Agenda Item No. 11
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Fermin Preciado, Director of Development Services/ City Engineer Fr FOR: City Council Meeting of January 10, 2022
SUBJECT: Right -of -Way Acquisition, Avenue E Intersections Improvement Project, Phase II, Project No. 10788
RECOMMENDATION:
That City Council:
1. Approve a Purchase and Sale Agreement with Delbert Kerber and Debora Cervantes, (APN 0318-143-12) for the acquisition of a 15,000 square foot property (full property acquisition) for partial right of way purposes and the construction of the Avenue E Intersections Improvement Project for an amount not to exceed $436,024; and
2. Approve an expenditure up to the amount of $6,000 for closing costs associated with the proposed purchase and sale agreement, the amount of $4,600 for coordination/staff time, and up to $22,500 for Relocation Expenses, for a total cost in the amount of $469,124 for the acquisition of the property; and
3. Authorize the City Manager, or his designee, to execute the necessary documents to complete the acquisition process.
BACKGROUND:
The Avenue E Intersections and Sidewalk Improvement Project, Bryant Street to 51h Street is prioritized in the FY2021/2022 Capital Improvement Program (CIP) and is consistent with the City's General Plan Circulation Element. This project includes roundabout intersection improvements at the various intersections and street/sidewalk improvements along avenue E within the project limits. This project is being completed in phases. Phase I of the project was constructed in 2020 and included the single lane roundabout improvements at the intersections of 2nd Street and 3rd Street with Avenue E, as well as the installation of sidewalk along Avenue E between the two intersections. Phase II includes the construction of dual lane roundabouts at the intersections of 41h Street and 5th Street with Avenue E.
For Phase II, the City seeks to acquire permanent easements from eleven (11) properties. The acquisition of these permanent easements allows for the construction of the roundabouts, including pavement widening, concrete curb and gutter, concrete driveway approaches, sidewalks, ADA ramps and storm drain improvements at the intersections of Avenue E with 5th Street and 4th
City Council Meeting of January 10, 2022
Right -of -Way Acquisition, Avenue E Intersections Improvement Project, Phase II, Project No. 10788
Street. The sidewalk and street improvements along Avenue E between 41h Street and 5th Street will be constructed as part of a future phase.
It is important to note that in 2011, interim improvements were constructed at the intersection of Avenue E and 51h Street to increase traffic capacity at this intersection. The improvements included adding specific turn lanes at the 5th Street approaches to improve traffic circulation during peak traffic hours on an interim basis. With the ultimate construction of a dual lane roundabout at the intersection of these two arterial streets consistent with the City's General Plan Circulation Element, traffic capacity at this intersection will be improved to support the projected traffic at buildout. The use of roundabouts, in lieu of signalized intersections, provides adequate capacity for Avenue E to remain as a 2-lane street at build out between Bryant Street and just east of 4th Street, thus significantly reducing right-of-way costs, construction costs, and impacts to private properties for the overall project.
DISCUSSION:
At the February 22, 2016, City Council Meeting, Council adopted the Categorical Exemption pursuant to Section 15301(c) of the CEQA guidelines and directed staff to file a Notice of Exemption to complete the environmental review process for the Project. City Council also authorized staff to proceed with the right of way acquisition for the Project.
Real estate appraisals were completed by the City's contract appraiser in accordance with state law to determine the fair market value of the permanent right of way easements required from the subject properties to construct the Project. Written offers were sent to the property owners pursuant to the Council approved appraisal reports which were based on current comparable similar property listings and sales.
Staff met with the owner of the property identified as APN 0318-143-12 located at the northwest corner of Avenue E and 5th Street to discuss the City's offer. The property owner has accepted the City's offer and executed the proposed Purchase and Sale Agreement for the 15,000 square foot property required for the project. This proposed purchase is a full acquisition of a property with a single-family structure on the property. Staff is recommending that City Council approve the Purchase and Sale Agreement. Separate relocation expenses will be determined by the Relocation Expert at Overland Pacific and Cutler for the property owner and the tenant, currently estimated at $22,500, payable separately, outside of escrow. The estimated expenses for the Relocation Expert for this transaction are $5,000. City Council approved the Relocation Plan and associated costs at the August 23, 2021 meeting.
With the approval of this Purchase and Sale Agreement, the acquisition of 9 of the 11 permanent easements will have been acquired leaving 1 permanent easement remaining to be acquired for the 4th Street intersection improvements and 1 for the 5th Street intersection improvement with Avenue E.
FISCAL IMPACT:
The table below includes the available funding in the approved FY2021/2022 CIP and estimated costs to date for the overall project:
-82-
City Council Meeting of January 10, 2022
Right -of -Way Acquisition, Avenue E Intersections Improvement Project, Phase II, Project No. 10788
Funding Sources
Amount
Traffic Facilities Fee Funds
$1,558,000.00
Measure I Arterial Funds
$2,954,000.00
SB 1
$1,068,000.00
PROP 1B
$219,000.00
SBCTA Advanced Expenditure Agreement Funds
$845,000.00
Traffic Safety Funds 2016/2017
$1,037,000.00
Total Funding Available
$7,681,000.00
Project Costs
Design Contracts
$289,758.89
Design Contract Administration/Staff Time/ Landscape
$45,000.00
Total Project Design Costs
$334,758.89
Project Right -of -Way Acquisition
Total Project Right of Way Costs to Date
$2,601,191.60
Proposed Right of Way Costs Associated With This
Action
$436,024.00
Acquisition Expenses: Staff Time/Admin
/Escrow/Legal/ Relocation Expert and Expenses
$10 600.00
Total Proposed Right of Way Costs
$3,047,815.60
5th Street Intersection Interim Construction
Construction Contract
$149,121.26
Construction Contract Administration/Admin./Staff
Time
$42,324.90
Total 5th Street Intersection Interim Construction Costs $191,446.16
Phase I Construction (2nd and Yd Street roundabouts)
Construction Contract
$2,405,899.00
Construction Contract Contingency
$241,509.00
Construction Contract Administration/Admin./Staff
Time
$310,000.00
Total Phase I Project Construction Costs
$2,957,408.00
Total Estimated Project Costs to Date
$6,531,428.65
Total Funding
$7,681,000.00
Remaining Funding
$1,149,571.35
City Council Meeting of January 10, 2022
Right -of -Way Acquisition, Avenue E Intersections Improvement Project, Phase II, Project No. 10788
The total estimated cost associated with the proposed recommendations is $469,124, which is included in the total above. This includes the cost of the proposed property acquisition, the closing costs and the coordination/staff time associated with the processing of the proposed purchase and sale agreement. With the funding included in the table above, there is sufficient funding available to accommodate staff s recommendations. It is important to note, no general fund resources are proposed for this project.
Attachments: Property Location Map
Purchase and Sale Agreement
Approved by:
LOCATION MAP
APN 0318-143-12
12494 5TH STREET, YUCAIPA, CA 92399
Avenue E
mo.
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS REGARDING THE REAL PROPERTY LOCATED AT 12494 5TH STREET, 40 YUCAIPA, CALIFORNIA, AND FURTHER IDENTIFIED AS SAN
BERNARDINO COUNTY TAX ASSESSOR'S PARCEL NUMBER 0318-143-12 IN CONNECTION WITH AVENUE E INTERSECTION PROJECT.
This Purchase and Sale Agreement and Joint Escrow Instructions ("Agreement") pertains to the real property located at 12494 5th Street, Yucaipa, California, and further identified as San Bernardino County Tax Assessor's Parcel Number 0318-143-12 (referred to below as the "Property") A portion of the Property is being acquired by the City of Yucaipa to construct the proposed AVENUE E INTERSECTION PROJECT. The Agreement is entered into as of 2021 ("effective date") by and between the following "Party", Delbert R. Kerber, Jr. and Debora J. Cervantes (referred to below as "Sellers") and the City of Yucaipa, a municipal corporation (referred to below as "Buyer" or "City"). This Agreement constitutes a negotiated transaction to purchase and sell the between the Sellers and Buyer, and the joint escrow instructions directed to Stewart Title of California ("Escrow Holder"). The Buyer and Sellers will collectively hereafter be referred to as the "Party."
RECITALS
A. Sellers are the record fee owner of the Property that is located 12494 5th Street, Yucaipa, California, and further identified as San Bernardino County Tax Assessor's Parcel Number 0319- 143-12.
B. The City seeks to acquire, through good faith negotiations, the Property to construct the Avenue E Intersection Project (proposed "Project"). The Property is described on Exhibit "A" and depicted on Exhibit `B," to this Agreement, with both incorporated herein by this reference.
C. The Property is identified as San Bernardino County Tax Assessor's Parcel Number 0319-143-12-0000 and is approximately 15,000 square feet (gross) in size and contains residential improvements.
D. Sellers and Buyer acknowledge that the City made a formal written offer to acquire the Property for the proposed Project and entered into good faith negotiations.
E. Sellers desires to sell and Buyer desires to buy the Property on the terms and conditions set forth herein.
F. The foregoing recitals shall survive the Close of Escrow.
NOW THEREFORE, in consideration of the above Recitals, which are incorporated herein by this reference, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Buyer and Sellers agrees to the following:
1. Purchase and Sale. On the Close of Escrow (as defined in Section 2 below), Sellers agrees to sell the Property to the City, and the City agrees to buy the Property from Sellers, subject to the terms and conditions set forth in this Agreement.
2. Opening and Close of Escrow. Within five business days after the effective date of this Agreement, the City will deliver a certified copy of the fully executed Agreement to Escrow Holder. For purposes of this Agreement, "Opening of Escrow" means the date on which Escrow Holder receives the certified copy of this Agreement from Buyer. The Party can execute the Agreement in counterparts as set forth in Section 21(f) below. "Close of Escrow" means the date on which the Grant Deed (as defined and referenced in Section 6(a) below) is delivered and recorded in the Official Records of the County of San Bernardino. The Close of Escrow will occur after the performance of all duties and obligations under this Escrow that are required to take place prior to Close of Escrow. The Close of Escrow will be on the date that is not later than the first business day occurring 60 calendar days after the Opening of Escrow. Before the Close of Escrow, all risk of loss and damage to the Property from any source whatsoever will be solely that of Sellers.
3. Purchase Price. The "Purchase Price" that Buyer will pay to Sellers for the fair market value of the Property is the sum of Four Hundred Thirty -Six Thousand Twenty -Four Dollars ($436,024.00). This amount represents at least the full amount that the City believes to be just compensation for the Property. The amount is not less than the approved appraisal of the Property. The Purchase Price does not include any increase or decrease in value of the Property caused by the proposed Project for which the City seeks to acquire the Property.
4. Title and Title Insurance. Upon the Opening of Escrow, Escrow Holder will obtain and issue a title commitment for the Property. Escrow Holder will also request two copies each of all instruments identified as exceptions on said title commitment. Upon receipt of the foregoing, Escrow Holder will deliver these instruments and the title commitment to Buyer and Sellers. Escrow Holder will insure Buyer's interest in the Property described above in Sections A and B of the Recitals and on Exhibits "A" and "B" to this Agreement at the Close of Escrow by a CLTA Owner's Standard Coverage Policy of Title Insurance in the amount of the Purchase Price (the "Policy"). Buyer will pay for the cost of the Policy. The Policy provided for pursuant to this Section will insure Buyer's interest in the Property free and clear of all liens, encumbrances (including, without limitation, monetary encumbrances), restrictions, and rights -of -way of record except the following permitted conditions of title ("Permitted Title Exceptions"):
a. General and special real property taxes for the then current tax fiscal year that are a lien not then due and payable; and
b. Zoning, building and development regulations of any municipality, county, state or federal jurisdiction affecting the Property; and C. Those non -monetary exceptions approved by Buyer within ten business days after the date Buyer receives the title commitment and legible copies of all instruments noted as exceptions therein. If Buyer unconditionally disapproves any such exceptions within such ten - business day period, Escrow will thereupon terminate, all funds deposited by Buyer therein will be refunded to Buyer, and this Agreement will have no further force or effect. If Buyer conditionally disapproves any such exceptions within such ten business day period, then Sellers may, but shall not be obligated to, cause such exceptions to be removed by the Close of Escrow, provided, however, that if Sellers are able and willing to cause such exceptions to be removed or otherwise cured, then Sellers shall notify Buyer in writing within ten business days after Sellers 2 son
receives Buyer's title objection notice of those title exceptions that Sellers intends to remove or otherwise cure, in which case the removal or curing by Sellers of the title exceptions specified by Sellers in Sellers' title notice shall be a Buyer closing condition, and if such exceptions are not removed by the Close of Escrow, Buyer may, at Buyer's option, either accept the Property subject to such encumbrances, or terminate the Escrow and receive a refund of all funds deposited by Buyer into Escrow (less escrow cancellation charges), if any, and this Agreement will thereupon be of no further force or effect. If Sellers does not deliver Sellers's title notice to Buyer within ten business days after Sellers receive Buyer's title objection notice, then Buyer shall be deemed to be notified that Sellers are unable or unwilling to eliminate or cure Buyer's conditionally disapproved exceptions. If Sellers notifies or is deemed to have notified Buyer that Sellers are unable or unwilling to cure any particular exception, then Buyer shall have the right, upon delivery to Sellers and Escrow Holder prior to the expiration of the Due Diligence Period of a written notice, to either: (1) waive its prior title objections, in which event said conditionally disapproved exceptions shall be deemed approved; or (2) terminate this Agreement and the Escrow created pursuant hereto, in which case all funds deposited by Buyer therein will be refunded to Buyer, and this Agreement will have no further force or effect. Failure to take either one of the actions described in (1) and (2) shall be deemed to be Buyer's election to take the action described in (2) above.
5. Deposit of Funds in Escrow. Buyer covenants and agrees to deposit into Escrow the Purchase Price and such escrow funds (including, without limitation, the Purchase Price, title and escrow charges and prorations) and documents as are required within ten business days of receiving written notice from Escrow Holder regarding the confirmation of the completion of the conditions required herein for the Close of Escrow.
6. Deposit of Documents in Escrow by Sellers. Sellers covenants and agrees to deposit into Escrow the following:
a. Grant Deed. Sellers will, within 15 business days after the effective date of this Agreement, deposit with Escrow Holder a Grant Deed granting to the City the permanent roadway easement and site improvements thereon duly executed and acknowledged by Sellers in the form attached hereto as Exhibit "C" and incorporated herein by this reference. Buyer will have ten days to review and accept said executed form prior to Close of Escrow. b. Withholding Exemption Certificate. If requested by Escrow, Sellers will deliver to Escrow Holder, prior to the Close of Escrow, a Withholding Exemption Certificate 593- C as contemplated by California Revenue and Taxation Code section 18862.
C. Proof of Sellers's Authorization. Sellers will deliver to Escrow such proof of Sellers's authorization to enter into this transaction as Escrow Holder may reasonably require for issuance of the Policy.
7. Authorization to Record Documents and Disburse Funds. Escrow Holder is hereby authorized to record the documents and disburse the funds and documents called for hereunder upon the Close of Escrow, provided each of the following conditions has then been fulfilled:
a. Escrow Holder can issue in favor of Buyer the Policy, showing Buyer's interest in the Property, subject only to the Permitted Title Exceptions. Unless otherwise instructed by Sellers, Escrow Holder will use the proceeds of the Purchase Price to obtain a full reconveyance of any monetary liens encumbering the Property that Sellers have agreed in writing to cure pursuant to Section 4(c). Escrow Holder will notify Sellers of the amount of the disbursement of the proceeds required to clear any monetary lien and obtain Sellers's written authorization for such disbursement prior to disbursing such proceeds to the holders of the monetary liens encumbering the Property;
b. Buyer will have deposited with Escrow Holder the Purchase Price and escrow charges;
C. Escrow Holder will have received Buyer's notice of approval or satisfaction or waiver of all of the contingencies to Buyer's obligations hereunder, as provided for below in Section 13;
d. Sellers will have deposited with Escrow Holder the executed Grant Deed required by Section 6; and
e. Sellers will have deposited with the City the Right of Entry and Access Agreement -Due Diligence and Construction Activities required by Section 9.
Unless otherwise instructed in writing, Escrow Holder is authorized to record at the Close of Escrow any instrument delivered through this Escrow if necessary or proper for issuance of the Policy, including the Grant Deed.
8. Escrow Charges and Prorations.
a. Buyer will pay for the cost of the Policy, escrow costs and Escrow Holder's customary out-of-pocket expenses for messenger services, long distance telephone, etc. Buyer will pay for recording the Grant Deed, any documentary or other local transfer taxes, and any other recording fees. If the Escrow fails to close through no fault of either parry, Buyer will pay all escrow cancellation charges.
b. Any installment of taxes or assessments for the current year paid at or prior to the Close of Escrow shall be prorated based upon the amounts actually paid. If taxes and assessments for the current year have not been paid before the Close of Escrow, Sellers shall be charged at the Close of Escrow, an amount equal to that portion of such taxes and assessments that relates to the period before the Close of Escrow. Any such apportionment made with respect to a tax year for which the tax rate or assessed valuation, or both, have not yet been fixed will be based upon the tax rate and/or assessed valuation last fixed. To the extent that the actual taxes and assessments for the current year differ from the amount apportioned at the Close of Escrow, the Party will make all necessary adjustments by appropriate payments between themselves following the Close of Escrow. Sellers will pay all delinquent taxes, assessments, and supplemental assessments (and any penalties therein) for periods prior to the Close of Escrow, if any, for the Property.
M
:11
C. All prorations will be determined on the basis of a 365-day year. The provisions of this Section 8 will survive the Close of Escrow.
9. Right of Entry and Access Agreement -Due Diligence and Construction Activities.
a. Due Diligence and Construction Right of Entry. Sellers shall grant to the City a Right of Entry and Access Agreement — Due Diligence and Construction Activities ("Right of Entry") in substantially the form attached hereto as Exhibit "D". Sellers shall deliver to the City the Right of Entry duly executed on behalf of Sellers on or before the 5th business day after Opening of Escrow. During the period commencing on the effective date of the Right of Entry and ending at 5:00 p.m. (Pacific) 45 calendar days after said commencement date ("Due Diligence Period"), Buyer may, upon delivery to Sellers of the Right of Entry and Access Agreement -Due Diligence and Construction Activities duly executed on behalf of Buyer, inspect the Property as necessary for the purpose of making inspections and other examinations of the Property at Buyer's sole expense, provided that Buyer shall not perform soil and geological tests of the Property, other intrusive or invasive investigation of the Property or an environmental site assessment thereof without the prior written approval of Sellers, which approval shall not be unreasonably withheld. Buyer will provide at least two business days' telephonic notice to Sellers before going on the Property. Buyer's physical inspection and other examinations of the Property shall be conducted during normal business hours. Sellers warrant that except for Sellers, no other person or entity has the right to occupy the Property, or any portion thereof, and that the Right of Entry does not require the consent of any party not a signatory thereto.
10. Warranties and Representations of Sellers, Indemnity. Sellers, where applicable, hereby represents and warrants to Buyer the following, it being expressly understood and agreed that all such representations and warranties are to be true and correct in all material respects as of the effective date of this Agreement:
a. If Sellers acquires additional knowledge regarding the matters that are the subject of the warranties or representations contained in this Section 10 that would cause any of such warranties or representations to be incorrect in any material respect prior to the Close of Escrow, Sellers shall give prompt written notice thereof to Buyer. Within ten business days following receipt of such notice, Buyer may elect, as Buyer's sole and exclusive remedy, to cancel this Agreement and receive a refund of the funds deposited in escrow by Buyer, except for any escrow cancellation charges.
b. As of the Close of Escrow, the warranties and representations contained in this Section 10 shall be true and correct in all material respects, subject to any matters disclosed in writing by Sellers as provided in this Section and will survive the Close of Escrow for a period of 12 months, and any action for a breach of any representations or warranties must be filed within 12 months from the Close of Escrow.
C. As used in this Section 10, the term "Sellers's Knowledge" means the actual knowledge of Sellers as of the effective date, without the duty of inquiry or investigation and without being charged with record or constructive knowledge. 5 SI
d. Sellers are the record fee owner of the Property and, to Sellers's Knowledge, no other party has a fee interest in the Property or any portion thereof. e. To Sellers's Knowledge (i) as of the effective date, the Property has not been subject to the deposit, manufacture, storage, use, release, or disposal of any Hazardous Materials (as defined in Section 16 below), hazardous or toxic substances, materials, and waste, including, but not limited to, asbestos; and (ii) Sellers have not received any written notice of any pending or threatened action or proceeding in which it is alleged that the condition of the Property violates environmental, health or safety statutes, ordinance or regulations.
f. To Sellers's Knowledge, neither this Agreement nor anything provided to be done hereunder, including the transfer of the Property to Buyer, violates or will violate any contract, agreement, instrument, partnership agreement, trust agreement, or any other agreement to which Sellers are a party, or which materially affects the Property, and the Sellers's grant of the Property to Buyer pursuant to this Agreement does not require the consent of any party not a signatory hereto.
g. To Sellers's Knowledge, there is no pending, threatened or anticipated litigation, action or proceeding against Sellers, or any other parry before any court or administrative tribunal that involves the Property, or any portion thereof, which could prevent Sellers from their performance of this Agreement or materially and adversely affect Buyer or the Properly after the Close of Escrow.
h. No additional consent is required in order for Sellers to perform their obligations hereunder.
i. From the effective date until the Close of Escrow or earlier termination of this Agreement, Sellers will not further encumber the Property or authorize the Property to be further encumbered without Buyer's written consent, which shall not be unreasonably withheld. j. Sellers are not a "foreign person" within the meaning of section 1445(f)(3) of the Internal Revenue Code.
k. To Sellers's knowledge, there are no previously undisclosed leases, licenses, occupancy agreements, or other agreements or arrangements, oral or written, demising space in, providing for the use, possession, or occupancy of, or otherwise similarly affecting or relating to the Property, or any portion thereof, that would give any person or entity any right of possession to any portion of the Property and would remain in effect after the Close of Escrow.
The right of Sellers to occupy the Property area will terminate on the Close of Escrow. Buyer will allow Sellers five (5) calendar days following the Close of Escrow to remove any and all personal property from the Property, any personal property remaining on the Property after the five (5) day period shall be deemed abandoned by Sellers, and Sellers herein waive and release Buyer from any and all further legal obligations concerning the appropriateness, handling and disposal of said abandoned personal property, with this waiver and release extending past the Close of Escrow.
0 SE
1. Sellers agrees to provide to any potential buyer or tenant of the Property written notice of this Agreement, Grant Deed and Right of Entry and Access Agreement -Due Diligence and Construction Activities.
11. Representations and Warranties of Buyer. Buyer hereby represents and warrants to Sellers the following, it being expressly understood and agreed that all such representations and warranties are to be true and correct as of the Close of Escrow and shall survive the Close of Escrow:
a. Buyer has taken all required action to permit it to execute, deliver, and perform its obligations under this Agreement.
b. Buyer has the power and authority to execute and deliver this Agreement and carry out its obligations hereunder and consummate the transaction contemplated herein.
C. Neither this Agreement nor anything to be provided to be done hereunder, including acquisition of the Property by Buyer, violates or shall violate, any contract, instrument, partnership agreement, trust agreement, or any other agreement to which Buyer is a party, and which affects the Property or any part thereof, and the purchase of the Property herein contemplated does not require the consent of any party not a signatory hereto. d. There are no actions, suits, claims, assessments, or proceedings pending or threatened, that could materially adversely affect Buyer's ability to perform hereunder. e. Buyer shall make good faith efforts to commence construction of the Project and shall proceed with such work until completion in a prompt, diligent and workmanlike manner, however, Buyer's obligations concerning the aforementioned proposed Project is expressly conditioned upon and subject to any and all review, decisions and approvals that are within the discretion and purview of the City's governing body and the Yucaipa City Council. f. Buyer acknowledges that it is Buyer's responsibility to investigate and inspect all aspects of the Property and its fitness for Buyer's use, because Buyer is purchasing the Property in an "AS IS" and "WITH ALL FAULTS" physical condition and state of repair, and without warranty by Sellers except as expressly provided in Section 10. Buyer shall rely solely upon Buyer's investigation and inspection of the Property in deciding to proceed with the Close of Escrow and shall not rely on any information provided by Sellers except Sellers's representations and warranties under Section 10 of this Agreement. Buyer also acknowledges that the "AS IS" and `'WITH ALL FAULTS" condition of the Property is fairly represented by the Purchase Price.
BUYER'S INITIALS
g. Effective as of and subject to the Close of Escrow, Buyer expressly releases and discharges Sellers and all other related entities or persons, whether past or present (collectively, the "Released Party"), and each of them, jointly and severally, from and against any and all claims, demands, controversies, causes of action, things in action, choses in action, rights, obligations, liabilities, costs, expenses, attorneys' fees and damages of whatsoever character, SSA
nature and kind, in law and in equity, past, present and future, known and unknown, suspected and unsuspected, contingent and vested (collectively, "Liabilities"), that relate to, or arise out of or with respect to the Property, including, without limitation, Liabilities related to or arising out of any and all of (i) the nature or condition of the Property, (ii) the condition of title to the Property, (iii) the Property' fitness for Buyer's intended use, (iv) the past, present or future existence of Hazardous Materials on, under or about the, and (v) violations of laws regulating or governing the use, handling, storage or disposal of Hazardous Materials; provided, however, that this release shall not release Sellers or any of the other Released Party from any Liabilities resulting from, or responsibility for acts or omissions of Sellers or the other Released Party constituting, gross negligence, intentional misconduct, or fraud or for a breach of Sellers's representations and warranties specifically set forth in Section 10 of which Buyer was unaware at the time of the Close of Escrow. Buyer hereby acknowledges that it has read and is familiar with the provisions of California Civil Code Section 1542, which is set forth below:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
Buyer hereby waives the provisions of California Civil Code Section 1542, as well as under any other statute or common law principle of similar affect, in connection with the matters which are the subject of the foregoing release. In this connection and to the fullest extent permitted by law, Buyer hereby agrees, represents and warrants that Buyer realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to Liabilities which are presently unknown, unanticipated and unsuspected, and Buyer further agrees, represents and warrants that the releases herein have been negotiated and agreed upon in light of that realization and that Buyer nevertheless hereby intends to release and discharge Sellers and the other Released Party from all such unknown Liabilities within the scope of the foregoing release.
BUYER'S INITIALS
This Section 11 shall survive the Close of Escrow and shall not be merged with the Grant Deed.
12. Buyer's Payment of Purchase Price.
a. The Buyer's payment to Sellers of the Purchase Price is an all-inclusive transaction settlement and constitutes the full and complete consideration and payment for the Buyer's acquisition of the Property, including all improvements on the Property. The Purchase Price is also full and complete consideration for all claims arising in connection with out of Buyer's efforts to acquire the Property prior to the effective date. b. Relocation Assistance and Benefits. Buyer acknowledges that Sellers has provided Sellers and the occupants of the Property with information concerning relocation assistance laws and regulations, including, without limitation, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1070 (42 U.S.C. 4601 et seq.) ("Uniform Act"), if 012
applicable, or under Title 1, Division 7, Chapter 1 of the Government Code of the State of California (section 7260 et seq.) ("California Relocation Law"), or the Relocation Assistance and Real Property Acquisition Guidelines (Chapter 6 of Title 25 of the California Code of Regulations). Review of Sellers's eligibility and entitlement to reimbursement for relocation assistance program expenses shall be separately determined outside of this escrow and through the City's relocation assistance program consultants.
13. Legal Release and Waiver.
a. On the Close of Escrow, Sellers fully releases Buyer, its elected and appointed councilmembers, officials, officers, boards, commissions, consultants, agents, employees, and attorneys (collectively, the "Buyer Releasees"), from all claims and causes of action by reason of any damage that has been sustained, or may be sustained, as a result of Buyer's efforts to acquire the Property by formal written offer or any preliminary steps thereto, and from any and all claims, demands, causes of action, obligations, liabilities or claims for further compensation for Buyer's purchase of the Property; provided, however, that this release shall not release Buyer or any of the other Buyer Releasees from any claims or causes of action resulting from, or responsibility for acts or omissions of Buyer or the other Buyer Releasees constituting, gross negligence, intentional misconduct, or fraud or for a breach of any of Buyer's obligations under this Agreement.
b. Upon Close of Escrow pursuant to this Agreement, and except to the extent based upon a breach of this Agreement, Sellers hereby expressly and unconditionally waive any claim for compensation for injury to the remainder of the Property ("severance damages"); pre - condemnation damages; claims for inverse condemnation; damage to or loss of improvements pertaining to the realty (as so defined in Code of Civil Procedure Section 1263.205); damage to or loss of machinery, fixtures, inventory, equipment and personal property; any right to repurchase, leaseback from Sellers, or receive any financial gain from, the sale of any portion of the Property, or challenge Buyer's adoption of a resolution of necessity, pursuant to Code of Civil Procedure sections 1245.245; any right to receive any notices pursuant to Code of Civil Procedure section 1245.245; any right to enforce any other obligation placed upon Sellers pursuant to Code of Civil Procedure sections 1245.245, 1263.025 and 1263.615; any other rights conferred upon Sellers pursuant to Code of Civil Procedure sections 1245.245 and 1263.615 and 1263.025; and attorney's fees and costs, it being understood that if Escrow closes, this shall be a complete and full settlement of all acquisition claims, liabilities, or benefits of any type or nature whatsoever by Sellers (except for claims any breach of this Agreement) relating to or in connection with the acquisition of the Property by Buyer. This release shall survive the Close of Escrow.
C. Upon Close of Escrow pursuant to this Agreement, Sellers specifically waives any and all rights that Sellers may have under California Civil Code section 1542 or under any statute or common law or equitable principle of similar effect as these may relate to the releases described in Section 13(a) and 13(b) herein. California Civil Code section 1542 provides as follows:
E
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR."
i
Sellers's Initials: V 66
Buyer's Initials:
d. This Section 13 will survive the Close of Escrow.
14. Contingencies.
a. Buyer Contingencies. For the benefit of Buyer, the Close of Escrow and the Buyer's obligation to consummate the purchase of the Property will be contingent upon and subject to the occurrence of all of the following (or Buyer's written waiver thereof, it being agreed that Buyer can waive any or all such contingencies) on or before the Close of Escrow:
i. That as of the Close of Escrow the representations and warranties of Sellers contained in this Agreement are true and correct in all material respects. ii. The delivery to Escrow Holder of all documents pursuant to Section 0 iii. The delivery of the Right of Entry and Access Agreement -Due Diligence and Construction Activities to the Buyer, pursuant to Section 9. iv. Title Company's commitment to issue in favor of Buyer the Policy with liability equal to the Purchase Price showing Buyer's interest in the Property, subject only to the Permitted Title Exceptions.
V. Buyer's approval prior to the Close of Escrow of any environmental site assessment, soils or geological reports, or other physical inspections of the Property that Buyer might perform prior to the Close of Escrow.
b. Sellers's Contingencies. For the benefit of Sellers, the Close of Escrow and the Sellers's obligation to consummate the sale of the Property will be contingent upon and subject to the occurrence of all of the following (or Sellers's written waiver thereof, it being agreed that Sellers can waive any or all such contingencies) on or before the Close of Escrow:
i. That as of the Close of Escrow the representations and warranties of Buyer contained in this Agreement are true and correct in all material respects. to Section 5.
ii. The delivery to Escrow Holder of all documents and funds pursuant RM
10 iii. The delivery of the Right of Entry and Access Agreement -Due Diligence and Construction Activities to the Buyer, pursuant to Section 9.
15. Right of Termination. Notwithstanding anything to the contrary contained herein, and without limiting any other right of termination for the benefit of Buyer contained herein, the Buyer shall have the right, in the exercise of its sole and absolute discretion, and upon written notice to Sellers and Escrow Holder, to terminate this Agreement: (a) at any time prior to the expiration of the Due Diligence Period for any reason or no reason whatsoever; and (b) at any time prior to the Close of Escrow upon the failure of any of the Buyer's contingencies described in Section 14 for reasons other than due to the acts or omissions of Buyer. Upon such termination, all documents and monies deposited with Escrow Holder, less any escrow cancellation charges, shall be immediately returned to the depositing parry.
16. Certain Definitions.
a. The term "Hazardous Materials" shall mean and include the following, including mixtures thereof: any hazardous substance, pollutant, contaminant, waste, by-product or constituent regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601 et seq.; oil and petroleum products and natural gas, natural gas liquids, liquefied natural gas and synthetic gas usable for fuel; pesticides regulated under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. section 136 et seq.; asbestos and asbestos -containing materials, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. section 2601 et seq.; source material, special nuclear material, by-product material and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act or the Nuclear Waste Policy Act of 1982; chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R. section 1910.1200 et seq.; industrial process and pollution control wastes, whether or not hazardous within the meaning of the Resource Conservation and Recovery Act, 42 U.S.C. section 6901 et seq.; any substance defined as a "hazardous substance" in California Civil Code section 2929.5(e)(2) or California Code of Civil Procedure section 736(f)(3); and any other substance or material regulated by any Environmental Laws.
b. The term "Environmental Laws" shall mean and include all federal, state and local statutes, ordinances, regulations and rules in effect on, or prior to, the date hereof relating to environmental quality, health, safety, contamination and clean-up, including, without limitation, the Clean Air Act, 42 U.S.C. section 7401 et seq.; the Clean Water Act, 33 U.S.C. section 1251 et seq.; and the Water Quality Act of 1987; the Federal Insecticide, Fungicide, and Rodenticide Act 7 U.S.C. section 136 et seq.; the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. section 1401 et seq.; the National Environmental Policy Act, 42 U.S.C. section 4321 et seq.; the Noise Control Act, 42 U.S.C. section 4901 et seq.; the Occupational Safety and Health Act, 29 U.S.C. section 651 et seq.; the Resource Conservation and Recovery Act 42 U.S.C. section 6901 et seq.; as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. section 300f et seq.; the Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C. section 9601 et seq. as amended by the Superfund Amendments and Reauthorization Act, the Emergency Planning and Community Right -to -Know Act and the Radon Gas and Indoor Air Quality Research Act; the Toxic Substances Control Act 15 U.S.C. section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. section 11 •e
2011 et seq.; and the Nuclear Waste Policy Act of 1982, 42 U.S.C. section 10101 et seq.; and state and local environmental statutes and ordinances, with implementing regulations and rules in effect on or prior to the date hereof.
17. Evidence in Court Proceeding. The Parry agree that the Purchase Price or any inference of per square foot value of the Property based on said Purchase Price will not be admissible as evidence of the fair market value of the Property in any litigation or eminent domain proceeding between Buyer and Sellers concerning the Property or any portion thereof.
18. Destruction/Condemnation. In the event that prior to the Close of Escrow, the Property or any portion of the Property is damaged by fire, earthquake, or other casualty, or are subject to a taking by a public entity, then Buyer shall have the right, by giving notice to Sellers within 15 calendar days after receiving written notice of such damage or taking, to either:
a. Terminate this Agreement, in which case neither Sellers nor Buyer shall have any further rights or obligations hereunder, except that (1) Buyer shall be responsible for Escrow Holder's escrow cancellation fees and charges relating to the Policy and (ii) the Purchase Price and escrow funds deposited into Escrow by Buyer shall be refunded to Buyer less any such escrow cancellation fees or charges relating to the Policy; or b. Accept the Property in its then condition and proceed with the Close of Escrow, and to receive an assignment of all of Sellers's rights to any proceeds of insurance or condemnation awards payable by reason of such damage or taking, if any. If Buyer elects to proceed under this clause, there shall be no adjustment in the Purchase Price and Sellers shall not compromise, settle, or adjust any claims to such insurance or condemnation proceeds or awards. Sellers agrees to give Buyer prompt written notice of any damage to or taking of the Property promptly after Sellers receive notice of same.
19. Notices. All notices and demands hereunder will be given in writing by certified or registered mail, postage prepaid, and return receipt requested, or by overnight carrier. Notices will be considered given upon the earlier of: (a) two business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, or (b) one business day following deposit with an overnight carrier service. A copy of all notices will be sent to Escrow Holder. The Parry will address such notices as provided below or as may be amended by written notice:
BUYER: City of Yucaipa
34272 Yucaipa Boulevard
Yucaipa, California 92399-9950
Attention: Raymond A. Casey, City Manager
COPY TO: Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, California 90071-3101
Attention: David M. Snow, City Attorney
12 -97-
SELLERS: Ms. Delbert R. Kerber, Jr. and Debora J.
Cervantes
12494 5th Street
Yucaipa, CA 92399
ESCROW HOLDER: Stewart Title of California
Escrow Department,
1200 California St #120
Redlands, CA 92373
Attention: Joyce Strohm, Escrow Officer
20. Further Documents. Sellers and Buyer each will, wherever and as often as it shall be requested by the other parry, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such further instruments and documents, including further escrow instructions, as may reasonably be necessary in order to complete the sale, conveyance, and transfer herein provided and to do any and all other acts and to execute, acknowledge, and deliver any and all documents as may be requested in order to carry out the intent and purpose of this Agreement.
21. Broker's Commissions.
a. Buyer represents and warrants to the Sellers that Buyer has not contracted for any brokerage commissions or finder's fees arising out of the transactions contemplated by this Agreement. Buyer shall indemnify and hold Sellers harmless from and against any and all liabilities, claims, demands, damages, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, in connection with claims for any such commissions, finders' fees or brokerage fees arising out of Buyer's conduct or the inaccuracy of the foregoing representation and/or warranty of Buyer.
b. Sellers represents and warrants to the Buyer that Sellers has not contracted for any brokerage commissions or finder's fees arising out of the transactions contemplated by this Agreement. Sellers shall indemnify and hold Buyer harmless from and against any and all liabilities, claims, demands, damages, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, in connection with claims for any such commissions, finders' fees or brokerage fees arising out of Sellers's conduct or the inaccuracy of the foregoing representation and warranty of Sellers.
22. Miscellaneous.
a. Amendinents. Any amendments to this Agreement will be effective only when duly executed by both Buyer and Sellers and deposited with Escrow Holder. b. Applicable Law. This Agreement will be construed and interpreted under and governed and enforced according to the laws of the State of California.
C. Entire Agreement. This Agreement supersedes any prior agreement, oral or written, and together with the exhibits hereto and any agreements delivered pursuant hereto, contains the entire agreement between Buyer and Sellers, on the subject matter of this Agreement. 13 S!
No subsequent agreement, representation or promise made by either parry hereto, or by or to any employee, officer, agent or representative of either party, will be of any effect unless it is in writing and executed by the parry to be bound thereby. Sellers and Buyer acknowledge by execution of this Agreement hereof that no person is authorized to make, and that no person has made, any representation, warranty, guaranty or promise except as set forth herein; and no such agreement, statement, representation or promise that is not contained herein will be valid or binding on Sellers or Buyer.
d. No Assignment; Successors and Assigns. This Agreement may not be assigned by Buyer without the prior written consent of Sellers, which consent may be withheld by Sellers in its sole and absolute discretion. Any attempted assignment by Buyer in violation of this provision shall be null and void. Subject to the foregoing restriction on assignment, this Agreement will be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Party hereto.
e. Time of Essence. The Parry acknowledge that time is of the essence in this Agreement, notwithstanding anything to the contrary in the Escrow Holder's general Escrow instructions.
f. Counterparts and Facsimile and Electronic Signatures. This Agreement may be executed simultaneously in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. For purposes of this Agreement, facsimile and electronic signatures will be deemed to be original signatures. g. Remedies Not Exclusive and Waivers. Except as expressly provided in this Agreement, no remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy and each and every remedy will be cumulative and will be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies will not constitute a waiver of the right to pursue other available remedies.
h. Interpretation and Construction. The Parry have reviewed this Agreement, and each has had the opportunity to have its respective counsel and real estate advisors review and revise this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting parry will not apply in the interpretation of this Agreement or any amendments or exhibits thereto. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words "person" and "party" include corporation, partnership, firm, trust, or association wherever the context so requires. The captions of the sections and subsections of this Agreement are for convenience and reference only, and the words contained therein will in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement. i. Attorneys' Fees. In any action or proceeding between the Parry hereto seeking the enforcement of any of the terms and provisions of this Agreement, the prevailing parry in such action or proceeding (including, but not limited to, appellate and bankruptcy proceedings) shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses and reasonable attorneys' fees.
14 j. Severability. If any part, term or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining provisions will not be affected, and the rights and obligations of the Party will be construed and enforced as if this Agreement did not contain the particular part, term or provision held to be invalid.
k. Recitals a7id Exhibits. The exhibits attached hereto, and the above Recitals are incorporated in this Agreement by reference herein.
IN WITNESS WHEREOF, this Agreement is effective as of the day and year first written above.
SELLERS
Dated: L Z
Dated: l 15 /,--o v Z
BUYER
CITY OF YUCAIPA, a municipal
corporation
Dated:
ATTEST:
Jennifer Crawford, City Clerk
Approved as to form:
RICHARDS, WATSON & GERSHON
David M. Snow, City Attorney
Raymond A. Casey, City Manager
-100-
I
EXHIBIT "A"
A.P.N.0318-143-12-0000
THAT PORTION OF THE EAST HALF OF THE SOUTH HALF OF BLOCK 34, ACCORDING TO MAP OF SUBDIVISION NUMBER 3 OF PART OF YUCAIPA VALLEY, IN THE CITY OF YUCAIPA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, RECORDED IN BOOK 19, PAGES I AND 2, OF MAPS; RECORDS OF SAID COUNTY, SAID PORTION MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE CENTERLINE INTERSECTION OF AVENUE E (FORMERLY ARIZONA
STREET) WITH THE CENTERLINE OF FIFTH STREET (FORMERLY SECOND AVENUE), PER SAID PLAT: THENCE ALONG THE CENTERLINE OF SAID FIFTH STREET NORTH 0°00'00" WEST 30.00 FEET; THENCE LEAVING SAID CENTERLINE OF FIFTH STREET NORTH 90°00'00" WEST 30.00 FEET TO A POINT OF INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY OF
SAID FIFTH STREET, SAID WESTERLY RIGHT-OF-WAY BEING PARALLEL WITH AND DISTANT 30.00 FEET WESTERLY OF SAID CENTERLINE OF FIFTH STREET, SAID POINT OF
INTERSECTION ALSO BEING A POINT OF INTERSECTION WITH THENORTHERLY RIGHT-OF- WAY OF SAID AVENUE E. SAID NORTHERLY RIGHT-OF-WAY BEING PARALLEL WITH AND DISTANT 30.00 FEET NORTHERLY OF SAID CENTERLINE OF AVENUE E, SAID POINT OF INTERSECTION BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY OF FIFTH STREET NORTH 0000'00" WEST 100.00 FEET; THENCE LEAVING SAID WESTERLY RIGHT-OF-WAY OF FIFTH STREET NORTH 90000'00" WEST 150.00 FEET; THENCE SOUTH 0°00'00" WEST 100.00 FEET TO A POINT OF INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY OF SAID .AVENUE E; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY NORTH 90000'00" EAST 150.00 FEET TO THE TRUE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL CONTAINS 15,000 SQUARE FEET.
THE BEARINGS FOR THIS DESCRIPTION ARE BASED UPON THE CENTERLINE OF AVENUE E, AS SHOWN ON SAID PLAT OF YUCAIPA VALLEY, HAVING A BEARING OF EAST.
EXHIBIT "B" IS ATTACHED HERETO AND IS MADE A PART HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME. l"'1
LANO
`1. �0RALPH M.
Q DOMINGUEZ
�r
i No. 5425
RALPH M. DO Ii�TGUEZ, P.L.S. N� Exp. 0,3Q-18
01---.1 % 0
-101-
i
►
►
�
i
1 1 -40'
BLOCK 34
►
►
A.P.N. 0318-143-11-0000
i
I
U
; N90'00'00'W 150,00'
w
—
`
'
30'
n
o
o
rr1
o
I
0 o
THE EAST HALF OF THE SOUTH
o
HALF OF BLOCK 34
dM
3 A•IAP OF SUBDIVISION NO.3 OF
w
o
PART OF YUCAIPA VALLEY
o
cc
o
M.B. 19, PAGES 1 AND 2, OF MAPS
�
t�
o
A.P.N.0318-143-12-0000
0 o
CCD D
N9C°CC'CO'W
30.00'
C
-----
N90°00'00'E 15C:00'
o
N00°00'0YEE
r
T.P.0.B.
30,00'
AVENUE E
TI TILE:
A.P.N.
0318-143-12-0000
RIV U-1
SURVF-Yii%lC-:
INDICATES AREA
OF
APN 318-143-12
7861 PERALTA RD., RANCHO CUCAMONGA CA 92377
15,000 S.F. (0.34 ACRES)
DATE OF
PREPARATION: 10-12-2016
17 -102-
Exhibit "C"
Grant Deed
18 -103-
RECORDING REQUESTED BY
AND WHEN RECORDED
RETURN TO:
City of Yucaipa
34272 Yucaipa Boulevard
Yucaipa, California 92399
Attention: City Clerk
[SPACE ABOVE FOR RECORDER'S USE ONLY]
Transfer Tax: S0.00
This transfer is for the benefit of the City of Yucaipa and is exempt from Recording Fees (Govt. Code § 27383), Filing Fees (Govt. Code § 6103), and Documentary Transfer Tax (Rev. & Tax. Code § 11922).
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt and sufficiency of which are hereby acknowledged, Delbert R. Kerber, Jr. and Debora J. Cervantes (together referred to as "Grantors") hereby grants, in fee, to the City of Yucaipa, a municipal corporation, the land described on Exhibit "A" and depicted in Exhibit `B" hereto and made a part hereof, together with all rights and appurtenances pertaining thereto.
IN WITNESS WHEREOF, the undersigned have executed this Grant Deed as of the date set forth below.
GRANTORS
Dated:
Delbert R. Kerber, Jr.
Dated:
By:
Debora J. Cervantes
19 -104-
CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT
A notary public or ct.Yer-r officer completing t1tu ce.-ftdcate tie; only the iderdlii'y of the individual who signed the docent tD wldch this certf cate 2z a't-ach&d, and rat th=- truthf*jlness, accura:,, or vaidiy of ii,as document
STATE OF C SIR & 1
COUN= O
On before me, Notarz
Public,
Date (Sere ir ev ramA and title of the cffcr--T)
personally appeared
who proved to me on the basis of satisfactory endence to be the persons) whose na=(s) isVare sub=ibed to the -%% iffim nigtrume t and admo ledged to me that he/,-he/flwv executed the same in l s;herlffieir authorized capaeffy(ies), and that by hss,rherltheir signature(s) on the instrument the per-son(s), or the entity upon behalf of w1-iidi the perscm(s) acted, executed the tt-strument I certify udder PENALTY OF PERJURY under the lark-s of the State of Ca.ifo=a that the foregoing paragraph is true and correct_
1=\TESS my hand and official seal -
Signature: (sea_D
OPTIONAL
Description of Attached Do-c—amen
Title or Type of Document: Dumber of Pages:
Document Bate: Other.
^I: 3r 51T.ro -T _3z 43-3�iJtT1 r l
-105-
CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate ands; the identify of the in&-idual -who signed the document to sid ch this ceraficate i attached, and not t1-L—: truthfuess, acc:La-n, or validity of that docmme fi
STY Or
before me, Notary
(EM i ert n=P azd title of the ate)
personally appeared
who proved to me on the basis of satisfactory e,ddence to be the person(s) v hose name(s) is/are subscaibed to the writhin irotnuaent and admowIedged to me that he ahefthey executed the same in ltAherltheir authorized capact y(ies), and that by l : rherltheir signature(s) can the instrument the person(s), or the entity upon behalf of iv I-ddi the person(s) acted, executed the ins lent_ I cer-,r cinder PENALTY 01~ PIRJLM under the lav s of the State of Ca!E-Eomia that the foregoing paragraph is true and correct_
my hand and official seat
OFTIOA
of cached Document
or Type of Document:
N=ber of Pages:
Document Date: Other_
-1 06-
EXHIBIT "A"
SAN BERNARDINO COUNTY ASSESSOR'S PARCEL NUMBER 0318-143-12-0000 THAT PORTION OF THE EAST HALF OF THE SOUTH HALF OF BLOCK 34, ACCORDING TO MAP OF SUBDIVISION NUMBER 3 OF PART OF YUCAIPA
VALLEY, IN THE CITY OF YUCAIPA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, RECORDED IN BOOK 19, PAGES 1 AND 2, OF MAPS, RECORDS
OF SAID COUNTY, SAID PORTION MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE CENTERLINTE INTERSECTION OF AVENUE E (FORMERLY
ARIZONA STREET) WITH THE CENTERLINE OF FIFTH STREET (FORMERLY SECOND AVENUE), PER SAID PLAT; THENCE ALONG THE CENTERLINE OF SAID FIFTH STREET NORTH 0000'00" WEST 30.00 FEET; THENCE LEAVING SAID CENTERLINE OF FIFTH STREET NORTH 90000'00" WEST 30.00 FEET TO A POINT
OF INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY OF SAID FIFTH
STREET, SAID WESTERLY RIGHT-OF-WAY BEING PARALLEL WITH AND DISTANT 30.00 FEET WESTERLY OF SAID CENTERLINE OF FIFTH STREET,
SAID POINT OF INTERSECTION ALSO BEING A POINT OF INTERSECTION WITH
THE NORTHERLY RIGHT-OF-WAY OF SAID AVENUE E, SAID NORTHERLY RIGHT-OF-WAY BEING PARALLEL WITH AND DISTANT 30.00 FEET
NORTHERLY OF SAID CENTERLINE OF AVENUE E, SAID POINT OF INTERSECTION BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY OF FIFTH STREET NORTH 0000'00" WEST 100.00 FEET; THENCE LEAVING SAID WESTERLY RIGHT-OF-WAY OF FIFTH STREET NORTH 90000'00" WEST 150.00 FEET; THENCE SOUTH 0°00'00" WEST 100.00 FEET TO A POINT OF INTERSECTION WITH THE NORTHERLY RIGHT- OF-WAY OF SAID AVENUE E; THENCE ALONG SAID NORTHERLY RIGHT-OF- WAY NORTH 90'00'00" EAST 150.00 FEET TO THE TRUE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL CONTAINS 15,000 SQUARE FEET.
THE BEARINGS FOR THIS DESCRIPTION ARE BASED UPON THE CENTERLINE
OF AVENUE E, AS SHOWN ON SAID PLAT OF YUCAIPA VALLEY, HAVING A BEARING OF EAST.
EXHIBIT "B" IS ATTACHED HERETO AND IS MADE A PART HEREOF. -107-
EXH[IBrF -"F
� �
'
I
1 1 "=40'
BLOCK 34
I '
A.P.N. 0318-143- 11-0000
cn
(T
N90000'00'W 150.00'
i
30' n
o
o
n
o
0 0
o
M
o THE EAST HALF OF THE SOUTH
i
o
HALF OF BLOCK 34
d�
3 MAP OF SUBDIVISION NO.3 OF
w
ao PART OF YUCAIPA VALLEY
o i
00 M.B. 19, PAGES 1 AND 2, OF MAPS
r�
o A.P.N.0319-143-12-0000
o
o
N90°00'00'W
z
Z
30,00'
N90°00'00'E 150.00'
-
o
� i
N00°00'00'E
c')
111
MOO'
AVENUE AVENUE E
TITLE:
A.P.N. 0318-143-12-000U
; �� z 4 - t
P
SURVEYING ®
INDICATES AREA OF
APN 318-143-12
7861 PERALTA RD., RANCHO CUCAMONGA CA 92377
15,000 S.F. (0.34 ACRES)
DATE OF
PREPARATION: 10-12-2016
1:
City of Yucaipa
34272 Yucaipa Boulevard
Yucaipa, CA 92399
CERTIFICATE OF ACCEPTANCE
(California Government Code § 27281)
(APN 0318-143-12 (por.))
This is to certify that the Grant of fee over a portion of the real property commonly known as 12494 5th Street, Yucaipa, California 92399, and identified as San Bernardino County Tax Assessor's Parcel Number 0318-143-12 granted by Delbert R. Kerber, Jr. and Debora J.
Cervantes, to the City of Yucaipa is hereby accepted by the undersigned officer on behalf of the City of Yucaipa under the authority of the City Council of the City of Yucaipa and the City of Yucaipa consents to the recordation thereof by its duly authorized officer.
Dated:
ATTEST:
Jennifer Crawford, City Clerk
Approved as to form:
RICHARDS, WATSON & GERSHON
David M. Snow, City Attorney
CITY OF YUCAIPA, a municipal
corporation
By:
Raymond A. Casey, City Manager
161
Exhibit "D"
Right of Entry and Access Agreement - Due Diligence and Construction Activities
RIGHT OF ENTRY AND ACCESS AGREEMENT - DUE DILIGENCE AND
CONSTRUCTION OF SITE IMPROVEMENTS AND PROJECT -
RELATED IMPROVEMENTS IN CONNECTION WITH AVENUE E
INTERSECTION PROJECT
(APN 0318-143-12)
THIS RIGHT OF ENTRY AND ACCESS AGREEMENT FOR DUE DILIGENCE AND
CONSTRUCTION OF SITE IMPROVEMENTS AND PROJECT -RELATED
IMPROVEMENTS IN CONNECTION WITH AVENUE E INTERSECTION PROJECT (APN 0318-143-12) ("Right of Entry") is made and entered into between Delbert R. Kerber, Jr. and Debora J. Cervantes ("Grantors") and the City of Yucaipa, a municipal corporation ("Grantee" or "City") and is effective as of the date it is fully executed by the Parry ("Effective Date").
RECITALS
A. Grantors are the record fee owner of that certain real property commonly known as 12494 5th Street, in the City of Yucaipa, California, and identified as San Bernardino County Tax Assessor's Parcel Number 0318-143-12 ("Property").
B. Grantors and Grantee have entered into a Purchase and Sale Agreement, Settlement Agreement and Joint Escrow Instructions related to the Property (the "Agreement"). Pursuant to the Agreement, the City seeks to acquire the Property described more particularly on Exhibit "A" and depicted on Exhibit `B" attached hereto and incorporated herein by this reference in connection with the AVENUE E INTERSECTION PROJECT ("Project"). This Right of Entry is only valid if the Parry enter into the Agreement.
C. Grantee has requested the Right of Entry upon and access to the Subject Property Interest for the purpose of undertaking tests (including but not limited to testing for asbestos and lead), inspections and other due diligence activities (herein called the "Due Diligence Activities") in connection with the proposed purchase of the Subject Property Interest by Grantee pursuant to the Agreement.
D. Grantor has agreed to grant to Grantee, and Grantee has agreed to accept from Grantor, a non-exclusive, revocable license to enter upon the Subject Property Interest to perform the Due Diligence Activities in accordance with the terms and provisions of this Right of Entry.
E. Grantor and Grantee desire to execute and enter into this Right of Entry for the purpose of setting forth their agreement with respect to the Due Diligence Activities and Grantee's entry upon the Subject Property Interest.
NOW, THEREFORE, for and in consideration of the above Recitals, the consideration set forth in the Agreement, the mutual covenants and agreements contained herein, and other good -110-
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantors and Grantee do hereby covenant and agree as follows:
1. Incorporation of Recitals. The above Recitals are incorporated herein by this reference.
2. Access and Construction Improvements by Grantee. Grantors hereby grant to Grantee, Grantee's employees, agents, contractors, representatives, consultants and other designees (referred to below collectively as "Grantee's Designees") a Right of Entry to the Property for construction of certain site improvements and Proj ect-related improvements discussed below, subject to all easements, encumbrances and claims of title affecting the Remainder Parcel for the purposes of access and construction of the improvements described in this Section 2. a. Subject to Grantee's compliance with the terms and provisions of this Right of Entry, until the earlier to occur of (i) 10 calendar days after the Effective Date of this Right of Entry, or (ii) the earlier termination of this Right of Entry, Grantee and Grantee's agents, employees, contractors, representatives and other designees (referred to below collectively as "Grantee's Designees") shall have the right to enter upon the Subject Property Interest for the purpose of conducting the Due Diligence Activities.
b. Grantee shall provide twenty-four hours telephonic notice to Grantor before entering the Subject Property Interest.
Grantee expressly agrees as follows: (i) any activities by or on behalf of Grantee, including, without limitation, the entry by Grantee or Grantee's Designees onto the Subject Property Interest in connection with the Due Diligence Activities shall not damage the Subject Property Interest in any manner whatsoever or disturb or interfere with the rights or possession of Grantor , (ii) in the event the Subject Property Interest is altered or disturbed in any manner in connection with the Due Diligence Activities, Grantee shall immediately return the Subject Property Interest to substantially similar conditions existing prior to the Due Diligence Activities, and (iii) Grantee, to the maximum extent allowed by law, shall indemnify, defend and hold Grantor harmless from and against any and all claims, liabilities, damages, losses, costs and expenses of any kind or nature whatsoever (including, without limitation, attorneys' fees and expenses and court costs) suffered, incurred or sustained by Grantor as a result of, by reason of, or in connection with the Due Diligence Activities or the entry by Grantee or Grantee's Designees onto the Subject Property Interest. Pursuant to this Right of Entry, Grantee and Grantee's Designees shall have the right to undertake environmental testing on the Subject Property Interest, including, but not limited to testing for asbestos and lead.
3. Lien Waivers. Upon receipt of a written request from Grantor, Grantee will provide Grantor with lien waivers following completion of the Due Diligence Activities, in form and substance reasonably satisfactory to Grantor and their counsel (if any), from each and every contractor, subcontractor, supplier, engineer, architect and surveyor who might have lien rights -111-
against the Subject Property Interest for work performed or commenced in connection with Grantee's Due Diligence Activities. To the extent permitted by applicable law, Grantee hereby indemnifies Grantor from and against any claims or demands for payment, or any liens or lien claims made against Grantor or the Subject Property Interest as a result of Grantee's Due Diligence Activities.
4. Insurance. Prior to entry onto the Subject Property Interest, Grantee shall, and shall cause all of Grantee's Designees performing the Due Diligence Activities to, procure or maintain a policy of commercial general liability insurance issued by an insurer reasonably satisfactory to Grantor covering each of the Due Diligence Activities with a single limit of liability (per occurrence and aggregate) of not less than $1,000,000.00, and upon written request by Grantor, Grantee shall provide Grantor with a copy of a certificate of insurance and copy of an additional insured endorsement naming Grantor as named additional insured, evidencing that such insurance is in force and effect, and evidencing that Grantor have been named as an additional insured there under with respect to the Due Diligence Activities. Such insurance shall be maintained in force throughout the term of this Right of Entry.
5. Successors. To the extent any rights or obligations under this Right of Entry remain in effect, this Right of Entry shall be binding upon and enforceable against, and shall inure to the benefit of, the Party hereto and their respective heirs, legal representatives, successors and permitted assigns.
6. Specific Rights And Privileges. By this document, Grantor does not hereby convey to Grantee any right, title or interest in or to the Subject Property Interest, but merely grants the specific rights and privileges set forth herein.
7. Notice to Tenant. Grantor declares that no tenant or third party has the right to occupy the Subject Property Interest. To the fullest extent permitted by law, Grantor will indemnify, defend and hold harmless Grantee, and its elected and appointed councilmembers, officials, officers, boards, commissions, consultants, agents, employees, and attorneys from and against any and all claims, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs, and expenses (including, without limitation, reasonable attorneys' fees, expert witness fees, disbursements and court costs) of every kind and nature whatsoever brought by any tenant or occupant of any portion of the Subject Property Interest that may arise out of, result from, or in any matter be related (directly or indirectly) to this Right of Entry.
8. Notices. Unless otherwise stated in this Agreement herein, all notices and demands will be given in writing by certified or registered mail, postage prepaid, and return receipt requested, or by overnight carrier. Notices will be considered given upon the earlier of (a) two business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, or (b) one business day following deposit with an overnight carrier service. A copy of all notices will be sent to Escrow Holder. The Party will address such notices as provided below or as may be amended by written notice:
-112-
GRANTEE: City of Yucaipa
34272 Yucaipa Boulevard
Yucaipa, California 92399-9950
Attention: Raymond A. Casey, City Manager
COPY TO: Richards, Watson & Gershon
350 S. Grand Avenue
37th floor
Los Angeles, California 90071
Attention: David M. Snow, City Attorney
GRANTORS: Ms. Delbert R. Kerber, Jr. and Debora J.
Cervantes
12494 5TH STREET
Yucaipa, CA 92399
Miscellaneous.
a. Authority to Bind Party and Execute Right of Entry. Grantor and Grantee represent and warrant to one another that this Right of Entry constitutes a binding obligation on each of them and that the person executing this Right of Entry is authorized to execute the Right of Entry on behalf of the respective parry and to bind it. b. Governing Law. This Right of Entry is deemed to have been prepared by each of the Parry hereto, and any uncertainty or ambiguity herein will not be interpreted against the drafter, but rather, if such uncertainty or ambiguity exists, will be interpreted according to the applicable rules of interpretation of contracts under the laws of the State of California, and not the substantive law of another state or the United States or federal common law. This Right of Entry will be deemed to have been executed and delivered within the State of California, and the rights and obligations of the Parry will be governed by, and construed and enforced in accordance with, the laws of the State of California.
C. Amendnient or Modification. This Right of Entry may be modified or amended only by a writing executed by all Party to this Right of Entry. d. Partial Invalidity/Severability. Each provision of this Right of Entry will be valid and enforceable to the fullest extent permitted by law. If any provision of this Right of Entry or the application of such provision to any person or circumstance is, to any extent, deemed to be invalid or unenforceable, the remainder of this Right of Entry, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to this Right of Entry. e. Successors -in -Interest and Assigns. This Right of Entry will be binding upon and will inure to the benefit of the successors -in -interest and assigns of the Party hereto, and each of them.
-113-
f. Legal Representation. The Party, and each of them, acknowledge that in connection with the negotiation and execution of this Right of Entry, they have each had the opportunity to be represented by independent counsel of their own choosing and the Parry executed the Right of Entry after review by such independent counsel, or, if they were not so represented, said non -representation is and was the voluntary, intelligent and informed decision and election of any of the Parry not so represented; and, prior to executing this Right of Entry, each of the Parry has had an adequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters that are the subject of this Right of Entry. g. Interpretation and Construction. Each party has reviewed this Right of Entry and each has had the opportunity to have its respective counsel and real estate advisors review and revise this Right of Entry. Any rule of construction to the effect that ambiguities are to be resolved against the drafting parry will not apply in the interpretation of this Right of Entry or any amendments or exhibits thereto. In this Right of Entry, the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words "person" and "party" include corporation, partnership, firm, trust, or association wherever the context so requires. The recitals and captions of the Sections and Subsections of this Right of Entry are for convenience and reference only, and the words contained therein will in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Right of Entry.
h. Counterparts, Facsimile & Electronic Signatures. This Right of Entry may be executed in whole or in counterparts which together will constitute the entire Right of Entry. Facsimile or electronic signatures/counterparts to this Right of Entry will be effective as if the original signed counterpart were delivered.
i. Fees and Costs. Each of the Parry will bear its own attorneys' fees and costs, including, but not limited to expert fees, incurred in connection with negotiating this Right of Entry. If either party hereto incurs attorneys' fees in order to enforce, defend or interpret any of the terms, provisions or conditions of this Right of Entry or because of a breach of this Right of Entry by the other party, the prevailing party, whether by suit, negotiation, arbitration or settlement will be entitled to recover reasonable attorneys' fees and costs from the other parry. j. Severability. If any part, term or provision of this Right of Entry is held by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining provisions will not be affected, and the rights and obligations of the Party will be construed and enforced as if this Right of Entry did not contain the particular part, term or provision held to be invalid.
[SIGNATURES ON NEXT PAGE]
-114-
IN WITNESS WHEREOF, Grantors and Grantee have executed this Right of Entry as of the date set forth below.
GRANTORS
Dated: Ze> Z By:
Dated: % Z By
GRANTEE
CITY OF YUCAIPA, a municipal
corporation
Dated:
ATTEST:
Jennifer Crawford, City Clerk
Approved as to form:
RICHARDS, WATSON & GERSHON
David M. Snow, City Attorney
Delbert R.!Kerber, Jr.
f I 1i
e ora J. V rvantes
Raymond A. Casey, City Manager
-115-
EXHIBIT "A"
A.P.N.0318-143-12-0000
THAT PORTION OF THE EAST HALF OF THE SOUTH HALF OF BLOCK 34, ACCORDING TO MAP OF SUBDIVISION NUMBER 3 OF PARTOFYUCAIPA VALLEY, INTHE CITY OF YUCAIPA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, RECORDED IN BOOK 19, PAGES I AND 2, OF MAPS, RECORDS OF SAID COUNTY, SAID PORTION MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE CENTERLINE INTERSECTION OF AVENUE E (FORMERLY ARIZONA
STREET) WITH TEE CENTERLINE OF FIFTH STREET (FORMERLY SECOND AVENUE), PER SAID PLAT; THENCE ALONG THE CENTERLINE OF SAID FIFTH STREET NORTH 0°00'00" WEST 30.00 FEET: THENCE LEAVING SAID CENTERLINE OF FIFTH STREET NORTH 90°00'00" WEST 30.00 FEET TO A POINT OF INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY OF
SAID FIFTH STREET, SAID WESTERLY RIGHT-OF-WAY BEING PARALLEL WITH AND DISTANT 30.00 FEET WESTERLY OF SAID CENTERLINE OF FIFTH STREET, SAID POINT OF
INTERSECTION ALSO BEING A POINT OF INTERSECTION WITH THE NORTHERLY RIGHT-OF-
WAY OF SAID AVENUE E, SAID NORTHERLY RIGHT-OF-WAY BEING PARALLEL WITH AND DISTANT 30.00 FEET NORTHERLY OF SAID CENTERLINE OF AVENUE E, SAID POINT OF INTERSECTION BEING THE TRUE POINT OF BEGINNING; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY OF FIFTH STREET NORTH 0000'00" WEST 100.00 FEET: THENCE LEAVING SAID WESTERLY RIGHT-OF-WAY OF FIFTH STREET NORTH 90`00'00" WEST 150.00 FEET; THENCE SOUTH 0°00'00" WEST 100.00 FEET TO A POINT OF INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY OF SAID AVENUE E; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY NORTH 90°00'00" EAST 150.00 FEET TO THE TRUE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL CONTAINS 15,000 SQUARE FEET.
THE BEARINGS FOR THIS DESCRIPTION ARE BASED UPON THE CENTERLINE OF AVENUE E, AS SHOWN ON SAID PLAT OF YUCAIPA VALLEY, HAVING A BEARING OF EAST.
EXHIBIT "B" IS ATTACHED HERETO AND 1S MADE A PART HEREOF.
THIS DESCRIPTION WAS PREPARED BY ME. —s
RALPH M. D0. INGUEZ, P.L.S. 0-0
PAS- LA N
O `S'C'
F LP M.
4 DOMINGUEZ
No. 5425
uA Exp, 9-30-18
��ofi reL�F
-116-
I
1 = 40'
FLOCK 34
I
i
A.P.N. 0318-143-11-0000
cr
�
I1
N90'00'00'W 150.00'
— — 7-
30'
0 0
r�
0 -+
0 0
I o
o
o
THE EAST HALF OF THE SOUTH
o
HALF OF BLOCK 34
d� 3
MAP OF SUBDIVISION NO. 3 OF
w
PART OF YUCAIPA VALLEY
o
M.B. 19, PAGES I AND 2, OF MAPS
o
a o
A.P.N.0318-143-12-0000
0 o
N90°00'00'W
z
z
30,00'
a:
— — �•
N90°00'00'E 150,00'
-----
I
N00°00'00'7-
T.P.O.B.
30,00'
AVENUE E
TI TLE:
A.P.N. 0318-143-12-0000
Rw-
7861 PERALTA RD., RANCHO CUCAMONGA CA 92377
DATE OF PREPARATION: 10-12-2016
INDICATES AREA OF
APN 318-143-12
15,000 S.F. (0.34 ACRES)
-117-