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HomeMy WebLinkAbout2009-360(COMPANION RESOLUTION 2009-359) 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2009_360 RESOLUTION AUTHORIZING THE EXECUTION OF A MILLS ACT PRESERVATION AGREEMENT WITH STEVEN AND SUZANNE EARP. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City, a Mills Act Preservation Agreement bettiveen Steven and Suzanne Earp, and the City of San Bernardino, which is attached hereto, n~~:~°ked Exhibit "A" and incorporated herein by reference as though fully set forth at length. SECTION 2. The authorization to execute the above-referenced agreerrYer~t is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. /// /// /// /// /// /i/ /// /// ~ !/ /// /// /// //i 2009-360 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 AUTHORIZING THE EXECUTION OF A MILLS ACT PRESERVATION AGREEMENT WITH STEVEN AND SUZANNE EARP. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor joint and Common Council of the City of San Bernardino at a regularmeeting thereof, held on the 7th day of December , 2009, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x BAXTER x BRINKER x SHORETT x KELLEY x JOHNSON x x MCCAMMACK a.,E.,~~.~. /~. City Clerk fi~ The foregoing resolution is hereby approved this a day of December , 2009. ~rcv~~=- rick J. Morris, City of San Bernardino Approved as to form: JAMES F. PENMAN City By: 2009-360 EXHIBIT "A" HISTORIC PROPERTY PRESERVATT~-N AGREEMENT ("MILLS ACT CONTRACT") THIS AGREEMENT is made on this, 7th day of December , by and between the City of San Bernardino, a municipal corporation ("City"), and Steven & Suzanne Earp ("Owner"). 1?F(''TTAT Q 1. California Government Code Section 50280, et. seq. allows cities the discretion to enter into contracts with the owners of qualified historic properties, as that term is defined in Government Code Section 50280.1, for the purpose of providing for the use, maintenance, protection, and restoration of such historic property so as to retain its characteristics as property of historic significance. 2. Owner holds fee title in and to that certain real property, together with associated structures and improvements thereon, generally located at the street address 339 W. 25th Street Avenue, San Bernardino, California ("Historic Property"). A grant deed description of the Historic Property is attached hereto as Attachment "A" and incorporated herein by this reference. 3. By authorizing this Agreement, the Common Council hereby designates the Historic Property as a Qualified Historic Property as defined by Resolution 2005 - 363, Section 5. 4. City and Owner desire to enter into this Agreement for the purpose of protecting and preserving the characteristics of historical significance of the Historic Property that help provide the community with its own unique civic identity and character. 5. Owner, in consideration for abiding by the terms of this Agreement, shall be entitled to qualify for a reassessment of valuation of the Historic Property, pursuant to the provisions of Chapter 3, Part, 2, of Division 1 of the California Revenue and Taxation Code, and any corresponding adjustment in property taxes resulting therefrom. 1 2009-3fi0 TERM NOW, THEREFORE, the City and Owner in consideration of mutual covenants and conditions set forth herein, do hereby agree as follows: 1. Effective Date and Term of Agreement. This Agreement shall be effective and commence on Monday, December 7, 2009 ("Effective Date") and shall remain in effect for a minimum initial term often (10) years thereafter unless canceled by the City pursuant to Section 8 or 9 of this Agreement. 2. Renewal. Upon each anniversary date of this contract ("Renewal Date") an additional one (1) year shall automatically be added to the term of the Agreement unless a notice of nonrenewal is delivered as provided in Section 3 of this Agreement. 3. Nonrenewal. If either the Owner or City desires in any year not to renew this Agreement, Owner or City shall serve a written notice of nonrenewal upon the other party in advance of the Renewal Date ("Notice of Nonrenewal"). The Notice of Nonrenewal shall be effective only if served by Owner upon City at least ninety (90) days prior to the Renewal Date, or if served by City upon Owner, the Notice of Nonrenewal shall be effective only if served upon Owner at least sixty (60) days prior to the Renewal Date. If either City or Owner serves a Notice of Nonrenewal in any year, this Agreement shall remain in effect for the balance of the term then remaining: 4. Owner Protest of City Non-renewal. Within fifteen (15) calendar days of service of the Notice of Non-renewal by City, Owner may file with the City Clerk a written protest of the non- renewal. Upon receipt of the written protest, the City Clerk shall set a date and tine for hearing of the matter by the Mayor and Common Council. The hearing date shall be within 30 calendar days of the receipt of the written protest by the City Clerk. Owner may furnish the Common Council with any information which Owner deems relevant and shall furnish the Common Council with any information it may require. The Common Council may, at any time prior to the annual Renewal Date, withdraw its Notice ofNon-renewal. 2 2009-360 5. Standards for Historical Property. During the term of this Agreement, the Historic Property shall be subject to the following conditions, requirements, and restrictions: A. Owner shall preserve and maintain the characteristics of the cultural and historical significance of the Historic Property. Compliance or non-compliance with this section shall be determined by the Director of Development Services or his/her designee. In addition, Owner shall obtain any applicable permits necessary to protect, preserve, restore, and rehabilitate the Historic Property so as to maintain its historical and cultural significance. B. Owner, when necessary as determined by the City, shall restore and rehabilitate the Historic Property to conform to the rules and regulations of the Office of Historic Preservation of the California Department of Parks and Recreation, the United States Secretary of the Interior Standards for Rehabilitation, and the State Historical Building Code. The condition of the exterior of the Historic Property on the effective date of this Agreement is documented in photographs on file and available in the City Manager's Office. The Owner shall continually maintain the exterior of the Historic Property in the same or better condition as documented. in said photographs. C. Owner shall carry out specific restoration, repair, maintenance, and/or rehabilitation projects on the Historic Property, as outlined in the attached Attachment "B"_, which is incorporated herein by this reference. All such projects shall be undertaken and completed in keeping with the historic nature of the property. Projects maybe interior or exterior, but must utilize all property tax .savings. Adjustments to the project plan will not result in a breach of contract as long as the projects maintain the historical integrity of the property. D. Owner shall not be permitted to block the view corridor with any new structure, such as walls, fences or shrubbery, so as to prevent the viewing of the Historic .Property from the public right of way. 6. Periodic Examinations. Upon reasonable advance notice, Owner shall allow reasonable periodic examinations of the interior and exterior of the Historic Property by representatives of the 3 . ~ 2009-360 County Assessor, the State Department of Parks and Recreation, the State Board of Equalization and/or City, as may be necessary to determine Owner's compliance with the terms and provisions of this Agreement. 7. Provision of Information of Compliance; Yearly .Administrative Fee. Owner hereby agrees to furnish City with any and all information requested by City, which City deems necessary or advisable to determine eligibility of the Historic Property and compliance with the terms and provisions of this Agreement. Requested information may include, but not be limited to, required annual reports, as well as receipts documenting property maintenance and/or improvement expenditures that equal or exceed annual estimated property tax savings. Owner shall also pay City a yearly administrative fee of seventy-five dollars ($75.00). 8. Breach of Agreement: Remedies. A. Notice of Breach; Opportunity to Cure. If Owner breaches any provision of this Agreement, City may give written notice to Owner by registered or certified mail detailing Owner's violations. If such violation is not corrected to the reasonable satisfaction of City within thirty (30) days after the date of notice of violation, or within such a reasonable time as may be required to cure the violation (provided the acts to cure the violation are commenced within thirty (30) days and thereafter diligently pursued to completion as determined by the City in the exercise of its sole discretion), the City may, without further notice, declare Owner to be in breach of this Agreement. Upon City's declaration of Owner's breach, City may pursue any remedy available under local, state, or federal law, including those specifically provided for in this section. B. Remedy -Cancellation. City may cancel this Agreement if City determines, following a duly noticed public hearing in accordance with Government Code section .50285, that it is subject to cancellation pursuant to Government Code Section 50284. If this Agreement is cancelled under this paragraph, Owner shall pay a cancellation fee to the Office of the Auditor for the County of San Bernardino as required by Government Code section 50286. 4 2009-360 C. Alternative Remedies. As an alternative to cancellation of this Agreement-for Owner's breach of any condition, City may bring an action in court necessary to enforce this Agreement including, but not limited to, an action to enforce this Agreement by specific performance, injunction, or receivership. 9. Destruction of Property; Eminent Domain; Cancellation. A. If the Historic Property is destroyed by earthquake, fire, flood, or other natural disaster such that in the opinion of the City Building Official more than sixty percent (60%) of the .original fabric of the structure must be replaced, this Agreement shall be cancelled because the historic value of the structure will have been destroyed. B. If the Historic Property is acquired in whole or in part by eminent domain or other acquisition by any entity authorized to exercise the power of eminent domain, and the acquisition is determined by the Mayor and Common Council to frustrate the purpose of this Agreement, this Agreement shall be cancelled. No cancellation fee pursuant to Government Code Section 50286 shall be imposed if the Agreement is cancelled pursuant to this Section. 10. Waiver. City does not waive any claim of default by Owner if City does not enforce or cancel this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing historic properties are available to the City to pursue in the event that there is a breach of this Agreement. ~No waiver by City of any breach or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder. 11. Binding, Effect of Agreement. Owner hereby subjects the Historic Property to the covenants, conditions, and restrictions set forth in this Agreement. City and Owner hereby declare their specific intent that the covenants, conditions, and restrictions set forth herein shall be deemed covenants running with the land and shall inure to and be binding upon Owner's successors and assigns in title or interest to the Historic Property. Each and every contract, deed or other 5 2009-360 instrument hereinafter executed, covering or conveying the Historic Property, or any portion thereof, shall conclusively be held to have been executed, .delivered and accepted subject to the covenants, reservations and restrictions set forth herein. 12. Covenants Run with the Land. Each act hereby required relates to the use, repair, maintenance or improvement of the Historic Property for the benefit of the land owned by the public and all property owners of the City. City and Owner hereby declare their understanding and intent that the burden of the covenants, reservations and restrictions set forth herein touch and concern the land in that they restrict development of the Historic Property. City and Owner hereby further declare their understanding and intent that the benefit of such covenants, reservations and restrictions touch and concern the land by enhancing and .maintaining the cultural and historical characteristics and significance of the Historic Property for the benefit of the public and the Owner. 13. Notice. Any notice required to be given by the terms of this Agreement shall be provided at the address of the respective parties as specified below or at any other address as may be later specified by the parties hereto: City: City of San Bernardino . City Manager's Office 3 00 North D Street ~ _ San Bernardino, CA 92418-0001 . Owner: Steven & Suzanne Earp 339 W. 25~' Street San Bernardino, CA 92405 14. Effect of Agreement. None of the terms, provisions or conditions of this Agreement shall be deemed to create a partnership between the parties hereto and any of their heirs, successors or assigns; nor shall such terms, provisions or conditions cause the parties to be considered joint venturers or members of any joint enterprise. 6 2009-360 15. Indemnity of City. Owner shall defend, indemnify, and hold harmless City and its elected officials, officers, agents. and employees from any actual or alleged claims, demands causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, .state or local governmental agency, arising out of or incident to (i) the direct or indirect use, operation, or maintenance of the Historic .Property by Owner or any contractor, subcontractor, employee, agent, lessee, licensee, invitee, or any other person; (ii) Owner's activities in connection with the Historic Property, or from the enforcement of this Agreement. This indemnification includes, without limitation,. the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees and related costs or expenses, and the reimbursement of City, its elected officials, employees, and/or agents for all attorney's fees, legal expenses and costs incurred by each of them. The costs, salaries .and expenses of the City Attorney and members of hisJher office in enforcing this Agreement. on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. Owner's obligation to indemnify shall survive the termination, cancellation, or expiration of this Agreement and shall not be restricted to insurance proceeds, if any received by City, its elected officials, employees, or agents. 16. Binding_Upon Successors. All of the agreements, rights, obligations, covenants, reservations, and restrictions contained in this Agreement shall be binding upon and shall inure to the benefit of the parties herein, their heirs, successors, legal representatives, assigns and all persons acquiring any part or portion of the Historic Property, whether by operation of law or in any manner whatsoever. 17. Leal Costs. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants, conditions or restrictions contained herein, or to determine the rights and duties of any party hereunder, the prevailing party in such proceeding may recover all reasonable attorneys' fees to be fixed by the court, in addition to court costs and other relief ordered by the court. The costs, salaries and expenses of the City Attorney and members 7 2009-360 of his/her office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. 18. Severability. In the event that any of the provisions of this Agreement are held to be unenforceable or .invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be effected thereby. 19. Recordation. No later than twenty (20) days after the Effective Date, City shall cause this Agreement to be recorded in the office of the County Recorder of the County of San Bernardino. Owner shall provide written. notice of the Agreement to the .State Office of Historic Preservation within .six (6) .months of entering into the contract and shall provide the City with evidence of such. notification. 20. Amendments. This Agreement may be amended, in whole or in part, only by written recorded instrument executed by the parties hereto. 21. Governing Law and Venue. This Agreement shall be construed and governed in accordance with the laws of the State of California. Any. action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of San Bernardino. State of California, or the United States District Court for the Central District of California, Riverside Division, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings, 8 2009-360 HISTORIC PROPERTY PRESERVATION .AGREEMENT. ("MILLS ACT CONTRACT") IN WITNESS WHEREOF, City and Owner have executed this Agreement on the day and year first above written. Dated: ~ 2 ~ ~ nat~a: 2'I - 2~cx~~ Approved as to form: JAMES F. PENMAN City Attorney By: CITY OF SAN BERNA NO By ATTESTED TO: By: ~.~.-~..~P ~. Owner r. Owner 9 RECORDING REQUESTED BY ~V-Gh~ Co~~-T~c=4~t~. AND WHEN REC ED MAIL TO: Steven Earp Suzanne Earp 339 W. 25th Street San Bernardino, CA 92405 i'hG c ~ -{~k S~4-C~~-1Mr.Y1~5~ ~>r C.~~701r-t_ A.P.N.: 0149-182-07 ~~t~~~i~~~-~ ~t,~ ~~ 20~ctr3~Galiy Recorded in Official Records, County of San t3emardino 1/1612009 10:53 AM LARRY WALKER ~ AuditorlController -Recorder ~ ~. ~ 753 Orange Coast Title Company Doc #: 2~09-~0~9600 Titles: 'I Pages: 2 Fees 12.00 Taxes 137.50 Ocher .00 PAID 149.50 ~ Space Above This Line for Recorder's Use Only Order No.: 210-1025297-10 Escrow No.: 13116KS ~ (~ ` t,t~~~t~--- I ~ GP~ANT DEED THE UNDERSIGNED GRANTOR{s) DECLARE(S) THAT DOCUMENTARY TRANSFER TAX IS: COUNTY 137.50 computed on full value of property conveyed, or computed on full value le value of liens or encumbrances remaining at time of sale, [ ) unincorporated area; [?(City of San Bernardino ,and FOR A VALUABLE CONSIDERATION, Receipt of which is hereby acknowledged, Richard J. Acosta, a Single man hereby GRA.NT(S) to Steven Earp and Suzanne Earp, ~LtS~lr1G1 ~' tn/~ ~ ~ S ~4~~1-E''~~~'~S the following described properCy in the City of San Bernardino, County of San Bernardino State of California; Lot 8, Block "E", of Tract 1758, Polytechnic Square No. 3, in the City of San Bernardino, County of San Bernardino, State of California as per map recorded in Book 25, Page{s) 51, Inclusive of Maps, in the Office of the County Recorder of said County. 'Property Address: 339 W. 25th Street, San Bernardino, CA 92405 • Cz~L hard J. Acosta Document Date: December 16, 2008 STATE OF CALIFORNIA ~S CO OF ~' `Y`om ) On 7 ~ before me, personally appearod V who roved to me on the basis of satisfactory evidence to be the pcrson~j whose n that~i /she/they exewted the same in~her/their authorized capacit and that upon behalf of which the person~J actsed, executed the instnrment_ subscribed to the within instrument and acknowledged to me err signaturefd) on the instrument the gerson~'j or the entity I certify under PENALTY OF PERJU~tY under the laws of the State of California that the foregoing paragraph is true and correct. WT.CNESS my hand and official seal. Signature ,r~ ~ ~~' ~~ CCrcimi_s:~;~t # I5!!%~?27~ AtIAIL SAX STS'`' ~,~.= ~ ~~~ T Mr,-cU~:~r.~~.~.y,~:~Qs.l~n~~.2o~0 J ' ~' SAME ~~ ~~~VE ' Mail Tax Statements to: SAME AS ABOVE or Address Noted Below .~ ' 2009-360 . ~_`_~ ~,, "= .,~. Mills Act Program Ten-Year Rehabilitation Plan City of San Bernardino Year Proposed Project (s)* Estimated Cost Year 1 ~ ~ ow Sc.r~.cn s t't~ot ac~~rcpsi r s~r~tn doo rZ s C t) ~ ! v p C~ - t A~t~"vr- '~ i r~. ~ Year 2 c.vrrc-~-~- d rai h~. ~{ h c v ~r~- y and pa ' o ~ ~n qt l ~ /~ ~ ~ v ~ ~ , h M G ~t hkva J Year 3 rtplac.c, ~~'~1 GWa 11 ~~ vd v Year 4 Y{mvV~ Subs ~ ar cvnGr`t- ~ a ' l UU v f ~,~-~e ~ ~ r{ ~ 4 ~ r ~ Year 5 C,jt i IY-n ~ y rya'; x ~-. _ ~ d h ~ U CJ i n ~ ~ orrY ref r, vc w c Year 6 ins¢/.~ 'vn w~ l1 s ~ ~~ ~ ~ (~ U C> 1~ ~x -, ~~x ~ Year 7 r{ p,~~ c L h a wG / 1 vo o ~- 1 r ~G,c t dl'a ~ h -~- ~ v~iy~, ,, Year 8 r~p/~l4G~ car r~pc~ ~'r wi n a1 aw S/ dv~~ ~ ~ Z~ Uv C~ it~/~ u c. n `c..._ /~ k i ~' Year 9 ~ o v ~,' ~ ~~ S ~r~~ ~- /.~ Yc~ec ~`j-" Z Uu U , Year 10 ~i'~t i ~s ~/~ ~n -~rrv-~ port-~, l~vv~ a~- . U.crv G Ill ~ ~ 1 /'Y~ ~Q.~ /~/~ /_ r1~urZ Z~ Use additional sheets it necessary Projects may be interior or exterior, but must utilize all of your tax savings. Retain copies of all receipts and permits for submittal with the required annual reports.