Loading...
HomeMy WebLinkAbout2003 CON CDC Gillingham - Acquisition 1441 Harding Ave.ESCROW NO.: PARCEL NO.: PROJECT: TITLE REPORT NO.: NAME: 559 063-04-00 1441 HARDING AVE ACQUISITION Pending DAVID R. GILLINGHAM & SUSAN D. GILLINGHAM AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS THIS AGREEMENT is entered into this 22"d day of August, 2003, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic (hereinafter called "Buyer"), and DAVID R. GILLINGHAM & SUSAN D. GILLINGHAM (hereinafter called "Seller") for acquisition by Buyer of certain real property as hereinafter set forth. IT IS HEREBY MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS: 1. AGREEMENT TO SELL AND PURCHASE. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, upon the terms and for the consideration set forth in this Agreement, all that certain real property (hereinafter called "Property") situated in the City of National City, County of San Diego, State of Califomia, and legally described as follows: AS PER LEGAL DESCRIPTION ATTACHED HERETO AS EXHIBIT "A" AND BY THIS REFERENCE MADE A PART HERETO. Commonly known and numbered as 1441 HARDING AVE., National City, California 2. PURCHASE PRICE. The total price, payable in cash through escrow, shall be the sum of THREE HUNDRED SIXTY THOUSAND DOLLARS AND 00/100 CENTS ($360,000.00). Purchase is conditional on property appraising for said purchase price by an appraiser selected by and paid for by the buyer. 3. CONVEYANCE OF TITLE. Seller agrees to convey by Grant Deed to Buyer marketable fee simple title to the Property free and clear of all recorded and unrecorded liens, encumbrances, assessments, easements, leases and taxes, EXCEPT: A. Property Taxes, including general and special taxes, personal property taxes, if any, and assessments collected with taxes, to be levied for the fiscal year 2002/2003, a lien not yet due or payable. 1 B. Supplemental or escaped assessments of property taxes, if any, assessed pursuant to the Revenue and Taxation Code of the State of California. C. Quasi -public utility, public alley, public street easements and rights of way of record. Title shall vest in the Community Development Commission of the City of National City. 4. TITLE INSURANCE POLICY. Escrow Agent shall, following recording of deed to Buyer, provide Buyer with a CLTA Standard Coverage Policy of Title Insurance in the amount of $360,000.00 issued by Commonwealth Title Company showing title to the Property vested in Buyer, subject only to the exceptions set forth in Paragraph No. 3 and the printed exceptions and stipulations in said policy. Buyer agrees to pay the premium charged therefore. 5. ESCROW. Buyer agrees to open an escrow in accordance with this Agreement at Lawyers Title Company, 5080 Bonita Rd., Bonita, California 91902, Telephone (619) 472-6440. This Agreement constitutes the joint escrow instructions of Buyer and 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 necessary to close this escrow in the shortest possible time. Seller has executed and deposited into escrow a Deed for the benefit of Buyer, concurrently with this Agreement. Within ten (10) days after opening of escrow, Buyer agrees to deposit the purchase price into escrow. Escrow Agent is hereby authorized to release a copy of said Deed to Buyer for the purpose of allowing Buyer to attach its Certificate of Acceptance to said copy. Buyer shall promptly return said copy to Escrow Agent after attaching said Certificate of Acceptance thereto, and Escrow Agent is hereby authorized to attach said Certificate to Seller's Deed. Buyer and Seller agree to deposit with Escrow Agent any additional instruments as may be necessary to complete this transaction. Insurance policies for fire or casualty are not to be transferred, and Seller will cancel his own policies after close of escrow. All funds received in this escrow shall be deposited with other escrow funds in a general escrow trust 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. 2 ESCROW AGENT IS AUTHORIZED AND INSTRUCTED TO COMPLY WITH THE FOLLOWING TAX ADJUSTMENT PROCEDURE. A. Pay and charge Seller for any unpaid delinquent taxes and/or penalties and interest thereon, and for any delinquent or non -delinquent assessments or bonds against the Property; B. Any Supplemental Taxes levied on the property prior to and including up to date of closing of this escrow shall be the obligation of Seller to pay. C. Escrow is not to be concemed with pro -ration of Seller's taxes for the current fiscal year if this escrow closes between July 1 and November 1 unless current tax information is available from title insurer between October 1 and November 1. In the event said tax information is available, Seller's taxes shall be pro -rated in accordance with Paragraph "D" below. From July 1 and the ensuring period, when tax information is NOT available, referred to above, Seller's pro-rata portion of taxes due to close of escrow, shall be cleared and paid by Seller, outside of escrow, pursuant to provisions of Section 5082 through 5090 of the Revenue and Taxation Code of the State of Califomia. D. From the date that tax information is available, as per Paragraph "C" above, up to and including June 30th, Seller's current taxes, if unpaid, shall be pro -rated to date of close of escrow on the basis of a 365-day year in accordance with Tax Collector's proration requirements, together with penalties and interest if said current taxes are unpaid after December 10 and/or April 10. At close of escrow, a check payable to the Community Development Commission of The City of National City for Seller's pro-rata portion of taxes shall be forwarded to Buyer with closing statement. E. Any taxes which have been paid by Seller, prior to opening of this escrow, to apply to the County Tax Collector of said County for refund of such taxes which may be due Seller for the period after Buyer's acquisition pursuant to Revenue and Taxation Code Section 5096.7. ESCROW AGENT IS AUTHORIZED AND SHALL: F. Pay any amount necessary to place title in the condition necessary to satisfy Paragraph 3 of this Agreement and charge with Seller's approval. G. Pay any escrow fees, charges and costs payable under Paragraph 6 of this Agreement and charge Buyer and Seller accordingly. 3 H. Disburse funds and deliver deed when conditions of this escrow have been fulfilled by Buyer and Seller. The term "close of escrow", if and where written in these instructions, shall mean the date necessary instruments of conveyance are recorded in the office of the County Recorder. Recordation of instruments delivered through this escrow is authorized if necessary or proper in the issuance of said policy of title insurance. All time limits within which any matter herein specified is to be performed may be extended by mutual agreement of the parties hereto. Any amendment of, or supplement to, any instructions must be in writing. TIME IS OF THE ESSENCE IN THESE INSTRUCTIONS AND ESCROW IS TO CLOSE AS SOON AS POSSIBLE, BUT IN NO EVENT LATER THAN 45 DAYS AFTER ACCEPTANCE BY COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY. 6. ESCROW FEES, CHARGES AND COSTS. Buyer and Seller agree that Escrow holder shall assess to each party and adjust for each party such closing costs, charges, adjustments, pro -rations and credits as specified in this Agreement, and that the Escrow holder may charge its customary escrow fees charging one-half to the Seller and one-half to the Buyer (including, but not limited to, fee for preparing and recording documents, and applicable title company charges necessary to complete these transactions). 7. RENTALS. All rents up the close of escrow shall be the sole property of Seller. Seller hereby agrees not to re -rent any unit on the premises which are now vacant, or which may be vacated by the present occupants prior to close of escrow. Seller warrants that it has not entered into any oral or written leases on all or any portion of Property exceeding a period of one month. Seller further agrees to hold Buyer harmless and reimburse Buyer for any and all of its losses and expenses occasioned by reason of any other leases of said Property held by any tenant of Seller. 8. LESSEE'S/TENANT'S INTEREST IN REAL PROPERTY. Buyer and Seller acknowledge and agree that it shall be Buyer's obligation and responsibility to compensate said Lessee(s)/Tenant(s) for any compensable interests in said property to which said Lessee(s)lTenants may be entitled. 4 9. COUNTERPARTS. This Agreement may be executed in counterparts, each of which so executed shall, irrespective of the date of its execution and delivery, by deemed an original, and all such counterparts together shall constitute one and the same instrument. 10. CERTIFICATION OF OWNERSHIP. All Improvements pertaining to realty, fixtures and equipment and inventory belonging to the Seller shall be removed from the premises upon the close of Escrow. Any such Improvements Pertaining to the Realty, fixture and equipment and inventory belonging to the Seller and Lessee/Tenants remaining on the property after the 30th day from the close of escrow shall be considered abandoned and Buyer may dispose of said items as they wish with no recourse by Seller or Lessee/Tenants. 11. POSSESSION. Possession shall be delivered to Buyer at the close of escrow, subject to those leases identified in Paragraph 7. 12. SELLER'S REPRESENTATIONS. Buyer acknowledges that, except as provided herein, Seller has made no representations or warranties as to the condition of the Property. With these exceptions, Buyer shall purchase the Property in "As Is" Condition. 13. HAZARDOUS WASTE. Neither Seller nor, to the best of Seller's knowledge, any previous owner, tenant, occupant or user of the Property used, generated, released, discharged, stored or disposed of any hazardous waste, toxic substances or related materials ("Hazardous Materials") on, under, in or about the Property, or transported any Hazardous Materials to or from the Property. Neither Seller nor its tenants shall cause or permit the presence, use, generation, release, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any Hazardous Materials to or from, the Property. The term "Hazardous Material" shall mean any substance, material, or waste which is or becomes 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 Califomia 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, 5 Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the Califomia Administrative Code, Division 4, Chapter 20, (ix) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. S1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. S6901 et seq. (42 U.S.C. S6903) or (xi) defined as a "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42. U.S.C. S6901 et seq. (42 U.S.C. S6901). 14. COMPLIANCE WITH LAWS AND REGULATIONS. To the best of Seller's knowledge, the Property and its intended use complies with all applicable laws and govemmental regulations including, without limitation, all applicable federal, state and local laws pertaining to health, building, zoning, fire safety, 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 Environment 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 Agency and all applicable federal, state and local agencies and bureaus. 15. INSPECTION OF PHYSICAL, GEOLOGICAL AND ENVIRONMENTAL CONDITIONS. Seller hereby grants to Buyer, or Buyer's authorized agent(s), permission to enter upon the Property upon twenty-four (24) hours notice for the purpose of performing inspections of the physical, geological and environmental conditions of the Property. Buyer's obligations under the Agreement are contingent upon Buyer's approval, in its absolute discretion, of the physical, geological and environmental conditions of the Property, after such investigation of the Property as Buyer deems appropriate. The close of escrow shall be extended by whatever time is necessary, not to exceed sixty (60) days, to investigate to Buyer's satisfaction the physical, geological and environmental conditions of the Property. This contingency shall be deemed satisfied at such time as Buyer delivers written notice of approval prior to expiration of the sixty (60) day investigation period. In performing any investigation under this Paragraph 15, Buyer shall perform all work in a safe manner, shall not permit any hazardous condition created by Buyer to remain on the Property, and shall indemnify, hold harmless, protect and defend Seller (and its officers, directors, shareholders, partners, employees, agents, successors and assigns) from and against any and all liabilities, liens, 6 claims, damages, costs and expenses (including attorneys' fees and court costs) for labor or services performed or materials furnished to or for Buyer, or for personal injury or property damage arising out of entry onto the Property or any adjacent land of Seller by Buyer or its employees, agents, or independent contractors. Buyer's liability under this Section shall survive termination of this Agreement. 16. NOTICE OF TAX WITHHOLDING REQUIREMENTS. It is further understood and agreed by Buyer and Seller that closing of this escrow is subject to and contingent upon Seller executing a "Transferor's Affidavit of Non -Foreign Status" and California Form 590 (Withholding Exemption Certificate) and depositing a copy of same into escrow. If Seller cannot execute said Transferor's Affidavit or California Form 590, Buyer and Seller shall provide mutual written instructions to escrow. 17. AUTHORITY. This instrument shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the Buyer and Seller. The parties upon whose benefit the signature appears below warrant, each to the other, that the person whose signature appears below has the legal authority to bind the party on whose behalf the signature appears to the terms of this Agreement, and that by doing so such party is not in breach of any other contract agreement. 18. SEVERABILITY. The provisions of this Agreement are severable, and if any portion is held invalid or otherwise unenforceable, the parties intend that all other provisions shall remain in full force and effect. 19. ATTORNEYS FEES. In the event of any controversy, claim or dispute relating to this instrument or any breach thereof, the prevailing party shall be entitled to recover its attorney(s) fees, costs, and expenses, whether or not the matter is prosecuted to final judgment. Costs shall include all costs, expert witness fees, and all other reasonable expenses. 20. MAINTENANCE OF PROPERTY. Buyer acknowledges that Seller is responsible for maintaining the property in good condition until close of escrow. 21. ALL INCLUSIVE SETTLEMENT. The purchase price set forth in Paragraph No. 2 hereinabove represents an all inclusive settlement, and is full just compensation for the acquisition of all property and property interests involved, and is accepted by Seller in full consideration of any and all claims for any and all other payments to Seller that may be required by law arising out of the acquisition of the Property including, without limitation, claims for precondemnation damages, compensation for loss of goodwill, compensation for the value of a leasehold, compensation for severance damages, relocation assistance payments, and compensation for the value of fixtures and equipment and any displacement or relocation connection therewith. 22. COMMISSIONS. Seller hereby acknowledge that a broker's commission or finder's fee is payable by the seller with regard to this transaction, and Seller ("indemnitor") agrees to indemnify and hold the buyer harmless from and against any and all liability, claims, demands, damages, losses, or costs of any kind arising from or connected with any broker's or finder's fee or commission claimed to be due any person arising from indemnitor's conduct with respect to this transaction. 23. TIME FOR ACCEPTANCE AND INVESTIGATION. Buyer shall consider this Agreement for acceptance at its next regularly scheduled meeting following acceptance of the Agreement by Seller. 24. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next daywhich is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections 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. D. 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, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. 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. 8 G. 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. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Califomia. I. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. // // // // // // // // Signature Page to Follow 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first set forth hereinabove. SELLER(S): Date: c�L7 f Date: 00, Address: 970 ' ' AA.. L'DWON4 r C/ f ?ZVl I Telephone: BUYER: b/9- gas'-oiys-- Date: 9//34. 3 Address: 140 East 12th Street, Suite B National City CA 91950 Telephone: (619) 336-4253 DAVID R. GILLINGHAM SUSAN D. GILLINGHAM COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ve Director 10