Attachment - Alameda County

Transcription

ALAMEDA COUNTY COMMUNITY DEVELOPMENT AGENCY
REDEVELOPMENT
AGENCY
AGENDA ITEM NO._ _ November 4, 2008
Chris Bazar
Agency Director
October 21, 2008
Eileen Dalton
Redevelopment Director
224
West Winton Ave
Room 110
Hayward
California
94544-1215
phone
510.670.5333
fax
510.670.6374
www.
acgov.orglcda
Honorable Board of Directors
Alameda County Redevelopment Agency
Administration Building
1221 Oak Street
Oakland, CA 94612
Dear Board Members:
SUBJECT:
Adopt a Resolution Making Findings, Authorize and Enter into
Two Real Estate Purchase and Sale Agreements for $1,890,000 to
Purchase Three Parcels Located at 20499 Mission Boulevard and
for $ 2,350,000 to Purchase Two Parcels Located at 20095 and
20097 Mission Boulevard; Authorize and enter into a Relocation
Settlement Agreement with Hayward Auto Imports, for $340,000;
and, Authorize Payment of Related Escrow, Due Diligence and
Post-Closing Fees
RECOMMENDATION:
That the Board of Directors:
1) Adopt a resolution making findings and authorize and enter into a real estate
Purchase and Sale Agreement with Said Barzegar and Kathleen M. Lyons
Barzegar (Barzegar) for $1,890,000 to purchase three parcels totaling 59,027
square feet located at 20499 Mission Boulevard (APN 414-0021-078, 414
0021-079, and 414-0021-080) in the unincorporated Cherryland community;
2) Adopt a resolution making findings and authorize and enter into a real estate
Purchase and Sale Agreement with Jack W. O'Connor, Arlene O'Connor,
Beatrice O. Banchero, and John Steven Banchero (O'Connor/Banchero) for
$2,350,000 to purchase two parcels totaling 25,878 square feet located at
20095 and 20097 Mission Boulevard (APN 414-0021-060 and 414-0021-061)
in the unincorporated Cherryland community;
Board of Directors
October 21, 2008
Page 20f3
3) Authorize and enter into a Relocation Settlement Agreement with Hayward Auto
Imports for the sum of $340,000; and
4) Authorize funding of related escrow fees estimated in the amount not to exceed
$20,000, and related land inspection due diligence and post-closing fees in the amount
not to exceed $200,000.
DISCUSSION I SUMMARY:
The Redevelopment Agency proposes to purchase five adjacent parcels (the Mission Boulevard
Property) that are located in the Cherryland community portion of the County of Alameda
City of San Leandro Joint Redevelopment Project. The site has an excellent location for
neighborhood-serving retail, or as a potential community center site. Three of the five parcels
are owned by Barzegar and two of the parcels are owned by O'Connor/Banchero, but were
operated as one car dealership (most recently Hayward Auto Imports). The total purchase
price for five parcels that comprise the Mission Boulevard Property is $4,240,000. In addition
to the purchase price, the Agency shall pay to Hayward Auto Imports, the sum of $340,000 as
full consideration and compensation for redevelopment required relocation benefits and the
termination of the leasehold interest created by the two existing leases associated with the
parcels. The Agency retained the services of both a certified real estate and a redevelopment
relocation benefits appraiser that substantiated the acquisition purchase price and relocation
settlement with Fair Market Value.
The main business district for the Cherryland community is comprised of eight blocks that run
along Mission Boulevard starting at the 1-238 overpass south to Rufus Court. The primary retail
comer for this area is the intersection of Mattox Road and Mission Boulevard. This site that
the Agency proposes to purchase sits at the northwest corner of this intersection. This
neighborhood serving retail area has declined in terms of economic vitality and in physical
appearance over the past 20 years, losing both its local grocery store and drug store. Securing
this catalyst site would provide a prime opportunity to assist in jump starting the revitalization
of the Cherryland retail corridor. Thus the Agency will utilize funds from the Cherryland Sub
Area of the Eden Area Redevelopment Project (Project Area) to purchase the Mission
Boulevard Property. This revitalization effort will help to serve the goals and objectives for the
Cherryland community as are set forth in the Redevelopment Plan and consistent with the
Implementation Plan for the Project Area. The Cherryland Redevelopment Citizen Advisory
Committee has recommended that the Board approve the use of Tax Increment Funds from the
Cherryland Sub-Area for acquisition of the Mission Boulevard Property.
The Purchase and Sale Agreements allow for the Agency to provide a refundable deposit of
$25,000 to both Barzegar and O'Connor/Banchero for a 60-day physical inspection period to
ascertain the physical condition of the parcels. The deposits will be applied to the purchase
price, if the condition is found to be satisfactory. On October 6,2008, the Alameda County
Planning Commission found and determined, in accordance with Government Code Section
Board of Directors
October 21,2008
Page 3 of3
65402, that the acquisition of the Mission Boulevard Property as contemplated in these
Resolutions and the Purchase and Sale Agreements conform to the General Plan.
The Agency has complied with the requirements of the California Environmental Quality
Action ("CEQA") in the following manner: In connection with approval of the Ashland
Cherryland Business Districts Specific Plan (Specific Plan), the County prepared and the
Board of Supervisors approved a Negative Declaration pursuant to the requirements of CEQA
that determined that the adoption and implementation of the Specific Plan would not result in
the occurrence of any unmitigated significant environmental impacts. The acquisition of the
Mission Boulevard Property pursuant to the Purchase and Sale Agreements is consistent with
and in furtherance of the General Plan and the Specific Plan, and any future use of the Mission
Boulevard Property must be consistent with and in furtherance of the General Plan and the
Specific Plan. After the Agency interacts with the community to evaluate the ultimate re-use
of the site, the Agency will return to the Board regarding disposition of the site.
FINANCING:
The proposed funding for the purchase of land will be funded through Tax Increment from the
Cherryland Sub-Area of the Eden Area Redevelopment Project. There will be no Net County
Cost as a result of this action.
Very truly yours,
Chris Bazar, Executive Director
Alameda County Redevelopment Agency
cc:
Susan Muranishi, CAO
Brian Washington, Office of the County Counsel
UB Singh, CDA
Eileen Dalton, RDA
Pat O'Connell, Auditor-Controller
PURCHASE AND SALE AGREEMENT
(20499 Mission Boulevard/Cherryland District)
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made this _ _ day
of
, 2008 by and between the Redevelopment Agency of the County of Alameda, a public
body corporate and politic (the "Agency"), and Said Barzegar and Kathleen M. Lyons-Barzegar,
husband and wife as community property with a right of survivorship (the "Owner"), with reference
to the following:
A.
The Owner owns real property located in the Cherryland District, an unincorporated
area of Alameda County, California, commonly known as 20095 Mission Boulevard (Assessor's
Parcel Nos. 414-0021-078, 414-0021-079, and 414-0021-080). The Owner desires to sell to the
Agency this real property, as more particularly described in the attached Exhibit A, together with all
rights, privileges, and easements appurtenant to the real property, including without limitation, all
governmental and other approvals, permits, licenses, development rights and entitlements, air rights,
water, water rights, minerals, mineral rights, oil, gas and other hydrocarbon substances, utility and
other permits relating to the real property, as well as any other rights-of way, easements, and
appurtenances used in connection with the beneficial use and enjoyment of the real property
(collectively, the "Property").
B.
The Property is located within the unincorporated portion of the County of
Alameda-City of San Leandro Joint Redevelopment Project Area (the "Project Area") established
under the Redevelopment Plan for the Project Area jointly adopted by the County of Alameda
Board of Supervisors and the City of San Leandro City Council (as amended from time to time, the
"Redevelopment Plan"), and within the redevelopment jurisdiction of the Agency.
C.
The Agency is vested with responsibility pursuant to the Community Redevelopment
Law (Part 1 of Division 24 of the Health and Safety Code of the State of California) to implement
the Redevelopment Plan in and for the benefit of the unincorporated portion of the Project Area.
D.
The Agency desires to acquire the Property from the Owner by voluntary purchase
for use in a manner consistent with the Redevelopment Plan.
E.
Concurrently with execution of this Agreement, the Agency has entered into a
purchase and sale agreement (the "Adjacent Property Purchase and Sale Agreement") for the
purchase ofthe adjacent property (Assessor's Parcel Nos. 414-0021-060 and 414-0021-061) (the
"Adjacent Property") with the owner thereof (the "Adjacent Property Owner").
F.
Hayward Auto Imports, Inc., a California corporation ("Hayward Auto Imports"),
has entered into the following currently effective leases pursuant to which it operated a new and
used vehicle sales business on the Property and the Adjacent Property prior to July 1, 2008:
1.
A lease with the Owner for the Property dated September 1, 2004 (as
amended, the "Property Lease"); and
1
Barzegar
2
A lease with the Adjacent Property Owner for the Adjacent Property dated
September 14, 1999 (as amended, the "Adjacent Property Lease").
The Property Lease and the Adjacent Property Lease (together, the "Leases") grant
Hayward Auto Imports a currently unexpired leasehold interest in the Property and the Adjacent
Property, respectively. The Owner and Hayward Auto Imports have provided the Agency with a
true and correct copy of the current Property Lease.
G.
Concurrently with execution of this Agreement, the Agency and Hayward Auto
Imports have entered into an all-inclusive settlement agreement (the "Hayward Auto Imports
Agreement") whereby the Agency shall make an all-inclusive settlement payment to Hayward Auto
Imports to compensate for any relocation and business good will benefits to which Hayward Auto
Imports may be entitled, and in consideration for which Hayward Auto Imports shall, among other
matters, terminate, quit claim, relinquish, release and reconvey the Leases and any right, title or
interest that Hayward Auto Imports may have in the Property and the Adjacent Property.
H.
As further provided in this Agreement, the Agency's obligation to acquire the
Property pursuant to this Agreement is subject to and conditioned upon the Agency's simultaneous
acquisition of the Adjacent Property from the Adjacent Property Owner, and the simultaneous
termination by Hayward Auto Imports of the Leases and any other interests it may have in the
Property and the Adjacent Property (through execution by Hayward Auto Imports of quit claim
deeds or other documents reasonably acceptable to the Agency against the Property and the
Adjacent Property (together, the "Quit Claim Deeds")), so that the Agency will take and have
simultaneous ownership and possession of both the Property and the Adjacent Property free and
clear of any interests of the Owner, Hayward Auto Imports, and the Adjacent Property Owner.
THEREFORE, the Agency and the Owner (the "Parties") agree as follows:
Section 1.
RIGHTS.
PURCHASE AND SALE; TERMINATION OF ADJACENT PROPERTY
The Owner agrees to sell the Property to the Agency, and the Agency agrees to purchase the
Property from Owner, subject to the terms and conditions set forth in this Agreement.
Section 2.
PURCHASE PRICE.
(a)
Purchase Price. The purchase price for the Property shall be One Million
Eight Hundred Ninety Thousand Dollars ($1,890,000) (the "Purchase Price").
(b)
Full Release of All Claims. The Owner understands and agrees that the
amounts to be paid to the Owner pursuant to this Agreement are in full settlement of all claims the
Owner could have made against the Agency in connection with or related to the Agency's
acquisition of the Property and the Adjacent Property, including but not limited to, claims for
compensation for the Property, improvements on or interests in the Property, severance damages,
any amounts for relocation benefits and/or assistance pursuant to Government Code Sections 7260
2
Barzegar
et seq., loss of goodwill, owner participation rights, business tenant preference rights, inverse
condemnation, unreasonable pre-condemnation activities, interest, costs, and litigation expenses.
Except as provided in this Agreement, the Owner shall not be entitled to receive and hereby waives
all rights to receive any compensation, damages, or other amounts by reason of such claims and
releases the Agency from any claim or cause of action for any damage related to the Agency's
acquisition of the Property and the Adjacent Property.
Section 3.
DEPOSITS; PAYMENT OF PURCHASE PRICE.
(a)
Physical Inspection Period Refundable Deposit. Upon execution of this
Agreement, the Agency shall deposit into Escrow (as defined in Section 4) the amount of Twenty
Five Thousand Dollars ($25,000) (the "Physical Inspection Period Refundable Deposit"). If, prior
to the expiration of the Physical Inspection Period (as defined in Section 6(a», the Agency provides
the Owner with a Physical Condition Dissatisfaction Notice (as defined in Section 6(f), such that
this Agreement is terminated as further provided in Section 6(f), the Physical Inspection Period
Refundable Deposit and any interest earned thereon shall be promptly returned to the Agency.
(b)
Interest. The Physical Inspection Period Refundable Deposit shall be
deposited into an interest bearing account to be held by the Title Company (as defined in Section 4),
and all interest earned thereon shall become part of the Physical Inspection Period Refundable
Deposit.
(c)
Payment of Purchase Price. The Physical Inspection Period Refundable
Deposit and any interest earned thereon shall be credited toward the Purchase Price and paid to the
Owner at the time of the Closing. The remaining Purchase Price shall be paid in cash at the
Closing.
Section 4.
OPENING ESCROW.
Promptly following execution of this Agreement, the Parties shall open an escrow (the
"Escrow") with the Oakland Office of Chicago Title Company (the "Title Company") for
conveyance of the Property to the Agency and completion of the transactions contemplated by this
Agreement. The Parties shall provide escrow instructions to the Title Company consistent with this
Agreement.
Section 5.
CLOSE OF ESCROW AND CONDITIONS TO CLOSE OF ESCROW.
The Escrow for the conveyance of the Property shall close (the "Closing") within thirty (30)
days following the expiration of the Physical Inspection Period (as defined in section 6(a»,
provided all conditions precedent to the Closing set forth in this Agreement have been met. The
Closing date may be extended by mutual agreement of the Parties. At the Closing, the Owner shall
convey the Property to the Agency, and the Agency shall pay the Purchase Price to the Owner. At
the Closing, the Property shall be conveyed to the Agency by grant deed substantially in the form
attached to this Agreement as Exhibit B (the "Grant Deed").
3
Barzegar
The following are conditions to the Closing, which conditions may be waived solely by the
Agency:
(a)
Title to the Property is in the condition described in Section 8 below;
(b)
The representations and warranties of the Owner set forth in Section 11
below remain true and correct;
(c)
The Agency does not deliver to the Owner a Physical Condition
Dissatisfaction Notice prior to the expiration of the Physical Inspection Period, as further provided
in Section 6(f);
(d)
The Agency simultaneously closes upon and acquires the Adjacent Property
pursuant to the Adjacent Property Purchase and Sale Agreement;
(e)
Hayward Auto Imports executes, and there is recorded against the Property
and the Adjacent Property, the Quit Claim Deeds pursuant to the Hayward Auto Imports
Agreement; and
(f)
The Owner has made all legally required disclosures in writing to the Agency
within fifteen (15) calendar days after the Effective Date, and has promptly updated any such
disclosures as necessary through the Closing.
Section 6.
PHYSICAL INSPECTION PERIOD; RIGHT OF ENTRY.
(a)
The Agency's obligation to purchase the Property is contingent on the
Agency making a determination, within sixty (60) days following the Effective Date (the "Physical
Inspection Period") that the Agency is satisfied with the physical conditions of the Property, all as
fully set forth in this Section 6.
(b)
During the Physical Inspection Period, the Agency shall have the right to:
(1)
conduct such engineering, feasibility, seismic surveys and other
studies regarding the condition of the Property which the Agency deems prudent;
(2)
conduct such environmental audits and studies regarding the
environmental conditions of the Property which the Agency deems prudent; and
(3)
conduct such pest and structural inspections and related inspections of
the Property which the Agency deems prudent.
(c)
The Owner hereby grants the Agency, and the Agency's employees,
representatives, and agents, a right of entry during the Physical Inspection Period (and such other
times mutually acceptable to the Parties) to enter the Property for the purposes of conducting
examinations and investigating the Property. During regular business hours, the Owner shall
provide the Agency reasonable access to the Property, including all improvements, for the purpose
4
Barzegar
of conducting examinations. The Agency shall notify the Owner and obtain the Owner's approval,
which approval shall not be unreasonably withheld, prior to inspecting the Property or conducting
any invasive testing of the Property. The Agency shall cooperate with the Owner and make diligent
efforts to ensure that any such access results in a minimum of disruption of the Owner's ongoing
operations on the Property. The Agency shall repair any damage to the Property caused by the
Agency's inspections and tests and shall restore the Property to the condition existing as of the date
of the inspection; provided, however, the Agency shall have no obligation to repair any damage to
the Property which is revealed (but not caused by) such inspection. The Agency shall not have any
liability to the extent incurred by the Owner as a result of the discovery by the Agency of any
existing state of facts relating to the Property. Any reports generated pursuant to this Section shall
be given to the Owner if the Agency elects to terminate this Agreement pursuant to Section 6(f).
(d)
Within fifteen (15) days following the Effective Date (and in addition to the
documents previously provided to the Agency or otherwise required by law to be provided to the
Agency by the Owner), the Owner shall deliver or make available to the Agency the following
information related to the Property (all of which may be duplicated by the Agency in its discretion)
for the Agency's review and approval:
(1)
any and all third party reports, studies and investigations related to the
Property's physical condition or the physical condition of any structure on the Property including
environmental conditions, soils reports, seismic reports or inspection reports;
(2)
any architectural plans and drawings, record of survey, and
specifications for the Property (if available);
(3)
all service and maintenance contracts with respect to the Property;
(4)
any public sector notices related to the Property; and
(5)
any records relating to any lawsuits pending against the Owner, its
agents or employees in connection with the ownership, operation, or management of the Property.
(6)
The Owner's obligation to promptly provide such documents to the
Agency shall be ongoing through the Closing.
(e)
The Owner shall complete and deliver, within fifteen (15) days after the
Effective Date, all legally required disclosures regarding the Property. The Owner shall promptly
update any such disclosures as necessary through the Closing.
(f)
The Agency, acting in its sole discretion, shall have until 5:00 p.m. (Pacific
Time) on the expiration date of the Physical Inspection Period to notify the Owner of the Agency's
dissatisfaction with the Property by providing written notice to the Owner pursuant to this section (a
"Physical Condition Dissatisfaction Notice"). If the Agency fails to timely give such Physical
Condition Dissatisfaction Notice, the contingency set forth in this Section 6 shall be deemed
satisfied. If the Agency does provide a timely Physical Condition Dissatisfaction Notice, then this
Agreement shall be terminated, the Physical Inspection Period Refundable Deposit and any interest
5
Barzegar
earned thereon shall be promptly returned to the Agency, and thereafter neither Party shall have any
further rights or obligations under this Agreement, except that any provision of this Agreement that
is specified to survive termination of this Agreement shall remain in effect and binding on the
Parties.
Section 7.
[INTENTIONALLY OMITTED.]
Section 8.
STATUS OF TITLE.
The Owner covenants and agrees to cause the title to the Property to be such that, at the
Closing, the Title Company is prepared to deliver to the Agency a standard coverage CLTA policy
of title insurance, with such endorsements as may be reasonably requested by the Agency, in the
amount of the Purchase Price insuring fee title to the Property vested in the Agency free and clear of
any liens, encumbrances and interests, or other clouds on title except the following ("Approved
Exceptions"):
(a)
Non-delinquent general, special and supplemental taxes (including, without
limitation, any community facilities district assessments), bonds and assessments;
(b)
Any liens or encumbrances created by or at the request of the Agency with
the Owner's prior written consent;
(c)
Items 3, 4, 5, and 6 as shown on the First American Title Company
preliminary title report, Order No. 0120-3087228, dated May 12,2008; and
(d)
Any other matter approved by the Agency in writing.
The Agency agrees to cooperate with the Owner, without cost to the Agency, to ensure that
title to the Property is in the above condition at the Closing.
Section 9.
ESCROW; COSTS AND PRORATIONS.
(a)
Prior to the Closing, the Owner and the Agency shall make the deliveries into
Escrow set forth in this Section 9.
(b)
The Owner hereby covenants and agrees to deliver or cause to be delivered to
the Title Company, on or prior to the Closing, the following instruments and documents:
(1)
a good and sufficient Grant Deed, substantially in the form set forth in
the attached Exhibit B, properly executed and acknowledged by the Owner in favor of the Agency,
the delivery and recordation of which shall vest in the Agency fee title in and to the Property;
(2)
a FIRPTA certificate, duly and validly executed by the Owner in
favor of the Agency, certifying that the Owner is not a "foreign person", as that term is defined in
Section 1445(f) of the Internal Revenue Code of 1986, as amended;
6
Barzegar
(3)
a certificate duly and validly executed by the Owner in favor of the
Agency as required under California Revenue and Taxation Code Sections 18805 and 26131;
(4)
such proof of the Owner's authority and authorization to enter into
this Agreement and the transactions contemplated hereby, and such proof of the power and
authority of the individual(s) executing and/or delivery any instruments, documents or certificates
on behalf of the Owner to act for and bind the Owner as may be reasonably required by the Title
Company; and
(5)
any funds necessary for the Owner's share of the Closing costs.
(c)
The Agency hereby covenants and agrees to deliver or cause to be delivered
to the Title Company, on or prior to the Closing, the following instruments and documents:
(I)
such proof of the Agency's authority and authorization to enter into
this Agreement and the transaction contemplated hereby, and such proof of the power and authority
of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf
of Agency to act for, bind the Agency and accept conveyance of the Property as may be reasonably
required by the Title Company; and
(2)
the Purchase Price (net of the Physical Inspection Review Period
Refundable Deposit and any interest earned thereon that is already held in Escrow), and any
additional funds necessary for the Agency's share of the Closing costs.
(d)
At the Closing, the Title Company shall record the Grant Deed conveying the
Property to the Agency, issue to the Agency the title policy referred to in Section 8, and deliver cash
in the amount of the Purchase Price to the Owner or to such person or entity as the Owner may
direct.
(e)
The following costs and expenses shall be borne or prorated as follows at the
Closing:
(I)
Property taxes and special assessments shall be prorated at the
Closing based on the most current real property tax bill available, including any escaped property
taxes which may be assessed after the Closing pertaining to the period prior to transfer of title to the
Agency, regardless of when notice thereof is delivered or who receives such notice. In the event the
Property is subject to property taxes that have not yet been assessed but that are attributable to the
period of time prior to the Agency's acquisition of the Property, the Owner agrees that the
reasonable estimate of the property taxes as determined by the Owner and the Agency shall be
deducted from the proceeds of sale paid to the Owner at the Closing and deposited in an escrow
account to be held by the Title Company. The funds in the escrow account shall be released to pay
any property tax bills that may be received after the Closing but that are attributable to the period of
time prior to the Agency's acquisition of the Property.
(2)
All installments of any bond or assessment that is a lien (determined
as of the Closing) which installments become due before Closing shall be paid by Owner on or
7
Barzegar
before Closing. In no event will Owner be required to prepay any bonds or assessments on the
Property.
(3)
The Agency shall pay all title insurance costs and premiums charged
in connection with the issuance of the title policy referred to in Section 8.
(4)
Owner and the Agency.
(5)
All property transfer taxes, if any, shall be shared equally between the
All Escrow fees shall be shared equally between the Owner and the
Agency.
(6)
The Owner and the Agency shall each pay their own legal fees and
expenses incurred in connection with the transaction contemplated by this Agreement.
(7)
The Owner shall bear all costs of causing the condition of title to the
Property to be as set forth in Section 8.
Section 10.
POSSESSION; REMOVAL OF PERSONAL PROPERTY.
(a)
The Owner shall deliver possession of the Property with all permanent real
property improvements existing on the Property to the Agency at the Closing.
(b)
Prior to the Closing and without cost to the Agency, the Owner shall cause
Hayward Auto Imports to remove from the Property all personal property, furniture, fixtures, and
equipment of any type, nature, and description, including, without limitation, all above-ground
automotive lifts, reel hosing fluid delivery systems, oil delivery systems, oil and all other fluid
storage drums, outdoor canopies, all other automotive servicing tools and equipment, all movable
storage shelving units, computer system components, and office furniture (collectively, the
"Personal Property"). If the obligation set forth in the preceding sentence is not satisfied at the time
of the Closing, the Agency may elect to proceed with the Closing or to delay the Closing until the
obligation set forth in the preceding sentence is satisfied.
Section 11.
OWNER'S REPRESENTATIONS AND WARRANTIES.
Notwithstanding any other provision contained in this Agreement, the Owner hereby
represents and warrants the matters set forth below to be true to the best of Owner's knowledge as of
the date of this Agreement and as of the Closing.
(a)
The Owner has provided to the Agency all reports, documents and
information in Owner's possession regarding the Property, and such reports, documents and
information are and shall be, to the best of the Owner's knowledge, complete, true and correct.
(b)
To the best of the Owner's knowledge there are no Hazardous Materials on
the Property. For the purposes of this Agreement, the term "Hazardous Materials" shall include,
without limitation any hazardous or toxic materials, substances or wastes, such as:
8
Banegar
(1)
substances defined as "hazardous substances", "hazardous materials"
or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 USC Section 9601, et seq.) and/or the Hazardous Materials
Transportation Act (49 USC Section 1801, et seq.), as either of such acts are amended from time to
time;
(2)
those materials identified in Sections 66680 through 66685 and
Sections 66693 through 66740 of Title 22 of the California Administrative Code, Division 4,
Chapter 30, as amended from time to time;
(3)
those materials defined in Section 25501(j) of the California Health
and Safety Code, as amended from time to time;
(4)
any materials, substances or wastes which are toxic, ignitable,
corrosive or reactive and which are regulated by any local governmental authority, any city of the
State of California or any agency of the United States Government;
(5)
asbestos, petroleum and petroleum based products, urea formaldehyde
foam insulation, polychlorinated biphenyls (PCBs), and freon and other chlorofluorocarbons; and
(6)
those substances defined as any of the foregoing in the regulations
adopted and publications promulgated pursuant to each of the aforesaid laws.
(c)
The Owner has the legal power, right and authority to enter into this
Agreement and the instruments and documents referenced in this Agreement, and to consummate
the transaction contemplated hereby.
(d)
Neither the execution of this Agreement nor the consummation of the
transaction contemplated hereby shall result in a breach of or constitute a default under any
agreement, instrument, or other obligation to which the Owner is a party or by which the Owner or
the Property may be bound.
(e)
There is no claim, action, litigation, arbitration or other proceeding pending
or threatened against the Owner which relates to the Property or the transactions contemplated
hereby or which could result in the imposition of a lien against the Property or have an adverse
effect on the Property or the operation of the Property. If the Owner receives notice of any such
claim, litigation, arbitration or proceeding prior to the Closing, the Owner shall promptly notify the
Agency of the same in writing.
(f)
There is no pending or threatened condemnation or similar proceeding
affecting the Property, or any portion thereof, nor does the Owner have any knowledge that any
such action is contemplated.
(g)
There will be no management agreements, contracts, warranties, guaranties,
bonds or other agreements which will affect or will be obligations of the Agency or the Property
9
Barzegar
which cannot be terminated on thirty (30) days prior notice, including without limitation,
maintenance contracts, design services contracts, construction contracts, architects agreements,
parking agreements other than as disclosed to Agency or as specifically approved by Agency.
(h)
As ofthe date of this Agreement and the Closing, the Property Lease is on
the terms set forth in the Property Lease delivered to the Agency pursuant to Section 12. As of the
date of this Agreement and continuously through the Closing, there are no tenants on the Property
other than Hayward Auto Imports pursuant to the Property Lease. In the event any of the
representations or warranties contained in this subsection (h) is breached, the Agency's damages
shall include recovery from the Owner of any compensation or benefits that the Agency is required
to pay to the person or entity in connection with the Agency's acquisition of that person or entity's
interest in the Property and relocation from the Property, including but not limited to payments
under the Relocation Law (Government Code Sections 7260 et seq.), but only to the extent that the
amount so paid exceeds the amount the Agency would have paid absent the breach of warranty or
representation.
(i)
To the best of the Owner's knowledge, neither the Property nor the Owner is
in violation of, and the Owner has not received any written notice of any violation of, any law,
ordinance, regulation, order or requirement applicable to the Property, including without limitation,
requirements imposed under any recorded covenants, conditions, restrictions, easements or other
rights affecting the Property. Ifthe Owner receives such a notice prior to the Closing, the Owner
shall immediately notify Agency.
(j)
All permits, licenses, certificates, entitlement, grants of right and any other
approval required for the Owner's ownership, use and occupancy of the Property shall have been
obtained from all appropriate authorities.
(k)
The Owner has no right, title or interest of any kind in or to the Adjacent
Property.
During the term of this Agreement, the Owner shall have a continuing duty to notify the
Agency of any material facts in the Owner's knowledge which would render any of the
representations or warranties set forth above false. Such duty shall not, however, abrogate nor limit
the Agency's independent obligation to perform its own investigation into the Property. In the
event that the Agency discovers at any time prior to the Closing that any of the representations or
warranties set forth above are false, the Agency's sole remedy (except in the event of intentional
fraud on the Owner's part) shall be the right to terminate this Agreement and recover the total
amount of the Physical Inspection Period Refundable Deposit and any interest earned thereon,
notwithstanding any other provision to the contrary in this Agreement. In the event that the Agency
learns that an Owner representation or warranty might be untrue prior to the Closing, and the
Agency elects to purchase the Property anyway, then, and in that event, the Agency shall
conclusively be deemed to have waived any right it may have to bring an action or proceeding
against the Owner regarding said representation or warranty.
10
Barzegar
Section 12.
EXISTING TENANT.
The Parties understand and agree that as of the Effective Date, the Property is subject to only
one leasehold interest consisting of the Property Lease with Hayward Auto Imports. Prior to
execution of this Agreement, the Owner provided the Agency with a true and correct copy of the
Property Lease. It is the intention of the Parties that the Agency shall provide Hayward Auto
Imports with any relocation benefits to which it may be entitled in accordance with the terms of the
Hayward Imports Agreement. The Owner shall not, prior to the Closing, rent out any space in the
Property that is currently or subsequently becomes vacant, nor shall the Owner authorize or permit
an assignment or other transfer of any rights under the Property Lease from Hayward Auto Imports
to any other person or entity. The Owner shall not extend the term of the Property Lease or
otherwise modify the provisions of the Property Lease. The Owner shall not evict Hayward Auto
Imports prior to the Closing other than for failure to pay rent or other default or failure of Hayward
Auto Imports.
Section 13.
INDEMNIFICATION.
(a)
The Owner hereby agrees to defend, indemnify and hold the Agency and its
board members, employees, representatives, agents, and attorneys harmless from and against any
and all claims, liens, demands, losses, damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings and orders, and all costs incurred in connection therewith (including
without limitation actual attorneys' fees and costs of experts and consultants) arising from:
(l)
any obligation of the Owner not expressly assumed by the Agency;
(2)
personal injury or property damage relating to the Property which
occurred prior to the Closing and not caused by the acts or omissions of the Agency or the Agency's
agents, employees, or invitees;
(3)
the breach of any of the Owner's representations made under this
Agreement; and
(4)
the release or presence of hazardous materials on the Property that
existed prior to the Closing.
(b)
The Agency hereby agrees to defend, indemnify, and hold the Owner
harmless from and against any and all claims, liens, demands, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders, and all costs incurred in
connection therewith (including without limitation actual attorneys' fees and costs of experts and
consultants) arising from personal injury or property damage relating to the Property which occurs
after the Closing or as a direct result of the Agency's acts or omissions.
(c)
The indemnifications contained in this Section 13 shall survive the
termination of this Agreement.
11
Barzegar
Section 14.
CASUALTY.
If, prior to the Closing, the Owner becomes aware that all or any material portion of the
Property has been destroyed or substantially damaged, then the Owner shall promptly give the
Agency notice thereof, and the Agency, at its option, may terminate this Agreement upon written
notice to Owner not later than fifteen (15) days after receipt of Owner's notice thereof, which notice
shall contain an estimate of the repair costs and an estimate of insurance payments to be made to
Owner. If this Agreement is terminated pursuant to this Section 14, the Parties shall be relieved and
released of and from any further duties, obligations, rights, or liabilities under this Agreement, and
notwithstanding any other provision of this Agreement, the Physical Inspection Period Refundable
Deposit and any interest earned thereon shall be returned to the Agency. If the Agency fails to
deliver timely notice of its election to terminate this Agreement pursuant to this Section 14, then
this Agreement shall remain in full force, the transfer of the Property shall be consummated as
contemplated by this Agreement without adjustment in the Purchase Price, and at the Closing the
Owner shall assign to the Agency all ofthe Owner's right, title, and interest in and to any insurance
proceeds resulting from any casualty.
Section 15.
BROKER'S COMMISSION.
Except as set forth in the following sentence, the Agency and the Owner each represent to
the other that they have not dealt with any real estate broker or agent in relation to this transaction.
The Owner represents and covenants to the Agency that it has retained the services of Greg Berry of
Grubb & Ellis (the "Broker") as its broker, and that the Owner shall be solely responsible for any
and all compensation to the Broker in connection with this transaction. The Agency and the Owner
(each, reciprocally, as an "Indemnitor") agree to indemnify and hold the other (as "Indemnitee")
harmless from all expense, loss, damage and claims, including the Indemnitee's attorneys' fees, if
necessary, arising out the Indemnitor's breach of the foregoing representation and covenant. The
indemnifications set forth in this Section 15 shall survive termination of this Agreement.
Section 16.
NOTICES.
All notices required or permitted under this Agreement shall be in writing. Unless otherwise
provided herein, any notice, tender or delivery to be given pursuant to this Agreement by either
party may be accomplished by personal delivery, by first class certified mail, return receipt
requested, by delivery via an overnight courier which guarantees next day delivery, or by facsimile
delivery with simultaneous delivery by first class mail. Any notice delivered by certified mail,
return receipt requested shall be deemed received on the date of delivery reflected on the return
receipt. Any notice delivered by overnight shall be deemed received one (1) business day after
deposit thereof with the overnight courier. Any notice delivered by facsimile shall be deemed
received one (1) business day after its transmission, provided that written confirmation of receipt is
received and the notice is contemporaneously deposited in the United States Mail, first class, with
postage affixed. Mailed notices shall be addressed as set forth below, but each Party may change its
address by written notice in accordance with this Section 16, on not less than ten (10) days prior
written notice.
12
Barzegar
To Agency:
Redevelopment Agency of the County of Alameda
224 West Winton Avenue, Room 110
Hayward, CA 94544
Attn: Executive Director
To Owner:
Said and Kathleen Barzegar
1055 Mountain Shadows Road
San Jose, CA 95120
Section 17.
MEMORANDUM OF PURCHASE AGREEMENT.
Within thirty (30) days of the Effective Date, the Parties shall record a Memorandum of this
Agreement substantially in the form attached as Exhibit C.
Section 18.
SPECIFIC PERFORMANCE.
In the event of a breach of this Agreement by a Party, the non-breaching Party shall be
entitled to all remedies available under law and equity, including, without limitation, specific
performance.
Section 19.
MISCELLANEOUS PROVISIONS.
(a)
This Agreement contains the entire agreement of the Parties. Any previous
understandings of the Parties regarding the subject matter hereof are expressly declared null and
void and are superseded by this Agreement.
(b)
If any term or provision of this Agreement shall, to any extent, be held
invalid or unenforceable, the remainder of this Agreement shall not be affected thereby.
(c)
No waiver or any breach of any covenant or provision contained in this
Agreement shall be deemed a waiver of any other covenant or provision contained in this
Agreement, and no waiver shall be valid unless in writing and executed by the waiving Party. No
extension of time for performance of any obligation or act shall be deemed an extension of the time
for performance of any other obligation or act.
(d)
No person or entity other than the Parties is intended to be a beneficiary of
the provisions of this Agreement.
(e)
Headings at the beginning of each section and subsection are solely for the
convenience of the Parties and are not a part of and shall not be used to interpret this Agreement.
The singular form shall include plural and the masculine shall include the feminine and vice versa.
This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as
if both Parties have prepared the same. Unless otherwise indicated, all references to sections are to
this Agreement. All exhibits referred to in this Agreement are attached to and incorporated in this
Agreement by this reference.
13
Barzegar
(f)
Each and every representation, warranty, covenant and obligation of the
Owner shall not merge with transfer of title, but shall survive the Closing.
(g)
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which taken together shall constitute but one and the same
instrument. The execution of this Agreement shall be deemed to have occurred, and this Agreement
shall be enforceable and effective, only upon the complete execution ofthis Agreement by the
(h)
Time is of the essence of each and every condition, and of each term and
provision in this Agreement.
(i)
In any litigation arising under this Agreement, the prevailing Party shall be
entitled to recover its reasonable attorneys' fees from the non-prevailing Party.
G)
This Agreement shall be governed and construed in accordance with
California law.
If the day for performance under any time period specified in this Agreement
(k)
shall fall on a Saturday, Sunday or holiday observed by the federal government or the State of
California, then the time for performance under such time period shall automatically be extended to
the next business day; provided, however, that the term "days" as used to compute time periods in
this Agreement shall not be construed to mean "business days." Further. if a Party so requests after
the complete execution of this Agreement, the Parties shall reduce to writing those dates related to
performance under this Agreement capable of being ascertained upon such execution.
14
Barzegar
WHEREFORE, the Parties have executed this Agreement on the date first written above.
AGENCY:
REDEVELOPMENT AGENCY OF THE COUNTY OF
ALAMEDA
ATTEST:
By:
Scott Haggerty. President of the Board of Directors
Agency Secretary
OWNER:
SAID BARZEGAR AND KATHLEE.
. -?ONS
BARZEGAR. husband and wife
comnllll1ity property
with a right of survivorsh iR
By:
Said Barzegar
APPROVED AS TO FORM
Richard E. Winnie, County Counsel
By~L&_-_"~.
~
__
I
By signing above, signatory warrants and represents that
he/she executed this Agreement in his/her authorized
capacity and that by his/her signature on this Agreement,
he/she or the entity upon behalf ofwhich he/she acted,
executed this Agreement
Brian Washington
15
Barzcgar
EXHIBIT A
LEGAL DESCRIPTION
Real property in the unincorporated area of the County of ALAMEDA, State of CALIFORNIA,
described as follows:
PARCEL 1:
PARCEL B OF PARCEL MAP NO. 965, FILED JANUARY 17, 1973, IN BOOK 76 OF PARCEL MAPS,
PAGE 89, ALAMEDA COUNTY RECORDS.
PARCEL 2:
AN EASEMENT FOR SANITARY SEWER PURPOSES APPURTENANT TO SAID PARCEL "B" WITHIN
THE STRIP OF LAND DESCRIBED AS FOLLOWS:
A STRIP OF LAND OF THE UNIFORM WIDTH OF 3 FEET LYING CONTIGUOUS TO AND
SOUTHEASTERLY OF THE NORTHWESTERLY BOUNDARY LINE OF PARCEL "A" SHOWN ON SAID
MAP AND EXTENDING FROM THE SOUTHWESTERLY BOUNDARY LINE OF THE STRIP OF LAND
DESCRIBED IN THE DEED FROM FIRST PARTY TO ORO LOMA SANITARY DISTRICT DATED
FEBRUARY 9, 1945 AND RECORDED IN BOOK 4704 OF OFFICIAL RECORDS AT PAGE 270,
ALAMEDA COUNTY RECORDS, SOUTHWESTERLY 90 FEET, MORE OR LESS, TO THE
SOUTHWESTERLY BOUNDARY LINE OF SAID PARCEL "A".
PARCEL 3:
THE RIGHT TO MAINTAIN AS AN ENCROACHMENT OF THE EXISTING BUILDING ALONG THE
SOUTHEASTERLY BOUNDARY OF PARCEL A, AS SAID PARCEL "A" IS SHOWN ON PARCEL MAP
NO. 965, FILED JANUARY 17, 1973, IN BOOK 76 OF PARCEL MAPS, PAGE 89, ALAMEDA COUNTY
RECORDS.
PARCEL 4:
BEGINNING AT A POINT ON THE SOUTHWESTERN LINE OF MISSION BOULEVARD, FORMERLY
EAST 14TH STREET, 100 FEET IN WIDTH, DISTANT THEREON SOUTH 47° 37' 19" EAST, 375.60
FEET FROM THE SOUTHEAST CORNER OF LOT 27, TRACT 642, FILED JUNE 24, 1942, IN BOOK
8 OF MAPS, PAGES 22 AND 23, IN THE OFFICE OF THE COUNTY RECORDER OF ALAMEDA
COUNTY (THE BEARING OF SAID SOUTHWESTERN LINE OF MISSION BOULEVARD BEING
TAKEN AS SOUTH 47° 37' 19" EAST FOR THE PURPOSE OF MAKING THIS DESCRIPTION); AND
RUNNING THENCE TANGENT TO LAST SAID LINE SOUTHEASTERLY, 100.63 FEET ALONG THE
ARC OF A 2450 FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL ANGLE OF 2° 21'
12"; THENCE SOUTH 8° 06' 11" WEST, 23.99 FEET; THENCE SOUTH 61° 15' WEST, 30.86 FEET;
THENCE SOUTH 70° 25' WEST, 18.50 FEET; THENCE SOUTH 84° 31' WEST, 40 FEET; THENCE
NORTH 83° 40' WEST, 39.71 FEET; THENCE 79° 58' 55" WEST, 113.18 FEET; THENCE NORTH
33° 02' 10" EAST, 131.33; THENCE NORTH 81° 40' 10" EAST, 66.47 FEET TO THE AFORESAID
SOUTHWESTERN LINE OF MISSION BOULEVARD; THENCE ALONG LAST SAID LINE SOUTH 47°
37' 19" EAST, 38.33 FEET TO THE POINT OF BEGINNING.
APN: 414-0021-078 (PARCEL 1), 414-0021-090 (PORTION OF PARCEL 4) AND 414-0021-30
(PORTION OF PARCEL 4
A-1
EXHIBITB
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Hayward, CA 94544
Attention: Executive Director
NO FEE FOR RECORDING PURSUANT TO GOVERNMENT CODE SECTION 27383
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is acknowledged, Said Barzegar and
Kathleen M. Lyons-Barzegar, a husband and wife as community property with a right of
survivorship (GRANTOR), grant, by execution and delivery of this Grant Deed, to the
Redevelopment Agency of the County of Alameda, a public body, corporate and politic
(GRANTEE), the real property in the unincorporated area of the County of Alameda, State of
California, described on the attached Attachment No.1.
Dated:
--------GRANTOR:
SAID BARZEGAR AND KATHLEEN M. LYONS
BARZEGAR, husband and wife as community property
with a right of survivorship
By:
Said Barzegar
By:
Kathleen M. Lyons-Barzegar
SIGNATURES MUST BE NOTARIZED
B-1
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
On
,200_ before me,
, 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 hislher/their authorized
capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
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
STATE OF CALIFORNIA
(Seal)
)
) ss
COUNTY OF ALAMEDA
)
On
, 200_ before me,
appeared
Signature
(Seal)
B-2
ATTACHMENT NO.1
LEGAL DESCRIPTION
PARCEL 1:
PARCEL 2:
ALAt-JIEDA COUNTY RECORDS, SOUTHWESTERLY 90 FEET, MORE OR LESS, TO THE
PARCEL 3:
RECORDS.
PARCEL 4:
33° 02' 10" EAST, 131.33; THENCE NORTH 81 ° 40' 10" EAST, 66.47 FEET TO THE AFORESAID
APN: 414-0021-078 (PARCEL 1),414-0021-090 (PORTION OF PARCEL 4) AND 414-0021-30
B-3
CERTIFICATE OF ACCEPTANCE
PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 27281
This is to certify that the interest in the real property conveyed by the GRANT DEED,
attached, dated
,200_ from Said Barzegar and Kathleen M. Lyons-Barzegar,
husband and wife as community property with a right of survivorship, to the Redevelopment
Agency of the County of Alameda (the "Agency") is hereby accepted by the undersigned
authorized official or officer on behalf of the Agency pursuant to authority conferred by the Board
of Directors of the Agency which consents to the recordation of said document or documents in
the Office of the Recorder of Alameda County, State ofCalifomia.
Date:- - - - - - - -
By:
Name: - - - - - - - - - - - - -
Title:
SIGNATURE MUST BE NOTARIZED
B-4
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
,200_ before me,
,Notary Public, personally
On
appeared
Signature
(Seal)
B-5
EXHIBITC
FORM OF MEMORANDUM OF PURCHASE AGREEMENT
Hayward, CA 94544
THIS SPACE FOR RECORDER'S USE ONLY
MEMORANDUM OF PURCHASE AGREEMENT
THIS MEMORANDUM OF PURCHASE AGREEMENT is dated as of
, 200_,
and is by and between the Redevelopment Agency of the County of Alameda, a public body,
corporate and politic (the "Agency"), and Said Barzegar and Kathleen M. Lyons-Barzegar,
husband and wife as community property with a right of survivorship (the "Owner").
The Owner and the Agency have entered into that certain Purchase and Sale Agreement (the
"Purchase Agreement") for certain real property and the improvements thereon (the "Property")
located in the unincorporated area of Alameda County, California, more fully described in the
attached Attachment No.1, and by recordation of this Memorandum of Purchase Agreement
give notice of the unrecorded Purchase Agreement and place on public record the following
information:
Pursuant to the terms of the Purchase Agreement, the Owner intends to sell to the Agency and
the Agency intends to acquire from the Owner all of Owner's right, title and interest in the
Property.
Attachment No.1 attached hereto and referenced herein shall be deemed incorporated herein by
this reference.
This Memorandum of Purchase Agreement in no way modifies or amends the provisions of the
Purchase Agreement.
C-l
IN WITNESS WHEREOF, the parties have executed this Memorandum of Purchase Agreement as
of the date first set forth above.
AGENCY
OWNER:
REDEVELOPMENT AGENCY OF THE
COUNTY OF ALAMEDA, a public body,
corporate and politic
SAID BARZEGAR AND KATHLEEN M. L YONS
BARZEGAR, husband and wife as community
property with a right of survivorship
By:
By:
Said Barzegar
_
Name: - - - - - - - - - - - Title:
_
By:
Kathleen M. Lyons-Barzegar
THIS DOCUMENT MUST BE NOTARIZED
C-2
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
On
,200_ before me,
appeared
Signature
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
(Seal)
)
) ss
)
On
, 200_ before me,
appeared
Signature
(Seal)
C-3
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
On
, 200_ before me,
appeared
I certify under PENALTY OF PERJURY under the laws of the State of Califomi a that the
Signature
(Seal)
C-4
ATTACHMENT NO.1
LEGAL DESCRIPTION
PARCEL 1:
PARCEL 2:
PARCEL 3:
RECORDS.
PARCEL 4:
33° 02' 10" EAST, 131.33; THENCE NORTH 81 0 40' 10" EAST, 66.47 FEET TO THE AFORESAID
SOUTHWESTERN LINE OF MISSION BOULEVARD; THENCE ALONG LAST SAID LINE SOUTH 47 0
C-5
RESOLUTION NO.
--
RESOLUTION OF THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF
THE COUNTY OF ALAMEDA AUTHORIZING EXECUTION OF A PURCHASE AND SALE
AGREEMENT AND RESULTING ACQUISITION OF PROPERTY IN THE COUNTY OF
ALAMEDA-CITY OF SAN LEANDRO JOINT REDEVELOPMENT PROJECT AREA THAT
WILL ALSO DIRECTLY BENEFIT THE REDEVELOPMENT OF THE CHERRYLAND
SUBAREA OF THE EDEN AREA REDEVELOPMENT PROJECT AREA, AND MAKING
STATUTORY FINDINGS IN CONNECTION THEREWITH
WHEREAS, pursuant to the California Community Redevelopment Law (Health and
Safety Code Section 33000 et seq.; the "Redevelopment Law"), the Board of Supervisors (the
"Board of Supervisors") of the County of Alameda (the "County") has adopted and the
Redevelopment Agency of the County of Alameda (the "Agency") is responsible for
implementing:
1.
the Redevelopment Plan for the County of Alameda-City of San Leandro
Redevelopment Project (as amended, the "Joint Project Redevelopment Plan") pertaining to the
redevelopment project area as described therein, and in particular the unincorporated portion
thereof that is under the redevelopment jurisdiction of the Agency (the "Joint Project Area"); and
2.
the Redevelopment Plan for the Eden Area Redevelopment Project (the "Eden
Area Redevelopment Plan") pertaining to the redevelopment project area as described therein
(the "Eden Area Project Area"), with particular reference to the Cherryland subarea (the
"Cherryland Subarea") of the Eden Area Project Area; and
WHEREAS, the Agency desires to cause the comprehensive, coordinated and effective
redevelopment of the unincorporated commercial and residential neighborhood generally known
as the Cherryland District, which includes:
1.
a commercial district generally located along Mission Boulevard in the Joint
Project Area; and
2.
a residential neighborhood generally located in the Cherryland Subarea of the
Eden Area Project Area and immediately surrounding the commercial district in the Joint Project
Area; and
WHEREAS, while the Joint Project Area was established at an earlier date (1993) than
the Eden Area Project Area (2000) so that commercial redevelopment activities for the
Cherryland District could be initiated as early as possible, the redevelopment of both the
commercial portion of the Cherryland District in the Joint Project Area and the residential portion
of the Cherryland District in the immediately surrounding Cherryland Subarea of the Eden Area
Project Area are integrally and inextricably related and are being undertaken by the Agency to
create a unified and comprehensive redevelopment of the entire Cherryland District; and
WHEREAS, to assist in implementing the redevelopment of the Cherryland District
within both the Joint Project Area and the Eden Area Project Area (together, the "Project
Areas") pursuant to the Joint Redevelopment Plan and the Eden Area Redevelopment Plan
(together, the "Redevelopment Plans"), the Agency has adopted a five-year implementation
1
819\15\601774.2
plan for each redevelopment plan and project area (together, the "Implementation Plans")
pursuant to Section 33490 of the Redevelopment Law; and
WHEREAS, pursuant to the Redevelopment Plans and Section 33391 of the
Redevelopment Law, the Agency is authorized to acquire real property within the Project Areas
for purposes of redevelopment; and
WHEREAS, the Agency desires to acquire from Jack W. O'Connor and Arlene O'Connor
and Beatrice O. Banchero and John Steven Banchero (collectively, the "Property Owners")
certain land in the Joint Project Area and immediately adjacent to the Cherryland Subarea of the
Eden Area Project Area, located at 20095 and 20097 Mission Boulevard, and consisting
specifically of Assessor's Parcel Numbers 414-0021-060-00 and 414-0021-061-00 (the
"Property"); and
WHEREAS, concurrently with acquisition of the Property, the Agency desires to acquire
an adjacent property (the "Adjacent Property") consisting of Assessor's Parcel Numbers 414
0021-078-00,414-0021-079-00, and 414-0021-080-00; and
WHEREAS, the Property and the Adjacent Property (together, the "Redevelopment
Site") comprise a strategic commercial property within the Cherryland District that was formerly
the site of an auto dealership, but that is currently unused; and
WHEREAS, timely and effective redevelopment of the Redevelopment Site through
Agency acquisition and subsequent disposition in accordance with the Redevelopment Plans is
essential to the continuing successful redevelopment of the Cherryland District in both Project
Areas; and
WHEREAS, for reasons set forth in the Board Letter accompanying this Resolution and
summarized in this Resolution, acquisition of the Property from the Property Owners will serve
the goals and objectives for redevelopment of the Project Areas set forth in the Redevelopment
Plans and is consistent with the Implementation Plans, the County's General Plan (the "General
Plan"), and the Ashland Cherryland Business District Specific Plan (the "Specific Plan")
approved by the Board of Supervisors on June 1, 1995; and
WHEREAS, Agency staff has negotiated the acquisition of the Property from the
Property Owners for the purchase price of Two Million Three Hundred Fifty Thousand Dollars
($2,350,000) pursuant to the terms of a Purchase and Sale Agreement (the "Purchase and Sale
Agreement", which includes a legal description of the Property), a copy of which is on file with
the County Clerk; and
WHEREAS, acquisition of the Property by the Agency will enable the Agency eventually
to convey the Property either to a qualified private redeveloper pursuant to a disposition and
development agreement or other suitable conveyance document, or to the County or other
public entity for development of suitable public improvements pursuant to a public
improvements development agreement (collectively, a "Redevelopment Agreement") for
redevelopment consistent with the Redevelopment Plans, the Specific Plan, and the General
Plan; and
WHEREAS, by action of October 6, 2008, the Planning Commission of the County found
and determined, in accordance with Government Code Section 65402, that the acquisition of
the Agency Parcel as contemplated in this Resolution and the Purchase and Sale Agreement
conforms to the General Plan; and
2
819\15\601774.2
WHEREAS, in considering approval of this Resolution and the Purchase and Sale
Agreement, the Agency has complied with and will comply with the requirements of the
California Environmental Quality Action ("CEQA") in the manner set forth below; and
WHEREAS, the Board Letter and the Purchase and Sale Agreement (collectively, the
"Supporting Documents") have been presented to and considered by the Agency in support of
the findings and approvals set forth in this Resolution; are hereby incorporated by reference in
this Resolution; and, together with the above recitals (the "Recitals"), form the evidentiary basis
and establish the analytical route for reaching the ultimate findings and conclusions contained in
this Resolution.
NOW, THEREFORE, BE IT RESOLVED, by the Governing Board of the Redevelopment
Agency of the County of Alameda, as follows:
Section 1. Recitals Correct. The Agency finds that the above Recitals are true and
correct and have served, together with the Supporting Documents, as the basis for the findings
and approvals set forth below.
Section 2. CEQA Actions.
a.
In connection with approval of the Specific Plan, the County prepared and
the Board of Supervisors approved a Negative Declaration (the "Specific Plan Negative
Declaration") pursuant to the requirements of CEQA that determined that the adoption and
implementation of the Specific Plan would not result in the occurrence of any unmitigated
significant environmental impacts. The acquisition of the Property pursuant to the Purchase
and Sale Agreement is consistent with and in furtherance of the General Plan and the Specific
Plan, and any future use of the Property must be consistent with and in furtherance of the
General Plan and the Specific Plan.
b.
Further, none of the following conditions has occurred since the
preparation and approval of the Specific Plan Negative Declaration that would preclude the use
of the Specific Plan Negative Declaration as the document for consideration of the
environmental effects of the acquisition of the Property pursuant to the Purchase and Sale
Agreement (see 14 Cal Code of Regulations Section 15162):
1.
there have not been substantial changes related to the acquisition
or potential development of the Property in accordance with the Specific Plan which would
require major revisions to the Specific Plan Negative Declaration;
2.
there have not been substantial changes with respect to the
circumstances under which the acquisition and potential future development of the Property in
accordance with the Specific Plan would be implemented which would require major revisions in
the Specific Plan Negative Declaration; and
3.
there has not been the appearance of new information which was
not known and could not have been known as of the date of approval of the Specific Plan
Negative Declaration which is relevant to the approval of Specific Plan Negative Declaration.
c.
For the reasons set forth in subsection b. and c. above, the Specific Plan
Negative Declaration has served as the environmental document pursuant to CEQA for the
Agency's consideration of approval of this Resolution and the acquisition of the Property
pursuant to the Purchase and Sale Agreement.
3
819\15\601774.2
d.
In addition, in conformance with 14 California Code of Regulations
Section 15004(b)(2)(A), the Agency's future reuse of the Property through conveyance to a
private redeveloper or a public entity pursuant to a Redevelopment Agreement or otherwise
shall be conditioned upon prior completion of any further CEQA compliance that is required
under the circumstances of such reuse.
e.
Based on the foregoing CEQA considerations, the Agency Executive
Director is authorized and directed to file the appropriate notice of determination document
pursuant to CEQA in connection with the actions and approvals set forth in this Resolution.
Section 3. Additional Findings. Based on the information and analysis contained in
the Recitals and the Supporting Documents, the Agency hereby finds that acquisition of the
Property pursuant to the Purchase and Sale Agreement will serve the goals and objectives for
redevelopment of the Project Areas set forth in the Redevelopment Plans and is consistent with
the Implementation Plans.
Section 4. Approval of Agreement; Execution of Documents. The Agency hereby
approves the Purchase and Sale Agreement, and the obligations of the Agency under the
Purchase and Sale Agreement, and authorizes the Agency Board President or the Agency
Executive Director to execute the Purchase and Sale Agreement on behalf of the Agency,
substantially in the form on file with the County Clerk. This Resolution constitutes the resolution
of acceptance by the Agency of the Property from the Property Owners for purposes of
Government Code Section 27281.
Section 5. Appropriation of Funds. The Agency hereby approves and appropriates
(to the extent not already appropriated) the amounts necessary to fund the Agency's obligations
under the Purchase and Sale Agreement, using tax increment revenues from the Cherryland
Subarea of the Eden Area Project Area ("Cherryland Subarea Tax Increment"), as a lawful
expenditure of Agency funds under the Redevelopment Law. The Agency's current fiscal year
budget is hereby amended to the extent necessary to implement the foregoing appropriation. In
making the appropriation from Cherryland Subarea Tax Increment to acquire the Property in the
immediately adjacent Joint Project Area, the Agency finds and determines that:
a.
While historically part of the Joint Project Area, the Property and the
entire Redevelopment Site are physically and economically integrally related to the Cherryland
Subarea of the Eden Area Project Area, and constitute a key commercial site whose
redevelopment is essential to the overall viability of the Cherryland District and the wellbeing of
its residents and businesses; and
b.
Consequently, the acquisition and redevelopment of the Property and the
entire Redevelopment Site will serve the purposes of both Redevelopment Plans and will be of
direct benefit to both Project Areas, such that it is appropriate to appropriate and use Cherryland
Subarea Tax Increment to fund the acquisition of the Property.
Section 6. Further Actions and Documents. The Agency Executive Director or the
Executive Director's designee, following consultation with Agency General Counsel, is
authorized to take all actions and execute all documents on behalf of the Agency necessary to
effectuate the purpose of this Resolution and the Purchase and Sale Agreement.
Section 7. Effective Date. This Resolution shall become effective immediately upon its
passage and adoption.
4
819\ 15\60 1774.2
PASSED AND ADOPTED by the Governing Board of the Redevelopment Agency of the County
of Alameda at a regular meeting of said Board on the 4th day of November, 2008, by the
following vote of said Board:
AYES:
NOES:
EXCUSED:
Scott Haggerty
President, Board of Directors
ArrEST:
Crystal K. Hishida, Clerk
Board of Supervisors
By:
_
Deputy
Approved as to Form:
RICHARD E. WINNIE, County Counsel
BY:~~
Brian Washington
Date:
_
5
819\15\601774.2
PURCHASE AND SALE AGREEMENT
(20095 & 20097 Mission Boulevard/Cherryland District)
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made this
day
of
,2008 by and between the Redevelopment Agency of the County of Alameda, a public
body corporate and politic (the "Agency"), and the following (collectively, the "Owner"): Jack W.
O'Connor and Arlene M. O'Connor, trustees, or their successors in trust, under the O'Connor Family
Living Trust, dated April 4, 1994, and any amendments thereto, as to an undivided one-half (Y2)
interest; John Steven Banchero, Trustee for John Steven Banchero, Maria P. Banchero and Beatrice
O. Banchero (the Life Income beneficiary), as to an undivided one-fourth ('!4) interest; and Beatrice
O. Banchero, a widow, as to an undivided one-fourth (lit) interest, under the terms of the Will of
John Santo Banchero as established by Decree of Distribution entered May 17, 1994 in the Superior
Court of the State of California in and for the County of Alameda in the matter of the Estate of John
Santo Banchero, deceased, Probate No. P93-00695. The Agency and the Owner (the "Parties")
have entered into this Agreement with reference to the following:
A.
The Owner owns real property located in the Cherryland District, an unincorporated
area of Alameda County, California, commonly known as 20095 and 20097 Mission Boulevard
(Assessor's Parcel Nos. 414-0021-060 and 414-0021-061). The Owner desires to sell to the Agency
this real property, as more particularly described in the attached Exhibit A, together with all rights,
privileges, and easements appurtenant to the real property, including without limitation, all
governmental and other approvals, permits, licenses, development rights and entitlements, air rights,
water, water rights, minerals, mineral rights, oil, gas and other hydrocarbon substances, utility and
other permits relating to the real property, as well as any other rights-of way, easements, and
appurtenances used in connection with the beneficial use and enjoyment ofthe real property
(collectively, the "Property").
B.
The Property is located within the unincorporated portion of the County of
Alameda-City of San Leandro Joint Redevelopment Project Area (the "Project Area") established
under the Redevelopment Plan for the Project Area jointly adopted by the County of Alameda
Board of Supervisors and the City of San Leandro City Council (as amended from time to time, the
"Redevelopment Plan"), and within the redevelopment jurisdiction of the Agency.
C.
The Agency is vested with responsibility pursuant to the Community Redevelopment
Law (Part 1 of Division 24 ofthe Health and Safety Code of the State of California) to implement
the Redevelopment Plan in and for the benefit of the unincorporated portion ofthe Project Area.
D.
The Agency desires to acquire the Property from the Owner by voluntary purchase
for use in a manner consistent with the Redevelopment Plan.
E.
Concurrently with execution of this Agreement, the Agency has entered into a
purchase and sale agreement (the "Adjacent Property Purchase and Sale Agreement") for the
purchase of the adjacent property (Assessor's Parcel Nos. 414-0021-078, 414-0021-079, and 414
0021-080) (the "Adjacent Property") with the owner thereof (the "Adjacent Property Owner").
O'ConnorlBanchero
F.
Hayward Auto Imports, Inc., a California corporation ("Hayward Auto Imports"),
has entered into the following currently effective leases pursuant to which it operated a new and
used vehicle sales business on the Property and the Adjacent Property prior to July 1,2008:
1.
A lease with the Owner for the Property dated September 14, 1999 (as
amended, the "Property Lease"); and
2
A lease with the Adjacent Property Owner for the Adjacent Property dated
September 1,2004 (as amended, the "Adjacent Property Lease").
The Property Lease and the Adjacent Property Lease (together, the "Leases") grant
Hayward Auto Imports a currently unexpired leasehold interest in the Property and the Adjacent
Property, respectively. The Owner and Hayward Auto Imports have provided the Agency with a
true and correct copy of the current Property Lease.
G.
Concurrently with execution of this Agreement, the Agency and Hayward Auto
Imports have entered into an all-inclusive settlement agreement (the "Hayward Auto Imports
Agreement") whereby the Agency shall make an all-inclusive settlement payment to Hayward Auto
Imports to compensate for any relocation and business good will benefits to which Hayward Auto
Imports may be entitled, and in consideration for which Hayward Auto Imports shall, among other
matters, terminate, quit claim, relinquish, release and reconvey the Leases and any right, title or
interest that Hayward Auto Imports may have in the Property and the Adjacent Property.
H.
As further provided in this Agreement, the Agency's obligation to acquire the
Property pursuant to this Agreement is subject to and conditioned upon the Agency's simultaneous
acquisition of the Adjacent Property from the Adjacent Property Owner, and the simultaneous
termination by Hayward Auto Imports of the Leases and any other interests it may have in the
Property and the Adjacent Property (through execution by Hayward Auto Imports of quit claim
deeds or other documents reasonably acceptable to the Agency against the Property and the
Adjacent Property (together, the "Quit Claim Deeds"», so that the Agency will take and have
simultaneous ownership and possession of both the Property and the Adjacent Property free and
clear of any interests of the Owner, Hayward Auto Imports, and the Adjacent Property Owner.
THEREFORE, the Parties agree as follows:
Section 1.
PURCHASE AND SALE.
The Owner agrees to sell the Property to the Agency, and the Agency agrees to purchase the
Property from Owner, subject to the terms and conditions set forth in this Agreement.
Section 2.
PURCHASE PRICE.
The purchase price for the Property shall be Two Million Three Hundred Fifty Thousand
Dollars ($2,350,000) (the "Purchase Price"). The Owner understands and agrees that the amounts to
be paid to the Owner pursuant to this Agreement are in full settlement of all claims the Owner could
have made against the Agency in connection with or related to the Agency's acquisition of the
2
0' Connor/Banchero
Property, including but not limited to, claims for compensation for the Property, improvements
thereon or interests therein, severance damages, any amounts for relocation benefits and/or
assistance pursuant to Government Code Sections 7260 et seq., loss of goodwill, owner
participation rights, business tenant preference rights, inverse condemnation, unreasonable pre
condemnation activities, interest, costs, and litigation expenses. Except as provided in this
Agreement, the Owner shall not be entitled to receive and hereby waives all rights to receive any
compensation, damages, or other amounts by reason of such claims and releases the Agency from
any claim or cause of action for any damage related to the Agency's acquisition of the Property.
Section 3.
DEPOSITS; PAYMENT OF PURCHASE PRICE.
(a)
Physical Inspection Period Refundable Deposit. Upon execution of this
Agreement, the Agency shall deposit into Escrow (as defined in Section 4) the amount of Twenty
Five Thousand Dollars ($25,000) (the "Physical Inspection Period Refundable Deposit"). If, prior
to the expiration of the Physical Inspection Period (as defined in Section 6(a)), the Agency provides
the Owner with a Physical Condition Dissatisfaction Notice (as defined in Section 6(f)), such that
this Agreement is terminated as further provided in Section 6(f), the Physical Inspection Period
Refundable Deposit and any interest earned thereon shall be promptly returned to the Agency.
(b)
Interest. The Physical Inspection Period Refundable Deposit shall be
deposited into an interest bearing account to be held by the Title Company (as defined in Section 4),
and all interest earned thereon shall become part of the Physical Inspection Period Refundable
Deposit.
(c)
Payment of Purchase Price. The Physical Inspection Period Refundable
Deposit and any interest earned thereon shall be credited toward the Purchase Price and paid to the
Owner at the time of the Closing. The remaining Purchase Price shall be paid in cash at the
Closing.
Section 4.
OPENING ESCROW.
conveyance of the Property to the Agency. The Parties shall provide escrow instructions to the Title
Company consistent with this Agreement.
Section 5.
The Escrow for the conveyance of the Property shall close (the "Closing") within thirty (30)
days following the expiration of the Physical Inspection Period (as defined in section 6(a)),
provided all conditions precedent to the Closing set forth in this Agreement have been met. The
Closing date may be extended by mutual agreement of the Parties. At the Closing, the Owner shall
convey the Property to the Agency, and the Agency shall pay the Purchase Price to the Owner. At
the Closing, the Property shall be conveyed to the Agency by grant deed substantially in the form
attached to this Agreement as Exhibit B (the "Grant Deed").
3
0'Connor/Banchero
The following are conditions to the Closing, which conditions may be waived solely by the
Agency:
(a)
Title to the Property is in the condition described in Section 8 below;
(b)
The representations and warranties of the Owner set forth in Section 11
below remain true and correct;
(c)
The Agency does not deliver to the Owner a Physical Condition
Dissatisfaction Notice prior to the expiration of the Physical Inspection Period, as further provided
in Section 6(f);
(d)
The Agency simultaneously closes upon and acquires the Adjacent Property
pursuant to the Adjacent Property Purchase and Sale Agreement;
(e)
Hayward Auto Imports executes, and there is recorded against the Property
and the Adjacent Property, the Quit Claim Deeds pursuant to the Hayward Auto Imports
Agreement; and
(f)
The Owner has made all legally required disclosures in writing to the Agency
within fifteen (15) calendar days after the Effective Date, and has promptly updated any such
disclosures as necessary through the Closing.
Section 6.
PHYSICAL INSPECTION PERIOD; RIGHT OF ENTRY.
(a)
The Agency's obligation to purchase the Property is contingent on the
Agency making a determination, within sixty (60) days following the Effective Date (the "Physical
Inspection Period") that the Agency is satisfied with the physical conditions of the Property, all as
fully set forth in this Section 6.
(b)
During the Physical Inspection Period, the Agency shall have the right to:
(1)
conduct such engineering, feasibility, seismic surveys and other
studies regarding the condition of the Property which the Agency deems prudent;
(2)
conduct such environmental audits and studies regarding the
environmental conditions of the Property which the Agency deems prudent; and
(3)
conduct such pest and structural inspections and related inspections of
the Property which the Agency deems prudent.
(c)
The Owner hereby grants the Agency, and the Agency's employees,
representatives, and agents, a right of entry during the Physical Inspection Period (and such other
times mutually acceptable to the Parties) to enter the Property for the purposes of conducting
examinations and investigating the Property. During regular business hours, the Owner shall
provide the Agency reasonable access to the Property, including all improvements, for the purpose
4
0'ConnorlBanchero
of conducting examinations. The Agency shall notify the Owner and obtain the Owner's approval,
which approval shall not be unreasonably withheld, prior to inspecting the Property or conducting
any invasive testing of the Property. The Agency shall cooperate with the Owner and make diligent
efforts to ensure that any such access results in a minimum of disruption of the Owner's ongoing
operations on the Property. The Agency shall repair any damage to the Property caused by the
Agency's inspections and tests and shall restore the Property to the condition existing as of the date
of the inspection; provided, however, the Agency shall have no obligation to repair any damage to
the Property which is revealed (but not caused by) such inspection. The Agency shall not have any
liability to the extent incurred by the Owner as a result of the discovery by the Agency of any
existing state of facts relating to the Property. Any reports generated pursuant to this Section shall
be given to the Owner if the Agency elects to terminate this Agreement pursuant to Section 6(1).
(d)
Within fifteen (15) days following the Effective Date (and in addition to the
documents previously provided to the Agency or otherwise required by law to be provided to the
Agency by the Owner), the Owner shall deliver or make available to the Agency the following
information related to the Property (all of which may be duplicated by the Agency in its discretion)
for the Agency's review and approval:
(I)
any and all third party reports, studies and investigations related to the
Property's physical condition or the physical condition of any structure on the Property including
environmental conditions, soils reports, seismic reports or inspection reports;
(2)
any architectural plans and drawings, record of survey, and
specifications for the Property (if available);
(3)
all service and maintenance contracts with respect to the Property;
(4)
any public sector notices related to the Property; and
(5)
any records relating to any lawsuits pending against the Owner, its
agents or employees in connection with the ownership, operation, or management of the Property.
The Owner's obligation to promptly provide such documents to the Agency
shall be ongoing through the Closing.
(e)
The Owner shall complete and deliver, within fifteen (15) days after the
Effective Date, all legally required disclosures regarding the Property. The Owner shall promptly
update any such disclosures as necessary through the Closing.
(1)
The Agency, acting in its sole discretion, shall have until 5:00 p.m. (Pacific
Time) on the expiration date of the Physical Inspection Period to notify the Owner of the Agency's
dissatisfaction with the Property by providing written notice to the Owner pursuant to this section (a
"Physical Condition Dissatisfaction Notice"). If the Agency fails to timely give such Physical
Condition Dissatisfaction Notice, the contingency set forth in this Section 6 shall be deemed
satisfied. If the Agency does provide a timely Physical Condition Dissatisfaction Notice, then this
Agreement shall be terminated, the Physical Inspection Period Refundable Deposit and any interest
5
O'Connor/Banchero
earned thereon shall be promptly returned to the Agency, and thereafter neither Party shall have any
further rights or obligations under this Agreement, except that any provision of this Agreement that
is specified to survive termination of this Agreement shall remain in effect and binding on the
Parties.
Section 7.
[INTENTIONALLY OMITTED.]
Section 8.
STATUS OF TITLE.
The Owner covenants and agrees to cause the title to the Property to be such that, at the
Closing, the Title Company is prepared to deliver to the Agency a standard coverage CLTA policy
of title insurance, with such endorsements as may be reasonably requested by the Agency, in the
amount of the Purchase Price insuring fee title to the Property vested in the Agency free and clear of
any liens, encumbrances and interests, or other clouds on title except the following ("Approved
Exceptions"):
(a)
Non-delinquent general, special and supplemental taxes (including, without
limitation, any community facilities district assessments), bonds and assessments;
(b)
Any liens or encumbrances created by or at the request of the Agency with
the Owner's prior written consent;
(c)
Items 3, 4,5 and 6 as shown on the Title Company's preliminary title report,
Title No. 08-58202556-MG, dated August 19,2008; and
(d)
Any other matter approved by the Agency in writing.
The Agency agrees to cooperate with the Owner, without cost to the Agency, to ensure that
title to the Property is in the above condition at the Closing.
Section 9.
ESCROW; COSTS AND PRORATIONS.
(a)
Prior to the Closing, the Owner and the Agency shall make the deliveries into
Escrow set forth in this Section 9.
(b)
The Owner hereby covenants and agrees to deliver or cause to be delivered to
the Title Company, on or prior to the Closing, the following instruments and documents:
(1)
a good and sufficient Grant Deed, substantially in the form set forth in
the attached Exhibit B, properly executed and acknowledged by the Owner in favor of the Agency,
the delivery and recordation of which shall vest in the Agency fee title in and to the Property;
(2)
a FIRPTA certificate, duly and validly executed by the Owner in
favor of the Agency, certifying that the Owner is not a "foreign person", as that term is defined in
Section 1445(f) of the Internal Revenue Code of 1986, as amended;
6
O'Connor/Banchero
(3)
a certificate duly and validly executed by the Owner in favor of the
Agency as required under California Revenue and Taxation Code Sections 18805 and 26131;
(4)
such proof of the Owner's authority and authorization to enter into
this Agreement and the transactions contemplated hereby, and such proof of the power and
authority ofthe individual(s) executing and/or delivery any instruments, documents or certificates
on behalf of the Owner to act for and bind the Owner as may be reasonably required by the Title
Company; and
(5)
any funds necessary for the Owner's share of the Closing costs.
(c)
The Agency hereby covenants and agrees to deliver or cause to be delivered
to the Title Company, on or prior to the Closing, the following instruments and documents:
(1)
this Agreement and the transaction contemplated hereby, and such proof of the power and authority
of the individual(s) executing and/or delivering any instruments, documents or certificates on behalf
of Agency to act for, bind the Agency and accept conveyance of the Property as may be reasonably
required by the Title Company; and
(2)
the Purchase Price (net of the Physical Inspection Review Period
Refundable Deposit and any interest earned thereon that is already held in Escrow), and any
additional funds necessary for the Agency's share of the Closing costs.
(d)
At the Closing, the Title Company shall record the Grant Deed conveying the
Property to the Agency, issue to the Agency the title policy referred to in Section 8, and deliver cash
in the amount of the Purchase Price to the Owner or to such person or entity as the Owner may
direct.
(e)
The following costs and expenses shall be borne or prorated as follows at the
Closing:
(1)
Property taxes and special assessments shall be prorated at the
Closing based on the most current real property tax bill available, including any escaped property
taxes which may be assessed after the Closing pertaining to the period prior to transfer of title to the
Agency, regardless of when notice thereof is delivered or who receives such notice. In the event the
Property is subject to property taxes that have not yet been assessed but that are attributable to the
period oftime prior to the Agency's acquisition of the Property, the Owner agrees that the
reasonable estimate of the property taxes as determined by the Owner and the Agency shall be
deducted from the proceeds of sale paid to the Owner at the Closing and deposited in an escrow
account to be held by the Title Company. The funds in the escrow account shall be released to pay
any property tax bills that may be received after the Closing but that are attributable to the period of
time prior to the Agency's acquisition of the Property.
(2)
All installments of any bond or assessment that is a lien (determined
as of the Closing) which installments become due before Closing shall be paid by Owner on or
7
O'Connor/Banchero
before Closing. In no event will Owner be required to prepay any bonds or assessments on the
Property.
(3)
The Agency shall pay all title insurance costs and premiums charged
in connection with the issuance of the title policy referred to in Section 8.
(4)
All property transfer taxes, if any, shall be shared equally between the
(5)
All Escrow fees shall be shared equally between the Owner and the
Agency.
(6)
The Owner and the Agency shall each pay their own legal fees and
expenses incurred in connection with the transaction contemplated by this Agreement.
(7)
The Owner shall bear all costs of causing the condition of title to the
Property to be as set forth in Section 8.
Section 10.
POSSESSION.
(a)
The Owner shall deliver possession of the Property with all improvements
existing on the Property to the Agency at the Closing. If the Owner delivers possession of the
Property with any personal property remaining on the Property, the Owner shall provide the Agency
with a bill of sale for such personal property and upon Closing such personal property will become
the property of the Agency.
(b)
Except as otherwise specified in subsection (c) below, prior to the Closing
and without cost to the Agency, the Owner shall cause Hayward Auto Imports to remove from the
Property all personal property, furniture, fixtures, and equipment of any type, nature, and
description, including, without limitation, all above-ground automotive lifts, reel hosing fluid
delivery systems, oil delivery systems, oil and all other fluid storage drums, outdoor canopies, all
other automotive servicing tools and equipment, all movable storage shelving units, computer
system components, and office furniture (collectively, the "Personal Property"). If the obligation set
forth in the preceding sentence is not satisfied at the time of the Closing, the Agency may elect to
proceed with the Closing or to delay the Closing until the obligation set forth in the preceding
sentence is satisfied.
(c)
The Owner shall have no obligation to cause removal of, and there is hereby
expressly excluded from the definition of "Personal Property" contained in subsection (b) above of,
the seven (7) in-ground single-post hydraulic automobile lifts which are each comprised of an
above-ground rack and in-ground hydraulic lift apparatus, and which are located in the back storage
room of the showroom facility on the Property (the "Back Showroom Hydraulic Lifts"). The Parties
acknowledge that Hayward Auto Imports is obligated to remove the Back Showroom Hydraulic
Lifts, following the Closing in accordance with the provisions of the Hayward Auto Imports
Agreement.
8
O'ConnorlBanchero
Section 11.
OWNER'S REPRESENTATIONS AND WARRANTIES.
Notwithstanding any other provision contained in this Agreement, the Owner hereby
represents and warrants the matters set forth below to be true to the best of Owner's knowledge as of
the date of this Agreement and as of the Closing.
(a)
The Owner has provided to the Agency all reports, documents and
information in Owner's possession regarding the Property, and such reports, documents and
information are and shall be, to the best of the Owner's knowledge, complete, true and correct.
(b)
To the best of the Owner's knowledge there are no Hazardous Materials on
the Property. For the purposes of this Agreement, the term "Hazardous Materials" shall include,
without limitation any hazardous or toxic materials, substances or wastes, such as:
(l)
substances defined as "hazardous substances", "hazardous materials"
or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 USC Section 9601, et seq.) and/or the Hazardous Materials
Transportation Act (49 USC Section 1801, et seq.), as either of such acts are amended from time to
time;
(2)
(3)
those materials defined in Section 255010) of the California Health
and Safety Code, as amended from time to time;
(4)
corrosive or reactive and which are regulated by any local governmental authority, any city of the
State of California or any agency of the United States Government;
(5)
asbestos, petroleum and petroleum based products, urea formaldehyde
foam insulation, polychlorinated biphenyls (PCBs), and freon and other chlorofluorocarbons; and
(6)
(c)
The Owner has the legal power, right and authority to enter into this
Agreement and the instruments and documents referenced in this Agreement, and to consummate
the transaction contemplated hereby.
(d)
agreement, instrument, or other obligation to which the Owner is a party or by which the Owner or
the Property may be bound.
9
0'Connor/Banchero
(e)
There is no claim, action, litigation, arbitration or other proceeding pending
or threatened against the Owner which relates to the Property or the transaction contemplated
hereby or which could result in the imposition of a lien against the Property or have an adverse
effect on the Property or its operation. If the Owner receives notice of any such claim, litigation,
arbitration or proceeding prior to the Closing, the Owner shall promptly notify the Agency of the
same in writing.
(f)
affecting the Property, or any portion thereof, nor does the Owner have any knowledge that any
such action is contemplated.
(g)
There will be no management agreements, contracts, warranties, guaranties,
bonds or other agreements which will affect or will be obligations of the Agency or the Property
which cannot be terminated on thirty (30) days prior notice, including without limitation,
maintenance contracts, design services contracts, construction contracts, architects agreements,
parking agreements other than as disclosed to Agency or as specifically approved by Agency.
(h)
As of the date of this Agreement, the Property Lease with Hayward Auto
Imports is on the terms set forth in the Property Lease delivered to the Agency pursuant to Section
12. As ofthe date of this Agreement and continuously through the Closing, there are no tenants on
the Property other than Hayward Auto Imports. As of the date of the Closing, the Property Lease
with Hayward Auto Imports is on the terms set forth in the Property Lease delivered to the Agency
pursuant to Section 12. In the event any of the representations or warranties contained in this
subsection (h) is breached, the Agency's damages shall include recovery from the Owner of any
compensation or benefits that the Agency is required to pay to the person or entity in connection
with the Agency's acquisition of that person or entity's interest in the Property and relocation from
the Property, including but not limited to payments under the Relocation Law (Government Code
Sections 7260 et seq.), but only to the extent that the amount so paid exceeds the amount the
Agency would have paid absent the breach of warranty or representation.
(i)
To the best of the Owner's knowledge, neither the Property nor the Owner is
in violation of, and the Owner has not received any written notice of any violation of, any law,
ordinance, regulation, order or requirement applicable to the Property including without limitation,
requirements imposed under any recorded covenants, conditions, restrictions, easements or other
rights affecting the Property. If the Owner receives such a notice prior to the Closing, the Owner
shall immediately notify Agency.
G)
All permits, licenses, certificates, entitlement, grants of right and any other
approval required for the Owner's ownership, use and occupancy of the Property shall have been
obtained from all appropriate authorities.
During the term of this Agreement, the Owner shall have a continuing duty to notify the
Agency of any material facts in the Owner's knowledge which would render any of the
representations or warranties set forth above false. Such duty shall not, however, abrogate nor limit
the Agency's independent obligation to perform its own investigation into the Property. In the
event that the Agency discovers at any time prior to the Closing that any of the representations or
10
0'Connor/Banchero
warranties set forth above are false, the Agency's sole remedy (except in the event of intentional
fraud on the Owner's part) shall be the right to terminate this Agreement and recover the total
amount of the Physical Inspection Period Refundable Deposit and any interest earned thereon,
notwithstanding any other provision to the contrary in this Agreement. In the event that the Agency
learns that an Owner representation or warranty might be untrue prior to the Closing, and the
Agency elects to purchase the Property anyway, then, and in that event, the Agency shall
conclusively be deemed to have waived any right it may have to bring an action or proceeding
against the Owner regarding said representation or warranty.
Section 12.
EXISTING TENANT.
The Parties understand and agree that as of the Effective Date, the Property is subject to only
one leasehold interest consisting of the Property Lease with Hayward Auto Imports. Prior to
execution of this Agreement, the Owner provided the Agency with a true and correct copy of the
Property Lease. It is the intention of the Parties that the Agency shall provide Hayward Auto
Imports with any relocation benefits to which it may be entitled in accordance with the terms of the
Hayward Auto Imports Agreement. The Owner shall not, prior to the Closing, rent out any space in
the Property that is currently or subsequently becomes vacant, nor shall the Owner authorize or
permit an assignment or other transfer of any rights under the Property Lease from Hayward Auto
Imports to any other person or entity. The Owner shall not extend the term of the Property Lease or
otherwise modify the provisions of the Property Lease. The Owner shall not evict Hayward Auto
Imports prior to the Closing other than for failure to pay rent or other default or failure of Hayward
Auto Imports.
Section 13.
INDEMNIFICATION.
(a)
The Owner hereby agrees to defend, indemnify and hold the Agency and its
board members, employees, representatives, agents, and attorneys harmless from and against any
and all claims, liens, demands, losses, damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings and orders, and all costs incurred in connection therewith (including
without limitation actual attorneys' fees and costs of experts and consultants) arising from:
(1)
any obligation of the Owner not expressly assumed by the Agency;
(2)
personal injury or property damage relating to the Property which
occurred prior to the Closing and not caused by the acts or omissions of the Agency or the Agency's
agents, employees, or invitees;
(3)
the breach of any of the Owner's representations made under this
Agreement; and
(4)
the release or presence of hazardous materials on the Property that
existed prior to the Closing.
(b)
The Agency hereby agrees to defend, indemnifY, and hold the Owner
harmless from and against any and all claims, liens, demands, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders, and all costs incurred in
11
0'Connor/Banchero
connection therewith (including without limitation actual attorneys' fees and costs of experts and
consultants) arising from personal injury or property damage relating to the Property which occurs
after the Closing or as a direct result of the Agency's acts or omissions.
(c)
Section 14.
CASUALTY.
If, prior to the Closing, the Owner becomes aware that all or any material portion of the
Property has been destroyed or substantially damaged, then the Owner shall promptly give the
Agency notice thereof, and the Agency, at its option, may terminate this Agreement upon written
notice to Owner not later than fifteen (15) days after receipt of Owner's notice thereof, which notice
shall contain an estimate of the repair costs and an estimate of insurance payments to be made to
Owner. If this Agreement is terminated pursuant to this Section 14, the Parties shall be relieved and
released of and from any further duties, obligations, rights, or liabilities under this Agreement, and
notwithstanding any other provision of this Agreement, the Physical Inspection Period Refundable
Deposit and any interest earned thereon shall be returned to the Agency. If the Agency fails to
deliver timely notice of its election to terminate this Agreement pursuant to this Section 14, then
this Agreement shall remain in full force, the transfer of the Property shall be consummated as
contemplated by this Agreement without adjustment in the Purchase Price, and at the Closing the
Owner shall assign to the Agency all of the Owner's right, title, and interest in and to any insurance
proceeds resulting from any casualty.
Section 15.
Except as set forth in the following sentence, the Agency and Owner each represent to the
other that neither has dealt with any real estate broker or agent in relation to this transaction. The
Owner represents and covenants to the Agency that it has retained the services of Greg Berry of
Grubb & Ellis (the "Broker") as its broker, and that the Owner shall be solely responsible for any
and all compensation to the Broker in connection with this transaction. The Agency and the Owner
(each, reciprocally, as an "Indemnitor") agree to indemnify and hold the other (as "Indemnitee")
harmless from all expense, loss, damage and claims, including the Indemnitee's attorneys' fees, if
necessary, arising out the Indemnitor's breach of the foregoing representation and covenant. The
indemnifications set forth in this Section 15 shall survive termination of this Agreement.
Section 16.
NOTICES.
All notices required or permitted under this Agreement shall be in writing. Unless otherwise
provided herein, any notice, tender or delivery to be given pursuant to this Agreement by either
party may be accomplished by personal delivery, by first class certified mail, return receipt
requested, by delivery via an overnight courier which guarantees next day delivery, or by facsimile
delivery with simultaneous delivery by first class mail. Any notice delivered by certified mail,
return receipt requested shall be deemed received on the date of delivery reflected on the return
receipt. Any notice delivered by overnight shall be deemed received one (1) business day after
deposit thereof with the overnight courier. Any notice delivered by facsimile shall be deemed
12
O'ConnorlBanchero
received one (1) business day after its transmission, provided that written confirmation of receipt is
received and the notice is contemporaneously deposited in the United States Mail, first class, with
postage affixed. Mailed notices shall be addressed as set forth below, but each party may change its
address by written notice in accordance with this Section 16, on not less than ten (lO) days prior
written notice.
To Agency:
Hayward, CA 94544
To Owner:
Jack W. O'Connor
21175 Ocean View Drive
Hayward, CA 94541-1558
Section 17.
MEMORANDUM OF PURCHASE AGREEMENT.
Within thirty (30) days of the Effective Date, the Parties shall record a Memorandum of this
Agreement substantially in the form attached as Exhibit C.
Section 18.
In the event of a breach of this Agreement by either Party, the non-breaching Party shall be
performance.
Section 19.
(a)
This Agreement contains the entire agreement of the Parties. Any previous
understandings of the Parties regarding the subject matter hereof are expressly declared null and
void and are superseded by this Agreement.
(b)
(c)
Agreement, and no waiver shall be valid unless in writing and executed by the waiving Party. No
extension of time for performance of any obligation or act shall be deemed an extension of the time
for performance of any other obligation or act.
(d)
(e)
13
O'Connor/Banchero
The singular fonn shall include plural and the masculine shall include the feminine and vice versa.
This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as
if both Parties have prepared the same. Unless otherwise indicated, all references to sections are to
this Agreement. All exhibits referred to in this Agreement are attached to and incorporated in this
Agreement by this reference.
(f)
Each and every representation, warranty, covenant and obligation of Owner
shall not merge with transfer of title, but shall survive the Closing.
(g)
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which taken together shall constitute but one and the same
instrument. The execution of this Agreement shall be deemed to have occurred, and this Agreement
shall be enforceable and effective, only upon the complete execution of this Agreement by the
(h)
Time is of the essence of each and every condition, and of each tenn and
(i)
entitled to recover its reasonable attorneys' fees from the other Party.
(j)
California law.
If the day for performance under any time period specified in this Agreement
(k)
shall fall on a Saturday, Sunday or holiday observed by the federal government or the State of
California, then the time for perfonnance under such time period shall automatically be extended to
the next business day; provided, however, that the tenn "days" as used to compute time periods in
this Agreement shall not be construed to mean "business days." Further, if either Party so requests
after the complete execution of this Agreement, the Parties shall reduce to writing those dates
related to perfonnance under this Agreement capable of being ascertained upon such execution.
14
O'Connor/Banchero
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED AREA, TOWNSHIP OF
EDEN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
Lot 27, of Tract 642, according to the Map thereon, filed June 24, 1942, in Book 8 of Maps, Page 22 and 23, in
the Office of the County Recorder of Alameda County.
PARCEL TWO::
Beginning at the intersection of the Northwesterly boundary line of Plot 11, as said Plot 11 is shown upon that
certain Map entitled "Map of lewelling Fruit Farms, San Lorenzo, Alameda Co., Cal.", filed for record AprilS,
1883 in the Office of the County Recorder of said County of Alameda in Book 17 of Maps at Page 20, with the
Southwesterly boundary line of that certain 1.342 acre parcel of land described in the Deed from Eli Lewelling
to County of Alameda dated February 12, 1910 and recorded in the Office of said County Recorder in Book
1780 of Deeds at Page 310, and running thence South 48° 57' 28" East, along the Southwesterly boundary line
of said 1.342 acre parcel of land, 139.26 feet; thence South 40° 58' 17" West 293.76 feet to a point on the
Northerly boundary line of that certain parcel of land described in the Deed from Pacific to Alameda County
Flood Control and Water Conservation District dated October 13, 1959 and recorded in the Office of said
County Recorder in Book 9248 of Official Records at Page 363; thence along the Northerly boundary line of the
parcel of land described in said Deed dated October 13, 1959 the following two courses and distances, namely:
Westerly on a curve to the left with a radius of 380.14 feet; through a central angle of 8° 47' 30" and tangent
at the Easterly terminus thereof to a line which has a bearing of North 82° 19' 34" West, an arc distance of
58.33 feet to a point of compound curve; and thence Westerly on a curve to the left, with a radius of 291.50
feet, through a central angle of 12° 11' 32", and tangent at the Easterly tenninus thereof to a line which has a
bearing of South 88° 52' 56" West, an arc distance of 62.03 feet to a point in the Northwesterly boundary line
of said Plot 11; thence North 33° 06' 42" East, along the Northwesterly boundary line of said Plot 11; a
distance of 379.27 feet, more or less, to the point of beginning; containing 0.885 acre, more or less, and being
a poriton of said Plot 11.
APN: 414-0021-061, 414-0021-060
A-1
CLTA Preliminary Report Form· Modified (11/17{06)
EXHIBIT B
FORM OF GRANT DEED
Hayward, CA 94544
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is acknowledged, Jack W. O'Connor
and Arlene M. O'Connor, trustees, or their successors in trust, under the O'Connor Family Living
Trust, dated April 4, 1994, and any amendments thereto, as to an undivided one-half (~) interest;
John Steven Banchero, Trustee for John Steven Banchero, Maria P. Banchero and Beatrice O.
Banchero (the Life Income beneficiary), as to an undivided one-fourth (14) interest; and Beatrice
O. Banchero, a widow, as to an undivided one-fourth (14) interest, under the terms of the Will of
John Santo Banchero as established by Decree of Distribution entered May 17, 1994 in the
Superior Court of the State of California in and for the County of Alameda in the matter of the
Estate of John Santo Banchero, deceased, Probate No. P93-00695 (collectively, GRANTOR),
grant, by execution and delivery of this Grant Deed, to the Redevelopment Agency of the County
of Alameda, a public body, corporate and politic (GRANTEE), the real property in the
unincorporated area of the County of Alameda, State of California, described on the attached
Attachment No.1.
Dated:
---------
B-1
GRANTOR:
JACK W. O'CONNOR AND ARLENE M. O'CONNOR,
trustees under the O'Connor Family Living Trust, dated April
4, 1994, and any amendments thereto, as to an undivided one
half (~) interest
By:
Jack W. O'Connor, trustee
By:
Arlene M. O'Connor, trustee
BEATRICE O. BANCHERO, a widow, as to an undivided
one-fourth (Y4) interest, under the terms of the Will of John
Santo Banchero as established by Decree of Distribution
entered May 17, 1994, in the Superior Court of the State of
California in and for the County of Alameda in the matter of
the Estate of John Santo Banchero, deceased, Probate
No. P93-00695
By:
Beatrice O. Banchero
JOHN STEVEN BANCHERO, Trustee for John Steven
Banchero, Maria P. Banchero and Beatrice O. Banchero (the
life income beneficiary), as to an undivided one-fourth (Y4)
interest
By:
John Steven Banchero, trustee
SIGNATURES MUST BE NOTARIZED
B-2
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
On
,200_ before me,
appeared
Signature
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
(Seal)
)
) ss
)
On
, 200_ before me,
appeared
Signature
(Seal)
B-3
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
On
, 200_ before me,
appeared
Signature
(Seal)
STATE OF CALIFORNIA
)
COUNTY OF ALAMEDA
)
) ss
On
, 200_ before me,
appeared
Signature
(Seal)
B-4
ATTACHMENT NO.1
LEGAL DESCRIPTION
EDEN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
PARCEL TWO::
certain Map entitled "Map of lewelling Fruit Farms, san Lorenzo, Alameda Co., Cal.", filed for record AprilS,
feet, through a central angle of 12° 11' 32", and tangent at the Easterly terminus thereof to a line which has a
APN: 414-0021-061,414-0021-060
8-5
CLTA Preliminary Report Form - Modified (11/17/06)
CERTIFICATE OF ACCEPTANCE
PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 27281
This is to certify that the interest in the real property conveyed by the GRANT DEED,
attached, dated
,200_ from Jack W. O'Connor and Arlene M. O'Connor, trustees, or
their successors in trust, under the O'Connor Family Living Trust, dated April 4, 1994, and any
amendments thereto, as to an undivided one-half (Y2) interest; John Steven Banchero, Trustee for
John Steven Banchero, Maria P. Banchero and Beatrice O. Banchero (the Life Income
beneficiary), as to an undivided one-fourth (Yi) interest; and Beatrice O. Banchero, a widow, as to
an undivided one-fourth (Yi) interest, under the terms of the Will of John Santo Banchero as
established by Decree of Distribution entered May 17, 1994 in the Superior Court of the State of
California in and for the County of Alameda in the matter of the Estate of John Santo Banchero,
deceased, Probate No. P93-00695, to the Redevelopment Agency of the County of Alameda (the
"Agency") is hereby accepted by the undersigned authorized official or officer on behalf of the
Agency pursuant to authority conferred by the Board of Directors of the Agency which consents to
the recordation of said document or documents in the Office of the Recorder of Alameda County,
State of California.
Date:
_
By:- - - - - - - - - - - - - - Name:- - - - - - - - - - - - - Title:- - - - - - - - - - - - - -
SIGNATURE MUST BE NOTARIZED
B-6
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
On
,200_ before me,
appeared
Signature
(Seal)
B-7
EXHIBIT C
FORM OF MEMORANDUM OF PURCHASE AGREEMENT
Hayward, CA 94544
THIS SPACE FOR RECORDER'S USE ONLY
MEMORANDUM OF PURCHASE AGREEMENT
THIS MEMORANDUM OF PURCHASE AGREEMENT is dated as of
, 200_,
and is by and between the Redevelopment Agency of the County of Alameda, a public body,
corporate and politic (the "Agency") and the following (collectively the "Owner"): Jack W.
O'Connor and Arlene M. O'Connor, trustees, or their successors in trust, under the O'Connor
Family Living Trust, dated April 4, 1994, and any amendments thereto, as to an undivided one
half (Y2) interest; John Steven Banchero, Trustee for John Steven Banchero, Maria P. Banchero
and Beatrice O. Banchero (the Life Income beneficiary), as to an undivided one-fourth (Y4)
interest; and Beatrice O. Banchero, a widow, as to an undivided one-fourth (Y4) interest, under
the terms of the Will of John Santo Banchero as established by Decree of Distribution entered
May 17, 1994 in the Superior Court of the State of California in and for the County of Alameda
in the matter of the Estate of John Santo Banchero, deceased, Probate No. P93-00695.
The Owner and the Agency have entered into that certain Purchase and Sale Agreement (the
"Purchase Agreement") for certain real property and the improvements thereon (the "Property")
located in the unincorporated area of Alameda County, California, more fully described in the
attached Attachment No.1, and by recordation of this Memorandum of Purchase Agreement
give notice of the unrecorded Purchase Agreement and place on public record the following
information:
Pursuant to the terms of the Purchase Agreement, the Owner intends to sell to the Agency and
the Agency intends to acquire from the Owner all of Owner's right, title and interest in the
Property.
Attachment No. 1 attached hereto and referenced herein shall be deemed incorporated herein by
this reference.
This Memorandum of Purchase Agreement in no way modifies or amends the provisions of the
Purchase Agreement.
C-l
IN WITNESS WHEREOF, the parties have executed this Memorandum of Purchase Agreement as
of the date first set forth above.
AGENCY
OWNER:
REDEVELOPMENT AGENCY OF THE
COUNTY OF ALAMEDA, a public body,
corporate and politic
JACK W. O'CONNOR AND ARLENE M.
O'CONNOR, trustees under the O'Connor Family
Living Trust, dated April 4, 1994, and any
amendments thereto, as to an undivided one-half (~)
interest
By:
_
Name: - - - - - - - - - - - Title: - - - - - - - - - - - - -
By:
Jack W. O'Connor, trustee
By:
Arlene M. O'Connor, trustee
BEATRICE O. BANCHERO, a widow, as to an
undivided one-fourth Cf4) interest, under the terms of
the Will of John Santo Banchero as established by
Decree of Distribution entered May 17, 1994, in the
Superior Court of the State of Califomia in and for
the County of Alameda in the matter of the Estate of
John Santo Banchero, deceased, Probate No. P93
00695
By:
Beatrice O. Banchero
JOHN STEVEN BANCHERO, Trustee for John
Steven Banchero, Maria P. Banchero and Beatrice O.
Banchero (the life income beneficiary), as to an
undivided one-fourth (1/4) interest
By:
John Steven Banchero, trustee
THIS DOCUMENT MUST BE NOTARIZED
C-2
COUNTY OF ALAMEDA
STATE OF CALIFORNIA
) ss
)
)
On
, 200_ before me,
appeared
Signature
(Seal)
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
On
, 200_ before me,
appeared
and acknowledged to me that he/shelthey executed the same in hislherltheir authorized
Signature
(Seal)
C-3
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
On
, 200_ before me,
appeared
Signature
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
(Seal)
)
) ss
)
On
, 200_ before me,
appeared
Signature
(Seal)
C-4
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
)
) ss
)
,200_ before me,
On
appeared
I certify under PENALTY OF PERJURY under the laws of the State of Califomi a that the
Signature
(Seal)
C-5
ATTACHMENT NO.1
LEGAL DESCRIPTION
EDEN, COUNlY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
Lot 27, of Tract 642, according to the Map thereon, filed June 24,1942, in Book 8 of Maps, Page 22 and 23, in
PARCEL TWO::
certain Map entitled "Map of Jewelling Fruit Farms, San Lorenzo, Alameda Co., Cal.", filed for record AprilS,
County Recorder in Book 9248 of Official Records at Page 363; thence along the Northerly boundary line ofthe
feet, through a central angle of 12° 11' 32", and tangent at the Easterly terminus thereof to a line which has a
APN: 414-0021-061, 414-0021-060
C-6
CLTA Preliminary Report Form - Modified (11/17/06)
ALL-INCLUSIVE SETTLEMENT AGREEMENT
(Leases at 20095, 20097 and 20499 Mission Boulevard/Cherryland District)
THIS ALL INCLUSIVE SETTLEMENT AGREEMENT (the "Agreement") is made this
___ day of
, 2008 by and between the Redevelopment Agency of the County of
Alameda, a public body corporate and politic (the "Agency"), and Hayward Auto Imports, Inc., a
California corporation ("Hayward Auto Imports"), with reference to the following:
A.
Concurrently with execution of this Agreement, the Agency has entered into the
following agreements for the purchase of two adjacent properties located in the Cherryland
District, an unincotporated area of Alameda County, California:
1.
A purchase and sale agreement (the "20499 Purchase and Sale
Agreement") for the purchase of the property commonly known as 20499 Mission Boulevard
(Assessor's Parcel Nos. 414-0021-078, 414-0021-079, and 414-0021-080) (the "20499 Property")
with the owner thereof (the "20449 Property Owner"); and
2.
A purchase and sale agreement (the "20095/97 Purchase and Sale
Agreement") for the purchase of the property commonly known as 20095 and 20097 Mission
Boulevard (Assessor's Parcel Nos. 414-0021-060 and 414-0021-061) (the "20095/97 Property")
with the owner thereof (the "20095/97 Property Owner").
The 20499 Property and the 20095/97 Property are sometimes collectively
referred to as the "Properties." The legal descriptions of the Properties are set forth in Exhibits A
andB.
B.
The Properties are located within the unincorporated portion of the County of
Alameda-City of San Leandro Joint Redevelopment Project Area (the "Project Area")
established under the Redevelopment Plan for the Project Area jointly adopted by the County of
Alameda Board of Supervisors and the City of San Leandro City Council (as amended from time
to time, the "Redevelopment Plan"), and within the redevelopment jurisdiction of the Agency.
C.
The Agency is vested with responsibility pursuant to the Community
Redevelopment Law (Part 1 of Division 24 of the Health and Safety Code of the State of
California) to implement the Redevelopment Plan in and for the benefit of the unincorporated
portion of the Project Area.
D.
Hayward Auto Imports, Inc. ("Hayward Auto Imports") has entered into the
following currently effective leases pursuant to which it operated a new and used vehicle sales
business on the Properties prior to July 1, 2008:
1.
A lease with the 20499 Property Owner for the 20499 Property dated
September 1,2004 (as amended, the "20499 Property Lease"); and
2.
A lease with the 20095/97 Property Owner for the 20095/97 Property
dated September 14, 1999 (as amended, the "20095/97Property Lease").
1
Hayward Auto
The 20499 Lease and the 20095/07 Lease (together, the "Leases") grant Hayward
Auto Imports currently unexpired leasehold interests in the 20499 Property and the 20095/97
Property, respectively. Hayward Auto Imports has provided the Agency with true and correct
copies of the current Leases.
E.
Pursuant to this Agreement, the Agency will provide Hayward Auto Imports with
an all-inclusive settlement payment in exchange and consideration for Hayward Auto Imports'
termination, quit claim, relinquishment, release and reconveyance of the Leases and for Hayward
Auto Imports' relocation of its business and removal of specific personal property from the
Properties, all as fully set forth herein. As a result, upon the Agency's simultaneous acquisition
of the Properties, the Agency shall take title to the Properties free and clear of any right, title or
interest of Hayward Auto Imports in the Properties and free of specific personal property.
THEREFORE, the Agency and Hayward Auto Imports (the "Parties") agree as follows:
Section 1.
TERMINAnON OF PROPERTY RIGHTS.
Hayward Auto Imports agrees to terminate, quit claim, relinquish, release and reconvey
any right, title and interest of any type, nature, or form it may have in and to the Properties or
any portion thereof, including, without limitation, termination, quit claim, relinquishment,
release and reconveyance of the Leases and the leasehold interests created thereby in the
Properties, subject to the terms and conditions of this Agreement.
Section 2.
ALL-INCLUSIVE SETTLEMENT PAYMENT.
(a)
All-Inclusive Settlement Payment. The Agency shall pay to Hayward
Auto Imports the sum of Three Hundred Forty Thousand Dollars ($340,000) (the "All-Inclusive
Settlement Payment"). The All-Inclusive Settlement Payment shall be paid by the Agency as full
consideration and compensation for:
(l)
Any and all relocation benefits, business goodwill value and all
other forms of compensation described in subsection (b) below related to the relocation of the
Hayward Auto Imports business from the Properties;
(2)
the termination, quit claim, relinquishment, release and
reconveyance of any right, title and interest of any type, nature, or form that Hayward Auto
Imports may have in and to the Properties, including, without limitation, termination, quit claim,
relinquishment, release and reconveyance of the Leases and the leasehold interests created
thereby in the Properties; and
(3)
the removal prior to the Closing of all Personal Property from the
Properties in accordance with Section 7(a).
(b)
Full Release of All Claims. Hayward Auto Imports understands and
agrees that the amounts to be paid to Hayward Auto Imports pursuant to this Agreement are in
full settlement of all claims Hayward Auto Imports could have made against the Agency in
connection with or related to the Agency's acquisition of the Properties and the termination of the
2
Hayward Auto
leasehold interests created by the Leases in the Properties, including but not limited to, claims for
compensation for the Properties, the leasehold interests in the Properties created by the Leases,
improvements on or interests in the Properties, severance damages, any amounts for relocation
benefits and/or assistance pursuant to Government Code Sections 7260 et seq., loss of goodwill,
owner participation rights, business tenant preference rights, inverse condemnation, unreasonable
pre-condemnation activities, interest, costs, and litigation expenses. Except as provided in this
Agreement, Hayward Auto Imports shall not be entitled to receive and hereby waives all rights to
receive any compensation, damages, or other amounts by reason of such claims and releases the
Agency from any claim or cause of action for any damage related to the Agency's acquisition of
the Properties, and the tennination of the leasehold interests created by the Leases in the
Properties.
Section 3.
PAYMENT OF ALL-INCLUSIVE SETTLEMENT PA YMENT.
At the Closing (as defined in Section 5), and subject to the provisions of Section
7(a), the Agency shall pay in cash the All-Inclusive Settlement Payment to Hayward Auto
Imports.
Section 4.
OPENING ESCROW.
completion of the transactions contemplated by this Agreement. The Parties shall provide
escrow instructions to the Title Company consistent with this Agreement.
Section 5.
The Escrow for the transactions described below shall close (the "Closing")
simultaneously with the closings for the Agency's acquisition of the Properties, provided all
conditions precedent to the Closing set forth in this Agreement have been met. The Closing date
may be extended by mutual agreement of the Parties.
At the Closing, the Agency shall pay a Three Hundred Twenty Thousand Dollar
($320,000) portion (the "Initial Portion") of the All-Inclusive Settlement Payment (subject to the
provisions of Section 7(a)), and Hayward Auto Imports shall terminate, quit claim, relinquish,
release, and reconvey any right, title and interest of any type, nature or form that it may have in
and to the Properties, including, without limitation, termination, quit claim, relinquishment,
release, and reconveyance of the Leases and the leasehold interests created thereby in the
Properties by quit claim deeds (one for the 20449 Property and one for the 20095/97 Property) or
other recordable documents in fonn reasonably acceptable to the Agency and the Title Company
(the "Quit Claim Deeds"). The Agency shall pay the remaining Twenty Thousand Dollar
($20,000) portion of the All-Inclusive Settlement Payment (the "Final Portion") at a later date as
specified in Section 7(b).
The following are conditions to the Closing, which conditions may be waived solely by
the Agency:
3
Hayward Auto
(a)
The representations and warranties of Hayward Auto Imports set forth in
Section 8 below remain true and correct;
(b)
The Agency simultaneously closes upon and acquires the Properties
pursuant to the 20449 Purchase and Sale Agreement and the 20095/97 Purchase and Sale
Agreement; and
(c)
Hayward Auto Imports has made all legally required disclosures in writing
to the Agency within fifteen (15) calendar days after the Effective Date, and has promptly
updated any such disclosures as necessary through the Closing.
Section 6.
ESCROW; COSTS AND PROMnONS.
(a)
Prior to the Closing, Hayward Auto Imports and the Agency shall make
the deliveries into Escrow set forth in this Section 6.
(b)
Hayward Auto Imports hereby covenants and agrees to deliver or cause to
be delivered to the Title Company, on or prior to the Closing:
(1)
such proof of Hayward Auto Imports' authority and authorization
to enter into this Agreement and the transactions contemplated hereby, and such proof of the
power and authority of the individual(s) executing and/or delivery any instruments, documents or
certificates on behalf of Hayward Alito Imports to act for and bind Hayward Auto Imports as
may be reasonably required by the Title Company;
(2)
good and sufficient Quit Claim Deeds, in form and substance
reasonably acceptable to the Agency and the Title Company, to accomplish the purposes set
forth in the second paragraph of Section 5; and
(3)
any funds necessary for Hayward Auto Imports' share of the
Closing costs.
(c)
The Agency hereby covenants and agrees to deliver or cause to be
delivered to the Title Company, on or prior to the Closing, the following instruments and
documents:
(1)
this Agreement and the transaction contemplated hereby, and such proof of the power and
authority of the individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Agency to act for, bind the Agency and accept conveyance of the
Property as may be reasonably required by the Title Company; and
(2)
the Initial Portion of the All-Inclusive Settlement Payment in the
amount of Three Hundred Twenty Thousand Dollars ($320,000) and any additional funds
necessary for the Agency's share of the Closing costs.
4
Hayward Auto
(d)
At the Closing, the Title Company shall record the Quit Claim Deeds
against the Properties, and (subject to the provisions of Section 7(a)) shall deliver cash in the
amount of the Initial Portion of the All-Inclusive Settlement Payment to Hayward Auto Imports.
(e)
The following costs and expenses shall be borne or prorated as follows at
the Closing:
(I)
All property transfer taxes, if any, shall be shared equally between
(2)
All Escrow fees shall be shared equally between the parties.
the parties.
(3)
Hayward Auto Imports and the Agency shall each pay their own
legal fees and expenses incurred in connection with the transaction contemplated by this
Agreement.
Section 7.
REMOVAL OF PERSONAL PROPERTY.
(a)
Except as otherwise specified in subsection (b) below, prior to the Closing
and at its sole cost, Hayward Auto Imports shall cause to be removed from the Properties all
personal property, furniture, fixtures, and equipment of any type, nature, and description,
including, without limitation, all above-ground automotive lifts, reel hosing fluid delivery
systems, oil delivery systems, oil and all other fluid storage drums, outdoor canopies, all other
automotive servicing tools and equipment, all movable storage shelving units, computer system
components, and office furniture (collectively, the "Personal Property"). If the obligation set
forth in the preceding sentence is not satisfied at the time of the Closing, the Agency may elect to
proceed with the Closing or to delay the Closing until the obligation set forth in the preceding
sentence is satisfied. If the Agency elects to proceed with the Closing without full satisfaction
by Hayward Auto Imports of the obligation set forth in the first sentence of this subsection (a),
the Title Company shall hold back from payment to Hayward Auto Imports such amount of the
Initial Portion of the All-Inclusive Settlement Payment as the Agency reasonably determines in
writing to be necessary to pay the Agency's cost of removing any remaining Personal Property
(other than the Back Showroom Hydraulic Lifts as described in subsection (b) below) from the
Properties (the "Hold Back Amount"), and shall instead pay the Hold Back Amount to the
Agency.
(b)
Within ninety (90) days after the Closing and at its sole cost (but subject to
payment of the Final Portion of the All-Inclusive Settlement Payment as described below),
Hayward Auto Imports shall cause removal and off-site disposal of the seven (7) in-ground
single-post hydraulic automobile lifts which are each comprised of an above-ground rack and in
ground hydraulic lift apparatus, and which are located in the back storage room of the showroom
facility on the 20095/97 Property (the "Back Showroom Hydraulic Lifts"). In connection with
such removal, Hayward Auto Imports: (l) shall cause removal and off-site disposal of any
hazardous materials associated with the Back Showroom Hydraulic Lifts in a manner that is
consistent with all applicable federal, state and local hazardous materials laws and regulations,
and that meets the applicable standards to allow future use of the Properties consistent with the
Redevelopment Plan; and (2) shall cause the backfilling of any depressions caused by the
5
Hayward Auto
removal of the Back Showroom Hydraulic Lifts with clean fill to the same grade as immediately
surrounding areas of the Properties. Within five (5) days after satisfactory removal of the Back
Showroom Hydraulic Lifts, the Agency shall pay to Hayward Auto Imports the final portion of
the All-Inclusive Settlement Payment in the amount of Twenty Thousand Dollars ($20,000).
(c)
The Agency grants Hayward Auto Imports and its contractors and agents a
limited right of entry and license (the "Right of Entry") to enter upon the Properties for the
express and limited purpose of removing and disposing of the Back Showroom Hydraulic Lifts
in accordance with requirements of subsection (b) above. The term of the Right of Entry shall
commence on the Closing date and shall expire on the earlier of the date that Hayward Auto
Imports completes the removal and disposal of the Back Showroom Hydraulic Lifts in
accordance with the requirements of subsection (b) above or the date that is ninety-one (91) days
after the Closing date. Hayward Auto Imports shall give the Agency not less than forty-eight
(48) hours notice prior to its initial entry onto the Properties pursuant to the Right of Entry.
Upon expiration of the Right of Entry, Hayward Auto Imports shall execute a quit claim deed or
other recordable instrument reasonably requested by the Agency evidencing the termination of
Hayward Auto Imports' rights under the Right of Entry.
Hayward Auto Imports shall cause all activities to be conducted pursuant to
subsection (b) above and the Right of Entry (the "Right of Entry Activities") in accordance with
all applicable laws. Hayward Auto Imports shall take such actions as are necessary to prevent
any liens or encumbrances from attaching to the Properties as a result of the Right of Entry
Activities. In no event shall the Agency have any liability to any other person or entity for the
cost of, or with respect to the conduct of, the Right of Entry Activities.
Section 8.
WARRANTIES.
HAYWARD AUTO IMPORTS' REPRESENTAnONS AND
Notwithstanding any other provision contained in this Agreement, Hayward Auto
Imports hereby represents and warrants the matters set forth below to be true to the best of
Hayward Auto Imports' knowledge as of the date of this Agreement and as of the Closing.
(a)
Hayward Auto Imports has provided to the Agency all reports, documents
and information in Hayward Auto Imports' possession regarding the Properties, and such reports,
documents and information are and shall be, to the best of Hayward Auto Imports' knowledge,
complete, true and correct.
(b)
To the best of Hayward Auto Imports' knowledge there are no Hazardous
Materials on the Properties. For the purposes of this Agreement, the term "Hazardous Materials"
shall include, without limitation any hazardous or toxic materials, substances or wastes, such as:
substances defined as "hazardous substances", "hazardous
materials" or "toxic substances" in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 USC Section 9601, et seq.) and/or the Hazardous
Materials Transportation Act (49 USC Section 1801, et seq.), as either of such acts are amended
from time to time;
(I)
6
Hayward Auto
(2)
(3)
those materials defined in Section 255010) of the California
Health and Safety Code, as amended from time to time;
(4)
corrosive or reactive and which are regulated by any local governmental authority, any city of
the State of California or any agency ofthe United States Government;
(5)
asbestos, petroleum and petroleum based products, urea
formaldehyde foam insulation, polychlorinated biphenyls (PCBs), and freon and other
chlorofluorocarbons; and
(6)
(c)
Hayward Auto Imports has the legal power, right and authority to enter
into this Agreement and the instruments and documents referenced in this Agreement, and to
consummate the transaction contemplated hereby.
(d)
agreement, instrument, or other obligation to which Hayward Auto Imports is a party or by
which Hayward Auto Imports or the Properties may be bound.
(e)
There is no claim, action, litigation, arbitration or other proceeding
pending or threatened against Hayward Auto Imports which relates to the Properties or the
transactions contemplated hereby, or which could result in the imposition of a lien against the
Properties or any portion thereof, or have an adverse effect on the Properties or any portion
thereof, or the operation of the Properties or any portion thereof. If Hayward Auto Imports
receives notice of any such claim, litigation, arbitration or proceeding prior to the Closing,
Hayward Auto Imports shall promptly notify the Agency ofthe same in writing.
(t)
affecting the Properties, or any portion thereof, nor does Hayward Auto Imports have any
knowledge that any such action is contemplated.
(g)
There will be no management agreements, contracts, warranties,
guaranties, bonds or other agreements which will affect or will be obligations of the Agency or
the Properties which cannot be terminated on thirty (30) days prior notice, including without
limitation, maintenance contracts, design services contracts, construction contracts, architects
agreements, parking agreements other than as disclosed to Agency or as specifically approved by
Agency.
7
Hayward Auto
(h)
As of the date of this Agreement and the Closing, the Leases for the
Properties are on the terms set forth in the Leases delivered to the Agency by Hayward Auto
Imports in connection with execution of this Agreement.
(i)
To the best of Hayward Auto Imports' knowledge, neither the Properties
nor Hayward Auto Imports is in violation of, and Hayward Auto Imports has not received any
written notice of any violation of, any law, ordinance, regulation, order or requirement applicable
to the Properties including without limitation, requirements imposed under any recorded
covenants, conditions, restrictions, easements or other rights affecting the Properties. If
Hayward Auto Imports receives such a notice prior to the Closing, Hayward Auto Imports shall
immediately notify Agency.
All pennits, licenses, certificates, entitlement, grants of right and any other
approval required for Hayward Auto Imports' leasehold, use and occupancy of the Properties
shall have been obtained from all appropriate authorities.
U)
During the tenn ofthis Agreement, Hayward Auto Imports shall have a continuing
duty to notify the Agency of any material facts in Hayward Auto Imports' knowledge which
would render any of the representations or warranties set forth above false. Such duty shall not,
however, abrogate nor limit the Agency's independent obligation to perfonn its own
investigation into the Properties.
Section 9.
INDEMJ\fIFICATION.
(a)
Hayward Auto Imports hereby agrees to defend, indemnify and hold the
Agency and its board members, employees, representatives, agents, and attorneys hannless from
and against any and all claims, liens, demands, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders, and all costs incurred in connection
therewith (including without limitation actual attorneys' fees and costs of experts and
consultants) arising from:
(1)
any obligation of Hayward Auto Imports not expressly assumed by
the Agency;
(2)
personal injury or property damage relating to the Properties which
occurred prior to the Closing and not caused by the acts or omissions of the Agency or the
Agency's agents, employees, or invitees;
(3)
(4)
under this Agreement; and
conduct of the Right of Entry Activities pursuant to Section 7;
the breach of any of Hayward Auto Imports' representations made
(5)
the release or presence of hazardous materials on the Properties
that existed prior to the Closing.
8
Hayward Auto
(b)
The Agency hereby agrees to defend, indemnify, and hold Hayward Auto
Imports harmless from and against any and all claims, liens, demands, losses, damages,
liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, and all
costs incurred in connection therewith (including without limitation actual attorneys' fees and
costs of experts and consultants) arising from personal injury or property damage relating to the
Properties which occurs after the Closing or as a direct result of the Agency's acts or omissions.
(c)
Section 10.
The Agency and Hayward Auto Imports each represent to the other that they have not
dealt with any real estate broker or agent in relation to this transaction. The Agency and
Hayward Auto Imports (each, reciprocally, as an "Indemnitor") agree to indemnify and hold the
other (as "Indemnitee") harmless from all expense, loss, damage and claims, including the
Indemnitee's attorneys' fees, if necessary, arising out the Indemnitor's breach of the foregoing
representation and covenant. The indemnifications set forth in this Section 15 shall survive
Section 11.
NOTICES.
All notices required or permitted under this Agreement shall be in writing. Unless
otherwise provided herein, any notice, tender or delivery to be given pursuant to this Agreement
by either party may be accomplished by personal delivery, by first class certified mail, return
receipt requested, by delivery via an overnight courier which guarantees next day delivery, or by
facsimile delivery with simultaneous delivery by first class mail. Any notice delivered by
certified mail, return receipt requested shall be deemed received on the date of delivery reflected
on the return receipt. Any notice delivered by overnight shall be deemed received one (l)
business day after deposit thereof with the overnight courier. Any notice delivered by facsimile
shall be deemed received one (l) business day after its transmission, provided that written
confirmation of receipt is received and the notice is contemporaneously deposited in the United
States Mail, first class, with postage affixed. Mailed notices shall be addressed as set forth
below, but each Party may change its address by written notice in accordance with this Section
16, on not less than ten (10) days prior written notice.
To Agency:
Hayward, CA 94544
To Hayward Said Barzegar
Auto Imports: 1055 Mountain Shadows Road
San Jose, CA 95120
9
Hayward Auto
Section 12.
In the event of a breach of this Agreement by a Party, the non-breaching Party shall be
performance.
Section 13.
(a)
This Agreement contains the entire agreement of the Parties. Any
previous understandings of the Parties regarding the subject matter hereof are expressly declared
null and void and are superseded by this Agreement.
(b)
(c)
Agreement, and no waiver shall be valid unless in writing and executed by the waiving Party.
No extension of time for performance of any obligation or act shall be deemed an extension of
the time for performance of any other obligation or act.
(d)
(e)
The singular form shall include plural and the masculine shall include the feminine and vice
versa. This Agreement shall not be construed as if it had been prepared by one of the Parties, but
rather as ifboth Parties have prepared the same. Unless otherwise indicated, all references to
sections are to this Agreement. All exhibits referred to in this Agreement are attached to and
incorporated in this Agreement by this reference.
(f)
Each and every representation, warranty, covenant and obligation of
Hayward Auto Imports shall not merge with transfer of title, but shall survive the Closing.
(g)
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which taken together shall constitute but one and
the same instrument. The execution of this Agreement shall be deemed to have occurred, and
this Agreement shall be enforceable and effective, only upon the complete execution of this
Agreement by Hayward Auto Imports and the Agency.
(h)
Time is of the essence of each and every condition, and of each term and
(i)
entitled to recover its reasonable attorneys' fees from the non-prevailing Party.
10
Hayward Auto
U)
California law.
If the day for performance under any time period specified in this
(k)
Agreement shall fall on a Saturday, Sunday or holiday observed by the federal government or the
State of California, then the time for performance under such time period shall automatically be
extended to the next business day; provided, however, that the term "days" as used to compute
time periods in this Agreement shall not be construed to mean "business days." Further, if a
Party so requests after the complete execution of this Agreement, the Parties shall reduce to
writing those dates related to performance under this Agreement capable of being ascertained
upon such execution.
11
Hayward Auto
WHEREFORE, the Parties have executed this Agreement on the date first written above.
AGENCY:
ATTEST:
, REDEVELOPMENT AGENCY
ALAMEDA
or THE COU1\TY OF
By:
Scott Haggerty, President of the Board of Directors
Agency Secretary
HAYWARD AUTO IMPORTS:
'..
I~., a California
corporation
By:
Said Bar
APPROVED AS TO FORM
Richard E. Winnie, County Counsel
BY_.~~
By sign ing above. signatory warrants and represents that
he/she executed this Agreement in his/her authorized
capacity and that by his/her signature on this Agreement.
he/she or the entity upon behal f of wh ich he/she acted,
executed this Agreement
Brian Washington
12
Hay'Ward Auto
EXHIBIT A
LEGAL DESCRIPTION OF THE 20449 PROPERTY
PARCEL 1:
PARCEL 2:
PARCEL 3:
NO. 965, FILED JANUARY 17, 1973, IN BOOK 76 OF PARCEL MAPS, PAGE 89, ALAIVlEDA COUNTY
RECORDS.
PARCEL 4:
33° 02' 10" EAST, 131.33; THENCE NORTH 81 ° 40' 10" EAST, 66.47 FEET TO THE AFORESAID
A-I
EXHIBITB
LEGAL DESCRIPTION OF TIIE 20095/97 PROPERTY
EDEN, COUN1Y OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
PARCEL TWO::
certain Map entitled "Map of lewelling Fruit Farms, San Lorenzo, Alameda Co., cal.", filed for record April 5,
Southwesterly boundary line ofthat certain 1.342 acre parcel of land described in the Deed from Eli Lewelling
parcel of land described in said Deed dated October 13, 1959 the follOWing two courses and distances, namely:
feet, through a central angle of 12° 11' 32", and tangent at the Easterly tenninus thereof to a line which has a
APN: 414-0021-061, 414-0021-060
B-1
CLTA Preliminary Report Form - ModIfied (11/17/06)
RESOLUTION NO.
_
RESOLUTION OF THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF
THE COUNTY OF ALAMEDA AUTHORIZING EXECUTION OF A PURCHASE AND SALE
AGREEMENT AND RESULTING ACQUISITION OF PROPERTY IN THE COUNTY OF
ALAMEDA-CITY OF SAN LEANDRO JOINT REDEVELOPMENT PROJECT AREA THAT
WILL ALSO DIRECTLY BENEFIT THE REDEVELOPMENT OF THE CHERRYLAND
SUBAREA OF THE EDEN AREA REDEVELOPMENT PROJECT AREA, AND MAKING
STATUTORY FINDINGS IN CONNECTION THEREWITH
WHEREAS, pursuant to the California Community Redevelopment Law (Health and
Safety Code Section 33000 et seq.; the "Redevelopment Law"), the Board of Supervisors (the
"Board of Supervisors") of the County of Alameda (the "County") has adopted and the
Redevelopment Agency of the County of Alameda (the "Agency") is responsible for
implementing:
1.
the Redevelopment Plan for the County of Alameda-City of San Leandro
Redevelopment Project (as amended, the "Joint Project Redevelopment Plan") pertaining to the
redevelopment project area as described therein, and in particular the unincorporated portion
thereof that is under the redevelopment jurisdiction of the Agency (the "Joint Project Area"); and
2.
the Redevelopment Plan for the Eden Area Redevelopment Project (the "Eden
Area Redevelopment Plan") pertaining to the redevelopment project area as described therein
(the "Eden Area Project Area"), with particular reference to the Cherryland subarea (the
"Cherryland Subarea") of the Eden Area Project Area; and
WHEREAS, the Agency desires to cause the comprehensive, coordinated and effective
redevelopment of the unincorporated commercial and residential neighborhood generally known
as the Cherryland District, which includes:
1.
a commercial district generally located along Mission Boulevard in the Joint
Project Area; and
2.
a residential neighborhood generally located in the Cherryland Subarea of the
Eden Area Project Area and immediately surrounding the commercial district in the Joint Project
Area; and
WHEREAS, while the Joint Project Area was established at an earlier date (1993) than
the Eden Area Project Area (2000) so that commercial redevelopment activities for the
Cherryland District could be initiated as early as possible, the redevelopment of both the
commercial portion of the Cherry/and District in the Joint Project Area and the residential portion
of the Cherryland District in the immediately surrounding Cherryland Subarea of the Eden Area
Project Area are integrally and inextricably related and are being undertaken by the Agency to
create a unified and comprehensive redevelopment of the entire Cherryland District; and
WHEREAS, to assist in implementing the redevelopment of the Cherryland District
within both the Joint Project Area and the Eden Area Project Area (together, the "Project
Areas") pursuant to the Joint Redevelopment Plan and the Eden Area Redevelopment Plan
(together, the "Redevelopment Plans"), the Agency has adopted a five-year implementation
1
plan for each redevelopment plan and project area (together, the "Implementation Plans")
pursuant to Section 33490 of the Redevelopment Law; and
WHEREAS, pursuant to the Redevelopment Plans and Section 33391 of the
Redevelopment Law, the Agency is authorized to acquire real property within the Project Areas
for purposes of redevelopment; and
WHEREAS, the Agency desires to acquire from Said Barzegar and Kathleen o. Lyons
Barzegar (collectively, the "Property Owners") certain land in the Joint Project Area and
immediately adjacent to the Cherryland Subarea of the Eden Area Project Area, located at
20095 and 20097 Mission Boulevard, and consisting specifically of Assessor's Parcel Numbers
414-0021-078-00, 414-0021-079-00, and 414-0021-080-00 (the "Property"); and
WHEREAS, concurrently with acquisition of the Property, the Agency desires to acquire
an adjacent property (the "Adjacent Property") consisting of Assessor's Parcel Numbers 414
0021-060-00 and 414-0021-061-00; and
WHEREAS, the Property and the Adjacent Property (together, the "Redevelopment
Site") comprise a strategic commercial property within the Cherryland District that was formerly
the site of an auto dealership, most recently Hayward Auto Imports but that is currently unused;
and
WHEREAS, timely and effective redevelopment of the Redevelopment Site through
Agency acquisition and subsequent disposition in accordance with the Redevelopment Plans is
essential to the continuing successful redevelopment of the Cherryland District in both Project
Areas; and
WHEREAS, for reasons set forth in the Board Letter accompanying this Resolution and
summarized in this Resolution, acquisition of the Property from the Property Owners will serve
the goals and objectives for redevelopment of the Project Areas set forth in the Redevelopment
Plans and is consistent with the Implementation Plans, the County's General Plan (the "General
Plan"), and the Ashland Cherryland Business District Specific Plan (the "Specific Plan")
approved by the Board of Supervisors on June 1, 1995; and
WHEREAS, Agency staff has negotiated the acquisition of the Property from the
Property Owners for the purchase price of Two Million Two Hundred Thirty Thousand Dollars
($2,230,000) pursuant to the terms of a Purchase and Sale Agreement (the "Purchase and Sale
Agreement", which includes a legal description of the Property), a copy of which is on file with
the County Clerk; and
WHEREAS, in addition to the purchase price, the Agency shall pay to Hayward Auto
Imports and Said Barzegar, President of Hayward Auto Imports, the sum of Three Hundred
Forty Thousand Dollars ($340,000) as full consideration and compensation for any and all
relocation benefits, business goodwill value and the termination of the leasehold interest created
by all of the leases the two existing leases associated with the Redevelopment Site; and
WHEREAS, acquisition of the Property by the Agency will enable the Agency eventually
to convey the Property either to a qualified private redeveloper pursuant to a disposition and
development agreement or other suitable conveyance document, or to the County or other
public entity for development of suitable public improvements pursuant to a public
improvements development agreement (collectively, a "Redevelopment Agreement") for
redevelopment consistent with the Redevelopment Plans, the Specific Plan, and the General
Plan; and
2
WHEREAS, by action of October 6, 2008, the Planning Commission of the County found
and determined, in accordance with Government Code Section 65402, that the acquisition of
the Agency Parcel as contemplated in this Resolution and the Purchase and Sale Agreement
conforms to the General Plan; and
WHEREAS, in considering approval of this Resolution and the Purchase and Sale
Agreement, the Agency has complied with and will comply with the requirements of the
California Environmental Quality Action ("CEQA") in the manner set forth below; and
WHEREAS, the Board Letter and the Purchase and Sale Agreement (collectively, the
"Supporting Documents") have been presented to and considered by the Agency in support of
the findings and approvals set forth in this Resolution; are hereby incorporated by reference in
this Resolution; and, together with the above recitals (the "Recitals"), form the evidentiary basis
and establish the analytical route for reaching the ultimate findings and conclusions contained in
this Resolution.
NOW, THEREFORE, BE IT RESOLVED, by the Governing Board of the Redevelopment
Agency of the County of Alameda, as follows:
Section 1. Recitals Correct. The Agency finds that the above Recitals are true and
correct and have served, together with the Supporting Documents, as the basis for the findings
and approvals set forth below.
Section 2. CEQA Actions.
a.
In connection with approval of the Specific Plan, the County prepared and
the Board of Supervisors approved a Negative Declaration (the "Specific Plan Negative
Declaration") pursuant to the requirements of CEQA that determined that the adoption and
implementation of the Specific Plan would not result in the occurrence of any unmitigated
significant environmental impacts. The acquisition of the Property pursuant to the Purchase
and Sale Agreement is consistent with and in furtherance of the General Plan and the Specific
Plan, and any future use of the Property must be consistent with and in furtherance of the
General Plan and the Specific Plan.
b.
Further, none of the following conditions has occurred since the
preparation and approval of the Specific Plan Negative Declaration that would preclude the use
of the Specific Plan Negative Declaration as the document for consideration of the
environmental effects of the acquisition of the Property pursuant to the Purchase and Sale
Agreement (see 14 Cal Code of Regulations Section 15162):
1.
there have not been substantial changes related to the acquisition
or potential development of the Property in accordance with the Specific Plan which would
require major revisions to the Specific Plan Negative Declaration;
2.
there have not been substantial changes with respect to the
circumstances under which the acquisition and potential future development of the Property in
accordance with the Specific Plan would be implemented which would require major revisions in
the Specific Plan Negative Declaration; and
3.
there has not been the appearance of new information which was
not known and could not have been known as of the date of approval of the Specific Plan
Negative Declaration which is relevant to the approval of Specific Plan Negative Declaration.
3
c.
For the reasons set forth in subsection b. and c. above, the Specific Plan
Negative Declaration has served as the environmental document pursuant to CEQA for the
Agency's consideration of approval of this Resolution and the acquisition of the Property
pursuant to the Purchase and Sale Agreement.
d.
In addition, in conformance with 14 California Code of Regulations
Section 15004(b)(2)(A), the Agency's future reuse of the Property through conveyance to a
private redeveloper or a public entity pursuant to a Redevelopment Agreement or otherwise
shall be conditioned upon prior completion of any further CEQA compliance that is required
under the circumstances of such reuse.
e.
Based on the foregoing CEQA considerations, the Agency Executive
Director is authorized and directed to file the appropriate notice of determination document
pursuant to CEQA in connection with the actions and approvals set forth in this Resolution.
Section 3. Additional Findings. Based on the information and analysis contained in
the Recitals and the Supporting Documents, the Agency hereby finds that acquisition of the
Property pursuant to the Purchase and Sale Agreement will serve the goals and objectives for
redevelopment of the Project Areas set forth in the Redevelopment Plans and is consistent with
the Implementation Plans.
Section 4. Approval of Agreement; Execution of Documents. The Agency hereby
approves the Purchase and Sale Agreement, and the obligations of the Agency under the
Purchase and Sale Agreement, and authorizes the Agency Board President or the Agency
Executive Director to execute the Purchase and Sale Agreement on behalf of the Agency,
substantially in the form on file with the County Clerk. This Resolution constitutes the resolution
of acceptance by the Agency of the Property from the Property Owners for purposes of
Government Code Section 27281.
Section 5. Appropriation of Funds. The Agency hereby approves and appropriates
(to the extent not already appropriated) the amounts necessary to fund the Agency's obligations
under the Purchase and Sale Agreement, using tax increment revenues from the Cherryland
Subarea of the Eden Area Project Area ("Cherryland Subarea Tax Increment"), as a lawful
expenditure of Agency funds under the Redevelopment Law. The Agency's current fiscal year
budget is hereby amended to the extent necessary to implement the foregoing appropriation. In
making the appropriation from Cherryland Subarea Tax Increment to acquire the Property in the
immediately adjacent Joint Project Area, the Agency finds and determines that:
a.
While historically part of the Joint Project Area, the Property and the
entire Redevelopment Site are physically and economically integrally related to the Cherryland
Subarea of the Eden Area Project Area, and constitute a key commercial site whose
redevelopment is essential to the overall viability of the Cherryland District and the wellbeing of
its residents and businesses; and
b.
Consequently, the acquisition and redevelopment of the Property and the
entire Redevelopment Site will serve the purposes of both Redevelopment Plans and will be of
direct benefit to both Project Areas, such that it is appropriate to appropriate and use Cherryland
Subarea Tax Increment to fund the acquisition of the Property.
Section 6. Further Actions and Documents. The Agency Executive Director or the
Executive Director's designee, following consultation with Agency General Counsel, is
4
authorized to take all actions and execute all documents on behalf of the Agency necessary to
effectuate the purpose of this Resolution and the Purchase and Sale Agreement.
Section 7. Effective Date. This Resolution shall become effective immediately upon its
passage and adoption.
5
PASSED AND ADOPTED by the Governing Board of the Redevelopment Agency of the County
of Alameda at a regular meeting of said Board on the 4th day of November, 2008, by the
following vote of said Board:
AYES:
NOES:
EXCUSED:
President, Board of Supervisors
ATTEST:
Crystal K. Hishida, Clerk
Board of Supervisors
By:
_
Deputy
Approved as to Form:
RICHARD E. WINNIE, County Counsel
BY:.~~
Date:
Brian Washington
_
6

Attachment - Alameda County

Transcription

Similar documents

2013 – August

2014 – September - Cherryland Community Association

Pier 1 Imports Building

Shamaley Chime N` Rhyme Making Music

Optical Component Measuring Systems

Get a car loan .... that`s in your best interest

View - Delaware Valley Regional Planning Commission

Let`s Ride! - Hawaii Automobile Dealers Association

notice of public hearing

Draft Ensley Plan_2016

here. - Hawaii Automobile Dealers Association

Transforming Russia`s Auto Industry