.·.,
intent of the parties and replaces and supersedes any pnor agreements, letters, or negotiations, whether oral or written.
16. Governing Law. The laws of the State in which the Property is located will govern this transaction.
Buyer is very interested in pursuing the Acquisition, subject to its execution of the Definitive Agreement and completion of its due diligence to its satisfaction pursuant to the terms contained within the Definitive Agreement. Please evidence your agreement with the foregoing by executing this Letter in the space provided below and returning it to me by fax or email by 5:00 p.m. Pacific Time within 7 days after receipt of this Letter, otherwise this Letter will automatically expire and be of no further fcrce or effect. We look forward to working with you toward the successful completion of an Acquisition.
Very truly yours,
City of El Cajon, a California charter city
and municipal coq~ora · n
B.~-~--------~ - - ~ Name: Graham Mitchell
Title: City Manager
SELLER*:
By:
Its:
*The individual executing this Letter on behalf of Seller represents that he or she has the authority to do so and to bind Seller to the binding provisions of this Letter.
Mr. Kevin Mattson
September 21, 2023
EXHIBIT A
DUE DILIGENCE MATERIALS
(IF AVAILABLE)
• Existing Title Policy
• CC&R's/REA's, if applicable
• Existing ALT A Survey
• Engineering/Property Condition Reports
• Geotechnical/Soils Report
• Seismic Report, if applicable
• Existing Environmental Report(s) - Phase I, Phase II, etc. • As-Built Drawings (Hard copy & electronic), Architectural Drawings (Hard copy & electronic)
• Mechanical, Electrical, Plumbing, Sprinkler/Fire Protection Drawings and Specifications • Governmental Permits, Notices, Reports, Citations, Compliance/Non-Compliance & Correspondence, Documents from any Governmental authority pertaining to the property • Recent Inspection Reports (fire department, building inspections, zoning, if applicable) • Current Year Tax Valuation, Tax Bills (previous two years), History of Tax Protests, if any (including original and final valuations), Pending Tax Protests, if any • Seller's Issuance of Insurance Claims or Letter Stating None • Existing Financing, Lender Closing Binder (loan docs, closing statements, opinions, UCC searches, etc.), Lender Approval Letters (if applicable), Approved Lender Budgets (Original & YTD & variance details)
• Amortization Schedule
• Cash Management Account Statements
• Construction Documents
• Executed GC Contract, Amendments, Exclusions
• AIA Contactors Qualification Statement & Financials
• Architectural Agreement
• Architectural Qualification/Resume
• Approvals, Site Plar:, Zoning, Development and Other Agency (Historical, Traffic, etc.) • Permits (grading, foundation, building, etc.)
REAL ESTATE SALE AGREEMENT
by and between
Centro de Salud de la Comunidad de San Ysidro, Inc.,
a California nonprofit public benefit corporation,
as Seller
and
City of El Cajon,
a California charter city and municipal corporation, its assignee or nominee, as Purchaser
December , 2023
--
2 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE SALE AGREEMENT (this “Agreement”) is made and entered into as of December , 2023 (“Effective Date”) by and between Centro de Salud de la Comunidad de San Ysidro, Inc., a California nonprofit public benefit corporation (the “Seller”) and the City of El Cajon, a California charter city and municipal corporation, its successors and assigns (the “Purchaser”).
PRELIMINARY STATEMENTS
A. Seller is the fee simple owner of the real estate and related assets hereinafter described; and
B. Seller desires to sell, and Purchaser desires to buy, the real estate and related assets hereinafter described, at the price and on the terms and conditions set forth herein.
In consideration of the recitals, the mutual covenants hereafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, it is agreed by and between the parties as follows:
1. Premises.
The real estate which is the subject of this Agreement is legally described on Exhibit A attached hereto, and is located at 405 East Lexington Avenue, California 92020, together with all rights, benefits, privileges, easements, rights of way, and other appurtenances to such land; all air and subsurface rights and other rights, if any, pertaining thereto including without limitation, all oil, gas and mineral rights of Seller, if any, in and to such land; and all of Seller’s rights in and to strips and gores and any land lying in the bed of any public right of way adjacent to such land and any unpaid award for damage by reason of any condemnation proceedings or change of grade of any highway, street, road or avenue (collectively, the “Premises”).
2. Personal Property, Service Contracts and Leases.
The “Personal Property” referred to herein shall consist of all right, title, and interest of Seller, if any, in all tangible and intangible personal property and any and all existing drawings, designs, plans, specifications, licenses and permits held by Seller and not constituting part of the Premises, located on and used in connection with the construction, operation, use or occupancy of the Premises.
3. Sale/Conveyance and Assignment.
Seller agrees to sell, convey and assign to Purchaser, and Purchaser agr ees to buy from Seller, at the price and upon the other terms and conditions hereafter set forth (a) the Premises, and (b) the Personal Property, (a and b collectively, the “Property”).
4. Transfer of Title.
(a) Title to the Premises shall be conveyed to Purchas er by a grant deed (the “Deed”) executed by Seller, in the form attached hereto as Exhibit B. 3 Purchase and Sale Agreement
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(b) The Personal Property shall be conveyed to Purchaser by a bill of sale (the “Bill of Sale”) executed by Seller, in the form attached hereto as Exhibit C.
5. Purchase Price; Earnest Money.
The purchase price for the Property shall be Two Million Five Hundred Seven Thousand Eight Hundred Thirty and No/100 Dollars ($ 2,507,830.00) (the “ Purchase Price”) payable by Purchaser to Seller as follows:
(a) Within two (2) business day s after the Effective Date, Purchaser shall deposit into a strict joint order escrow trust (the “ Escrow”) established with Oak Tree Escrows, Inc. (“Escrow Agent ”) as agent of Chicago Title (the “Title Insurer”) as earnest money hereunder, the sum of One Hundred Thousand and No/100 Dollars ($10 0,000.00) (the “ Initial Deposit”).
(b) If Purchaser does not exercise its right to terminate this Agreement on or before the expiration of the Due Diligence Period (as defined below), as it may be extended, then on or before the last day of Due Diligence Period, and as a condition to Seller’s continuing obligations hereunder, the Initial Deposit shall be designated the “Earnest Money.” At the closing of the transactions contemplated by this Agreement (the “ Closing”), which shall occur on the Closing Date, Purchaser shall receive a credit against the Purchase Price for the Earnest Money. (c) The Purchase Price, less a credit for the Earnest Money, and plus or minus prorations and adjustments as set forth in Section 17 hereof, shall be paid by Purchaser to Seller by wire transfer of immediately available federal funds on the Closing Date (as defined below). (d) Concurrently with Purchaser’s execution of this Agreement, Purchaser shall deliver to Seller, by means of a wire transfer, the sum of $100.00 as independent consideration for Seller’s performance under this Agreement (the “Independent Consideration”), which shall be retained by Seller in all instances. This Independent Consideration is nonrefundable under all circumstances and will not be applied to the Purchase Price at Closing. Purchaser and Seller expressly acknowledge and agree that: (a) the Independent Consideration, plus Purchaser’s agreement to pay the costs to be paid by Purchaser as provided in this Agreement, has been bargained for as consideration for Seller’s execution and delivery of this Agreement and for Purchaser’s review, inspection and termination rights during the Due Diligence Period, and (b) such consideration is adequate for all purposes under any applicable law or judicial decision.
6. Representations and Covenants.
(a) Seller’s Representations and Warranties . As a material inducement to Purchaser to execute this Agreement and consummate this transaction, Seller represents and warrants to Purchaser as of the date hereof and continuing through and including the Closing Date as follows:
(1) Organization and Authority. The Seller is a California nonprofit public benefit corporation, duly organized and is validly existing under the laws of the State of California . Seller has the full right and authority to enter into this Agreement, consummate or cause to be consummated the sale and make or cause to be made transfers 4 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
and assignments contemplated herein and has obtained all consents (if any) required therefor. The persons signing this Agreement on behalf of Seller are authorized to do so.
This Agreement and all of the documents to be delivered by Seller at the Closing have been (or will be) authorized and properly executed and will constitute the valid and binding obligations of Seller, enforceable against Seller in accordance with their terms. (2) Conflicts. To Seller’s Knowledge, there is no agreement to which Seller is a party or binding on Seller or the Property, which is in conflict with this Agreement or which would limit or restrict the timely performance by Seller of its obligations pursuant to this Agreement.
(3) Documents and Records . Within four (4) business days after the opening of escrow, Seller will provide to Purchaser true, correct and complete copies of the items scheduled in Schedule 6(a)(3) attached hereto (all of the foregoing collectively the “Property Information”) including, without limitation, the most recent survey of the Property in Seller’s possession or control, if any (the “Survey”). (4) Litigation. There is no action, suit or proceeding pending or, to Seller’s Knowledge, threatened against either Seller or the Property which (i) if adversely determined, would materially affect the Property, or (ii) challenges or impairs Seller’s ability to execute, deliver or perform this Agreement or consummate the transaction contemplated hereby.
(5) Leases. Except for, the Chaldean Community Council , t here are no leases, licenses, occupancy or use, or other rental agreements to which Seller is a party or is bound affecting any portion of the Premises as of the Effective Date, which will be in force on the Closing Date.
(6) Property Management Agreement. There is no Property Management Agreement with any third-party governing the management and/or control of the Property. (7) Service Contracts. There are no service contracts to which Seller is a party or is bound affecting any portion of the Premises as of the Effective Date, which will be in force on the Closing Date.
(8) Notice of Violations . Seller has received no written notice that either the Property or the use thereof violates any laws, rules and regulations of any federal, state, city or county government or any agency, body, or subdivision thereof having any jurisdiction over the Property that have not been resolved to the satisfaction of the issuer of the notice . In addition, this Purchase and Sale Agreement incorporates Federal Acquisition Regulations ("FAR") provisions as prescribed in FAR section 52.107(b), set out in that certain document entitle d "Federal Acquisition Language Provisions - FAR section107(b)" attached hereto as Exhibit F (Federal Acquisition Language Provisions) and incorporated herein as if fully set forth.
(9) Withholding Obligation. Seller is not a “foreign person” within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended. 5 Purchase and Sale Agreement
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(10) Condemnation. There are no pending or, to Seller’s Knowledge, threatened condemnation or similar proceedings affecting the Property or any part thereof. (11) Insurance Notices . Seller has not received any uncured notices from any insurance company which has issued a policy with respect to any portion of the Property, or by any board of fire underwriters, or from any governmental or quasi - governmental authority, of zoning, building, fire or health code violations in respect to the Property.
(12) Environmental. To Seller’s Knowledge, there are no violations of Environmental Laws (as defined below) related to the Property or the presence or release of Hazardous Materials (as defined below) on or from the Property. Seller has not manufactured, introduced, released or discharged from, on, under or adjacent to the Property any Hazardous Materials or any toxic wastes, substances or materials (including, without limitation, asbestos), and Seller ha s not used the Property or any part thereof for the generation, treatment, storage, handling or disposal of any Hazardous Materials, in violation of any Environmental Laws. The term “Environmental Laws” includes without limitation the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. Section 6901 et seq. and any amendments thereto and regulations thereunder, the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. Sections 9601 et seq. and any amendments thereto and regulations thereunder, Section 311 of the Federal Water Pollution Control Act, California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control law), California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); California Health and Safety Code, Division 20, Chapter 6.05, California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); Article 11 of Title 22 of the California Code, Division 1, Chapter 20; the Clean Water Act, 33 U.S.C.
Section 1251 et seq. (33 U.S.C. § 1321), California Environmental Quality Act, the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), the Clean Air Act (42 U.S.C. §7401 et seq.), and the Safe Water Drinking Act (42 U.S.C. §300(f) et seq.), the Safe Drinking Water and Toxic Enforcement Act of 1986, as amended, including, without limitation, the chemical known to cause cancer or reproductive toxicity as published therein, and all other applicable federal, state, county, municipal, administrative or other ordinances, rules, regulations, judgments, orders and requirements of any governmental authority relating to public health, the environment, or Hazardous Materials (as defined below), all as in effect on the Effective Date, and all state, county and other local laws, regulations and ordinances that are equivalent or similar to the federal laws recited above or that purport to regulate Hazardous Materials.
(13) ERISA. Seller is not (i) an “employee benefit plan” (within the meaning of s ection 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) that is subject to the provisions of Title I of ERISA, (ii) a “plan” that is subject to the prohibited transaction provisions of s ection 4975 of the Internal Revenue Code of 1986 (the “Code”) or (iii) an entity whose assets are treated as “plan assets” under ERISA by reason of an employee benefit plan or plan’s investment in such entity. 6 Purchase and Sale Agreement
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(14) OFAC. Seller is in compliance with the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the “ Order”) and other similar requirements contained in the rules and regulations of the office of Foreign Assets Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other Executive Orders or regulations in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the “Orders”). Further, Seller covenants and agrees to make its policies, procedures and practices regarding compliance with the Orders, if any, available to Purchaser for its review and inspection during normal business hours and upon reasonable prior notice.
(i) Neither Seller nor any beneficial owner of Seller:
(A) is listed on one or more of the Specially De signated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the “Lists”);
(B) is a person who has been determined by competent
authority to be subject to the prohibitions contained in the Orders; (C) is owned or controlled by, nor acts for or on behalf of, any person or entity on the Lists or any other person or entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (D) shall transfer or permit the transfer of any interest in Seller or any beneficial owner in Seller to any per son or entity who is, or any of whose beneficial owners are, listed on the Lists.
(ii) Seller hereby covenants and agrees that if Seller obtains knowledge that Seller or any of its beneficial owners becomes listed on the Lists or is indicted, arraigned, or cust odially detained on charges involving money laundering or predicate crimes to money laundering, Seller shall immediately notify Purchaser in writing, and in such event, Purchaser shall have the right to terminate this Agreement without penalty or liability to Seller immediately upon delivery of written notice thereof to Seller.
In such event the Earnest Money shall promptly be returned to Purchaser, and neither party shall have any further liability or obligation to the other under this Agreement, including, without limitation, the obligation to incur any additional costs or expenses contemplated under this Agreement, except for the indemnity provisions set forth in Section 22(p) of this Agreement and any other provision of this Agreement that is intended t o survive the termination of this Agreement.
(15) Ownership of the Property . Seller owns indefeasible fee simple title to the Property. Seller is the sole owner of the entire landlord’s interest in the Leases.
The Property constitutes, or shall at Closing constitute, a single tax parcels for purposes of ad valorem taxation. The parcel is designated as APN 488-242-43. Seller has not executed any document with or for the benefit of any governmental or quasi-governmental authority 7 Purchase and Sale Agreement
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restricting the development, use or occupancy of the Property that is not recorded in the land records of the county in which the Property is located. (16) Legally Subdivided Lot . As of Closing, the Property shall be a legally subdivided lot or shall otherwise be in a condition to be legally conveyed to Purchaser in compliance with all applicable laws, acts, ordinances and any other legal requirements governing the conveyance, platting and subdivision of land.
For purposes of this Section 6(a) , the term “ Seller’s Knowledge” means the actual knowledge of the President & CEO; Vice President and Chief Financial Officer; Sr. Vice President of Facility Development & Management ; the Director o f Contracts; and any other officers or directors of the Seller, who are the persons who are the most knowledgeable about the Property. (b) Purchaser’s Representations and Warranties. As a material inducement to Seller to execute this Agreement and consummate this transaction, Purchaser represents and warrants to Seller that Purchaser has been duly organized and is validly existing as a charter city and municipal corporation organiz ed pursuant to the Constitution and laws of the State of California. Purchaser has the full right and authority and has obtained any and all consents required therefor to enter into this Agreement, consummate or cause to be consummated the purchase, and make or cause to be made the deliveries and undertakings contemplated herein or hereby. The persons signing this Agreement on behalf of Purchaser are authorized to do so. This Agreement and all of the documents to be delivered by Purchaser at the Closing have been (or will be) authorized and properly executed and will constitute the valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their terms. (c) Representations and Warranties Prior to Closing . The continued validity in all respects of the foregoing representations and warranties shall be a condition precedent to the obligation of the party to whom the representation and warranty is given to close the transaction contemplated herein. If (i) any of Seller’s representations and warranties shall not be true and correct at any time on or before the Closing whether or not true and correct as of the Effective Date, or (ii) any change in facts or circumstances has made the applicable representation and warranty no longer true and correct and regardless as to whether Purchaser becomes aware of such fact through Seller’s notification or otherwise, then Purchaser may, at Purchaser’s option, exercised by written notice to Seller (and as its sole and exclusive remedy), either (y) proceed with this transaction, accepting the applicable representation and warranty as being modified by such subsequent matters or knowledge and waiving any right relating thereto, if any, or (z) terminate this Agreement and declare this Agreement of n o further force and effect, in which event the Earnest Money shall be immediately returned to Purchaser and Seller shall have no further liability or obligation hereunder by reason thereof, including, without limitation, the obligation to incur any additional costs or expenses contemplated under this Agreement, except for the indemnity provisions set forth in Section 22(p) of this Agreement, any other provision of this Agreement that is expressly intended to survive the termination of this Agreement, and, i f the breach of any representation and warranty of Seller hereunder results from the willful and intentional act of Seller, Purchaser shall also have the rights and remedies available to Purchaser under Section 18(b) of this Agreement upon a default by Seller of its obligations under this Agreement. 8 Purchase and Sale Agreement
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(d) Covenants of Seller. Seller covenants and agrees that during the period from the Effective Date through and including the Closing Date:
(1) Seller agrees that it will not enter into any leases, licenses, occupancy or use, and rental agreements between Seller, as landlord, licensor, or grantor, and tenants or other occupants or users of the Premises prior to the Closing without the prior written consent of Purchaser in each instance.
(2) Seller will timely pay and perform its obligations under the Service Contracts.
(3) Seller will not enter into any contract or agreement that will be an obligation affecting the Property subsequent to the Closing Date except for contracts entered into in the ordinary course of business that are terminable without cause and without payment of a fee or penalty on not more than 30-days’ notice. (4) Seller will not remove or cause or permit the removal of any Personal Property from the Premises except as may be necessary for repair or replacement, and in the event of such replacement, the replacement shall be of a quality that is equal to or better than the Property being removed when new.
(5) Seller will continue to operate and maintain the Property in accordance with past practices and will not make any material alterations or changes thereto.
(6) Seller will maintain casualty and liability insurance of a level and type consistent with the insurance maintained by Seller prior to the execution of this Agreement with respect to the Property.
(7) Seller shall not d o anything, nor authorize anything to be done, which would adversely affect the condition of title as shown on the Title Commitment. (8) Seller agrees to effectively terminate (and give written notices of such termination to all of the other parties thereto), effective as of Closing, any of the Service Contracts that Purchaser, pursuant to written notice to Seller prior to the expiration of the Due Diligence Period, requests Seller to terminate. Seller agrees that it will not amend or terminate any Service Con tracts (if any) prior to the Closing Date without the prior written consent of Purchaser in each instance.
(9) Seller shall give immediate notice to Purchaser in the event Seller receives notice or obtains knowledge of (i) the taking or threatened taking of th e Property or any portion thereof by eminent domain or other applicable legal proceeding; (ii) any casualty relating to the Property; (iii) the filing or threat to file an action, claim or proceeding in any court or administrative agency against Seller whi ch may affect the Property; or (iv) any violation of any legal requirements, or insurance requirements, affecting the Property, any service of process relating to the Property or which affects Seller’s ability to perform its obligations under this Agreemen t or any other 9 Purchase and Sale Agreement
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correspondence or notice received by Seller which has or has the potential to have an adverse effect on the Property.
(10) Purchaser shall have the ability to submit applications, documents, forms, etc. as required during pursuit of all requisite entitlements and approvals, including planning and zoning consents, building permits, onsite/offsite utility coordination, etc. In addition, as required, Seller agrees to cooperate and shall execute all documents related to any zoning, permitting or authorizations related to the Property as Purchaser may reasonably deem necessary or appropriate in connection with Purchaser’s intended use and development of the Property, including without limitation, those required by governmental or quasi-governmental agencies, utility companies and authorities having jurisdiction .
Purchaser shall, at all times, indemnify, defend, and hold the Seller harmless from any fees, charges, liability, and claims arising out of such activities. Such indemnification includes, but is not limited to, any lawsuits or other claims related to Purchaser’s intended development of the Property under the California Environmental Quality Act (“ CEQA”), all costs and expenses of Purchaser’s legal counsel, consultants, engineers, architects, and representatives.
(11) Seller may be required to disclose if a portion of the Property lies within the following natural hazard areas or zones: (i) a special flood hazard area designated by the Federal Emergency Management Agency (California Government Code Section 8589.3); (ii) an area of potential flooding (California Government Code s ection 8589.4); (iii) a high fire hazard severity zone (California Government Code s ection 51183.5); (iv) a wildland area that may contain substantial forest fire risks and hazards (California Public Resources Code section 4136); (v) an earthquake fault or special studies zone (California Public Resources Code s ection 2621.9); or (vi) a seismic hazard zone (California Public Resources Code section 2694). Pursuant to California Government Code sections 8589.3, 8589.4, 51183.5 and 8589.5, and California Public Resources Code sections 2621.9, 2694 and 4136, Seller hereby instructs Title Insurer, at Seller’s cost and expense, if any, to order a report from a natural hazards consultant (“ Natural Hazard Expert”) to examine the maps and other information specifically made available to the public by government agencies for the purposes of enabling Seller to fulfill its disclosure obligations with respect to the natural hazards referred to above and to report the results of its examination to Purchaser and Seller in writing.
7. Due Diligence Period.
(a) Purchaser shall have a period beginning on the date escrow is opened and ending at 11:59 p.m., local time where the Premises is located, on the date that is thirt y (30) days from the opening of escrow ( the “Due Diligence Period ”), to examine, inspect, and investigate the Property and, in Purchaser’s sole discretion, to determine whether Purchaser wishes to proceed to purchase the Property.
(b) Purchaser may terminate this Agreement for any reason or for no reason by giving written notice of such termination to Seller on or before the last day of the Due Diligence Period. If this Agreement is terminated pursuant to this Section 7 , the Earnest Money shall be immediately returned to Purchaser, and neither party shall have any further liability or obligation 10 Purchase and Sale Agreement
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to the other under this Agreement, including, without limitation, the obligation to incur any additional costs or expenses contemplated under this Agreement, except for the indemnity provisions set forth in Section 22(p) of this Agreement and any other provision of this Agreement that is expressly intended to survive the termination of this Agreement. (c) Notwithstanding anything contained herein to the contrary, in the event that by reason of one or more “FM Delay Events” (as defined below), (i) Purchaser is not able to perform, conduct or complete any portion of its due diligence investigations with respe ct to the Property, including, without limitation, performing, conducting or completing any of the tests with respect to the Property described in Section 7( d) or obtaining any of the Title Documents or an update of the Survey described in Section 13, prior to the expiration of the Due Diligence Period, or (ii) Purchaser is not able to perform Purchaser’s obligations for Closing, then upon Purchaser’s written notice to Seller given on or prior to the expiration of the Due Diligence Period, or the Closing, as applicable, one or all of the Due Diligence Period, and the Closing, as applicable, shall be extended for such period of time as may be reasonably necessary to permit one or more of the following: Purchaser to complete its due diligence investigations an d tests of the Property, or Purchaser to perform its obligations for Closing following the cessation of the applicable FM Delay Event. For purposes herein, an “FM Delay Event” means unreasonable travel restrictions, cessation or suspension of services (including, without limitation, services rendered by a recording office, title company or delivery service) effective on the date Closing, only , policies, rules, regulations or laws implemented by any governmental or quasi -governmental authority, or the halting of commerce or the transaction of business regionally, nationally or within the banking industry, in each case as a result of any actual or threatened health emergency, epidemic, pandemic, quarantine, or other health risk, including, without limitation, health risks declared or recognized by the Centers for Disease Control, the World Health Organization, or any public health department, or other force majeure event, and which event causes delay for Purchaser. For the avoidance of doubt, it is expressly agreed by Seller and Purchaser that the “COVID -19” virus exists as of the Effective Date and any delays, directly or indirectly, caused by such virus, or any epidemic or pandemic caused thereby now or in the future may be a valid reason for Purchaser claiming the occurrence of an FM Delay Event and the knowledge of the existence of such virus shall not prevent Purchaser from making a claim that a n FM Delay Event has occurred or is ongoing and has caused delays in accordance with this Section. (d) Seller hereby grants to Purchaser, during the Due Diligence Period and through the Closing, a reasonable right of entry and access to the Property for the purpose of conducting, surveys, architectural, engineering, geo-technical and environmental inspections and tests, and any other inspections, studies, or tests reasonably required by Purchaser. Purchaser shall give Seller not less than twenty -four (24) hours prior telephonic notice before entering onto the Premises to perform inspections or tests, and in the case of tests (i) Purchaser shall specify to Seller the precise nature of the test to be performed, and (ii) Seller may require, as a condition precedent to Purchaser’s right to perform any such test, that Purchaser deliver Seller evidence of public liability and other appropriate. Such examination of the physical condition of the Property may include an examination for the presence or absence of Hazardous Materials (hereinafter defined), which shall be performed or arranged by Purchaser at Purchaser’s sole expens e. As used in this Agreement, the term “ Hazardous Materials ” means asbestos, petroleum, petroleum derived products, radon gas, lead based paint, asbestos or asbestos containing materials, polychlorinated biphenyl and any other substances, chemicals, waste s, or materials defined as a hazardous 11 Purchase and Sale Agreement
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substance, hazardous waste, hazardous constituents, toxic pollutants, toxic substances, or solid waste or is otherwise regulated because of its toxicity, infectiousness, radioactivity, explosiveness, ignitability, cor rosiveness or reactivity in (a) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., and any amendments thereto and regulations thereunder, (b) the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., and any amendments thereto and regulations thereunder, (c) section 311 of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (33 U.S.C. § 1321), (d) California Health and Safety Code section 25117 or 25316, (e) the Safe Drinking Water and Toxic Enforcement Act of 1986, as amended, including, without limitation, the chemical known to cause cancer or reproductive toxicity as published therein, and (f) any other federal, state or local statute or regulation, including, without limitation, in the regulations adopted and publications promulgated under each of the aforesaid laws. Purchaser shall keep the Property free and clear of any liens and will indemnify, protect, defend, and hold each of Seller and its officers, directors member s, managers, employees, and agents (each, a “Seller Related Party”) harmless from and against all losses, costs, damages, claims, liabilities and expenses (including reasonable attorneys’ fees and court costs) arising from physical damage to the Premises and injury to persons asserted against or incurred by any Seller Related Party as a result of such entry by Purchaser, its agents, employees or representatives (provided that Purchaser shall not be responsible for the discover y of any pre- existing conditions on the Property). If any inspection or test damages the Property and Purchaser does not acquire the Property, Purchaser will restore the Property to substantially the same condition as existed prior to any such inspection or test. Purchaser and its agents, employees and representatives may, upon not less than 24 hours prior telephonic or email notice to Seller (with it being agreed that no other form of notice is required), examine and make copies of all books and records and other materials relating to the condition of the Property in Seller’s possession at the location where such records are maintained. Any information provided to or obtained by Purchaser with respect to the Property shall be subject to the provisions of Section 22(o) of this Agreement.
8. As Is Sale.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF
SELLER SET FORTH IN THIS AGREEMENT AND THE CLOSING DOCUMENTS (AS
DEFINED BELOW), PURCHASER UNDERSTANDS AND AGREES THAT SELLER IS
NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE PROPERTY OR THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY MATERIALS, DATA OR INFORMATION DELIVERED BY
SELLER TO PURCHASER IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED HEREBY. PURCHASER ACKNOWLEDGES AND AGREES THAT
UPON CLOSING, SELLER SHALL TRANSFER AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “ AS IS, WHERE IS, WITH ALL FAULTS”, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN
THIS AGREEMENT OR IN ANY AGREEMENT OR INSTRUMENT EXECUTED BY SELLER AND DELIVERED TO PURCHASER AT CLOSING (“CLOSING
DOCUMENTS”).
PURCHASER REPRESENTS TO SELLER THAT PURC HASER HAS
CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS 12 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
OF THE PROPERTY, INCLUDING BUT NO T LIMITED TO, THE PH YSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY
TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY, AND W ILL
RELY SOLELY UPON SAM E AND NOT UPON ANY I NFORMATION PROVIDED BY
OR ON BEHALF OF SELL ER OR ITS AGENT S OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS , WARRANTIES AND
COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE CLOSING DOCUMENTS.
9. Survival of Representations After Closing.
(a) All representations and warranties of Seller herein shall survive the Closing for a period of one (1) year (the “Limitation Period”). (b) Purchaser shall provide written notice to Seller of any breach of any of Seller’s warranties or representations of which Purchaser acquires knowledge, through any means, at any time after the Closing Date but prior to the expiration of the Limitation Period, and shall allow Seller thirty (30) days from the date of such Purchaser’s notice to Seller within which to cure such breach, or, if such breach is susceptible of cure but cannot reasonably be cured within thirty (30) days, an additional reasonable time period required to effect such cure so long as such cure has been commenced within such thirty (30) days and diligently pursued but in no event more than ninety (90) days from the date of such Purchaser’s notice to Seller. If Seller fails to cure such breach after written notice and within such cure period (as extended), Purchaser’s sole remedy shall be an action at law for damages as a consequence thereof, w hich must be commenced, if at all, within six (6) months after the expiration of the Limitation Period.
10. Closing.
(a) The Closing shall be accomplished through the escrow referred to in Section 10(b) below, and shall take place on the date (the “ Closing Date”) that is selected by Purchaser by written notice to Seller, which date shall be no later than the earlier of (i) ten (10) days after expiration of the Due Diligence Period , or (ii) ten (10) days after the cessation of an applicable FM Delay Event, provided that all conditions precedent to the Closing have been fulfilled or have been waived in writing by the respective party entitled to waive same.
Notwithstanding the foregoing, in the event Purchaser has not received approval of an appropriation of funds for the acquisition of the Property Purchaser shall have, in its sole discretion, the unilateral (one time only) right to extend the Closing Date for up to ten (10) days by providing Seller with written notice of such election to extend on or prior to the Closing Date. (b) On or prior to the date set for Closing under this Agreement, the parties shall establish a customary deed and money escrow with Title Insurer. Counsel for the respective parties are hereby authorized to execute the escrow trust instructions as well as any amendments thereto on behalf of their respective clients.
11. Conditions to Purchaser’s Obligation to Close.
(a) Purchaser shall not be obligated to proceed with the Closing unless and until each of the following conditions has been either fulfilled or waived in writing by Purchaser:
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City of El Cajon and San Ysidro Health
(1) This Agreement shall not have been previously terminated pursuant to any other provision hereof;
(2) Seller shall be prepared to deliver or cause to be delivered to Purchaser all instruments and documents to be delivered to P urchaser at the Closing pursuant to Section 14 and Section 16 or any other provision of this Agreement; (3) [Intentionally Deleted]
(4) Seller shall have performed all of its obligations required to be performed hereunder on or before Closing;
(5) [Intentionally Deleted]
(6) Title Insurer shall have committed to issue a title policy satisfying the requirements of Section 13 hereof;
(7) There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against or involving Seller that would materially and adversely affect Seller’s ability to perform its obligations under this Agreement;
(8) [Intentionally Deleted];
(9) Purchaser shall have conducted, immediately prior to the Closing, a re-inspection of the Property , which confirms that no material change has occurred from the date of the original Property inspection. If the Property has materially changed from the date of the original Proper ty inspection, Purchaser shall have the rights and remedies under Section 18(b) hereof;
(10) The representations and warranties made on the Effective Date and remade on and as of the Closing Date by Seller in this Agreement shall be true, correct , and complete in all material respects; and
(11) Seller shall be in good standing and it and the Property are in full compliance with all loan covenants, construction agreements and building and zoning codes and the Property shall be free of all liens, with the exception of the mortgage lien, which shall be paid from the proceeds at Closing.
(b) In the event that any of the foregoing conditions shall not have been fulfilled on or before the time for Closing hereunder, then subject to the provisions of Section 18(b) hereof, Purchaser may elect, upon notice to Seller, to either (1) terminate this Agreement, in which event the Earnest Money shall be immediately released to Purchaser and neither party shall have any further liability or obligation to the other, including, without limitation, the obligation to incur any additional costs or expenses contemplated under this Agreement, except for the indemnity provisions set forth in Sections 6(d)(10), 20, and 22(p) of this Agreement and any other provision 14 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
of this Agreement that is expre ssly intended to survive the termination of this Agreement, or (2) waive any one or more of the foregoing conditions and proceed to Closing.
12. Conditions to Seller’s Obligation to Close.
(a) Seller shall not be obligated to proceed with the Closing unless and until each of the following conditions has been fulfilled or waived in writing by Seller:
(1) Purchaser shall be prepared to pay to Seller the Purchase Price and all other amounts to be paid to it at Closing pursuant to the provisions of this Agreement; (2) Purchaser shall be prepared to deliver to Seller all instruments and documents to be delivered to Seller at the Closing pursuant to Section 15 and Section 16 or any other provision of this Agreement; and
(3) This Agreement shall not have been previously terminated pursuant to any other provision hereof for reasons other than Seller’s breach or default, Purchaser’s termination during due diligence (including without limitation due to title and survey objection), or by the mutual agreement of the parties.
(b) In the event that any of the foregoing conditions shall not have been fulfilled on or before the time for Closing hereunder, then subject to the provisions of Section 18(a) hereof, Seller may elect, upon notice to Purchaser, to terminate this Agreement, in which event the Earnest Money shall be immediately released to Seller in the event that the conditions set forth in either Section 12(a)(1) or Section 12(a)(2) are not satisfied (in the event that the condition set forth in Section 12(a)(3) is not satisfied the Earnest Money shall be disbursed in accordance with the Section pursuant to which such termination occurred) and neither party shall have any further liability or obligation to the other, including, without limitation, the obligation to incur any additional costs or expenses contemplated under this Agreement, except for the indemnity provisions set forth in Sections 6(d)(10), 20, and 22(p) of this Agreement and any other provision of this Agreement that is expressly intended to survive the termination of this Agreement.
13. Title Insurance.
(a) Within fifteen (15) days after the Effective Date, Seller, at Seller’s sole cost and expense, shall obtain (or cause Title Insurer to deliver to Purchaser) a commitment for the Title Policy described in Section 13(b) below dated on or after the Effective Date (the “ Title Commitment”), together with legible copies of all of the underlying documentation described in such Title Commitment (the “Title Documents”) to the extent not already delivered to Purchaser.
Purchaser may order an updated ALTA survey at Purchaser’s sole cost and expense (the “Updated Survey”). The Due Diligence Period shall be extended for each day in which Seller does not deliver the Title Commitment as required under this Section 13(a) , but not to include the period of time for Purchaser to obtain the Updated Survey.
(b) Purchaser shall have a period of thirty (30) days after receipt by Purchaser of the latest Updated Survey, if any (provided that, if Purchaser does not initiate the order for the Updated Survey within ten (10) days after the Effective Date, the delivery of the Updated Survey shall be excluded from the computations of time set forth in this Section 13(b )), the Title 15 Purchase and Sale Agreement
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Commitment and the Title Documents (“ Title Review Period ”) in which to review the Title Commitment, the Title Documents, the Updated Survey, if any, and the Survey and notify Seller in writing, at Purchaser’s election, of such objections as Purchaser may reasonably have to any matters contained therein (“Purchaser’s Objection Notice”; any of said objections listed on Purchaser’s Objection Notice are deemed the “Objectionable Exceptions ”). If Seller does not notify Purchaser in writing within five (5) business days after receiving Purchaser’s Objection Notice, Seller shall conclusively be deemed to have agreed to remove all said Objectionable Exceptions at or before Closing. On the other hand, if Seller notifies Purchaser in writing within five (5) business days after receipt of Purchaser’s Objection Notice that it has elected not to cure one or more of said Objectionable Exceptions (“Seller’s Notice”) (subject to Seller’s obligation to remove or cure those items referenced in Section 13(f)(4) and (5) below) (and if necessary, such Due Diligence Period and Title Review Period shall be extended to compensate for such timeframe), Purchaser shall have the right to either (a) terminate this Agreement by delivering written notice within five (5) business days aft er receipt of such Seller’s Notice, in which event, the Earnest Money shall be returned to Purchaser and neither party shall have any further rights or obligations under this Agreement, including, without limitation, the obligation to incur any additional costs or expenses contemplated under this Agreement, except for the indemnity provisions set forth in Sections 6(d)(10), 20, and 22(p) of this Agreement and any other provision of this Agreement that is expressly intended to survive the termination of this Agreement, or (b) Purchaser may consummate the transaction contemplated by this Agreement in accordance with the terms hereof, in which event, all those Objectionable Exceptions that Seller has so elected not to cure shall conclusively be deemed to constitute “Permitted Encumbrances”. Notwithstanding the foregoing, prior to Closing, Purchaser may, at its cost and expense, obtain an update or endorsement to the Title Commitment, which updates the effective date of the Title Commitment.
If such update or endorsement adds any previously unlisted title or survey exceptions to Schedule B-II of the Title Commitment or its equivalent which, one or more of the following: (i) renders title to the Premises unmarketable, (ii) would materially and adversely affect Pu rchaser’s contemplated use(s) of the Premises, or (iii) may increase the costs to complete any project that Purchaser desires to construct on the Premises by more than One Hundred Thousand Dollars ($100,000) in the aggregate, each as determined in Purchase r’s reasonable discretion, then Purchaser may object to any such new exception(s) by delivering written notice to Seller prior to Closing and: (x) any such notice shall be treated as a Purchaser’s Objection Notice, (y) the exception(s) objected to in any s uch notice shall be treated as Objectionable Exceptions, and (z) Seller shall have until the earlier to occur of: (1) the time period provided under Section 13(b), or (2) the Closing, to respond to such Purchaser’s Objection Notice; provided, however, that matters of title or survey created by, through, or under Purchaser, if any, shall not be objectionable and shall automatically be deemed additional Permitted Encumbrances. (c) Seller, at its sole expense, shall cause to be delivered to Purchaser at Closing an owner’s title insurance policy with extended coverage (the “ Title Policy ”) issued by Title Insurer, dated the day of Closing, in the full amount of the Purchase Price, the form of which shall be American Land Title Association Owner’s Policy, Standard Form B, 2006 (or such other form required or promulgated pursuant to applicable state insurance regulations), subject only to the Permitted Exceptions (as defined below). The Title Policy may contain any endorsements requested by Purchaser; provided that, Pur chaser shall satisfy itself as to the availability of any such endorsements prior to the expiration of the Due Diligence Period. The costs of any such endorsements shall be paid for by Purchaser unless otherwise provided herein. 16 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
(d) Prior to the expiration of the Title Review Period, Purchaser shall review title to the Premises as disclosed by the Title Commitment and the Updated Survey, and satisfy itself as to the availability from Title Insurer of all requested endorsements to such Title Policy. (e) Seller shall have no obligation to remove or cure title objections, except for (1) liens of an ascertainable amount, which liens Seller shall cause to be released at the Closing or affirmatively insured over by Title Insurer with Purchaser’s approval, (2) any excepti ons or encumbrances to title , which are created by Seller after the Effective Date without Purchaser’s written consent, and (3) any exceptions or encumbrances which Seller agreed in writing to remove or cure pursuant to Section 13. In addition, Seller and Purchaser shall provide Title Insurer with all affidavits, ALTA statements or personal undertakings (collectively, the “Owner’s Affidavit”), in form and substance reasonably acceptable to Title Insurer, that will permit Title Insurer to provide extended coverage and to remove the standard “mechanic’s lien” and “GAP” exceptions and otherwise issue the Title Policy.
(f) “Permitted Exceptions” shall mean: (1) any exception arising out of an act of Purchaser or its representatives, agents, employees or independent contractors; (2) zoning and subdivision ordinances and regulations; (3) Permitted Encumbrances, as described in Section 13(b) above; (4) rights of tenants under the Leases, as tenants, licensees, occupants, users or other grantees of the Premises only; ( 5) other title exceptions pertaining to liens or encumbrances of a definite or ascertainable amount, which Seller (with the consent of Purchaser) elects to have removed or insured over by Title Insurer by the payment of money and which are removed or insured over at or prior to Closing; and (6) real estate taxes and assessments not yet due and payable.
14. Documents and Other Deliverables to be Delivered to Purchaser at Closing.
At or prior to Closing (as required by the Title Insurer and/or Escrow Agent) , Seller shall deliver or cause to be delivered to Purchaser each of the following instruments and documents:
(a) Deed. The Deed, in the form attached hereto as Exhibit B. (b) Bill of Sale. The Bill of Sale covering the Personal Property, in the form attached hereto as Exhibit C.
(c) The Title Policy. The Title Policy, provided, however, that the Title Policy may be delivered after the Closing if at the Closing, Title Insurer issues a currently effective, duly- executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment after the Closing. (d) [Intentionally Deleted]
(e) Transfer Tax Declarations. Original copies of any required real estate transfer tax excise or documentary stamp tax declarations executed by Seller or any other similar documentation required to evidence the payment of any tax imposed by the state, county, and city on the transaction contemplated hereby.
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(f) FIRPTA. A certificate of non -foreign tax status which satisfies the requirements of section 1445 of the Internal Revenue Code of 1986, as amended (the “ Code”) in the form attached hereto as Exhibit D and a California Form 593, both duly executed by Seller’s authorized signatory (the “Non-Foreign Tax Status Certificate”). (g) Owner’s Affidavit. The Owner’s Affidavit referred to in Section 13(e) above.
(h) Surveys, Plans, Permits and Specifications . All existing surveys, blueprints, drawings, designs, plans and specifications, permits, and operating manuals for or with respect to th e Premises or any part thereof to the extent the same are in Seller’s possession or control.
(i) Keys. All keys to the improvements, to the extent the same are in Seller’s possession or control.
(j) [Intentionally Deleted]
(k) [Intentionally Deleted]
(l) Certificate. A certificate of Seller dated as of the Closing Date certifying that the representations and warranties of Seller set forth in Section 6(a) of this Agree ment as applicable remain true and correct in all material respects as of the Closing Date. (m) [Intentionally Deleted]
(n) [Intentionally Deleted]
(o) Other Documents . Such other documents and instruments as may be required by any other provision of this Agreement or as may reasonably be required to carry out the terms and intent of this Agreement.
(p) Assignment and Assumption of Intangibles . An Assignment and Assumption of Intangibles, in the form attached hereto as Exhibit E (“Assignment of Intangibles”); provided that, to the extent that any consents or other approvals of any kind are required from any third part ies prior to the assignment or transfer of any of the “Intangibles” defined in the Assignment of Intangibles, Seller shall obtain, at its cost and expense, any such consents and approvals, with written evidence of such consent or approvals, in form and substance reasonably acceptable to Purchaser, being delivered to Purchaser at Closing.
15. Documents to be Delivered to Seller at Closing.
At or prior to Closing (as required by the Title Insurer and/or Escrow Agent) , Purchaser shall deliver or cause to be delivered to Seller each of the following instruments, documents and amounts:
(a) Purchase Price. The Purchase Price calculated pursuant to Section 5 hereof, subject to adjustment and proration as provided in Section 17 below. 18 Purchase and Sale Agreement
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(b) Preliminary Change in Ownership Report . A Preliminary Change in Ownership Report, executed by Purchaser.
(c) [Intentionally Deleted]
(d) Certificate. A certificate of Purchaser dated as of the Closing Date certifying that the representations and warranties of Purchaser set forth in Section 6(b) of this Agreement as applicable remain true and correct in all material respects as of the Closing Date. (e) Assignment of Intangibles . A counterpart of the Assignment of Intangibles, in the form attached hereto as Exhibit E.
(f) Other Documents . Such other documents and instruments as may be required by any other provision of this Agreement or as may reasonably be required to carry out the terms and intent of this Agreement.
16. Documents to be Delivered by Seller and Purchaser at Closing.
At or prior to Closing (as required by the Title Insurer and/or Escrow Agent) , Purchaser and Seller shall deliver or cause to be delivered each of the following instruments and documents:
(a) Escrow Instructions. Escrow instructions as described in Section 10(b). (b) Settlement Statement. A fully executed settlement statement.
17. Prorations and Adjustments. The following prorations and adjustments shall be made between Seller and Purchaser as credits or additions, as applicable, against the Purchase Price. All prorations shall be mad e as of 11:59 p.m. on the date prior to the Closing Date on the basis of the number of days in the month of Closing. The parties agree that the Closing Date shall be an income and expense day for Purchaser. To the extent any prorations or adjustments cannot be made at the Closing, or to the extent there are to be re -prorations, the same shall be adjusted and completed after the Closing as and when complete information becomes available. The terms and provisions of this Section 17 shall survive the Closing. (a) Real Estate and Personal Property Taxes and Assessments. Real estate and personal property taxes and assessments will be prorated between Purchaser and Seller for the period for which such taxes are assessed, regardless of when payable. If the current tax bill is not available at Closing, then the proration sha ll be made on the basis of 110% of the most recent ascertainable tax assessment and tax rate. Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments for the fiscal year in which Closing occurs or any prior years have not been paid before Closing, Purchaser shall be credited by Seller at the time of Closing with an amount equal to that portion of such taxes and assessments which are ratably attributable to the period before the Closing Date and Purchaser shall pay (or cause to be paid) the taxes and assessments prior to their becoming delinquent. If taxes and assessments for the fiscal year in which Closing occurs have been paid before Closing (or are paid at Closing with proceeds from the Purchase Price), Seller shall be credited by Purchaser at the time of Closing with an amount equal to that portion of such taxes and assessments which are ratably attributable 19 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
to the period from and after the Closing Date. All prorations pursuant to this Section 17(a) shall be final.
(b) Utilities. All utilities shall be prorated based upon estimates using the most recent actual invoices. Seller shall receive a credit for the amount of deposits, if any, with utility companies that are transferable and that are assigned to Purchaser at the Closing. In the case of non-transferable deposits, Purchaser shall be responsible for making any security deposits required by utility companies providing service to the Premises. (c) Owner Deposits. Seller shall be entitled to the return of all bonds, deposits, letters of credit, set aside letters or other similar items, if any, that are outstanding with respect to the Property that have been provided by Seller or any of its affiliates, agents or investment advisors to any gover nmental agency, public utility, or similar entity (collectively, “ Owner Deposits”).
Purchaser shall replace such Owner Deposits with respect to the Property. To the extent that any funds are released as a result of the termination of any Owner Deposits f or which Seller did not receive a credit, such funds shall be delivered to Seller promptly upon their receipt.
18. Default; Termination.
(a) IF PURCHASER DEFAULT S IN ANY MATERIAL RE SPECT
HEREUNDER WHICH IS NOT CURED WITHIN SEVE N (7) BUSINESS DAYS AFTER
SELLER DELI VERS WRITTEN NOTICE TO PURCHASER OF SUCH DEFAULT(S), SELLER’S SOLE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT BY GIVING
WRITTEN NOTICE THEREOF TO PURCHASER, WHE REUPON THE EARNEST M ONEY (OR THE PORTION THER EOF WHICH HAS BEEN DEPOSITED BY PURCHASE R WITH
TITLE INSURER) DEPOSITED BY PURCHASER PRIOR TO SUCH DEFAULT SHALL BE RETAINED BY SELLER A S LIQUIDATED DAMAGES AS SELLER’S SOLE AN D
EXCLUSIVE REMEDY, AND NEITHER PARTY SHAL L HAVE ANY FURTHER
LIABILITY OR OBLIGAT ION TO THE OTHER, INCLUDING, WITHOUT LIM ITATION,
THE OBLIGATION TO INCUR ANY ADDITIONAL C OSTS OR EXPENSES
CONTEMPLATED UNDER T HIS AGREEMENT, EXCEP T FOR THE INDEMNITY PROVISIONS SET FORTH IN SECTIONS 6(D)(10), 20, AND 22(P) OF THIS AGREEMENT
AND ANY OTHER PROVISION OF THIS AGREEMENT THAT IS EXPRESSLY INTENDED TO SURVIVE THE TERMI NATION OF THIS AGREE MENT. THE PARTIES ACKNOWLEDGE AND AGRE E THAT SELLER’S ACTU AL DAMAGES IN THE EVENT OF PURCHASER’S DEFAU LT ARE UNCERTAIN IN AMOUNT AND IT WOULD BE
IMPRACTICAL OR EXTRE MELY DIFFICULT TO AS CERTAIN THE AMOUNT O F
DAMAGES SUFFERED BY SEL LER AS A RESULT OF P URCHASER'S DEFAULT HEREUNDER. BASED ON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND
UNKNOWN, SAID AMOUNT OF LIQUIDATED DAMAGES IS A FAIR AND
REASONABLE AMOUNT TO BE RETAINED BY SELL ER AS AGREED AND LIQUIDATED DAMAGES F OR PURCHASER'S DEFAUL T UNDER THIS CONTRAC T.
RETENTION BY SELLER OF THE EARNEST MONEY DEPOSIT UPON PURCHASER'S
DEFAULT HEREUNDER IS REASONABLE AND DOES NOT CONSTITUTE A PENALTY
OR FORFEITURE WITHIN THE MEANING OF CALI FORNIA CIVIL CODE SE CTIONS 3275 OR 3369, BUT IS INTENDED TO C ONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO C ALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. 20 Purchase and Sale Agreement
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SELLER MAY NOT EXERCISE ITS SOLE REMEDY IF SELLER IS IN DEFAULT IN ANY MATERIAL RESPECT UNDER THIS AGREEMENT.
__________________________ __________________________
SELLER’S INITIALS PURCHASER’S INITIALS
(b) If Seller defaults in any material respect hereunder, Purchaser may, at its sole election, either:
(1) Terminate this Agreement, whereupon the Earnest Money shall be immediately return ed to Purchaser and Seller shall reimburse Purchaser for all of Purchaser’s actual costs incurred in connection with this Agreement including, without limitation, any and all costs related to Purchaser’s due diligence on the Property, reasonable attorneys’ fees in reviewing and negotiating this Agreement and preparing for Closing, and the costs, ), and neither party shall have any further liability or obligation to the other, including, without limitation, the obligation to incur any additional costs or expenses contemplated under this Agreement, except for the indemnity provisions set forth in Sections 6( d)(10), 20, and 22(p) of this Agreement and any other provision of this Agreement that is expressly intended to survive the termination of this Agreement; or (2) Assert and seek judgment against Seller for specific performance, provided that if a court of competent jurisdiction determines that the remedy of specific performance is not available to Purchaser (for example, but not in limitation, because Seller’s default arose under the last sentence of Section 6(c) or Seller has sold all or any portion of the Property to a third party in violation of the terms of this Agreement), then Purchaser shall have all remedies available to it at law or in equity, including , without limitation, the right to seek judgment against Seller for actual contract damages.
Purchaser may not exercise its remedies hereunder if Purchaser is in default in any material respect under this Agreement. Both parties hereby waive any claims against the other party for damages to its business or for any indirect, special or consequential damages related to the other party’s default and breach, which results in termination; the parties hereby agreeing that the remedies otherwise included in this Agreement, including the right of specific performance, or the right of liquidated damages or reimbursement as set forth in this Section 18(a) and (b)(1) are the only remedies available to the non-defaulting party, except for the indemnity provisions set f orth in Sections 6(d)(10), 20, and 22(p) of this Agreement and any other provision of this Agreement that is expressly intended to survive the termination of this Agreement.
19. Expenses.
(a) Title insurance premiums for the extended coverage Title Policy (other than the costs of the endorsements to such Title Policy other than extended coverage), all transfer taxes, one-half (½) of the escrow fee, shall be borne and paid by Seller. (b) The costs of the endorsements to the Title Policy, one-half (½) of the escrow fee and all recording fees respecting the Deed, and all costs of updating or obtaining the Updated Survey, shall be borne and paid by Purchaser.
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(c) All other costs, charges, and expenses shall be borne and paid as provided in this Agreement, or in the absence of such provision, in accordance with applicable law or local custom.
20. Intermediaries.
Seller represents to Purchaser, and Purchaser represents to Seller, that there is no broker, finder, or intermediary of any kind with whom such party has dealt in connection with this transaction.
Except as expressly set forth above, if any claim is made for broker’s or finder’s fees or commissions in connection with the negotiation, execution or consummation of this Agreement or the transactions contemplated hereby by or through acts of Seller or Purchaser or their respective partners, agents or affiliates, then Seller or Purchaser, as applicable, shall defend, indemnify and hold harmless the other party from and against any such claim based upon any statement, representation or agreement of such party, which obligation shall survive Closing.
21. Destruction of Improvements and Condemnation.
(a) If, prior to Closing, (i) any of the improvements on the Premises are damaged or destroyed such that the cost of repair or replacement of such improvements is reasonably likely to exceed One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (“Material Damage ”), or (ii) any condemnation proceeding is commenced or threatened in writing by a governmental or quasi -governmental agency with the power of eminent domain (“Condemnation”), then:
(1) Purchaser may elect, within ten (10) business days from and after its receipt of written notice of any Material Damage or written notice of such Condemnation, by written notice to Seller, to terminate this Agreement, and if necessary, the time of Closing shall be extended to permit such election. In the event of an election to terminate, the Earnest Money shall be immediately returned to Purchaser and neither party shall have any liability to the other by r eason hereof, including, without limitation, the obligation to incur any additional costs or expenses contemplated under this Agreement, except for the indemnity provisions set forth in Sections 6(d)(10), 20, and 22(p) of this Agreement and any other provision of this Agreement that is expressly intended to survive the termination of this Agreement; or
(2) In the event Purchaser does not timely elect to terminate pursuant to subsection (a)(1) above, the transaction contemplated hereby shall be closed without a reduction in the Purchase Price, and Seller shall assign all of Seller’s right, title and interest in any insurance proceeds or Condemnation award to be paid to Seller (excluding therefrom, any pre-condemnation damages and damages based on Seller’s loss of goodwill, income, and rents up to the Closing, the rights of which shall be retained by Seller) , to Purchaser in connection with such Material Damage or Condemnation, and, in the case of Material Damage, Seller shall pay to Purchaser an amount equal to th e deductible under Seller’s policy of casualty insurance and Seller shall execute and deliver to Purchaser all required proofs of loss, assignments of claims and other similar items. 22 Purchase and Sale Agreement
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(b) If, prior to Closing, any of the improvements on the Premises are damaged or destroyed and such damage is not Material Damage, Purchaser shall remain obligated to close hereunder with no abatement in the Purchase Price. At Closing, Seller shall assign Seller’s rights in any insurance proceeds to be paid to Seller in connection with such damage or destruction, to Purchaser, and Purchaser shall receive a credit against the Purchase Price from Seller in an amount equal to the deductible amount under Seller’s casualty insurance policy and Seller shall execute and deliver to Purchaser all required proofs of loss, assignments of claims and other similar items.
22. General Provisions.
(a) Entire Agreement. This Agreement, including all exhibits and schedules attached hereto and documents to be delivered pursuant hereto, shall constitute the entire agreement and understanding of the parties with respect to the subject matter contained herein, and there are no other prior or contemporaneous written or oral agreements, undertakings, promises, warranties, or covenants related to such subject matter not contained herein. (b) Amendments in Writing . This Agreement may be amended only by a written agreement executed by all the parties hereto. Purchaser and Seller agree that any amendments or modifications to this Agreement may be entered into by either Purchaser or its counsel or Seller or its counsel (including without limitation, amendments or modifications related to title and survey matters) and the execution of an amendment or modification by counsel instead of the applicable Purchaser or Seller is expressly permitted and agreed to by the parties to this Agreement and each party’s counsel shall be deemed a permitted and authorized agent of such party until the time that Purchaser or Seller notifies the other party in writing that their respective counsel does not have authority to amend or modify this Agreement on its behalf. (c) Waiver. No waiver of any provision or condition of this Agreement by any party shall be valid unless in writing signed by such party. No such waiver shall be taken as a waiver of any other or similar provision or of any future event, act, or default. (d) Time of the Essence. Time is of the essence of this Agreement. However, if Purchaser is acting diligently and in good faith to proceed with the consummation of the transaction contemplated by this Agreement on the Closing Date, Seller will, upon the written request of Purchaser, extend the Closing Date, one time only, up to ten (10) days. If any date or time period provided for in this Agreement or by law falls on a Saturday, Sunday or legal holiday when banks are not open for business in San Diego, California, then such date or time period shall then be deemed to refer to the next day which is not the last to occur of: (1) a Saturday or Sunday, or (2) any one or more of a legal holiday, governmental shutdown or order, or any reasonable equivalent exists when banks are not open for business in any one or more of such locations.
Further and for the avoidance of doubt, when any date is calculated “from” or “within” a specific date, the first day after such specific date shall be deemed for all purposes the first day for purposes of computing the applicable date or time period.
(e) Severability. Except as otherwise provided in the succeeding sentence, every term and provision of this Agreement is intended to be severable, and if any term or provision of this Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the legality or validity of the remainder of this Agreement. The preceding sentence shall 23 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
be of no force or effect if the consequence of enforcing the remainder of this Agreement without such illegal or invalid term or provision would be to cause any party to lose the benefit of its economic bargain.
(f) Headings. Headings of sections are for convenience of reference only and shall not be construed as a part of this Agreement.
(g) Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefits of the parties hereto, and their respective successors, and permitted assigns.
This Agreement may not be assigned by either party without the prior written consent of the other party, provided that this Agreement may be assigned by Purchaser to an affiliate provided that, such assignment shall not release Purchaser from its obligations under this Agreement. (h) Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to be an adequate and sufficient notice if given in writing and delivery is made either by (i) personal delivery, in which case the notice shall be deemed received the date of such personal delivery or refusal of receipt, (ii) nationally recognized overnight air courier service, next day delivery, prepaid, in which case the notice shall be deemed to have been received one (1) business day following delivery to such nationally recognized overnight air courier service or refusal of receipt, (iii) facsimile, provided that at the time of being sent by facsimile, delivery thereof is confirmed by sender’s receipt of a transmission report generated by sender’s facsimile machine, which confirms that the facsimile was successfully transmitted, or (iv) email, provided that delivery thereof is acknowledged by the receiving party, evidenced by the sender’s receipt of a receipt evidencing delivery from its email program, or the sender of an email notice otherwise does not receive any indication that such email did not get delivered properly to the applicable recipient, and to the following addresses, facsimile num bers or email addresses, as applicable:
IF TO PURCHASER:
City of El Cajon
200 Civic Center Way
El Cajon, CA 92020
Attention: City Manager
Facsimile: (619) 441-1770
Email: [email protected]
with copies to:
City Attorney
City of El Cajon
200 Civic Center Way
El Cajon, CA 92020
Facsimile: (619) 441-1770
Email: [email protected]
24 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
IF TO SELLER:
San Ysidro Health
1601 Precision Park Lane
San Diego, CA 92173
Attention: Kevin Mattson
Email: [email protected]
with copies to:
San Ysidro Health
1601 Precision Park Lane
San Diego, CA 92173
Attn: Douglas Israel
Email: [email protected]
or to such additional or other persons, at such other address or addresses as may be designated by notice from Purchaser or Seller, as the case may be, to the other party. Any notice to be delivered pursuant to this Agreement (including without limitation, any notice or responses related to title, survey or other due diligence matters) may be delivered by either Purchaser or its counsel or Seller or its counsel and the delivery of notice by counsel instead of the applicable Purchaser or Seller is expressly permitted and agreed to by the parties to this Agreement and each party’s counsel shall be deemed a permitted and authorized agent of such party for purposes of delivering notices until the time that Purchaser or Seller notifies the other party in writing that their counsel does not have authority to deliver notices of this Agreement on its behalf, respectively. (i) Governing Law. This Agreement shall be governed in all respe cts by the internal laws of the State of California.
(j) Counterparts; Non- Paper Records . This Agreement may be signed or otherwise authenticated in any number of counterparts and by different parties to this Agreement on separate counterparts, each of which , when so authenticated, shall be deemed an original, but all such counterparts shall constitute one and the same Agreement. Any signature or other authentication delivered by facsimile or electronic transmission shall be deemed to be an original signature hereto. Each party who signs or otherwise authenticates this Agreement hereby: (1) agrees that the other party may create a duplicate of this Agreement by storing an image of it in an electronic or other medium (a “Non-Paper Record”); (2) agrees that, after creating the Non-Paper Record, such party may discard or destroy the original in reliance on this Section; (3) agrees that the Non-Paper Record shall be treated as the original for all purposes; and (4) expresses its present intent to adopt and accept the Non- Paper Record as an authenticated record of this Agreement.
This Agreement, when signed or authenticated pursuant to this Section, shall be evidence of the existence of this Agreement and may be received in all courts and public spaces as conclus ive evidence of the existence of this Agreement and that this Agreement was duly executed by the parties to this Agreement.
(k) Attorneys' Fees. In the event of any action or proceeding brought by either party against the other under this Agreement, the prevailing party shall be entitled to recover all 25 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
costs and expenses including its attorneys’ fees in such action or proceeding in such amount as the court may adjudge reasonable. The prevailing party shall be determined by the court based upon an assessment of which party’s major arguments made or positions taken in the proceedings could fairly be said to have prevailed over the other party’s major arguments or positions on major disputed issues in the court’s decision. If the party that has commenced or instituted the action, suit or proceeding shall dismiss or discontinue it without the concurrence of the other party, such other party shall be deemed the prevailing party.
(l) Construction. This Agreement shall not be construed more strictly against Purchaser merely by virtue of the fact that the same has been prepared by Purchaser or its counsel, it being recognized both of the parties hereto have contributed substantially and materially to the preparation of this Agreement. All words herein that are expressed in the neuter gender shall be deemed to include the masculine, feminine and neuter genders , and any word herein which is expressed in the singular or plural shall be deemed, whenever appropriate in the context, to include the plural and the singular.
(m) Reporting Obligations. Seller and Purchaser hereby designate Title Insurer to act as and perform the duties and obligations of the “reporting person” with respect to the transaction contemplated by this Agreement for purposes of 26 C.F.R. s ection 1.6045-4(e)(5) relating to the requirements for information reporting on real estate transactions closed on or after January 1, 1991. If required, Seller, Purchaser and Title Insurer shall execute at Closing a designation agreement designating Title Insurer as the reporting person with respect to the transaction contemplated by this Agreement.
(n) [Intentionally deleted]
(o) Confidentiality/Exclusivity. (i) Purchaser and its respective representatives shall hold in strictest confidence all data and information obtained wit h respect to the operation and management of the Property and the terms and conditions of this Agreement, and (ii) Seller and its respective representatives shall hold in strictest confidence all data and information obtained with respect to Purchaser and its affiliates’ operations and the terms and conditions of this Agreement, whether obtained before or after the execution and delivery hereof, and shall not use such data or information for purposes unrelated to this Agreement or disclose the same to others except as expressly permitted hereunder. The preceding sentence shall not be construed to prevent either party from disclosing to: (y) its prospective lenders or investors, or to its officers, directors, attorneys, accountants, architects, engineers, and consultants to perform their designated tasks in connection with the transaction contemplated by this Agreement; provided that such disclosing party advises any such third party of the confidential nature of the information disclosed; or (z) Title Insure r. However, neither party shall have this obligation concerning information which: (a) is published or becomes publicly available through no fault of either Purchaser or Seller; (b) is rightfully received from a third party; or (c) is required to be discl osed by law. Seller agrees that, from and after the Effective Date until the earlier of such time as (1) the Closing Date or (2) the termination of this Agreement, Seller shall not, directly or indirectly, through any officer, director, agent, representat ive or otherwise, market, solicit, initiate or encourage the making of any inquiries, engage in marketing, negotiations or other substantial discussions, or enter into any agreement with any party, with respect to the transaction 26 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
contemplated under this Agreement and shall discontinue any marketing, pending discussions or negotiations with respect to the transaction contemplated hereunder. (p) Indemnification. Seller hereby agrees to indemnify, protect, defend and hold Purchaser and its elected and appointed officials, officers, employees and agents harmless from and against any third party loss, cost, damage, claim, liability or expense (including reasonable attorneys’ fees and court costs) relating to the Property or as a result of a breach or inaccuracy of one of Seller’s covenants, representations or warranties pursuant to this Agreement and arising or accruing at any time prior to the Closing or the earlier termination of this Agreement, as the case may be. Purchaser hereby agrees to indemnify, protect, defend and hold Seller and its officers, directors, members, managers, partners, shareholders, employees and agents harmless from and against any third party loss, cost, damage, claim, liability or expense (including reasonable attorneys’ fees and court cos ts) relating to its investigations on the Property or as a result of a breach or inaccuracy of one of Purchaser’s covenants, representations or warranties pursuant to this Agreement and arising or accruing at any time prior to the Closing or the earlier termination of this Agreement, as the case may be. This provision shall survive the Closing or the earlier termination of this Agreement, as the case may be. (q) Exculpation. Purchaser and Seller each agree that it does not have and will not have any claims o r causes of action against any disclosed or undisclosed officer, director, employee, trustee, shareholder, partner, principal, parent, subsidiary or other affiliate of the other, or any officer, director, employee, trustee, shareholder, partner, or principal of any such parent, subsidiary or other affiliate (collectively, "Affiliates "), arising out of or in connection with this Agreement or the transactions contemplated hereby (including, without limitation, under any documents executed pursuant hereto). Subject to the terms of this Agreement, Purchaser and Seller agree to look solely to the other and its assets for the satisfaction of any liability or obligation arising under this Agreement, the transactions contemplated hereby or the documents executed pursuant hereto, or for the performance of any of the covenants, warranties or other agreements contained herein or therein, and further agree not to sue or otherwise seek to enforce any personal obligation against any Affiliates with respect to any matters arising out of or in connection with this Agreement, the transactions contemplated hereby or the documents executed pursuant hereto.
Without limiting the generality of the foregoing provisions of this Section 22(q), Purchaser and Seller each hereby unconditionally and irrevocably waives any and all claims and causes of action of any nature whatsoever it may now or hereafter have against Affiliates, and hereby unconditionally and irrevocably releases and discharges Affiliates from any and all liability whatsoever which may now or hereafter accrue in favor of Purchaser or Seller, as applicable, against Affiliates, in connection with or arising out of this Agreement, the transactions contemplated hereby or the documents executed pursuant hereto. The provisions of this Section 22(q) shall survive the termination of this Agreement and the Closing. (r) [Intentionally deleted]
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK; THE SIGNATURE PAGE TO THIS REAL ESTATE AGREEMENT FOLLOWS.]
27 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written.
SELLER:
Centro de Salud de la Comunidad de San Ysidro, Inc.,
a California nonprofit public benefit corporation
By:
Name: Kevin Mattson
Its: President & CEO
PURCHASER:
City of El Cajon, a California charter city and
municipal corporation
By:
Name: Graham Mitchell
Its: City Manager
ATTEST:
________________________________
Angela L. Cortez, CMC, City Clerk
APPROVED AS TO FORM:
________________________________
Morgan L. Foley, City Attorney
28 Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS DESCRIPTIONS
1. EXHIBIT A LEGAL DESCRIPTION
2. EXHIBIT B FORM OF DEED
3. EXHIBIT C FORM OF BILL OF SALE
4. EXHIBIT D FORM OF FIRPTA AFFIDAVIT
5. EXHIBIT E FORM OF ASSIGNMENT AND
ASSUMPTION OF INTANGIBLES
6. EXHIBIT F FEDERAL ACQUISITION LANGUAGE
PROVISIONS
SCHEDULES DESCRIPTIONS
1. 6(a)(3) PROPERTY INFORMATION
Ex A-1
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
For APN/Parcel ID(s): 488-242-43-00
PARCEL 1 OF PARCEL MAP NO. 16704, IN THE CITY OF EL CAJON, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY.
Ex B-1
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
EXHIBIT B
FORM OF GRANT DEED
Prepared by:
__________________________
__________________________
__________________________
__________________________
After Recording return to:
City Clerk
City of El Cajon
200 Civic Center Way
El Cajon, California 92020
(For Recorder’s Use Only)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, [●], a [●] (“Grantor”) hereby grants to [●], a [●] the following described real property located in the City of [●], County of [●], State of California:
See Exhibit A attached hereto and incorporated herein by reference.
[SIGNATURE ON FOLLOWING PAGE]
Ex B-2
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed and delivered by its duly authorized officer, as of the day and year first above written. [_____________________________________], a
[_____________________________________]
By:_____________________________________
Name:___________________________________
Title:___________________________________
STATE OF CALIFORNIA )
) SS:
COUNTY OF SAN DIEGO )
On_____________________, before me, ______________________________, a Notary Public, personally appeared_________________________________________________, who proved 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 his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the inst rument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (SEAL)
My Commission expires: _____________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Ex B-3
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
Exhibit A
LEGAL DESCRIPTION
COMMONLY KNOWN AS: 405 East Lexington Avenue, El Cajon, California A.P.N. 488-242-43
PARCEL 1 OF PARCEL MAP NO. 16704, IN THE CITY OF EL CAJON,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY
Ex B-4
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
Exhibit B
PERMITTED EXCEPTIONS
Ex C-1
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
EXHIBIT C
FORM OF BILL OF SALE
BILL OF SALE
KNOWN ALL MEN BY THESE PRESENTS , that ______________________, a ___________________ (hereinafter called “Grantor”), in consideration of Ten Dollars ($10.00) and other good and valuable consideration paid to it by ___________________, a ____________________ (hereinafter called “Grantee”), the receipt and sufficiency of which is hereby acknowledged, does hereb y grant, bargain, sell, transfer, quit claim and deliver unto the Grantee, their successors and assigns, all those fixtures and other items of personal property (except those items of personal property owned by tenants of the property described below) (collectively, the “Personal Property”) presently located at the real property commonly known as _____________________________________________________.
TO HAVE AND TO HOLD all and singular the goods and chattels to the Grantee, its successors and assigns, to its own use and benefit forever.
ALL WARRANTIES OF QUALITY OF FITNESS FOR A PARTICULAR
PURPOSE AND MERCHANTABILITY ARE EXPRESSLY EXCLUDED. THE PERSONAL PROPERTY SOLD HEREUNDER IS SOLD IN “AS IS,” AND “WHERE IS”
CONDITION WITHOUT ANY REPRESENTATION OR WARRANTY BY GRANTOR EXCEPT AS PROVIDED FOR HEREIN.
Grantor does hereby represent and warrant to Grantee, that Grantor is the absolute owner of said goods and chattels; that said Personal Property is free and clear from all claims, liens, charges and other encumb rances whatsoever; that Grantor has full right, power and authority to sell the same as aforesaid.
IN WITNESS WHEREOF , Grantor has caused this Bill of Sale to be executed this __ day of _______, 202_.
By:
Name:
Its:
Title:
Ex C-2
79257493.6Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
STATE OF CALIFORNIA )
) SS:
COUNTY OF SAN DIEGO )
On_____________________, before me, ______________________________, a Notary Public, personally appeared_________________________________________________, who proved 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 his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (SEAL)
My Commission expires: _____________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Ex D-1
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
EXHIBIT D
FORM OF FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code, as amended, provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person. To inform the Transferee (as defined below) that withholding of tax is not required upon the disposition of a United States real property interest by ______________, a ________ (the “Transferor”) to ___________________, a ________________(the “Transferee”) relating to the real property described on Schedule A hereto (the “Transferred Interests ”), the undersigned, being first duly sworn upon oath, does hereby depose and say, and does hereby on behalf of the Transferor represent that the following is true as of the date hereof:
1. __________________ is the______________________ of Transferor, and is familiar with the affairs and business of Transferor;
2. Transferor is not a foreign person; that is, Transferor is not a nonresident alien, a foreign corporation, foreign partnership, foreign trust or foreign estate (as all such terms are defined in the Internal Revenue Code of 1986, as amended, and United States Treasury Department Income Tax Regulations in effect as of the date hereof);
3. Transferor is a ______________ duly organized, validly existing and in good standing under the laws of the State of _________;
4. Transferor’s United States employer identification number is ______________;
5. Transferor’s office address and principal place of business is c/o __________________________; and
6. Transferor is not a disregarded entity as defined in §1.1445-2(b)(2)(iii).
The undersigned and Transferor understand that this affidavit and certification may be disclosed to the United States Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
All terms (whether capitalized or not) used but not defined herein shall have the same respective meanings as in the Internal Revenue Code of 1986, as amended, and t he United States Treasury Department Income Tax Regulations in effect as of the date hereof.
Under penalties of perjury, we declare that we have examined this affidavit and certificate, and to the best of our knowledge and belief, it is true, correct and c omplete. We further declare that we have authority to sign this affidavit and certificate on behalf of the Transferor. [SIGNATURE ON FOLLOWING PAGE]
Ex D-2
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
IN WITNESS WHEREOF, Transferor has executed and delivered this FIRPTA Affidavit as of _____, 202__.
_______________________, a ___________
By:
Name:
Its:
Title:___________________________________
STATE OF CALIFORNIA )
) SS:
COUNTY OF SAN DIEGO )
On_____________________, before me, ______________________________, a Notary Public, personally appeared_________________________________________________, who proved 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 his/ her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (SEAL)
My Commission Expires: _____________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
Ex E-1
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
EXHIBIT E
[NOTE: INCLUDE ONLY IF RELEVANT TO DEAL.]
FORM OF ASSIGNMENT AND ASSUMPTION OF INTANGIBLES
THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLES (“ Assignment”) dated as of [__________________] (the “ Effective Date”) between [________________________] (“Assignor”) and [______________________] (“Assignee”).
A. Assignor has conveyed to Assignee that certain parcel of real property and improvements located at ________ pursuant to that certain Real Estate Sale Agreement, dated as of _________ ___, 202__ (the “Agreement”) by and between Assignor, as Seller, and Assignee, as Purchaser. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement.
B. Assignor and Assignee have also agreed to complete an assignment and transfer of all of Assignor and its affiliate(s) right, title and interest in and to all of the intangible property directly or indirectly related to the real property legally described on Exhibit A attached hereto (the “Property”), on the terms and conditions contained herein.
C. Assignor now desires to assign and transfer to Assignee all of Assignor’s right, title and interest in, to and under the Intangibles (defined below).
1. Definition of Intangibles . For purposes of this Assignment, “Intangibles” shall mean the following: (i) all licenses, contracts, permits, certificates of occupancy, approvals, dedications, or entitlements issued, approved or granted by federal, state or municipal authorities or otherwise in connection with the Property and its renovation, construction, use, maintenance, repair, leasing or operation; (ii) all licenses, consents, easements, rights of way and approvals required from private parties to make use of utilities, to insure pedestrian ingress and egress to the Property and to insure continued use of any vaults under public rights -of-way presently used in the operation of the Property or contemplated to be used in any project to be located at the Property; (iii) all logos and trade names relating to the Property; and (iv) any and all construction plans, designs, specifications and all other construction related documents pertaining to the Property and the Project.
2. Assignment. For good and valuable consideration received by Assignor, the receipt and sufficiency of which are hereby acknowledged and agreed and to the maximum extent permitted by applicable law, Assignor hereby grants, transfers and assigns to Assignee all of its right, title and interest of Assignor in and to the Intangibles. To the extent that any affiliate(s) of Assignor are the direct or indirect owner of any Intangibles related to the Property, the Assignor shall cause such affiliate(s) to enter into an assignment in substantially the same form as this Assignment assigning such affiliate(s) right, title and interest in and to the Intangibles to the Assignee.
Ex E-2
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
3. Assumption. Assignee hereby assumes and agrees to perform the obligations of Assignor related to the Intangibles which accrue and are attributable to the period from and after the Effective Date.
4. Indemnity. Assignor agrees to indemnify, protect, defend and hold Assignee and its officers, directors, members, partners, shareholders, employees and ag ents harmless from and against any third party loss, cost, damage, claim, liability or expense (including reasonable attorneys’ fees and court costs) (collectively, “ Losses”) relating to the Intangibles and accruing any time prior to the Closing or relatin g to time periods prior to Closing, including without limitation, any amounts related to the Intangibles that are payable by Assignor pursuant to Section 3 of this Assignment.
5. Successors and Assigns. This Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective successors and assigns.
6. Counterparts. This Assignment may be executed in any number of identical counterparts, any or all of which may contain the signatures of fewer than all of the parties but all of which shall be taken together as a single instrument.
7. Governing Law. This Assignment shall be governed and interpreted in accordance with the laws of the State of California.
[Remainder of page intentionally blank]
Ex E-3
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
IN WITNESS WHEREOF, the parties h ave executed this Assignment as of the Effective Date.
ASSIGNOR:
______________, a_____________
By:
Name:
Its:
ASSIGNEE:
_____________________
By:
Name:
Its:
Ex E-4
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF INTANGIBLES
LEGAL DESCRIPTION
COMMONLY KNOWN AS: 405 East Lexington Avenue, El Cajon, California A.P.N. 488-242-43
PARCEL 1 OF PARCEL MAP NO. 16704, IN THE CITY OF EL CAJON, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY.
Ex F-1
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
EXHIBIT F
FEDERAL ACQUISITION LANGUAGE PROVISIONS
As prescribed in and in accordance with Federal Acquisition Regulations ("FAR") 52.107(b), this CONTRACT incorporates the following materials by reference: (1) that certain "Title VI, Civil Rights Act of 1964" (42 USC section 2000d), including protection to persons with limited English proficiency implemented by the Department of the Treasury's Title VI regulations (31 CFR Part 22); (2) that certain "Provisions for Non-Federal Entity Contracts Under Federal Awards" found at 2 CFR Appendix II to Part 200; (also attached hereto as Exhibit "B")(3) that certain "Contracting with Small and Minority Businesses, Women's Business Enterprises and Labor Surplus Area Firms" provision (2 CFR section 200.321); (4) that certain "S ystem for Award Management Maintenance" ( clause 52.204- 13 found at the FAR, Part 52, subpart 52.2); (5) that certain "Executive Order 11246"; and (6) that certain "Non Discrimination Clause" (found at 2 CCR 11105), each with the same force and effect as if they were given in full text herein.
Upon request, the Contracting Officer will make their full text available. Also, the full text of a these referenced materials may be accessed electronically at these addresses respectively:
https://www.dol.gov/agencies/oasam/regulatory/statutes/title-vi-civil-rights-act-of- 1964#:~:text=No%20person%20in%20the%20United,activity%20receiving%20Federal %20financial%20assistance.
https://www.ecfr.gov/current/title-31/subtitle-A/part-22
https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/appendix-Appendix II to Part 200
https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/subpart-D/subject- group-ECFR45ddd4419ad436d/section-200.321
https://www.acquisition.gov/far/52.204-13
https://www.dol.gov/agencies/ofccp/executive-order-11246/ca-11246
Cal. Code Regs. Tit. 2, § 11105 - Nondiscrimination Clause
In addition, as required by FAR section 52.107(b), 2 CFR Appendix II to Part 200 is also set out here in full:
Appendix II to Part 200 - Contract Provisions for Non -Federal Entity Contracts Under Federal Awards
In addition to other provisions required by the Federal agency or non- Federal entity, all contracts made by the non-Federal entity under the Federal award must contain provisions covering the following, as applicable.
Ex F-2
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
(A) Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate.
(B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement.
(C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract" in 41 CFR Part 60- 1.3 must include the equal opportunity clause provided under 41 CFR 60- 1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" ( 30 FR 12319, 12935, 3 CFR Part, 1964- 1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor."
(D) Davis-Bacon Act, as amended (40 U.S.C. 3141- 3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- Federal entities must include a provision for compliance with the Davis-Bacon Act ( 40 U.S.C. 3141- 3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts mu st also include a provision for compliance with the Copeland "Anti-Kickback" Act ( 40 U.S.C. 3145), as supplemented by Department of Labor regulations ( 29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.
(E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701- 3708). Where applicable, all contracts awarded by the non- Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the Ex F-3
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
wages of every mechanic and laborer on the basis of a standard work week of 40 hours.
Work in excess of the standard work w eek is permissible provided tha t the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the o pen market, or contracts for transportation or transmission of intelligence.
(F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of "funding agreement" under 37 CFR § 401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency.
(G) Clean Air Act (42 U.S.C. 7401- 7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended-Contracts and subgrants of amounts in excess of $150,000 must contain a provision that requires the non- Federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
(H) Debarment and Suspension (Executive Orders 12549 and 12689)-A contract award (see 2 CFR180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the 0MB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235),"Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.
(I) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) -Contractors that apply or bid for an award exceeding$100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influ ence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must a lso disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non-Federal award.
Ex F-4
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
(J) See§ 200.323.
(K) See § 200.216.
(L) See§ 200.322.
[78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75888, Dec. 19, 2014; 85 FR 49577, Aug. 13, 2020]
Schedule 6(a)(3) - 1
Purchase and Sale Agreement
City of El Cajon and San Ysidro Health
SCHEDULE 6(a)(3)
PROPERTY INFORMATION
1. Copies of all Service Contracts, if any.
2. Copies of all certificates of occupancy and other licenses and permits, in Seller’s possession or control.
3. Copies of all as-built plans and specifications for the improvements, if any.
4. Copies of all environmental, engineering, geo- technical reports, in Seller’s possession or control, if any.
5. Income and expense statements for the Premises for the last three full calendar years and year to date statements for the current calendar year.
6. Copies of all insurance bills and policies.
7. Copies of any agreements that will be binding on Purchaser after closing, if any.
8. Copies of all leases and or use licenses from the Property, if any.
9. Copies of all easements in Seller possession, if any.
10. Insurance loss histories for the last three full calendar years and year to date for the current calendar year, if any.
11. Copies of the real estate tax bills for the last three tax years for which bills are available, if in Seller’s possession.
12. A copy of the most recent survey of the Premises in Seller’s possession or control, if any.
13. A copy of Seller’s existing Owner’s Title Insurance Policy.
14. Copies of utility bills for the past three months, if in Seller’s possession or control.
15. Summary of all pending and threatened litigation and claims, if any.
16. Capital expenses for the last three full calendar years and year to date for the current calendar year, if any.
17. Copy of any ADA surveys, if any.
18. Copies of all existing warranties, if any.
19. A current certified rent roll, if any.
20. All other documentation reasonably requested by Purchaser and only if in Seller’s possession or control.
City Council
Agenda Report
Agenda Item 11.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Graham Mitchell, City Manager
SUBJECT: Award of RFP No. 023-24 – Small Business Incubator Operator RECOMMENDATION:
That the City Council:
Determines that the project is exempt from the California Environmental Quality Act (CEQA) pursuant to section 15301 of the state CEQA Guidelines; and
1. Adopts the next Resolution, in order, to authorize the City Manager to negotiate a lease agreement for a portion of the building at 405 E. Lexington Avenue with the Chaldean Community Council effective upon the close of escrow and transfer of title of the property to the City.
2. BACKGROUND:
On September 28, 2023, the City of El Cajon issued a Request for Proposals (RFP) for Small Business Incubator Operator (Incubator) services. The City is in the process of acquiring 405 E.
Lexington Avenue, El Cajon (a 7,155 square foot office building) and has allocated approximately 3,000 square feet intended for a small business incubator or accelerator program. The office space will be offered to the successful proponent at $1 per year, not including utilities and other maintenance costs. The award of the lease will be conditioned on the successful close of escrow and transfer of title of the office building to the City.
The service will assist a minimum of five businesses annually through the Incubator. The City aims for the Incubator to be a supportive environment for a wide range of startups and early-stage businesses, helping them to grow and locate in El Cajon or neighboring communities.
One proposal was received before 5:00 p.m. on November 7, 2023, and was independently reviewed by a three-person evaluation committee. The committee based its assessment on the evaluation criteria specified in the RFP: experience and business plan; services offered; financing plan; metrics used to access success; and readiness to operate.
After thorough evaluation of the response, the City determined the proposal received from the Chaldean Community Council best met the City’s requirements. If approved by City Council, the City Manager would have the authority to negotiate a lease agreement. The lease agreement would include performance measurements as a condition of using the building. Also, the final lease agreement will be brought back for City Council approval once it is negotiated.
The attached memorandum details the evaluation process. .!!!!_ Valley of opportunity
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CALIFORNIA ENVIRONMENTAL QUALITY ACT:
The proposed Small Business Incubator Operator service is exempt from the California Environmental Quality Act (CEQA) in accordance with state CEQA Guidelines section 15301 because the lease agreement, if approved, will result in business operations in an existing office building.
FISCAL IMPACT:
None at this time. The negotiated lease agreement and fiscal impact will be submitted at a future City Council meeting for approval.
Prepared By: Mara Romano, Purchasing Agent
Reviewed By: Graham Mitchell, City Manager
Approved By: Graham Mitchell, City Manager
Attachments
Resolution
Memorandum - 023-24
RESOLUTION NO. -23
RESOLUTION AWARDING REQUEST FOR PROPOSALS FOR
SMALL BUSINESS INCUBATOR OPERATOR SERVICES
(RFP No. 023-24)
WHEREAS, on September 28, 2023, the City of El Cajon issued a Request for Proposals (RFP) for Small Business Incubator Operator services ("Incubator"); and
WHEREAS, the City is in the process of acquiring 405 E. Lexington Avenue, El Cajon (a 7,155 square foot office building) and has allocated approximately 3,000 square feet intended for a small business incubator or accelerator program to be run by the Incubator, through which office space will be offered at $1 per year to small, locally owned and operated businesses, not including utilities and other maintenance costs; and
WHEREAS, the RFP requires that the Incubator will assist a minimum of five businesses annually and be a supportive environment for a wide range of startups and early-stage businesses, helping them to grow and locate in El Cajon or neighboring communities; and
WHEREAS, one Incubator proposal was received before 5:00 p.m. on November 7, 2023, and was independently reviewed by a three-person evaluation committee basing its assessment on the evaluation criteria specified in the RFP; experience and business plan; services offered; financing plan; metrics used to access suc cess; and readiness to operate; and
WHEREAS, after thorough evaluation of the response, the City determined the proposal received from the Chaldean Community Council ("CCC") best met the City’s requirements best meets the City’s requirements; and
WHEREAS, the Incubator is exempt from the California Environmental Quality Act ("CEQA") in accordance with state CEQA Guidelines section 15301 because the lease agreement, if approved, will result in business operations in an existing office building ; and
WHEREAS, there is no fiscal impact at this time because the negotiated lease agreement and fiscal impact will be presented at a future City Council meeting; and
WHEREAS, the City Council believes it to be in the best interest of the City to authorize the City Manager to negotiate a lease agreement with CCC to act as Incubator for the proposed project.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EL CAJON AS FOLLOWS:
1. The foregoing recitals are true and correct and are the findings of the City Council.
2. The City Council hereby determines that the Incubator is exempt from the CEQA in accordance with state CEQA Guidelines section 15301 because the lease agreement, if approved, will result in business operations in an existing office building.
3. The City Manager and is authorized and directed to negotiate a lease on behalf of the City of El Cajon, in furtherance of the Incubator goals, and conditioned upon the successful acquisition of the property by the City, to be brought back to the City Council for approval.
12/12/23 CC Agenda
Reso - RFP 023-24 – Award Small Bus. Incubator Svcs. to CCC 112923
C I T Y O F E L C A J O N
M E M O R A N D U M
DATE: 11/21/23
TO: M
ara Romano, Purchasing Agent
FROM: Adam Tronerud, Parks and Recreation Manager
SUBJECT: RECOMMENDATION TO AWARD – RFP No. 023-24 – Small Business Incubator Operator
The s election committee has independently reviewed the one proposal received in response to RFP No. 023-24, Small Business Incubator Operator.
The selection committee, comprised of personnel from the City of El Cajon independently scored the proposal based on a weighted scale with the following criteria:
1) Overall Organization, Experience and Business Plan
2) Services Offered
3) Financing Plan
4) Metrics Used to Access Success
5) Readiness to Operate
There is a total weighted score of a possible 100. The weighted score for the firm is:
Vendor
Total Weighted
Average Score
Chaldean Community Council 57.00
Recommendation:
After r eviewing the proposal , the selection committee recommends that the City of El Cajon approves the sole proposal and authorizes the City Manager to enter into lease agreement negotiations with the Chaldean Community Council. The negotiated lease agreement and the fiscal impact will be presented at a future City Council meeting.
Submitted by :
Adam
Tronerud, Parks and Recreation Manager
The Valley of Opporhmity
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City Council
Agenda Report
Agenda Item 12.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Clay Schoen, Director of Finance
SUBJECT: 2023 Annual Pension Status Report
RECOMMENDATION:
That the City Council receives the Annual Pension Status Report.
BACKGROUND:
In October 2020, the City Council adopted the City of El Cajon Pension Funding Policy. One of the requirements of this policy is a review of the status of the City’s retirement benefit plans.
Specifically, the policy states:
Addressing retirement costs is a dynamic process. CalPERS makes adjustments annually to a City’s Normal Cost and Unfunded Accrued Liability (UAL). These changes require multi-year financial planning and for the City to make corresponding budgetary adjustments. The City shall therefore evaluate its pension liabilities each year.
After the release of the most current CalPERS actuarial report, staff shall present a summary of each plan’s funding status. New amortization levels shall be specifically addressed. This information shall be presented during a public City Council meeting, which shall include a summary of funding status, funding progress compared to prior years, as well as any recommended actions and/or budget adjustments to address areas of concern.
The City recently received updated actuarial valuations for each of its benefit plans (Safety and Miscellaneous) administered by CalPERS. As a result, an Annual Pension Status Report was prepared using this updated information, and is attached to this report. These actuarial valuations were completed as of June 30, 2022.
The City issued $147.2 million of pension obligation bonds in the spring of 2021. This had a massive impact on funding status by significantly increasing plan assets. It is imperative that the outstanding bond obligations be taken into consideration when evaluating the funding status of the City’s retirement benefit plans. As of June 30, 2022, the outstanding bond principal totaled $142.3 million.
CalPERS experienced lower than ordinary investment performance in 2022. CalPERS investment target at that time was 6.8%; this target was missed with an investment loss of
6.1%. This significantly decreased plan assets and reestablished a significant unfunded liability after virtually eliminating it the previous year. As of June 30, 2022, the unfunded liability is .!!!!_ Valley of opportunity
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after virtually eliminating it the previous year. As of June 30, 2022, the unfunded liability is $115.2 million. When considered alongside the outstanding pension obligation bond principal, the total pension-related liability is $252.0 million.
As part of this discussion, the Pension Funding Policy contemplated that action may be required to address any issues raised. Specifically, the Policy states:
The City seeks to maintain adequate levels of reserves in accordance with its stated reserve goals and adopted reserve policies. To the extent that the City has excess reserves, generates an operating surplus, generates savings from other pension related strategies, or receives significant one-time revenues, the City shall endeavor to apply a portion of such monies toward its unfunded retirement costs in the form of either Additional Discretionary Payments to CalPERS directly, or deposit funds in either a designated reserve or in its PARS Sec 115 Trust.
Given the Additional Discretionary Employer Contributions already authorized as part of the Fiscal Year 2023-24 Annual Budget, no additional action is recommended at this time. As work progresses on the City’s Five-Year Business Plan and development of the Fiscal Year 2024-25 Annual Budget begins, additional funding opportunities will be evaluated.
CALIFORNIA ENVIRONMENTAL QUALITY ACT:
This is an informational item being considered by the City Council. Therefore, it is exempt from the California Environmental Quality Act (CEQA) because it is not a “project” under Section 15378(b)(5) of CEQA Guidelines.
FISCAL IMPACT:
There is no direct fiscal impact as a result of the recommended action. The status of the City’s pension plans has been a significant influence on City finances for many years, and maintaining focus on this issue remains critical to the City’s continued financial health.
Prepared By: Clay Schoen, Director of Finance
Reviewed By:
Approved By: Graham Mitchell, City Manager
Attachments
2023 Annual Pension Report
Valuation Date
Plan Liability Plan Assets Status Plan Liability Plan Assets Status Total Liability Total Assets Unfunded Status June 30, 2022 $ 398,876,465 $ 328,428,277 82.3% $ 265,040,223 $ 220,294,955 83.1% 663,916,688 $ 548,723,232$ 115,193,456$ 82.6% June 30, 2021 382,112,612 367,560,283 96.2% 256,538,618 247,412,300 96.4% 638,651,230 614,972,583 23,678,647 96.3% June 30, 2020 357,827,615 214,546,056 60.0% 246,177,687 163,877,244 66.6% 604,005,302 378,423,300 225,582,002 62.7% June 30, 2019 339,193,406 210,268,697 62.0% 239,685,601 161,538,723 67.4% 578,879,007 371,807,420 207,071,587 64.2% June 30, 2018 329,637,443 202,843,543 61.5% 233,570,524 156,241,053 66.9% 563,207,967 359,084,596 204,123,371 63.8% June 30, 2017 309,732,456 193,702,654 62.5% 218,395,632 149,048,480 68.2% 528,128,088 342,751,134 185,376,954 64.9% June 30, 2016 293,743,734 180,039,340 61.3% 209,950,483 138,220,065 65.8% 503,694,217 318,259,405 185,434,812 63.2% June 30, 2015 283,472,973 185,930,792 65.6% 201,489,297 141,996,648 70.5% 484,962,270 327,927,440 157,034,830 67.6% June 30, 2014 273,024,740 188,098,614 68.9% 196,047,087 143,189,938 73.0% 469,071,827 331,288,552 137,783,275 70.6% June 30, 2013 250,722,908 166,418,715 66.4% 179,006,378 125,744,840 70.2% 429,729,286 292,163,555 137,565,731 68.0% New Amortization Bases
Plan Reason for Base Date Est. Amort. Period Balance 6/30/22 Balance 6/30/23 Balance 6/30/24 Safety Benefit Change 6/30/2022 20 174,417$ 188,379$ 203,350$ Safety Investment (Gain)/Loss 6/30/2022 20 52,443,737 56,009,911 59,818,585 Safety Non-Investment (Gain)/Loss 6/30/2022 20 4,615,573 4,929,432 5,264,633 Miscellaneous Non-Investment (Gain)/Loss 6/30/2022 20 3,888,497 4,152,915 4,435,313 Miscellaneous Partial Fresh Start 6/30/2022 20 40,856,771 35,883,162 38,323,216 CalPERS Investment Returns
Required
Projected Contributions Contribution
2024-25 2025-26 2026-27 2027-28 2028-29
Safety Plan Normal Cost % 21.2% 20.8% 20.3% 19.9% 19.5% UAL Payment 4,753,537$ 5,487,000$ 6,224,000$ 6,838,000$ 8,218,000$ Miscellaneous Plan Normal Cost % 12.5% 12.2% 11.9% 11.6% 11.3% UAL Payment 1,222,585$ 2,046,000$ 2,870,000$ 3,694,000$ 4,518,000$ Projected Future Employer Contributions
Safety Plan Miscellaneous Plan Combined Plans
City of El Cajon
Annual Pension Status Report
(Source: June 30,2022 CalPERS Plan Actuarial Valuations) History of Investment Returns (2003 - 2022) -------'-------- -'----- --------------------- 25 %
20%
15 %
10 %
E 5 % ::, ....,
~ 0 % m ::,
2 -5%
<(
-10 %
- 15 %
-20 %
18.8%
16.6%
3.7%
-2.9%
' ' ' '- - -
-23.6%
20.7% 21.3%
18.4%
11.2%
Actual Annual Return * -6.1%
(Befo re Netting Administrative Expenses)
o --- o Rolling 5-Year Return
Discount Rate/Expected Return
(Net of Administra tive Expenses)
Discount Rate Change
Di~~~~~=ate 7.75% 7.50% 7.375% 7.25% 7.00% 6.80%
2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 Fiscal Year Ending
City Council
Agenda Report
Agenda Item 13.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Adam Tronerud
SUBJECT: The Wall that Heals – Vietnam Veterans Memorial Replica and Mobile Education Center
RECOMMENDATION:
That the City Council approves the use of Wells Park to host The Wall that Heals for one week in the Spring of 2024, waiver of facility rental fees, and approval to operate overnight.
BACKGROUND:
In 1982, The Vietnam Veterans Memorial Fund (VVMF) dedicated The Vietnam Veterans Memorial in Washington D.C. Since its dedication, it has become one of the most visited memorials on the National Mall with over 5 million visits each year, yet millions of others are still unable to visit The Wall in Washington D.C.
Shortly after The Wall’s dedication, the first traveling version began touring the country. In 1996, VVMF recognized a need to provide a traveling version of The Memorial and The Wall That Heals (TWTH) was dedicated. While these other exhibits are necessary to meet the public’s desire, as the founders of The Wall, VVMF sought to differentiate its exhibit by replicating The Wall experience as much as possible. To this day, this is accomplished through ongoing and close cooperation between the hosting organizations, their communities, and VVMF. The Wall That Heals is the largest replica, the only one wholly owned and operated by a non-profit organization, and the only one accompanied by the mobile Education Center.
Jeff Mueller, a community member, has formed an all-volunteer committee and submitted El Cajon for consideration to host The Wall that Heals. The VVMF has notified Jeff that the City of El Cajon is a finalist for a spring 2024 date if approved by City Council. The committee will recruit volunteers and raise funds to pay for the specific needs of the event.
The Wall would arrive on a Tuesday, with set-up taking place on Wednesday. The display and education center would be open 24-hours a day Thursday through Sunday. There will be no amplification during overnight hours (9:30pm to 7:30am) and additional lighting would be limited to the wall itself.
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CALIFORNIA ENVIRONMENTAL QUALITY ACT:
The proposed special event is exempt from the California Environmental Quality Act (CEQA) pursuant to section 15301 of the state CEQA Guidelines. The event is a temporary use of an existing public park involving negligible expansion.
FISCAL IMPACT:
Waiver of approximately $2,800 in facility use fees, supplies for the installation of a ground rod box for electricity approximately $500, and additional staff time that can be absorbed by Department budgets. Funds are sufficiently available in Fiscal Year 2023-24 Annual Budget.
Prepared By: Adam Tronerud, Parks and Recreation Manager Reviewed By: Frank Carson, Director of Parks & Recreation Approved By: Graham Mitchell, City Manager
Attachments
Wells Park Wall that Heals Map
City Council
Agenda Report
Agenda Item 14.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Vince DiMaggio, Assistant City Manager
SUBJECT: Award of RFP No. 027-24 – Measure J Polling & Outreach Services RECOMMENDATION:
That the City Council:
Determines that the project is exempt from the California Environmental Quality Act (CEQA) pursuant to section 15378(b)(5) of the state CEQA Guidelines; and
1. Adopts the next Resolution, in order, to enter into an agreement with Competitive Edge Research & Communication, Inc. (CERCI), in an amount not to exceed $182,000.
2. BACKGROUND:
El Cajon voters approved Proposition J, a 20-year half-cent sales tax measure in 2008, during the most difficult economic climate since the Great Depression. This measure, along with prudent financial management, stabilized the City’s ability to provide core services coming away from what became known as the Great Recession.
This sales tax measure generates more than $13 million annually, representing nearly 14% of General Fund revenues. Scheduled to expire in 2029, the need to extend this “lifeline” remains critical to the City’s financial stability, provision of emergency services including police and fire rescue, and maintenance of City parks and infrastructure.
Recognizing that three election cycles remain prior to 2029, and learning from previous experience, the City wishes to understand citizen opinion and assess the likelihood of extending the half-cent sales tax beyond its 2029 expiration date. Specifically, the City wishes to ascertain whether to place a minimum of a half-cent sales tax measure on the 2024 municipal election ballot resulting in the Request for Proposals (RFP) for Measure J Polling & Outreach Services issued on October 19, 2023.
This service contract would be in effect upon date of execution through October 5, 2024 (approximately one month prior to the November 2024 election) and includes, but is not limited to:
Polling and outreach services to comprehend voter opinions and inform voters of the impacts if the tax measure is not renewed;
Developing multi-mode surveys to assess voter propensity and hone education and engagement strategy;
Designing an outreach and engagement strategy to provide voters with informational and .!!!!_ Valley of Opportunity
•
•
Designing an outreach and engagement strategy to provide voters with informational and educational materials and conduct public outreach meetings; Providing surveys, informational and educational materials, public outreach meetings, etc. in both English and Spanish, with accommodations made for the City’s Middle Eastern population; and
Communicating and reporting to City staff to discuss issues, findings, and recommendations; discerning voter patterns; and presenting data and recommendations to City Council.
Three proposals were received before 5:00 p.m. on November 9, 2023, and were independently reviewed by a three-person evaluation committee. The committee based its assessment on the evaluation criteria specified in the RFP: firm qualifications and experience; partner, supervisory, and staff qualifications and experience; polling and public outreach strategy; timeline; and cost.
After thorough evaluation of the proposals, the City conducted interviews with all three firms. It was determined the proposal received from CERCI, along with Southwest Strategies, best met the City’s requirements. The attached memorandum details the evaluation process.
CALIFORNIA ENVIRONMENTAL QUALITY ACT:
The proposed Measure J Polling & Outreach Services agreement is exempt from the California Environmental Quality Act (CEQA) because it is not a “project” under section 15378(b)(5) of CEQA Guidelines. It is an organizational or administrative activity of government that will not result in a direct or indirect physical change in the environment.
FISCAL IMPACT:
The fiscal impact is $182,000. Sufficient funds are available for this service in Fiscal Year 2023-24 Economic Development Annual Budget (101112).
Prepared By: Mara Romano, Purchasing Agent
Reviewed By: Graham Mitchell, City Manager
Approved By: Graham Mitchell, City Manager
Attachments
Resolution
Memorandum - 027-24
•
•
•
RESOLUTION NO. ___-23
RESOLUTION AWARDING REQUEST FOR PROPOSALS FOR
PROPOSITION J POLLING AND OUTREACH SERVICES
(RFP No. 027-24)
WHEREAS, the voters of the City of El Cajon (the " City") approved Proposition J, a twenty (20) year half -cent (½¢) sales tax measure, in 2008 ("Prop J") during the most difficult economic climate since the Great Depression; and
WHEREAS, this measure, along with prudent financial management, stabilized the City’s ability to continue provide core services in recovery from what became known as the Great Recession; and
WHEREAS, Prop J , which is scheduled to expire in 2029, g enerates more than thirteen million dollars annually, representing nearly fourteen percent of City's General Fund revenues; and
WHEREAS, the need to extend this "lifeline" remains critical to the City’s financial stability, provision of emergency services ( including police and fire rescue), and maintenance of City parks and infrastructure; and
WHEREAS, recognizing that only three (3) election cycles rem ain prior to 2029, the City wishes to consider citizens' opinions and assess the likelihood of extending the half-cent (½
¢) sales tax b eyond its 2029 expiration date through robust polling and, if appropriate, public outreach and education; and
WHEREAS, the City issued Request for Proposals No. 027-24 for Proposition J Polling & Outreach Services (the "RFP") on October 19, 2023; and
WHEREAS, the RFP would be in effect upon the date of execution through October 5, 2024 (approximately one month prior to the November 2024 election) and includes, but is not limited to: ( 1) polling and outreach services to comprehend voter opinions and inform voters of the impacts if the tax measure is not renewed; (2) developing multi -mode surveys to assess voter propensity and refine education and engagement strategies; (3) designing outreach and engagement strateg ies to provide voters informational and educational materials and conduct public outreach meetings; (4) providing surveys, informational and educational materials, public outreach meetings, etc., in both English and Spanish, with accommodations made for the City’s Middle Eastern population; and (5) communicating and reporting to City staff such issues, findings, and recommendations developed through such efforts ; discerning voter patterns; and presenting data and recommendations to City Council (the "Project"); and
WHEREAS, three (3) proposals were received by the 5:00 p.m. deadline on November 9, 2023, and were independently reviewed by a three- person evaluation committee that based its assessment on the evaluation criteria specified in the RFP, including firm qualifications and experience; principal, supervisory, and staff qualifications and experience; polling and public outreach strategy; timeline; and cost; and
WHEREAS, a fter thorough evaluation of the proposals, the City conducted interviews with all three (3) firms, and i t was determined the proposal received from Competitive Edg e Research & Communication, Inc., ( "CERCI") best me ets the City’s requirements; and
WHEREAS, the fiscal impact of the Project is $182,000.00, and sufficient funds are available in the Fiscal Year 2023-24 Annual Budget for Economic Development and Other Professional-Technical Services; and
WHEREAS, the Project is exempt from the California Environmental Quality Act ("CEQA") because it is not a "project" pursuant to CEQA Guidelines section 15378(b)(5) as this action is an organizational or administrative activity of government that will not result in a direct or indirect physical change in the environment; and
WHEREAS, the City Council believes it to be in the best interest of the City to award the RFP to CERCI, and reject all other proposals, as recommended by staff.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EL CAJON AS FOLLOWS:
1. The foregoing recitals are true and correct and are the findings of the City Council.
2. The City Council hereby determines that the Project is exempt under section 15378(b)(5) of CEQA Guidelines.
3. The City Council hereby awards RFP No. 02 7-24 to Competitive Edge Research & Communication, Inc., in an amount not to exceed $ 182,000.00, and rejects all other proposals.
4. The City Manager, or designee, and City Clerk are authorized and directed to execute an agreement on behalf of the City of El Cajon (the "Agreement"), with such changes or amendments as maybe approved by the City Manager , or designee, and to take all actions and to execute all documents and/or attachments to the Agreement, and other documents necessary or appropriate to carry out the terms of the Agreement.
12/12/23 CC Agenda
Reso - RFP 027-24 CERCI (Prop J Polling & Outreach Svcs) Award 120123
CITY OF EL CAJON
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MEMORANDUM
DATE: November 30, 2023
TO: Mara Romano, Purchasing Agent
FROM: Ryan Villegas, Management Analyst, CMO
SUBJECT: RECOMMENDATION TO AWARD- RFP No.027-24 - Proposition J Polling & Outreach Services
The City of El Cajon received three proposals for the above referenced Request for Proposal (RFP). The selection committee, comprised of personnel from the City of El Cajon, independently scored each proposal on the evaluation form included in RFP No. 027-
24. The proposal evaluation form is based on a weighted scale with criteria including:
1) Firm Qualifications & Experience,
2) Partner, Supervisory, and Staff Qualifications & Experience, 3) Polling & Public Outreach Strategy,
4) Timeline Proposal, and
5) Cost Proposal.
The total possible weighted average score was 100 points.
The weighted scores for Proposition J Polling & Outreach Services (RFP No. 027-24) after initial evaluations resulted in the following ranking:
Total
Vendor Weighted
True North Research 89.00
Competitive Edge Research & 85.67 Communications
Tripepi Smith & Associates 75.67
The Selection Committee requested that all three vendors be invited to participate in an interview to complete the evaluation process . After interviews, the selection committee concluded the following final ranking:
Vendor Ranking
Competitive Edge Research & 1
Commun ications
True North Research 2
Tripepi Smith & Associates 3
Recommendation:
After reviewing proposals, . interviews , and cost proposals, the selection committee recommends that the City of El Cajon enter into a contract with Competitive Edge Research & Communications for Proposition J Polling & Outreach Services. The cost for the contract , as outlined in the Cost Proposal from this firm , is a not to exceed amount of $182,000 . The proposed term of this contract is effective upon execution through October 5, 2024 (31 days prior to election date).
Submitted and Authorized by:
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City Council
Agenda Report
Agenda Item 15.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Graham Mitchell, City Manager
SUBJECT: Award of RFP No. 020-24 – Economic Analysis Services (Parkway Plaza Mall)
RECOMMENDATION:
That the City Council:
Determines that the project is exempt from the California Environmental Quality Act (CEQA) pursuant to state CEQA Guidelines section 15262; and
1. Adopts the next Resolution, in order, to enter into an agreement with Hunden Strategic Partners, Inc. dba Hunden Partners (HP), in an amount not to exceed $248,915 for a one-year term.
2. BACKGROUND:
On June 27, 2023, the El Cajon City Council received a report regarding the Parkway Plaza Mall and its future. At the meeting, City Council directed staff to assist the mall owners to envision the potential development opportunities that exist on the properties, resulting in the Request for Proposals (RFP) for Economic Analysis Services issued on August 28, 2023.
The service includes providing market feasibility and analysis specific to commercial mall re-use and redevelopment, pro forma analysis on a variety of different redevelopment possibilities (including housing), feasibility analysis based on specific market conditions and likely opportunities, and other miscellaneous economic financial analysis. As part of the market and economic analysis, HP is required to provide architectural massing and renderings for various concepts to be explored in collaboration with City staff, property owners, and other stakeholders.
Seven proposals were received before 5:00 p.m. on October 5, 2023, and were independently reviewed by a three-person evaluation committee. The committee based its assessment on the evaluation criteria specified in the RFP: project management team; experience in market feasibility analysis/seeking stakeholder input/architectural massings and renderings; work plan; and cost.
After thorough evaluation of the proposals, the City conducted interviews with the top four ranking firms. It was determined the proposal received from HP best met the City’s requirements. The attached memorandum details the evaluation process. .!!!!_ Valley of opportunity
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CALIFORNIA ENVIRONMENTAL QUALITY ACT:
The proposed Economic Analysis Services project is exempt from the California Environmental Quality Act (CEQA) in accordance with state CEQA Guidelines section 15262 because the project is a feasibility and planning study with no predetermined future projects. Any subsequent projects that may result from this analysis will be reviewed in accordance with CEQA.
FISCAL IMPACT:
The fiscal impact is $248,915. Sufficient funds are available for this service in Fiscal Year 2023-24 Economic Development Annual Budget (101112).
Prepared By: Mara Romano, Purchasing Agent
Reviewed By: N/A
Approved By: Graham Mitchell, City Manager
Attachments
Resolution
Memorandum - 020-24
RESOLUTION NO. ___-23
RESOLUTION AWARDING REQUEST FOR PROPOSALS FOR
ECONOMIC ANALYSIS SERVICES
(RFP No. 020-24)
WHEREAS, on June 27, 2023, the City Council of the City of El Cajon ("the City") received a report regarding the future of the Parkway Plaza mall (the "Mall"), and directed staff to assist the owners of the Mall to envision potential development opportunities that exist at the properties; and
WHEREAS, Request for Proposals No. 020-24 for Economic Analysis Services (the "RFP") was issued on August 28, 2023; and
WHEREAS, the RFP includes providing market feasibility and analysis specific to a commercial mall re-use and redevelopment; pro forma analysis on a variety of different redevelopment possibilities (including housing); feasibility analyses based on specific market conditions and likely opportunities; and other miscellaneous economic financial analyses (the "Project"); and
WHEREAS, as part of the market and economic analyses, the consultant will be required to provide architectural massing (e.g., conceptual drawings of the general shape and form, as well as size of a building) and renderings for various concepts to be explored in collaboration with City staff, property owners, and other stakeholders; and
WHEREAS, seven (7) proposals were received by the deadline of 5:00 p.m. on October 5, 2023; and
WHEREAS, a three -person evaluation committee independently reviewed the proposals according to the criteria specified in the RFP, including project management teams; experience in: market feasibility analysis, gathering stakeholder input, and architectural massing and renderings; proposed work plan; and cost; and
WHEREAS, after thorough evaluation of the responses, interviews were conducted with the four (4) top-ranking firms, and i t was determined that the proposal received from Hunden Strategic Partners, Inc., doing business as Hunden Partners ("HP"), best meets the City’s requirements; and
WHEREAS, the fiscal impact of the Project is $ 248,915.00 for a term of one (1) year, and sufficient funds are available in the Fiscal Year 2023- 24 Annual Budget for Economic Development and Other Professional Technical Services; and
WHEREAS, the Project is exempt from the California Environmental Quality Act ("CEQA") pursuant to CEQA Guidelines section 15262 as it is a feasibilit y and planning study with no predetermined future projects; and
WHEREAS, the City Council believes it to be in the best interest of the City to award the RFP to HP, and reject all other proposals, as recommended by staff.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EL CAJON AS FOLLOWS:
1. The foregoing recitals are true and correct and are the findings of the City Council.
2. The City Council hereby determines that the Project is exempt under section 15262 of CEQA Guidelines.
3. The City Council hereby awards RFP No. 020- 24 to Hunden Strategic Partners, Inc., doing business as Hunden Partners, in an amount not to exceed $248,915.00 for a term of one (1) year, and rejects all other proposals.
4. The City Manager, or designee, and City Clerk are authorized and directed to execute a n agreement for the Project on behalf of the City of El Cajon (the "Agreement"), with such changes or amendments as maybe approved by the City Manager, or designee, and to take all actions and to exec ute all documents and/or attachments to the Agreement, and other documents necessary or appropriate to carry out the terms of the Agreement.
12/12/23 CC Agenda
Reso - RFP 020-24 Hunden Strategic Partners (Economic Analysis Svcs) Award 112723
CITY OF EL CAJON
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MEMORANDUM
DATE: November 20, 2023
TO: Mara Anna Romano, Purchasing Agent
FROM: Graham Mitchell, City Manager
SUBJECT: Recommendation to Award - RFP No.020-24 - Economic Analysis Services The City of El Cajon received seven proposals for the above referenced Request for Proposal (RFP). The selection committee, comprised of personnel from the City of El Cajon independently scored each proposal on the evaluation form included in RFP No. 020-24. The proposal evaluation form is based on a weighted scale with criteria including:
1) Project management team,
2) Experience in market feasibility analysis,
3) Experience in gathering stakeholder input,
4) Experience in architectural massing and renderings,
5) Proposed work plan, and
6) Cost.
The weighted scores for Economic Analysis Services (RFP No. 020-24) after initial evaluations resulted in the following ranking:
fvendor
ECONorthwest
Keyser Marston & Associates
Economic & Planning Systems, Inc.
Hunden Partners
Streetsense
Kosmont Companies
RSG
Weighted
Average
89.35 87.40
86.33 82.93
76.35 74.00
68.98 The top four ranking firms were shortlisted and invited for interviews with the selection committee. After interviews, the selection committee concluded the following final ranking:
Recommendation:
Vendor
Hunden Partners
Keyser Marston & Associates
ECONorthwest
Economic & Planning Systems, Inc.
Ranking
1 2
3 4
After reviewing proposals, interviews, and cost proposals, the selection committee recommends that the City of El Cajon enter into a contract with Hunden Partners for Economic Analysis Services. The cost for the contract is estimated to total $248,915, including research and estimated travel expenditures. The proposed term of this contract is one year. ~ ::izedby
Graham Mitchell, City Manager
City Council
Agenda Report
Agenda Item 16.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Mayor Wells
SUBJECT: Council Activity Report
RECOMMENDATION:
That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.
BACKGROUND:
Government Code Section 53232.3(d) requires members of a legislative body to provide brief reports on meetings attended at the expense of the local agency at the next regular meeting of the legislative body. This City Administrative Activity is not a project and therefore not subject to CEQA.
REPORT:
Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:
November 9, 2023 – Vigil at Temple Emanuel
November 10, 2023 – Lincoln Club Dinner
November 11, 2023 – Interview with KUSI
November 12, 2023 – Interview with Fox News National
November 12, 2023 – Vigil for Israel
November 16, 2023 – San Diego County Taxpayers Association 27th Annual Goldens Awards November 25, 2023 – Holiday Lights on Main Christmas Tree Lighting Event December 6, 2023 – SANDAG Briefing
December 8, 2023 – SANDAG Board of Directors Meeting
December 12, 2023 – City Council Meeting(s)
I am available to answer questions.
Submitted By: Bill Wells, Mayor
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City Council
Agenda Report
Agenda Item 17.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Councilmember Goble
SUBJECT: DEPUTY MAYOR STEVE GOBLE
MTS (Metropolitan Transit System Board); East County Advanced Water Purification Joint Powers Authority Board; Chamber of Commerce – Government Affairs Committee; SANDAG – Board of Directors – Alternate; SANDAG Public Safety Committee – Alternate.
RECOMMENDATION:
That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.
BACKGROUND:
Government Code Section 53232.3(d) requires members of a legislative body to provide brief reports on meetings attended at the expense of the local agency at the next regular meeting of the legislative body. This City Administrative Activity is not a project and therefore not subject to CEQA.
REPORT:
Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:
November 13, 2023 - Emails with Tim C @ MTS re: parking violation November 15, 2023 - Emails with Alex @ RideSD re: Airport transportation connection November 17, 2023 - Attend SANDAG Board of Directors Mtg November 21, 2023 - Attend Chamber Gov't Affairs Mtg
November 25, 2023 - Attend Christmas Tree Lighting event November 27, 2023 - Meeting with City Mgr
November 28, 2023 - Attend MTS Nominating Committee meeting November 29, 2023 - Meeting with City Mgr
November 30, 2023 - Emails with Sup Anderson re: migrant crisis in SD November 30, 2023 - Attend MTS Budget Committee mtg
December 1, 2023 - Attend Chamber First Friday Breakfast December 1, 2023 - Emails with City Mgr re: Humane Society December 1, 2023 - Emails with Emily @ SANDAG re: Military Wkg Grp December 4, 2023 - Send letters to County Supervisors re: delay of SB43 December 4, 2023 - Send letter to Sup Anderson re: funds for migrant center December 4, 2023 - Draft agenda item re: front yard shade structures .!!!!_ Valley of opportunity
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December 5, 2023 - MCRD Tour
December 6, 2023 - Attend MTS East County reps meeting
December 7, 2023 - Attend MTS Exec Committee meeting
December 11, 2023 - Meeting with City Mgr
December 11, 2023 - Tour the AWP Project with Asm Chris Ward December 12, 2023 – City Council Meeting(s)
I am available to answer questions.
Submitted By: Steve Goble, Councilmember
City Council
Agenda Report
Agenda Item 18.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Councilmember Kendrick
SUBJECT: COUNCILMEMBER GARY KENDRICK
METRO Commission/Wastewater JPA; Heartland Communications; Heartland Fire Training JPA.
RECOMMENDATION:
That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.
BACKGROUND:
Government Code Section 53232.3(d) requires members of a legislative body to provide brief reports on meetings attended at the expense of the local agency at the next regular meeting of the legislative body. This City Administrative Activity is not a project and therefore not subject to CEQA.
REPORT:
Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:
November 17, 2023 – Metro Wastewater Ad Hoc Committee
December 1, 2023 – Metro Wastewater Ad Hoc Committee
December 5, 2023 – Metro Wastewater Ad Hoc Committee
December 12, 2023 – City Council Meeting(s)
I am available to answer questions.
Submitted By: Gary Kendrick, Councilmember
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City Council
Agenda Report
Agenda Item 19.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Councilmember Metschel
SUBJECT: COUNCILMEMBER MICHELLE METSCHEL
Harry Griffen Park Joint Steering Committee; METRO
Commission/Wastewater JPA – Alternate; Heartland Communications – Alternate; Heartland Fire Training JPA – Alternate.
RECOMMENDATION:
That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.
BACKGROUND:
Government Code Section 53232.3(d) requires members of a legislative body to provide brief reports on meetings attended at the expense of the local agency at the next regular meeting of the legislative body. This City Administrative Activity is not a project and therefore not subject to CEQA.
REPORT:
Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:
November 16, 2023 - Participated in the Home Start Walk and Rally for Runaway and Homeless Youth
November 18, 2023 - Attended event for Elected Officials at Bernardo Winery November 25, 2023 - Participated in Holiday Lights on Main Street November 30, 2023 - Attended Valor event for Veterans of East County (VECA) December 5, 2023 - Attended meeting of El Cajon Collaborative December 7, 2023 - Attended orientation meeting at Noah Homes December 9, 2023 - Attended Winter Wonderland event at Wells Park December 12, 2023 – City Council Meeting(s)
I am available to answer questions.
Submitted By: Michelle Metschel, Councilmember
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City Council
Agenda Report
Agenda Item 20.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Deputy Mayor Ortiz
SUBJECT: COUNCILMEMBER PHIL ORTIZ
League of California Cities, San Diego Division; East County Economic Development Council; MTS (Metropolitan Transit System Board) – Alternate; East County Advanced Water Purification Joint Powers Authority Board – Alternate; Chamber of Commerce – Government Affairs Committee – Alternate.
RECOMMENDATION:
That the City Council accepts and files the following report of Council/Mayor activities attended during the current agenda period.
BACKGROUND:
Government Code Section 53232.3(d) requires members of a legislative body to provide brief reports on meetings attended at the expense of the local agency at the next regular meeting of the legislative body. This City Administrative Activity is not a project and therefore not subject to CEQA.
REPORT:
Since the last City Council meeting, I have attended the following events on behalf of the City of El Cajon:
November 25, 2023 – El Cajon Christmas Tree Lighting
November 30, 2023 – Veterans Alliance Awards Lunch
December 11, 2023 – League of California Cities
December 12, 2023 – City Council Meeting(s)
I am available to answer questions.
Submitted By: Phil Ortiz, Deputy Mayor
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City Council
Agenda Report
Agenda Item 21.
DATE: December 12, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Steve Goble, Deputy Mayor and Phil Ortiz, City Councilmember SUBJECT: Considering Shade Structures in Residential Front Yards RECOMMENDATION:
That the City Council directs staff to provide an analysis of the merits of modifying the El Cajon Municipal Code to allow permanent and semi-permanent shade structures in residential front yards.
BACKGROUND:
When neighbors enjoy leisure time in their front yards, it enhances the relationships among themselves, creates safer streets, and increases the value of properties through greater use of the available land.
We have heard some El Cajon residents express a desire to have a permanent shade covering in their front yards to make time spent outside more pleasurable. Currently, accessory structures in front yards, such as pergolas, are prohibited under the City's Municipal Code. We believe that there is value in exploring whether to consider modifying the Municipal Code to allow such structures. Before proceeding with a formal request to modify the Municipal Code, we recommend that staff provides a cursory evaluation and opinion of whether a change to allow pergolas or other semi-permanent structures has value. Factors such as aesthetics, sturdiness of materials, securing to land to avoid damage from high winds, and setbacks for traffic visibility are some examples of considerations that could be included in staff's analysis.
Therefore, we are recommending that the City Council direct staff to consider the merits and drawbacks of the idea. Further, we recommend that staff’s analysis be forwarded to the Planning Commission for review and input and then to the City Council for discussion.
CALIFORNIA ENVIRONMENTAL QUALITY ACT:
The City Council's direction is exempt from the California Environmental Quality Act in accordance with section 15262 of the state CEQA Guidelines because it only requires an analysis or study for a possible future action.
Prepared By: Steve Goble, Deputy Mayor and Phil Ortiz, City Councilmember Reviewed By: N/A
Approved By: N/A
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City Council
Agenda Report
Agenda Item 22.
DATE: December 12, 2023
TO: City Clerk
FROM: City Attorney/General Legal Counsel
SUBJECT: Closed Session - Conference with Legal Counsel - Anticipated Litigation - Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Government Code section 54956.9: One (1) potential case - In the course of construction of the City's El Cajon Boulevard Streetscape Project, City’s contractor, Tri-Group Construction and Development, Inc., has presented numerous claims against the City for extra days and extra compensation under the contract.
RECOMMENDATION:
That the following Closed Session be scheduled for the Joint City Council / Housing Authority / Successor Agency to the El Cajon Redevelopment Agency meeting on Tuesday, December 12, 2023, at 3:00 p.m.
CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION – Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Government Code section 54956.9:
NAME OF CASE:
Existing Facts and Circumstances: In the course of construction of the City’s El Cajon Boulevard Streetscape Project, City’s contractor, Tri-Group Construction and Development, Inc., has presented numerous claims against the Cityfor extra days and extra compensation under the contract.
Morgan L. Foley
City Attorney/General Legal Counsel
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City Council
Agenda Report
Agenda Item 23.
DATE: December 12, 2023
TO: City Clerk
FROM: City Attorney/General Legal Counsel
SUBJECT: Closed Session - Conference with Legal Counsel - Anticipated Litigation - Initiation of litigation pursuant to paragraph (4) of subdivision (d) of section 54956.9: One (1) potential case
RECOMMENDATION:
That the following Closed Session be scheduled for the Joint City Council / Housing Authority / Successor Agency to the El Cajon Redevelopment Agency meeting on Tuesday, December 12, 2023, at 3:00 p.m.
CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION – Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Government Code section 54956.9:
Number of Potential cases: 1
Morgan L. Foley
City Attorney/General Legal Counsel
MLF:hms
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City Council
Agenda Report
Agenda Item 24.
DATE: December 12, 2023
TO: City Clerk
FROM: City Attorney/General Legal Counsel
SUBJECT: Closed Session - Conference with Legal Counsel - Existing Litigation - pursuant to paragraph (1) of subdivision (d) of Government Code section 54956.9: Tri-Group Construction & Development, Inc. v. City of El Cajon; Superior Court of California, County of San Diego; Case No. 23SC03197C RECOMMENDATION:
That the following Closed Session be scheduled for the Joint City Council / Housing Authority / Successor Agency to the El Cajon Redevelopment Agency meeting on Tuesday, December 12, 2023, at 3:00 p.m.
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION – pursuant to paragraph (1) of subdivision (d) of Government Code section 54956.9:
NAME OF CASE:
Tri-Group Construction & Development, Inc. v. City of El Cajon Superior Court of California, County of San Diego
Case No. 23SC03197C
Morgan L. Foley
City Attorney/General Legal Counsel
MLF:hms
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City Council
Agenda Report
Agenda Item 25.
DATE: December 12, 2023
TO: City Clerk
FROM: City Attorney/General Legal Counsel
SUBJECT: Closed Session - Conference with Legal Counsel - Existing Litigation - pursuant to paragraph (1) of subdivision (d) of Government Code section 54956.9: Truck and SUV Superstore, Inc. v. City of El Cajon; Superior Court of California, County of San Diego; Case No.
37-2023-00050319-CU-EI-CTL
RECOMMENDATION:
That the following Closed Session be scheduled for the Joint City Council / Housing Authority / Successor Agency to the El Cajon Redevelopment Agency meeting on Tuesday, December 12, 2023, at 3:00 p.m.
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION – pursuant to paragraph (1) of subdivision (d) of Government Code section 54956.9:
NAME OF CASE:
Truck and SUV Superstore, Inc. v. City of El Cajon
Superior Court of California, County of San Diego
Case No. 37-2023-00050319-CU-EI-CTL
Morgan L. Foley
City Attorney/General Legal Counsel
MLF:hms
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City Council
Agenda Report
Agenda Item 26.
DATE: December 12, 2023
TO: City Clerk
FROM: City Attorney/General Legal Counsel
SUBJECT: Closed Session - Conference with Legal Counsel - Anticipated Litigation - Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Government Code section 54956.9: Two (2) potential cases - Alan Cunningham dba California Registration Services, and Stett's Iron Horse Ranch, have each submitted a Claim for Damages alleging loss of profits and other damages due to construction on the El Cajon Boulevard Streetscape Project, which abuts the claimants' businesses.
RECOMMENDATION:
That the following Closed Session be scheduled for the Joint City Council / Housing Authority / Successor Agency to the El Cajon Redevelopment Agency meeting on Tuesday, December 12, 2023, at 3:00 p.m.
CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION – Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Government Code section 54956.9:
NAME OF CASE:
Existing Facts and Circumstances: Alan Cunningham dba California Registration Services, and Stett's Iron Horse Ranch, have each submitted a Claim for Damages alleging loss of profits and other damages due to construction on the El Cajon Boulevard Streetscape project, which abuts the claimants' businesses.
Morgan L. Foley
City Attorney/General Legal Counsel
MLF:hms
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