardous substance pursuant to the Porter-Cologne Act,Section 13050 )050 of the California Water Code; (x) designated as a "toxic pollutant" pursuant to the Federal Water Pollution Control Act, 33 U.S.C. § 13117; (xi) defined as a "hazardous waste" pursuant to the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et sec (42 U.S.C. § 6903), (xii) defined as a "hazardous substance" pursuant to the Comprehensive Environmental Response,Compensation and Liability Act,42 U.S.C. § 9601 et se (42 U.S.C. § 9601); (xiii) defined as "Hazardous Material" pursuant to the Hazardous Materials Transportation Act., 49 U.S.C. § 1801 et Lq_q.; (xiv) defined as such mcp 1 8 or regulate by any "Superfun " car" uperlien" law, or any tither federal,state or local law, statute,ordinance;code,rule,regulation,order or decree regulating,relating to, or imposing liability or standards of conduct concerning Hazardous Materials and/or oil wells and/or underground storage tanks and/or pipeline, as now, or at any time hereafter, in effect. Notwithstanding anything to the contrary set forth herein,the release;indemnities,and hold harmless agreements given by the Parties pursuant to this Section shall not apply to nor preclude liability of the Parties for any and all Environmental Claims, Environmental Cleanup Liability, Environmental Compliance Costs,and;any ether claims,actions,suits,legal or administrative orders or proceedings,demands or ether liabilities resulting from the release in the past or in the future of any Hazardous Materials of any bind whatsoever,in,on or under the City's Property and the Partners' Property,by the Parties. Notwithstanding any other provision of this Agreement, the Parties' release and indemnification as set forth in the provisions of this Section, as well as all provisions of this Section shall survive the closingof Escrow and any termination of this Agreement and shall continue in perpetuity. 10. BROKERS AND FINDERS City and Partners acknowledge that the execution of this Agreement was not induced or procured through any person, firm,or corporation acting as a broker or finder. �, 9 IN WITNESS WHEREOF.the Parties hereto executed this Agreement on the dates set forth opposite their respective signatures hereto. PARTNERS: r ,, �` Exec ted this day of August, 1995, ,James Y. Ding = _ , California a. CITY OF REDLANDS Executed this 11 day of AAtgugt, 1995, Swen Larson, Mayor at Redlands, California ATTEST: Lorri ©yzer, 'terk mep l 10 EXHIBIT "A" Complete legal descriptions shall be furnished through escrow. Refer to attached map. San Bernardino County Assessor's Parcel Number 0174-281-13. The portions of the original ownership proposed for acquisition are indentified as Subject Parcels No. 1, 2, and 3. Subject Parecels No. 4, 5 and 6 are parcels owned by the City of Redlands to be offered in exchange as part of the acquisition. Subject Parcels No. 4 and 5 are portions of San Bernardino County Assessor's Parcel Numbers 0174-281-24 and 0174-281-28, respectively. Subject Parcel No. 6 is identified as San Bernardino County Assessor's Parcel No. 0174-281-26. This prooperty is also identified as Parcel No. I of Parcel Map No. 13102 as shown in Book 158 of Parcel Maps, Page 19 and 20, official records of San Bernardino County. MAP OF SUBJECT PARCELS PARCtL f tr 1 i r P Sip JA����. Z i ,i p 1 Mpt� t 1" �1 t 'tl 4Ibl :1 fit "r�j !ti 1 ` W 12 7M.- r� CLOSED SESSION The City Council meeting recessed at 3:15 P.M. to a Redevelopment Agency meeting and reconvened at 3:40 P.M. to a closed session to discuss the following matters: (a) Conference with legal counsel - Anticipated litigation - Government Code Section 54956.9(b) - Three cases (b) Conference with legal counsel - Existing litigation - Government Code Section 54956.9 - Redlands Association et. at. v. City of Redlands (c ) Conference with real property negotiator Property: 172 South Eureka Street Negotiating parties: Mar ie Pettus and Ted Sutton Under negotiation: Terms and price (d ) Conference with real property negotiator Property: 172 South Eureka Street Negotiating parties: Mar ie Pettus and Mr. and Mrs. Stuart Under negotiation: Terms and price (This item, which arose subsequent to the agenda being posted, was unanimously added to the agenda on motion of Councilmember Larson, seconded by Councilmember Cunningham.) The City Council meeting reconvened at 7:00 P.M. CLOSED SESSION REPORT City Attorney McHugh reported the following property exchanges were approved at the prior closed session: (1) APN 174-281-13, 24, 26, and 28 - Wabash Avenue right-of-way between the City of Redlands and Mrs. James King and Mr. Ai-ken-Shen; and (2) APN 168-031-21 and 22, 168-041-45 and 46, 292-072-07 and 12 - Tennessee Grove and Sessums between the City of Redlands and Hudson Company, a California general partnership, Raymond Kosi and Phil Sirianni, Jr. Councilmember Cunningham noted he was opposed to these two property exchanges. PUBLIC HEARINGS Resolution No. 5211 - Kirkorian Premiere Theatres, Inc. - A joint public hearing with the Redevelopment Agency of the City of Redlands was advertised for this time and place to consider a Draft Mitigated Negative Declaration, Disposition and Development Agreement, Purchase and Sale Agreement and Escrow Instructions, and Lease/Purchase Agreement for property bounded by Eureka Street, Oriental Avenue, Third Street, and the September 5, 1995 Page 6