Loading...
HomeMy WebLinkAbout11/16/1999, C6 - APPROVAL OF PURCHASE OF REAL PROPERTY ON SOUTH HIGUERA STREET (FILIPPONI/DENBOW) council �°;;,,_� j agenda Report C6 C I T Y OF SAN LUIS OBISPO FROM: Ken Hampian,Assistant City Administrative Officer 1�00— John Moss, Utilities Director�J Prepared By: Neil Havlik,Natural Resources Manager,(, SUBJECT: APPROVAL OF PURCHASE OF REAL PROPERTY ON.SOUTH HIGUERA STREET (FILIPPONI/DENBOW) CAO RECOMMENDATION 1. Approve the Contingent Agreement for Purchase and Sale of approximately 74 acres of property along South Higuera Street with Herbert Filipponi and Jo Ann Denbow, with the following main provisions: A)purchase price to be $575,000, payable at close of escrow,plus associated expenses estimated at $15,000; B) retirement of two of the three existing development entitlements on the property; and C) the owner of the remaining private parcel having a requirement to consult with the City regarding the location, size, appearance, and other details of permitted residential development and/or other outbuildings on that parcel. 2. Appropriate$65,000 from the Open Space Impact Fee Fund to the project. DISCUSSION The Filipponi property consists of three parcels totaling 94 acres. The property lies along the easterly side of South Higuera Street, approximately one half mile south of the city limits of San Luis Obispo (see attached map). The property includes reaches of both San Luis Obispo Creek and East Fork of San Luis Obispo Creek, 30 acres of bottomland currently used for truck crops, and 45 acres of hill land lying between East Fork Creek and San Luis Obispo Creek The property has thus been attractive to the City for its potential for wetland, riparian and other aquatic habitat mitigation, as well as for its value to the Greenbelt. Over the past year City staff and Mr. Filippom and Ms. Denbow have come to agreement on purchase of a portion of the property, under Council direction in closed session. Main provisions of the agreement are set forth in the CAO recommendation; in addition, the City will have an access easement for maintenance purposes to its property on the access road to the retained property. Successful completion of the project is contingent upon County approval of a lot line adjustment, and on approval of the transaction by the granting agencies. At the present time we do not anticipate difficulties with either of these matters. FISCAL IMPACT Funding for the acquisition will come from two City and two State sources. The acquisition will be an important part of the Water Reuse Project, providing a site for many of the mitigations expected under that project, and therefore the Water Reuse project will contribute $175,000 to C6-1 Council Agenda Report—Purchase of Property on South Higuera Street Page 2 the acquisition. The Open Space Impact Fee Fund is a special fund which has collected fees from certain development projects within the City (chiefly the so-called "TIC" project at South Higuera Street and Tank Farm Road), and those funds are available for "nearby" open space acquisitions. The Filipponi property is a good fit for those funds, and it is therefore recommended that $65,000 be appropriated from that fund to the acquisition. This will leave approximately$20,000 still available in the fund. State funding sources include the Environmental Enhancement and Mitigation Program, $250,000, and the Habitat Conservation Fund, $100,000. Once acquired, the property will undergo several studies for in-stream, riparian habitat, and wetland enhancements, with actual improvements to go in soon after completion of the studies. These improvements would be funded primarily out of Water Reuse Project monies. The property would be patrolled by City Rangers, and would constitute an incremental increase in the scope of the Rangers' work program. Attachments: Property Map Contingent Purchase and Sale Agreement C6-2 CONTINGENT PURCHASE AND SALE AGREEMENT This CONTINGENT PURCHASE AND SALE AGREEMENT is entered into by and between the CITY OF SAN LUIS OBISPO ("Buyer"), a California Charter Municipal Corporation, and HERBERT FILIPPONI AND JO ANN DENBOW("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 has identified these lands as the San Luis Obispo Greenbelt; and WHEREAS,within said Greenbelt, Buyer seeks to preserve and conserve characteristics such as visual quality, wildlife habitat, healthy agricultural economy, and rural setting through a variety of techniques and programs, including purchase of land; and WHEREAS, Seller is owner of certain lands which lie within said Greenbelt, and which are of scenic, ecological, and agricultural value to the City of San Luis Obispo; 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, Seller wishes to protect the scenic character, natural environment, security and development of Seller's retained property that adjoins said land. NOW,THEREFORE,THE PARTIES HEREBY AGREE AS FOLLOWS: CITY OF SAN LUIS OBISPO hereby agrees to purchase, and HERBERT FILIPPONI AND JOANN DENBOW hereby agree to sell, all of Seller's right, title and interest in that certain real property in the County of San Luis Obispo, together with all easements, rights and appurtenances thereto (specifically including all water and mineral rights), described in Exhibit A attached hereto, subject to the terms and conditions of the Agreement. Said property is hereinafter referred to as the "Property" and generally depicted in Map Exhibit B attached hereto. 1. PURCHASE PRICE (a) The purchase price for the property is Five Hundred Seventy Five Thousand Dollars ($575,000.00), payable by cashier's check or wire transfer to Seller at dose of escrow. 2. CONVEYANCE 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. 3. CONDITIONS PRECEDENT FOR BENEFIT OF BUYER 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: (a) . Title Reoort. Buyer's approval of the preliminary title report for the Property (the "Preliminary Title Report"). ,l \evit e 0 ' n u Q II permanent open space II • J II ' � r Proposed Ac uisido 1 / 0 :u it JI twin wn dJolning r ctive a iculture J •,,�j P 200 1r 11 Hlguera St eet '. �I exit off Highway 1.01 north • Location Map for Filipponi Property 4. CONDITIONS PRECEDENT FOR BENEFIT OF SELLER Seller's obligation to sell the Property is expressly conditioned upon the satisfaction, deemed approval, or Seller's waiver of each of the following conditions: (a) Title Report. Seller's approval of the title to be conveyed to Buyer and the title to Seller's Retained Property after satisfaction of condition 3(e) above, provided that such approval shall not be unreasonably withheld. (b) Performance. Buyer's performance of all of the obligations which it is required to perform pursuant to this Agreement. 5. ESCROW (a) Escrow. Buyer and Seller will establish an escrow("Escrow")with Escrow Agent within ten (10) calendar days of the 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 Agreement and the standard conditions for acceptance of escrow,the terms of this Agreement and the standard conditions for acceptance of escrow,the terms of this Agreement shall control. (b) Closing Date. The dose of Escrow shall occur as soon as possible after a copy of this Agreement (executed by both Buyer and Seller) is deposited with the Escrow Holder, but in no event later than March 30,2000, unless extended by mutual agreement of the parties. (c) Costs. Buyer shall be responsible for all reasonable expenses associated with the lot line adjustment described in Paragraph 3(e)above, and shall pay all of same in timely manner. (d) 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 shall be bome equally between Buyer and Seller. All other fees and costs shall be allocated according to custom in San Luis Obispo County. 6. 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 tern 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. (c) Delivery of Property. Possession of the property shall be delivered by Seller to Buyer upon the dose of Escrow in an "AS IS -WHERE IS" condition and Seller makes no warranty with respect thereto. Seller may remove, at Seller's expense, prior to the Close of Escrow all personal property and trade fixtures on the property. (d) Leoal Actions. Each of the parties represents and warrants to the other that as of the Close of Escrow there are no actions, suits, or legal proceedings related to the ownership, use, operation or sale of the Property and that such party has not received any notice that any such actions are pending or threatened. C6-6 (b) Buyer shall have ten (10) calendar days after the receipt of the Preliminary Title Report and copies of all documents referenced therein, to give Seller and Escrow Holder written notice of Buyer's disapproval of any specific title exception(other than an exception to be removed at the close). Buyer shall have ten (10) calendar days after receipt of any Supplemental Report to similarly disapprove any new title exception. The Preliminary Title Report and such Supplemental Reports, if any, shall be deemed approved as to all items not disapproved by buyer within the 10 calendar day period to disapprove the same. (c) Inspection and Approval of Prooerty. Buyer's inspection and approval of the Property and all improvements thereon. Buyer shall have thirty (30) calendar days from the execution of this Agreement to give Seller and Escrow Holder written notice of Buyer's disapproval of any specific condition of the Property. The condition of the Property shall be deemed approved if not disapproved by Buyer within such 30 calendar day period. Buyer may at Buyer's option and expense obtain a noise study, a soils investigation, a Phase I or Phase II environmental report or any other investigation that the Buyer deems necessary concerning the physical condition of the property, provided that the closing shall not be extended thereby without Seller's consent. 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 their own cost and risk, for any purposes relating to Buyer's conditions. Buyer shall indemnify and defend Seller against and hold Seller harmless fromall 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 negligence or willful acts of Seller. In the event of any claim of lien for materials supplied, or labor or professional services performed on behalf or at the request of Buyer, Buyer shall promptly satisfy and discharge such lien at its sole cost and expense upon demand therefore by Seller. Buyer shall repair any and all damages to the property caused by any such tests and inspections. Any entry onto the Property by Buyer or its agents, or authorized representatives shall be at reasonable times. The provisions of this Section shall survive the Close of Escrow. (d) Approval by Granting Agencies. Approval of the expenditures by the two State granting agencies, in accordance with their regulations. The agencies and grant amounts are: California Department of Parks and Recreation,$100,000 California Department of Transportation (Caltrans), $250,000 (e) Lot Line Adjustment and Certificates of Compliance. Approval by the County of San Luis Obispo of a lot line adjustment creating a parcel of 74 acres, more or less, which parcel shall be the property to be conveyed to Buyer at the dose of escrow under this Agreement. Said parcel to be conveyed shall cavy with it two (2) certificates of compliance, leaving one (1) certificate of compliance associated with Seller's retained property. (f) Buyer's Disapproval and Election. Buyer shall have ten (10)calendar days after giving its notice of disapproval of either title under subparagraph (a), or the condition of the property under subparagraph (c); to elect in writing given to Seller and Escrow Holder to (i) terminate its obligations under this Agreement, or (ii) waive its objections, or (iii) elect to correct the subject or objection, in which case Seller will provide reasonable assistance to Buyer to cure the same, provided that Seller is not obligated to cure such defect or bear any expense thereby. The close of escrow shall not be extended by reason of such disapproval or the period to cure, if any, without Seller's consent. Notwithstanding the foregoing, if Buyer elects to terminate its obligations under this Agreement, such election shall be of no force of effect if Seller is able to remove or cure the defect disapproved by Buyer at the Closing. C6-5- reference only and shall not be deemed to define or limit the scope or intent of any of the terms, convenants, 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 nonprevailing party all reasonable attorney fees and costs. (c) Survival. All of the terms, provisions, representations,warranties,and covenants of the parties under this Agreement shall survive the Close of Escrow and shall not be merged in the Deed or other documents. (d) 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. (e) Governing Law. This Agreement shall be governed and construed in accordance with California law. (f) Time of Essence. Time is of the essence in this Agreement. (g) Offer and Acceptance. This Agreement shall be of no force or effect whatsoever until signed by authorized representatives of both Buyer and Seller. (h) Exhibits. A. Legal Description- 74 acres,more or less,and maintenance access easement B. Map "Seller" HERBERT FILIPPONI J ANN DENBOW Date: 8-/'3 "9 9 Date: g' "Bwer" CITY OF SAN LUIS OBISPO by: ALLEN K. SETTLE, MAYOR Date: ATTEST: APPROVED AS TO FORM: ,a Lee Price, CMC Jo en City Clerk Ci Atto ey C6-8 (e) Brokers. Buyer and Seller each represent to the other that each knows of no claim for broker's or finder's fees or other commissions in connection with this transaction. If any broker or finder asserts a claim for a commission or finder's 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. (f) Requirement to Meet and Confer Regarding Certain Improvements to Seller's Retained Property. Buyer and Seller agree that Seller retains the right to construct a single family residence on the retained property, together with outbuildings consistent with the zoning designation of the property as of the date of Close of Escrow, and that such right is under the jurisdiction of the County of San Luis Obispo. Seller agrees, however, that any such construction shall also be subject to the reasonable review of Buyer, represented by its Community Development Director, as to location, general size, appearance, and configuration of buildings, and other reasonable matters of review. Buyer and Seller agree to meet and confer in good faith to jointly review plans for such construction by Seller prior to the time of submittal of such plans to the County of San Luis Obispo, with the mutually agreed goal of minimizing the visual impact of the development and preserving the rural character of the area. Buyer agrees that it will not unreasonably or arbitrarily withhold comment, and Seller agrees that it will give good faith consideration to such comment, and that such comment shall be reflected in submittals to the County of San Luis Obispo. (g) Agricultural leases. The two existing agricultural leases on the Property are permitted to continue to the.end of their existing terms (December 31, 1999), at which time said leases will terminate. The agricultural tenants, however, shall have the right to harvest their crops. (h) Use of Groundwater. Seller reserves the right to install a well or wells for irrigation and domestic purposes on his retained property. Seller agrees, however, that groundwater produced from such well or wells shall only be used on the retained property and shall not be exported for any purpose. (i) Maintenance Access Easement. Buyer is hereby granted a non-exclusive easement to use the road to Seller's retained property for emergency and maintenance access by employees or agents of Buyer to Buyer's property. Such road shall not be used by the general public for access to Buyer's property for any purpose. Buyer shall pay for any damage caused by its use of said road. 7. 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: Herbert Filipponi 2050 Southwood Drive San Luis Obispo, CA 93401 Telephone (805)543-4959 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. 8. 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 C6-7 Exhibit B Map (To be provided prior to close of escrow) C6-10 `1 1 Exhibit A Legal Description (To be.provided prior to close of escrow) C6=9