HomeMy WebLinkAbout16-Development Services
OUHAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director
Subject: Resolution approving a
Purchase and Sales Agreement with Tim
Burgess for the property located at 120 S.
"D" Street for a Fire Department
Maintenance Facility and authorization to
prepare financing documents for purchase
under the Joint Powers Financing
Authority.
MCC Date: June 15,2009
Dept: Development Services
Date: June 3, 2009
File No. 15.05-267
Synopsis of Previous Council Action:
04-23-2009 - Resolution No. 2009-85 was adopted, approving a right of way contract with
Caltrans for the sale of the Fire Department Repair Facility located at the corner of Base Line
and "H" Streets.
Recommended Motion:
1. Adopt Resolution; AND
2. That the City Attorney's Office and the Director of Development Services be authorized to
proceed with the preparation of all necessary documents for financing the proposed purchase
under the Joint Powers Financing Authority.
~j1JOf~
Valerie C. Ross
Contact person: Laszlo "Les" Fogassy
Staff Report, Map,
Supporting data attached: Reso., Agreement Ward: 1
$400,000 (Down payment) / $60,000 annual
payments for 5 years; $1.2 Million after 5 years,
or $100,000 and extension of annual payments
FUNDING REQUIREMENTS: Amount: for an additional 5 years.
Phone:
5026
Source: (Acct. No.) N/A
(Acct. Description)
Council Notes:
g'5C) J- 5:3
Finance:
Agenda Item No.
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
SUBJECT:
Resolution approving a Purchase and Sales Agreement with Tim Burgess for the property
located at 120 S. "D" Street for a Fire Department Maintenance Facility and authorization to
prepare financing documents for purchase under the Joint Powers Financing Authority.
BACKGROUND:
As a result of the 1-215 widening project, Caltrans recently acquired the City's Fire Department
Maintenance Facility located at the northwest corner of Base Line Street and "H" Street. In
addition to $1,430,000 for the purchase of the property, Caltrans will also be reimbursing the
City for certain allowable relocation costs. In May, 2008, the City entered into a one year lease
for a temporary maintenance facility at 225 W. Orange Show Lane. That lease expired on April
30,2009.
Economic Development Agency ("EDN') staff has been working with the Fire Department to
obtain a suitable long term location. The vacant building located at 120 S. "D" Street was
determined to be a suitable site. Due to the urgency of establishing a more permanent location, a
short term lease was entered into on April 1, 2009, between the property owner of that location,
Tim Burgess, and the EDA, at a cost of $1 per month subject to a 30-day termination provision
by either party. The EDA thereby allowed the City Fire Department to take occupancy of the
building under this interim arrangement pending the preparation and approval of all final
documents by the City and the Joint Powers Financing Authority ("JPF A") between the City and
EDA.
A longer term solution with an immediate purchase of the building was negotiated between the
property owner and EDA staff. The property was appraised for $1,500,000 in its prior "as is"
condition. The negotiated sales price of $1,600,000 includes $200,000 worth of improvements to
the property to include ADA compliance, electrical upgrades and alarms, roof repairs, new
ceilings and fixtures and a clarifier that could not be relocated from the former "H" Street
facility. As set forth in the Purchase and Sales Agreement, the City will make a cash down
payment of $400,000, and interest only payments at 5% for five years, to be paid semi-annually
at $30,000 per payment. At the end of five years, the City will have the option to pay the
remaining principal balance of $1,200,000 in full, or extend payments to the seller for an
additional five year term upon payment of a $100,000 to the seller to reduce the principal
balance of the loan. The payment of the $100,000 will thus allows the City to continue the
interest only payments for an additional 5-year term. The City may prepay the balance to the
seller at anytime without a pre-payment penalty. At the end of the second 5-year term, the
principal balance would be $1,100,000.
As previously approved, $800,000 of the $1,430,000 proceeds from the sale of the Base Line and
"H" site will go into the General Fund, with the remaining $630,000 to go to the Fire Department
to cover relocation expenses not reimbursed by Caltrans. The $400,000 down payment is to be
Staff Report - Continued
made from the $630,000, with the balance of $230,000 to be used for additional improvements to
the new site, if needed. Additional improvements have not been identified at this time.
As proposed, the JPFA will be used to finance the balance of $1,200,000 with tax-exempt seller
take-back financing, to be set forth in the agreements and various documents to be submitted
for your review and action at a near future date.
Title to the building will transfer from the seller to the JPF A upon the close of escrow. The
Purchase and Sales Agreement may be signed either directly by the JPF A or signed by the City
and then assigned to the JPF A. The JPF A will hold title to the property under the Trust Indenture
between the JPF A and the seller. The JPF A will then lease the property to the City under an
annual appropriations lease agreement that allows the City to prepay the balance at anytime.
Nothing in the lease agreement commits the City to remit lease payments for other than a year-
to-year basis pursuant to each annual City budget. The seller will have the benefit of and be
secured by a deed of trust on the property as will be owned in fee by the JPF A during the period
of the financing. At such time as the City elects to either refinance the property with other tax-
exempt bond proceeds or cash payments from the Fire Capital Development Impact Fee ("DIF")
accounts, title would then vest in the City after the seller financing had been paid in full. The
City Attorney's office is preparing all documents for this transaction and any required legal
opinions would be rendered by Lewis Brisbois Bisgaard & Smith LLP who will also make the
necessary filings with the State of California and the IRS. This financing is based upon a similar
form of financing previously completed by EDA.
FINANCIAL IMP ACT:
The $400,000 down payment is to be paid from the proceeds of the sale of the Fire Department
Maintenance Facility located at Base Line and "H" Streets to Caltrans. Interest only payments
will be paid for up to five years in 10 semi-annual payments of $30,000 (total of $300,000). The
principal balance of $1,200,000 is to be repaid at the end of five years, unless the City exercises
its option to extend for an additional five years upon payment of a $100,000 extension fee to the
seller to be applied to reduce the principal balance of the loan as a credit against the principal
amount owed. The remaining principal amount of $1,100,000 is then due at the end of the
second five-year term after the payment of five additional years of interest only payments. All
payments, except the initial down payment, are to be paid under the JPF A financing structure.
Staff Report - Continued
RECOMMENDATION:
Adopt resolution and authorize the preparation of various documents for financing the purchase
through the lPF A.
Attachments:
-Site Map
-Resolution and Agreement
.
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RESOLUTION NO.
2
RESOLUTION OF THE SAN BERNARDINO JOINT POWERS
FINANCING AUTHORITY ESTABLISHING THE FAIR MARKET VALUE OF
THAT CERTAIN PARCEL OF REAL PROPERTY LOCATED AT 120 SOUTH
"D" STREET, SAN BERNARDINO, COMMONLY KNOWN AS ASSESSOR'S
PARCEL NUMBER 0134-122-60, RELATIVE TO THE RELOCATION OF THE
FIRE DEPARTMENT'S MAINTENANCE FACILITY, AUTHORIZING SAID
PURCHASE AND AUTHORIZING AND DIRECTING THE EXECUTION OF A
PURCHASE AND SALES AGREEMENT.
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WHEREAS, the San Bernardino Joint Powers Financing Authority ("JPFA")
desires to acquire that certain parcel of real property located 120 South "D" Street, San
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Bernardino, being a portion of real property commonly known as Assessor's Parcel
Number 0134-122-60, and more fully described in Exhibit "I" attached hereto and made a
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part hereof, relative to the relocation of the Fire Department's maintenance facility; and
WHEREAS, Tim J. Burgess is the record owner of said real property to be
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acquired; and
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WHEREAS, an appraisal has been prepared by Smothers Appraisal, a California
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general certified appraiser in the amount of $1 ,500,000.00; and
WHEREAS, the Economic Development Agency, on behalf of the JPF A, has
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reviewed the appraiser's determination of the fair market value of the land and his report
thereon; and
WHEREAS, the Economic Development Agency, on behalf of the JPF A, and the
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property owner have negotiated the amount of $1,600,000.00 as the purchase price of said
real property, which includes $200,000 in additional building improvements to be
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completed prior to the close of escrow.
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NOW, THEREFORE, THE SAN BERNARDINO JOINT POWERS
FINANCING AUTHORITY DOES HEREBY RESOLVE, DETERMINE, AND
ORDER AS FOLLOWS:
.# , l.p
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RESOLUTION OF THE SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY
ESTABLISHING THE FAIR MARKET VALUE OF THAT CERTAIN PARCEL OF REAL
PROPERTY LOCATED AT 120 SOUTH "D" STREET, SAN BERNARDINO, COMMONLY
KNOWN AS ASSESSOR'S PARCEL NUMBER 0134-122-60, RELATIVE TO THE RELOCATION
OF THE FIRE DEPARTMENT'S MAINTENANCE FACILITY, AUTHORIZING SAID
PURCHASE AND AUTHORIZING AND DIRECTING THE EXECUTION OF A PURCHASE AND
SALES AGREEMENT.
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SECTION 1. That said parcel of real property owned by Tim J. Burgess, as
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described in said Exhibit "1 ", is hereby determined to have a fair market value of
$1.600.000.00 based on the report by said appraiser and as further negotiated by the
Economic Development Agency, on behalf of the JPFA, and the property owner.
SECTION 2. The purchase of said real property, as described herein, in the
amount of $1,600,000.00, is hereby approved.
SECTION 3. That the Chairperson of the JPFA is hereby directed and authorized
to execute on behalf of said JPF A, a Purchase and Sales Agreement, a copy of which is
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attached hereto as said Exhibit "1," and incorporated herein by this reference, for the
16 purchase of certain real property generally located at 120 South "D" Street, and more fully
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described therein.
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SECTION 4. Said Agreement shall be null and void if either party fails to execute
2 0 the Agreement within ninety (90) days of the date of adoption of this Resolution.
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RESOLUTION OF THE SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY
ESTABLISHING THE FAIR MARKET VALUE OF THAT CERTAIN PARCEL OF REAL
PROPERTY LOCATED AT 120 SOUTH "D~ STREET, SAN BERNARDINO, COMMONLY
KNOWN AS ASSESSOR'S PARCEL NUMBER 0134-122-60, RELATIVE TO THE RELOCATION
OF THE FIRE DEPARTMENT'S MAINTENANCE FACILITY, AUTHORIZING SAID
PURCHASE AND AUTHORIZING AND DIRECTING THE EXECUTION OF A PURCHASE AND
SALES AGREEMENT.
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I HEREBY CERTIFY that the foregoing resolution was duly adopted by the
San Bernardino Joint Powers Financing Authority at a
meeting
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thereof held on the
, 2009, by the following
day of
9 vote, to wit:
10 Board Members:
AYES
NAYS
ABSTAIN ABSENT
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ESTRADA
BAXTER
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BRINKER
SHORETT
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KELLEY
JOHNSON
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MCCAMMACK
Rachel G. Clark, Secretary
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2009.
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PATRICK J. MORRIS, Chairperson
San Bernardino Joint Powers
Financing Authority
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EXHIBIT "1"
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
This AGREEMENT dated this day of ,20_ is
made and entered into by and between THE SAN BERNARDINO JOINT POWERS
FINANCING AUTHORITY, organized and existing under the laws of the State of
California, hereinafter called "Buyer", and Tim J. Burgess, a single man" hereinafter called
"Seller" (sometimes jointly referred to herein as the "Parties").
WITNESSES THAT:
IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
I. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller that certain
real property, herein called "the Property," generally located at 120 South "D" Street,
situated in the City of San Bernardino, County of San Bernardino, State of California,
described in Exhibit "A" and shown on a plat as Exhibit "B", both attached hereto
and incorporated by this reference, upon the terms and conditions herein set forth.
2. The total purchase price for the fee interest shall be the sum of one million six
hundred thousand dollars ($1,600,000) plus costs as such costs are specifically set
forth herein. The purchase price is based upon an appraisal of the fair market value
ofthe Property. The appraisal made no attempt to assign value to any lesser interest
in the Property, including any leasehold estate. The purchase price, therefore, is the
total price for the Property without distinction or separation for various interests that
may be held in the Property. Seller shall be responsible for any apportionment or
allocation of the purchase price if required for separately held interests that may exist.
3. Except as otherwise expressly provided herein, all costs of preliminary title report,
Phase I Environmental Study and Report, and report on tax and lien payment status
shall be paid by Buyer. Buyer shall have 45 days following opening of escrow to
approve or disapprove any contingency items. Seller shall pay for remediation of any
disapproved items. Upon failure of Seller to effect a timely cure Buyer may in the
exercise of its sole discretion elect to terminate and cancel this Agreement by notice
to the Seller. Thereafter, Buyer shall in no manner be further obligated by the terms
of this Agreement.
4. Escrow
a. Escrow shall be opened with Chicago Title Company, San Bernardino office. The
escrow fee shall be paid by contribution in equal sum from the Buyer and the Seller.
Seller shall pay for a CL T A policy and all transfer tax. The Buyer shall pay for an
AL T A Title policy if such shall be required. Buyer shall pay the recording fees. All
other escrow charges shall be divided between the Seller and the Buyer in the
customary manner for a transaction of this type.
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b. Escrow instructions shall include the requirement for the completion of the
rehabilitation to the building and certification of good working order described in
Exhibit "c" attached hereto and incorporated by this reference.
c. Prior to close of escrow Buyer shall deposit therein $400,000. Additionally, Buyer
shall cause to be deposited the Promissory Note in the principal sum of one million
two hundred thousand dollars ($1,200,000), and Trust Indenture in form as agreed by
the Parties.
d. Seller shall deposit an executed Grant Deed for the Property,
5. Title to the fee interest in the Property shall be delivered free and clear of all liens,
encumbrances, conditions, restrictions, easements, rights of possession, and leasehold
interests excepting only such matters of title specifically waived in writing by the
Buyer. Seller shall provide Buyer with a Release of Lien or Consent to Easement
from each holder of a mortgage and/or deed of trust that is a lien against the Property.
The balance ofthe unpaid principal and interest due on any note or notes secured by
mortgages, deeds of trust, or other lien on the subject property, up to and including
the amount to be paid Seller under the terms of this Agreement, shall be deducted
from the purchase price and paid to the persons or entities entitled thereto, ifthey so
require. In such event, prepayment penalties, if any, together with trustee's fees and
recording costs will be paid by Seller. Seller shall provide Buyer with a Consent to
Easement from each Lessee having a leasehold interest in the property, or from any
other party claiming to have an interest in the property. Those matters of title
specifically waived by the Buyer are as follows:
(a) Current property taxes, including general and special taxes and assessments
collected therewith, which shall be allocated pursuant to applicable sections
of the Revenue and Taxation Code;
(b) The lien of supplemental taxes, if any, assessed pursuant to the provisions of
chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code
of the State of California;
(c) Such other matters affecting title to or use of the Property which are
approved in writing by Buyer.
6. Taxes, assessments, penalties, interest charges, delinquency charges, and municipal
service charges of every kind levied upon or assessed against the Property, except as
otherwise expressly set forth herein or arising from the subj ect fee interest being
acquired, shall be paid by Seller.
7. For the purpose of conveying the herein described fee interest to Buyer, Seller shall
execute, acknowledge, and deliver to Buyer a Grant Deed for recordation, in
accordance with this Agreement.
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8. a. Seller hereby states that, to the best of Seller's knowledge, during the period of
Seller's ownership of the Property, there have been no known underground storage
tanks or related equipment nor known existence, disposal, storage, releases or
threatened releases of hazardous materials, substances or hazardous wastes on, from
or under the Property. Seller further represents that Seller has knowledge of
underground storage tanks and related equipment , that was properly permitted,
removed and inspected, but no knowledge of the existence, disposal, release, or
threatened release of hazardous materials, substances or hazardous wastes, on, from,
or under the Property which may have occurred prior to Seller taking title to the
Property.
b. The term "hazardous materials" when used in this Agreement shall mean any
hazardous waste or hazardous substance as defined in any federal, state, or local
statute, ordinance, rule, or regulation applicable to the property, including, without
limitation, the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (Title 42 United States Code sections 9601-9675), the
Resource Conservation and Recovery Act (Title 42 United States Code sections
6901-6992k), the Carpenter-Presley-Tanner Hazardous Substance Account Act
(Health and Safety Code sections 25300-25395.15), the Hazardous Waste Control
Law (Health and Safety Code sections 25100-25250.25, and any state and federal
underground tank laws, rules and regulations. "Hazardous materials' shall also
include asbestos or asbestos-containing materials, radon gas, and petroleum or
petroleum fractions, whether or not defined as a hazardous waste or hazardous
substance in any such statute, ordinance, rule, or regulation.
c. The acquisition price of the Property being acquired in this transaction reflects the
negotiated value for the Property without the presence of contamination. If prior to
the close of escrow the Buyer is placed on notice by the Seller or any other source of
information that leads it reasonably to conclude that any hydrocarbonous substance or
any hazardous substance or material, asbestos or asbestos-bearing material or other
environmental condition is present and which renders the Property subject to legal
requirements for investigation, corrective or remedial action on, in or under the
Property, Buyer shall notify Seller in writing of the same within 10 calendar days.
Buyer may within 20 calendar days after such notice, in the exercise of its sole
discretion elect to terminate and cancel this Agreement by notice to the Seller and to
Chicago Title. Thereafter, Buyer shall in no manner be further obligated by the terms
of this Agreement. Buyer may otherwise elect to continue this Agreement or to
continue this Agreement as modified by executed written agreement of the Parties.
Failure to provide notice to Seller as provided herein shall constitute an election to
continue the Agreement. If the notice of the presence of the hydrocarbonous
substance, etc., is received after the close of escrow, Buyer may cause the condition
to be corrected or remedied, or may pursue any other options as exist, in accordance
with applicable law. Consistent with the definitions set forth hereinabove, as used in
this paragraph, "any hazardous substance or material, asbestos or asbestos-bearing
material or other environmental condition" shall be as determined under federal, state
or local law then in effect.
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d. Seller agrees that it shall within 24 hours or receipt of such notice place Buyer on
notice of the presence of any infonnation Seller has received regarding the presence
or absence relative to the Property of hydrocarbonous substance or any hazardous
substance or material, asbestos or asbestos-bearing material or other enviromnental
condition as those terms are used herein.
e. The representations and promises made in this paragraph are intended to, and shall
survive the execution, delivery and recordation of the deed referenced in paragraph
number?
9. Buyer warrants to Seller that Buyer has not used the services ofa real estate broker.
Seller shall be responsible at Seller's sole expense for real estate brokerage fees or
commissions, if any.
10. Seller and Buyer shall, upon request by the other, execute, acknowledge, and deliver
such documents or take such action as may be necessary or convenient to carry out
the spirit and intent of this Agreement.
II. Time is of the essence in this Agreement.
12. In the event that Seller is unable to convey to Buyer the Property as herein provided
within 90 days ofthe date ofthis Agreement, then Buyer, at its option, may terminate
and cancel this Agreement and, in such event, Buyer shall in no manner be further
obligated by the terms of this Agreement.
13. If suit should be brought for any sum due or the enforcement or declaration of any
right or obligation hereunder, by either party, the prevailing party shall be entitled to
all costs incurred in connection with such action, including reasonable attorney's fees.
14. Any notice which either party mayor is required to give shall be in writing and given
by personal delivery or mailing same by certified mail, return receipt requested,
postage prepaid, to the other party at the address shown below or at such other place
as may be designated by the parties from time to time, and any notice so mailed shall
be deemed received on the third day after mailing.
Buyer's address:
San Bernardino Joint Powers
Financing Authority
201 North "E" Street, Third Floor
San Bernardino, CA 92418
Attn: Executive Director
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Seller's address:
Tim J. Burgess
1625 Iowa Ave
Riverside, CA 92507
15. This Agreement is subject to final approval of the Mayor and Common Council of
the City of San Bernardino.
16. Seller represents, warrants and covenants to Buyer as of the date of this Agreement
and as of the date of the recording of the Grant Deed transferring the Property to the
Buyer (the "Closing"), as follows:
a. No Condemnation. To the best of the Seller's knowledge, there are no
pending or threatened condemnations or similar proceedings affecting the
Property, or any portion thereof, nor does the Seller have any knowledge that
any such action is contemplated.
b. No Proceedings. To the best of the Seller's knowledge, there are no legal
actions, suits, or other legal or administrative proceedings, including
condemnation cases, pending or threatened against or affecting the Property.
Seller has not received and is not aware of any notice from any public buyer
or entity with respect to any current or future proceeding against or basis for
any future proceeding against or affecting the Property or any part of the
Property, or concerning any existing or potential, past, present or future
hazardous materials at the Property.
c. No Violation of Law. Seller represents and warrants that, to the best of the
Seller's knowledge, as of the date of this Agreement and as of the Closing,
the Property is not in violation of any law, ordinance or regulation of any
governmental authority including those relating to the environmental
conditions on, under or about the Property, including, but not limited to, soil
and groundwater conditions.
d. Clear Title. Seller represents and warrants that Seller is the owner of the
Property and has marketable and insurable fee simple title to the Property free
of restrictions, leases, liens and other encumbrances, except for the
exceptions permitted pursuant to paragraph 4, above. During the term of this
Agreement, Seller shall not conveyor accept any offer to convey the Property
or any portion of the Property nor shall Seller encumber or permit
encumbrance of the Property in any way nor grant any property, contract or
occupancy right relating to the Property or any portion thereof without the
prior written consent of Buyer, which may be withheld in Buyer's sole and
absolute discretion.
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e. Contracts. Seller hereby covenants, represents, and warrants that at the
Closing, there will be no contracts, licenses, commitments, or undertakings
concerning maintenance, operation, or repair of the Property or equipment on
the Property, or the performance of services on the Property, including
payment for such services performed prior to Closing, or the use of the
Property or any part of it, by which Buyer would become obligated or liable
to any person. If any person or entity makes a lawful claim for payment for
services performed prior to Closing (other than services provided to Buyer),
Seller will be obligated to payor cause to be paid such claim prior to Closing,
subject to Seller's right to contest the validity of such claim. If any such
claim for services performed prior to Closing (other than services provided to
Buyer) is made after the Closing, Seller shall indemnify, defend, and hold
Buyer harmless from any and all claims, demand, or liability. This duty of
defense and indenmification shall survive the Closing.
f. No Default. Seller hereby covenants, represents, and warrants that, to the
best of Seller's knowledge and belief, Seller has received no notice of any
default under any contract, transaction, agreement, encumbrance, or
instrument pertaining to the Property, which has remained uncured as of the
date of this Agreement. The obligation to notify Buyer of notices of default
shall extend to the Closing.
17. Page numbering references in this Agreement do not apply to exhibits or other
attachments. Diagrams, maps and/or drawings attached to this agreement, if any, are
provided for illustrative purposes only. In the event of conflict with a written
description, the written description shall control.
18. This Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors, representatives, and assigns.
19. This Agreement represents the entire and integrated agreement between Seller and
Buyer and supersedes all prior negotiations, representations, or agreements, either
written or oral. This Agreement may be amended only by written instrument signed
by Seller and Buyer
/I
/I
6
The undersigned represent and warrant they are duly authorized to execute this
Agreement and to bind the parties.
Dated:
SELLER
TlM J. BURGESS.
By:
TlM J. BURGESS
BUYER
SAN BERNARDINO JOINT POWERS
FINANCING AUTHORITY, Organized and
existing under the laws of the
State of California
By:
Chairperson
Approved as to Form:
By:
Agency Counsel
7
EXHIBIT" A"
LEGAL DESCRIPTION
Property Address: 120 South "D" Street
APN : 0136-122-60
THAT PORTlON OF LOTS 1,2 AND 3, BLOCK "D", THE PEPPERS, IN THE ClTY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS
PER PLAT RECORDED IN BOOK 17 OF MAPS, PAGE 8, RECORDS OF SAID COUNTY,
AND THAT PORTlON OF D STREET, VACATED BY RESOLUTlON 9848, RECORDED
MAY 29, 1969 IN BOOK 7241. PAGE 713, OR DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 1, BLOCK "D" OF THE PEPPERS,
SUBDIVISION, SAID POINT ALSO BEING IN THE EAST LINE OF STODDARD
AVENUE, (VACATED BY RESOLUTION 8506, RECORDED JANUARY 27, 1967 IN
BOOK 6764. PAGE 380, OFFICIAL RECORDS) 60.00 FEET WIDE;
THENCE SOUTH 164.91 FEET ALONG THE EAST LINE OF SAID VACATED
STODDARD AVENUE;
THENCE NORTH 890 59' 21" EAST 282.78 FEET TO A POINT ON A TANGENT CURVE
CONCAVE TO THE NORTH WITH A RADIUS OF 20.00 FEET AND A RADIAL BEARING
OF NORTH 000 39" WEST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 640
59' 21", AN ARC DISTANCE OF 22.69 FEET TO A TANGENT LINE;
THENCE NORTH 250 00' 00" EAST, 71.88 FEET ALONG SAID TANGENT LINE TO A
POINT ON A TANGENT CURVE CONCAVE TO THE WEST WITH A RADIUS OF 208.75
FEET AND A RADIAL BEARING OF NORTH 65000' 00" WEST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 250
00' 00", AN ARC DISTANCE OF 91.08 FEET TO A POINT ON THE SOUTH LINE OF THE
ATCHINSON, TOPEKA AND SANTA FE RAILROAD 50.00 FEET WIDE;
THENCE SOUTH 890 59' 25" WEST 350.83 FEET ALONG SAID SOUTH LINE OF
RAILROAD RIGHT OF WAY TO THE POINT OF BEGINNING.
CONTAINS 54.409.2 SQUARE FEET, MORE OR LESS.
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EXHIBIT "c"
REHABILITATION AND CERTIFICATION REQUIREMENTS
Prior to close of escrow, Buyer shall provide satisfactory proof of the following
1. Building Rehabilitation
a. rewire of building with 230 amp power
b. install new heat and air in office portion of building
c. replace and paint fascia board on office portion of building
d. paint north exterior wall of warehouse building
e. paint walls and replace carpet in office building
f. move wall, replace door and replace plumbing fixtures in front
restroom to be ADA compliant
g. replace plumbing fixture in rear restroom and install 3 '6" door
h. repair and replace damaged ceiling tiles in office building
1. install 15' x 60' truck wash area at west end of warehouse building
including City Water Department approved clarifier plumbed to City
sewer.
J. Slurry coat south parking lot
k. Remove pole sign
II. Certify in good condition:
a. all indoor and exterior lights and light fixtures
b. roll-up doors, man doors and locking mechanisms.
c. Chain link fencing and rolling gates
m. Warranty roof is free of leaks for 3 years from close of escrow.
8
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
This AGREEMENT dated this day of , 20 is
made and entered into by and between THE SAN BERNARDINO JOINT POWERS
FINANCING AUTHORITY, organized and existing under the laws of the State of
California, hereinafter called "Buyer", and Tim J. Burgess, a single man" hereinafter called
"Seller" (sometimes jointly referred to herein as the "Parties").
WITNESSES THAT:
IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
I. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller that certain
real property, herein called "the Property," generally located at 120 South "D" Street,
situated in the City of San Bernardino, County of San Bernardino, State of California,
described in Exhibit "A" and shown on a plat as Exhibit "B", both attached hereto
and incorporated by this reference, upon the terms and conditions herein set forth.
2. The total purchase price for the fee interest shall be the sum of one million six
hundred thousand dollars ($1,600,000) plus costs as such costs are specifically set
forth herein. The purchase price is based upon an appraisal of the fair market value
ofthe Property. The appraisal made no attempt to assign value to any lesser interest
in the Property, including any leasehold estate. The purchase price, therefore, is the
total price for the Property without distinction or separation for various interests that
may be held in the Property. Seller shall be responsible for any apportionment or
allocation ofthe purchase price if required for separately held interests that may exist.
3. Except as otherwise expressly provided herein, all costs of preliminary title report,
Phase I Environmental Study and Report, and report on tax and lien payment status
shall be paid by Buyer. Buyer shall have 45 days following opening of escrow to
approve or disapprove any contingency items. Seller shall pay for remediation of any
disapproved items. Upon failure of Seller to effect a timely cure Buyer may in the
exercise of its sole discretion elect to terminate and cancel this Agreement by notice
to the Seller. Thereafter, Buyer shall in no manner be further obligated by the terms
of this Agreement.
4. Escrow
a. Escrow shall be opened with Chicago Title Company, San Bernardino office. The
escrow fee shall be paid by contribution in equal sum from the Buyer and the Seller.
Seller shall pay for a CLTA policy and all transfer tax. The Buyer shall pay for an
AL T A Title policy if such shall be required. Buyer shall pay the recording fees. All
other escrow charges shall be divided between the Seller and the Buyer in the
customary manner for a transaction of this type.
1
b. Escrow instructions shall include the requirement for the completion of the
rehabilitation to the building and certification of good working order described in
Exhibit "C" attached hereto and incorporated by this reference.
c. Prior to close of escrow Buyer shall deposit therein $400,000. Additionally, Buyer
shall cause to be deposited the Promissory Note in the principal sum of one million
two hundred thousand dollars ($1,200,000), and Trust Indenture in form as agreed by
the Parties.
d. Seller shall deposit an executed Grant Deed for the Property,
5. Title to the fee interest in the Property shall be delivered free and clear of all liens,
encumbrances, conditions, restrictions, easements, rights of possession, and leasehold
interests excepting only such matters oftitle specifically waived in writing by the
Buyer. Seller shall provide Buyer with a Release of Lien or Consent to Easement
from each holder of a mortgage and/or deed of trust that is a lien against the Property.
The balance of the unpaid principal and interest due on any note or notes secured by
mortgages, deeds of trust, or other lien on the subject property, up to and including
the amount to be paid Seller under the terms of this Agreement, shall be deducted
from the purchase price and paid to the persons or entities entitled thereto, ifthey so
require. In such event, prepayment penalties, if any, together with trustee's fees and
recording costs will be paid by Seller. Seller shall provide Buyer with a Consent to
Easement from each Lessee having a leasehold interest in the property, or from any
other party claiming to have an interest in the property. Those matters of title
specifically waived by the Buyer are as follows:
(a) Current property taxes, including general and special taxes and assessments
collected therewith, which shall be allocated pursuant to applicable sections
of the Revenue and Taxation Code;
(b) The lien of supplemental taxes, if any, assessed pursuant to the provisions of
chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code
of the State of Cali fomi a;
(c) Such other matters affecting title to or use of the Property which are
approved in writing by Buyer.
6. Taxes, assessments, penalties, interest charges, delinquency charges, and municipal
service charges of every kind levied upon or assessed against the Property, except as
otherwise expressly set forth herein or arising from the subject fee interest being
acquired, shall be paid by Seller.
7. For the purpose of conveying the herein described fee interest to Buyer, Seller shall
execute, acknowledge, and deliver to Buyer a Grant Deed for recordation, in
accordance with this Agreement.
2
8. a. Seller hereby states that, to the best of Seller's knowledge, during the period of
Seller's ownership of the Property, there have been no known underground storage
tanks or related equipment nor known existence, disposal, storage, releases or
threatened releases of hazardous materials, substances or hazardous wastes on, from
or under the Property. Seller further represents that Seller has knowledge of
underground storage tanks and related equipment , that was properly permitted,
removed and inspected, but no knowledge of the existence, disposal, release, or
threatened release of hazardous materials, substances or hazardous wastes, on, from,
or under the Property which may have occurred prior to Seller taking title to the
Property.
b. The term "hazardous materials" when used in this Agreement shall mean any
hazardous waste or hazardous substance as defined in any federal, state, or local
statute, ordinance, rule, or regulation applicable to the property, including, without
limitation, the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (Title 42 United States Code sections 9601-9675), the
Resource Conservation and Recovery Act (Title 42 United States Code sections
690l-6992k), the Carpenter-Presley-Tanner Hazardous Substance Account Act
(Health and Safety Code sections 25300-25395.15), the Hazardous Waste Control
Law (Health and Safety Code sections 25100-25250.25, and any state and federal
underground tank laws, rules and regulations. "Hazardous materials" shall also
include asbestos or asbestos-containing materials, radon gas, and petroleum or
petroleum fractions, whether or not defined as a hazardous waste or hazardous
substance in any such statute, ordinance, rule, or regulation.
c. The acquisition price of the Property being acquired in this transaction reflects the
negotiated value for the Property without the presence of contamination. If prior to
the close of escrow the Buyer is placed on notice by the Seller or any other source of
information that leads it reasonably to conclude that any hydrocarbonous substance or
any hazardous substance or material, asbestos or asbestos-bearing material or other
environmental condition is present and which renders the Property subject to legal
requirements for investigation, corrective or remedial action on, in or under the
Property, Buyer shall notify Seller in writing of the same within 10 calendar days.
Buyer may within 20 calendar days after such notice, in the exercise of its sole
discretion elect to terminate and cancel this Agreement by notice to the Seller and to
Chicago Title. Thereafter, Buyer shall in no manner be further obligated by the terms
of this Agreement. Buyer may otherwise elect to continue this Agreement or to
continue this Agreement as modified by executed written agreement of the Parties.
Failure to provide notice to Seller as provided herein shall constitute an election to
continue the Agreement. If the notice of the presence of the hydrocarbonous
substance, etc., is received after the close of escrow, Buyer may cause the condition
to be corrected or remedied, or may pursue any other options as exist, in accordance
with applicable law. Consistent with the definitions set forth hereinabove, as used in
this paragraph, "any hazardous substance or material, asbestos or asbestos-bearing
material or other environmental condition" shall be as determined under federal, state
or local law then in effect.
3
d. Seller agrees that it shall within 24 hours or receipt of such notice place Buyer on
notice ofthe presence of any information Seller has received regarding the presence
or absence relative to the Property of hydro carbo no us substance or any hazardous
substance or material, asbestos or asbestos-bearing material or other environmental
condition as those terms are used herein.
e. The representations and promises made in this paragraph are intended to, and shall
survive the execution, delivery and recordation of the deed referenced in paragraph
number 7.
9. Buyer warrants to Seller that Buyer has not used the services ofa real estate broker.
Seller shall be responsible at Seller's sole expense for real estate brokerage fees or
commissions, if any.
10. Seller and Buyer shall, upon request by the other, execute, acknowledge, and deliver
such documents or take such action as may be necessary or convenient to carry out
the spirit and intent of this Agreement.
II. Time is of the essence in this Agreement.
12. In the event that Seller is unable to convey to Buyer the Property as herein provided
within 90 days ofthe date ofthis Agreement, then Buyer, at its option, may terminate
and cancel this Agreement and, in such event, Buyer shall in no manner be further
obligated by the terms of this Agreement.
13. If suit should be brought for any sum due or the enforcement or declaration of any
right or obligation hereunder, by either party, the prevailing party shall be entitled to
all costs incurred in connection with such action, including reasonable attorney's fees.
14. Any notice which either party mayor is required to give shall be in writing and given
by personal delivery or mailing same by certified mail, retum receipt requested,
postage prepaid, to the other party at the address shown below or at such other place
as may be designated by the parties from time to time, and any notice so mailed shall
be deemed received on the third day after mailing.
Buyer's address;
San Bernardino Joint Powers
Financing Authority
201 North "En Street, Third Floor
San Bernardino, CA 92418
Attn: Executive Director
4
Seller's address:
Tim J. Burgess
1625 Iowa Ave
Riverside, CA 92507
15. This Agreement is subject to final approval of the Mayor and Common Council of
the City of San Bernardino.
16. Seller represents, warrants and covenants to Buyer as of the date of this Agreement
and as of the date of the recording of the Grant Deed transferring the Property to the
Buyer (the "Closing"), as follows:
a. No Condemnation. To the best of the Seller's knowledge, there are no
pending or threatened condemnations or similar proceedings affecting the
Property, or any portion thereof, nor does the Seller have any knowledge that
any such action is contemplated.
b. No Proceedings. To the best of the Seller's knowledge, there are no legal
actions, suits, or other legal or administrative proceedings, including
condemnation cases, pending or threatened against or affecting the Property.
Seller has not received and is not aware of any notice from any public buyer
or entity with respect to any current or future proceeding against or basis for
any future proceeding against or affecting the Property or any part of the
Property, or concerning any existing or potential, past, present or future
hazardous materials at the Property.
c. No Violation of Law. Seller represents and warrants that, to the best of the
Seller's knowledge, as of the date of this Agreement and as of the Closing,
the Property is not in violation of any law, ordinance or regulation of any
governmental authority including those relating to the enviromnental
conditions on, under or about the Property, including, but not limited to, soil
and groundwater conditions.
d. Clear Title. Seller represents and warrants that Seller is the owner of the
Property and has marketable and insurable fee simple title to the Property free
of restrictions, leases, liens and other encumbrances, except for the
exceptions permitted pursuant to paragraph 4, above. During the term of this
Agreement, Seller shall not conveyor accept any offer to convey the Property
or any portion of the Property nor shall Seller encumber or permit
encumbrance of the Property in any way nor grant any property, contract or
occupancy right relating to the Property or any portion thereof without the
prior written consent of Buyer, which may be withheld in Buyer's sole and
absolute discretion.
5
e. Contracts. Seller hereby covenants, represents, and warrants that at the
Closing, there will be no contracts, licenses, commitments, or undertakings
concerning maintenance, operation, or repair of the Property or equipment on
the Property, or the performance of services on the Property, including
payment for such services performed prior to Closing, or the use of the
Property or any part of it, by which Buyer would become obligated or liable
to any person. If any person or entity makes a lawful claim for payment for
services performed prior to Closing (other than services provided to Buyer),
Seller will be obligated to payor cause to be paid such claim prior to Closing,
subject to Seller's right to contest the validity of such claim. If any such
claim for services performed prior to Closing (other than services provided to
Buyer) is made after the Closing, Seller shall indenmify, defend, and hold
Buyer harmless from any and all claims, demand, or liability. This duty of
defense and indemnification shall survive the Closing.
f. No Default. Seller hereby covenants, represents, and warrants that, to the
best of Seller's knowledge and belief, Seller has received no notice of any
default under any contract, transaction, agreement, encumbrance, or
instrument pertaining to the Property, which has remained uncured as of the
date of this Agreement. The obligation to notify Buyer of notices of default
shall extend to the Closing.
17. Page numbering references in this Agreement do not apply to exhibits or other
attachments. Diagrams, maps and/or drawings attached to this agreement, if any, are
provided for illustrative purposes only. In the event of conflict with a written
description, the written description shall control.
18. This Agreement shall bind and inure to the benefit of the parties hereto and their
respective successors, representatives, and assigns.
19. This Agreement represents the entire and integrated agreement between Seller and
Buyer and supersedes all prior negotiations, representations, or agreements, either
written or oral. This Agreement may be amended only by written instrument signed
by Seller and Buyer
II
II
6
The undersigned represent and warrant they are duly authorized to execute this
Agreement and to bind the parties.
Dated:
SELLER
TIM J. BURGESS.
By:
TIM J. BURGESS
BUYER
SAN BERNARDINO JOINT POWERS
FINANCING AUTHORITY, Organized and
existing under the laws ofthe
State of California
By:
Chairperson
Approved as to Form:
B'-:AV~
gen y Counsel
7
EXHIBIT "A"
LEGAL DESCRIPTION
Property Address: 120 South "D" Street
APN : 0136.122.60
THAT PORTION OF LOTS 1,2 AND 3, BLOCK "D", THE PEPPERS, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS
PER PLAT RECORDED IN BOOK 17 OF MAPS, PAGE 8, RECORDS OF SAID COUNTY,
AND THAT PORTION OF D STREET, VACATED BY RESOLUTION 9848, RECORDED
MAY 29, 1969 IN BOOK 7241. PAGE 713, OR DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 1, BLOCK "D" OF THE PEPPERS,
SUBDIVISION, SAID POINT ALSO BEING IN THE EAST LINE OF STODDARD
AVENUE, (VACATED BY RESOLUTION 8506, RECORDED JANUARY 27, 1967 IN
BOOK 6764, PAGE 380, OFFICIAL RECORDS) 60.00 FEET WIDE;
THENCE SOUTH 164.91 FEET ALONG THE EAST LINE OF SAID VACATED
STODDARD A VENUE;
THENCE NORTH 890 59' 21" EAST 282.78 FEET TO A POINT ON A TANGENT CURVE
CONCAVE TO THE NORTH WITH A RADIUS OF 20.00 FEET AND A RADIAL BEARING
OF NORTH 000 39" WEST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 640
59' 21", AN ARC DISTANCE OF 22.69 FEET TO A TANGENT LINE;
THENCE NORTH 250 00' 00" EAST, 71.88 FEET ALONG SAID TANGENT LINE TO A
POINT ON A TANGENT CURVE CONCAVE TO THE WEST WITH A RADIUS OF 208.75
FEET AND A RADIAL BEARING OF NORTH 650 00' 00" WEST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 250
00' 00", AN ARC DISTANCE OF 91.08 FEET TO A POINT ON THE SOUTH LINE OF THE
ATCHINSON, TOPEKA AND SANTA FE RAILROAD 50.00 FEET WIDE;
THENCE SOUTH 890 59' 25" WEST 350.83 FEET ALONG SAID SOUTH LINE OF
RAILROAD RIGHT OF WAY TO THE POINT OF BEGINNING.
CONTAINS 54.409.2 SQUARE FEET, MORE OR LESS.
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EXHffiIT "C"
REHABILITATION AND CERTIFICATION REQUIREMENTS
Prior to close of escrow, Buyer shall provide satisfactory proof of the following
1. Building Rehabilitation
a. rewire of building with 230 amp power
b. install new heat and air in office portion of building
c. replace and paint fascia board on office portion of building
d. paint north exterior wall of warehouse building
e. paint walls and replace carpet in office building
f. move wall, replace door and replace plumbing fixtures in front
restroom to be ADA compliant
g. replace plumbing fixture in rear restroom and install 3'6" door
h. repair and replace damaged ceiling tiles in office building
1. install 15' x 60' truck wash area at west end of warehouse building
including City Water Department approved clarifier plumbed to City
sewer.
J. Slurry coat south parking lot
k. Remove pole sign
II. Certify in good condition:
a. all indoor and exterior lights and light fixtures
b. roll-up doors, man doors and locking mechanisms.
c. Chain link fencing and rolling gates
m. Warranty roof is free of leaks for 3 years from close of escrow.
8