HomeMy WebLinkAbout2019-011 Via Business Center, LLCCITY OF ATASCADERO
CONTRACT NUMBER:
I C( - r l I
ASSESSOR PARCEL NO.: 028-341-021
PROJECT: Atascadero - Via Avenue Bridge Replacement
OWNER: Via Business Center, LLC
RIGHT OF WAY AGREEMENT
(WITH ESCROW INSTRUCTIONS)
THIS AGREEMENT is made and entered into by and between
Via Business Center, LLC, (hereinafter called "Grantor"), and
The City of Atascadero, a California municipal corporation, (hereinafter called "City").
An instrument in the form of an Easement Deed ("Deed") covering the property particularly described
therein ("Property"), has been executed concurrently with this Agreement and delivered to City
representatives.
In consideration of which, and other considerations hereinafter set forth, it is mutually agreed as follows:
1. The parties have herein set forth the whole of their agreement. The performance of this
Agreement constitutes the entire consideration for said document and shall relieve the City of all further
obligation or claims on this account, or on account of the location, grade or construction of the proposed
public improvement, except as stated in Paragraphs 2.E. and 2.17. below.
2. The City shall:
A. PAYMENT - Pay to the order of the Grantor the sum of $40,000 as consideration in full for the
Property, for the loss, replacement and moving of any improvements, and for entering into this Agreement.
Said sum shall be paid when title to the Property has vested in City free and clear of all liens, encumbrances,
assessments, easements and leases recorded or unrecorded, except for recorded public utility easements and
public right of way.
B. RECORDATION OF INSTRUMENT - Accept the Deed and cause the same to be recorded in
the office of the San Luis Obispo County Recorder at such time as when clear title can be conveyed.
C. MISCELLANEOUS COSTS - Pay any escrow, title insurance, and recording fees incurred in
this transaction.
D. CLEARANCE OF BONDS, ASSESSMENTS- OR DELINQUENT TAXES - Have the
authority to deduct and pay from the amount shown in Clause 2.A. above any amount necessary to satisfy
any bond demands and delinquent taxes due in any year except the year in which the Deed records, together
with penalties and interest thereon, and/or delinquent and unpaid non -delinquent assessments which have
become a lien as of the date of recordation of the Deed.
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E. CONSTRUCTION AND RESTORATION — Shall, upon completion of construction, generally
restore the temporary construction easement area(s) to a comparable or better condition than that which
existed prior to City's project construction, to the extent reasonably practical. Said restoration shall include
completion of curbs, two existing driveway aprons, asphalt, and vegetation, if any, to a generally
comparable condition as that which existed prior to City's construction. Additionally, City will install three
new driveway aprons along Grantor's Via Avenue property frontage as part of the Project construction, at
no expense to Grantor, in locations mutually agreed to in advance of entering into this Agreement. Said
driveway aprons will include a 20' driveway aligned with the existing driveway/access area on the east end
of the property (towards the creek), a 36' driveway apron, and a driveway apron at the existing driveway
location at Grantor's westerly property line. Grantor acknowledges that this westerly driveway apron will
only be improved to the property line and will not include improvements that extend beyond the property
line. Grantor will be responsible for any further improvements beyond the property line, at its own option
and expense. Driveway aprons installed by City will include conforming the aprons to smoothly mesh
with the grade of the new Via Avenue adjacent improvements and transition and alignment with the existing
driveway and sidewalk that continues westerly of the Project terminus. All work will be done in a manner
that ensures access is maintained for delivery trucks during construction with minimum delay. Utility
services will be maintained to Grantor's property throughout the construction duration.
F. INDEMNIFICATION - Indemnify and hold harmless Grantor from any and all claims, damages,
costs, judgments, or liability proximately caused by City or its officers, employees, or agents specifically
arising from City construction and restoration work on the Property.
3. The Grantor:
A. PAYMENT ON MORTGAGE OR DEED OF TRUST - Agrees that any or all monies payable
under this Agreement up to and including the total amount of the unpaid principal and interest on the note(s)
secured by mortgage(s) or deed(s) of trust, if any, and all other amounts due and payable in accordance
with the terms and conditions of said mortgage(s) or deed(s) of trust, shall upon demand(s) be made payable
to the mortgagee(s) or beneficiary(s) entitled thereunder. Grantor shall cooperate with the Escrow Officer
in obtaining lien clearance documents from any and all creditors holding liens against the Property.
B. LEASE INDEMNIFICATION - Warrants there are no oral or written leases on all or any portion
of the Property, or if there are such leases, Grantor agrees to hold the City harmless and reimburse City for
any and all of its losses and expenses occasioned by reason of any lease of said Property held by tenant of
Grantor.
C. PERMISSION TO ENTER - Hereby grants to the City, its agents and contractors, permission
to enter the Property prior to the close of escrow for the purposes of preparation for the construction of the
City's facilities, subject to all applicable terms and conditions contained in this Agreement and the
associated Deed.
D. TITLE INDEMNITY AND WARRANTY - In consideration of the City waiving the
requirements to clear any defects and imperfections in all matters of record title, the Grantor indemnifies
and holds the City harmless from any and all claims that other parties may make or assert on the title to the
Property. Grantor's obligation to indemnify the City shall not exceed the amount paid to the Grantor under
this Agreement. Grantor hereby represents and warrants that he/she/they are the sole vested owners of the
Property, holding all ownership and possessory rights, and are the authorized signatories to grant the rights
referenced in this Agreement without conflict or claims from other parties.
E. HAZARDOUS SUBSTANCES - Represents and warrants, to the best of Grantor's knowledge,
and after reasonable inquiry, the following:
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During Grantor's ownership of the Property, Grantor knows of no disposal, releases, or threatened
releases of hazardous substances on, from, or under the Property or Grantor's remaining adjacent property.
Grantor further represents and warrants that Grantor has no knowledge of disposal, release, or threatened
release of hazardous substances on, from, or under the Property, or Grantor's remaining adjacent property,
which may have occurred prior to Grantor's ownership.
There is no pending claim, lawsuit, agency proceeding, or any administrative challenge concerning
the presence or use of hazardous substances on or within the Property or Grantor's remaining adjacent
property.
Grantor has not used the Property, or Grantor's remaining adjacent property, for any industrial
operations that use hazardous substances. Grantor is not aware of any prior use of such property. Grantor
has not installed any underground storage tanks, above ground storage tanks, barrels, sumps, impoundments
or other containers used to contain hazardous substances on any part of the Property or Grantor's remaining
adjacent property. Grantors are not aware of any such prior installations. The purchase price of the Property
being acquired reflects the fair market value of the Property without the presence of contamination. If the
Property is found to be contaminated by the presence of hazardous substances which require mitigation
under Federal or State law, City may elect to recover its cleanup costs from those who caused or contributed
to the contamination.
4. The Parties agree:
A. ESCROW - At City's option, to open an escrow in accordance with this Agreement at an escrow
company of City's choice. Opening an escrow shall be at City's sole discretion and City may decide to
process this transaction without the use of an escrow agent. However, if an escrow agent is utilized, this
Agreement constitutes the joint escrow instructions of City and Grantor, and the 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.
If an escrow is utilized, as soon as possible after opening of escrow, City will deposit the executed
Deed by Grantor, with Certificate of Acceptance attached, with the escrow agent on Grantor's behalf. City
agrees to deposit the purchase price upon demand of escrow agent. City and Grantor agree to deposit with
escrow agent all additional instruments as may be necessary to complete this transaction. All funds received
in this escrow shall be deposited with other escrow funds in a general escrow fund 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 or wire transfer from such account.
Any taxes which have been paid by Grantor, prior to opening of this escrow, shall not be pro -rated
between City and Grantor, but Grantor shall have the sole right after close of escrow, to apply to the County
Tax Collector of said County for any refund of such taxes which may be due Grantor for the period after
City's acquisition.
i) ESCROW AGENT DIRECTIVES - Escrow Agent is authorized to, and shall:
a) Pay and charge Grantor for any unpaid delinquent taxes and/or any
penalties and interest thereon, and for any delinquent assessments or
bonds against that portion of Grantor's property subject to this
transaction as required to convey clear title.
b) Pay and charge City for any escrow fees, charges and costs payable under
Paragraph 2.C. of this Agreement;
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c) Disburse funds and deliver Deed when conditions of this escrow have been
fulfilled by City and Grantor.
d) Following recording of Deed from Grantor, if requested by City, provide City
with a CLTA Standard Coverage Policy of Title Insurance in the amount of
$40,000 property is vested in City, subject only to the following exceptions, and the
printed exceptions and stipulations in said policy:
1) Real Property Taxes for the fiscal year in which escrow closes;
2) Public utility easements and public rights of way;
3) Items No. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 of the preliminary title report issued by
First American Title Company, dated 6/27/18,
referenced as Order No 4001-5230812.
4) Other items that may be approved in writing by City in advance of the close of
escrow.
ii) CLOSE OF ESCROW - 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 hereby authorized.
B. JUDGMENT IN LIEU OF DEED - In the event Grantor does not deliver title in a reasonable
time under the terns of the Agreement, the City may file an action in eminent domain to pursue the
acquisition of the Property, and this Agreement shall constitute a stipulation which may be filed in said
proceedings as final and conclusive evidence of the total amount of damages for the taking, including all
of the items listed in Section 1260.230 of the Code of Civil Procedure, regarding said property rights.
C. ARTICLE HEADINGS - Article headings in this Agreement are for
convenience only and are not intended to be used in interpreting or construing the terns, covenants and
conditions of this Agreement.
D. COMPLETE UNDERSTANDING - This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions,
and preliminary agreements or understandings, written or oral. This Agreement may not be amended except
in writing by the parties hereto or their successors or assigns.
E. CITY COUNCIL APPROVAL - This Agreement is subject to and conditioned upon approval
by the Atascadero City Council. This Agreement is not binding upon the City until executed by the
appropriate City official(s) acting in their authorized capacity.
F. COUNTERPARTS - This Agreement may be executed in counterparts, each of which so
executed shall irrespective of the date of its execution and delivery be deemed an original, and all such
counterparts together shall constitute one and the same document.
G. ELECTRONIC AND FACSIMILE SIGNATURES — In the event that the parties hereto utilize
electronic or facsimile documents which include signatures, such documents shall be accepted as if they
bore original signatures provided that documents bearing ORIGINAL SIGNATURES are provided
following transmittal of the electronic or facsimile signature. Documents for recordation by the Clerk
Recorder must contain original signatures.
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H. SETTLEMENT PROPOSAL — This Agreement represents Grantor's settlement proposal and is
expressly subject to and contingent upon City's acceptance and approval. City execution of this Agreement
constitutes acceptance and approval by City. City shall not be bound to the terms and conditions herein
unless and until this Agreement has been approved and ratified by the City Council and has been executed
by the appropriate City official(s) acting in their authorized capacity.
No Obligation Other Than Those Set Forth Herein Will Be Recognized.
GRANTOR:
VIA BUSINESS CENTER, LLC
By: / ! I�GN l l lr�Ct�J✓ Date: LL,20L7
Mary Pz6icia Tharp
Managing Member
GRANTOR'S MAILING ADDRESS:
3000 Chico Road
Atascadero, CA 93422-1903
CITY OF ATASCADERO:
Rachelle Rickard
City Manager
MAILING ADDRESS OF CITY:
The City of Atascadero
Attn: Deputy Director of Public Works
6500 Palma Avenue
Atascadero, CA 93422
Date: q 1Z-.1 [
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