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HomeMy WebLinkAbout02/01/2000, 3 - APPROVAL OF OPTION TO PURCHASE REAL PROPERTY AT THE END OF ROYAL WAY FROM JACK AND PAT FOSTER council j acEnaa Report °®N C I TY O F SAN LU I S O B I S P O FROM: Ken Hampian, Assistant City Administrative OfficerF40--_ Prepared By: Neil Havlik,Natural Resources Manager SUBJECT: APPROVAL OF OPTION TO PURCHASE REAL PROPERTY AT THE END OF ROYAL WAY FROM JACK AND PAT FOSTER CAO RECOMMENDATION 1. Approve a one-year, $20,000, exclusive option agreement with Jack and Pat Foster, for the purchase of 154 acres of open space in three existing lots at a purchase price of $1,150,000, subject to certain financial arrangements. 2. Approve the advancement of the$20,000 option payment from the second year appropriation for open space acquisition in the 1999-2001 Financial Plan. DISCUSSION Background The 197-acre Foster property has for a number of years been subdivided into four parcels of 40 acres, 43 acres, 57 acres and 57 acres,respectively(Attachment 1). Although once within the City limits, the property was de-annexed in the 1980's and the County of San Luis Obispo approved the four-parcel rural subdivision. Each parcel is improved with infrastructure and only requires building permits to develop. Almost two years ago, the Fosters approached the City of San Luis Obispo regarding the potential sale of the property to the City. The Fosters were looking for an income stream, rather than a large amount of cash. Therefore, the request from the Fosters at that time was for a purchase price of$1.5 million dollars for the four parcels, structured in a fashion that would generate a tax-free interest to the Fosters for a period of 20 years with the principal due at the end of that term. At the time of that proposal (4/98), City staff were not able to identify potential funding sources that could generate the funds needed for the project. For that reason,the matter was held in abeyance, although staff continued to seek potential funding sources to try to make the transaction happen. In August of 1999, staff was able to identify several potential funding sources, which could assist in the acquisition of this property. Staff therefore contacted the Fosters and inquired as to their continued interest in the possibility of sale. We received an affirmative response; however, it was noted that one of the parcels was in escrow to a private party(and has since sold). This particular parcel (parcel 1 on the map) has minimal impact on the remaining properties and would allow purchase of the remaining three parcels at a reduced price overall. Council Agenda Report—Approval of Option to Purchase Real Property Page 2 In discussions with the Fosters, the following points emerged. • The Fosters are willing to accept a sale price of$1,150,000 for the three(3)parcels. • The Fosters would like the transaction structured in such a way that they would, in effect, loan that sum of money to the City of San Luis Obispo (or other appropriate entity) for a term of 20 years and be able to obtain a yield of 6%interest tax-free. • Recognizing that the City would need time to put the transaction together, for$20,000 the Fosters are willing to enter into an exclusive option agreement for one year. This sum would be considered part of the purchase price if the option were to be exercised within six months, and half of the sum(i.e.,.$10,000)would be considered part of the purchase price if the option were to be exercised between the seventh and twelfth month of the option period. Importance of the Property The Foster property is a highly visible property in the Irish Hills,west of the City of San Luis Obispo. There have been two major projects on either side of the Foster property in the past three years that highlight the importance of the site. The Prefumo Homes dedication of 360 acres is adjacent to the Foster property on the northwest and the 184-acre DeVaul property dedication lies to the southeast(Attachment 2). Both of these properties have the same westerly boundaries as the Foster property,that being an old rancho line of many decades standing. Acquisition of the Foster property would consolidate these two holdings into a single large holding totaling some 700 acres. The area consists of serpentine chaparral and woodland with numerous rare plant species, excellent quality of wildlife habitat and a perennial stream(Froom Creek),known to contain spawning habitat for the Southern steelhead. It would provide the opportunity for continuous trail access from planned entry points on the DeVaul and Prefumo Homes project sites. It would enable the establishment of a comprehensive trail system, offering fine views of the Los Osos Valley,the Morros, the San Lucia Mountains, and much of the City of San Luis Obispo as well as a remote trail experience in quality habitat with only localized alteration by human activity. Assembling the Funding Package Acquisition of the Foster property is likely to be one of the most challenging projects yet undertaken by the City's Natural Resource Protection Program. This is because of(1)the cost of the property, which has existing entitlements and improvements in place, basically needing only building permits to develop; (2)the need to assemble funding from a variety of sources; and (3) the Fosters' desire to structure the transaction in a form that will provide a tax-exempt income stream to them. The continually improving real estate market has also made the parcels more attractive, with numerous private parties expressing an interest in them. The project offers many potential enhancements or improvements to the preservation of the Irish Hills area, with its numerous rare plants and wildlife habitat qualities as well as recreational features. Consequently staff feels that it is likely that funding from a variety of State and private 3-2 Council Agenda Report—Approval of Option to Purchase Real Property Page 3 sources, along with City funds, can be assembled into a viable purchase package for the property. City funds would come from the General Fund allocation for open space (with the possibility that a portion of the funds could come from the utility enterprise for a needed site for an emergency water storage reservoir). A possible funding scenario is outlined below: • City of San Luis Obispo funds $250,000 • Wildlife Conservation Board $250,000 • State Coastal Conservancy $250,000 • The Nature Conservancy(Packard Foundation) $300,000 • State Habitat Conservation Fund $100,000 • Total $1,150,000 Contacts have been made with the listed agencies regarding the possibility of participation in this project and response has been positive. However,the agencies are awaiting more detailed information. The Need for an Option Agreement Putting this transaction together will require significant energy, effort, commitment and creativity,both for obtaining the purchase monies and structuring the transaction to provide the income stream desired by the Fosters. Recognizing this,the Fosters have agreed to a one-year exclusive option agreement, during which time the City can raise acquisition funds and identify a satisfactory transaction structure. An option agreement is also needed because it does not appear that the property will remain available and unsold over the next year, given the current real estate market. FISCAL IMPACT Because of the need to allocate all of the City's 1999-00 open space allocation for the Morganti acquisition,the $20,000 option payment will need to be advanced from the 2000-01 open space budget, leaving$180,000 for other projects. The balance of General Fund support needed (if any)to complete the transaction will depend upon the level of success we have in obtaining grant funds. Staff is confident that grant funds will be reasonably in line with the amounts outlined above and will be well in excess of the Council's "1 to 1"General Fund-to-grant leveraging requirement. As a practical matter, it is unlikely that we will be able to complete the transaction within six months; therefore, $10,000 of the option payment will probably not be applied to the purchase price. Staff feels this is reasonable, since the Fosters will be taking the property off the market for a year, and foregoing any income from sale during that time. 3-3 Council Agenda Report—Approval of Option to Purchase Real Property Page 4 ALTERNATIVE The Council could decide not to approve the option agreement. This is not recommended, as it would be tantamount to abandoning the entire effort. One of the parcels has sold within the past month and the Fosters report that there has been significantly increased interest in the other parcels as well. The option agreement will give the City up to a year to put the transaction together at a probable cost of only about one percent of the purchase price (the $10,000). We are confident that in this time we will be able to assemble the needed funds,and with the help of financial consultants, will be able to structure a transaction that will successfully meet both the City's and the Fosters' needs. Attachments: 1. Property Map 2. Vicinity Map 3. Option Agreement 3-4 Attachment 1 �s I OJ OSE'y odd S 4•:° I5 E i 924.36 (" \d 5-iB9 125.64 .� , 57f87 53 ( �) o 23 Ie07 rp N Mit a ' ✓ Is _ re Nitbt y \h0 ' PLO 300N o 1 2. i o ; a a� aa-MAC. 4265 AC. �+ . 300/ O h ...� 240 Z 4. 3. C 24 /. o � a 56.79AC. v. 57.13 AC. TR. 1053 TR.1626 TR. 1053, R.M. 8K 14,PCS 15. TR. 1626, R.M. BK.157 PG.69. 3-5 0/4 yon / 47476\�,� \ / /- '•\ .\ / / - �\ - � _ /,/ ' Do _ N. .-��� \• � may_ _ \v I- ;-.•�.. ,`.�. .L00,� \'.`�'� �, Com\ _3�(� �� IN, .��r•\ ( - \ 77 tr - — -------��— — — -- k JLC .. \r.. )Field ' ti \` r cCb ;i :il� �- \...; --^^.•_. J`� 1^1��.. /' ^�N..�BM Sch airer (Park •. Ix \l Golf `, 4�� �•. ,, Prefumo Creek Homes property I ���� ' �i4�latPl:�, Laguna v. \����`. \�1898 \ ( �•�• \\' \rJ — • ` �v��•••�•�• `\•��. ,.� '; \'/033:NN _�f`r'y.•v.�\ �� •-\`, \ i I� �i� \ �Q � �� �l Foster Property� / =�r�✓" \�� �/^�, (.'• �� ''� �� `�1� ��\ 'tee j\f_ .n e��'`\I ij} rip /.. _� � �j 69l �� �� �•J� rd 10.0 .. —_ 1\J, �. '.'/-� e�'(•; ..moi .•�,`:, •�`✓, ..—` AJ i/l ��. ..,:. � :'IVA %. 00- %v - 0J-'' _ .f;�;i-•. .` r , i ��.� rJ_- V. _ �. � JEEP =-r. •` =�•�: _ - :•';`=�.. - i, %/�� V,_ :S CITY OF SAN LUIS OBISPO GREENBELT PROGRAM Jack and Pat Foster Property lily = 1600' Atta&trent 2 Attachment 3 AGREEMENT OF OPTION FOR PURCHASE AND SALE OF REAL PROPERTY This AGREEMENT OF OPTION FOR PURCHASE AND SALE OF REAL PROPERTY is entered into by and between the CITY OF SAN LUIS OBISPO ("Buyer"), a California Charter Municipal Corporation, and JACK SLOAN FOSTER AND CHARLOTTE PATRICIA FOSTER ("Seller"), pursuant to the following RECITALS WHEREAS, Buyer is a California charter Municipal Corporation; and WHEREAS, Buyer, acting through its City Council and through adopted public procedures, has determined that certain lands surrounding the city of San Luis Obispo are important to the scenic character, healthy natural environment, and economic and social well being of the community and its citizens; and WHEREAS, Buyer seeks to preserve and conserve characteristics such as visual quality, wildlife habitat, and other community attributes where appropriate .surrounding the City; and WHEREAS, Seller is owner of certain lands adjacent to the City which are of scenic and ecological value to the City of San Luis Obispo; and WHEREAS, Seller wishes to preserve, protect and restore the scenic and ecological values which exist or may exist on the Property, and WHEREAS, the purchase of said land in the judgment of Buyer would act to preserve the values indicated above and serve an important municipal purpose; and WHEREAS, both Buyer and Seller recognize that time will be required to secure the funds necessary for the transaction, and for other matters related thereto. NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. OPTION AND OPTION TERM. Seller, for valuable consideration, hereby grants to Buyer an exclusive Option to purchase the Property identified as San Luis Obispo County APNs 067-221-034, 067-221- 035, and 067-221-036 and commonly referred to as Parcels 2, 3, and 4 of Tract 1626 in the County of San Luis Obispo, (shown on Exhibit A attached hereto) totaling approximately 154 acres ("the Property"). Buyer and Seller agree that the term of this Option shall commence on February 1, 2000, and continue for ONE YEAR, to January 31, 2001. Buyer may exercise the Option at any time within that period by sending written notice to Seller. ' 3-7 2. OPTION PAYMENT; RETURN OF OPTION PAYMENT. (a) In consideration of the Option and Option Term described above, Buyer shall pay Seller the sum of twenty thousand dollars ($20,000) as an Option Payment. This payment shall not be refundable. If the Option is exercised on or before August 1, 2000, the full Option Payment shall apply to the purchase price. If the option is exercised at any time between August 2, 2000 and January 31, 2001, one-half of the Option Payment shall apply to the purchase price. (b) In the event that Seller is unable to deliver Gear title to the Property to Buyer, or in the event that hazardous materials are found to exist on the site such that completion of the Purchase and close of escrow or extension thereof as described herein cannot take place, then Seller shall refund the full Option payment to Buyer. 3. PURCHASE PRICE (a) If and when the Option is exercised, the total purchase price for the property shall be $1,150,000.00, payable as described in Section (b) below. (b) Seller desires to receive a secure cash flow from the sale of the property, generating a tax-exempt income equal to six percent (6%) of the purchase price less the Option Payment. The parties agree to use their best efforts to establish a legal mechanism for such income as a part of this transaction. If the parties are unable to do so, Seller shall have no obligation to complete the transaction. 4. CONVEYANCE Title to the Property shall be conveyed by Grant Deed and shall be insured by a CLTA (or at Buyer's election, an ALTA) owners' policy of title insurance in the amount of the purchase price, showing title vested in Buyer, subject only to those exceptions listed in the Preliminary Title Report and/or Supplemental Report approved or deemed approved by Buyer. 5. CONDITIONS PRECEDENT FOR BENEFIT OF BUYER After exercise of the Option, Buyer's obligation to purchase the Property is expressly conditioned upon the satisfaction, deemed approval, or Buyer's waiver of each of the following conditions, each of which is deemed exclusively for the benefit of Buyer: (a) Title Report. Buyer's approval of the exceptions to title set forth in a preliminary title report for the Property (the "Preliminary Title Report"). Buyer shall have thirty (30) days after the receipt of the Preliminary Title Report and copies of all documents referenced therein, to provide to Seller and Escrow Holder written notice of Buyer's disapproval of any specific title exception. Any title exception not so disapproved shall be deemed approved, 3-8 provided that if a Supplemental Title Report is issued showing any exception not shown in the Preliminary Title Report, Buyer shall have an additional ten (10) calendar days after receipt of such Supplemental Report to similarly disapprove any new title exception. If Buyer disapproves any title exception, Seller shall have no obligation to cure such disapproval (except that Seller shall be obligated to remove any liens) but Seller may elect, by written notice to Buyer within ten (10) calendar days after receipt by Seller of such notice of disapproval, to attempt to remove such disapproved items. If Seller is unable within a reasonable time to accomplish such cure or removal, or if Seller elects not to attempt to so cure or remove (which election shall be communicated to Buyer within ten (10) calendar days after receipt.by Seller of such notice of disapproval), then Buyer may elect to (i) terminate its obligations under this Agreement, (ii) waive its objections to such exception, or (iii) elect to correct any such disapproved exception itself, in which case Seller will provide reasonable assistance to Buyer to cure the same. (b) Inspection and Approval of Property and of Any Testing Thereon. Buyer's inspection and approval of the Property and all improvements thereon, including (at Buyer's option and expense), any surveys or studies deemed necessary in Buyer's sole judgement. Access to the property shall be given to Buyer, its agents and authorized representatives during normal business hours upon at least one (1) business day's notice to Seller, at Buyer's own cost and risk, for any purposes relating to Buyer's conditions. Buyer shall indemnify and defend Seller against and hold Seller harmless from all losses, costs, damages, liabilities, and expenses, including, without limitation, reasonable attorney fees arising out of Buyer's entry onto the Property or any activity thereon by Buyer or its agents, or authorized representatives prior to the Close of Escrow, except to the extent any such losses, costs, damages, liabilities, and expenses arise out of the gross negligence or willful acts of Seller. If Buyer discovers through its investigations any defects on the Property or improvements thereon which it disapproves of, Seller shall have no obligation to cure such disapproval (except that Seller shall be obligated to remove any liens) but Seller may elect, by written notice to Buyer within ten (10) calendar days after receipt by Seller of such notice of disapproval, to attempt to remove such disapproved items. If Seller is unable within a reasonable time to accomplish such cure or removal, or if Seller elects not to attempt to so cure or remove (which election shall be communicated to Buyer within ten (10) calendar days after receipt by Seller of such notice of disapproval), then Buyer may elect to (i) terminate its obligations under this Agreement, (ii) waive its objections to such exception, (iii) elect to correct any such disapproved exception itself, in which case Seller will provide reasonable assistance to Buyer to cure the same. The parties may also enter into additional negotiations, as may be mutually acceptable, concerning adjustment of the purchase price, allocation of risk, or contribution to the costs to cure or other matters, and the Escrow shall be extended for a reasonable time of effect such negotiations. 6. ESCROW (a) Escrow Holder. Buyer and Seller will establish an escrow ("Escrow") with Escrow Holder within ten (10) business days of execution of this Agreement, subject to the provisions of the standard conditions for acceptance of escrow and the terms and conditions in this Agreement, with a signed counterpart of this document to be delivered as escrow instructions to Escrow Holder. In the event of any conflict between the terms of this 3-9 Agreement and the standard conditions for acceptance of escrow, the terms of this Agreement shall control. The Escrow Holder shall be First American Title Insurance Company, 899 Pacific Street, San Luis Obispo, CA. 93449. (b) Prorations and Fees. (i) Real property taxes and rental income shall be prorated to the close of escrow. (ii) Seller shall pay (1) the documentary transfer tax, (2) the premium for a CLTA policy of title insurance, and (3) recording fees. If Buyer elects an ALTA policy of title insurance, Buyer shall pay the portion of the premium that exceeds the premium for a CLTA policy of title insurance. (iii) All Escrow fees and costs shall be allocated according to custom in San Luis Obispo County. (c) Closing Date. Escrow shall close within thirty (30) days of exercise of the Option by Buyer. 7. REPRESENTATIONS, WARRANTIES, AND AGREEMENTS (a) Authorized Representative. Buyer and Seller hereby represent and warrant to each other that the persons who sign this agreement and any other documents required to be executed by such party to perform its obligations hereunder, shall have all requisite power and authority to have entered into this Agreement, and that all authorizations required to be obtained by or on the part of such party to execute and perform this Agreement have been obtained. (b) Proof of Citizenship. Seller is not a foreign person as such term is used in Section 1445 of the Internal Revenue Code. Prior to the Close of Escrow, Seller shall deposit in Escrow a non-foreign affidavit as provided under said Section 1445. Failure to do so shall entitle Buyer to withhold from the purchase price such sums as are required by said Section 1445. (c) Delivery of Property. Possession of the Property shall be delivered by Seller to Buyer upon the close of Escrow. Seller may remove, at Seller's expense, prior to the Close of Escrow, all personal property and trade fixtures on the property, provided that the property is left in a safe, sound and usable condition. (d) Legal Actions. Seller represents and warrants to Buyer that there are no actions, suits, or legal proceedings related to the ownership, use, operation or sale of the Property to which Seller is a party nor has Seller received any notice that any such actions are pending or threatened. 3-10 (e) Seller's Knowledge of Environmental Conditions of the Property. To the best of Seller's knowledge, there are not now nor have there been any hazardous or toxic wastes (as said terms are defined in applicable Federal, State, or County laws or regulations) located on or within any portion of the property; nor have there been any enforcement, cleanup, removal or other governmental or regulatory actions instituted, contemplated, or threatened pursuant to any applicable Federal, State, or local laws or regulations relating to any hazardous materials and affecting the property; nor have there been any claims made or threatened by any third party against Seller or the property, relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any hazardous materials. (f) Extinguishment of Access Easement. The parties recognize that an easement for access to Parcels 3 and 4 crosses portions of another property owned by Seller, commonly called Lot 13 of Tract No. 1438 in the City of San Luis Obispo. Said easement is referred to as Easement "C",in the Tract Map for Tract 1438. The parties further recognize that an alternative access on the edge of said Lot 13 (referred to as Easement "B" in the Tract Map for Tract 1438) and on Parcel 2 is available to serve as the access to Parcels 2, 3, and 4. Therefore, the parties agree that, in the event of completion of the purchase of the property by Buyer, the parties shall cooperate to extinguish the access easement (Easement "C") on said Lot 13, and Buyer will exclusively utilize the alternative access on Easement "B" on said Lot 13 and on Parcel 2 for access to Parcels 2, 3, and 4. 8. NOTICES All notices, communications, consents, approvals and disapprovals required or permitted hereunder must be in writing and shall be delivered by personal delivery, facsimile, or deposited in the United States mail, postage prepaid and addressed as follows: TO BUYER: City of San Luis Obispo .Dr. Neil Havlik, Natural Resources Manager 990 Palm Street San Luis Obispo, CA 93401 Telephone (805) 781-7211 TO SELLER: Jack Sloan Foster and Charlotte Patricia Foster P. O. Box 1161 San Luis Obispo, CA. 93406 Telephone (805) 238-5033 The foregoing addresses may be changed by written notice. If served personally, or by facsimile, service shall be conclusively deemed made at the time of service. If served by mail, service shall be conclusively deemed made seventy-two (72) hours after deposit thereof in the United States mail. 9. BROKERS Buyer and Seller each represent to the other that it knows of no claim for broker's or finders fees or other commissions in connection with this transaction other than as provided in this 3-11 paragraph. In the event any other broker or finder asserts a claim for a commission or finders fee, the party through whom the broker or finder makes this claim shall indemnify the other party for any and all costs and expenses (including attorney's fees) incurred by the other party in defending the same. 10. SURVIVAL The warranties, representations, and agreements made in this Agreement shall survive the close of escrow. 11. MISCELLANEOUS (a) Entire Agreement. This Agreement, and the exhibits hereto, contains the entire agreement between the parties hereto. No modification or addition to any term or provision hereof shall be effective unless made in writing and signed by both parties hereto. The captions and headings in this Agreement are for reference only and shall not be deemed to define or limit the scope or intent of any of the terms,.covenants, conditions or agreements contained herein. (b) Attorneys' Fees. If litigation is commenced between the parties, the prevailing party in that litigation shall be entitled to recover from the non-prevailing party all reasonable attorney fees and costs. (c) Successors. This Agreement shall inure to the benefit of and shall be binding upon the parties to this Agreement and their respective heirs, successors, and assigns. (d) Governing Law. This Agreement shall be governed and construed in accordance with California law. (e) Time of Essence. Time is of the essence in this Agreement. (f) Offer and Acceptance. This Agreement shall be of no force or effect whatsoever until signed by authorized representatives of both Buyer and Seller. (g) Exhibits. Exhibit A. Map "Seller" .,./JACKOAN FOSTER CHARLOTTE PATRICIA FOS R Date: / i _',7 - 0 z7 3-12 "Buyer" CITY OF SAN LUIS OBISPO by: Date: ALLEN K. SETTLE, MAYOR ATTEST: APPROVED AS TO FORM: Lee Price, CMC Jo ens City Clerk City Atto ey 3-13 EXHIBIT A i 92x.36 5 4-:° 15� E Ocp 5-189 1215.64 .� a � Srf87 R 3 O 3 )IA07 Q N 0 �� •°u0�;hg` ^1` �0� ;:x.68 o i a� � saszAC. 4% 4265 AC. _ a� �grL 1 �e`oo/ Vii/ �i ' 'A134240057 h ^ � Nom• Z 1 3. m 24 1. 36 ° 35 o � a 5679AC. T 5/.13 AC. TR. 1053 TR.1626 TR. 1053,R.M. 8K 14,PGL 15. TR. 1626, R.M. 8K.15,PG.89. 3-14 AGENDA DA f E From: Don & Ellen Dollar<ddollar @ ccaccess.net> To: John Ewan <jewan@ci.san-luis-obispo.ca.us>, Jan Howell Marx <jmarx@ci.san-luis-obispo.ca.us>,Allen Settle <asettle@ci.san-luis-obispo.ca.us>, Dave Romero <dromero@ci.san-luis-obispo.ca.us>, Ken Schwartz<kschwartz@ci.san-luis-obispo.ca.us> Date: 2/1100 8:17AM Subject: Open Space- Foster Dear City Council, P-AFJ At tonight's City Council Meeting, please move forward on the FosterRNEYOpen Space purchase proposal.The great open spaces around town are KIORIG ❑POUCE C`:= really a great part of the SLO life. These open spaces improve the small T TEAM ❑REC DIR town quality of SLO. These open spaces are truly wonderful investments id �E ❑UTIL DIR in the future. We need to take advantage of great opportunities like the ❑PERS DIR Foster property when they come up. VtAAD6V1 L.I,E 44ATC'�nO f� Please approve the Foster Open Space purchase. Don Dollar 2357 Banderola Ct. SLO 781-0118 CC: Neil Havlik<nhavlik@ci.san-luis-obispo.ca.us>, Ken Hampian <khampian @ ci.san-luis-obispo.ca.us> RECEIVED FES 0 1 2000 SLO CITY COUNCIL