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HomeMy WebLinkAbout2018-324Resolution No. 2018-324 RESOLUTION NO. 2018-324 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING THE REAL PROPERTY EXCHANGE AGREEMENT BETWEEN THE CITY AND ACAA LP, AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREEMENT WHEREAS, ACAA LP is currently the owner of two parcels of land containing approximately 0.78 total acres located at 841 South Inland Center Drive; WHEREAS, the City owns a parcel adjacent to the ACAA LP parcels where the Water Department operates and maintains a wastewater pumping station; and WHEREAS, on December 11, 2018, the Water Board of the City of San Bernardino, California, approved the Real Property Exchange Agreement with ACAA LP and forwarded said agreement to the Mayor and City Council for approval. BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2, The Mayor and City Council hereby approve the Real Property Exchange Agreement (Exhibit "I') and authorize the City Manager to execute said agreement. SECTION 3. That the City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. SECTION 4. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable. SECTION 5. Effective Date. This Resolution shall become effective immediately. APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 19th day of December 2018. John Valdivia, Mayor City of San Bernardino Resolution No. 2018-324 Attest: Georgeann lignna, MM ; ity Clerk Approved as to form: Gary . Saenz, City Atto Resolution No. 2018-324 CERTIFICATION STATE OF CALIFORNIA) COUNTY OF SAN BERNARDINO) ss CITY OF SAN BERNARDINO) I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2018-324 adopted at a regular meeting held at the 19fl` day of December 2018 by the following vote: Council Members: SANCHEZ MARRA VACANT SHORETT AYES NAYS ABSTAIN ABSENT NICKEL 'i RICHARD X MULVIHILL WITNESS my hand and official seal of the City of San Bernardino this 19'h day of December 2018. ......... 1�/ Georgeann arena, MMC, City Clerk REAL PROPERTY EXCHANGE AGREEMENT THIS AGREEMENT is made and shall be effective (the "Effective Date") on the date by which it has been executed by all parties hereto, by and between the City of San Bernardino, a municipal corporation ("San Bernardino"), and ACAA LP ("ACAA LP") hereinafter collectively referred to as "the Parties" and each individually as a "Party"'. Recitals A. San Bernardino is the owner of a certain parcel of vacant land generally designated in the records of the San Bernardino County Assessor as Assessor Parcel No. 0141-222-24, and more particularly described in Exhibits "A" and "B" attached to this Agreement and incorporated by reference (hereinafter referred to as the "San Bernardino Parcel'). B. ACAA LP is the owner of a certain parcel of land generally designated in the records of the San Bernardino County Assessor as Assessor Parcel No. 0141-222-26, and more particularly described in Exhibits "A" and "B", attached hereto and incorporated herein by reference (hereinafter referred to as the "ACAA LP Parcel"). C. The Parties desire to exchange portions of their respective parcels as follows: San Bernardino will exchange a section of land consisting of approximately 281 square feet of area as shown on Exhibit "B", and ACAA LP will exchange a section of land consisting of approximately 281 square feet of area as shown on Exhibit "B". The ACAA LP Parcel and the San Bernardino Parcel are equivalent in value. Transferring ownership of the parcels to the Party that requires use of the respective parcel, in accordance with the terms and conditions set forth herein, will benefit both of the Parties. WHEREFORE THE PARTIES AGREE AS FOLLOWS: 1. The Parties hereby agree that, on the Closing Date (defined below), the ACAA LP Parcel will be conveyed to ACAA LP and the San Bernardino Parcel will be conveyed to San Bernardino, both of which transfers shall occur concurrently through escrow. Except as otherwise provided in this Agreement, these conveyances will be for and in consideration of each other and on the terms and conditions set forth in this Agreement. 2. Both conveyances will be free and clear of all covenants, conditions, restrictions, reservations, easements, and other liens, unless such items are specifically approved by the Parties pursuant to Paragraphs 10, 11 and 12 below. 3. For purpose of the exchange, the ACAA LP Parcel and the San Bernardino Parcel are deemed to be equivalent in value. 4. The exchange of the parcels will be consummated by means of an escrow opened at First American Title Insurance Company at 3281 East Guasti Road, Suite 440, Ontario, California 91761 or other licensed escrow agent (the "Escrow holder") and said escrow shall close no later than , or sooner if possible and approved by all Parties hereto (the "Clos�Date"). If escrow cannot close by the Closing Date, for any reason, the escrow will be automatically terminated, and the Escrow holder will, upon demand of such Party, return all funds and documents deposited in the escrow to the Party depositing them, unless the Closing Date is extended by the Parties in writing. 5. The Parties shall deliver joint or separate escrow instructions to the Escrow holder at least ten days prior to the Closing Date. Said escrow instructions must be consistent with the terms and conditions of this Agreement and to the extent there is any inconsistency, this Agreement will control. The escrow instructions must provide that San Bernardino's grant deed for the ACAA LP Parcel and ACAA LP's grant deed for the San Bernardino Parcel will be recorded concurrently. Prior to Closing each Party shall deliver a grant deed to convey the ACAA LP Parcel and the San Bernardino Parcel, as applicable, to the appropriate Party. In addition, ACAA LP and San Bernardino shall deliver original, executed, notarized and unconditional "certificates of acceptance" with respect to the ACAA LP Parcel and the San Bernardino Parcel, respectively. All Parties shall also provide any documents or information reasonably required by Escrow holder in order to close the transaction contemplated by this Agreement and issue the title policies described in Paragraph 6, below. All Parties shall pay their respective shares of the closing costs associated with this transaction in accordance with custom and practice in San Bernardino County, California. The enforcement of the exchange and grant described herein and closing of escrow provided for in this Agreement are contingent upon the performance of each Party of all matters required to be performed by that Party under this Agreement. 6. At the close of escrow, San Bernardino shall be entitled to receive from First American Title Insurance Company a C.L.T.A. standard coverage policy of title insurance for all of the San Bernardino Parcel in the aggregate amount of $ showing title to the San Bernardino Parcel vested in San Bernardino free and clear of all matters except those stated hereinabove. At the close of escrow, ACAA LP shall be entitled to receive from First American Title Insurance Company a C.L.TA. standard coverage policy of title insurance in the amount of $ showing title to the ACAA LP Parcel vested in ACAA LP, free and clear of all matters except those stated hereinabove. The cost of each of policies specified by this paragraph shall be borne by each of the policies respective insured. 7. Each Party must deposit into the escrow provided for in this Agreement all funds and instruments required by this Agreement on or prior to the Closing Date. 8. Within 20 days after the Effective Date each Party, at its sole cost, shall obtain and furnish the acquiring Party with a preliminary title report on each of the parcel or parcels to be conveyed by that Party from First American Title Insurance Company, together with copies of all documents shown as exceptions or encumbrances in said reports. On or before the end of the Inspection period (or ten days after receipt of the foregoing title information, whichever is later), each acquiring Party shall notify the Party that furnished the title report of any exceptions in the title report to which they reasonably object. If the acquiring Party objects to any exceptions contained in the title reports the Party furnishing the report shall, within ten days after receipt, deliver to the acquiring Party written notice that it will, at its expense, endeavor to remove the objectionable exceptions before the close of escrow, or that it is unwilling or unable to eliminate such exceptions by the close of escrow, in which case the acquiring Party may either elect to acquire its parcel subject to such exceptions, or to terminate this Agreement. In the event that the acquiring Party fails to notify the Party fiumshing the title report of its decision under this paragraph within said ten-day period, the acquiring Party shall be deemed to have elected to acquire the parcel or parcels subject to any such exceptions. 9. At close of escrow, title to the ACAA LP Parcel shall be vested in ACAA LP and the San Bernardino Parcel shall be vested in San Bernardino. 10. As a material part of this Agreement, San Bernardino acknowledges that the San Bernardino Parcel, and ACAA LP acknowledges that ACAA LP Parcel are being conveyed "AS IS" in their present condition, without any warranties from the conveying Party or Party's agents or representative other than as expressly set forth herein or in the grant deed for such property. The Parties are free to perform any inspections, investigations or other reviews of documents regarding the respective parcel(s) being received in this exchange. Except as otherwise provided in this Agreement, any such inspections, investigations or document review will in no way delay, excuse or prevent the Parties' obligations under the Agreement. The Parties further acknowledge that as of the close of escrow, each will be aware of all zoning regulations, other governmental requirements, site and physical conditions, and other matters affecting the use and condition of the respective parcel(s) being received in the exchange, including, without limitation, the size and age of said parcel, boundary lines and boundaries, waste disposal, governmental requirements and limitations, rent and occupancy control, water and utilities, environmental hazards, geologic conditions, neighborhood, area and any subdivision conditions or personal factors of any kind. 11. San Bernardino grants to ACAA LP with regard to the ACAA LP Parcel, and ACAA LP grants to San Bernardino with respect to the San Bernardino Parcel, the right, within 30 days after the Effective Date (the "Insuection Period 1), to enter onto the respective parcels to inspect and evaluate said parcels, provided that each Party agrees to indemnify, defend, release and hold harmless the Party whose property is subject to entry and inspection from all costs, expenses, claims or liabilities for personal injury or property damages resulting from said acts, including physical damage to the respective parcel of the other resulting from the acts. On or before the conclusion of the Inspection Period, each of the Parties herein shall notify the Party from whom such Party is accepting a conveyance of land, in writing, of any objections or disapproval regarding the condition of the respective parcels. If a Party fails to notify the conveying Party of any such objections or disapprovals within said period, the Party failing to object or disapprove shall conclusively be deemed to have completed all inspections and evaluations of the respective parcel, waived its right to object or disapprove and made an election to proceed with the acquisition or grant of the respective interest as set forth herein. If a Party, in a timely manner, objects or disapproves of the condition of the property it is to acquire pursuant to this Agreement, the owner of such property shall, within ten days after receipt of said written objection or disapproval, deliver to the objecting Party a written notice that either the owner of that property will, at its expense, endeavor to cure the defect or item or is unwilling or unable to cure such defect or item by the Closing Date, in which case the objecting Party may either elect to purchase the property subject to such objections, or to terminate this Agreement. In the event that the owner fails to notify the objecting Party of its decision under this paragraph within said ten- day period, the owner of the parcel shall be deemed to have elected not to cure any such defect or item. Unless the owner of the property subject to any such objections agrees to cure all defects or objectionable items within the foregoing ten day period, the objecting Party shall have five days following receipt of written notice in which the owner of the subject property declines to cure one or more defects or objectionable items (or five days following the foregoing ten-day period if the property owner does not respond and is deemed to have elected not to cure any defects or objectionable items) to elect in writing to terminate this Agreement, and the objecting Party's failure to timely object shall be deemed such Party's election to proceed with the transaction notwithstanding the property owner's failure to cure some or all of any defects or objections raised by such Party. 12. When applicable to any parcel described herein and required by law, each Party to this Agreement shall, within 15 days of the Effective Date, provide to the Party to whom it will deed its property on the Closing Date, at its own expense, the following disclosures and information. The Party acquiring such property then shall have until the end of the Inspection Period (or ten days after receipt of the foregoing title information, whichever is later) to investigate the disclosures and information and provide written notice to the disclosing Party of any item(s) disapproved, with any such disapproved matters to be subject to the terms and conditions of Paragraph 11 above. The acquiring Party's failure to disapprove any such item in a timely manner shall be deemed an acceptance of the disclosures and information, which shall include: a. Geologic/Seismic Hazard Zones Disclosure. If a parcel described herein is located in either: (1) a Special Studies Zone pursuant to Public Resources Code §§2621- 2625; (2) a Seismic Hazard Zone pursuant to Public Resources Code § §2690-2699; or, (3) a locally designated geological, seismic or other hazard zone or area where disclosure is required, the owner of the parcel shall disclose this information to the acquiring Party. b. Special Flood Hazard Areas. If a parcel described herein is located in a Special Flood Hazard Area designated by the Federal Emergency Management Agency, owner of the parcel shall disclose this information to the acquiring Party. c. State Fire Responsibility Areas. If a parcel described herein is located in a State Fire Responsibility Area, owner of the parcel, pursuant to Public Resources Code §4136, shall disclose this information to the acquiring Party. 13. Except as otherwise provided herein, San Bernardino represents and warrants to ACAA LP that: a. Condition of Title. Except as otherwise provided herein, San Bernardino owns the ACAA LP Parcel, free and clear of all liens, licenses, claims, encumbrances or easements not disclosed by the public record. To the best of San Bernardino's knowledge, the ACAA LP Parcel is otherwise free and clear of encroachments from adjacent properties, encroachments by improvements on said parcel onto adjacent properties, and rights of way of any nature, not disclosed by the public record. b. Litigation Matter. San Bernardino has no knowledge of any pending litigation involving the ACAA LP Parcel. C. Environmental Hazards. San Bernardino represents that no notices of any violation of any Environmental Laws have been received by San Bernardino and San Bernardino is not aware of any existing or pending requirements of any governmental authority relating to environmental matters requiring any remedial actions or other work, repairs, construction, or capital expenditures with respect to the ACAA LP Parcel. Except as otherwise provided above, San Bernardino makes no representation concerning the existence, testing, discovery, location, and evaluation of, and risks posed by, environmental hazardous substances, if any, located on or potentially affecting the ACAA LP Parcel and ACAA LP is advised to consult with technical and legal experts concerning the existence, testing, discovery, location and evaluation of and risks posed by, environmental hazardous substances, if any, located on or potentially affecting the ACAA LP Parcel. 14. Except as otherwise provided herein, ACAA LP represents and warrants to San Bernardino that: a. Condition of Title. Except as otherwise provided herein, ACAA LP owns the San Berardino Parcel free and clear of all liens, licenses, claims, encumbrances and easements not disclosed by the public record. To the best of ACAA LP's knowledge, the San Bernardino Parcel are otherwise free and clear of encroachments from adjacent properties, encroachments by improvements on said parcels onto adjacent properties, and rights of way of any nature, not disclosed by the public record. b. Litigation Matter. ACAA LP has no knowledge of any pending litigation involving the San Berardino Parcel. C. Environmental Hazards. ACAA LP represents that no notices of any violation of any Environmental Laws have been received by ACAA LP and ACAA LP is not aware of any existing or pending requirements of any governmental authority relating to environmental matters requiring any remedial actions or other work, repairs, construction, or capital expenditures with respect to the San Bernardino Parcel. Except as otherwise provided above, ACAA LP makes no representation concerning the existence, testing, discovery, location, and evaluation of, and risks posed by, environmental hazardous substances, if any, located on or potentially affecting the San Berardino Parcel and San Berardino is advised to consult with technical and legal experts concerning the existence, testing, discovery, location and evaluation of, and risks posed by, environmental hazardous substances, if any, located on or potentially affecting the San Bernardino Parcel. 15. The Parties hereby severally warrant and represent to the other Parties hereto that they have not dealt with any person, firm or corporation which would be entitled to a broker's commission, finder's fee or other like payment in connection with the transaction contemplated by this Agreement. In the event such warranties or representations of the Parties stated herein shall prove to be inaccurate, the misrepresenting Party agrees to indemnify the other Parties and hold the other Parties harmless from and against any and all loss, costs, liability and expense including without limitations, reasonable attorney's fees, which the other Parties may incur in connection therewith. Each Party has been represented by legal counsel with regard to this Agreement. lb. All warranties, covenants, and other obligations described in this article and elsewhere in this Agreement shall survive delivery of the deed. 17. Neither Party may assign their respective rights or obligations under this Agreement without the other parties, prior written consent, which shall not be unreasonably withheld. 18. Time is of the essence in this Agreement. 19. All notices, terminations, waivers and other communications hereunder shall be in writing and shall be delivered personally, by electronic mail (facsimile or email) or shall be sent by registered or certified United States mail or a nationally recognized, overnight courier service, postage prepaid, and addressed to the Parties as follows: To San Bernardino: City of San Bernardino Municipal Water Department 1350 South "E" Street San Bernardino, CA 92408 Phone (909)453-6100 To ACAA LP: ACAA LP Wier Road San Bernardino, CA 92408 Any Party may change that Party's address for these purposes by giving written notice of the change to the other Parties in the manner provided in this provision. 20. This Agreement and the attached Exhibits constitute the entire agreement between the Parties relating to the transfer of San Bernardino Parcel, and the ACAA LP Parcel. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect. Any amendment to this Agreement shall be of no force and effect unless it is in writing and signed by San Bernardino and ACAA LP. 21. San Bernardino and ACAA LP have the right, power, legal capacity and authority to enter into and perform their obligations under this Agreement without further approval or consent. Those persons executing this Agreement on behalf of San Bernardino and ACAA LP are authorized to do so, and by so executing this Agreement, they thereby bind the Parties to the terms hereof. Except as otherwise expressly provided herein, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and assigns. 22. This Agreement and the legal relations between the Parties shall be governed by and construed in accordance with the laws of the State of California. 23. The headings of the articles and sections of this Agreement are inserted for convenience only. They do not constitute part of this Agreement and shall not be used in its construction. 24. The waiver by any Party to this Agreement of a breach of any provision of this contract shall not be deemed a continuing waiver or a waiver of any subsequent breach of that or any other provision of this Agreement. 25. This Agreement and any subsequent amendments may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. IN WITNESS THE EXECUTION HEREOF the day and year set forth beside the respective names below. [Signature Pages Follow.] ACAA LP By: Authorized Agent CITY OF SAN BERNARDINO By: — � Ljo- W 't, Its: ATTEST: APPROVED AS TO FORM: EXHIBIT "A" PARCEL 1 DESCRIPTION — ACAA LP Parcel THAT PORTION OF LOTS 2 AND 3, BLOCK 1 SCENIC KNOLL TRACT 1963, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 28, PAGE 52 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF LOT 4 OF SAID BLOCK 1; THENCE NORTH 83°33'31" EAST A DISTANCE OF 29.29 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 83033'31" EAST A DISTANCE OF 20.93 FEET; THENCE SOUTH 07"16'23" WEST A DISTANCE OF 13.45 FEET; THENCE SOUTH 5021'59" EAST A DISTANCE OF 22.70 FEET; THENCE SOUTH 3938'01" WEST A DISTANCE OF 4.16 FEET; THENCE NORTH 50021'59" WEST A DISTANCE OF 44.42 FEET TO A POINT ON THE SOUTHEASTERLY LINE OF THAT PROPERTY CONVEYED TO CALTRANS BY INSTRUMENT 2006-718940; THENCE NORTH 39°17'04" EAST ALONG SAID CALTRANS PARCEL A DISTANCE OF 0.45 FEET TO THE TRUE POINT OF BEGINNING. CONTAINS 281 SQUARE FEET PARCEL 2 DESCRIPTION — City of San Bernardino Parcel THAT PORTION OF LOTS 2 AND 3, BLOCK 1 SCENIC KNOLL TRACT 1963, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 28, PAGE 52 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST SOUTHERLY CORNER OF LOT 4 OF SAID BLOCK 1; THENCE NORTH 39017'04" EAST ALONG THE SOUTHERLY LINES OF LOT 3 AND LOT 4 A DISTANCE OF 35.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 2811'45" WEST A DISTANCE OF 38.13 FEET; THENCE SOUTH 50021'59" EAST A DISTANCE OF 33.26 FEET; THENCE NORTH 39°17'04" EAST A DISTANCE OF 14.63 FEET; THENCE SOUTH 28011'45" EAST A DISTANCE OF 2.13 FEET TO A POINT ON THE SOUTHEASTERLY LINE OF SAID LOT 2; THENCE SOUTH 39°17'04" WEST ALONG THE SOUTHEASTERLY LINES OF SAID LOTS 2 AND 3 A DISTANCE OF 28.22 FEET TO THE TRUE POINT OF BEGINNING. CONTAINS 281 SQUARE FEET Prepared by me or under my supervision: GOODMAN & ASSOCIATES Douglas L. Goodman RCE 28500 Date EXHIBIT 'B' INLAND CENTER DRIVE I i I N83 33'31"E 29.29' CONVEYED TO CAL-TRANS -P-ER- I INSTRUMENT N0. o^ NO. 2006-718940 NO. B. 1 NO. 1 j ! ! 20.9' � � N83'331E 491704 0.45'_ J S� �1- j PARCEL '1� .415- I 32.17' I m j t v 9016'23"W l 6 4 r I ; � In z S50'21 '590E 3� APN 0171-1-=222-26APN �I 1 , 411¢ 0141- N 1 /539 38 01 "W 222-24 o I PARCEL z 1 P.O.B. 4S NN 25' ( NO. 2 T.P.0.6. i.2NN 6317'04" NO. 2 28.22 2.13' I N ALLEY N391' 4"E S39'17'040W S28'11'45"E 1 1 it Q I i APN 0141-222-15 10 I i I vi , 1 i V I I 1 i I I PARCEL 1 OWNER: ACAA LP AREA: 281 SQUARE FEET PARCEL 2 OWNER: CITY OF SAN BERNARDINO AREA: 281 SQUARE FEET LAND EXCHANGE PARCEL DESCRIPTIONS SAN BERNARDINO, CALIFORNIA FEBRUARY, 2018 1 SCALE: 1"=40'