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ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Ann Harris, Director SUBJECT:
Bus Retention, Recruitment & Revitalization
DATE: September 7,2000 0 ,q / ~ : :1 A L
JOINT PUBLIC HEARING SALE OF
PROPERTY - 275 SOUTH "G"
STREET
Svnopsis of Previous Commissiou/Council/Committee Action(s):
In April 1996, property was purchased during the assembling of property for construction of the Stadium,
On August 10, 2000, the Redevelopment Committee recommended that a Joint Public Hearing be held and the sale of
the property proceed.
Recommended Motion(s):
OPEN PUBLIC HEARING
CLOSE PUBLICHEARING
(Mavor and Common Council)
MOTION!,: A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ACKNOWLEDGING RECEIPT OF A REPORT RELATING TO TIlAT CERTAIN
DlSPOSlTION AND DEVELOPMENT AGREEMENT BY AND BETWEEN TIlE
REDEVELOPMENT AGENCY OF TIlE CITY OF SAN BERNARDINO AND JERRY AND LiLA
BURNS
(Community Development Commission)
MOTION B: A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO, AS THE GOVERNING BODY OF TIlE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO, APPROVING THA T CERTAIN DlSPOSlTION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN TIlE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO AND JERRY AND LiLA BURNS, ON THE TERMS SET
FORTIl IN SUCH AGREEMENT
Contact Person(s): Gary Van Osdel/Ann Harris
Project Area(s) Central City South (CCS)
Phone:
663-1044
Ward(s):
Three (3)
Supporting Data Attached: IllStaffReport III Resolution(s) III Agreement(s)/Contract(s) 0 Map(s) 0 LetterlMemo
FUNDING REQUIREMENTS Amount: $ None
Source:
N/A
SIGNATURE:
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Bus Retention, Recruitment & Revitalization
Commission/Council Notes:
GVO:ABH:lag:09-l8-00 275 G Street
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2000
Agenda Item Number: .Ii 31
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ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
Sale of Pronertv Located at 275 South "G" Street
BACKGROUND
This property was purchased by the Agency in April 1996 for $94,429.99 as part of the assembling of
property for the stadium. This property is comprised of approximately I acre of land with an 8,000
square foot building. The building is in very poor condition. Currently the Agency has a month-to-month
lease with RTE Enterprises (the "tenant"). The tenant is paying $650.00 a month. The tenant, who has
been operating under a temporary use permit that expired January 1999, has been given a 45-day notice to
vacate. Recently the Agency was notified by the fire department that the building must be retrofitted with
a fire sprinkler system.
The property was appraised for $130,000.00 prior to the Agency receiving notice of the sprinkling
requirement. The bid amount received by the Agency for sprinkling the building is $34,275.00. The
building must be vacant in order to do the sprinkling system for this price. Also, once the sprinkler
system is installed, there is a requirement to contract with a monitoring company at an approximate cost
of $1 00.00 per month.
The Agency has received an offer to purchase the property from Jerry and Lila Bums, the owners of High
Desert Cable, Inc., a cable television installation company. The offer is a gross price of $130,000.00
minus the cost of sprinkling, ($34,275.00) resulting in an adjusted sales price of $95,725.00. All cash
Escrow shall close in 45 days. The buyer will commission a Phase I Study of the site and confirm with
the Planning Department that the property is properly z ned for their anticipated use.
The sale of this property will put it back on the tax r les, establish a new business in San Bemardino
(currently located in Moreno Valley) and provide 42 jo .
At the Redevelopment Committee meeting August 10, the Committee recommended that staff proceed
with the sale of the property and to advertise a joint pub ic hearing.
FISCAL IMPACT
No cost to the Agency.
RECOMMENDATION
and adopt the attached Resolutions.
\
Ann Harris, Director
Business Retention, Recruitment & Revitalization
GVO:ABH:lag:09.18-00 275 G Street
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2000
Agenda Item Number: /JJL
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RESOLUTrON NO.
A RESOLUTrON OF THE ~YOR AND COMMON COUNCrL OF THE CrTY OF
SAN BERNAlIDrNO ACKNOWLEDGrNG RECErPT OF A REPORT RELATrNG
TO THAT CERTArN DrSPOSrTrON AND DEVELOPMENT AGREEMENT BY
AND BETWEEN THE REDEVELOPMEN'!' AGENCY OF THE CrTY OF SAN
BEllNARDrNO AND JERRY AND LrLA BORNS
WHEREAS, the Redevelopment Agency of the City of San Bernardino
(the "Agency"), owns or has a beneficial interest in certain real
property situated within the redevelopment project area of the Central
8 City South Project and commonly known as 275 South "G" Street, San
9 Bernardino, California (the "Property"); and
10 WHEREAS, the Agency staff has prepared a draft of a Disposition
11 and Development Agreement (the "Agreement") for the disposition of the
12 Property to Jerry and Lila Burns, husband and wife (the "Purchaser"),
13 together with a report which summarizes the key terms of the Agreement
14 and describes the manner in which the proposed disposition of the
<::: 15 Property to the Purchaser will assist in the elimination of biight in
16 accordance with Health and Safety Code Section 33433 (the "33433
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17 Report"); and
18 WHEREAS, it is appropriate for the Mayor and Common Council to
19 take action with respect to the 33433 Report and the 1I.greement in
20 accordance with Health and Safety Code Section 33433 (a) (1) .
21 NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE
22 MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS:
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Section 1.
On September 18, 2000, the Mayor and Ccrr.!TIor.
24 Council conducted a full and fair j oint public hearing with the
25 Communi ty Development Commission of the Ci ty of San Bernardino
26 relating to the disposition and redevelopment of the Property by the
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I Purchaser pursuant to the terms and conditions of the Agreement. The
<::: 2 minutes of the City Clerk for the September 18, 2000, meeting of the
3 Mayor and Common Council shall include a record of all communication
4 and testimony submitted to the Mayor and Common Council by interested
5 persons relating to the joint public hearing, the 33433 Report and the
6 approval of the Agreement.
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Section 2.
This Resolution is adopted in order to satisfy the
8 provisions of Health and Safety Code Section 33433 relating to the
9 disposition and sale of the Property by the Agency to the Purchaser
10 on the terms and conditions set forth in the Agreement. A copy of the
11 Agreement in the form submitted at the joint public hearing is on file
12 with the Agency Secretary. The Mayor and Common Council hereby fine
13 and determine as follows:
14 (i) the disposition and redevelopment of the Property by the
C 15 Purchaser in accordance with the Agreement is consistent with the
16 Redevelopment Plan for the Central City South Project and the current
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17 Agency Implementation Plan for the Project;
18 (ii) the terms and conditions of the Agreement contain assurances
19 that the Property will be redeveloped as contemplated under the
20 Redevelopment Plan;
21 (iii) the purchase price for the Property payable by the Purchaser
22 to the Agency, subject to the satisfaction of the terms and conditions
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of the Agreement, is an amount which the Mayor and Common Counci:
24 determines to be fair, just and reasonable, and the disposition of the
25 Property on the terms set forth in the Agreement shall materially
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1 benefit and sustain the implementation of the Redevelopment Plan and
c:: 2 assist the community to alleviate blighting conditions;
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(iv) the consideration payable by the Purchaser to the Agency for
4 the disposition of the Property ($130,000.00, less the cost of
5 installation of a fire sprinkler system on the Property, in cash) is
6 an amount which is not less than the fair market value of the Property
7 at its highest and best use in accordance with the Redevelopment Plan;
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Section 3.
The Mayor and Common Council hereby find and
9 determine that the activity to take place on the Property under the
10 terms of the Agreement involves negligible or no expansion of use
11 beyond that previously existing on the Property and is exempt from the
12 provisions of the California Environmental Quality Act ("CEQA")
13 pursuant to Section 21084 of the California Public Resources Code and
14 Article 19 of the State CEQA Guidelines developed thereunder.
Section 4.
The Mayor and Common Council hereby approve,
receive and file the 33433 Report and the Agreement in the forms as
submitted at the joint public hearing.
Section 5.
The Mayor and Common Council hereby approve the
disposition of the Property by the Agency to the Purchaser on the
terms set forth in the Agreement.
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1 A RESOLtJTI:ON OF THE MAYOR AND COMMON COUNCI:L OF THE CI:TY OF SAN
BERNJUIDI:NO ACKNOWLEDG::tNG RECZI:PT OF A REPORT RELAT::tNG TO THAT CERTAI:N
2 DI:SPOSI:TI:ON AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT
AGENCY OF THE CI:n OF SAN BERNARDINO AND JERRY AND LI:LA BORNS
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Section 6.
4 of its adoption.
This Resolution shall take effect upon the date
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted
by the Mayor and Common Council of the City of San Bernardino at a
meeting thereof, held on the
, 2000, by the following vote, to wit:
day of
Council:
12 ESTRADA
LIEN
13 MCGINNIS
SCHNETZ
14 SUAREZ
ANDERSON
15 McCAMMACK
A:iE.S.
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ABSTAIN
ABSENT
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City Clerk
The foregoing resolution is hereby approved this
, 2000.
day
of
Judith Valles, Mayor
City of San Bernardino
22 Approved as to form and legal content:
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1 STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
2 CITY OF SAN BERNARDINO
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I, Ci ty Clerk of the City of
4 San Bernardino, DO HEREBY CERTIFY that the foregoing and attached copy
of Mayor and Common Council of the City of San Bernardino Resolution
5 No. is a full, true and correct copy of that now on file in
this office.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed
7 the official seal of the Mayor and Common Council of the City of
San Bernardino this day of , 2000.
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City Clerk
City of San Bernardino
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RESOLO'TrON NO.
A RESOLO'TrON OF THE COMMCNrTY DEVELOPMENT COMMrSSrON OF THE
CrTY OF SAN BERNARDrNO, AS THE GOVElWrNG BODY OF THE
REDEVELOPMENT AGENCY OF THE CrTY OF SAN BERNARDrNO,
APPROVrNG THAT CERTArN DrSPOSrTrON AND DEVELOPMENT
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE
CrTY OF SAN BElWARDrNO AND JERRY AND LrLA BURNS, ON THE
TERMS SET FORTH rN SUCH AGREEMENT
6 WHEREAS, the Redevelopment Agency of the City of San Bernardino
7 (the ".ll.gency") owns or has a beneficial interest in certain real
8 property situated within the redevelopment project area of the Central
9 City South Project and commonly known as 275 South "G" Street, San
10 Bernardino, California (the "Property"); and
11 WHEREAS, the Agency staff has prepared a draft of a Disposition
12 and Development Agreement (the "Agreement") for the disposition of the
13 Property to Jerry and Lila Burns, husband and wife (the "Purchaser"),
14 together with a report which summarizes the key terms of the Agreement
and describes the manner in which the proposed disposition of the
Property to the Purchaser will assist in the elimination of blight
(the "33433 Report") in accordance with Health and Safety Code Section
33433; and
WHEREAS, it is appropriate for the Commission to take action with
respect to disposition of the Property to the Purchaser and approve
the Agreement as set forth in this Resolution.
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION ACTING ON
23 3EHA:F OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDI~O DCES
24 HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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Section 1.
On September 18, 2000, the Commission conducted
26 a full and fair joint public hearing with the Mayor and Common Council
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1 of the City of San Bernardino relating to the disposition and
C 2 redevelopment of the Property by the Purchaser pursuant to the terms
3 and conditions of the Agreement. The minutes of the Agency Secretary
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4 for the September 18, 2000, meeting of the Commission shall include
5 a record of all communication and testimony submitted to the
6 Commission by interested persons relating to the joint public hearing,
7 the 33433 Report and the approval of the Agreement.
Section 2.
A copy of the Agreement in the form submitted at
the joint public hearing is on file with the Agency Secretary. The
Commission hereby finds and determines as follows:
(i) the disposition and redevelopment of the Property by the
Purchaser in accordance with the Agreement is consistent with the
Redevelopment Plan for the Central City South Project and the current
Agency Implementation Plan;
(ii) the terms and conditions of the Agreement contain assurances
that the Property will be redeveloped as contemplated under the
Redevelopment Plan;
(iii) the purchase price for the Property payable by the Purchaser
19 to the Agency, subject to the satisfaction of the terms and conditions
20 of the Agreement, is an amount which the Commission determines to be
21 fair, just and reasonable, and the disposition of the Property on the
22 terms set forth in the Agreement shall materially benefit and sustain
23 the implementation of the Redevelopment Plan and assist the community
24 to alleviate blighting conditions;
25 (iv) the consideration payable by the Purchaser to the Agency for
26 the disposition of the Property ($130,000.00, less the cost of
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1 installation of a fire sprinkler system on the Property, in cash) is
<::: 2 an amount which is not less than the fair market value of the Property
3 at its highest and best use in accordance with the Redevelopment Plan.
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Section 3.
The Commission hereby finds and determines that
5 the activity to take place on the Property under the terms of the
6 Agreement involves negligible or no expansion of use beyond that
7 previously existing on the Property and is exempt from the provisions
8 of the California Environmental Quality Act ("CEQA") pursuant to
9 Section 21084 of the California Public Resources Code and Article 19
10 of the State CEQA Guidelines developed thereunder.
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Section 4.
The Commission hereby approves, receives and files
12 the 33433 Report and the Agreement in the forms as submitted at the
13 joint public hearing.
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Section 5.
The Commission hereby approves the disposition of
15 the Property to the Purchaser on the terms set forth in the Agreement.
16 The Chair of Commission and the Executive Director are hereby
17 authorized and directed to execute the Agreement on behalf of the
18 Agency together with such technical and conforming changes as may be
19 recommended by the Executive Director and approved by the Chair of the
20 Commission.
The signatures of the Chair of the Commission and the
21 Executive Director on the Agreement shall be conclusive evidence that
22 the Agreement has taken effect. In the event that the Agreemen~ may
23 not be fully executed by the parties for any reason within thirty (30\
24 days following the date of adoption of this Resolution, the
25 authorization granted to the Chair of the Commission and the Executive
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1 Director to execute the Agreement on behalf of the Agency shall be of
2 no further force and effect.
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Section 6.
Provided that the Agreement has been fully
4 executed by the parties within the period of time set forth in Section
5 5 of this Resolution, the Executive Director of the Agency is hereby
6 authorized and directed to take all actions set forth in the Agreement
7 on behalf
8 therein.
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of the Agency to close the escrow transactions described
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9 at a
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ESTRADA
13 LIEN
MCGINNIS
14 SCHNETZ
C SUAREZ
15 ANDERSON
McCAMMACK
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A RESOLUTION OF THE COMNONITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BEllNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BEllNARDINO, APPROVING THAT CERTAIN DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BEllNARDINO AND JERRY AND LILA BURNS, ON THE TERMS SET
FORTH IN SOCH AGREEMENT
Section 7. This Resolution shall become effective immediately
5 upon its adoption.
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7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted
8 by the Community Development Commission of the City of San Bernardino
meeting thereof, held on the
, 2000, by the following vote, to wit:
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ABSTAIN
ABSENT
Secretary
The foregoing Resolution is hereby approved this
, 2000.
day
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
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By:
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1 STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
2 CITY OF SAN BERNARDINO
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3 I, Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
4 CERTIFY that the foregoing and attached copy of Community Development
Commission of the City of San Bernardino Resolution No. is
5 a full, true and correct copy of that now on file in this office.
6 IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the official seal of the Community Development Commission of the City
7 of San Bernardino this day of , 2000.
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Secretary of the
Community Development Commission
of the City of San Bernardino
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street
Suite 301
San Bernardino, California 92401
(Space Above Line for Use By Recorder)
2000
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
JERRY AND LILA BURNS
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Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
Section 2.01,
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Section 2.10.
Section 2.11.
Section 2.12.
Section 2.13.
Section 2.14.
Section 2.15.
Section 2.16.
Section 2.17.
Section 2.18.
Section 2.19.
Section 2.20.
Section 2.21.
Section 2.22.
Section 2.23.
Section 2.24.
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TABLE OF CONTENTS
Purpose of Agreement . .
The Property . . . . . .
Parties to the Agreement
Benefit to Project Area
ARTICLE II
DISPOSITION OF THE PROPERTY
Purchase and Sale of the Property
Deposit and Payment of Purchase Price
Opening and Closing of Escrow
Escrow Instructions . ,.....
Conveyance of Title ........
Additional Closing Obligations of Agency
Closing Obligations of Purchaser . . . .
Inspections and Review ... ..,
Due Diligence Investigation of the Property
By the Purchaser . ......
Due Diligence Approval Certificate
Books and Records ......
Condition of the property-Purchaser's
Release . . . . . . . . .. ...
Review and Approval of Condition of Title
by the Purchaser
Survey,. .. . . .
Extension of Due Diligence Period
Purchaser's Conditions Precedent to
Close Escrow . . , . . . . .
The Agency's Conditions Precedent to Close
of Escrow .,..... ...,..,
Distribution of Documents and Purchase
Price After Closing Date by Escrow Holder
Satisfaction of Conditions . . . . . .
[RESERVED -- NO TEXT] .......
Prorations, Closing Costs, Possession
BREACH OF ARTICLE II BY THE AGENCY;
LIQUIDATED DAMAGES PAYABLE BY THE AGENCY TO
THE PURCHASER .. .. .. ...
BREACH BY THE PURCHASER; LIQUIDATED DAMAGES
PAYABLE BY THE PURCHASER TO THE AGENCY
Damage, Destruction and Condemnation . . . .
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Section 3,01.
Section 3.02.
Section 3,03.
Section 3.04.
Section 3.05.
Section 3,06.
Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
Section 5.0l.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 5.06.
Section 5.07.
Section 5.08.
Section 5.09.
Section 5,10,
Section 5.1l.
Section 5.12.
Section 6.01.
EXHIBIT "A"
EXHIBIT "B"
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ARTICLE III
USE AND MAINTENANCE OF THE oROPERTv
Use of the Property
Maintenance of the Property
Taxes and Assessments
Transfer of Property to Exempt Person
Obligation to Refrain from Discrimination
Form of Nondiscrimination and Nonsegregation
Clauses ..,.......,......
ARTICLE IV
DEFAULTS. REMEDIES AND TERMINATION
Defaults - General , . , . . . . .
Legal Actions . . . . . . . . . .
Rights and Remedies are Cumulative
Damages . . . . . . . . . .
Specific Performance Prior to Close of
Escrow , .... . . . . . .
ARTICLE V
GENERAL PROVISIONS
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Notices, Demands and Communications Between
the Parties . . .. ..........
Conflict of Interest ......,...
Warranty Against Payment of Consideration for
Agreement ..". ....
Nonliability of Agency Officials and
Employees , . . . . . . . . . . . .
Enforced Delay: Extension of Time of
Performance , . . . , . . . . .
Inspection of Books and Records
Approvals ,.,...,
Real Estate Commissions . . . .
Indemnification
Release of Purchaser from Liability
Attorneys' Fees
Effect . . . . . . .
ARTICLE VI
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
Entire Agreement , . .
LEGAL DESCRIPTION
AGENCY GRANT DEED
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2000
DISPOSITION AND DEVELOPMENT AGREEMENT
(Jerry and Lila Burns)
THIS 2000 DISPOSITION AND DEVELOPMENT AGREEMENT (the
"Agreement") is entered into as of , 2000, by and between
the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public
body corporate and politic (the "Agency"), and Jerry and Lila
Burns, husband and wife (the "Purchaser"). The Agency and the
Purchaser hereby agree as follows:
Section 1.01. Puroose of Acrreement. The purpose of this
Agreement is to implement the Redevelopment Plan for the Central
City South Project (the "Project Area") by providing for the
purchase, use and maintenance by the Purchaser of certain real
property improved by a building. The land and building which are
subject to this Agreement are referred to herein as the "Property".
As of the date of this Agreement, the Property is owned by the
Agency. The Property is more particularly described in the legal
description attached as Exhibit "A" hereto. The purchase, use and
maintenance of the Property pursuant to this Agreement is in the
vital and best interests of the City of San Bernardino (the "City")
and the health, safety and welfare of its residents, and is in
accord with the public purposes and provisions of applicable state
and local laws. The Agency has determined that the purchase, use
and maintenance of the Property contemplated by this Agreement is
consistent with the Redevelopment Plan for the Project Area.
Section 1.02. The Prooerty. The Property consists of an
approximately 8,000 square foot building situated on one acre of
land, more or less, and is generally situated at 275 South "G"
Street, San Bernardino, California. The Purchaser intends to use
the building on the Property as a storage facility for cable
installation equipment and the portion of the Property not improved
by the building as parking for cable installation vans and as a van
loading area.
Section 1.03. Parties to the Acrreement.
(a) The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
existing under Chapter 2 of the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33020, ~ ~.)
The principal office of the Agency is located at 201 North "E"
Street, Suite 301, San Bernardino, California 92401.
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(b) Jerry and Lila Burns are husband and wife and the
owners of High Desert Cable, Inc., a [California] corporatiion.
The principal office and mailing address of the Purchaser for
purposes of this Agreement is:
Jerry and Lila Burns
High Desert Cable, Inc.
275 South "G" Street
San Bernardino, California 92401
(c) The City of San Bernardino is not a party to this
Agreement.
Section 1.04. Benefit to Proiect Area. The Agency has
determined that the purchase, use and maintenance of the Property
in accordance with this Agreement will materially assist in the
elimination of blight and the implementation of the Redevelopment
Plan for the Project Area.
ARTICLE II
DISPOSITION OF THE PROPERTY
Section 2.01. Purchase and Sale of the PrODer~v.
Subject to all of the terms, conditions and provisions of this
Agreement, and for the consideration of the Purchase Price as
herein set forth, the Agency hereby agrees to sell via grant deed
to the Purchaser merchantable lien free title and the Purchaser
hereby agrees to purchase the following:
all of the right, title and interest of the Agency in the
Property as more fully described in the legal description
attached hereto as Exhibit "A," including all right,
title and interest of the Agency in and to any land lying
in the right-of-way of any existing or proposed highway,
street, road, avenue or alley abutting or adjoining the
Property.
The purchase price which the Agency agrees to accept from
the Purchaser and which the Purchaser agrees to pay to the Agency
for the Property is ONE HUNDRED THIRTY THOUSAND DOLLARS
($130,000.00) in United States currency (the "Purchase Price");
provided, however, that the cost of installation of a fire
sprinkler system on the Property (currently estimated to be Thirty-
Four Thousand Two Hundred Seventy Five Dollars ($34,275.00)) shall
be applied as a credit to the Purchase Price.
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For all purposes of this Agreement, the legal description
of the Property attached hereto as Exhibit "A" shall be definitive
and controlling as to the location, size or other aspect of the
Property.
Section 2.02. Deoosit and Payment of Purchase Price.
(a) Within five (5) calendar days following the
execution of this Agreement by both parties, the Purchaser shall
deliver to the Escrow Holder (as hereinafter defined) the sum of
Five Thousand Dollars ($5,000.00). This sum, upon its receipt by
the Escrow Holder, is referred to in this Agreement as the
"Deposit." Upon receipt of the Deposit and a fully executed copy
of this Agreement, the Escrow Holder shall cause the Escrow (as
hereinafter defined) to be opened, as provided in Section 2.03.
The Escrow Holder shall place the Deposit into an interest-bearing
escrow account with the interest thereon to accrue to the benefit
of the Purchaser.
At the Close of Escrow (as hereinafter defined), the
Deposit shall be applied as a credit to the Purchase Price.
(b) pavrnent of Balance of Purchase Price. The Purchase
Price, less the Deposit, shall be tendered by the Purchaser to the
Escrow Holder on the Closing Date (as hereinafter defined) for
disbursement to the Agency at the Close of Escrow in cash or
immediately available funds.
(c) The Deposit (less an amount equal to the customary
and reasonable escrow cancellation charges of the Escrow Holder)
shall be returned to the Purchaser in the event that:
(i) the Agency or the Purchaser terminates this
Agreement pursuant to Section 2.13(a); or
(ii) the Purchaser does not deliver
Diligence Approval Certificate (as hereinafter
to the Escrow Holder pursuant to Section 2.03(b)
Agreement is terminated; or
its Due
defined)
and this
(iii) the Purchaser's conditions precedent to the
Close of Escrow described in Section 2.16 (1), (2), (3),
(4) or (5) are not satisfied (unless satisfaction has
been waived by the Purchaser) and this Agreement is
terminated; or
(iv) the Property is materially damaged prior to
the Close of Escrow, or an action of eminent domain is
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commenced by a governmental entity with respect to the
Property prior to the Close of Escrow, and the Purchaser
elects to terminate this Agreement pursuant to Section
2.24.
Section 2.03. Openina and Closina of Escrow.
(a) The transfer and sale of the Property shall take
place through an Escrow (the "Escrow") to be administered by First
American Title Insurance Company Escrow Department or such other
escrow or title insurance company mutually agreed upon by the
Purchaser and the Agency (the "Escrow Holder"). The Escrow shall
be deemed open ("Opening of Escrow") upon the receipt by the Escrow
Holder of a copy of this Agreement fully executed by both parties
hereto and the Deposit. The Escrow Holder shall promptly confirm
to the parties the escrow number and the title insurance order
number assigned to the Escrow.
(b) In the event that the Purchaser has not delivered
its Due Diligence Approval Certificate to the Agency and the Escrow
Holder within thirty (30) days from the Opening of Escrow for any
reason, then in such event this Agreement shall terminate upon
written notice to the Escrow Holder from either the Agency or the
Purchaser, whereupon the Deposit shall be returned by the Escrow
Holder to the Purchaser (less an amount equal to the customary and
reasonable escrow cancellation charges payable to the Escrow
Holder) without further or separate instruction to the Escrow
Holder, and the parties shall each be relieved and discharged from
all further responsibility or liability under this Agreement.
(c) Provided that the Purchaser has delivered its Due
Diligence Approval Certificate within the period of time authorized
in Section 2.03(b), then the Closing Date of the Escrow shall occur
within fifteen (15) days thereafter, subject to the provisions of
Section 2,16 and Section 2.17. The words "Close of Escrow,"
"Closing Date" and "Closing" shall mean and refer to the date when
the Escrow Holder is in receipt of the Purchase Price and the
related Escrow documents of the parties and the Escrow Holder is in
a position to comply with the final written escrow closing
instructions of the parties and cause the Agency Grant Deed for the
Property to be recorded and the policy of title insurance for the
Property to be delivered to the Purchaser.
Section 2.04. Escrow Instructions. This Agreement shall
also constitute the escrow instructions of the parties to the
Escrow Holder. Additionally, the Purchaser and the Agency each
agree to execute the customary supplemental escrow instructions of
the Escrow Holder in the form provided by the Escrow Holder to its
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clients in real property escrow transactions administered by it.
In the event of a conflict between the additional terms of such
customary supplemental escrow instructions of the Escrow Holder and
the provisions of this Agreement, this Agreement shall supersede
and be controlling. Upon any termination of this Agreement or
cancellation of the Escrow, the Purchaser shall be solely
responsible for the payment of the escrow cancellation costs of the
Escrow Holder and the Escrow Holder shall forthwith return all
monies (as provided in this Agreement) and documents, less only the
Escrow Holder's customary and reasonable escrow cancellation fees
and expenses, as set forth herein.
Section 2.05. Conveyance of Title. On or before 12:00
noon on the business day preceding the Closing Date, the Agency
shall deliver to the Escrow Holder a grant deed in the form
attached hereto as Exhibit "B" (the "Agency Grant Deed") duly
executed and acknowledged by the Agency, which Agency Grant Deed
shall convey all of its merchantable lien free right, title and
interest in the Property to the Purchaser. The Escrow Holder shall
be instructed to record the Agency Grant Deed in the Official
Records of the Recorder of the County of San Bernardino,
California, if and when Escrow Holder holds the various instruments
and funds for the accounts of the parties, as set forth herein, and
can obtain for the Purchaser an ALTA policy of title insurance
("Title Policy") issued by First American Title Insurance Company
or such other title insurance company mutually agreed upon by the
parties ("Title Company") with liability in an amount equal to the
Purchase Price, together with such endorsements to the policy as
may be reasonably requested by the Purchaser, insuring that the fee
title to the Property vested in the Purchaser is free and clear of
options, rights of first refusal or other purchase rights, leases
or other possessory interests, lis pendens and monetary liens
andlor encumbrances and subject only to:
(1) non-delinquent real property taxes;
(2) non-monetary title exceptions approved by the
Purchaser pursuant to Section 2.13 below;
(3) applicable provisions of the parcel maplsubdivision
map for the Property;
(4) the effect of the Redevelopment Plan for the
Project Area;
(5) the effect of any conditions imposed by the City in
connection with the proposed use of the Property;
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(6) the provision of the Agency Grant Deed;
(7) the applicable provisions of this Agreement; and
(8)
such other
documents
Escrow.
title exceptions, if any, resulting from
being recorded or delivered through
Section 2.06. Additional ClosinQ Obliaations of Aaency.
On or before 12:00 noon on the business day preceding the Closing
Date (unless indicated otherwise), the Agency shall deliver to the
Escrow Holder (unless indicated to be delivered directly to the
Purchaser) copies of the following documents and other items:
(1) a certificate of non-foreign status (the "Non-
Foreign Affidavit") executed by the Agency, in the
customary form provided by the Escrow Holder, and a
California Franchise Tax Board Form 590-RE executed
by the Agency;
(2) all soils, seismic, geologic, drainage, and
environmental reports, and surveys, with respect to
the Property, if any, which the Agency has in its
possession andlor control to the extent that
originals of such items have not been delivered
previously by the Agency to the Purchaser pursuant
to Section 2.08 below;
(3) two (2) duplicate original copies of the Closing
Statement described in Section 2.21, duly executed
by the Agency;
(4) evidence of the existence, organization and
authority of the Agency and of the authority of
persons executing documents on behalf of the Agency
reasonably satisfactory to the Escrow Holder and
Title Company; and
(5) any other documents, instruments, funds and records
required to be delivered to the Purchaser under the
terms of this Agreement which have not been
previously delivered.
Section 2.07. Closina Obliaations of Purchaser. On or
before 12:00 noon on the business day preceding the Closing Date,
the Purchaser shall deliver to the Escrow Holder copies of the
following documents and other items:
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(1) an acknowledgment and acceptance of the Agency
Grant Deed, duly executed and acknowledged by the
Purchaser.
(2) two (2) duplicate original copies of the Closing
Statement, duly executed by the Purchaser.
(3) evidence of the existence, organization and
authority of the Purchaser and of the authority of
persons executing documents on behalf of the
Purchaser reasonably satisfactory to the Escrow
Holder and the Title Company.
(4 )
evidence of the ability
any required permits,
connection with the
Property.
of the Purchaser to obtain
licenses or approvals in
Purchaser's use of the
(5) any other documents, instruments or funds required
to be delivered by the Purchaser under the terms of
this Agreement or as otherwise required by Escrow
Holder or Title Company in order to close Escrow
which have not previously been delivered.
Section 2.08. InsDections and Review.
(a) Due Diliaence Items. Within five (5) days after the
execution of this Agreement, the Agency shall deliver true, correct
and complete copies or originals of the following documents and
items (collectively, "Due Diligence Items") to the Purchaser:
(1) copies of all soils, seismic, geologic, drainage,
engineering, environmental and similar type reports
and surveys (including, but not limited to, any
Property Environmental Site Assessments), surveys,
relating to the Property if any, in the possession
or control of the Agency.
(2) notices of violations, including, but not limited
to, zoning ordinances, development or building
codes affecting the Property wi thin the Agency's
possession or control.
(3) disclosure of any legal matters affecting the use
or condition of the Property within the knowledge
of the Agency.
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(4) a copy of the Redevelopment Plan for the Project
Area.
(b) Certain Definitions. For the purpose of this
Agreement, the terms set forth below shall have the following
meaning:
(i) uenvironmental laws" means all federal,
state, local, or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or
requirements of any government authority regulating,
relating to, or imposing liability of standards of
conduct concerning any hazardous substance (as later
defined), or pertaining to occupational health or
industrial hygiene (and only to the extent that the
occupational health or industrial hygiene laws,
ordinances, or regulations relate to hazardous substances
on, under, or about the Property), occupational or
environmental conditions on, under, or about the
Property, as now or may at any later time be in effect,
including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("CERCLA") [42 USC Section 9601 et seq.]; the
Resource Conservation and Recovery Act of 1976 (URCRA")
[42 USC Section 6901 et seq.]; the Clean Water Act, also
known as the Federal Water Pollution Control Act
("FWPCA") [33 USC Section 1251 et eq.]; the Toxic
Substances Control Act ("TSCA") [15 USC Section 2601 et
seq.]; the Hazardous Materials Transportation Act
("HMTA") [49 USC Section 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 USC Section 6901 et seq.]
the Clean Air Act [42 USC Section 7401 et seq.]; the Safe
Drinking Water Act [42 USC Section 300f et seq.]; the
Solid Waste Disposal Act [42 USC Section 6901 et seq.];
the Surface Mining Control and Reclamation Act [30 USC
Section 101 et seq.] the Emergency Planning and Community
Right to Know Act [42 USC Section 11001 et seq.]; the
Occupational Safety and Health Act [29 USC Section 655
and 657]; the California Underground Storage of Hazardous
Substances Act [H & S C Section 25288 et seq.]; the
California Hazardous Substances Account Act [H & S C
Section 25300 et seq.]; the California Safe Drinking
Water and Toxic Enforcement Act [H & S C Section 24249.5
et seq.] the Porter-Cologne Water Quality Act [Water Code
Section 13000 et seq.] together with any amendments of or
regulations promulgated under the statutes cited above
and any other federal, state, or local law, statute,
ordinance, or regulation now in effect or later enacted
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that pertains to occupational health or industrial
hygiene, and only to the extent the occupational health
or industrial hygiene laws, ordinances, or regulations
relate to hazardous substances on, under, or about the
Property, or the regulation or protection of the
environment, including ambient air, soil, soil vapor,
groundwater, surface water, or land use.
(ii) "hazardous
limitation:
substances"
includes
without
those substances included within the definitions of
"hazardous substance," "hazardous waste," "hazardous
material," "toxic substance," "solid waste," or
"pollutant or contaminate" in CERCLA, RCRA, TSCA, HMTA,
or under any other environmental law; and
those substances listed in the United States Department
of Transportation (DOT)Table [49 CFR 172.101], or by the
EPA, or any successor agency, as hazardous substances [40
CFR Part 302]; and
other substances, materials, and wastes that are or
become regulated or classified as hazardous or toxic
under federal, state, or local laws or regulations; and
any material, waste, or substance that is:
(1) a petroleum or refined petroleum product,
(2) asbestos,
(3) polychlorinated biphenyl,
(4) designated as a hazardous substance pursuant to 33
USC Section 1321 or listed pursuant to 33 use
Section 1317,
(5) a flammable explosive, or
(6) a radioactive material.
Section 2.09. Due
Property Bv the Purchaser.
Diliaence
Investiaation
of
the
(al
of Escrow, and
Section 2.15,
Within thirty (30) days from and after the Opening
subject to the extensions of time set forth below in
the Purchaser shall have the right to examine,
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inspect and investigate the Property (the "Due Diligence Period")
to determine whether the condition of the Property is acceptable to
the Purchaser and to obtain such approvals from the City in
connection with the Purchaser's use of the Property, as the
Purchaser may require in its sole and absolute discretion.
(b) During the Due Diligence Period, the Agency shall
permit the Purchaser, its engineers, analysts, contractors and
agents to conduct such physical inspections and testing of the
Property as the Buyer deems prudent with respect to the physical
condition of the Property, including the inspection or
investigation of soil and subsurface soil geotechnical condition,
drainage, seismic and other geological and topographical matters,
surveys the potential presence of any hazardous substances, if any.
(c) Any such investigation work on the Property may be
conducted by the Purchaser andlor its agents during any normal
business hours upon seventy-two (72) hours prior notice to the
Agency, which notice will include a description of any
investigation work or tests to be conducted by the Purchaser on the
Property. Upon the Agency's request, the Purchaser will provide
the Agency with copies of any test results.
(d) During the Due Diligence Period, the Purchaser shall
also have the right to investigate all matters relating to the
zoning, use and compliance with other applicable laws which relate
to the use and development and improvement of the Property.
(e) The Agency shall cooperate fully to allow the
Purchaser to complete such inspections and investigations of the
condition of the Property. The Agency shall have the right, but
not the obligation, to accompany the Purchaser during such
investigations andlor inspections. The Purchaser shall pay for all
costs and expenses associated with the conduct of all such Due
Diligence investigation.
Section 2.10. Due Diliaence A99roval Certificate.
Wi thin thirty (30) days following the Opening of Escrow, the
Purchaser shall complete its Due Diligence investigation of the
Property (subject to the extensions of time set forth in Section
2.15) and deliver a due diligence approval certificate signed by
the Purchaser (the "Due Diligence Approval Certificate") to the
Escrow Holder which either:
(i) indicates that the Purchaser accepts the condition
of the Property or;
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(ii) contains a description of the matters or exceptions
relating to the condition of the Property which the
Purchaser was not able to accept or resolve to its
satisfaction during the Due Diligence Period.
Section 2.11, Books and Records. As part of the
Purchaser's Due Diligence investigations during the Due Diligence
Period, the Purchaser shall be afforded full opportunity by the
Agency to examine all books and records in the possession of the
Agency and/or the Agency's agents or employees, which relate to the
Property including the reasonable right to make copies of such
books and records at the expense of the Purchaser. During the Due
Diligence Period, the Agency will make sufficient staff available
to assist the Purchaser with obtaining access to information
relating to the Property which is in the possession or control of
the Agency.
Section 2.12. Condition of the ProDertv-Purchaser's
Release. The Purchaser acknowledges and agrees that it shall be
given a full opportunity under this Agreement to inspect and
investigate every aspect of the Property during the Due Diligence
Period. Upon issuance to the Escrow Holder of a Due Diligence
Approval Certificate under Section 2.10 which accepts the condition
of the Property, the Purchaser shall, thereafter, accept delivery
of possession to the Property on the Close of Escrow in an "AS IS,"
"WHERE IS" and "SUBJECT TO ALL FAULTS" condition. The Purchaser
further agrees and represents to the Agency that by a date no later
than the end of the Due Diligence Period, the Purchaser shall have
conducted and completed (or waived the completion) of all of its
independent investigation of the condition of the Property which
the Purchaser may believe to be indicated. The Purchaser hereby
acknowledges that it shall rely solely upon its own investigation
of the Property and its own review of such information and
documentation as it deems appropriate for the purpose of accepting
the condition and possession of the Property. The Purchaser is not
relying on any statement or representation by the Agency relating
to the condition of the Property unless such statement or
representation is specifically contained in this Agreement.
Without limiting the foregoing, the Agency makes no representations
or warranties as to whether the Property presently complies with
environmental laws or whether the Property contains any hazardous
substance, as these terms are defined in Section 2.08(b) hereof.
Furthermore, to the extent that the Agency has provided the
Purchaser with information relating to the condition of the
Property, including information and reports prepared by or on
behalf of the City, the Agency makes no representation or warranty
with respect to the accuracy, completeness, methodology or content
of such reports or information.
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Without limiting the above, except to the extent covered
by an express representation or warranty of the Agency set forth in
this Agreement, the Purchaser, on behalf of itself and its
successors and assigns, waives and releases the Agency and its
successors and assigns from any and all costs or expenses
whatsoever (including, without limitation, attorneys' fees and
costs), whether direct or indirect, known or unknown, foreseen or
unforeseen, arising from or relating to the physical condition of
the Property, the condition of the soils, the suitability of the
soils for the use of the Property as proposed, or any law or
regulation applicable thereto, including the presence or alleged
presence or harmful or hazardous substances in, under or about the
Property including, without limitation, any claims under or on
account of (i) CERCLA and similar statutes and any regulations
promulgated thereunder or (ii) any other environmental laws.
The Purchaser expressly waives any rights or benefits
available to it with respect to the foregoing release under any
provision of applicable law which generally provides that a general
release does not extend to claims which the creditor does not know
of suspect to exist in his or her favor at the time the release is
agreed to, which, if known to such creditor, would materially
affect a settlement. By execution of this Agreement, the Purchaser
acknowledges that it fully understands the foregoing, and with this
understanding, nonetheless elects to and does assume all risk for
claims known or unknown, described in this Section 2.12 without
limiting the generality of the foregoing:
The undersigned acknowledges that it has been advised by legal
counsel and is familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOWN
OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM, MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The undersigned, being aware of this code section,
expressly waives any rights it may have thereunder, as
under any other statutes or common law principles of
effect.
hereby
well as
similar
Initials of Purchaser:
The provisions of this Section 2.12 shall survive the
Close of Escrow.
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Section 2.13. Review and Aooroval of Condition of Title
bv the Purchaser.
(a) Within fifteen (15) days following the Opening of
Escrow, the Agency shall cause to be delivered to the Purchaser a
preliminary title report or title commitment for an ALTA policy of
title insurance issued by the Title Company, describing the state
of the title of the Property, together with copies of all
exceptions specified therein and with all easements plotted, but
excluding matters disclosed on a survey (the "Preliminary Title
Report"). The Purchaser shall notify the Agency in writing of any
objections the Purchaser may have to the title exceptions contained
in the Preliminary Title Report ("Purchaser's Title Obj ection
Notice") prior to the expiration of the Due Diligence Period. The
Agency shall have a period of five (5) days after receipt of the
Purchaser I s Title Obj ection Notice in which to deliver written
notice to the Purchaser ("Agency's Title Notice") of the Agency's
election to either (i) agree to remove the obj ectionable items
prior to the Close of Escrow, or (ii) decline to remove any such
ti tIe exceptions; provided, however, that the Agency shall be
required to remove all monetary liens and encumbrances created by
or as a result of the Agency's activities. If the Agency notifies
the Purchaser of its election to terminate Escrow rather than
remove the objectionable items, the Purchaser shall have the right,
by written notice delivered to the Agency within five (5) days
after the Purchaser's receipt of the Agency IS Title Notice, to
agree to accept the Property subject to the objectionable items, in
which event the Agency's election to terminate the Escrow shall be
of no effect, and the Purchaser shall take title to the Property at
the Close of Escrow subject to such objectionable title items.
(b) The Agency hereby covenants not to encumber place
any liens or encumbrances on the Property, including, but not
limited to, covenants, conditions, restrictions, easements, liens,
options to purchase, options to lease, leases, tenancies, or other
possessory interests without the prior written consent of the
Purchaser following execution of this Agreement by the Agency.
Upon the issuance of any amendment or supplement to the Preliminary
Title Report which adds additional exceptions (including, but not
limited to, adding additional exceptions for matters shown on the
Survey as hereinafter defined), the foregoing right of review and
approval shall also apply to said amendment or supplement (provided
that the period for the Purchaser to review such amendment or
supplement shall be the later of the expiration of the Due
Diligence Period or ten (10) days from receipt of the amendment or
supplement) and Escrow shall be deemed extended by the amount of
time necessary to allow such review and approval in the time and
manner set forth above.
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Section 2.14. Survev. The Purchaser may at its sole
cost and separate expense obtain a survey of the Property prepared
by a land surveyor duly licensed by the State of California and in
compliance with ALTAIASCM standards (the "Survey"). The Survey
shall be in a form acceptable to the Title Company for the deletion
of the standard survey exception in the Title Policy relating to
boundaries, without the addition of further exceptions, unless the
same are acceptable to the Purchaser in its sole and absolute
discretion. The Purchaser shall have until the end of the Due
Diligence Period to complete and examine the Survey and to notify
the Agency in writing of any objections the Purchaser has to the
Survey ("Purchaser's Survey Objection Notice"). The Agency shall
have a period of five (5) days after receipt of the Purchaser's
Survey Objection Notice in which to deliver written notice to the
Purchaser ("Agency's Survey Notice") of the Agency's election to
either (i) agree to remove the objectionable items prior to the
Close of Escrow or (ii) decline to remove such items. If the
Agency notifies the Purchaser of its intention not to remove the
objectionable items, the Purchaser shall have the right, by written
notice delivered to the Agency within ten (10) days after the
Purchaser's receipt of Agency's Survey Notice, to agree to accept
the Property subject to the objectionable items, in which event,
the Agency's election to terminate the Escrow shall be of no
effect, and the Purchaser shall accept the Property at the Close of
Escrow subject to such objectionable items. Prior to the Close of
Escrow, the Survey shall be recertified to the Purchaser, Title
Company and the Purchaser's lender, if any.
Section 2.15. Extension of Due Diliaence Period.
(al In the event the Agency fails to provide the
Purchaser with documents or other information required by Sections
2.08 and 2.11 by the date(s) set forth therein, the Due Diligence
Period regarding such information shall be extended by one (1) day
for each day of the delay by the Agency to permit the Purchaser to
perform an adequate due diligence review of such documents or
information (but shall not exceed a total of sixty (60) days). The
Purchaser will use its best efforts to notify the Agency of any
documents or information the Agency has failed to deliver to the
Purchaser within the time periods provided in Sections 2.08 and
2.10.
(b) In the event that the Executive Director makes a
finding that the Purchaser has undertaken substantial work to
complete its due diligence in connection with the Property, the
Executive Director shall upon the written request of the Purchaser
authorize an extension of the Due Diligence Period for up to an
additional thirty (30) days.
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Section 2.16. Purchaser's Conditions Pr@ced@nt to C1os@
Escrow. The Purchaser's obligation to complete the purchase of the
Property and Close the Escrow shall be conditioned upon the
fulfillment of the following conditions precedent, all of which
shall be satisfied (or waived in writing pursuant to Section 2.19)
prior to the Close of Escrow:
(1) The Agency shall not have defaulted on any material
term of this Agreement to be performed by the
Agency, hereunder, and each representation and
warranty made by the Agency in this Agreement shall
remain true and correct. For purposes of this
subsection (1) only, a representation that is
limited to the Agency's knowledge or notice shall
be false, if the factual matter that is subject to
the representation is false, notwithstanding any
lack of knowledge or notice to the Agency;
(2) the Purchaser's approval of the Preliminary Title
Report and the Survey, if applicable, within the
time periods specified in Sections 2.13 and 2.14;
(3) the Purchaser's approval of the contents of all due
diligence items, and the other investigations of
the Property made by the Purchaser and/or its
designees pursuant to Sections 2.08 and 2.09
herein, on or before the expiration of the Due
Diligence Period, or such later date, if the Due
Diligence Period is extended pursuant to Section
2.15. The Purchaser shall be deemed to have
disapproved such due diligence items unless they
are approved on or before 5: 00 p.m. on the day
ending the Due Diligence Period, or such later
date, if the Due Diligence Period is extended
pursuant to Section 2.15 herein; and
(4) the Title Company has committed to issue the Title
Policy, in favor of the Purchaser in the form
described in Section 2.05.
Section 2.17. The Aaencv's Conditions Precedent to Close
of Escrow. The Agency's obligation to convey the Property to the
Purchaser shall be conditioned upon the fulfillment of the
following conditions precedent, all of which shall be satisfied (or
waived in writing pursuant to Section 2.19) prior to the Close of
Escrow:
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(1) the Purchaser has accepted the condition of the
Property and submitted its Due Diligence Approval
Certification to the Escrow Holder on or before the
date set forth in Section 2.10 of this Agreement;
(2) the Purchaser has accepted the condition of title
of the Property on or before the date set forth in
Section 2.13;
(3) the Purchaser shall not be in default of any
material term of this Agreement to be performed by
the Purchaser hereunder and each representation and
warranty of the Purchaser made in this Agreement
shall remain true and correct; and
(4) the Purchaser shall be satisfied (or waive
satisfaction) of each of the conditions precedent
set forth in Section 2.16 and the Escrow shall be
in a condition to close within sixty (60) days
following the Opening of Escrow (subject to Section
2.15, if applicable).
Section 2.18. Distribution of Documents and Purchase
Price After Closina Date bv Escrow Holder. The Escrow Holder shall
deliver to the Purchaser, within three (3) business days following
the Closing Date, a conformed copy of the Agency Grant Deed, as
recorded, and the policy of title insurance issued by the Title
Company in favor of the Purchaser. The Escrow Holder shall deliver
to the Agency the Purchase Price, less sums paid to discharge any
liens, less Escrow costs, expenses and the various prorations
chargeable to the Agency hereunder.
Section 2.19. Satisfaction of Conditions. Where
satisfaction of any of the foregoing conditions requires action by
the Purchaser or by the Agency, each party shall use its best
efforts, in good faith, and at its own cost, to satisfy such
conditions. Where satisfaction of any of the foregoing conditions
requires the approval of a party, such approval shall be in such
party's sole and absolute discretion.
Either party may waive any of the conditions set forth in
this Agreement, but any such waiver shall be effective only if
contained in a writing signed by the applicable party and delivered
to the Escrow Holder.
Section 2.20.
[RESERVED -- NO TEXT]
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S@ction 2.21. Prcrations. Closina Costs. Pos~ession.
(a) Real and personal property taxes for the Property
shall be prorated by the parties to the Close of Escrow on the
basis of a three hundred sixty-five (365) day year. The Agency is
responsible for (i) all taxes (if any) for the fiscal year of the
applicable taxing authority occurring prior to the Current Tax
Period (as defined below) and (ii) that portion of such taxes for
the Current Tax Period to 11:59 p.m. upon the Close of Escrow,
whether or not the same shall be payable prior to the Close of
Escrow. The phrase "Current Tax Period" refers to the fiscal year
of the applicable taxing authority in which the Close of Escrow
occurs. All tax prorations shall be based upon the latest
available tax statement. If the tax statements for the fiscal tax
year during which the Close of Escrow occurs do not become
available until after the Close of Escrow, then the rates and
assessed values of the previous year, with known changes, shall be
used, and the parties shall re-prorate said taxes outside of Escrow
following the Close of Escrow when such tax statements become
available. The Agency shall be responsible for and shall payor
reimburse the Purchaser upon demand for any real or personal
property taxes payable following the Close of Escrow applicable to
any period of time prior to the Close of Escrow as a result of any
change in the tax assessment by reason of reassessment, changes in
use of the Property, changes in ownership, errors by the Assessor
or otherwise.
(b) The Purchaser shall be entitled to exclusive
possession of the Property immediately upon the Close of Escrow.
(c) The Agency shall pay the cost of the premium for an
ALTA policy of title insurance on the Property in the amount of the
Purchase Price, together with all title charges (including
endorsements reasonably requested by the Purchaser to remove
disapproved items shown on the Preliminary Title Report or Survey
pursuant to Sections 2.13 and 2.14 above). The Agency shall pay
one-half (~) of the customary and reasonable escrow fees which may
be charged by the Escrow Holder in connection with the Close of
Escrow.
The Purchaser shall pay the additional cost of the Survey
and requested ALTA survey policy endorsements (to the extent such
endorsements are unrelated to removal of any disapproved items
shown on the Preliminary Title Report or Survey pursuant to
Sections 2.13 and 2.14 above) which exceeds the premium for an ALTA
policy of title insurance on the Property, plus the cost of
recording the Agency Grant Deed, together with one-half (~) of the
cost of the customary and reasonable escrow fees charged by Escrow
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Holder in connection with the Close of Escrow. The Purchaser shall
pay any documentary or other transfer taxes payable on account of
the conveyance of the Property to the Purchaser.
Any other Escrow-related transaction expenses or escrow
closing costs incurred by the Escrow Holder in connection with this
transaction shall be apportioned and paid for by the parties to
this Agreement in the proportion of one-half (~) payable by each
party.
No later than three (3) business days prior to the Close
of Escrow, the Escrow Holder shall prepare a closing statement
("Closing Statement") on the Escrow Holder's standard form
indicating, among other things, the Escrow Holder's estimate of all
closing costs, pay-off amounts for the release and reconveyance of
all liens secured by the Property and prorations made pursuant to
this Agreement for approval by the Purchaser and the Agency. The
Purchaser and the Agency shall assist the Escrow Holder in
determining the amount of all prorations.
Section 2.22. BREACH OF ARTICLE II BY THE AGENCY;
LIOUIDATED DAMAGES PAYABLE BY THE AGENCY TO THE PURCHASER. IN THE
EVENT THAT THE AGENCY COMMITS A MATERIAL BREACH OF ITS OBLIGATIONS
UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE DAMAGES
THAT THE Purchaser WILL INCUR BY REASON THEREOF ARE AND WILL BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE Purchaser
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
PURCHASER'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE
AGENCY, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT EQUAL
TO THE SUM OF ONE THOUSAND DOLLARS ($1,000.00) AS LIQUIDATED
DAMAGES. SUCH SUM SHALL BE PAID TO THE PURCHASER IN THE EVENT OF
SUCH DEFAULT BY THE AGENCY UPON THE TERMINATION OF THIS AGREEMENT
AND CANCELLATION OF THE ESCROW, AS LIQUIDATED DAMAGES, WHICH
DAMAGES SHALL BE THE PURCHASER'S SOLE AND EXCLUSIVE REMEDY AT LAW
OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE AGENCY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE
PURCHASER WAIVES ANY AND ALL RIGHTS WHICH THE PURCHASER OTHERWISE
WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY
ENFORCE THIS AGREEMENT. THE PURCHASER AND THE AGENCY ACRNOWLEDGE
AND AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS THE PROVISIONS
OF THIS SECTION AND EACH AGREES TO BE BOUND BY ITS TERMS.
Initials of Purchaser
Initials of Agency
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Section 2.23. BREACH BY THE PURCHASER OF ARTICLE II:
LIOUIDATED DAMAGES PAYABLE BY THE PURCHASER TO THE AGENCY. IN THE
BVlD1'.r THAT TD PURCHASBR COIGaTS A MATBlUAL BREACH OF ITS
OBLIGATIONS UNDBR THIS ARTICLB II PRIOR TO THE CLOSE OF ESCROW, THE
DAMAGES THAT THE AGENCY WILL INCUR BY REASON THEREOF ARE AND WILL
BE IMPRACTICAL AND EXTREMELY DIF!'ICULT TO ESTABLISH. THE PURCHASER
AND THE AGENCY I IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
AGENCY'S DAMAGES WOULD BE IN THE BVlD1'.r OF SUCH A DEFAULT BY THE
PURCHASER, HAVE AGBBED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT
EQUAL TO THE SUM OF ONE THOUSAND DOLLARS ($1,000.00) AS LIQUIDATED
DAMAGES. SUCH SUM SHALL BE PAID TO THE AGENCY IN THE EVENT OF SUCH
DEFAULT BY THE PURCHASER AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL
BE THE AGENCY'S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN
THE EVENT OF AND FOR SUCH DEFAULT BY THE PURCHASER. WITHOUT
LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE AGENCY
WAIVES ANY AND ALL RIGHTS WHICH THE AGENCY OTHERWISE WOULD HAVE HAD
UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS
AGREEMENT. THE AGENCY AND THE PURCHASER ACRNOWLEDGE AND AGREE THAT
EACH OF THEM HAS READ AND UNDERSTANDS THE PROVISIONS OF THIS
SECTION AND EACH AGREES TO BE BOUND BY ITS TERMS.
Initials of Purchaser
Initials of Agency
Section 2.24. Damaae. Destruction and Condemnation.
Prior to the Agency's delivery of possession of the Property to
Purchaser at the Close of Escrow, the risk of loss or damage to the
Property shall remain upon the Agency. If the Property suffers
damages as a result of any casualty, prior to the Close of Escrow,
which may materially diminish its value, then the Agency shall give
written notice thereof to Purchaser promptly after the occurrence
of the casualty. Thereafter the Purchaser can elect to either: (i)
accept the Property in its damaged condition or (ii) the Purchaser
may terminate this Agreement and recover the Deposit, as set forth
in Section 2.02. The Purchaser shall confirm the exercise of its
election under subparagraph (i) or (ii) of the preceding sentence
within thirty (30) days of its receipt of notice from the Agency
that the Property suffered material damages.
In the event that, prior to the Close of Escrow, any
governmental entity shall commence any actions of eminent domain or
similar type proceedings to take any portion of the Property, the
Agency shall give prompt written notice thereof to Purchaser, and
Purchaser shall have the option either: (i) to elect not to acquire
the Property, terminate the Agreement and recover the Deposit, as
set forth in Section 2.02; or (ii) the Purchaser may complete the
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~-
acquisition of the Property under this Agreement, in which case the
Purchaser shall be entitled to all of the proceeds paid in
compensation for such taking; provided, however, that the Agency
agrees that it shall not settle or compromise the proceedings
before the Close of Escrow without the Purchaser's prior written
consent, which consent will not be unreasonably withheld or
delayed. The Purchaser shall confirm the exercise of its election
under subparagraph (i) or (ii) of the preceding sentence within
thirty (30) days of its receipt of notice from the Agency of
commencement of eminent domain proceedings against the Property.
ARTICLE III
USE AND MAINTENANCE OF THE PROPERTY
Section 3.01. Use of the ProDerty. The Purchaser
covenants and agrees for itself, its successors and assigns that
the Property shall be used in conformity with all applicable laws.
Section 3.02. Maintenance
Purchaser for itself, its successors
and agrees that:
of the PrODertv. The
and assigns hereby covenants
....,
'...;
(a) The areas of the Property which are subject to public
view (including all existing improvements, paving, walkways,
landscaping, exterior signage and ornamentation) shall be
maintained in good repair and a neat, clean and orderly condition,
ordinary wear and tear excepted. In the event that at any time
within twenty (20) years following the date of recordation of the
Agency Grant Deed there is an occurrence of an adverse condition on
any area of the Property which is subj ect to public view in
contravention of the general maintenance standard described above,
(a "Maintenance Deficiency") then the Agency shall notify the
Purchaser in writing of the Maintenance Deficiency and give the
Purchaser thirty (30) days from receipt of such notice to cure the
Maintenance Deficiency as identified in the notice. In the event
the Purchaser fails to cure or commence to cure the Maintenance
Deficiency within the time allowed, the Agency may conduct a public
hearing following transmittal of written notice thereof to the
Purchaser ten (10) days prior to the scheduled date of such public
hearing in order to verify whether a Maintenance Deficiency exists
and whether the Purchaser has failed to comply with the provisions
of this Section 3.02 (a) . If upon the conclusion of a public
hearing, the Agency makes a finding that a Maintenance Deficiency
exists and that there appears to be non-compliance with the general
maintenance standard, described above, thereafter the Agency shall
have the right to enter the Property and perform all acts necessary
to cure the Maintenance Deficiency, or to take other action at law
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or in equity which the Agency may then have to accomplish the
abatement of the Maintenance Deficiency. Any sum expended by the
Agency for the abatement of a Maintenance Deficiency on the
Property authorized by this Section 3.02(a) shall become a lien on
the Property. If the amount of the lien is not paid within thirty
(30) days after written demand for payment by the Agency to the
Purchaser, the Agency shall have the right to enforce the lien in
the manner as provided in Section 3.02(c).
(b) Graffiti, as this term is defined in Government Code
Section 38772, which has been applied to any exterior surface of
the building or any other structure on the Property which is
visible from any public right-of-way adjacent or contiguous to the
Property, shall be removed by the Purchaser by either painting over
the evidence of such vandalism with a paint which has been color-
matched to the surface on which the paint is applied, or graffiti
may be removed with solvents, detergents or water as appropriate.
In the event that such graffiti may become visible from an adjacent
or contiguous public right-of-way but is not removed within 72
hours following the time of such application, the Agency shall have
the right to enter the Property and remove the graffiti without
notice to the Purchaser. Any sum expended by the Agency for the
removal of graffiti from the Property authorized by this Section
3.02(b) in an amount not to exceed $250.00 per entry by the Agency,
shall become a lien on the Property. If the amount of the lien is
not paid within thirty (30) days after written demand to the
Purchaser by the Agency, the Agency shall have the right to enforce
its lien in the manner provided in Section 3.02(c).
(c) The parties hereto further mutually understand and agree
that the rights conferred upon the Agency under this Section 3.02
expressly include the power to establish and enforce a lien or
other encumbrance against the Property, or any portion thereof, in
the manner provided under Civil Code Sections 2924, 2924b and 2924c
in an amount reasonably necessary to restore the Property to the
maintenance standard required under Section 3.02 (a) or Section
3.02(b), including the reasonable attorneys' fees and costs of the
Agency associated with the abatement of the Maintenance Deficiency
or removal of graffiti. For the purposes of the preceding sentence
the words "reasonable attorneys' fees and costs of the Agency" mean
and include the salaries, benefits and costs of the City Attorney
and the lawyers employed in the Office of the City Attorney The
provisions of this Section 3.02 shall be a covenant running with
the land for a term of twenty (20) years following the date of
recordation of the Agency Grant Deed, and shall be enforceable by
the Agency. Nothing in the foregoing provisions of this Section
3.02 shall be deemed to preclude the Purchaser from making any
alteration, addition, or other change to any structure or
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improvement or landscaping on the Property, provided that any such
changes comply with applicable zoning and building regulations of
the City.
Section 3.03. Taxes and Assessments. The Purchaser
shall pay, prior to delinquency, all real property taxes and
assessments assessed and levied upon or against the Property
subsequent to the Close of Escrow. Nothing herein contained shall
be deemed to prohibit the Purchaser from contesting the validity or
amounts of any tax or assessment, nor to limit the remedies
available to the Purchaser in respect thereto.
Section 3.04. Transfer of Prooerty to Exemot Person.
The Purchaser covenants and agrees that in the event that the
Property, or any portion thereof, shall be conveyed or transferred
or sold by the Purchaser, its successors or assigns, to any entity
or party that is partially or wholly exempt from the payment of ~
valorem property taxes pertinent to the Property, or any portion,
within twenty (20) years from the date of recordation of the Agency
Grant Deed, the Purchaser, its heirs or assigns shall pay the
Agency a fee in lieu of payment of such taxes each year in an
amount which is determined by the Agency to be one percent (1.0%)
of the full cash value of the Property, or portion thereof, as may
be subject to such exemption from payments of ~ valorem property
taxes. Such determination of ~full cash value" for such in-lieu
payment purposes under this Section 3.04 shall be established by
the Agency each year, if necessary, by reference to the ~ valorem
property tax valuation principles and practices as generally
applicable to a county property tax assessor under Section 2 of
Article XIIIA of the California Constitution. In the event that
the Agency may hereafter determine that an amount is payable by the
Purchaser to the Agency as an in-lieu payment under this Section
3.04 in any tax year, then such amount shall be paid to the Agency
for that tax year within ninety (90) days following transmittal of
notice of invoice for payment of the in-lieu amount by the Agency
to the Purchaser. The provisions of this covenant shall be
referenced in the Agency Grant Deed.
Section 3.05. Obliaation to Refrain from Discrimination.
The Purchaser covenants and agrees for itself, its successors, its
assigns and every successor-in-interest to the Property or any part
thereof, that there shall be no discrimination against or
segregation of any person, or group of persons, on account of sex,
marital status, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property; nor shall the Purchaser,
itself or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or
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segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees
of the Property. The covenant of this Section 3.04 shall run with
the land for the time period set forth in the Agency Grant Deed.
S@ction 3.06. Form of Nondiscrimination and
NonseQ'reaation Clauses. The Purchaser covenants and agrees for
itself, its successors, its assigns, and every successor-in-
interest to the Property, or any part thereof, that the Purchaser,
such successors and such assigns shall refrain from restricting the
sale, lease, sublease, rental, transfer, use, occupancy, tenure or
enjoyment of the Property (or any part thereof) on the basis of
sex, marital status, race, color, religion, creed, ancestry or
national origin of any person. All deeds, leases or contracts
pertaining thereto shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(1) In deeds: "The grantee herein covenants by and for
itself, its successors and assigns, and all persons
claiming under or through them, that there shall be
no discrimination against or segregation of, any
person or group of persons on account of race,
color, creed, religion, sex, marital status,
national origin, or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor
shall the grantee or any person claiming under or
through it, establish or permit any such practice
or practices of discrimination or segregation with
reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants,
sublessee, or vendees in the premises herein
conveyed. The foregoing covenants shall run with
the land."
(2) In leases: "The Lessee herein covenants by and for
itself, its successors and assigns, and all persons
claiming under or through them, and this lease is
made and accepted upon and subject to the following
conditions: That there shall be no discrimination
against or segregation of any person or group of
persons, on account of race, color, creed,
religion, sex, marital status, national origin, or
ancestry, in the leasing, subleasing, transferring,
use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee itself,
or any person claiming under or through it,
establish or permit any such practice or practices
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of discrimination or segregation with reference to
the selection, location, number, use, or occupancy,
of tenants lessees, sublessee, subtenants, or
vendees in the premises herein leased."
(3) In contracts: "There shall be no discrimination
against or segregation of any person or group of
persons on account of race, color, creed, religion,
sex, marital status, national origin, or ancestry,
in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises
herein conveyed or leased, nor shall the transferee
or any person claiming under or through it,
establish or permit any such practice or practices
of discrimination or segregation with reference to
the selection, location, number, use, or occupancy,
of tenants, lessees, sublessees, subtenants, or
vendees of the premises herein transferred." The
foregoing provision shall be binding upon and shall
obligate the contracting party or parties and any
subcontracting party or parties, or other
transferees under the instrument. The covenant of
this Section 3.05 shall run with the land in
perpetuity.
ARTICLE IV
DEFAULTS. REMEDIES AND TERMINATION
Section 4.01. Defaults - General.
(a) In the event that a breach or default may occur
prior to the Close of Escrow, the remedies of the parties shall be
as set forth in Article II of this Agreement.
(b) From and after the Close of Escrow and subject tc
the extensions of time set forth in Section 5.05 hereof, failure or
delay by either party to perform any term or provision of this
Agreement shall constitute a default under this Agreement;
provided, however, that if a party otherwise in default commences
to cure, correct or remedy such default within thirty (30) calendar
days after receipt of written notice from the injured party
specifying such default, and shall diligently and continuously
prosecute such cure, correction or remedy to completion (and where
any time limits for the completion of such cure, correction or
remedy are specifically set forth in this Agreement, then within
said time limits), such party shall not be deemed to be in default
hereunder.
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(c) The injured party shall give written notice of
default to the party in default, specifying the default complained
of by the nondefaulting party. Delay in giving such notice shall
not constitute a waiver of any default nor shall it change the time
of default.
(d) Any failure or delays by either party in asserting
any of their rights and/or remedies as to any default shall not
operate as a waiver of any default or of any such rights or
remedies. Delays by either party in asserting any of their rights
and/or remedies shall not deprive either party of its right to
institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or
remedies.
Section 4.02. Leaal Actions.
(a) In addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy any
default, to recover damages for any default, or to obtain any other
remedy consistent with the purposes of this Agreement. Such legal
actions must be instituted in the Superior Court of the State of
California in and for the County of San Bernardino in any other
appropriate court within said County, or in the Federal District
Court for the Central District of California.
(b) The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
(c) In the event that any legal action is commenced by
the Purchaser against the Agency, service of process on the Agency
shall be made by personal service upon the Executive Director or
Chair of the Community Development Commission, or in such other
manner as may be provided by law.
(d) In the event that any legal action is commenced by
the Agency against the Purchaser, service of process on the
Purchaser shall be made by personal service on Jerry Burns and/or
Lila Burns, or in such other manner as may be provided by law, and
shall be valid whether made within or without the State of
California.
Section 4.03. Riahts and Remedies are Cumulative.
Except with respect to any rights and remedies expressly declared
to be exclusive in Article II of this Agreement as relates to a
default or breach occurring before the Close of Escrow, the rights
and remedies of the parties as set forth in this Article V
following the Close of Escrow are cumulative and the exercise by
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either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default
by the other party.
.j
Section 4.04. Damaqes. If either party defaults with
regard to any provision of this Agreement, the nondefaulting party
shall serve written notice of such default upon the defaulting
party. If the defaulting party does not diligently commence to
cure such default after service of such notice of default and
promptly complete the cure of such default within a reasonable
time, not to exceed ninety (90) calendar days (or such shorter
period as may otherwise be specified in this Agreement for
default), after the service of written notice of such a default.
In the event that a default relates to a matter arising after the
Close of Escrow, the defaulting party shall be liable to the other
party for damages caused by such default. In the event that a
default relates to a matter arising before the Close of Escrow, the
remedies of the parties shall be limited to the liquidated damage
sums as set forth in Article II of the Agreement.
Section 4.05. Specific Performance Prior to Close of
Escrow. Prior to the Close of Escrow neither party shall have or
assert the equitable remedy of specific performance in the event of
a default or breach, and the remedies of the parties with respect
to such a breach or default prior to the Close of Escrow shall be
limited to the termination rights and liquidated damage amounts set
forth in Article II of this Agreement.
ARTICLE V
GENERAL PROVISIONS
Section 5.01. Notices.
Between the Parties.
Demands
and
Communications
(a) Any and all notices, demands or communications
submitted by any party to another party pursuant to or as required
by this Agreement shall be proper if in writing and dispatched by
messenger for immediate personal delivery, or by registered or
certified United States mail, postage prepaid, return receipt
requested, to the principal office of the Agency and the Purchaser,
as applicable, as designated in Section 1.04(a) and Section 1.04(b)
hereof. Such written notices, demands and communications may be
sent in the same manner to such other addresses as either party may
from time to time designate, as provided in this Section. Any such
notice, demand or communication shall be deemed to be received by
the addressee, regardless of whether or when any return receipt is
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.
received by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for
immediate personal delivery, or two (2) calendar days after it is
placed in the United States mail, as heretofore provided.
(b) In addition to the submission of notices, demands or
communications to the parties as set forth above, copies of all
notices shall also be delivered by facsimile as follows:
to the Purchaser:
Jerry and Lila Burns
High Desert Cable, Inc.
275 South uG" Street
San Bernardino, California 92401
Fax
the Agency:
Redevelopment Agency of the City
of San Bernardino
201 North UE" Street
Suite 301
San Bernardino, California 92401
FAX: (909) 384-5135
with copy to:
Sabo & Green, LLP
201 North UE" Street
Suite 300
San Bernardino, California 92401
FAX: (909) 383-9378
Section 5.02. Conflict of Interest. No member, official
or employee of the Agency having any conflict of interest, direct
or indirect, related to this Agreement and the development of the
Property shall participate in any decision relating to the
Agreement. The parties represent and warrant that they do not have
knowledge of any such conflict of interest.
Section 5.03. Warranty Aaainst Pavment of Consideration
for Agreement. The Purchaser warrants that it has not paid or
given, and will not payor give, any third party any money or other
consideration for obtaining this Agreement. Third parties, for the
purposes of this Section, shall not include persons to whom fees
are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the
like when such fees are considered necessary by the Purchaser.
Section 5.04. Nonliabilitv of Aaencv Officials and
Emolovees. No member, official or employee of the Agency shall be
personally liable to the Purchaser, or any successor in interest,
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.
in the event of any default or breach by the Agency or for any
amount which may become due to the Purchaser or to its successor,
or on any obligations under the terms of this Agreement, except for
gross negligence or willful acts of such member, officer or
employee.
Section 5.05. Enforced D~lav: Extension of Time of
Performance. In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, or considered to be a default, where delays or defaults
are due to the force majeure events of war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, casualties, acts of
God, acts of the public enemy, epidemics, quarantine restrictions,
freight embargoes or lack of transportation, weather-caused delays,
inability to secure necessary labor, materials or tools, delays of
any contractors, subcontractor or supplier, which are not
attributable to the fault of the party claiming an extension of
time to prepare or acts or failure to act of any public or
governmental agency or entity (provided that acts or failure to act
of the City or Agency shall not extend the time for the Agency to
act hereunder except for delays associated with lawsuit or
injunction including but without limitation to lawsuits pertaining
to the approval of the Agreement, and the like). An extension of
time for any such force majeure cause shall be for the period of
the enforced delay and shall commence to run from the date of
occurrence of the delay; provided however, that the party which
claims the existence of the delay has first provided the other
party with written notice of the occurrence of the delay within ten
(10) days of the commencement of such occurrence of delay.
The parties hereto expressly acknowledge and agree that
changes in either general economic conditions or changes in the
economic assumptions of any of them which may have provided a basis
for entering into this Agreement and which occur at any time after
the execution of this Agreement, are not force majeure events and
do not provide any party with grounds for asserting the existence
of a delay in the performance of any covenant or undertaking which
may arise under this Agreement. Each party expressly assumes the
risk that changes in general economic conditions or changes in such
economic assumptions relating to the terms and covenants of this
Agreement could impose an inconvenience or hardship on the
continued performance of such party under this Agreement, but that
such inconvenience or hardship is not a force majeure event and
does not excuse the performance by such party of its obligations
under this Agreement.
Section 5.06. Insoection of Books and Records. The
Agency shall have the right at all reasonable times at the Agency's
SBEO/0001/DOc/4156-1
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.
cost and expense to inspect the books and records of the Purchaser
pertaining to the Property and/or the development thereof as
necessary for the Agency, in its reasonable discretion, to enforce
its rights under this Agreement. Matters discovered by the Agency
shall not be disclosed to third parties unless required by law or
unless otherwise resulting from or related to the pursuit of any
remedies or the assertion of any rights of the Agency hereunder.
The Purchaser shall also have the right at all reasonable times to
inspect the books and records of the Agency pertaining to the
Property and/or the development thereof as pertinent to the
purposes of this Agreement.
Section 5.07. Ap9rovals.
(a) Approvals required of the Agency or the Purchaser,
or any officers, agents or employees of either the Agency or the
Purchaser, shall not be unreasonably withheld and approval or
disapproval shall be given within the time set forth in the
Schedule of Performance or, if no time is given, within a
reasonable time.
(b)
to sign on his
which are of
adjustments to
The Executive Director of the Agency is authorized
or her own authority amendments to this Agreement
routine or technical nature, including minor
the Schedule of Performance.
Section 5.08. Real Estate Commissions. The Agency and
the Purchaser acknowledge that the Agency has retained Robbins and
Associates as the Agency's agent in connection with the purchase of
the Property. The Agency shall pay all fees or commissions or
other expenses related to its retention or employment of Robbins
and Associates.
Section 5.09. Indemnification. The Purchaser agrees to
indemnify and hold the City and the Agency, and their officers,
employees and agents, harmless from and against all damages,
judgments, costs, expenses and fees arising from or related to any
act or omission of the Purchaser in performing its obligations
hereunder. The Agency agrees to indemnify and hold the Purchaser
and its officers, employees and agents, harmless from and against
all damages, judgments, costs, expenses and fees arising from or
related to any act or omission of the Agency in performing its
obligations hereunder.
Section 5.10. Release of Purchaser from Liabilitv.
Notwithstanding any provision herein to the contrary, the Purchaser
shall be relieved of any and all liability for the obligations of
the Purchaser hereunder with regard to the Property when a
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.
Certificate of Completion has been issued by the Agency hereunder
with respect thereto, other than any covenants and obligations
provided by the grant deed by which the Property is conveyed to the
Purchaser hereunder.
Section 5.11. Attornevs' Fees. If either party hereto
files any action or brings any action or proceeding against the
other arising out of this Agreement, seeks the resolution of
disputes pursuant to Section 4.02 hereof, or is made a party to any
action or proceeding brought by the Escrow Agent, then as between
the Purchaser and the Agency, the prevailing party shall be
entitled to recover as an element of its costs of suit or
resolution of disputes pursuant to Section 5.12 hereof, and not as
damages, its reasonable attorneys' fees as fixed by the Court or
other forum for resolution of disputes as set forth in Section 5.12
hereof, in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys' fees. The costs,
salary and expenses of the City Attorney and members of his office
in enforcing this Agreement shall be considered as "attorneys'
fees" for purposes of this Section.
Section 5.12. Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives,
successors and assigns.
ARTICLE VI
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
Section 6.01. Entire Aareement.
(a) This Agreement shall be executed in four (4)
duplicate originals each of which is deemed to be an original.
This Agreement includes ____ pages and ____ attachments, which
constitute the entire understanding and Agreement of the parties.
(b) This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and supersedes
all negotiations or previous agreements between the parties with
respect to all or any portion of the Property and the development
thereof.
(c)
conditions set
with the grant
Agreement shall
such conveyance
None of the terms, covenants, agreements or
forth in this Agreement shall be deemed to be merged
deed conveying title to the Property, and this
continue in full force and effect before and after
until issuance of the Certificate of Completion.
SBEO/0001/DOc/4156-1
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30
(d) All waivers of the provisions of this Agreement and
all amendments hereto must be in writing and signed by the
appropriate authorities of the Agency and the Purchaser.
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31
.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the dates set forth below.
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
By:
Judith Valles
Chair of the Community
Development Commission
Date:
By:
Gary Van Osdel
Executive Director
APPROVED AS TO FORM:
Agency Counsel
Purchaser
Date:
Jerry Burns
Date:
Lila Burns
[All Signatures Must Be Notarized]
32
.
CAUFORNIA ALL-PURPOSE ACKNOWLEDGMENT
County of
)
) ss.
)
State of California
On
. before me,
Name and Tille of OlIicer (e.g., "Jane Doe, Notary Public")
Date
personally appeared
Name(s) of Signer(s)
D personally known to me
D provided to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in hislherllheir authorized capacity(ies),
and that by hislherllheir signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form /0 another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
D Individual
D Corporate Officer - Title( s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
Right Thumbprint of Signer
Signer is Representing:
.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
County of
)
) ss.
)
State of California
On
, before me,
Name and rotle of Officer (e.g., . Jane Doe, Notary Publlcj
Date
personally appeared
Name(s) of Signer(s)
a personally known to me
a provided to me on the basis of satisfactory evidence
to be the person(s) whose name(s) isfare subscribed to the
within instrument and acknowledged to me that he/shelthey
executed the same in hislher/their authorized capacity(ies),
and that by hislher/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to pelSons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
a Individual
a Corporate Officer - Title(s):
a Partner - a Limited a General
a Attorney in Fact
a Trustee
a Guardian or Conservator
a Other:
Right Thumbprint of Signer
Signer is Representing:
,
.
SBEO/0001/DOc/4156-1
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Exh. "A" - 1
,
.
EXHIBIT "B"
AGENCY GRANT DEED
SBEO/0001/DOc/4156-1
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Exh. "B" - 1
GRANT n121m
Recording Requested By and
After Recording Mail To:
Jerry and Lila Burns
275 South "G" Street
San Bernardino, CA
(Space Above for Recorder's Use)
For valuable consideration, the receipt of which is
hereby acknowledged, the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body, corporate and politic of the State of
California ("Grantor") hereby grants to Jerry Burns and Lila Burns,
husband and wife ("Grantee") the real property legally described in
Exhibit A and by this reference incorporated herein ("Property").
1. The Property is conveyed subject to that certain
Disposition and Development Agreement dated as of
2000 ("Agreement"). The provisions of the Agreement are
incorporated herein by this reference and shall be deemed to be a
part hereof as if set forth at length herein.
2. The Grantee covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming
under or through them, that there shall be no discrimination
against or segregation of any person or group of persons on account
of race, color, creed, religion, sex, age, marital status, national
origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enj oyment of the Property, nor shall the
Grantee or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees
in or on the Property.
All deeds, leases or contracts made relative to the
Property shall contain the following nondiscrimination clauses:
(a) In deeds: "The grantee herein covenants
by and for itself, its heirs, executors, administrators
and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or
segregation of any person or group of persons on account
of race, color, creed, religion, sex, age, marital
SBEO/0001/DOc/4164
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1
..
..
status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment
of the land herein conveyed, nor shall the grantee, or
any person claiming under or through the grantee,
establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, locations, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees in or
on the land herein conveyed. The foregoing covenants
shall run with the land."
(b) In leases: "The lessee herein covenants
by and for itself, its heirs, executors, administrators
and assigns, and all persons claiming under or through
them, and this lease is made and accepted upon and
subject to the following conditions:
That there shall be no discrimination against or
segregation of any person or group of persons on account
of race, color, creed, religion, sex, age, marital
status, national origin or ancestry in the leasing,
subleasing, transferring, use, occupancy, tenure or
enjoyment of the land herein leased, nor shall the lessee
itself, or any person claiming under or through it,
establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy, of
tenants, lessees, subtenants, sublessees or vendees in
the land herein leased."
(c) In contracts: "There shall be no
discrimination against or segregation of any person or
group of persons on account of race, color, creed,
religion, sex, age, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land, nor shall the
transferee itself, or any person claiming under or
through it, establish or permit any such practice or
practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of
the land."
3. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant
Deed shall defeat or render invalid or in any way impair the lien
or charge of any mortgage, deed of trust or other financing or
security instrument permitted by the Agreement; provided, however,
SBEO/0001/DOc/4164
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2
"
that any successor of Grantee to the Property shall be bound by
such remaining covenants, conditions, restrictions, limitations and
provisions, whether such successor's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or
otherwise.
4. The terms and conditions set forth in Article III of
the Agreement and the covenants otherwise contained in this Grant
Deed shall remain in effect for a period of five (5) years from the
date hereof, except that the covenants against discrimination set
forth in Article IV of the Agreement shall remain in effect in
perpetuity.
5. The covenants contained in this Grant Deed shall be
binding for the benefit of the Grantor and its successors and
assigns, and such covenants shall run in favor of the Grantor for
the entire period during which such covenants shall be in full
force and effect, without regard to whether the Grantor is or
remains an owner of any land or interest herein to which such
covenants relate. The Grantor, in the event of any breach of any
such covenants, shall have the right to exercise all of the rights
and remedies, and to maintain any actions at law or suits in equity
or other proper proceedings, to enforce the curing of such breach
as provided in the Agreement or by law. The covenants contained in
this Grant Deed shall be for the benefit of and shall be
enforceable only by the Grantor and its successor.
SBEO/0001/DOc/4164
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3
.
.
IN WITNESS WHEREOF, the Grantor and Grantee have caused
this instrument to be executed on their behalf by their respective
officers thereunto duly authorized this day of
, 2000.
[SIGNATURES TO BE
ACKNOWLEDGED FOR
RECORDATION]
APPROVED AS TO FORM:
SABO & GREEN, LLP
By:
~K~
Agency Special Counsel
Grantor:
REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
By:
Chairperson
By:
Secretary
accepted.
The provisions of this Grant Deed are hereby approved and
SBEO/0001/DOc/4164
8/24/00 215 ct
Grantee:
Jerry Burns
Lila Burns
4
.
.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
County of
)
) ss.
)
State of California
On
. before me,
Name and Tille of Otficer (e.g., 'Jane Doe, Notary Public")
Date
personally appeared
Name(s) of Signer(s)
o personally known to me
o provided to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/shelthey
executed the same in hislherltheir authorized capacity(ies),
and that by hislherltheir signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Umited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
Right Thumbprint of Signer
Signer is Representing:
.
..
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): q-l y,-e:o Item # Q 3 \ A
Vote: Ayes 1-'") Nays -e- Abstain
Change to motion to amend original documents:
Resolution # 2CJ:::lU- Z q \
B- Absent -e
~<\E:E f25so. crx:./-zCCO-2', \
I
Reso. # On Attachments: -
Contract tenn:
~
Null/Void After:
-
Date Sent to Mayor: q-1.cJ-()() Date Returned from Mayor:
Date of Clerk's Signature: q - d 1-00 Reso. Log Updated:
q-.;l.~-CO
,/
Date of Mayor's Signature,c{- .;;;a-CD
Seal Impressed: y'"
Date Memo Sent to Department for Signature:
See Attached: _-Date Returned:
Date Letter Sent to Outside Party for Signature:
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See AttaChed:t Date Returned:
See Attached:
See Attached:
Note on Resolution of Attachment stored separately: -=-
Direct City Clerk (circle i): PUBLISH, POST, RECORD W/COUNTY Date: See Attached: -
Request for Council Action & Staff Report Attached: Yes /"
Updated Prior Resoiutions (Other Than Below): Yes
Updated CITY Personnel Folders (64i3, 6429, 6433,10584,10585, i2634): Yes
Updated CDC Personnel Folders (5557): Yes
Updated Traffic Folders (3985, 8234,655,92-389): Yes
No By
No-L By
No ,/ By
No ..L- By
No / By
Copies Distributed to:
City Attorney /"
Parks & Rec.
EDA ,/
Others:
Finance
MIS
Code Compliance Dev. Services
Police Public Services Water
Notes:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File:~ Date: <1'- 2Z-ro
..
....
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): q - \ g -00 Item #
Vote: Ayes 1-'1 Nays -G
Change to motion to amend original documents:
R-0lB
Resolution #
Abstain
.-e---
r:..R'.
cD::.- /7()(D-3 I
Absent -B-
/2€sC. 2cm- 2<:( I
Reso. # On Attachments: .'--
Contract teoo:
NulVVoid After: (tT .1 'g.7.CJ:X)
Date Sent to Mayor: q - ZO -CD Date Returned from Mayor:
Date of~ Signature: q- 2. '-00 Reso. Log Updated:
tOtJA
q - .Q. \-<::C
/
Date of Mayor's Signature: 9-~o-oO
Seal Impressed: v'" wi A
Date Memo Sent to Department for Signature:
See Attached: _ -flate Returned:
,
See AttaChed:~ Date Returned:
See Attached:
See Attached:
~
Date Letter Sent to Outside Party for Signature:
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
Note on Resolution of Attachment stored separately: -==-
Direct City Clerk (circle I): PUBLISH, POST, RECORD W/COUNTY Date:
See Attached: -
-
Yes / No By
Yes No ----L- By
Yes NO-L By
Yes No ---L By
Yes No -L By
Request for Council Action & StalT Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234,655,92-389):
Copies Distributed to:
City Attorney
Parks & Rec.
Code Compliance Dev. Services
Police Public Services
EDA
/
Finance
MIS
Water
Others:
Notes:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: ~
Date: g- 22-~