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Purchase Agreement between OCFCD and City of Orange
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(CL 11.01.21)
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (“Agreement”) is entered into this _____day of___________, 2022, (“Effective Date”) by and between the Orange County Flood Control District, a public body corporate and politic (hereinafter referred to as “ District”), and City of Orange, a Municipal Corporation, (hereinafter referred to as “Buyer”). District and Buyer are sometimes individually referenced to herein as “Party” and collectively as “Parties.”
R E C I T A L S
A. WHEREAS, District owns those certain flood control properties located in the City of Orange, CA in the vicinity of the intersection of W. Chapman Avenue and S. Anita Drive commonly known as the Santa Ana River District Facility No. E01, as depicted on the location map attached hereto as Attachment A and by this reference made a part hereof (the “Property”) .
B. WHEREAS, Buyer has an existing easement over a portion of the Property (the “ Old Easement”) and Buyer desires to quitclaim its Old Easement to District and acquire a new permanent easement located elsewhere on the Property, as described in Exhibit A and depicted in Exhibit B of the Easement Deed form inAttachment B attached hereto and by this reference made a part hereof (“Easement”), in order to construct, operate and maintain a PFAS extraction facility to be installed pursuant to plans approved via County of Orange OC Public Works encroachment permit number FE21-0065.
C. WHEREAS Buyer also desires to acquire a 12-month Temporary Construction Easement (“TCE”) to allow for adequate yard storage area and access for hauling and delivery during construction, as described in Exhibit A and depicted in Exhibit B of the TCE form in Attachment C attached hereto and by this reference made a part hereof.
D. WHEREAS Buyer also desires to acquire a permanent non-exclusive subsurface easement (“Subsurface Easement ”) on the Property as described in Exhibit A and depicted in Exhibit B of the Subsurface Easement form in Attachment D attached hereto and by this reference made a part hereof, in order to perfect Buyer’s property rights for an existing, installed underground water line that services surrounding properties and to enable Buyer to add a storm drain line extension which serves the PFAS extraction facility that will connect to Buyer’s existing storm drain line at or near Chapman Ave.
E. WHEREAS, District is willing to convey the aforementioned Easement, TCE and Subsurface Easement to Buyer, all subject to existing easements of record and a reservation of District rights pursuant to the California uncodified Water Code, Act 5682, section 2, also referred to as Water Code App. sections 36-1 et seq. along with access easements from -2-
Purchase Agreement between OCFCD and City of Orange
____________
(CL 11.01.21)
the County of Orange (“County”), in exchange for Buyer’s quitclaim of its interest in the Old Easement in accordance with the terms herein, by executing a Quitclaim Deed substantially in the form as Attachment E attached hereto and by this reference made a part hereof.
A G R E E M E N T
NOW, THEREFORE, in consideration of the Recitals above, District agrees to sell, and Buyer agrees to purchase the New Easement upon the following terms and conditions:
1. INCORPORATION OF RECITALS.
The above Recitals are incorporated herein by this reference.
2. PURCHASE PRICE.
Purchase Price. Buyer agrees to pay District the net sum of Thirty-One Thousand, Five Hundred and Sixty Four Dollars ($31,564) (the “Net Purchase Price”) for the New Easement, the Subsurface Easement and TCE, as calculated below:
New Easement appraised value $70,560
Value of the TCE + 3,780
Value of the Haul Route + 2,310
Value of the Subsurface Easement + 9,794
Less Value of the Old Easement to be quitclaimed -$54,880 = Net Purchase price $31,564
2.1 Agreement and Conveyance Documents.
a. Within five (5) days after the Effective Date, Buyer shall provide District with a check made payable to Orange County Flood Control District for the sum of the Net Purchase Price plus an administrative transaction payment of $5,000 which is a non-refundable transaction charge, and the Buyer-executed Easement Deed, Subsurface Easement, TCE and Quitclaim Deed, substantially in the forms attached here to Attachments B, C, D and E.
b. As soon as possible after the receipt of the items listed in subsection (a) immediately above, District shall provide Buyer a fully executed copy of this Agreement, the District-executed TCE, and the District-executed Subsurface Easement substantially in the form attached hereto as Attachment C and E. c. Within five (5) business days of closure of all related County of Orange OC Public Works encroachment permits associated with Buyer’s completion of the PFAS Extraction Facility, District shall furnish to Buyer the recorded Easement Deed and Quitclaim Deed, each substantially in the forms attached hereto as -3-
Purchase Agreement between OCFCD and City of Orange
____________
(CL 11.01.21)
Attachments B and D respectively, with recordation of the Easement Deed occurring prior to the Quitclaim Deed.
d. Upon the written request from a District representative, Buyer shall furnish to District post-construction as-builts and documentation that the Property underlying the Easement is free and clear from any Stop Notices and Mechanic’s Liens.
3. AS IS.
Buyer is purchasing the Easement in the Property in its existing condition, "AS-IS, WHERE-IS, WITH ALL FAULTS," subject to all existing easements, encumbrances, and physical characteristics and upon the recordation of the Easement Deed has made or has waived all inspections and investigations of the Property and its vicinity which Buyer believes are necessary to protect its own interest in, and Buyer’s contemplated use of, the Property. Buyer acknowledges neither District nor any County employees, agents or representative have made any representations, warranties or agreements to or with Buyer on behalf of District as to any matters concerning the Property, access, present use thereof, the availability of utilities and/or the cost of utilities or the suitability of Buyer’s intended use of the Easement.
________________
Buyer's Initials
4. ACCOMODATION OF EXISTING AND FUTURE EASEMENTS OR USE AGREEMENTS.
Buyer is aware and consents to make accommodation for any recorded or unrecorded, known or unknown easements or use agreements affecting the Property and/or the Easement, and agrees to the District exercising its reserved surface, subsurface and aerial rights on and over the Property and/or the Easement, including the District’s right to grant future non-exclusive access easements over the surface of the Property or portions thereof, to the extent that is does not interfere with the Buyer’s Easement described herein.
5. BUYER COSTS.
Except as may otherwise be provided in this Agreement, Buyer shall pay all costs in connection with the purchase of the Easement, the TCE, Quitclaim, Subsurface Easement and any construction and/or demolition required therefor. Such costs may include, but shall not be limited to, the Purchase Price, title insurance, documentary transfer tax, possessory interest tax, recording fees, and preliminary change of ownership fees, and permits.
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Purchase Agreement between OCFCD and City of Orange
____________
(CL 11.01.21)
Buyer shall also promptly, at its sole cost and expense, repair or replace to their condition prior to damage or destruction, any District or County facilities, equipment or improvements that are damaged or destroyed by Buyer directed, conducted or sponsored activities under this Agreement. If Buyer fails to perform any such repair or restoration within thirty (30) days following written notice to the Buyer, or as such repair or restoration period may be extended in writing by District, District may make the necessary repair or restoration and the cost thereof, including but not limited to the cost of labor, materials, and equipment and a fifteen percent (15%) administration fee of such costs, shall be paid by Buyer within ten (10) days of invoice by the District. A Party’s election to self-perform corrective work under this provision shall not bar that Party from availing itself of other remedies available under law, equity or contract, including other remedies made available by this Agreement.
6. PERMITS AND LICENSES.
Buyer shall be required, at Buyer’s sole cost and expense, to obtain and maintain compliance with any and all governmental and/or regulatory approvals, clearances, permits and /or licenses which may be required in connection with the purchase of the Easement, TCE and Subsurface Easement and /or construction of the PFAS Extraction Facility and Subsurface Easement in, on, over, or under the Property or portions thereof. No approvals or consents given by District as a Party to this Agreement, shall be deemed approval as to compliance or conformance with applicable governmental codes, laws, rules or regulations Buyer agrees to consult with District representatives throughout the application process to obtain any/all permits or approvals, regulatory or otherwise, required for the construction, operation and maintenance of the Buyer’s construction and operations on the Property. If any such permit contains conditions that obligate District or County after construction is completed, Buyer shall obtain OC Public Works Director or designee prior review and written approval prior to agreeing to such conditions.
7. ASSIGNMENT.
Neither Party may assign this Agreement or its rights and obligations hereunder without the prior written consent of the other Party.
8. TIME OF THE ESSENCE.
Time is of the essence with respect to each of the terms, covenants, and conditions of this Agreement.
9. TERMINATION.
This Agreement shall commence on the Effective Date and be in effect for up to five (5) years, terminating upon recordation of Subsurface Easement Deed, Easement Deed and Quitclaim Deed in accordance with the terms herein, unless earlier terminated by either Party giving the other Party written notice of its intention to so terminate at least thirty (30) days prior to initiation of construction of the PFAS Extraction Facility, waterline or -5-
Purchase Agreement between OCFCD and City of Orange
____________
(CL 11.01.21)
storm drain line. In the event of such termination, all rights and responsibilities of the Parties hereunder shall cease, and the transaction shall be in all respects terminated without any liability from one Party to the other.
10. NOTICES.
All notices, documents, correspondence, and communications concerning this Agreement shall be directed as set forth below, or as the Parties may hereafter designate by giving three (3) days’ prior written notice. Any notice properly addressed shall be deemed received when (i) delivered personally from one to the other party or by messenger or courier thereof; (ii) forty-eight (48) hours after being mailed by the United States mailing, postage prepaid; (iii) on the date of the first attempted delivery by any nationally recognized overnight delivery/courier service which delivers to the noticed destination and provides proof of delivery to the sender; or (iv) twenty-four (24) hours after being sent via facsimile with transmission and receipt confirmed.
If to District: OCFCD
c/o CEO/Real Estate
RE: Anita PFAS Facility (Santa Ana River)
P.O. Box 4048
Santa Ana, CA 92702-4048
If to Buyer: City of Orange
c/o Public Works Water Division
300 E. Chapman
Orange, CA 92866
11. ENTIRE AGREEMENT, WAIVERS, AND AMENDMENTS.
This Agreement and its related County of Orange OC Public Works encroachment permit(s) when referenced herein, incorporate all of the terms and conditions mentioned herein, or incidental hereto, and supersede all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged. Any amendment or modification to this Agreement must be in writing and executed by Buyer and District.
12. ATTORNEY FEES.
If any action, proceeding, or arbitration arising out of or relating to this Agreement is commenced by either Party to this Agreement, each Party shall bear its own costs including all attorneys’ fees, costs, and expenses incurred in the action, proceeding, or arbitration. -6-
Purchase Agreement between OCFCD and City of Orange
____________
(CL 11.01.21)
13 BINDING EFFECT.
This Agreement shall be binding on and inure to the benefit of the Parties to this Agreement and their heirs, personal representatives, successors, and assigns.
14. GOVERNING LAW AND JURISDICTION.
This Agreement shall be construed in accordance with and be governed by the laws of the State of California, and each Party hereto consents to the jurisdiction of the courts of California, with venue in the County of Orange, for the purposes of any action to enforce or interpret this Agreement.
15. AUTHORITY TO SIGN.
Each person signing this Agreement on behalf of each Party hereto represents and warrants to the other Party that he/she has all requisite power and authority to execute and deliver this Agreement for such Party and that this Agreement, when so executed and delivered, will be a binding obligation of, and enforceable against, such Party in accordance with its terms.
16. CAPTIONS.
The captions in this Agreement are for convenience of reference only and do not affect the meaning, interpretation or construction of this Agreement.
17. BROKERAGE COMMISSION.
Buyer and District acknowledge that no broker’s commission, finder’s fee or other compensation is payable with regard to the transaction covered by this Agreement. Each Party shall defend and indemnify the other from any claims for commissions or fees arising from such Party’s contacts with real estate brokers or agents or persons.
18. EXHIBITS AND ATTACHMENTS.
This Agreement includes the following, which are attached hereto and made a part hereof:
Attachment A - Location Map
Attachment B - Easement Deed
Attachment C -TCE
Attachment D – Quitclaim Deed
Attachment E – Subsurface Easement Deed
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Purchase Agreement between OCFCD and City of Orange
____________
(CL 11.01.21)
IN WITNESS WHEREOF, the District and Buyer have entered into this Agreement as of the day and year date first above written.
District
ORANGE COUNTY FLOOD CONTROL
DISTRICT
By: _______________________________
APPROVED AS TO FORM:
Office of County Counsel
Orange County, California
By: __________________________
Date: __________________________
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Purchase Agreement between OCFCD and City of Orange
____________
(CL 11.01.21)
Buyer
City of Orange
By: _______________________________
Mark A. Murphy, Mayor
ATTEST:
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
Gary A. Sheatz, City Attorney
ATTACHMENT A TO PURCHASE AND SALE AGREEMENT
LOCATION MAP
ATTACHMENT B TO PURCHASE AND SALE AGREEMENT
EASEMENT DEED AND LEGAL DESCRIPTION
ATTACHMENT C TO PURCHASE AND SALE AGREEMENT
TCE AND LEGAL DESCRIPTION
ATTACHMENT D TO PURCHASE AND SALE AGREEMENT
SUBSURFACE EASMENT DEED AND LEGAL DESCRIPTION
ATTACHMENT E TO PURCHASE AND SALE AGREEMENT
QUTICLAIM DEED AND LEGAL DESCRIPTION