No preview available
HomeMy WebLinkAbout1992-314 9 10 11 12 13 14 1 2 3 4 5 6 RESOLUTION NO. 92-314 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF CANCELLATION OF LEASE AND GRANT OF FACADE EASEMENT BY AND BETWEEN MT. VIEW CEMETERY OF SAN BERNARDINO AND THE CITY OF SAN BERNARDINO. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor is hereby authorized and directed to 7 execute on behalf of said City a Cancellation of Lease and Grant 8 of Facade Easement by and between Mt. View Cemetery of San Bernardino and the City of San Berrardino. SECTION 2. The authorization to execute the above- referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (f.G) days of the passage of this resolution. I HEREBY CERTIFY that the foregoing resolution was duly 15 adopted by the Mayor and Common Council of the City of San 16 17 18 19 20 21 22 23 24 25 26 27 28 Bernardino at a reqular meeting thereof, held on the 3rd day of August , 1992, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x REILLY x HERNANDEZ x MAUDSLEY x MINOR x POPE-LUDLAM x MILLER x fJ~ 0("e<.L~ ~Clerk DABjses/Facade.res 1 July 27. 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF CANCELLATION OF LEASE AND GRANT OF FACADE EASEMENT BY AND BETWEEN MT. VIEW CEMETERY OF SAN BERNARDINO AND THE CITY OF SAN BERNARDINO. of ere foregoing \A J \!,':;t- resolution is hureby approved this _"0lb._ day , 1992. / ___ :I // ////~/.' / ::/~l"-' / W,' R. .HoLtomb, 'Mayor I ' City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN, City Attorney ~) DAB/sesjFacade.res 2 July 27, 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Approved per C of S Bdno Res 92-314 adopted 8/3/92) CANCELLATION OF LEASE AND GRANT OF FACADE EASEMENT THIS CANCELLATION OF LEASE AND GRANT OF FACADE EASEMENT made and entered into this day of , 1992, by and between Mt. View Cemetery of San Bernardino dlbla Mt. View , Cemetery, a California Corporation, hereinafter called "Grantor" and the City of San Bernardino, a Charter City of the State of California, hereinafter called "Grantee," WITNESSETH: WHEREAS, the parties entered into that certain lease of an office building located at the southwest corner of that parcel of land known as the Mountain View Cemetery, 302 E. Highland Avenue, San Bernardino, California, dated January 3, 1991, and WHEREAS, a great deal of time and materials were donated to restore said office building as a unique community asset, and WHEREAS, although nearly so, the restoration work is not yet complete, and WHEREAS, Grantor now desires to use said office building in conjunction with its other operations, and WHEREAS, Grantee is wi11ing"wal10w the "termination of the aforesaid lease as long as the ::ommuni ty is assured of the retention of this unique and histo:r"ical structure, NOW, THEREFORE, the parties hereto agree as follows: 1. Grantor is the owner of the land (the "Real Property") described in Attachment "A" which Peal Property is improved with a structure (the "Building"), more fully described in Attachment liB." III DAB/ses/Facade-3.agr 1 July 29" 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The Building is located in a high visibility location and with its improved facade is an important asset to the City of San Bernardino and its immediate neighborhood. The Grantor and the community desire to preserve the improved facade and exterior structure of the Bu.:ilding and further desire to provide for , necessary maintenance. 3. In consideration of the cancellation of the lease provided for above and the mutual covenants and restrictions hereinafter set forth and other good and valuable consideration, receipt of which is hereby acknowledged, Grantor hereby does grant, give, convey, bargain and sell unto Grantee, its successors and assigns, irrevocably forever, a Facade Easement, in perpetui ty, in and to the aforesaid Real Property, for the purposes of preserving the new Facade and accomplishing the other objectives set forth herein. 4. The terms of this Facade Easement are as follows: A. Grantors Covenants. In furtherance of the Facade Easement herein granted, Grantor covenants that: (I) Demolition. Grantor shall not demolish, remove or raze the Building or the Facade. (2) Alteration. Without the written permission of Grantee, executed by a duly authorized officer, which written permission or refusal to grant such permission, including a statement of reasons for refusal, shall be delivered to Grantor by Grantee within thirty (30) days of receipt of Grantor's written request for such approval, there shall be: (a) No partial demolition or removal of the Building; DAB/ses/Facade-3.agr 2 July 29. 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) No change in the Facade subject to the Facade Easement, including no alteration, partial removal, construction, remodeling or physical or structural change, or change in color or surfacing with respect to the appearance or construction of the Facade; , , (c) No addition to the Facade, including fences, awnings or signs; ( d) No expansion of the Building either horizontally or vertically; (e) No chemical cleaning or sandblasting of the Facade. (3) Maintenance. Grantor shall promptly perform all necessary maintenance on the Facade to preserve its appearance and structural soundness and to prevent its deterioration. Without limiting the foregoing, Grantor shall maintain the Building in accordance with all app.;.cable building and fire codes and shall keep the Building free of any violation of such codes. (4) Specification of Materials. In providing its written authorizations for work, Grantee may specify all materials, methods, cleaning substances and colors to be used in any such work. ( 5 ) Casualty. In the event the Facade of the building is damaged by explosion, fire, collision or any other casual ty of any type whatsoever ("Casualty"), Grantor shall restore the Facade of the Buildin7 to its condition immediately preceding such casualty, subject to the provisions of any mortgages or trust deeds then encumbering the Real Property concerning receipt and application of insurance proceeds. No DAB/ses/Facade-3.agr 3 July 29. 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 repairs or reconstruction of any type, other than emergency work to prevent further damage or to protect public safety, shall be undertaken by Grantor without the prior written approval of Grantee, which approval shall be given as provided in subparagraph 5(A)(2) above. , , (6) Inspection. Representatives of Grantee shall be permitted to inspect the Building at reasonable times upon reasonable notice for the purpose of determining conformance with this Facade Easement. (7) Insurance. Grantor shall maintain in force fire and liability insurance policies. The fire policy shall be adequate to provide for reconstruction of the Building. The liabili ty policy shall name the Grantee as a named additional insured and shall provide for at least ten (10) days prior notice of cancellation or reduction in coverage by the insurer to the Grantee. A certificate of the insurer so providing shall be delivered by Grantor to Grantee. Upon written request Grantee shall be provided a copy of said insurance policies. (8) Real Estate Taxes. Grantor shall promptly pay all real estate taxes assessed and levied against the Building and the Real Property on or prior to the due date, provided, however that Grantor may challenge any proposed levy of such taxes if Grantor complies with all requirements of law necessary to prevent the sale of the Real Property during the pendency of such challenge. (9) Indemni ty. Grantor shall indemnify, hold harmless and (upon request by Grantee) defend Grantee, its officers agents and employees for any liability, costs, attorneys' 4 DAB/ses/Facade-3.agr July 29. 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fees, judgments or expenses to Grantee resulting from actions or claims of any nature by Third parties arising from the defaults under this Facade Easement by Grantor, or arising out of the conveyance, ownership, possession, or exercise of rights under this Facade Easemen..t (including any such costs and expenses , incurred by Grantee in connection with preserving the validity or priori ty of this Facade Easement), excepting any such matters arising solely from the negligence of Grantee. (10) Mechanics Liens. Grantor shall keep the Real Property free from any mechanics liens. If any such liens are placed against the Real Property, Grantor shall promptly cause them to be released. (11) At no cost to Grantee, Grantor shall complete the currently unfinished improvements to the satisfaction of the Building Inspectors of the City of San Bernardino. B. Grantee's Remedies. In the event of a violation of any provision of this Facade Easement, in addition to any remedies now or hereafter provided by law, (1) Grantee may, following reasonable notice to Grantor, institute a suit for injunctive relief, specific performance, or damages, or (2) Representatives of Grantee may enter upon the Real Property to correct any such violation, and hold Grantor and Grantor's successors, heirs and assigns in title responsible for the cost thereof, and such cost, until repaid, shall constitute, and may be recorded by the Grantee as, a lien on the Real Property. III DAB/ses/Facade-3.agr 5 July 29. 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In the event Grantor is adjudicated to have violated any of Grantor's obligations herein, Grantor shall reimburse Grantee for any costs or expenses incurred in connection with the enforcement of its rights, including court costs and attorneys' fees. The exercise by Grantee,of one remedy hereunder shall not have the , effect of waiving any other remedy, and the failure to exercise any remedy shall not have the effect of waiving the use of such remedy at any other time. C. Grantor's Remedies. Grantor's sole remedy in the event of a failure by Grantee to perform any of its duties or responsibilities herein contained shall be, if such failure shall continue for ten ( 10) days after written notice thereof to Grantee, to institute a suit for injunctive relief or specific performance. Grantor hereby waives any claim or right for damages resulting from such failure, and expressly acknowledges that any such failure by Grantee shall in no way affect the validity of this Facade Easement or any of the other covenants contained herein. D. Assignability. Grantor agrees that Grantee may, at its discretion, and without prior notice to Grantor, convey and assign this Facade Easement to any entity authorized by California Civil Code ~815.3, or successor statute, to hold such easements. E. Duration. This Facade Easement shall be effective in perpetuity. F. Runs with the Land. The obligations imposed by this Facade Easement shall be deemed to run as a binding servitude with the land. This instrument shall extend to and be binding upon Grantor and all persons hereafter claiming under or through DAB/ses/Facade-3.agr 6 July 29. 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Grantor, and the word "Grantor" when used herein shall include all such persons. Anything contained herein to the contrary notwithstanding, a person shall have no obligation pursuant to this instrument after such person shall cease to have any interest in the real property,by reasons of a bona fide transfer for full , value. G. Eminent domain. In the event that an eminent domain proceeding is filed against any or all of the Real Property, the Grantor and the Grantee agree that the Grantee may appear as an additional party in the eminent domain proceeding and may participate fully in the litigation for the purpose of proving and recovering the damages caused to the Grantee by the eminent domain action. In the event that an award is made in such proceeding that does not allocate a portion for the damage or loss to Grantee or assumes that this Facade Easement is not in effect, Grantee shall be entitled to share in the award to the extent of Fifty percent (50%) thereof, as to the portion of the award that applies to the Building. H. statutory Authority. This grant of a Facade Easement is made pursuant to California Civil Code ~815 et seq., but the invalidity of such statute or any part thereof shall not affect the validity and enforceability of this instrument according to its terms, it being the intent of the parties that this instrument constitutes a chari table trust, a preservation restriction, a common-law easement in gross, and a restrictive covenant. 1. Notices. Any notice called for herein shall be in wri ting and deposited with the United states Postal Service DAB/ses/Facade-3.agr 7 July 29. 1992 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 postage prepaid by registered or certified mail, return receipt 2 requested, and addressed as follows: TO THE GRANTOR: Mt. View Cemetery P.O. Box 2018 San Bernardino, CA 92406 CC: , , c/o Service Corporation International Legal Department 9885 Carroll Canyon Road San Diego, CA 92131 City Administrator 300 N. "0" Street San Bernardino, CA 92418 TO THE GRANTEE: Each party may change its address set forth herein by written notice to such effect to the other party. The failure to serve a change of address notice shall not waive the notice requirement. Nothing in this paragraph shall be construed to prevent the giving of notice by personal service. J. Compliance with applicable ordinances. Nothing contained herein shall be interpreted to authorize or permit Grantor to violate any oTdinance or applicable statute relating to building materials, construction methods or use. In the event of any conflict between any such ordinance or applicable statute and the terms hereof, the ordinance or applicable statute shall prevail, and the Grantor shall p~omptly notify Grantee of such conflict and shall cooperate with Grantee and the City of San Bernardino or other appropriate authority to accommodate the purposes of both this instrument and such ordinance or applicable statute. 5. A copy of this Facade Easement shall be recorded with the County Recorder of the County of San Bernardino. DAB/ses/Facade-3.agr 8 July 29. 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FACADE IMPROVEMENT AGREEMENT AND GRANT OF FACADE EASEMENT IN WITNESS _WHEREOF the parties hereto have executed this instrument on the day and date first above shown. , , GRANTOR MT. VIEW CEMETERY BY: BY: GRANTEE CITY OF SAN BERNARDINO ATTEST: BY: CITY CLERK BY: W.R. HOLCOMB, MAYOR APPROVED AS TO FORM AND LEGAL CONTENT: JAMES F. PENMAN, CITY ATTORNEY ~-~) DAB/ses/Facade-3.agr 9 July 29. 1992 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) )ss. ) 1 2 3 4 5 6 7 8 9 Notary Public in and for said State. COUNTY OF SAN BERNARDINO On , 1992, before me, the undersigned, a Notary Public in and for said State, personally appeared , known to me (or proved to me on the basis of satisfactory evidence) to be the person( s) whose name( s) are subscribed to this instrument and acknowledged that (s)he executed the same. ' WITNESS my hand and official seal. DAB/ses/Facade-3.agr 10 July 29. .1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ~ 24 25 26 27 28 STATE OF CALIFORNIA ) )ss. ) COUNTY OF SAN BERNARDINO On this day of ,19 before me, the undersigned, a Notary Public in and for said State, personally appeared , known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the Mayor of the City of San Bernardino and acknowledged to me that the City of San Bernardino executed it. Signature of Notary Public SEAL DAB/ses/Facade-3.agr 11 July 29. 1992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A That portion of Lot 8, Block 86, Rancho San Bernardino, per map recorded in book 7 of maps, page 2, records of San Bernardino County, California: BEGINNING at a point on the centerline of Waterman Avenue 41.25 feet northerly of the intersection of Highland Avenue and Waterman Avenue: , thence North 00 Degrees 07 Minutes 46 Seconds East a distance of 1659.41 feet to the projection of the north line of said Lot 8; thence South 89 Degrees 38 Minutes 22 Seconds East along said line a distance of 1359.29 feet; thence South 00 Degrees 08 Minutes 37 Seconds West a distance of 1662.79 feet to the north line of Highland Avenue; thence North 89 Degrees 29 Minutes 48 Seconds West along said line a distance of 1358.90 feet to the POINT OF BEGINNING. DAB/ses/Facade-3.agr 12 Ju1y 29. 1992 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT B That certain Moorish-style bui::'ding located at the northeast 1 corner of Highland Avenue and Waterman Avenue in the City of San Bernardino of approximately 550 square feet. , , DAB/ses/Facade-3.agr 13 July 29. 1992