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HomeMy WebLinkAbout05.P- Public Works RESOLUTION (ID# 2635) DOC ID: 2635 B CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract Amendment From: Tony Frossard M/CC Meeting Date: 10/07/2013 Prepared by: Ryan Sandoval, (909) 384-5140 Dept: Public Works Ward(s): 5 Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Directing and Authorizing the Execution of an Amendment to the Purchase and Sale Agreement with Montecito Equities, Ltd. to Extend the Termination of Escrow for the Sale of City of San Bernardino Municipal Water Department Owned Parcel of Real Property Generally Located Northeasterly of Meyers Road and West of Martin Ranch Road in the City of San Bernardino. (#2635) Current Business Registration Certificate: Not Applicable Financial Impact: Motion: Adopt the Resolution. Synopsis of Previous Council Action: 10/18/2010 Motion approved to continue this matter to November 15, 2010. 11/15/2010 Motion approved to continue this matter to December 6, 2010. 12/06/2010 Motion approved to continue this matter to January 24, 2011. 01/24/2011 Adopted Resolution No. 2011-17 declaring property surplus, establishing the fair market value and setting a public hearing for City Water Department owned property, generally located northeasterly of Meyers Road and west of Martin Ranch Road. 02/22/2011 Public Hearing was closed and Resolution No. 2011-41 was adopted, authorizing the execution of a Purchase and Sale Agreement and Grant Deed for a portion of City Water Department property generally located northeasterly of Meyers Road and west of Martin Ranch Road. Background: On April 22, 2010, the City of San Bernardino Municipal Water Department Board of Water Commissioners ("Board"), declared 5.1 acres of Water Department property as surplus property, generally located northeasterly of Meyers Road, and being a portion of APN 0348-101-76. The City acquired the site through a Grant Deed from Frank & Barbara Tostado, and Sant/Tostado #1, a general partnership, for the amount of$30,000 in May 1983, for the future construction of a water storage reservoir. The Grant Deed has no reservations or restrictions on the sale of the land or any portion of the land. The site is currently vacant and is located in the foothills of the San Bernardino mountains. Due to the natural hilly terrain, there is a large slope along the southwesterly portion of the property, and vehicle access to the property is limited. The property is 5.1 acres and consists of Updated: 10/3/2013 by Georgeann"Gigi"Hanna B Packet Pg. 347 2635 approximately 222,160 square feet of sloping land, and is shown more specifically on the attached maps. Water Department ("Department") staff and a consultant completed the Master Plan in 2007 and concluded that this parcel is not necessary for a future reservoir as an alternative site has been identified to meet the 4.0 million gallon water storage requirement. Montecito Equities, Ltd. Is planning a proposed residential development (Spring Trails - Tract Map No. 15576) easterly of this City-owned parcel. Montecito Equities approached the Water Department to purchase the subject property, which will allow it to be used for a portion of the proposed development's secondary access. A summary appraisal was completed by Inland Empire Consultants, Inc., on behalf of Montecito Equities on March 10, 2010, indicating the estimated market value to be $22,000, based on the terrain and limited access. Section 2.65.030 of the San Bernardino City Municipal Code allows the sale of property valued under $25,000 to be sold by negotiated purchase, so long as the sales price is not less than the fair market value. Since this property has continually been vacant and is of no use to the Department, the Board recommends that the City declare the property as surplus and sell it to Montecito Equities, Ltd. For$22,000, with the condition that a portion of the property will be subject to a deed restriction that indicates such portion may only be used for the construction and maintenance of a roadway. At the Council meetings held on 10/18/2010, 11/15/2010, and 01/24/2011, several neighborhood residents came forward objecting that the appraisal prepared by Inland Empire Consultants, Inc. Was too low. To address the concerns raised by residents, the Department referred the appraisal to Jim Smothers of Smothers Appraisal, a certified general appraiser, to conduct a desk review. Mr. Smothers concluded that the appraisal was adequately researched, analyzed and reported. On January 24, 2011, Resolution No. 2011-17 was adopted, declaring the property surplus, establishing the appraised value of$22,000 as the fair market value, and set a public hearing for February 22, 2011, relative to the proposed sale. On February 22, 2011, the Mayor closed the hearing and Resolution No. 2011-41 was adopted, authorizing the execution of a Purchase and Sale Agreement and Grant Deed for the property. Both executed documents were delivered to First American Title Company to open escrow on March 16, 2011. Per the Purchase and Sale Agreement, escrow was to terminate eighteen (18) months after the opening of escrow, unless otherwise closed prior to such date. The reasoning for the delay in closing escrow was for the purpose of allowing the Spring Trails development to be approved by the Mayor and Common Council, another condition of the Purchase and Sales Agreement. Due to delays in the project approval process, the transaction was not completed prior to the termination of escrow, which terminated on September 16, 2012. Although escrow terminated, the Water Department was willing to allow the parcel to continue to be sold to Montecito for the indicated amount, without reappraising the property, as long as the Spring Trails project was approved. On February 22, 2013, the Mayor and Common Council adopted Resolution No. 2013-34 (Adopting the Facts, Findings and Statement of Overriding Considerations; Certifying the Final Environmental Impact Report; Adopting the Mitigation Monitoring and Reporting Plan; Updated: 10/3/2013 by Georgeann"Gigi"Hanna B I Packet Pg. 348 2635 Adopting the Spring Trails Specific Plan No. SP10-01; Adopting General Plan Amendment No. GPA 02-09 Including Pre-Annexation of the Spring Trails Project Site; Approving Tentative Tract Map (TTM) No. 15576 (Subdivision No. 02-09); and Authorizing Execution of Development Agreement No. 11-01.) Montecito has recently sent a letter (attached) requesting that the Purchase and Sale Agreement that was previously approved and deposited into escrow, be amended to allow the escrow to terminate on or before December 22, 2013. All other terms and conditions of the agreement will remain the same as approved. The attached resolution authorizes the execution of an Amendment to a Purchase and Sale Agreement with Montecito Equities, Ltd. If, approved, staff recommends that the escrow be extended to terminate on or before December 31, 2013. City Attorney Review: Supporting Documents: Resolution (PDF) Resolution- EXHIBIT 1 -Amendment to Sales &Purchase Agreement (PDF) Attachment 1 - Reso 2011-41 Purchase and Sale Agreement (PDF) ORIGINAL -Amendment to Sales &Purchase Agreement (PDF) Montecito Letter (PDF) Updated: 10/3/2013 by Georgeann"Gigi"Hanna B Packet Pg. 349 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DIRECTING AND AUTHORIZING THE EXECUTION OF 3 AN AMENDMENT TO THE PURCHASE AND SALE AGREEMENT WITH 4 MONTECITO EQUITIES, LTD. TO EXTEND THE TERMINATION OF ESCROW FOR THE SALE OF CITY OF SAN BERNARDINO MUNICIPAL WATER 5 DEPARTMENT OWNED PARCEL OF REAL PROPERTY GENERALLY LOCATED NORTHEASTERLY OF MEYERS ROAD AND WEST OF MARTIN E 6 RANCH ROAD IN THE CITY OF SAN BERNARDINO. L 7 a WHEREAS, on February 22, 2011, by Resolution No. 2011-41, the Mayor and 8 rn Common Council authorized the execution of a Purchase and Sale Agreement and the 0a 9 execution of a Grant Deed for the sale of City of San Bernardino Municipal Water 2 10 11 Department owned parcel of real property, generally located northeasterly of Meyers Road o 12 and west of Martin Ranch Road to Montecito Equities, Ltd; and E 13 14 WHEREAS, escrow was opened with First American Title Company in San < a. 15 Bernardino, CA, on March 16, 2011, and per the Sales and Purchase agreement, escrow was a. 16 to terminate eighteen(18) months after escrow opened, with a termination date of September M 17 16, 2012; and N 18 WHEREAS, on February 19, 2013, by Resolution No. 2013-34, the Mayor and 19 Common Council approved the Spring Trails Specific Plan and Environmental Impact 20 2 Report; and 21 H WHEREAS, Montecito Equities, Ltd., delivered a letter requesting the extension of 22 23 the termination of escrow to be December 22, 2013, to be able to proceed with the purchase 24 of the City of San Bernardino Municipal Water Department property, a 25 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 26 CITY OF SAN BERNARDINO AS FOLLOWS: 27 SECTION 1. That the City Manager of the City of San Bernardino, is hereby . 28 authorized and directed to execute on behalf of said City, an Amendment to the Purchase and hacked I Sale Agreement with Montecito Equities, Ltd., to extend the termination of escrow to 2 December 31, 2013, for the sale of certain City of San Bernardino Municipal Water 3 Department owned parcel of land, generally located northeasterly of Meyers Road and west 4 of Martin Ranch Road, in the City of San Bernardino, State of California, known as 5 Assessor's Parcel No. 0348-101-76, attached hereto and marked Exhibit "1", and more fully E 6 7 described in said Purchase and Sale Agreement, a copy of which is attached hereto marked d 8 Attachment"1", and both incorporated herein. 9 SECTION 2. The authorization to execute the above-referenced Amendment to the 10 Purchase and Sale Agreement is rescinded if the parties fail to execute the Amendment within a 11 0 ninety(90) days of the date of adoption of this Resolution. 12 E 13 E 14 15 16 i0 M 17 N 18 0 M 19 20 C 21 d 22 23 24 a 25 26 27 28 Packet Pg.351 RESOLUTION OF THE CITY OF SAN BERNARDINO DIRECTING AND AUTHORIZING 1 THE EXECUTION OF AN AMENDMENT TO THE PURCHASE AND SALE AGREEMENT WITH MONTECITO EQUITIES, LTD. TO EXTEND THE TERMINATION OF ESCROW FOR THE SALE 2 OF CITY OF SAN BERNARDINO MUNICIPAL WATER DEPARTMENT OWNED PARCEL OF REAL PROPERTY GENERALLY LOCATED NORTHEASTERLY OF MEYERS ROAD AND WEST 3 OF MARTIN RANCH ROAD IN THE CITY OF SAN BERNARDINO. 4 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 _ and Common Council of the City of San Bernardino at a meeting E 6 7 thereof, held on the day of , 2013,by the following vote,to wit: y 8 Council Members: AYES NAYS ABSTAIN ABSENT N a� 9 MARQUEZ 10 L JENKINS (L 11 VALDIVIA 12 E 13 SHORETT E 14 KELLEY 15 JOHNSON 16 M MCCAMMACK N 17 N C 18 0 19 Georgeann Hanna, City Clerk The foregoing resolution is hereby approved this day of °- 20 g g Y PP Y , 2013. 21 22 Patrick J. Morris, Mayor a 23 City of San Bernardino 24 Approved as to form: a 25 JAMES F. PENMAN, City A mey 26 ' By: ems_ 27 28 Packet Pg.352 EXHIBIT "1" N AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS 06 d N fC t V THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT a 0 ESCROW INSTRUCTIONS is made as of this day of d E 2013, by and between the CITY OF SAN BERNARDINO, a municipal corporation, E hereinafter referred to as "CITY", and MONTECITO EQUITIES LTD., a California 4 limited partnership,hereinafter referred to as "MONTECITO". WHEREAS, the parties have previously executed a Purchase and Sale Agreement o and Joint Escrow Instructions ("Agreement") dated February 22, 2011, a copy of which is r- 0 attached and incorporated herein as Attachment "I", for that certain City of San Bernardino Municipal Water Department owned parcel of real property generally located northeasterly E of Meyers Road and west of Martin Ranch Road, in the City of San Bernardino, State of a California, known as Assessor's Parcel No. 0348-101-76; and y o WHEREAS, the parties hereto desire to amend said Agreement, to extend the a 08 termination of escrow as set forth in Article III—Closing, to December 31, 2013. NOW THEREFORE, the parties hereby mutually agree to an amendment to said o Agreement as follows: a 1. ARTICLE III, Section 3.1(C). Termination of Escrow is amended to read as E a follows: m "Escrow shall terminate on December 31, 2013, unless Escrow Closes prior to that X w date as described above." c 0 2. All other terms and conditions of the Agreement shall remain in effect. 0 d c a� 1 of 2 Q Packet Pg.353 N IN WITNESS WHEREOF, the parties have executed this Amendment to Purchase and Sale Agreement and Joint Escrow Instructions the day and year as first written above. 06 d r CITY: MONTECITO: a O CITY OF SAN BERNARDINO, MONTECITO EQUITIES, LTD., a Municipal corporation a California limited partnership _ a� E By: EXHIBIT COPY By: EXHIBIT COPY Cn Allen Parker Yu Ying Huang Lin Its: City Manager Its: President LO M 54- T _ O ATTEST: N c d Georgeann Hanna, City Clerk a N f0 Approved as to form: a otS m m James F. Penman, City Attorney c c as E a� E a m x X W _ O 7 O N d _ d E U co w 2 of 2 Q Packet Pg.354' y d AMENDMENT TO PURCHASE AND SALE AGREEMENT (n AND JOINT ESCROW INSTRUCTIONS d N lC t V THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT a 0 r ESCROW INSTRUCTIONS is made as of this ____day of E 2013, by and between the CITY OF SAN BERNARDINO, a municipal corporation, E hereinafter referred to as "CITY", and MONTECITO EQUITIES LTD., a California Cl) limited partnership, hereinafter referred to as "MONTECITO". WHEREAS, the parties have previously executed a Purchase and Sale Agreement N and Joint Escrow Instructions ("Agreement") dated February 22, 2011, a copy of which is 0 attached and incorporated herein as Attachment"I", for that certain City of San Bernardino u Municipal Water Department owned parcel of real property generally located northeasterly E of Meyers Road and west of Martin Ranch Road, in the City of San Bernardino, State of a California, known as Assessor's Parcel No. 0348-101-76; and U WHEREAS, the parties hereto desire to amend said Agreement, to extend the a termination of escrow as set forth in Article III—Closing, to December 31, 2013, NOW THEREFORE, the parties hereby mutually agree to an amendment to said 0 r r c Agreement as follows: E c I. ARTICLE III, Section 3.1(C). Termination of Escrow is amended to read as E follows: m "Escrow shall terminate on December 31, 2013, unless Escrow Closes prior to that w date as described above." c .2 2. All other terms and conditions of the Agreement shall remain in effect. d w d E w r i of 2 Q Packet Pg.355 IN WITNESS WHEREOF,the parties have executed this Amendment to Purchase in and Sale Agreement and Joint Escrow Instructions the day and year as first written above. Ca aD L V CITY: MONTECITO: a 0 CITY OF SAN BERNARDINO, MONTECITO EQUITIES, LTD., a Municipal corporation a California limited partnership E c a� E Q Cl) By: By: � Allen Parker Yu Ying Huang Lin Its: City Manager Its: President I cMo N r _ O ATTEST: N d _ d Georgeann Hanna, City Clerk Q a� �a Approved as to form: 2 3 a. ca t6 J s F. Penman, City Attorney y 0 E a c d E Q m_ X c O Y 0 N d _ d E L U fQ rr 2 of 2 Q Packet Pg.356 �_ pc 2011-41 PURCHASE AND SALE AGREEMENT r AND JOINT ESCROW INSTRUCTIONS as d L This P rchase and Sale Agreement and Joint Escrow Instructions ("Agreement") is dated Q as of thia'Oay of February, 2011 ("Effective Date"), by and between Montecito Equities Ltd., � a California limited partnership ("Montecito"), and City of San Bernardino, a Municipal CO Corporation ("City"). Hereafter, Montecito and City are sometimes referred to as "Party" and collectively as "Parties". U) RECITALS 3 a. 0 WHEREAS, City owns for the benefit of the City of San Bernardino Municipal Water Department approximately 5.1 acres of real property in the County of San Bernardino, State of E California, as more particularly described in Exhibit "A," attached hereto and incorporated by this reference (the"Property"); 0 E Q WHEREAS, City of San Bernardino Municipal Water Department has deemed the W Property as surplus property; L WHEREAS, Montecito desires to purchase the Property from City, and City desires to M sell the Property to Montecito, on the terms and conditions contained in this Agreement; and N WHEREAS, the Parties desire to enter into this Agreement to memorialize the terms and E conditions upon which City shall sell, and Montecito shall purchase,the Property. L OPERATIVE PROVISIONS co NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by this reference, and for other good and valuable consideration, the receipt @ and sufficiency of which is hereby acknowledged, and in consideration of the mutual covenants contained herein, the Parties hereby agree as follows: L a ARTICLE I PURCHASE AND SALE 0 1.1 Purchase and Sale. Montecito agrees to purchase the Property from City and o City agrees to sell the Property to Montecito, subject to the terms, conditions, and covenants contained in this Agreement. The Property shall be conveyed to Montecito at the Close of r Escrow free of any monetary encumbrances, all of which shall be paid by City on or before the Closing. E 1.2 Deed Restriction. The Property shall be conveyed to Montecito at the Closing w subject to a deed restriction ("Deed Restriction") that will provide that the portion of the a Property described on Exhibit "B", attached hereto and incorporated herein by reference ("Restricted Portion") may only be used for the construction, maintenance and operation of a E roadway hich will include all ancillary uses such as utility easements, 1 e d setbacks). y ( y y sop slopes 0 Q -1- Water Distriv Purchase Agreement(0348-101-16)002 M6B i-01?--511899.1 Packet P . 357 2011-41 ARTICLE II r PURCHASE PRICE AND DEPOSITS d 2.1 Escrow. After this Agreement is executed by both Parties, Montecito shall open an escrow("Escrow") with First American Title Insurance Company, 330 West Court Street, San a Bernardino, California 92401 ("Escrow Holder"), by delivering a fully executed copy of this Agreement to Escrow Holder. co 06 d 2.2 Purchase Price. The Purchase Price for the Property shall be Twenty-Two Thousand and No/100 Dollars ($22,000.00) ("Purchase Price"), payable as follows: 2 a. (a) D_ eposit. Within five (5)business days of the opening of Escrow, Montecito shall deposit with Escrow Holder the sum of Five Thousand and No/100 C Dollars($5,000.00) ("Deposit"). E (b) Balance of Purchase Price. At the Closing, Montecito shall deposit into E Escrow the sum of Seventeen Thousand and No/100 Dollars ($17,000.00) co in cash, or other immediately available funds, which, together with the 9� a. Deposit,totals the Purchase Price. Ln 2.3 Form of Payment. All money payable under this Agreement shall be paid in N cash, by wire transfer, a cashier's check or certified check of immediately available federal funds of the United States. a� ARTICLE III CLOSING a co d 31 Closing. The purchase and sale of the Property shall be consummated through a closing("Closing") in accordance with the following: CD LO A. Close of Escrow. The close of escrow ("Close of Escrow") shall occur thirty (30) days after Mayor and Council approval and certification of the Spring Trails Specific 3 Plan and Environmental Impact Report (the "Closing Date"); the approval and certification of a. the Spring Trails Specific Plan and Environmental Impact Report shall be subject to the sole discretion of the Mayor and Council. The Close of Escrow shall occur at the office of the c Escrow Holder or such other location as is acceptable to the Parties to this Agreement. c rn B. ClosiniDocuments. r (i) Cam. Prior to the Closing Date, City shall cause to be delivered to a=i Escrow the following: E (a) A grant deed ("Deed") conveying the Property to a Montecito, which Deed shall include the Deed Restriction on the Restricted Property; d E (b) Such documents and instruments as Escrow may reasonably require to evidence the due authorization and execution of the documents and instruments to be delivered by City under this Agreement; and Q -2- Water District Purchase Agreement(0348-101-76)002 \4681-012--51109 1 Packet Pg.358 2011-41 (ii) Montecito. Prior to the Closing Date, Montecito shall deliver to .� the Escrow the following: a� (a) The balance of the Purchase Price payable by Montecito at the Closing pursuant to Section 2.2(b), plus Montecito's and the City's share of any costs and N expenses to be paid to or through Escrow; and U) (b) Such documents and instruments as Escrow may reasonably require to evidence the due authorization and execution of the documents and instruments to be delivered by Montecito under this Agreement. L a. C. Termination of Escrow. Escrow shall terminate eighteen (18) months after Escrow opens unless Escrow Closes prior to that date as described above. E 3.2 Fees; Expenses; Prorations. E A. Fees, Expenses, Transfer Taxes. Montecito shall pay: (a) Escrow Holder's fee; (b)the cost of any title policy that Montecito elects to purchase; (c) any documentary transfer tax payable on the sale of the Property. Montecito and City shall each pay for their own attorneys' fees. LO M tD B. Real Property Taxes, Assessments and Rents. Any real property taxes and assessments shall be prorated and adjusted on the basis of the actual days in the calendar year. Montecito shall pay for the date of Closing. Montecito acknowledges that City is not subject to E real property taxes and assessments. a C. Commissions. Montecito and City each represent to each other that they have not employed or contracted with any other broker on their behalf in connection with this transaction. � d N ARTICLE IV DEFAULT 3 a. 4.1 Montecito's Default. IF MONTECITO DEFAULTS UNDER THIS AGREEMENT, CITY SHALL BE RELEASED FROM OBLIGATION TO SELL THE o PROPERTY TO MONTECITO, BUT CITY, BY INITIALING THIS PARAGRAPH, SHALL o HAVE RELEASED MONTECITO FROM ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF SUCH DEFAULT, AND CITY SHALL HAVE AGREED THAT CITY SHALL RETAIN THE "DEPOSIT" AS LIQUIDATED DAMAGES, AND THAT SUCH RETENTION SHALL BE CITY'S SOLE REMEDY AGAINST MONTECITO IN REGARD d TO SUCH DEFAULT. THE TARTIES HERETO HAVE CONSIDERED THE AMOUNT OF DAMAGES WHICH CITY IS LIKELY TO INCUR IN THE EVENT OF A DEFAULT OR BREACH HEREUNDER BY MONTECITO, AND THE PARTIES HERETO HAVE AGREED Q THAT THE DEPOSIT IS A REASONABLE APPROXIMATION AND LIQUIDATION OF = CITY'S POTENTIAL DAMAGES, CONSIDERING ALL OF THE CIRCUMSTANCES E EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO CITY THAT REASONABLY COULD BE Q ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES -3- Water District Purchase Agreement(0348.101.76)002 M6131-012--51 1899A Packet pg.359; 2011-41 — WOULD BE COSTLY OR INCONVENIENT. THE RECEIPT AND RETENTION OF SUCH AMOUNT BY CITY IS INTENDED TO CONSTITUTE THE LIQUIDATED DAMAGES TO CITY PURSUANT TO THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISION. SAID AMOUNT OF a LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER REMEDIES, DAMAGES OR SUMS DUE OR PAYABLE TO CITY. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF N THE STATEMENTS MADE ABOVE. �IJ 1 . a MONTECITO ITY c 4.2 City's Default. If the transaction contemplated hereby fails to close as the result E of City's default under this Agreement, Montecito shall have no remedies available at law or in equity,other than specific performance. E Q ARTICLE V REPRESENTATIONS AND WARRANTIES LO 5.1 City's Representations and Warranties. City represents and warrants to N Montecito that, as of the date this Agreement is executed and as of the Closing Date: (i) City has full right, power and authority to execute and deliver this Agreement and to perform the a undertakings of City contained in this Agreement; (ii)this Agreements constitutes valid and binding obligations of City that are legally enforceable in accordance with its terms; (iii) City is �, not aware of any hazardous materials that have been released on the Property; (iv) City is not aware of any matters that would affect the value or desirability of the Property. ARTICLE VI a a� INDEMNIFICATION N s 6.1 Indemnification and Hold Harmless. Montecito shall defend, indemnify, and hold harmless the City, its officers, employees and agents from any claims, demands, lawsuits, a liabilities,judgments, or expenses, including attorney's fees damage to property or in j uries to or `r death of any person or persons or damages of any nature including, but not limited to, all civil N claims or workers' compensation claims, arising out of, pertaining to, or related to Montecito's o performance of this Agreement, including, but not limited to, any third party challenges to the Ix City's approval of this Agreement. .r c m ARTICLE VII MISCELLANEOUS a 7.1 Assignment. Neither Party shall assign its rights nor delegate its obligations under this Agreement without obtaining the prior written consent of the other Party hereto. E 7.2 Attorneys' Fees. If any action,proceeding or arbitration is brought to interpret or Q enforce the terms of this Agreement, the prevailing party shall be entitled to recover from the -4- Water District Purchase Agreement(0348.101-76)002 511899.1 Packet Pg.360 2011-41 other party all costs and expenses of such action, proceeding or arbitration, including but not w limited to actual attorneys' fees, witness fees' and court costs. The phrase "prevailing party" as used in this Section shall include a party who receives substantially the relief desired whether by d dismissal, summary judgment or otherwise. The costs, salary and expenses of the City Attorney a and members of his office in connection with that action shall be considered as "attorneys' fees" N for the purposes of this Agreement. v 7.3 Notices. All notices and requests under this Agreement shall be in writing and shall be sent by personal delivery, by certified or registered mail, postage prepaid, return receipt requested, or nationally recognized overnight mail carrier such as Federal Express, to the following street addresses: 0- 0 To City: To Montecito: E Equities,Montecito E City of San Bernardino q Ltd. d Attn: General Manager Attn: Tom Wilkinson E P.O. Box 710 100 Pacifica, Ste 345 San Bernardino, CA 92402 Irvine, CA 92618 a With a copy to: Gresham, Savage, Nolan &Tilden, APC M Attn: J. Matthew Wilcox,Esq. N 550 E. Hospitality Lane, Suite 300 �. San Bernardino, CA 92408-4205 d d L a� a All notices shall be effective upon receipt or rejection. 7.4 Cooperation. Each Party shall fully cooperate with the other in connection with the requirements imposed by this Agreement upon the other, to the end that neither Party shall N act in any manner to impede the other in performing its obligations under this Agreement. L 7.5 Interpretation/ForumNenue. This Agreement shall be construed and enforced a. in accordance with the laws of the State of California as applicable to contracts entered into in 17 California among parties doing business therein. The Parties agree that any litigation or dispute o concerning this Agreement or the transaction contemplated hereby will be resolved in the 0 Superior Court of the State of California, County of San Bernardino only. 7.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefits of the heirs, successors and assigns of the parties to this Agreement. E 7.7 Severability. If any term or provision of this Agreement is determined to be M invalid or unenforceable, the remaining terms and provisions shall not be affected thereby and Q shall remain in full force and effect to the maximum extent permitted by law. d E 7.8 Counterparts. This Agreement may be executed in counterparts, all of which shall constitute the same Agreement, notwithstanding that all parties to this Agreement are not w signatory to the same or original counterpart. -5- Water District Purchase Agreement(0345-101-76)00: �,t,g-Ot?._51190" Packet Pg.361 2011-41 7.9 Survival. All covenants and agreements of the Parties hereto shall survive the Closing. d 7.10 Withholding Requirements. Montecito and City agree to comply with any a, withholding requirements of Federal or State law. a N N 7.11 Integration. This Agreement, together with all the agreements referenced herein, in constitutes the entire agreement between the Parties pertaining to the subject matter contained in 06 a) it and supersedes all prior and contemporaneous agreements, representations, and understandings of the Parties. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by all the Parties. No waiver of any of the provisions of this a. Agreement will be considered, or will constitute, a waiver of any other provision, and no waiver ° will constitute a continuing waiver. No waiver will be binding unless executed in writing by the Party making the waiver. E m IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first a set forth above. co "MONTECITO" `CITY" LO MONTECITO EQUITIES,LTD., a CITY OF SAN BERNARDINO, a c California limited partnership Municipal corporation a� E By: By: ..� -ITiomas Wilkinson Charles E. McNeel Q Its: General Partner Its: City Manager c Date: �ACt r ?_1 tcrt a a) N R t V L a r d' Approved As To Form: 0 N O to `�_ � d a es F. Penman, City Attorney c m E ca w a d E a -6- Water District Purchase Agreement(0348.101-76)002 M681-012-511899.1 Packet Pg.362' 2011-41 EXHIBIT "A" c LEGAL DESCRIPTION OF PROPERTY d E as All that certain real property located in the County of San Bernardino, more particularly described as follows, and as depicted on Exhibit"A-1", attached hereto: a d PARCEL NO. 1 in 06 THAT PORTION OF LOT 15; MEYERS AND BARCLAY SUBDIVIDION, IN THE v0i COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 2 OF MAPS, PAGE 32, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBECD AS FOLLOWS: a 0 BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 15; THENCE SOUTH 27 DEGREES 15 MINUTES WEST ALONG THE EASTERLY LINE OF SAID LOT 15, 540 E FEET, THENCE WESTERLY AT RIGHT ANGLES TO SAID EASTERY LINE TO THE POINT OF INTERSECTION WITH THE WE m STERLY LINE OF THE PROPERTY E CONVEYED TO SAM STERN AND SHIRLEY STERN, HUSBAND AND WIFE, BY DEED < RECORDED IN BOOK 6114, PAGE 14, OFFICIAL RECORDS; THENCE NORTHERLY U) TO THE POINT OF INTERSECTION OF A LINE PARALLEL TO THE NORTHERLY a LINE OF SAID LOT 15, DISTANT 320 FEET THEREFROM WITH A LINE PARALLEL TO THE EASTERLY LINE OF SAID LOT 15, DISTANT 515 FEET THEREFROM, THENCE EASTERLY PARALLEL TO THE NORTHERLY LINE OF SAID LOT, 175 FEET; THENCE NORTH PARALLEL TO THE EASTERLY LINE OF SAID LOT 15 TO A POINT ON THE NORTHERLY LINE OF SAID LOT 15; THENCE EASTERLY ALONG = THE NORTHERLY LINE OF SAID LOT TO THE POINT OF BEGINNING. PARCEL NO. 2: as Q AN EASEMENT FOR ROADWAY, PIPELINE AND RELATED PURPOSES, IN, OVER, UNDER AND ACROSS THE FOLLOWING DESCRIBED PROPERTY: U) a THAT PORTION OF LOT 15, MEYERS AND BARCLAY SUBDIVISION, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 2 OF MAPS, PAGE 32, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: a A STRIP OF LAND 50 FEET WIDE, THE CENTER LINE OF WHICH IS DESCRIBED AS FOLLOWS: T 0 BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 15, THENCE SOUTH 27 0 DEGREES 15 MINUTES WEST ALONG THE EASTERLY LINE OF SAID LOT 15, 540 FEET; THENCE WESTERLY AT RIGHT ANGLES TO SAID EASTERLY LINE 280 FEET, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE SOUTHWESTERLY PARALLEL TO SAID EASTERLY LINE OF LOT 15 TO THE INTERSECTION OF SOUTHERLY LINE OF THE PROPERTY CONVEYED TO E EMANUEL NEIMAN AND AGNES NEIMAN, HUSBAND AND WIFE, BY DEED RECORDED DECEMBER 14, 1943 IN BOOK 1645, PAGE 136, OFFICIAL RECORDS w OF SAID COUNTY, TO THE TERMINATION OF SAID STRIP a NOTE: SIDELINES OF SAID EASEMENT SHALL BE SHORTENED OR LENGTHENED IN ORDER TO TERMINATE AT THE SOUTHERLY LINE OF SAID NEIMAN PROPERTY. c+a EXHIBIT"A" M681-012-5118091 Packet Pg.363 2011-41 EXHIBIT "A-1" DEPICTION OF PROPERTY d E d d L Q N O c0 co d N Rf U L a O r c m E c m E Q cn o: Ln M w N E Qt d d L Q d co C R d N O s o. r r r O N O d Q' C O E .>r U tC a+ Q C d E U R r EXHIBIT"A" M691-012-.511899,1 Packet Pg. 364 .,. ... .. .. ...? - ,ra,::...::....�,.�,'.;...:;s���,:..i.•v.... _r. ..a w.d,v....x.c-ra .a,...,.... ..a... .-..-�,. ..,.-.- sn ..d.. ,.s nse..'9t«..ha..r._, x .e.. .,n�. .,. .-a... '.. a.gWh�..r'v.�i:... .�r.r ..., •t' .cW�Ftiz'•5::. x.q'i::. .;,i- �:.:} :,. 5.P.c • � ooh 1,3—E foc L O U m- C ° a ,:s" M 0 +' 13 n C vmmo � y C L 8 m E O. tynmca O d O T d Q r cm C H �nE� fA r N m �mm d V w w °oo to O V J Q Q �m0x N C Q 4. 0-:: mL R Er�L� i m � m r w C - N E O d O O E O p Z c6 _ U U) N U M m o: o ,n Z M v N C v E L Q d ' d N � fC c7 = i a m .- a r g \ . o � � O O U) j�� ,+�.r � ' ,,,...•».w. ' `:.'fie Vie' Q O N x n rr t O Q Q d W co E h _ N U Z cf) a, T*-TTOZ Packet Pg. 365 • 1 2011-41 EXHIBIT "B" . LEGAL DESCRIPTION OF RESTRICTED PORTION d This property is conveyed subject to the restriction that the portion of property described below, may only be used for the construction, maintenance and operation of a roadway (which will include all ancillary uses, such as utility easements, slopes and setbacks). v All that certain real property located in the County of San Bernardino, more particularly N described as below and as depicted on Exhibit"B-1" M L A PORTION OF LOT 15 OF MEYERS AND BARCLAY SUBDIVISION, AS SHOWN a. BY MAP ON FILE IN BOOK 2, PAGE 32 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS c=i FOLLOWS: E c m BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 15, E a U) THENCE ALONG THE EASTERLY LINE OF SAID LOT 15, SOUTH 27°15'00" WEST, A DISTANCE OF 288.18 FEET; LO M THENCE SOUTH 82 009'53"WEST A DISTANCE OF 179.13 FEET; N THENCE SOUTH 33 007'56" WEST, A DISTANCE OF 150.20 FEET TO A POINT ON A LINE WHICH IS PERPENDICULAR TO THE EASTERLY LINE OF SAID LOT 15, A POINT OF INTERSECTION, OF THE EASTERLY PROLONGATION OF SAID L PERPENDICULAR LINE TO THE EASTERLY LINE OF SAID LOT 15 BEING Q SOUTH 27 015'00" WEST, A DISTANCE OF 540.00 FEET FROM THE NORTHEAST m CORNER OF SAID LOT 15; in c THENCE NORTH 62 056'38"WEST, A DISTANCE OF 91.19 FEET; N M _ THENCE NORTH 24 023'29" EAST, A DISTANCE OF 144.48 FEET; L a. THENCE NORTH 31 007'03" EAST A DISTANCE OF 309.63 FEET; T THENCE NORTH 58 013'05" EAST A DISTANCE OF 107.55 FEET TO A POINT ON N THE NORTHERLY LINE OF SAID LOT 15; O N d THENCE ALONG SAID NORTHERLY LINE, SOUTH 61°19'37" EAST A DISTANCE OF 184.21 FEET; TO THE TRUE POINT OF BEGINNING. .r c a� CONTAINING 2.36 ACRES, MORE OR LESS. E _ w a EXHIBIT "B-1" ATTACHED HERETO AND BY THIS REFERENCE MADE A = PART HEREOF. 4 EXHIBIT"B" MG8 4-012-51 1899 I Picket Pgi 366 I 66 I I i--'.10-1 99 «T—g„ .LI91HX9 as E CD Cd t, .\ I w 4 ° I ;' " 3t N to LL, y `' z 14 x o 0 F- < L 13.1 3 El mow ° • OW c o E Cr so C�j }a 2 Q s� t o0 �v cQ ram ui Cn LO r , Q W Y M , ` LO N nI t \ C �L: 14 1 v ~�,,O 3 Q It- w W 1- Lij 2NMa to CO m Q °{ �� � +•. � '+ VTJZQOl VI I C + Cr w re)N rn 4) �Q �O "o(<L Q N �1 lU'i" 1', ` � W U 00 I Co M O T M U)r O w 4 a ° UWWOW 1y- N�C>74lCVOc!' W N V @ L a�oz� c� mmormr-ac7a ~ 3 V '+ 't + W i Nor fr?rrinr N r D Z 1 z �- + W, Ui �_CN9w t i ut O Q O U] m©N.0� tt ', t Www�W413WW N �� N d CV O z 2xp •Q X O t-{}N Q + i 1"Z I O M w w M tl7 1^-O m {(y��Of Vl W ''rO I ', 1 +, W I ¢UlI,C')M O OMO N r 7pC�_ MCra + + ZI- I �OtI-cDtMmll7M jam m O T7' U G7 O ut 0—.-.-N L1J w ti� i� r O F-" 1 T MJW e e e s e e e e e --1 } �1--MaO +1 ♦C +' ♦Y 1 M1-•NMNr00 rIQ Q �a N = CL CJ , i , d 1 (V[OMCOMl11tDNN� O 'r 01 � �Qa izzzzzzzzz e E � a o �+ •, 1 a, � z 1 1 o w F u Z ', ' M 1 z ',1 , , Q ( .-N M�in cp r-0a Oti Z ( JJJ_1JJJJJ Q W CD cv E z � 6cW Q crs III' Q Vaxv Q3.t31x.cs:lx 3o uoi.LDia2tci I—g» 1I9IHX3 T*7-TIOZ Packet Pg:367 AMENDMENT TO PURCHASE AND SALE AGREEMENT E AND JOINT ESCROW INSTRUCTIONS L a THIS AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT c ESCROW INSTRUCTIONS is made as of this day of y �a 2013, by and between the CITY OF SAN BERNARDINO, a municipal corporation, a 0 hereinafter referred to as "CITY", and MONTECITO EQUITIES LTD., a California as limited partnership, hereinafter referred to as "MONTECITO". d WHEREAS, the parties have previously executed a Purchase and Sale Agreement Q co W and Joint Escrow Instructions ("Agreement") dated February 22, 2011, a copy of which is LO attached and incorporated herein as Attachment "1", for that certain City of San Bernardino N Municipal Water Department owned parcel of real property generally located northeasterly r 0 of Meyers Road and west of Martin Ranch Road, in the City of San Bernardino, State of LA d California,known as Assessor's Parcel No. 0348-101-76; and a� E WHEREAS, the parties hereto desire to amend said Agreement, to extend the L termination of escrow as set forth in Article III—Closing,to December 31, 2013. N fC t NOW THEREFORE, the parties hereby mutually agree to an amendment to said 0 a Agreement as follows: M 1. ARTICLE III, Section 31(C). Termination of Escrow is amended to read as U) 0 follows: a "Escrow shall terminate on December 31, 2013, unless Escrow Closes prior to that E a date as described above." a z 2. All other terms and conditions of the Agreement shall remain in effect. 0 d V R 1 of 2 Q Packet Pg.368 IN WITNESS WHEREOF, the parties have executed this Amendment to Purchase E and Sale Agreement and Joint Escrow Instructions the day and year as first written above. L a N CITY: MONTECITO: o CITY OF SAN BERNARDINO, MONTECITO EQUITIES, LTD., N a Municipal corporation a California limited partnership U L a 0 By: By: Allen Parker Yu Ying Huang Lin E Its: City Manager Its: President E a co n: ATTEST: M N r _ Georgeann Hanna, City Clerk 2 d as Approved as to form: E L a R James F. Penman, City Attorney L a Cd a� ca ca 0 c w E m E a J a Z O a� .c 2 of 2 Q Packet Pg.-1 366,1 August 4,2013 Mr.Ryan Sandoval Real Property Specialist City of San Bernardino Public Works Department a 300 North D Street San Bernardino, CA 92418 N ad RE: Purchase and Sale Agreement and Joint Escrow Instructions for the Sale of Water Department Property known as the Tostado Property to Montecito Equities LTD.,dated February 22,2011. a 0 Dear Ryan: d On behalf of Montecito Equities LTD.,I hereby request an escrow extension period for the above-described agreement to December 22,2013. This extension is necessary due to the E prolonged time period involved in completing the Environmental Impact Report process in a connection with the Spring Trails residential development project. As you aware,the EIR process must be completed before the escrow can legally be closed. LO The project Environmental Impact report,Development Agreement and Tentative Tract Map were approved on March 14,2013. L d I have enclosed a fully executed copy of the above-referred Purchase and Sale Agreement for J your reference. Please let me know when you can have our escrow extension request placed on o the City Council agenda. If you have any questions or need further information,please do not hesitate to contact me. c 0 Since ly�r _ d E s Jeffrey P. Weber a Consultant to Montecito Equities LTD CC: Matt Litchfield,Director of Water Utility, San Bernardino Municipal Water Department Jeff Weber, Montecito Equities LTD Packet Pg.370