HomeMy WebLinkAbout2013 08-20 CC HA AGENDA PKTRON MORRISON
Mayor
LUIS NATIVIDAD
Vice Mayor
JERRY CANO
Councilmember
MONA RIOS
Councilmember
ALEJANDRA SOTELO-SOLIS
Councilmember
1243 National City Blvd.
National City, CA 91950
619-336-4300
Meeting agendas and
minutes available on web
WWW. NATIONALCITYCA. GO V
AGENDA OF A REGULAR MEETING - NATIONAL CITY CITY COUNCIL/
COMMUNITY DEVELOPMENT COMMISSION — HOUSING AUTHORITY OF
THE CITY OF NATIONAL CITY
COUNCIL CHAMBERS
CIVIC CENTER
1243 NATIONAL CITY BOULEVARD
NATIONAL CITY, CALIFORNIA
TUESDAY, AUGUST 20, 2013 — 6:00 PM
ORDER OF BUSINESS: Public sessions of all Regular Meetings of the
City Council / Community Development Commission - Housing
Authority (hereafter referred to as Elected Body) begin at 6:00 p.m. on
the first and third Tuesday of each month. Public Hearings begin at
6:00 p.m. unless otherwise noted. Closed Sessions begin at 5:00 p.m.
or such other time as noted. If a workshop is scheduled, the subject
and time of the workshop will appear on the agenda. The Mayor and
Council members also sit as the Chairperson and Members of the
Board of the Community Development Commission (CDC).
REPORTS: All open session agenda items and reports as well as all
documents and writings distributed to the Elected Body Tess than 72
hours prior to the meeting, are available for review at the entry to the
Council Chambers. Regular Meetings of the Elected Body are webcast
and archived on the City's website www.nationalcityca.gov.
PUBLIC COMMENTS: Prior to the Business portion of the agenda, the
Elected Body will receive public comments regarding any matters
within the jurisdiction of the City and/or the Community Development
Commission. Members of the public may also address any item on the
agenda at the time the item is considered by the Elected Body.
Persons who wish to address the Elected Body are requested to fill out
a "Request to Speak" form available at the entrance to the City Council
Chambers, and turn in the completed form to the City Clerk. The Mayor
or Chairperson will separately call for testimony of those persons who
have turned in a "Request to Speak" form. If you wish to speak, please
step to the podium at the appropriate time and state your name and
address (optional) for the record. The time limit established for public
testimony is three minutes per speaker unless a different time limit is
announced. Speakers are encouraged to be brief. The Mayor or
Chairperson may limit the length of comments due to the number of
persons wishing to speak or if comments become repetitious or
irrelevant.
WRITTEN AGENDA: With limited exceptions, the Elected Body may
take action only upon items appearing on the written agenda. Items
not appearing on the agenda must be brought back on a subsequent
agenda unless they are of a demonstrated emergency or urgent
nature, and the need to take action on such items arose after the
agenda was posted.
Upon request, this agenda can be made available in appropriate alternative formats to persons with a
disability in compliance with the Americans with Disabilities Act. Please contact the City Clerk's Office at
(619) 336-4228 to request a disability -related modification or accommodation. Notification 24-hours prior
CC/CDC Agenda
8/20/2013 — Page 2
to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this
meeting.
Spanish audio interpretation is provided during Elected Body Meetings. Audio headphones are available
in the lobby at the beginning of the meeting.
Audio interpretacion en espanol se proporciona durante sesiones del Consejo Municipal. Los audiofonos
estan disponibles en el pasillo al principio de la junta.
COUNCIL REQUESTS THAT ALL CELL PHONES AND PAGERS BE TURNED OFF DURING CITY
COUNCIL MEETINGS.
CC/CDC Agenda
8/20/2013 — Page 3
OPEN TO THE PUBLIC
CITY COUNCIL / COMMUNITY DEVELOPMENT COMMISSION AGENDA
CALL TO ORDER
ROLL CALL
PLEDGE OF ALLEGIANCE TO THE FLAG
PUBLIC ORAL COMMUNICATIONS (THREE -MINUTE TIME LIMIT)
PROCLAMATIONS
PRESENTATIONS
1. Recognition of Student Council Representatives. (Mayor / City Council)
2. Port of San Diego Update - Port Commissioner Robert (Dukie)
Valderrama
3. Trolley Renewal Blue Line Improvements Update - San Diego Association
of Governments (SANDAG)/ San Diego Metropolitan Transit System -
Bruce Schmith, SANDAG.
INTERVIEWS / APPOINTMENTS
CONSENT CALENDAR
4. Resolution of the City Council of the City of National City 1) awarding a
contract in the not to exceed amount of $4,212,486.25 to Pal General
Engineering, Inc. for the Community Corridor Improvements Project,
Specification No. 12-05; 2) authorizing a 15% contingency in the amount
of $631,872.94 for any unforseen changes; and 3) authorizing the Mayor
to execute the contract. (CIP Project funded by various grants, and Prop
A) (Engineering)
5. Resolution of the City Council of the City of National City accepting an
encroachment agreement between the City of National City and Kamel
Family Trust for the installation and maintenance of a pedestrian ramp
within the City reserved right-of-way of National City Boulevard to provide
Americans with Disabilities Act (ADA) access to the property located at
421 National City Boulevard. (Engineering)
CC/CDC Agenda
8/20/2013 — Page 4
6. Resolution of the City Council of the City of National City authorizing an
amendment to the 2012 Regional Transportation Improvement Program
(RTIP) for National City to allocate $8,000 of local TransNet (Prop A)
funding for the Traffic Signal Install/Upgrades Project to satisfy National
City's "fair share" contribution towards the annual cost of Regional Arterial
Management System (RAMS) operations support services for FY 2014
(Funded by Prop A). (Engineering)
7. Resolution of the City Council of the City of National City 1) awarding a
contract in the not to exceed amount of $1,199,139.75 to Ramona Paving
and Construction Corp. for the 8th Street Safety Enhancement Project,
Specification Number 12-15; 2) authorizing a 15% contingency in the
amount of $179,870.96 for any unforeseen changes; and 3) authorizing
the Mayor to execute the contract. (Funded by HSIP Grant and
Proposition A Funds). (Engineering)
8. Resolution of the City Council of the City of National City: 1) approving an
Amendment to increase the amount of the Agreement Contract No.
CT#1752 with the National School District to $1,185,538 for the Library to
provide a before and after -school program during the 2013-2014 school
year at the District's ten schools; and 2) authorizing the City Librarian to
execute said Amendment. (Library)
9. Temporary Use Permit - 12th Annual 9/11 Remembrance Ceremony
hosted by the National City Fire Department at 343 E. 16th Street on
September 11, 2013 from 6:00 a.m. to 10:00 a.m. This is a city -sponsored
event. (Neighborhood Services)
10. Investment Report for the quarter ended June 30, 2013. (Finance)
11. Warrant Register #3 for the period of 07/10/13 through 07/16/13 in the
amount of $895,639.59. (Finance)
12. Warrant Register #4 for the period of 07/17/13 through 07/23/13 in the
amount of $1,012,486.71. (Finance)
PUBLIC HEARINGS
13. A Public Hearing to consider the updated Sewer System Management
Plan (SSMP), as required by State Water Resources Control Board Order
No. 2006-0003-DWQ. (Public Works)
14. Public Hearing - Appeal of Planning Commission Revocation of
Conditional Use Permit 2010-33 CUP for live entertainment at an existing
bar/restaurant located at 105 E. 8th Street (Case File No.: 2013-11 R).
(Planning)
ORDINANCES FOR INTRODUCTION
CC/CDC Agenda
8/20/2013 — Page 5
ORDINANCES FOR ADOPTION
15. An Ordinance of the City Council of the City of National City amending
Chapter 1.08 of the National City Municipal Code pertaining to Official City
Seals, Logos, Insignias, Badges, and Names. (City Attorney)
NON CONSENT RESOLUTIONS
16. Resolution of the City Council of the City of National City approving the
updated Sewer System Management Plan (SSMP), as required by State
Water Resources Control Board Order No. 2006-0003-DWQ. (Public
Works)
17. Resolution of the City Council of the City of National City authorizing the
Mayor to execute a Purchase and Sale Agreement by and between the
City of National City and Alturas Imperial LLC for the sale of a recently
vacated portion of 'G' Avenue, south of East 24th Street in National City.
(Planning)
18. Resolution of the City Council of the City of National City authorizing the
reallocation of $2,095,492 of U.S. Department of Housing and Urban
Development HOME Investment Partnerships entitlement grant funds to
the Community Development Commission- Housing Authority of the City
of National City to be used for the acquisition and development of a 4.143
acre parcel of land at the corner of 22nd and Hoover Avenue for Phase I
of the Westside In -fill Transit Oriented Development Project comprised of
109 affordable rental units. (Housing, Grants, and Asset Management
Department)
19. Resolution of the City Council of the City of National City authorizing the
Mayor to execute a Purchase and Sale Agreement with the Community
Development Commission - Housing Authority of the City of National City
("CDC -HA") for the sale of two parcels of land totaling 6.299 acres for a
total purchase price of $7,035,000, generally bounded by 19th Street,
Harding Avenue, 22nd Street, and Hoover Avenue, in the City of National
City, for the development of 201 affordable housing units as Phase I and II
of the Westside In -fill Transit Oriented Development Project, approving a
loan from the City of National City to the CDC -HA for $4,941,000 to
complete said purchase, and approving the Month -to -Month Leaseback of
the subject property from the CDC -HA. (Housing, Grants, and Asset
Management Department)
20. Resolution of the City Council of the City of National City authorizing the
Mayor to execute a Purchase and Sale Agreement with Robert T.
Comartin and David P. Comartin for the purchase of property located at
1726 Wilson Avenue for the total purchase price of $1,650,000 for the
relocation of the National City Public Works facilities from 2100 Hoover
CC/CDC Agenda
8/20/2013 — Page 6
Avenue in the City of National City allowing for the development of 201
affordable rental housing units as Phase I and II of the Westside In -fill
Transit Oriented Development Project (Housing, Grants, and Asset
Management Department)
NEW BUSINESS
21. Notice of Decision - Planning Commission approval of a Conditional Use
Permit for the sale of secondhand jewelry, gold, and/or other precious
metals at a retail jewelry store located at 1536 Sweetwater Road, Suite D.
(Applicant: Leo Hamel Fine Jewelers) (Case File 2013-17 CUP) (Planning)
22. Proposed date of October 8, 2013 for a City Council Workshop on City
Council Policy Manual (Chapters 200 - 500). (City Manager)
23. City Council Review of League of California Cities 2013 Annual
Conference Resolutions. (City Manager)
COMMUNITY DEVELOPMENT COMMISSION -HOUSING AUTHORITY
24. Resolution of the Community Development Commission of the City of
National City approving the Section 8 Management Assessment Program
(SEMAP) for Fiscal Year ending June 30, 2013 and authorizing the
submittal of the SEMAP to the U.S. Department of Housing and Urban
Development. (Housing, Grants and Asset Management)
PUBLIC HEARINGS- HOUSING AUTHORITY
NON CONSENT RESOLUTIONS- HOUSING AUTHORITY
25. Resolution of the Community Development Commission -Housing
Authority of the City of National City Authorizing the Chairman to execute
a Purchase and Sale Agreement with the City of National City for the
purchase of two parcels totaling 6.299 acres, generally bounded by 19th
Street, Harding Avenue, 22nd street, and Hoover Avenue, in the City of
National City for the development of 201 affordable housing units as
Phase I and II of the Westside In -fill Transit Oriented Development
Project, accepting a Home allocation of $2,095,492 from the City of
National City, authorizing the use of the Home allocation for the partial
payment of the property purchase, authorizing the executive director or
designee to execute a Promissory Note for $4,941,000 payable to the City
of National City to complete said purchase, and approving a Month -to -
Month Leaseback to the City of National City of said property. (Housing,
Grants, and Asset Management Department)
NEW BUSINESS- HOUSING AUTHORITY
STAFF REPORTS
CC/CDC Agenda
8/20/2013 — Page 7
26. Trash and Recyclables collected from National City's cleanup event.
(Public Works)
27. City of National City - Designation as a "Purple Heart City" (City Manager)
MAYOR AND CITY COUNCIL
28. Report on Project Interchange - Bi-Partisan Delegation of San Diego
Officials' Educational Visit to Israel. (Councilmember Sotelo-Solis)
CLOSED SESSION REPORT
ADJOURNMENT
Regular City Council/Community Development/Housing Authority of the
City of National City Meeting - Tuesday - September 3, 2013 - 6:00 p.m. -
Council Chambers - National City, California.
Item # 1
08/20/13
RECOGNITION OF
STUDENT COUNCIL REPRESENTATIVES
(Mayor / City Council)
ITEM # 2
8/20/13
PORT OF SAN DIEGO UPDATE
PORT COMMISSIONER
ROBERT (DUKIE) VALDERRAMA
ITEM #3
8-20-13
TROLLEY RENEWAL
BLUE LINE IMPROVEMENTS UPDATE
SAN DIEGO ASSOCIATION OF GOVERNMENTS/
SAN DIEGO METROPOLITAN TRANSIT SYSTEM
BRUCE SCHMITH
SANDAG
Trolley Renewal
Blue Line Improvements
Presentation to
National City City Council
August 20. 2013
The Trolley Renewal Project
Agencies 4. SANDAG any; NITS
Cost 4 approximately 5660 million
Funding 4 TransNet. California Proposition 1A and
1B. American Recovery and Reinvestment Act of 2009
SAItAlf,yliGar 1 i <i ,, ANTS
2
Corridor Improvement Map
DOVVNTOVVN/GREEN/ORANGE
LINE STATIONS (COMPLETED)
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Blue Line Work Begins August 2013
— Barrio Logan
— Harborside
— Pacific Fleet
CONSTRUCTION SCHEDULE
Monday - Saturday
7 a.m. to 6 p.m.
Occasional nightisunday work
National City stations will begin construction in late October to
early November.
Construction will last approximately five to eight months at
each station.
All stations will remain open during
construction.
4NiJ G p ; t;sl ',-.i MTS
11
Trolley Renewal Communications
Construction advisories
Maps
Door hangers
Interactive website page
A -frames
Kiosk
c Southbound
ue Line Ironer
Weekend Service
Newsletter mailer
(English/Spanish)
sent to 25,000
residents and
businesses along
Trolley Blue Line
from Barrio Logan
to San Ysidro in
August 2013.
SANDAAG.r 7t;+(r:;;i;°t MTS
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For more information:
KeepSanDiegoMoving.com/Trolley
SDMTS.com
Trolley Renewal Hotline: (866) 497-2326
SANDAGj. / c: MTS
14
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 4
ITEM TITLE:
Resolution of the City Council of the City of National City, 1) awarding a contract in the not to exceed amount of
$4,212,486.25 to Pal General Engineering, Inc. for the Community Corridor Improvements Project, Specification
Number 12-05; 2) authorizing a 15% contingency in the amount of $631,872.94 for any unforeseen changes;
and 3) authorizing the Mayor to execute the contract. (CIP Project funded by various grants, and Prop A)
PREPARED BY: Stephen Manganiello
PHONE: 336-4382
EXPLANATION:
See attached.
FINANCIAL STATEMENT:
ACCOUNT NO.
See attached
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
DEPARTMENT: Engineering
APPROVED BY:
APPROVED: G�7�nCe
MIS
APPROVED:
STAFF RECOMMENDATION:
Adopt the Resolution.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1. Explanation and Financial Statement
2. Bid Opening Summary
3. Three Lowest Bidders Summary
4. Resolution
Financial Statement
Community Corridor Improvements Project, Specification No. 12-05,
Account
Account Number
Amount
SR2S Grant — 12th and D
Roundabout
323-409-500-598-6175
$500,000
Active Transportation Grant — "D"
Avenue Community Corridor
Project
296-409-500-598-xxxx
$600,000
SR2S Grant — Coolidge Avenue
323-409-500-598-6173
$730,000
Active Transportation Grant — 4th
Street
296-409-500-598-6181
$450,000
BTA Grant — 4th Street
296-409-500-598-6181
$355,500
SGIP Grant - Downtown-Westside
Community Connections
296-409-500-598-xxxx
$400,000
Prop A — Community Corridors
307-409-500-598-6035
$500,000
Prop A — Street Resurfacing
307-409-500-598-0000
$434,265
Prop A — 4th Street Community
Corridor
307-409-500-598-6181
$242,721.25
EXPLANATION
The Community Corridor Improvements Project, Specification No. 12-05, proposes
improvements to three (3) important Community Corridors in National City as follows:
• 4th Street: The Project will implement pedestrian/bicycle enhancements and traffic
calming measures along 4th Street from Roosevelt Avenue to Harbison Avenue.
Improvements include roughly 2.0 miles of Class II bicycles facilities (striped bike lanes,
bike signage, and bicycle detector loops and green bicycle boxes at signalized
intersections), high -visibility crosswalks, curb extensions, pedestrian refuge islands,
signing and striping, and reverse angle parking.
• Coolidge Avenue/18th Street: The project will implement pedestrian/bicycle
enhancements and traffic calming measures along Coolidge Avenue from 18th Street to
Plaza Boulevard, and along 18th Street from Wilson Avenue to D Avenue.
Improvements include new sidewalks, ADA curb ramps, curb extensions, crosswalks, a
raised speed table, signing and striping, bike lanes, landscape/hardscape, and lighting
enhancements.
• D Avenue: The project will implement pedestrian/bicycle enhancements and traffic
calming measures along D Avenue from Division Street to 30th Street. Improvements
include roughly 2.0 miles of Class II and III bicycle facilities (striped bike lanes, bike
signage, sharrow pavement markings, and bicycle detector loops and green bicycle
boxes at signalized intersections), high -visibility crosswalks, a traffic calming roundabout
at 12th Street, curb extensions, pedestrian refuge islands, landscaping, lighting
enhancements, and reverse angle parking. Bicycle enhancements will also be
implemented along 30th Street between D Avenue and Hoover Avenue, and along
Hoover Avenue between 30th Street and the entrance to the Sweetwater River Bikeway
at 33`d Street.
In June, 2013, the bid solicitation was advertised in local newspapers and posted on the City's
website for the Community Corridor Improvements Project, Specification No. 12-05.
On July 22, 2013 four sealed bids were received by the 3:OOpm deadline, opened and publically
disclosed. Pal General Engineering, Inc. was the apparent low bidder with a total bid amount of
$4,212,486.25.
Upon review of all documents submitted and reference checks, including information provided
during an administrative hearing regarding preliminary findings, Pal General Engineering is the
lowest responsible bidder qualified to perform the work as described in the project
specifications.
Attached are the bid opening information sheet and the three lowest bidders summary sheet for
your information.
Staff recommendation is to, 1) award a contract in the not to exceed amount of $4,212,486.25 to
Pal General Engineering, Inc. for the Community Corridor Improvements Project, Specification
Number 12-05; 2) authorize a 15% contingency in the amount of $631,872.94 for any
unforeseen changes; and 3) authorize the Mayor to execute the contract.
Funding is available through various grants and Prop A.
SPECIFICATION NO:
PROJECT TITLE:
TIME:
DATE:
ESTIMATE:
BID OPENING
12-05
Community Corridors Project
3:00 P.M.
Monday, July 22, 2013
$3,650,000
NO.
BIDDER'S NAME
BID
AMOUNT
ADDENDA
BID
SECURITY
1.
PAL General Engineering
5374 Eastgate Mall
San Diego, CA 92121
$4,212,486.25
1-5
Bond
2.
Portillo Concrete Inc.
3527 Citrus Street
Lemon Grove, CA 91945
$4,324,296.20
1-5
Bond
3.
L. B. Civil
11585 Sorrento Valley Rd, #104
San Diego, CA
$4,519,990.00
1-5
Bond
4.
West Coast General Corporation
13700 Stowe Drive, Suite 100
Poway, CA 92064
$4,589,913.80
1-5
Bond
-1-
PORTILLO CONCRETE, INC.
L.B. CIVIL
Item No.
Description (5) Indicates Specialty
Item
Unit
-
Qty.
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
cat
w3 � . BeIs EIfl tl } sTfiEEd `.A..
1
Mobilization/ Demobilization
LS
1
$ 40,250.00
$ 40,250.00
$ 60,000.00
$ 60,000.00
$ 65,000.00
$ 65,000.00
2
Traffic Control
LS
1
$ 9,702.00
$ 9,702.00
$ 10,000.00
$ 10,000.00
$ 10,000.00
$ 10,000.00
3
Water Pollution Control
LS
1
$ 1,500.00
$ 1,500.00
$ 2,500.00
$ 2,500.00
$ 7,000.00
$ 7,000.00
4
Clearing and Grubbing
LS
1
$ 17,042.00
$ 17,042.00
$ 35,000.00
$ 35,000.00
$ 40,000.00
$ 40,000.00
5
Unclassified Excavation
LS
1
$ 6,422.00
$ 6,422.00
$ 25,000.00
$ 25,000.00
$ 40,000.00
$ 40,000.00
6
Surveying
L5
1
$ 3,500.00
$ 3,500.00
$ 12,771.00
$ 12,771.00
$ 18,000.00
$ 18,000.00
7
4" Concrete Sidewalk Type per SDRSD G-7
SF
5,310
$ 5.50
$ 29,205.00
$ 7.00
$ 37,170.00
$ 7.00
$ 37,170.00
8
Concrete Pedestrian Curb Ramp (All Types)
EA
9
$ 1,857.00
$ 16,713.00
$ 1,800.00
$ 16,200.00
$ 2,000.00
$ 18,000.00
9
6" Type G Concrete Curb & Gutter, per SDRSD G-2
LF
515
$ 33.00
$ 16,995.00
$ 22.00
$ 11,330.00
$ 35.00
$ 18,025.00
10
Concrete Cross Gutter, per SDRSD G-12
SF
530
$ 9.00
$ 4,770.00
$ 15.00
$ 7,950.00
$ 14.00
$ 7,420.00
11
Asphalt Concrete Pavement
TON
370
$ 128.00
$ 47,360.00
$ 110.00
$ 40,700.00
$ 100.00
$ 37,000.00
12
Crushed Aggregate Base
TON
500
$ 40.00
$ 20,000.00
$ 25.00
$ 12,500.00
$ 70.00
$ 35,000.00
13
Type II REAS, Plant Mix
GAL
63,000
$ 5.50
$ 346,500.00
$ 6.40
$ 403,200.00
$ 5.50
$ 346,500.00
14
Curb Outlet - Type A, per SDRSD D-25
EA
1
$ 1,200.00
$ 1,200.00
$ 2,500.00
$ 2,500.00
$ 3,000.00
$ 3,000.00
15
ea
Fire Hydrant Relocation (including new service line,
appurtenances) per Sweetwater Authority
Standards and Specifications (replace curb, gutter,
sidewalk, and asphalt to match existing)
LS
1
$ 5,420.00
$ 5,420.00
$ 8,250.00
$ 8,250.00
$ 7,500.00
$ 7,500.00
16
Signing and Striping
LS
1
$ 135,450.00
$ 135,450.00
$ 81,455.00
$ 81,455.00
$ 170,000.00
$ 170,000.00
17
Furnish and Install Wheel Stops per project
specification 317
EA
40
$ 60.00
$ 2,400.00
$ 49.50
$ 1,980.00
$ 50.00
$ 2,000.00
18
Install Type C Bicycle Loop Detection at Signalized
Intersections per project specification 209
EA
8
$ 650.00
$ 5,200.00
$ 605.00
$ 4,840.00
$ 600.00
$ 4,800.00
19
Water Quality Infiltration Basin (including
impermeable fabric, stone, thickened curb and cub
and gutter).
EA
6
$ 1,665.00
$ 9,990.00
$ 11,000.00
$ 66,000.00
$ 2,500.00
$ 15,000.00
20
Remove, dispose of unsuitable subgrade and
replace w/ CAB and Mirafi 700X
TON
100
$ 95.00
$ 9,500.00
$ 75.00
$ 7,500.00
$ 115.00
$ 11,500.00
BASE BID SUBTOTAL, 4TH STREET
$ 729,119.00
$ 846,846.00
$ 892,915.00
21
Mobilization/ Demobilization
LS
1
$ 45,675.00
$ 45,675.00
$ 50,000.00
$ 50,000.00
$ 50,000.00
$ 50,000.00
22
Traffic Control
LS
1
$ 32,340.00
$ 32,340.00
$ 10,000.00
$ 10,000.00
$ 6,500.00
$ 6,500.00
23
Water Pollution Control
LS
1
$ 6,523.00
$ 6,523.00
$ 2,500.00
$ 2,500.00
$ 21,000.00
$ 21,000.00
24
Clearing and Grubbing
LS
1
$ 62,525.00
$ 62,525.00
$ 132,000.00
$ 132,000.00
$ 40,000.00
$ 40,000.00
25
Unclassified Excavation
LS
1
$ 54,322.00
$ 54,322.00
$ 50,000.00
$ 50,000.00
$ 135,000.00
$ 135,000.00
26
Surveying
LS
1
$ 11,355.00
$ 11,355.00
$ 16,500.00
$ 16,500.00
$ 18,000.00
$ 18,000.00
$ 5.10
5 79,305.00
$ 5.50
$ 85,525.00
$ 5.00
$ 77,750.00
27
4" Co^^•^'^ Sidewalk Type per SDRSD G-7
SF
15,550
22
$ 1,759.00
_
38,698.00
$ 1,800.00
$ 39,600.00
$ 2,000.00
$ 44,000.00
28
Conc destrian Curb Ramp (All Types)
EA
Item No.
- - .- --• •-•.. •. . r vn, ILIA/ �,tJIMLrtC I C., MIL. L.B. CIV
Description (S) Indicates Specialty
Item
Unit
Qty.
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
29
Type A Concrete Median Passageway w/ domes,
per Caltrans A88A & B
EA
5
$ 1,830.00
$ 9,150.00
$ 750.00
$ 3,750.00
$ 2,000.00
$ 10,000.00
30
Concrete Bike Ramp per detail A on sheet 3
EA
1
$ 1,830.00
$ 1,830.00
$ 1,200.00
$ 1,200.00
$ 1,600.00
$ 1,600.00
31
Concrete Driveway (All Types)
SF
1,845
$ 6.25
$ 11,531.25
$ 15.00
$ 27,675.00
$ 9.00
$ 16,605.00
32
Alley Apron per SDRSD
SF
1,855
$ 9.00
$ 16,695.00
$ 12.00
$ 22,260.00
$ 9.00
$ 16,695.00
33
Type B Concrete Curb for Medians, per SDRSD G-6
IF
745
$ 28.00
$ 20,860.00
$ 22.00
$ 16,390.00
$ 25.00
$ 18,625.00
34
6'Type G Concrete Curb & Gutter, per SDRSD G-2
LF
1,720
$ 33.00
$ 56,760.00
$ 22.00
$ 37,840.00
$ 35.00
$ 60,200.00
35
Concrete Pavers per project specification 202
SF
300
$ 14.00
$ 4,200.00
$ 40.00
$ 12,000.00
$ 17.00
$ 5,100.00
36
Replace Monument Paving to Match Existing
SF
650
$ 14.00
$ 9,100.00
$ 5.00
$ 3,250.00
$ 14.00
$ 9,100.00
37
Asphalt Concrete Pavement
TON
1,200
$ 128.00
$ 153,600.00
$ 100.00
$ 120,000.00
$ 100.00
$ 120,000.00
38
Crushed Aggregate Base
TON
1,600
$ 31.00
$ 49,600.00
$ 22.00
$ 35,200.00
$ 50.00
$ 80,000.00
39
Type II REAS, Plant Mix
GAL.
45,000
$ 5.50
$ 247,500.00
$ 6.40
$ 288,000.00
$ 6.00
$ 270,000.00
40
Construct Vehicular Concrete for Truck Apron
(Colored)
SF
1,150
$ 16.00
$ 18,400.00
$ 20.00
$ 23,000.00
$ 19.00
$ 21,850.00
w
41
Pedestrian Protective Railing per SDRSD M-24
LF
65
$ 90.00
$ 5,850.00
$ 152.48
$ 9,911.20
$ 180.00
$ 11,700.00
42
Sidewalk Underdrain Pipe per SDRSD D-27
EA
4
$ 150.00
$ 600.00
$ 100.00
$ 400.00
$ 900.00
$ 3,600.00
43
Furnish and Install Contech Urban Green Biofifter
Unit
EA
5
$ 34,016.00
$ 170,080.00
$ 11,000.00
$ 55,000.00
$ 1,100.00
$ 5,500.00
44height
Type 5 Retaining Wall Per Caltrans B3-4A (max
4')
SF
580
$ 63.00
$ 36,540.00
$ 50.00
$ 29,000.00
$ 80.00
$ 46,400.00
45
Type 5 Retaining Wall Per Caltrans B3-4A (height 4'
to 6')
SF
675
$ 63.00
$ 42,525.00
$ 50.00
$ 33,750.00
$ 90.00
$ 60,750.00
46
Type 732 Barrier Wall per Caltrans B11-55 with 1' x
2 Insetsper Plan
LF
420
$ 162.00
$ 68,040.00
$ 100.00
$ 42,000.00
$ 230.00
$ 96,600.00
47
Tubular Hand Railing per Caltrans B11-51
LF
420
$ 90.00
'$ 37,800.00
$ 93.00
$ 39,060.00
$ 79.00
$ 33,180.00
48
Type-B Gravity Retaining Wall, Per SDRSD C-9
SF
35
$ 78.00
$ 2,730.00
$ 50.00
$ 1,750.00
$ 200.00
$ 7,000.00
49
Concrete Cross Gutter, per SDRSD G-12
SF
380
$ 9.50
$ 3,610.00
$ 15.00
$ 5,700.00
$ 16.00
$ 6,080.00
50
Install Atrium Grate & Spee-D Basin (or approved
equal) with 3" PVC drain per detail on sheet 23
LS
1
$ 2,550.00
$ 2,550.00
$ 250.00
$ 250.00
$ 6,000.00
$ 6,000.00
51
Install Concrete Steps per SDRSD M-26 (in two
locations as shown on plans)
LS
1
$ 6,500.00
$ 6,500.00
$ 7,500.00
$ 7,500.00
$ 20,000.00
$ 20,000.00
52
Stabilized Decomposed Granite (3" thick)
TON
45
$ 92.00
$ 4,140.00
$ 75.00
$ 3,375.00
$ 85.00
$ 3,825.00
53
Landscaping
LS
1
$ 69,750.00
$ 69,750.00
$ 65,848.20
$ 65,848.20
$ 75,000.00
$ 75,000.00
54
Irrigation
LS
1
$ 109,888.00
$ 109,888.00
$ 87,560.00
$ 87,560.00
$ 75,000.00
$ 75,000.00
55
Signing and Striping
LS
1
$ 76,584.00
$ 76,584.00
$ 76,225.60
$ 76,225.60
$ 100,000.00
$ 100,000.00
PORTILLO CONCRETE, INC.
L.B. CIVIL
EERING
Item No.
Description (5) Indicates Specialty
Item
Unit
Qty.
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
56
Furnish and Install Type C Bicycle Loop Detection
at Signalized Intersections per project specification
209
EA
10
$ 650.00
$ 6,500.00
$ 605.00
$ 6,050.00
$ 600.00
$ 6,000.00
57
Lighting and Electrical
LS
1
$ 28,600.00
$ 28,600.00
$ 41,800.00
$ 41,800.00
$ 30,000.00
$ 30,000.00
58
Remove, dispose of unsuitable subgrade and
replace w/ CAB and Mirafi 700X
TON
100
$ 130.00
$ 13,000.00
$ 75.00
$ 7,500.00
$ 115.00
$ 11,500.00
59
Install Sewer Manhole, Frame, Lid and
Connections, SDRSD 5-2
EA
2
$ 16,322.00
$ 32,644.00
$ 14,564.00
$ 29,128.00
$ 10,000.00
$ 20,000.00
60
Install 6" PVC Sewer Main
LF
60
$ 175.00
$ 10,500.00
$ 160.00
$ 9,600.00
$ 70.00
$ 4,200.00
BASE BID SUBTOTAL, D AVENUE
$ 1,658,400.25
$ 1,528,098.00
$ 1,644,360.00
.N�,'�h�'���`-Xt't`�. �+'-:4.�BASEIDinOOLtDCymv,m,..
,.. �sAt«.`,
v..
61
Mobilization/Demobilization
LS
1
$ 38,255.00
$ 38,255.00
$ 50,000.00
$ 50,000.00
$ 50,000.00
$ 50,000.00
62
Clearing and Grubbing
LS
1
$ 63,554.00
$ 63,554.00
$ 164,000.00
$ 164,000.00
$ 20,000.00
$ 20,000.00
63
Traffic Control
LS
1
$ 38,808.00
$ 38,808.00
$ 10,000.00
$ 10,000.00
$ 6,900.00
$ 6,900.00
64
Water Pollution Control
LS
1
$ 12,352.00
$ 12,352.00
$ 2,500.00
$ 2,500.00
$ 9,500.00
$ 9,500.00
65
Surveying
LS
1
$ 8,655.00
$ 8,655.00
$ 16,500.00
$ 16,500.00
$ 18,000.00
$ 18,000.00
66
Signing and Striping
L5
1
$ 82,450.00
$ 82,450.00
$ 76,835.00
$ 76,835.00
$ 100,000.00
$ 100,000.00
67
Lighting and Electrical
LS
1
$ 219,300.00
$ 219,300.00
$ 231,000.00
$ 231,000.00
$ 225,000.00
$ 225,000.00
a
68
Unclassified Excavation
LS
1
$ 31,266.00
$ 31,266.00
$ 35,000.00
$ 35,000.00
$ 140,000.00
$ 140,000.00
69
4" Concrete Sidewalk Type per SDRSD G-7
SF
22,400
$ 5.10
$ 114,240.00
$ 7.00
$ 156,800.00
$ 4.50
$ 100,800.00
70
Concrete Pedestrian Curb Ramp (All Types)
EA
26
$ 1,755.00
$ 45,630.00
$ 1,800.00
$ 46,800.00
$ 2,000.00
$ 52,000.00
71
Concrete Driveway (All Types)
SF
5,800
$ 6.20
$ 35,960.00
$ 15.00
$ 87,000.00
$ 8.00
$ 46,400.00
72
6" Type G Concrete Curb & Gutter, per SDRSD G-2
LF
1,575
$ 36.00
$ 56,700.00
$ 22.00
$ 34,650.00
$ 35.00
$ 55,125.00
73
8" Type G Concrete Curb & Gutter, per SDRSD G-2
LF
90
$ 33.00
$ 2,970.00
$ 25.00
$ 2,250.00
$ 35.00
$ 3,150.00
74
Concrete Cross Gutter, per SDRSD G-12
SF
3,250
$ 12.00
$ 39,000.00
$ 15.00
$ 48,750.00
$ 12.00
$ 39,000.00
75
Concrete Raised Crosswalk per detail A on sheet
19
EA
1
$ 13,220.00
$ 13,220.00
$ 17,000.00
$ 17,000.00
$ 9,000.00
$ 9,000.00
76
Asphalt Concrete Pavement
TON
720
$ 120.00
$ 86,400.00
$ 98.00
$ 70,560.00
$ 100.00
$ 72,000.00
77
Crushed Aggregate Base
TON
1,500
$ 35.00
$ 52,500.00
$ 22.00
$ 33,000.00
$ 55.00
$ 82,500.00
78
Trench Drain per detail D on sheet 18
LF
180
$ 175.00
$ 31,500.00
$ 275.00
$ 49,500.00
$ 250.00
$ 45,000.00
79
Sidewalk Underdrain Pipe per SDRSD D-27
EA
25
$ 150.00
$ 3,750.00
$ 100.00
$ 2,500.00
$ 350.00
$ 8,750.00
80
School Brick Pavers (Angelus Square 12" Pavers)
SF
220
$ 36.00
$ 7,920.00
$ 30.00
$ 6,600.00
$ 20.00
$ 4,400.00
81
School Brick Pavers (Angelus Square 6" Pavers)
SF
480
$ 31.00
$ 14,880.00
$ 30.00
$ 14,400.00
$ 13.00
$ 6,240.00
82
Type II REAS, Plant Mix
GAL
22,000
$ 5.50
$ 121,000.00
$ 7.70
$ 169,400.00
$ 6.00
$ 132,000.00
83
Furnish and Install Contech Urban Green Biofilter
Unit
EA
3
$ 28,655.00
$ 85,965.00
$ 16,500.00
$ 49,500.00
$ 1,200.00
$ 3,600.00
7,500.00
6,750.00
$ 7,100.00
$ 7,100.00
$ 7,500.00
Insta C Curb Inlet (including connection
pipeR5D D-3 A
EA
1
$ 6,750.00
-
84
. ..-..... rvn111-LV LVI`1LRLI C, IINL. L.B. CIV
Item No.
Description
p Item(5) Indicates Specialty
Unit
Qty.
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
85
Landscaping
LS
1
$ 36,750.00
$ 36,750.00
$ 85,189.50
$ 85,189.50
$ 110,000.00
$ 110,000.00
86
Irrigation
' 15
1
$ 49,850.00
$ 49,850.00
$ 88,817.30
$ 88,817.30
$ 140,000.00
$ 140,000.00
87
Bench per detail H sheet 41
EA
5
$ 5,200.00
$ 26,000.00
$ 1,500.00
$ 7,500.00
$ 3,000.00
$ 15,000,00
88
Bike Rack per detail,' sheet 41
EA
3
$ 2,125.00
$ 6,375.00
$ 500.00
$ 1,500.00
$ 1,700.00
$ 5,100.00
89
Remove, dispose of unsuitable subgrade and
replace w/ CAB and Mirafi 700X
TON
100
$ 150.00
$ 15,000.00
$ 75.00
$ 7,500.00
$ 115.00
$ 11,500.00
BASE BID SUBTOTAL-COOLIDGE AVENUE
$ 1,347,000.00
$ 1,572,151.80
$ 1,518,465.00
BASE BID TOTAL
OF ALL
SUBTOTALS
$ 3,734,519.25
$ 3,947,095.80
$ 4,055,740.00
A ` w
'COL'i�C7� 1 'm�'.i
?4,_.
a r".�s xar
A-1
Mobilization/
Demobilization
LS
1
$ 9,854.00
$ 9,854.00
$ 10,000.00
$ 10,000.00
$ 20,000.00
$ 20,000.00
A-2
Traffic Control
L5
1
$ 12,425.00
$ 12,425.00
$ 7,500.00
$ 7,500.00
$ 6,900.00
$ 6,900.00
A-3
Water Pollution Control
LS
1
$ 1,500.00
$ 1,500.00
$ 1,500.00
$ 1,500.00
$ 6,900.00
$ 6,900.00
A-4
Signing and Striping
LS
1
$ 6,520.00
$ 6,520.00
$ 5,335.00
$ 5,335.00
$ 6,000.00
$ 6,000.00
A-5
Lighting
LS
1
$ 69,850.00
$ 69,850.00
$ 78,000.00
$ 78,000.00
$ 70,000.00
$ 70,000.00
A-6
Clearing and Grubbing
LS
1
$ 18,355.00
$ 18,355.00
$ 25,000.00
$ 25,000.00
$ 12,000.00
$ 12,000.00
i-, A-7
1A
Surveying
LS
1
$ 5,250.00
$ 5,250.00
$ 9,614.00
$ 9,614.00
$ 9,000.00
$ 9,000.00
A-8
Unclassified Excavation
L5
1
$ 6,325.00
$ 6,325.00
$ 25,000.00
$ 25,000.00
$ 60,000.00
$ 60,000.00
A-9
4" Concrete Sidewalk Type per SDRSD G-7
SF
3,300
$ 5.25
$ 17,325.00
$ 6.50
$ 21,450.00
$ 5.50
$ 18,150.00
A-10
Concrete Pedestrian Curb Ramp (All Types)
EA
13
$ 1,896.00
$ 24,648.00
$ 1,800.00
$ 23,400.00
$ 2,000.00
$ 26,000.00
A-11
6" Type G Concrete Curb & Gutter, per SDRSD G-2
LF
250
$ 35.00
$ 8,750.00
$ 25.00
$ 6,250.00
$ 35.00
$ 8,750.00
A-12
8" Type G Concrete Curb & Gutter, per SDRSD G-2
LF
50
$ 39.00
$ 1,950.00
$ 30.00
$ 1,500.00
$ 40.00
$ 2,000.00
A-13
Concrete Cross Gutter, per SDRSD G-12
SF
2,240
$ 11.00
$ 24,640.00
$ 15.00
$ 33,600.00
$ 15.00
$ 33,600.00
A 14
Type -A Gravity Retaining Wall, Per SDRSD C-9
(H = 1'6")
LF
20
$ 92.00
$ 1,840.00
$ 75.00
$ 1,500.00
$ 350.00
$ 7,000.00
A-15
Asphalt Concrete Pavement
TON
250
$ 120.00
$ 30,000.00
$ 110.00
$ 27,500.00
$ 100.00
$ 25,000.00
A-16
Crushed Aggregate Base
TON
550
$ 40.00
$ 22,000.00
$ 22.00
$ 12,100.00
$ 65.00
$ 35,750.00
A-17
Trench Drain per detail D on sheet 18
LF
100
$ 170.00
$ 17,000.00
$ 275.00
$ 27,500.00
$ 300.00
$ 30,000.00
A-18
Type II REAS, Plant Mix
GAL
6,200
$ 5.50
$ 34,100.00
$ 7.47
$ 46,314.00
$ 6.00
$ 37,200.00
A-19
Landscaping
LS
1
$ 69,425.00
$ 69,425.00
$ 14,546.40
$ 14,546.40
$ 20,000.00
$ 20,000.00
A-20
Irrigation
LS
1
$ 89,450.00
$ 89,450.00
$ 25,740.00
$ 25,740.00
$ 18,000.00
$ 18,000.00
A-21
Remove, dispose of unsuitable subgrade and
replace w/ CAB and Mirafi 700X
TON
100
$ 150.00
$ 15,000.00
$ 75.00
$ 7,500.00
$ 120.00
$ 12,000.00
ADDDITIVEBIDTOTAL- COOLIDGEAVENUE
GRAND TOTAL BID CAL[DI ATInNS (RAcc Pin AnnITIVa alm
$ 486,207.00
- --_ _-- -_
$ 410,849.40
$ 464,250.00
GRAND TOTAL "WRITTEN" BID AS SUBMITTED (BASE BID + ADDITIVE BID)
$4,212,486.25
4,357,945.20
$4,324,296.20
4,519,990.00
$4,519.990.00
RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AWARDING A CONTRACT IN THE NOT TO EXCEED AMOUNT OF $4,212,486.25
TO PAL GENERAL ENGINEERING, INC., FOR THE COMMUNITY CORRIDOR
IMPROVEMENTS PROJECT, AND AUTHORIZING A 15% CONTINGENCY
IN THE AMOUNT OF $631,872.94 FOR ANY UNFORESEEN CHANGES
WHEREAS, the Engineering Division of the Development Services Department,
in open session on July 22, 2013, did publicly open, examine, and declare four sealed bids for
the Community Corridor Improvements Project ("Project"); and
WHEREAS, Pal General Engineering, Inc., was the lowest responsive bidder with
a proposed bid amount of $4,212,486.25; and
WHEREAS, a 15% contingency amount up to 631,872.94 for any unforeseen
changes to the Project is requested.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City hereby awards the contract for the Community Corridor Improvements Project to
the lowest responsive, responsible bidder, to wit:
PAL GENERAL ENGINEERING, INC.
BE IT FURTHER RESOLVED by the City Council of the City of National City that
the Mayor is hereby authorized to execute on behalf of the City a contract in the amount of
$4,212,486.25 with Pal General Engineering, Inc., for the Community Corridor Improvements
Project. Said contract is on file in the office of the City Clerk.
BE IT FURTHER RESOLVED that the City Council hereby authorizes a 25%
contingency amount up to $631,872.94 for unforeseen changes to the Project.
PASSED and ADOPTED this 20th day of August, 2013.
ATTEST:
Michael R. Della, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
Ron Morrison, Mayor
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 5,
ITEM TITLE:
Resolution of the City Council of the City of National City accepting an encroachment agreement
between the City of National City and Kamel Family Trust for the installation and maintenance of a
pedestrian ramp within the City reserved right-of-way of National City Boulevard to provide Americans
with Disabilities Act (ADA) access to the property located at 421 National City Boulevard.
PREPARED BY: Barby Tipton
PHONE: 336-4583
EXPLANATION:
See attached
DEPARTMENT: Engineering
APPROVED BY:
FINANCIAL STATEMENT:
ACCOUNT NO.
N/A
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
Adopt the Resolution.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1. Explanation
2. Encroachment Agreement
3. Exhibits A and B, Plat and Legal Descriptions
4. Resolution
EXPLANATION
The Kamel Family Trust, owners of the property located at 421 National City
Boulevard, have recently applied for a building permit for a tenant improvement.
During the initial investigation for the improvements it was discovered that there
was not an Americans with Disabilities Act (ADA) accessible point of entry for the
existing building.
In order to meet ADA accessibility requirements, the owner has proposed an
entry with a four -foot wide by twenty -foot long pedestrian ramp at the front of the
building. The proposed ramp will encroach upon the public right-of-way, which
will require an encroachment agreement per Chapter 13.12 of the National City
Municipal Code. See Exhibit A for a description and exhibit of the proposed
improvements, and Exhibit B for a description and exhibit of the area of
encroachment.
In order to maintain a six-foot wide, unobstructed ADA accessible path of travel
along the sidewalk after construction of the ramp, the owner will be required to
replace an existing driveway apron with new curb, gutter and sidewalk per City
standards (see Exhibit A).
The Kamel Family Trust is requesting that the City accept the Encroachment
Agreement allowing for the installation and maintenance of a new pedestrian
ramp to provide ADA access to their building.
FEE: $490.00
ENCROACHMENT PERMIT AND AGREEMENT
(Commercial)
The City Of National City hereby grants an Encroachment Permit to the undersigned, iikifil6t Fgmql(
`rrusi ( hereinafter referred to as "OWNER"), in accordance with and pursuant to the terms and
conditions set forth in Chapter 13.12 of the National City Municipal Code.
OWNER is the owner of that certain real property described in the attached Exhibit "A", or is an owner of
personal property that is proposed to be installed in the public right-of-way or other public property of the
City of National City, County of San Diego, State of California. The OWNER, in consideration of this
grant of permission by the City of National City (hereinafter referred to as "CITY") to install and
maintain certain personal property or a building, facility, or other structure (hereafter designated from
time to time as an "encroachment") within or upon a CITY easement, property, or right-of-way for the
use and benefit of OWNER'S property and adjacent lands, now covenants and agrees as follows:
The site of installation and any description of OWNER'S encroachment is described in Exhibit "B",
attached.
The terms and conditions under which the encroachment is to be installed and maintained are as follows:
1. Upon notification in writing by the City Engineer, the above described encroachment
shall be abandoned, removed, or relocated by OWNER at the owner's sole expense,
2. The said encroachment shall be maintained in a safe and sanitary condition at all times at
the sole cost, risk, and responsibility of OWNER and any successor in interest, who shall hold CITY
harmless with respect thereto.
3. This Permit and Agreement, when made for the direct benefit of OWNER's land or
property described above, and the covenants herein contained shall run with said land and shall be
binding on the assigns and successors of OWNER. Should OWNER or its successors fail to remove or
relocate the encroachment herein permitted within thirty (30) days after notice of removal or relocation
from the CITY, CITY may cause such removal or relocation to be done at OWNER's sole cost and
expense, which shall be a lien upon said land. A copy of this Encroachment Agreement shall be recorded
against any real property of the owner's that is hereby benefited by the encroachment. Upon request by
CITY, PERMITTEE shall record this Encroachment Agreement with the County of San Diego, County
Recorder's Office, and upon recordation shall return the original to the CITY.
4. OWNER shall indemnify, defend, and hold harmless CITY and its officers, agents, and
employees from all liability, loss, costs, claims, demands, suits, and defense costs, including attorneys'
fees, arising out of Owner's entry upon and use of City's easement or right-of-way for the installation,
maintenance, and use of the owner's encroachment.
5. OWNER and each successor in interest or assign shall take out and maintain, during the
time the encroachment remains on CITY's easement or right-of-way, commercial general liability
insurance with minimum limits of One Million Dollars ($1,000,000.00) combined single limit per
occurrence, covering all bodily and property damage arising out of this Encroachment Agreement.
This policy shall name CITY and its officers, agents, and employees as additional
insured, and shall constitute primary insurance as to CITY and its officers, agents, and employees, so that
any other policies held by CITY shall not contribute to any loss under said insurance. Said policy shall
provide for thirty (30) days prior written notice to CITY of cancellation or material change. Prior to
commencement of this Encroachment Agreement, OWNER shall furnish CITY a certificate of insurance
with original endorsements evidencing the coverage required by this section. Should owner fail to do so,
City may elect to obtain such coverage at OWNER'S expense or immediately terminate this Agreement.
6. The full terms and conditions under which this Encroachment Permit is issued are further
set forth in Chapter 13.12 of the National City Municipal Code, which terms OWNER hereby specifically
acknowledges and agrees to. Owner also acknowledges that those terms and conditions include, without
limitation, the following:
a. The City reserves the right to charge the Owner "fair and reasonable"
compensation for the use of CITY property retroactive to the date of construction or installation of the
encroachment.
b. The CITY can require the removal, relocation, or undergrounding of the
encroachment when deemed necessary and feasible by and in the sole discretion of the City Engineer at
owner's expense.
7. This encroachment Permit is not valid and confers no rights to install and maintain an
encroachment until it is accepted by the Owner.
DATED: �t /z Z l 13
CITY OF NATIONAL CITY
PERMITTEE:
Km'nd f m1 `Cry s-c-
Ron Morrison, Mayor EntitvLCon�aanv
Naex-`i- 1`h . So w-W i trtAs4- Fep,ressen 1 v
Name & Title
Signature
Name & Title
ATTACH NOTARY CERTIFICATION FOR THE NAME OF PERMITTEE SHOWN ABOVE.
USE CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT NOTARY ONLY.
2 Encroachment Permit and Agreement
(Commercial))
PERMITTEE/APPLICANT INFORMATION:
�i c A t l S- KCx'm -t Mailing Address:
Person in Responsible Charge
(�15-2,i-141 t —U08-39t5
24/7 Phone Number
Kmlel Fay1 t 1 L ask
Firm Name
Ikc (0
PLAT SHOWING LOCATION OF STRUCTURES, EASEMENT, OR RIGHT-OF-WAY, AND
SEWER AND/OR DRAINAGE FACILITIES: SEE EXHIBIT "B", ATTACHED
3 Encroachment Permit and Agreement
(Commercial))
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of Califomia - •
County of N b/ et CJ
On 7 b ._ (3 before me,
personally appeared K c)
OFFICIAL SEAL
REZA M. KAGHAZCHI
NOTARY PUBLI CALIFORNIA
COMM. DIGO COUNTY—
M . EXP. JUNE 26.2016
Place Notary Seal Above
who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(e)epare
subscribed to th within instrument and acknowledged
to e that executed the same in
er#Heir; a orized capacity(ies); and that by
it signatures) --on the instrument the
erson(s}; .or the entity upon behalf of which the
person(s)aacted, 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.
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document fI
Title or Type of Document: / N C K0ch , 4 C yl 7.
Document Date. 7 / Z Z! /3 Number of Pages:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer(s)
Signer's Name: Signer's Name:
0 Corporate Officer — Title(s): 0 Corporate Officer —Tdle(s):
❑ Individual 0 Individual
❑ Partner— ❑ Limited ❑ General ❑ Partner — 0 Limited 0 General
❑ Attorney in Fact ❑ Attorney in Fact
❑ Trustee 0 Trustee
O Guardian or Conservator 0 Guardian or Conservator
0 Other: 0 Other:
Signer Is Representing:
RIGHT THUMBPRINT
OFSIGNER
Top of thumb here
WITNESS my hand and official seal.
Signature: C_;
Signature of
Signer Is Representing:
RIGHT THUMBPRINT
OFSIGNER
Top of thumb here
Here Name ana Tdle of the 40 S-s
9J
ri
02009 National Notary Association • Na9onalN6 27)
otary.org • 1.800-US NOTARY (1-BOp�870-Og27)
Item N5907
EXHIBIT A
A concrete pedestrian ramp twenty feet in length, four feet in width and ten inches in
height with a hand railing and two steps with the length of the pedestrian ramp running
parallel to the easterly right of way line of National City Boulevard projecting four feet
westerly into the right of way of National City Boulevard.
x AS'if i 1,t14
w 1A' NA,(, CtlYJ
1i
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1
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d
71,
ThRESfi 04.61..
•
0
fi
NEW RAM
.44 N c :vv '. 4.4a h.04 wl
-R sy
2f'D"-
1
3
J.
r eil/414e 444,e/ l'E
EXHIBIT B
AREA OF ENCROACHMENT
That portion of the right of way of National City Boulevard being the easterly four feet of
said right of way adjacent to that real property Deeded to Moshail Kamel, Trustee of the
Kamel Family Trust dated July 21, 1995 and recorded in the Office of the County
Recorder of San Diego County, State of California as Document Number 2012-0668205
O.R. on October 30, 2012, excepting the southerly ten feet also excepting the northerly
19.08 feet.
�d\Old(
C VA 1noE
\
\
I^�1
W
(O
W
421 NATIONAL CITY BOULEVARD
AP\ 556 210 26 00
o
AREA OF
0
o
ENCROACHMENT
ea
KAMEMOS-01
DID
ACC:Mb CERTIFICATE OF LIABILITY INSURANCE
4......-----"
DATE(MM/DD/YYYY)
7/31 /2013
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
PRODUCER (858) 869-8300
Vanorsdale Insurance Services
6165 Greenwich Drive, Suite 200
San Diego, CA 92122
CONTACT Diane Downes
PHONE 858-869-8330 (ac, No): 858-869-8301
E-MAIL
ADDRESS: ddownes@vanorsdale.com
INSURER(S) AFFORDING COVERAGE
NAIC #
INSURER A: Travelers Casualty Insurance Company of An19046
INSURED Moshail Kamel & Nahil Samawi
1906 Teton Pass
El Cajon, CA 92019
INSURER B :
INSURER C :
INSURER D :
INSURER E :
INSURER F :
•
REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS
INSR
LTR
TYPE OF INSURANCE
ADDL
MISR
SUBR
WVD
POLICY NUMBER
POLICY EFF
(MM/DD/YYYY)
POLICY EXP
(MM/DD/YYYY)
LIMITS
GENERAL LIABILITY
EACH OCCURRENCE
$ 1,000,000
A
X
COMMERCIAL GENERAL LIABILITY
X
6806C40053913
1/1/2013
1/1/2014
DAMAGEIORENTr,
PREMISES fEa pccurrencel
$ 300,000
CLAIMS -MADE I I OCCUR
MED EXP (Any one person)
$ 5,000
PERSONAL & ADV INJURY
$ 1,000,000
GENERAL AGGREGATE
$ 2,000,000
GEN'L AGGREGATE LIMIT APPLIES PER;
PRODUCTS • COMP/OP AGO
$ 2,0001000
T1POLICY -1 mi
LOC
$
AUTOMOBILE LIABILITY
SINGLE LIMIT
(Ea accident)
(Ea
$
A
ANY AUTO
BODILY INJURY (Per person)
$
ALL OWNED
A
HIRED AUTOS
NON -OWNED
AUTOS
PROPERTY DAMAGE
(Per accident)
$
—
$
UMBRELLA LIAB
OCCUR
EACH OCCURRENCE
$
EXCESS LIAB
CLAIMS -MADE
AGGREGATE
$
DED RETENT ON $
$
WORKERS COMPENSATION
WC STATU-
TORY LIMITS
OTH-
ER
AND EMPLOYERS LIABILITY Y
ANY PROPRIETOR/PARTNER/EXECUTIVEI / N I
E.L. EACH ACCIDENT
$
OFFICER/MEMBER EXCLUDED? u
(Mandatory In NH)
N / A
EL. DISEASE • EA EMPLOYEE
$
n pas. describe under
DESCRIPTION OF OPERATIONS below
E.L. DISEASE - POLICY LIMIT
$
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule 11 more space Is required)
Certificate Holder is named as Additional Insured regarding Encroachment Agreement
N
City of National City
1243 National City Blvd.
National City, CA 91950-
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
ACORD 25 (2010/05)
ID 1988-2010 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
POLICY NUMBER: 6806C40053913
COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED STATE OR POLITICAL
SUBDIVISIONS -PERMITS RELATING TO PREMISES
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
State or Political Subdivision:
The City of National City
1243 National City Blvd.
National City, CA 91950
(If no entry appears above, information required to complete this endorsement will be shown in the Declarations
as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to
include as an insured any state or political sub-
division shown in the Schedule, subject to the follow-
ing additional provision:
This insurance applies only with respect to the follow-
ing hazards for which the state or political sub-
division has issued a permit in connection with
premises you own, rent, or control and to which this
insurance applies:
CG 20 1311 85
1. The existence, maintenance, repair, construction,
erection, or removal of advertising signs, awn-
ings, canopies, cellar entrances, coal holes,
driveways, manholes, marquees, hoist away
openings, sidewalk vaults, street banners, or
decorations and similar exposures; or
2. The construction, erection, or removal of
elevators; or
3. The ownership, maintenance, or use of any
elevators covered by this insurance.
Copyright, Insurance Services Office, Inc., 1984 Page 1 of 1
RECORDING QUESTED BY:
Ticor Title Company
AND WHEN RECORDED MAIL TO:_v
Moshail Salem Kamel •
1906 Teton Pass Street
El Cajon, CA 92019
Title Order No.: 00113002 - 995 - ND
D 0 C # 2012-0668205
11111111111111111111111111111111111111111111111111111111
GRANT DEED
OCT 30, 2012 8:00 AM
OFFICIAL RECORDS
SAN DIEGD COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 285.25
OC: OC
1417 PAGES: 4
II 11�1ItlI11�IIINMEMMIniIIIII�
Escrow No 300-0061 Ob-LT
THE UNDERSIGNED GRANTOR(S) DECLARE(S)
DOCUMENTARY TRANSFER TAX is $261.25
[X] computed on full value of property conveyed, or
[ ] computed on full value less value of hens or encumbrances remaining at time of sale.
[ ] Unincorporated area [X] City of National City AND
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Troy Fulks and Elise Fulks, Husband and Wife
hereby GRANT(s) to:
Moshail Kamel, Trustee of the Kamel Family Trust dated July 21,1995
the real property in the City of National City, County of San Diego, State of California,
described as:
Parcel 1: Lots 4 and 5 of R.R. Morrison's subdivision of the Northwest end of Lot 5 in Quarter
Section 155 of the Rancho De La Nacion, in the City of National City, County of San Diego,
State of California, according to Map No. 8, filed in the Office of the County Recorder of San
Diego County, September 16, 1873, as more fully described in the attached Exhibit "A"
Also Known as: 421 National City Blvd, National City, CA 91950
AP N : 556-210-26-00
DATED: October 10, 2012
Signature Page attached hereto
and made a part hereof
MAIL TAX STATEMENTS TO PARTY SHOWN BELOW; IF NO PARTY SHOWN, MAIL AS DIRECTED ABOVE:
rder No.: 00113002 - 995 - ND
scrow No.: 300-006105-LY
A.P.N. 556-210-26-00
Troy Fulks
Elisa Fulks
STATE OF
Signature Page
COUNTY OF `J ,1(l 45+.
On o
before me 4-
A..
A Notary Public in and for said State personallyy red
be the person(s) whose name(s) islare stibsa+bed 1
instrument and acknowledged to me that he/shefthey executed the same in hi authorized 6
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
instrument. y
r certify under PENALTY OF PERJURY under the laws of the State of ^ / that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Olhil
1 Note tate o! Texas
mycoSE 7EMBER 4 i2013
Ticor Title Cornrstnipafailifornia
ORDER NO: 401130(2- 995-N
EXHIBIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOTS 4 AND 5 OF R. R. MORRISON'S SUBDIVISION OF THE NORTHWEST END OF LOT 5 IN QUARTER
SECTION 155 OF THE RANCHO DE LA NACION, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO MAP NO. 8, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, SEPTEMBER I6, 1873.
PARCEL 2:
THE NORTHERLY ONE INCH OF THE WESTERLY 62.15 FEET OF LOT 6 IN BLOCK 1 OF. KIMML S.
SUBDIVISION OF l0-ACRE LOT 5 IN QUARTER SECTION NO. 155 OF RANCHO DE LA NACION. T 1113E CITY
OF NATIONAL CITY; COUNTY OF SAN DIEGO. STATE OF CALIFORNIA, ACCORDING TO MAPF NO
106, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON APRIL II. 1871.
ALSO THAT PORTION OF SAID LOT 6 DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAS 1 ERLY CORNER OF LOT 6; THENCE WESTERLY ALONG THE NORTHERLY
LINE OF SAID LOT 6, A DISTANCE OF 53.15 FEET; THENCE SOUTHERLY PARALLEL WITH THE EASTERLY
LINE OF SAID LOT 6, A DISTANCE OF 17-1/8 INCHES; THENCE EASTERLY TO A POINT ON THE EASTERLY
LINE OF SAID LOT 6, LYING 13-1/2 INCHES SOUTHERLY FROM THE NORTHEASTERLY CORNER OF SAID
LOT 6; THENCE NORTHERLY ALONG THE EASTERLY LINE OF SAID LOT 6, 13-112 INCHES TO THE POINT OF
BEGINNING.
APN: 556-210-26-00
CLTA Preliminary Report Form — Modified (11/1.7/06)
Page 3
(Government Code 27361.7)
1 CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE
DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS:
Name of the Notary:
Commission Number: Date Commission Expires: �f
CountyWhere Bondis Flied:
o
RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE AN ENCROACHMENT PERMIT
AND AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND
THE KAMEL FAMILY TRUST FOR THE INSTALLATION AND MAINTENANCE
OF A PEDESTRIAN RAMP WITHIN THE CITY RESERVED RIGHT-OF-WAY
OF NATIONAL CITY BOULEVARD TO PROVIDE AMERICANS WITH
DISABILITIES ACT ("ADA") ACCESS TO THE COMMERCIAL
PROPERTY LOCATED AT 421 NATIONAL CITY BOULEVARD
WHEREAS, a recent application for a building permit for a tenant improvement
by the Kamel Family Trust, owner of the property located at 421 National City Boulevard,
revealed that there was not an Americans with Disabilities Act ("ADA") accessible point of entry
for the existing building; and
WHEREAS, to meet ADA accessibility requirements, the owner has proposed an
entry with a four -foot wide by twenty -foot long pedestrian ramp at the front of the building. The
proposed ramp will encroach upon the public right-of-way, which requires an encroachment
agreement per Chapter 13.12 of the National City Municipal Code.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City hereby authorizes the Mayor to execute the Encroachment Permit and Agreement
between the City of National City and the Kamel Family Trust for the installation and
maintenance of a new pedestrian ramp within the City's reserved right-of-way on National City
Boulevard to provide ADA access to the commercial building located at 421 National City
Boulevard. Said Encroachment Permit and Agreement is on file in the office of the City Clerk.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST:
Michael R. Dalla, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2012
AGENDA ITEM NO. 6
ITEM TITLE:
Resolution of the City Council of the City of National City authorizing an amendment to the 2012
Regional Transportation Improvement Program (RTIP) for National City to allocate $8,000 of local
TransNet (Prop A) funding for the Traffic Signal Install/Upgrades Project to satisfy National City's "fair
share" contribution towards the annual cost of Regional Arterial Management System (RAMS)
operations support services for FY 2014 (Funded by Prop A)
PREPARED BY: Stephen Manganiello, City Engineer DEPARTMENT:
PHONE: 619-336-4382 APPROVED BY:
EXPLANATION!
See attached.
FINANCIAL STATEMENT:
ACCOUNT NO. 307-409-500-598-6558
APPROVED:
APPROVED:
Engineering
4/(
Finance
MIS
SANDAG has appropriated $50,000 in local TransNet (Prop A) funds for National City's Traffic Signal
Install/Upgrades Project for FY 2014; $8,000 would be allocated to RAMS operations support services.
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt the Resolution
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1. Explanation
2. RTIP Amendment Notification from SANDAG (July 26, 2013)
3. CTAC Meeting Agenda Item No. 5 — RAMS Update (June 6, 2013)
4. Resolution
Explanation
On November 4, 2004, the voters of San Diego County approved the San Diego
Transportation Improvement Program Ordinance and Expenditure Plan (04-01)
extension. The TransNet Extension Ordinance provides that SANDAG, acting as
the Regional Transportation Commission, shall approve a multi -year program of
projects submitted by local jurisdictions identifying those transportation projects
eligible to use transportation sales tax (TransNet) funds.
On July 3, 2012, per Resolution No. 2012-145, City Council adopted the 2012
Regional Transportation Improvement Program (RTIP) for National City projects
for fiscal years 2013 through 2017, consistent with the table below.
Project Name
FY 13
FY 14
FY 15
FY 16
FY 17
Plaza Boulevard Widening
(NC01)
200,000
332,000
100,000
100,000
100,000
Street Resurfacing (NC03)
520,000
450,000
746,000
813,000
850,000
Traffic Signal Install/Upgrades
(NC04)
50,000
50,000
50,000
50,000
50,000
Highland Avenue Community
Corridor (NC13)*
0
0
0
0
0
4th Street Community Corridor
(NC14)*
0
0
0
0
0
Citywide Safe Routes to School
(NC15)*
0
0
0
0
0
* Active project that received fund'ng in FY 12
SANDAG, in cooperation and conjunction with the local agencies deployed the
RAMS project at the end of fiscal year 2012. The project delivered 15 local
agency RAMS servers, and one Regional server with which all local agency
systems communicate. The RAMS system provides the region and the local
agencies the following benefits:
1. The ability to coordinate on signal plan development both actively and
passively. By sharing timing plans across local jurisdictional bounders,
traffic engineers are able to complete proposed plans more quickly and
efficiently, and reach agreement on modification more readily through
access to better information.
2. A common time source across more than 3,000 traffic signals region -wide,
allowing for timing precision necessary to coordinate signals across
jurisdictional boundaries.
3. A common platform from which current and future efforts can build, such
as the Integrated Corridor Management System (ICM) which is currently in
operation in the Interstate 15 corridor.
Prior to the project transitioning from implementation to ongoing operations,
SANDAG staff worked with SANTEC and CTAC on developing the best
approach to support this newly established, and common platform for all the
traffic engineers within San Diego County. The components included ongoing
RAMS operations, methods for addressing software and hardware maintenance,
and funding and monitoring of inter -agency system communication.
To that end, SANTEC and CTAC recommended that a Regional Fund Pool be
established to effectively and efficiently address the three operational elements:
1. Software Maintenance
2. Hardware Maintenance
3. Communication Infrastructure
RAMS operations support costs for FY 2014 are $236,000. National City's "fair
share" contribution (which is based on percentage of local traffic signals
compared to the total number of signals in the RAMS regional network), is
$8,000 - National City maintains 73 traffic signals.
Therefore, staff is requesting City Council authorization to amend the 2012 RTIP
for National City to allocate $8,000 of local TransNet (Prop A) funding for the
Traffic Signal Install/Upgrades Project to satisfy National City's "fair share"
contribution towards the annual cost of Regional Arterial Management System
(RAMS) operations support services for FY 2014.
Once approved, staff will forward the resolution to SANDAG and make said
changes via SANDAG's ProjectTrak, a web -based budget tracking system for the
RTIP, prior to the September 6, 2013 deadline. SANDAG's Transportation
Committee will review the amendment at their regularly scheduled meeting on
October 18, 2013.
SANDAG
401 8 Street, Suite 800
San Diego, CA 92101- 4231
(619) 699-1900
Fax (619} 699-1905
www.sandag.org
MEMBER AGENCIES
Cates of '..
Carlsbad
Chula Vista
Coronado
Der Mar
El Cajon
Encinitas
Escondido
Imperial Beach
la Mesa
Lemon Grove
National City
Oceanside
Poway
San Diego
San Marcos
Santee
Solana Bead,
Vsta I
and
County of San Diego
ADVISORY MEMBERS
Imperial County
California Department
of Transoonation
July 26, 2013 File Number 1500001
TO: Regional Transportation Improvement Program Contacts
FROM: Michelle Merino, Associate Financial Analyst
SUBJECT: Amendment Notification
This memo is to provide notification for the next Regional Transportation
Improvement Program Amendment scheduled for the October 18, 2013,
Transportation Committee meeting.
Below is the schedule:
ProjectTrak open for project entry/submittals
7/26/13
Final project amendments/signed resolution due
9/6/13
San Diego Association of Governments (SANDAG) issues
15-day public notice
9/6/13
A separate memo containing the same information also will be sent to
SANDAG Board members.
Note that for TransNet funded local street improvement projects, agencies are
required to have the proposed project amendments approved by its governing
body before SANDAG takes action in the form of a signed resolution.
Metropolitan ' If you have any questions, please contact me at (619) 595-5608 or
Unit System michelle.merino@sandag.org.
North County
Transit District
United States
Department- of Defense
San Diego
Wiled Pon Ostrict
San D;ego County
water Authority
Southern California
Tnbal Chairmen's Association
Mexko
M M E/bga
cc: City Managers/Chief Administrative Officers
San Diego Association of Governments
CITIES/COUNTY TRANSPORTATION ADVISORY COMMITTEE
June 6, 2013
REGIONAL ARTERIAL MANAGEMENT SYSTEM UPDATE
Introduction
AGENDA ITEM NO.: 5
Action Requested: RECOMMEND
File Number 3311000
The following report provides an update on current maintenance and support efforts for the
Regional Arterial Management System (RAMS). At the December 2011 meeting, the San Diego
Regional Traffic Engineers Council (SANTEC) members recommended a regional pooled -fund model
for ongoing RAMS operations for CTAC approval. At the April 2012 meeting, CTAC members
approved a one-year trial period for RAMS operations based on the regional support model
recommended by the SANTEC. The annual cost for this was shared among 16 of the participating
local agencies, Caltrans, and SANDAG for a total program budget of $236,000.
This staff report will update members on the first year of RAMS operations and will request that
members discuss and recommend continuation of the current RAMS support and maintenance
agreement.
Discussion
SANDAG, in cooperation and conjunction with the local agencies deployed the RAMS project at the
end of fiscal year 2012. The project delivered 15 local agency RAMS servers, and one Regional server
with which all local agency systems communicate.
The RAMS system provides the region and the local agencies the following benefits:
1. The ability to coordinate on signal plan development both actively and passively. By sharing
timing plans across local jurisdictional bounders, traffic engineers are able to complete
proposed plans more quickly and efficiently, and reach agreement on modification more
readily through access to better information.
2. A common time source across more than 3,000 traffic signals region -wide, allowing for
timing precision necessary to coordinate signals across jurisdictional boundaries.
3. A common platform from which current and future efforts can build, such as the Integrated
Corridor Management System (ICM) which is currently in operation in the Interstate 15
corridor.
Prior to the project transitioning from implementation to ongoing operations, SANDAG staff
worked with SANTEC and CTAC on developing the best approach to support this newly established,
and common platform for all the traffic engineers within San Diego County. The components
10
included ongoing RAMS operations, methods for addressing software and hardware maintenance,
and funding and monitoring of inter -agency system communication.
To that end, SANTEC and CTAC recommend that a Regional Fund Pool be established to effectively
and efficiently address the three operational elements:
1. Software Maintenance
2. Hardware Maintenance
3. Communication Infrastructure
2013 Regional Fund Pool
The annual cost for regional RAMS operations in FY 2013 was $236,000 and shared by the 16
participating agencies. Based on the April 2012 CTAC recommendation, staff worked with local
agencies on the transfer of funds into the regional pool established for ongoing RAMS operations
with SANDAG acting as a central point of contact and contract administrator for the three elements
listed above.
Staff provided local agencies with three options for transferring local funds to SANDAG:
1. Withhold Local TransNet Funding Allocation - Eight (8) local agencies opted to have a
portion of their respective FY 2013 TransNet funding allocation withheld in the amount of their
RAMS cost share.
2. Reprogram Local TransNet Funds via Regional Transportation Improvement Plan (RTIP)
Amendment — Five (5) agencies opted to reprogram existing transportation funds from other
projects to cover the RAMS cost share. These agencies provided updated project information as
part of the 2012 RTIP update cycle.
3. Direct Payment — Two (2) agencies opted to fund their respective RAMS cost share with
other local funds and pay SANDAG directly. Direct payment by local agencies requires entering
into an interagency funding agreement with SANDAG.
The agency cost shares and fund transfer options for FY 2013 RAMS Operations are included in
Attachment 1. Regional RAMS operations efforts were included in the approved FY 2013 SANDAG
Budget and Overall Work Program (OWP) under ITS Operations (OWP #3311000).
2014 Changes to Regional Fund Pool
For fiscal year 2014 support costs will remain at $236,000; however, there will be only two options
for local agencies to participate in the regional fund pool:
1. Reprogram Local TransNet Funds via RTIP Amendment
2. Direct Payment
11
Option #1 (Withhold TransNet Allocation) does not provide SANDAG or the participating local
agencies with sufficient financial transparency to document the transfer of TransNet funds via
Local Resolution only.
RAMS Operations Overview and Update
SANDAG on behalf of the participating local agencies established several contracts to support RAMS
Operations:
1. McCain, Inc., of Vista, CA, for Software Maintenance of the Regional and Local QuickNet 4+
software.
2. Dell Computer for hardware support for the delivered servers.
3. Cisco System, Inc., for hardware support for the delivered network communication
equipment.
4. AT&T for inter -agency system communication.
Through the established software maintenance agreement, McCain, Inc., has made quarterly on -site
visits to each of the participating agencies, investigated and resolved approximately 100 reported
issues, and completed 125 scheduled maintenance activities.
The McCain, Inc., contract provides for training, case logging with helpdesk support, system
enhancements and project management.
Staff has determined FY 14 maintenance agreement provisions will not see a cost increase in the
software support agreement, network communications, or hardware warranty support. Future
operational initiatives include the complete replacement of hardware - Server, Firewall, Router (end
of life for warranty of servers June 2015) as well as potential migration of the RAMS Network from
Frame Relay to Switched Ethernet or Virtual Private Networks.
Recommendation
That CTAC recommend continuation of the regional fund pool to continue hardware and software
maintenance of the RAMS system.
Upon CTAC recommendation to continue RAMS operations, staff will reconfirm agency costs and
continue the existing regional support agreement with the vendors. Staff will work with
participating agencies on developing local resolutions to reprogram local TransNet funds (or
interagency Memorandum Of Understandings to transfer other local funds) to SANDAG for RAMS
support.
Attachment: 1. Regional Arterial Management System Operations
Key Staff Contacts: Lisa Kondrat-Dauphin, (619) 699-1942, lisa.kondrat-dauphin@sandag.org
James Dreisbach-Towle, (619) 699-1914, james.towle@sandag.org
12
Attachment 1
Regional Arterial Management System (RAMS) Operations
Agencies identified with an "x" are asked to select an alternate approach for future years of
maintenance and support.
City of San Diego
$67,600
Local TNet Withheld
Caltrans District 11
$24,400
Funding Agreement
City of Chula Vista
$15,500
Local TNet RTIP
County of San Diego
$12,500
Local TNet Withheld
City of Carlsbad
$11,700
Local TNet Withheld
City of Escondido
$11,300
Funding Agreement
City of Oceanside
$11,200
Local TNet Withheld
City of San Marcos
$10,800
Local TNet Withheld
City of El Cajon
$9,700
Local TNet RTIP
City of Vista
$8,800
Local TNet Withheld
City of National City
$8,000
Local TNet RTIP
City of Encinitas
$7,400
Local TNet RTIP
City of La Mesa
$7,400
Local TNet RTIP
City of Santee
$7,400
Local TNet Withheld
City of Poway
$7,300
Local TNet Withheld
SANDAG
$15,000
13
RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING AN AMENDMENT TO THE 2012 REGIONAL TRANSPORTATION
IMPROVEMENT PROGRAM ("RTIP") FOR NATIONAL CITY TO ALLOCATE
$8,000 OF LOCAL TRANSNET (PROP A) FUNDING FOR THE TRAFFIC SIGNAL
INSTALL/UPGRADES PROJECT TO SATISFY NATIONAL CITY'S "FAIR SHARE"
CONTRIBUTION TOWARDS THE ANNUAL COST OF REGIONAL ARTERIAL
MANAGEMENT SYSTEM ("RAMS") OPERATIONS SUPPORT SERVICES FOR FY 2014
WHEREAS, on November 4, 2004, the voters of San Diego County approved the
San Diego Transportation Improvement Program Ordinance and Expenditure Plan (04-01)
extension that provides that SANDAG, acting as the Regional Transportation Commission, shall
approve a multi -year program of projects submitted by local jurisdictions identifying those
transportation projects eligible to use transportation sales tax (TransNet) funds; and
WHEREAS, on July 3, 2012, per Resolution No. 2012-145, City Council adopted
the 2012 Regional Transportation Improvement Program ("RTIP") for National City projects for
fiscal years 2013 through 2017; and
WHEREAS, SANDAG deployed the Regional Arterial Management System
("RAMS") Project (the "Project") at the end of fiscal year 2012, and delivered 15 local agency
RAMS servers, and one Regional server with which all local agency systems communicate; and
The RAMS provides the region and the local agencies the following benefits:
1. The ability to coordinate on signal plan development both actively and passively.
By sharing timing plans across local jurisdictional bounders, traffic engineers are
able to complete proposed plans more quickly and efficiently, and reach
agreement on modification more readily through access to better information;
2. A common time source across more than 3,000 traffic signals region -wide,
allowing for timing precision necessary to coordinate signals across jurisdictional
boundaries;
3. A common platform from which current and future efforts can build, such as the
Integrated Corridor Management System ("ICM") which is currently in operation
in the Interstate 15 corridor; and
WHEREAS, prior to the Project transitioning from implementation to ongoing
operations, SANDAG staff worked with the San Diego Regional Traffic Engineers Council
(SANTEC) and the Cities/County Transportation Advisory Committee (CTAC) on developing the
best approach to support this newly established, and common platform for all the traffic
engineers within San Diego County; and
WHEREAS, SANTEC and CTAC recommended that a Regional Fund Pool be
established to effectively and efficiently address the three operational elements: software
maintenance, hardware maintenance, and communication infrastructure; and
WHEREAS, RAMS operations support costs for FY 2014 are $236,000. National
City's "fair share" contribution (which is based on percentage of local traffic signals compared to
the total number of signals in the RAMS regional network), is $8,000 - National City maintains
73 traffic signals.
Resolution No. 2013 —
Page Two
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City hereby authorizes an amendment the 2012 RTIP for National City to allocate
$8,000 of local TransNet (Prop A) funding for the Traffic Signal Install/Upgrades Project to
satisfy National City's "fair share" contribution towards the annual cost of Regional Arterial
Management System (RAMS) operations support services for FY 2014.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST:
Michael R. Dalla, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 7
ITEM TITLE:
Resolution of the City Council of the City of National City, 1) awarding a contract in the not to exceed amount of
$1,199,139.75 to Ramona Paving and Construction, Corp. for the 8th Street Safety Enhancement Project,
Specification Number 12-15; 2) authorizing a 15% contingency in the amount of $179,870.96 for any
unforeseen changes; and 3) authorizing the Mayor to execute the contract. (Funded by HSIP Grant and Prop A)
PREPARED BY: Stephen Manganiello
PHONE: 336-4382
EXPLANATION:
See attached
FINANCIAL STATEMENT:
ACCOUNT NO.
DEPARTMENT: Engineering
APPROVED BY:
APPROVED:
nance
APPROVED: MIS
Funds are available in 8th Street HSIP Grant Account 296-409-9500-598-6165 in the amount of $900,000 and Prop A Signal Upgrades
Account 307-409-500-598-6558 in the amount of $299,139.75.
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt the Resolution.
BOARD / COMMISSION RECOMMENDATION:
N/A
NTTACHMENTS:
1. Explanation
2. Bid Opening Summary
3. Three Lowest Bidders Summary
4. Resolution
EXPLANATION
The 8th Street Safety Enhancement Project, Specification No. 12-15, includes the
following traffic safety enhancements along 8th Street from Highland Avenue to Palm
Avenue to calm traffic, reduce collisions and improve access for both vehicles and
pedestrians:
1) Reduce travel lanes from four lanes to three lanes (two eastbound and one
westbound) to:
a. Construct left -turn pockets at intersections and key commercial driveways
to reduce rear -end and left -turn vs. opposing thru traffic collisions;
b. Construct landscaped islands mid -block to calm traffic and beautify the
corridor;
c. Install corner bulb -outs at key intersections to calm traffic and reduce
pedestrian crossing distances; and
d. Preserve on -street parking;
2) Install left -turn pockets and a traffic signal at M Avenue to reduce rear -end and left -
turn vs. opposing thru traffic collisions, and provide positive protection for
pedestrians at the school crossing; and
3) Construct retaining walls for slope stabilization between K Avenue and L Avenue to
enhance pedestrian safety and access by preventing soil from washing over the
sidewalk.
In June, 2013, the bid solicitation was advertised in local newspapers and posted on the
City's website.
On August 6, 2013, five sealed bids were received by the 3:00pm deadline, opened and
publically disclosed. Ramona Paving and Construction, Corp. was the apparent low
bidder with a total bid amount of $1,199,139.75.
Upon review of all documents submitted and reference checks, Ramona Paving and
Construction is the lowest responsible bidder qualified to perform the work as described
in the project specifications.
Attached are the bid opening information sheet and the three lowest bidders summary
sheet for your information.
Staff recommendation is to, 1) award a contract in the not to exceed amount of
$1,199,139.75 to Ramona Paving and Construction, Corp. for the 8th Street Safety
Enhancement Project, Specification No. 12-15; 2) authorize a 15% contingency in the
amount of $179,870.96 for any unforeseen changes; and 3) authorize the Mayor to
execute the contract.
Funding is available through a Federal HSIP Grant and Prop A.
BID OPENING
SPECIFICATION NUMBER: 12-15
PROJECT TITLE: NATIONAL CITY 8m STREET SAFETY ENHANCEMENT
TIME: 3:00 P.M.
DATE: TUESDAY, AUGUST 6, 2013
ESTIMATE: BASE BID: $1,200,000
ADDITIVE A $80,000
PROJECT ENGINEER: BARBY TIPTON
NO.
BIDDER'S NAME
(PAGE)
BID AMOUNT
(PAGE 1-5)
Additive Bid
Total Bid
ADDENDA
(PAGE 1-1)
BID SECURITY
(PAGE 1-10
BOND)
1
Ramona Paving
1303 Olive Street
Ramona, CA 92065
$1,143,339.75
$55,800.00
$1,199,139.75
1,2
Yes
2
DMI
930 Broadway, Suite G
San Marcos, CA 92078
$1,164,693.00
$51,200.00
$1,215,893.00
1,2
Yes
3
Portillo Concrete
3527 Citrus Street
Lemon Grove, CA 92121
$1,217,780.75
$54,480.00
$1,272,260.75
1,2
Yes
4
L.B. Civil
11585 Sorrento Valley Rd.
#104
San Diego, CA 92121
$1,394,064.00
$52,700.00
$1,446,764.00
1,2
Yes
5
Wier Construction Corp.
2255 Barham Drive
Escondido, CA 92029
$1,592,747.00
$62,500.00
$1,655,247.00
1,2
Yes
Ramona Paving
DMI
Portillo Concrete
Item
No.
Description (5) Indicates Specialty Item
Unit
Qty.
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
1
Bonding
LS
1
$ 50,000.00
$ 50,000.00
$ 15,000.00
$ 15,000.00
$ 20,000.00
$ 20,000.00
2
Mobilization / Demobilization
LS
1
$ 20,000.00
$ 20,000.00
$ 5,000.00
$ 5,000.00
$ 10,000.00
$ 10,000.00
3
Surveying
IS
1
$ 8,700.00
$ 8,700.00
$ 8,000.00
$ 8,000.00
$ 10,000.00
$ 10,000.00
4
Traffic Control
LS
1
$ 25,000.00
$ 25,000.00
$ 15,000.00
$ 15,000.00
$ 15,000.00
$ 15,000.00
5
Water Quality Control, BMP's
LS
1
$ 4,500.00
$ 4,500.00
$ 12,000.00
$ 12,000.00
$ 2,500.00
$ 2,500.00
6
Clearing and Grubbing
LS
1
$ 30,000.00
$ 30,000.00
$ 60,000.00
$ 60,000.00
$ 65,000.00
$ 65,000.00
7
Unclassified Excavation
L5
1
$ 25,000.00
$ 25,000.00
$ 54,000.00
$ 54,000.00
$ 25,000.00
$ 25,000.00
8
Removal, disposal and replacement of
unsuitable material
TON
200
$ 65.00
$ 13,000.00
$ 35.00
$ 7,000.00
$ 50.00
$ 10,000.00
9
CMU Retaining Wall per Structural Plans
SF
5,560
$ 25.00
$ 139,000.00
$ 54.90
$ 305,244.00
$ 56.00
$ 311,360.00
10
Metal Guard Rail Fencing at top of CMU
Retaining Wall
LF
538
$ 27.00
$ 14,526.00
$ 31.00
$ 16,678.00
$ 25.00
$ 13,450.00
11
Adjust utility box to grade
EA
1
$ 250.00
$ 250.00
$ 1,300.00
$ 1,300.00
$ 500.00
$ 500.00
12
6" Type 'G' curb & gutter per SDRSD No. G-2.
LF
235
$ 38.00
$ 8,930.00
$ 24.00
$ 5,640.00
$ 30.00
$ 7,050.00
13
6" Type 'B-1' Median curb per SDRSD No. G-6.
LF
2,950
$ 27.00
$ 79,650.00
$ 10.00
$ 29,500.00
$ 13.00
$ 38,350.00
14
4" P.C.C. sidewalk per SDRSD No. G-7 & G-9.
SF
6,760
$ 5.50
$ 37,180.00
$ 4.20
$ 28,392.00
$ 4.60
$ 31,096.00
15
P.C.C. curb ramps per SDRSD No. G-28
EA
4
$ 2,800.00
$ 11,200.00
$ 1,300.00
$ 5,200.00
$ 1,800.00
$ 7,200.00
16
P.C.C. curb ramps per SDRSD No. G-29
EA
2
$ 2,850.00
$ 5,700.00
$ 1,400.00
$ 2,800.00
$ 1,800.00
$ 3,600.00
17
Ramps
and Crossings, SDRSD G-30
SF
200
$ 25.00
$ 5,000.00
$ 35.00
$ 7,000.00
$ 45.00
$ 9,000.00
1;' 18
Concrete cross gutter per SDRSD No. G-12
SF
320
$ 14.00
$ 4,480.00
$ 9.50
$ 3,040.00
$ 15.00
$ 4,800.00
19
Asphalt concrete pavement
TON
200
$ 120.00
$ 24,000.00
$ 158.00
$ 31,600.00
$ 125.00
$ 25,000.00
20
Concrete driveway per SDRSD No. G-14A
SF
520
$ 7.00
$ 3,640.00
$ 6.30
$ 3,276.00
$ 15.00
$ 7,800.00
21
Trench Resurfacing per SDRSD No. G-33,
Type B modified
SF
760
$ 12.00
$ 9,120.00
$ 11.00
$ 8,360.00
$ 5.00
$ 3,800.00
22
Copper Water Service and Sleeve
EA
3
$ 1,500.00
$ 4,500.00
$ 1,800.00
$ 5,400.00
$ 1,450.00
$ 4,350.00
23
Install Type 11 REAS Plant Mix Slurry Coat Full Width
of AC Prior to Final Striping
GAL
7,850
$ 7.50
$ 58,875.00
$ 7.40
$ 58,090.00
$ 7.40
$ 58,090.00
24
Install 2" AC Grind & Overlay
SF
1,735
$ 4.25
$ 7,373.75
$ 6.40
$ 11,104.00
$ 5.25
$ 9,108.75
25
Repair Catch Basin Curb to Cover Exposed Rebar (18')
LS
1
$ 3,800.00
$ 3,800.00
$ 1,400.00
$ 1,400.00
$ 2,500.00
$ 2,500.00
26
Traffic Signal Modification at 8th St. & Palm Avenue
LS
1
$ 123,000.00
$ 123,0013.00
$ 116,000.00
$ 116,000.00
$ 127,000.00
$ 127,000.00
27
New Traffic Signal at 8th St. & M Avenue
LS
1
$ 160,000.00
$ 160,000.00
$ 145,000.00
$ 145,000.00
$ 166,000.00
$ 166,000.00
28
Flashing Beacons at 8th St. & K Avenue
LS
1
$ 25,000.00
$ 25,000.00
$ 21,400.00
$ 21,400.00
$ 21,000.00
$ 21,000.00
29
Signing and Striping
LS
1
$ 29,500.00
$ 29,500.00
$ 30,000.00
$ 30,000.00
$ 30,400.00
$ 30,400.00
30
Unit Pavers (Permeable with Base)
SF
5,404
$ 16.00
$ 86,464.00
$ 11.00
$ 59,444.00
$ 15.50
$ 83,762.00
31
6" Headers for Pavers
LF
1,962
$ 8.00
$ 15,696.00
$ 13.00
$ 25,506.00
$ 7.50
$ 14,715.00
32
Crushed Rock
TON
42
$ 45.00
$ 1,890.00
$ 32.00
$ 1,344.00
$ 200.00
$ 8,400.00
33
Topsoil
CY
33
$ 50.00
$ 1,650.00
$ 100.00
$ 3,300.00
$ 42.00
$ 1,386.00
34
Finish Grade Landscape Areas
LS
1
$ 1,200.00
$ 1,200.00
$ 2,800.00
$ 2,800.00
$ 3,450.00
$ 3,450.00
35
Soil Tests
EA
2
$ 1,200.00
$ 2,400.00
$ 400.00
$ 800.00
$ 550.00
$ 1,100.00
36
Provide and Install 36 Inch Box Tree with
Double Staking
EA
20
$ 1,200.00
$ 24,000.00
$ 1,000.00
$ 20,000.00
$ 1,275.00
$ 25,500.00
37
Planting - M-11..m Soil, container 5 Gallon
EA
39
$ 900.00
$ 35,100.00
$ 26.00
$ 1,014.00
$ 41.00
$ 1,599.00
38
Planting - I n Soil, Container 1 Gallon
EA
229
$ 35.00
$ 8,015.00
$ 9.00
$ 2,061.00
$ 16.00
$ 3,664.00
39
Irrigation !
LS
1
$ 33,000.00
$ 33,000.00
$ 31,000.00
$ 31,000.00
$ 30,800.00
$ 30,800.00
Ramona I
DMI
Portillo Cony
Item
No.
Description (5) Indicates Specialty Item
Unit
Qty.
Unit Price
Extension
(Quantity
x Unit Price)
Unit Price
_
Extension
(Quantity
x Unit Price)
Unit Price
Extension
(Quantity
x Unit Price)
40
120 Day Plant Establishment/Maintenance
LS
1
$ 3,000.00
$ 3,000.00
$ 5,000.00
$ 5,000.00
$ 4,450.00
$ 4,450.00
Base Bid Total
1,143 339.75
$ 1,164,693.00
$ 1,217,780.75
a i""..+:'_.•-..e
A-1
E .i 1+ 9 � Olt A't
Type I Pedestrian Barricade with R49(CA) sign on both s
.
EA
(
....
—d`t
4
':.
$ 900.00
-
$
1 '
.s. 't fir=
.. '..
di utwk Zvi v '�
w..—
!<�°: tt .:
J . .Y...•.
3,600.00
$ 165.00
$ 660.00
$ 935.00
$ 3,740.00
A-2
Remove all conflicting striping, thermoplastic, & pavem
LS
1
$ 4,300.00
$ 4,300.00
$ 4,500.00
$ 4,500.00
$ 4,600.00
$ 4,600.00
A-3
Type 11 REAS Plant Mix slurry coat full width of ACprior
GAL
5,600
$ 7.75
$ 43,400.00
$ 7.40
$ 41,440.00
$ 7.40
$ 41,440.00
A-4
Signing and striping
LS
1
$ 4,500.00
$ 4,500.00
$ 4,600.00
$ 4,600.00
$ 4,700.00
$ 4,700.00
Additive Bid Total
$ 55,800.00
$ 51,200.00
$ 54,480.00
Grand Total (Base Bid + Additive)
$ 1,199,139.75
$ 1,215,893.00
$ 1,272,260.75
RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AWARDING A CONTRACT IN THE NOT TO EXCEED AMOUNT OF $1,199,139.75
TO RAMONA PAVING AND CONSTRUCTION CORPORATION FOR THE 8TH STREET
SAFETY ENHANCEMENT PROJECT, AUTHORIZING A 15% CONTINGENCY
IN THE AMOUNT OF $179,870.96 FOR ANY UNFORESEEN CHANGES, AND
AUTHORIZING THE MAYOR TO EXECUTE SAID CONTRACT
WHEREAS, the Engineering Division of the Development Services Department,
in open session on August 6, 2013, did publicly open, examine, and declare five sealed bids for
the 8th Street Safety Enhancement Project (the "Project"); and
WHEREAS, Ramona Paving and Construction Corporation was the lowest
responsive bidder with a proposed bid amount of $1,199,139.75; and
WHEREAS, a 15% contingency amount up to $179,870.96 for any unforeseen
changes to the Project is requested.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City hereby awards the contract for the 8th Street Safety Enhancement Project to the
lowest responsive, responsible bidder, to wit:
RAMONA PAVING AND CONSTRUCTION CORPORATION.
BE IT FURTHER RESOLVED by the City Council of the City of National City that
the Mayor is hereby authorized to execute on behalf of the City a contract in the amount of
$1,199,139.75 with Ramona Paving and Construction Corporation for the 8th Street Safety
Enhancement Project. Said contract is on file in the office of the City Clerk.
BE IT FURTHER RESOLVED that the City Council hereby authorizes a 15%
contingency amount up to $179,870.96 for unforeseen changes to the Project.
PASSED and ADOPTED this 20th day of August, 2013.
ATTEST:
Michael R. Della, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
Ron Morrison, Mayor
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 8
ITEM TITLE:
Resolution of the City Council of the City of National City: 1) approving an Amendment to increase the
amount of the Agreement Contract No. CT#1752 with the National School District to $1,185,538 for
the Library to provide a before and after -school program during the 2013-2014 school year at the
District's ten schools; and 2) authorizing the City Librarian to execute said Amendment.
PREPARED BY: G. Olivares DEPARTMENT: Libr
PHONE: 470-5883 APPROVED BY:
EXPLANATION:
This agreement amends the Fee section (Section 5 of the original Agreement CT#1752) to read
$1,185,538 for FY2013-14.
The amendment represents an augmentation of $173,538 over FY2012-2013 amount of $1,012,000. It
covers the additional personnel costs incurred with the one-time step increase for part-time hourly
employees, approved by City Council as part of the FY2013-14 budget adoption.
All other terms remain unchanged.
FINANCIAL STATEMENT:
ACCOUNT NO. 246-31000-3463
ENVIRONMENTAL REVIEW:
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
finance
MIS
STAFF RECOMMENDATION:
Adopt resolution
BOARD / COMMISSION RECOMMENDATION:
Approved by the Library Board of Trustees on August 8, 2013
ATTACHMENTS:
1. Copy of WINGS Operating Agreement CT#1752
2. Amendment to the WINGS Operating Agreement CT#1752
3. Resolution
06-00-9065-100-0000-1000-5800-100-026
AFTER -SCHOOL EDUCATION AND SAFETY PROGRAM
OPERATING AGREEMENT
CONTRACT #CT 1752
This AGREEMENT is made by and between National School District; herein called, "District,"
1500 "N" Avenue, National City, California 91950, and National City Public Library, herein
called "Contractor," 1401 National City Blvd., National City, California 91950
WITNESSETH
WHEREAS, National School District has implemented or will be implementing the
After -School Education and Safety Program ("ASESP"); and
WHEREAS, District desires to engage the National City Public Library, (or Contractor)
to provide an extended school day child care and education program pursuant to ASESP at all of
its schools; and
WHEREAS, Contractor is ready, willing and able to perform the services detailed in this
Agreement, beginning July 1, 2009, and concluding June 30, 2010.
NOW, THEREFORE, District and Contractor mutually agree as follows:
1. DEFINITIONS: For the purposes of this Agreement, the following terms shall have the
meanings indicated:
a) "District" - National School District
b) "Contractor" - National City Public Library
c) "State" - State -funded After -School Education and Safety Program grant which
constitutes the source of funding under this Agreement.
2. SCOPE OF SERVICES: Contractor hereby agrees to perform the services specifically
listed below:
a) Operation of Program: Operate a school -age child care program pursuant to ASESP
("Program") that provides safe, healthy, recreational, and educational activities at each
of the District's schools for children enrolled in the Program. Contractor agrees to
commit resources to ensure the delivery of an integrated, age -appropriate child care
and education Program.
b) Hours of Operation: While District schools are in regular sessions, the Program shall
operate before school (6:30 — 8:00 a.m. or 7:00 — 8:30 a.m. dependent upon the school)
and after school dismissal time (beginning around 1:00 to 3:10 p.m., dependent upon
the school site), for the remainder of the day until 6:00 p.m., on a Monday through
Friday schedule. Daily hours of operation must be posted by Contractor and be visible
to the participants and parents of the Program. Operating hours will be monitored by
daily sign -in and sign -out sheets and reported monthly to the District and to the State
by the Contractor.
c) Holidays: The Program will not operate during scheduled school holidays and
scheduled vacation periods unless funds are made available, and Contractor agrees
through an amendment to this Agreement to perform during such periods.
d) Summer Program: District may request that Contractor operate the Camp Wings
Summer School Program, subject to District and Contractor mutually agreeing to the
Contractor's fee and implementing an amendment to this Agreement.
e) Use of Facilities: At each school site, Contractor may use such portions of the school
site and school facilities as are agreed upon with the principal of the school.
Page 2 of 12
Contractor agrees to keep school sites and school facilities it uses clean and organized,
and to cooperate with other groups using the sites and facilities.
f) Compliance: If for any reason, the Program is not operating at the times. and days
agreed upon, the Contractor shall forfeit payment for those times that the Program is
not operating and will be subject to termination of the Agreement at District's sole
option.
g) Staffing: Contractor shall provide a coordinator to oversee and coordinate Program
activities in cooperation with District staff. Each Program site must be staffed daily, at
a minimum, by the required student to staff ratio of one adult to twenty students.
Designated coaches and/or site staff must be trained in CPR and First Aid. Training
will be provided by National School District. Contractor is encouraged to hire
instructional assistants and credentialed teachers from the school site to assist with the
Program. Volunteers to assist with tutoring, literacy, and mentoring may be added in
addition to paid staff.
h) Experience: Site supervisors must have prior supervisory experience.
i) Fingerprinting: Contractor agrees to provide District with written certification that
Contractor has complied with the fingerprinting and criminal background
investigation requirements of the California Education Code with respect to all
Contractor's employees and volunteers who may have contact with District students
in the course of providing services under the Program. Contractor shall provide
written verification stating that none of its employees or volunteers who may have
contact with District students has been convicted of a violent or serious felony as
defined in the Education Code.
Page 3 of 12
j) First Aid/CPR: At all times, there shall be personnel on site trained in First Aid/CPR,
safety, and emergency procedures. The leaders must have proof of their First Aid/CPR
card at the site.
k) Uniform/Dress Code: On -site personnel will be required to have a professional
appearance, wearing a name badge and vest which identifies them and the agency for
which they work.
1) Supervision: The Contractor is required to have its agency supervisorial management
personnel visit each Program site at least once weekly. The District or designee will
periodically visit sites unannounced.
m) Health: Contractor staff and volunteers are required to have a negative tuberculin
test or x-ray within the last three (3) years.
n) Safety: Safety is a critical element in the Programs. All safety rules and emergency
procedures followed during the school day apply to the Program.
o) Emergency Contact Forms: At every site Contractor must have parents fill out
emergency contact cards and medical release forms. These forms must be kept on
file at the school site by Contractor within easy access.
p) Emergency Procedures/Accident Reports: The Contractor will adhere to emergency
procedures at each school site. A formal reporting process for all accidents, incidents
and complaints must be approved by the District and communicated to and posted for
parents. Any serious accident, i.e., injury involving medical attention, must be
reported in writing to the school principals and the Contractor's corporate office. A
written accident or incident report must be sent within three (3) days. All minor
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accidents or injuries are reported on an "Ouch Slip," with copies provided to the
District, school site, and parent/guardian.
q) School Relations: Developing a close relationship with school staff is critical to the
success of the Program. Contractor will communicate regularly with school staff to
ensure school staff is fully aware of Program activities.
r) Collaboration: Contractor will collaborate with other appropriate persons and entities
to provide an effective, meaningful Program in the National School District. Such
collaboration shall include, but not be limited to, the National City Public Library,
parents and local community partners. Contractor will promote cooperation and
coordination among and between school sites and all personnel involved in Program
activiti es.
s) Amendment: Any modification of the type or quantity of services, or the fees for the
services to be provided by Contractor, shall require a mutually agreeable amendment
to this Agreement.
3. DISTRICT RESPONSIBILITIES: In connection with this Agreement District shall
perform the following activities:
a) Facilitate communication of the Program mission, goals and objectives to all
participating school sites, and in particular to principals, teachers, other school staff,
parent -teacher organizations, school site councils and parents.
b) Promote cooperation and coordination among and between school sites and all
personnel involved in Program activities.
c) Designate a staff liaison as a key contact for Contractor.
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d) Coordinate the daily delivery of snacks for participating children through Child
Nutrition Services.
e) Negotiate and implement contracts for karate, dance and music coaches.
4. PERIOD OF PERFORMANCE: The services to be performed by Contractor, as set forth
herein, shall commence on July 1, 2009, and end on June 30, 2010, unless terminated sooner
in accordance with the provisions of this Agreement. This Agreement will automatically
renew each year for an additional 12-month period contingent on the Parties mutual
agreement to any adjustment in fees due to increased or decreased operating costs. At any
time either Party may choose to terminate the contract by providing thirty (30) days written
notice prior to the end of the term.
5. FEE: The District shall pay to the Contractor as full consideration for the faithful
performance of the contract, subject to any additions or deductions as provided in the
contract documents, and including any applicable sales, use of other taxes or costs, the sum
of ($979,698), Nine Hundred Seventy Nine Thousand Six Hundred Ninety Eight Dollars
and No Cents.
6. EXPENDITURES: The Contractor will be required to provide substantiation for all
expenditures claimed for reimbursement in the form of receipts and invoices. Contractor is
allowed to charge a 5% administrative markup over claimed expenditures.
7. METHOD OF PAYMENT: Contractor shall be reimbursed for eligible expenditures
within thirty days of receipt of invoices at the end of each quarter. Invoices shall be
submitted for the quarters ending on September 30, 2009, December 31, 2009, March 31,
2010, and the last day of the school year. In order to receive reimbursement for expenditures,
quarterly invoices must be accompanied by written documentation substantiating claimed
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expenditures. The final payment to Contractor shall be withheld until the final invoice with
substantiating documentation has been received by the District.
8. STATE REQUIREMENTS: Contractor shall comply with all requirements set forth by the
State Department of Education, After -School Education and Safety Program grant. This will
include, but not be limited to, program reporting requirements, contract compliance,
allowable expenses, fiscal reporting and program evaluations.
9. AUDITS: District will conduct an audit review of Contractor's Program annually during the
term of this Agreement. Additionally, Contractor's Program may be audited by District at
any time within three (3) years following termination of this Agreement. If Contractor is
subject to audits from a source or sources other than the District, Contractor shall provide a
copy of the audit to the District within thirty (30) days of completion of the audit.
10. DISCONTINUANCE OF PROGRAM: The District reserves the right to discontinue the
Program at its sole discretion, for reasons including, but not limited to the following: regular
low attendance (25 students or less), poor program quality, or at the request of the school
principal. In such cases, a 30-day written notice will be provided to the Contractor.
11. RECORDS: Contractor shall maintain detailed administrative and fiscal records as required
by the District in writing during the term of this Agreement. Contractor shall allow National
School District authorized agents to inspect its premises, books, accounting documents,
payrolls, and other Program records for the purpose of auditing, monitoring, or evaluating the
Program. Contractor shall store such records and documents for a period of three (3) years
after submission of the final expenditure report, or until all audit findings have been resolved,
whichever is longer. During this period, the District or its authorized agents, shall have
access to such records and documents at any time. After the three (3) years storage period
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has expired or all audit findings have been resolved, Contractor shall in either case, notify the
District of its intent to dispose of Program records before any action is taken.
12. INTEGRATED AGREEMENT: This Agreement and the exhibits and references
incorporated herein fully express all understandings of the Parties concerning the matters
covered herein, and supersede any prior agreements, negotiations, and communications, oral
or written, between the parties. No change, alteration, or modification of the terms or
conditions of this Agreement, and no verbal understanding of the Parties, their officers,
agents, or employees, shall be valid unless it is made in the form of a written change or
amendment to this Agreement, is signed by all Parties, and is executed in accordance with
procedures described herein.
13. EQUAL OPPORTUNITY PROGRAM REQUIREMENTS
a) Equal Employment Opportunity: Contractor hereby agrees to comply with Title VII of
the Civil Rights Act of 1964, as amended, Executive Orders 11246, 11375, and 12086;
the California Fair Employment Practices Act, and anyother applicable Federal and State
laws and regulations hereafter enacted. Contractor will not discriminate against any
employee or applicant for employment on any basis prohibited by law. Upon request by
District, Contractor agrees to submit a current Workforce Report or an Equal Employ-
ment Opportunity Plan. Contractor understands that failure to comply with the above
requirements and/or submitting false information in response to these requirements, may
result in termination of this Agreement.
b) Nondiscrimination: Contractor agrees not to discriminate in any manner against any
person or persons on account of race, color, religion, gender, sexual orientation, medical
status, national origin, age, marital status, or disability in Contractor's performance of
Page 8 of 12
this Agreement, including, but not limited to, the providing of services, privileges,
facilities, advantages, and accommodations.
c) Equal Contracting Opportunity: Contractors shall ensure that any subcontractors comply
with these provisions. Nothing in this section shall be interpreted to hold a prime
contractor liable for any discriminatory practice of its subcontractors.
14. INDEPENDENT CONTRACTOR: Contractor is an independent Contractor hereunder,
and nothing contained herein shall be construed as creating a relationship of employer and
employee between the Parties. Contractor shall notify all prospective subcontractors of its
independent status hereunder.
15. ASSIGNABILITY: Contractor shall not assign or subcontract any of the work or services
to be performed under this Agreement, or expend any funds for such purpose without prior
written approval of the District. Contractor shall provide the District copies of all
subcontracts entered into under the terms of this Agreement.
16. HOLD HARMLESS: Contractor agrees to defend, indemnify, protect and hold the District
and its agents, officers and employees harmless from and against any and a11• claims asserted
or liability established for damages or injuries to any person or property, including injury to
Contractor's employees, agents or officers which arise from or are connected with or are
caused or claimed to be caused by the acts or omissions of Contractor, and its agents, officers
or employees, in performing the work or services herein, and all expenses of investigating
and defending against same; provided, however, that Contractor's duty to indemnify and hold
harmless, shall not include any claims or liability arising from the established sole negligence
or willful misconduct of the District, its agents, officers or employees.
Page9of12
17. INSURANCE: Contractor shall obtain and keep in force during the period of this
Agreement, a policy of comprehensive public liability insurance or lawful self -insured
status, which insures Contractor against any and all claims of liability, including accident,
injury or death arising from the provision of Program services, or from the ownership, use,
operation, maintenance, or administration of School District premises and all areas
appurtenant thereto. Such insurance or self-insurance shall be in an amount of not less than
ONE MILLION DOLLARS ($1,000,000) for any injury or death of, any person or persons
in any accident or occurrence, and shall name District as an additional insured.
18. WORKERS' COMPENSATION: Contractor agrees to procure and maintain in full force
and effect Workers' Compensation Insurance covering its employees and agents while these
persons are participating in the activities hereunder. In the event a claim under the
provisions of the California Workers' Compensation Act is filed against District by a bona
fide employee of Contractor participating under this Agreement, Contractor agrees to defend
and indemnify the District from such claim. Contractor may comply with the provisions of
this Section 18 by maintaining its lawful self -insured status during the terms of this
Agreement.
19. DRUG -FREE WORKPLACE: Contractor shall publish a statement, notifying employees
that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled
substance is prohibited in the work place, and specifying the actions that will be taken against
employees for violations of the prohibition. Contractor shall establish a drug -free awareness
program to inform employees about all of the following:
a) The dangers of drug abuse in the workplace
b) The organization's policy of maintaining a drug -free workplace
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c) Any available drug counseling, rehabilitation, and employee assistance program
d) The penalties that may be imposed upon employees for drug abuse violations
Contractor shall post the drug -free policy in a prominent place. Contractor shall include
language in each subcontract executed in connection with this Agreement which indicates the
subcontractor's agreement to abide by provisions of the drug -free workplace program.
Contractor and subcontractors shall be individually responsible for their own drug -free
workplace program.
20. TERMINATION OF AGREEMENT: District or Contractor may terminate this Agree-
ment by giving written notice to the other Party thirty (30) days prior to the effective date of
termination. District may terminate this Agreement at any time if Contractor fails to meet or
fulfill its obligations hereunder. In the event of termination by either Party, District's
liability shall be limited to reimbursement for the eligible monthly expenditures for work or
services performed, plus administrative markup, up to the date of termination.
21. EVALUATIONS: The effectiveness and success of each program will be measured by
overall compliance with Agreement terms, daily attendance, variety and interest of program
content, and satisfaction of participants, parents and school administrators. A desired
outcome will be improved test scores and increased daily school attendance as measured by
the District. Additional evaluations may be required by the State as terms of the grant
requirement. Contractor agrees to cooperate and comply with all evaluations of the
Program.
22. JOINT ADVISORY PANEL: The Parties agree that a joint advisory panel composed of
the Literacy Coordinator and WINGS. Coordinator from the National City Public Library,
and the Assistant Superintendent for Educational Services and the Extended Learning
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Opportunities Coordinator from the National School District, shall provide advise with
respect to the Program provided for by this Agreement.
NATIONALICITY PUBLIC LIBRARY NATIONAL SCHOOL DISTRICT
Signa
Minh Duong
Print Name
City Librarian
Title
Date
Signature
CrrS drFht
Print Name
mrerin'�eh�eh des Sne�,
Title (A(
OCI
Governing Board Approval Date
Page 12 of 12
AN AGREEMENT TO
AMEND CONTRACT 1752, AFTER SCHOOL EDUCATIONAND SAFETY PROGRAM
OPERATING AGREEMENT, BETWEEN THE NATIONAL SCHOOL DISTRICT AND THE
NATIONAL CITY PUBLIC LIBRARY / CITY OF NATIONAL CITY
THIS AGREEMENT, made and entered into this 1st day of July 2013, by and between THE CITY OF
NATIONAL CITY / NATIONAL CITY PUBLIC LIBRARY, hereinafter called "NCPL," and THE
NATIONAL SCHOOL DISTRICT, an agency of the State of California, hereinafter called
"DISTRICT."
The Parties agree:
I. SERVICES TO BE PROVIDED
A. NATIONAL CITY PUBLIC LIBRARY shall provide a WINGS before and after school
program at all ten (10) schools in the DISTRICT as outlined in the July 2013 After School
Education and Safety Program Operating Agreement, Contract #1752. (See attached
agreement)
B. The DISTRICT shall provide adequate supports and services outline in the July 2013 After
School Education and Safety Program Operating Agreement, Contract #1752.
1. This agreement will amend the Fee section (Section 5) in the original agreement. The
District agrees to pay the NCPL $1,185,538, upon receipt of monthly invoices, for
appropriate program costs during the 2013-2014 school year.
II. TERM AND TERMINATION
All other Terms and Conditions remain per the original contract. The term of this Contract
Amendment shall begin July 1, 2013 and terminate on June 6, 2014 at the end of the 2013-2014
school year.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year
first above written.
NATIONAL SCHOOL DISTRICT CITY OF NATIONAL CITY/ NCPL
Christopher ()ram, Ed.D. City Representative
District Superintendent
National School District Board Approval Date:
June 26, 2013
RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
APPROVING AND AUTHORIZING THE CITY LIBRARIAN TO EXECUTE
AN AGREEMENT TO AMEND CONTRACT NO. CT 1752 WITH
THE NATIONAL SCHOOL DISTRICT IN THE AMOUNT OF $1,185,538
FOR THE PUBLIC LIBRARY TO PROVIDE A BEFORE AND AFTER
SCHOOL PROGRAM DURING THE 2013-2014 SCHOOL YEAR
AT THE DISTRICT'S TEN SCHOOLS
WHEREAS, in 2009, the National City Public Library entered into After -School
Education and Safety Program Operating Agreement Contract No. CT 1752 with the National
School District (the "District") for the Library to provide a before and after school program at the
District's ten schools, beginning July 1, 2009, with an annual automatic renewal contingent upon
the parties agreeing on the appropriate adjustment in fees; and
WHEREAS, on August 18, 2009, the City Council adopted Resolution No. 2009-
198, approving and ratifying said Operating Agreement; and
WHEREAS, to continue the before and after school program, the City and the
District have agreed to amend Contract No. CT 1752 to reflect the increase in the cost to
provide the Program to $1,185,538, an increase of $173,538 over Fiscal Year 2012-2013.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City hereby approves the Agreement to Amend Contract No. 1752 between the City of
National City/Public Library and the National School District setting the fee paid to the Library at
$1,185,538 for providing a before and after school program at the District's ten schools,
beginning July 1, 2013, to the District's ten schools during the 2013-2014 school year.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST:
Michael R. Dalla, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 9
ITEM TITLE:
TEMPORARY USE PERMIT — 12th Annual 9/11 Remembrance Ceremony hosted by the National City
Fire Department at 343 E. 16th Street on September 11, 2013 from 6:00 a.m. to 10:00 a.m. This is a
city -sponsored event.
PREPARED BY: Vianey Rivera
PHONE: (619) 336-4364
EXPLANATION:
DEPARTMENT: NeiServices Division
APPROVED BY:
This is a request from the National City Fire Department to host the 12th Annual 9/11 Remembrance
Ceremony at Fire Station #34 located at 343 E. 16th Street on September 11, 2013 from 6am to 10am.
This is event will be in remembrance and salute to the 343 firefighters who made the supreme sacrifice
on 9/11/2001. Breakfast will be served from 7:30 a.m. to 8:30 a.m. Retired FDNY Firefighter Brennan
Savage and Jack Toale will be guest speakers. The NCFD and NCPD color guard will present the flag
salute.
The applicant is requesting the street closures on "D "Avenue from 15th Street to 16th Street in front of
the Fire Station from 6 a.m. to 10 a.m. in order to park fire apparatus.
FINANCIAL STATEMENT: APPROVED:
ACCOUNT NO. APPROVED:
The City has incurred $237.00 for processing the TUP, plus $265.54 for Public Works.
Total fees are $502.54
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
Finance
MIS
STAFF RECOMMENDATION:
Approve the Application for a Temporary Use Permit subject to compliance with all conditions of
approval.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
Application for a Temporary Use Permit with recommended approvals and conditions of approval.
Actual Event Hours: 6 aiti/pm to 10 &n/pm
Setup/assembly/construction Date: 9/ 1 1/ f Start time: 6: 0 0 a. m.
Please describe the scope of your setup/assembly work (specific details):
Type of Event:
_ Public Concert Fair
_ Parade Demonstration
Motion Picture Grand Opening
Festival
Circus
Other
Event Title: 9/11 Remembrance Ceremony
Event Location: Station#34, 343 E. 16th Street
X Community Event
Block Party.
Event Date(s): From 9 / 1 1 sit 1o9 / 1 1 / i3 Total Anticipated Attendance: 6 0
Noah/Day/Year ( ,t___Participants)
50_Spectators)
Dismantle Date: Completion Time: am/pm
List any street(s) requiring closure as a result of this event. Include street name(s), day and
time of dosing and day and time of reopening.
"D" Avenue from 15th to 16th Street. From 0600-1000 on
Saturday, September 11, 2011'.
Sponsoring Organization: Hatinnn 1 r'i ty Fi re Dept.
Chief Officer of Organization (Name) Frank Parra
Applicant (Name): Don Miner
For Profit
Not -for -Profit
Address: 343 E. 16th Street, National City, CA 91950
Daytime Phone:(1)336-4555 Evening Phone: (;,j) Fax:(619 336-4562
Contact Person on site" day of the event:pon Miner
Pager/Cellular. ( 760 )715-6385
NOTE: THIS PERSON MUST BE IN ATTENDANCE FOR THE DURATION OF THE EVENT
AND IMMEDIATELY AVAILABLE TO CITY OFFICIALS
Is your organization a "Tax Exempt, nonprofit" organization? _xYES NO
Are admission, entry, vendor or participant fees required? _ YES X NO
If YES, please explain the purpose and provide amount(s):
$ Estimated Gross Receipts including ticket, product and sponsorship sales from
this event.
Estimated Expenses for this event.
$ What is the projected amount of revenue that the Nonprofit Organization will
receive as a result of this event?
Please provide a DETAILED DESCRIPTION of your event. Include details regarding any
components of your event such as the use of vehicles, animals, rides or any other pertinent
information about the event.
The National City Firefighters for the IDth Annual remembe
rance and salute to the 343firefighters who made the
supreme sacrafice on 9/11/2001. Breakfast may be served
from 7:00a.m. until 8:30a.m. Retired FDNY Firefighter
Brennan Savage may be the key note speaker. The NCFD and
NCPD color guard may present the flag salute. This request
is to shut down D avenue in front of the Fire Station in
order to park fire apparatus.
_ YES g NO If the event involves the sale of cars, will the cars come exclusively from
National City car dealers? If NO, list any additional dealers involved in the
sale:
1
_ YES I, NO Does the event involve the sale or use of alcoholic beverages?
YES ,_ NO Will items or services be. sold at the event? If yes, please describe:
YES NO Does the event involve a moving route of any kind along streets, sidewalks or
X--
highways? If YES, attach a detailed map of your proposed route indicate the
direction of travel, and provide a written narrative to explain your route.
-x YES NO Does the event involve a fixed venue site? If YES, attach a detailed site map
showing all streets impacted by the event.
_ YES X NO Does the event involve the use of tents or canopies? If YES:
Number of tent/canopies Sizes
NOTE: A separate Fire Department permit is required for tents or canopies.
YES NO Will the event involve the use of the City stage or A system?
Inaddition to the route map required above, please attach a diagram showing the overall layout
and set-up locations for the following items:
> Alcoholic and Nonalcoholic Concession and/or Beer Garden areas.
> Food Concession and/or Food Preparation areas
Please describe how food will be served at the event:
If you intend to cook food in the event area please specify the method:
GAS _ELECTRIC CHARCOAL _ OTHER (Specify):
> Portable and/or Permanent Toilet Facilities
Number of portable toilets: (1 for every 250 people is required, unless the
applicant can show that there are facilities in the immediate area available to the public
during the event)
> Tables and Chairs t b+gb)ts 5O C A S
> Fencing, barriers and/or barricades
> Generator locations and/or source of electricity
> Canopies or tent locations (include tent/canopy dimensions)
D Booths, exhibits, displays or enclosures
> Scaffolding, bleachers, platforms, stages, grandstands or related structures
> Vehicles and/or trailers
> Other related event components not covered above
> Trash containers and dumpsters
(Note: You must properly dispose of waste and garbage throughout the term of your
event and immediately upon conclusion of the event the area must be retumed to a clean
condition.)
Number of trash cans: Trash containers with lids:
Describe your plan for clean-up and removal of waste and garbage during and after the event:
3
Please describe your procedures for both Crowd Control and Internal Security: NCPD wi 11
be on site for crowd control and internal security.
YES X NO Have you hired any Professional Security organization to handle security
arrangements for this event? If YES, please list:.
Security Organization:
Security Organization Address:
Security Director (Name): Phone:
YES X NO Is this a night event? If YES, please state how the event and surrounding area
will be illuminated to ensure safety of the participants and spectators:
Please indicate what arrangement you have made for providing First Aid Staffing and Equipment.
NCFD will be on site for providing first aid and pauinnint
Please describe your Accessibility Plan for access at your event by individuals with disabilities:
Sidewalks will not be blocked in order to allowaccess to
individuals with disabilities_
Please provide a detailed description of your PARKING plan:
Parking will be provided behind Fire Station #14
Please describe your plan for DISABLED PARKING:
Parking,Fnr_ djz61pA j��icr;dua]
bebi nd Fine Station #34
4
ovided
Please describe your plans to notify all residents, businesses and churches impacted by the
event:
Nnt i CP.F of residents. husinpsspq and churches will be
distributed two weeks prior to the event.
NOTE: Neighborhood residents must be notified 72 hours in advance when events are
scheduled in the City parks.
YES X NO Are there any musical entertainment features related to your event? If YES,
please state the number of stages, number of bands and type of music.
Number of Stages: Number of Bands:
Type of Music:
YESX NO Will sound amplification be used? If YES, please indicate:
Start time: am/pm Finish Time am/pm
_ YES NO Will sound checks be conducted prior to the event? If YES, please indicate:
Start time: am/pm Finish Time am/pm
Please describe the sound equipment that will be used for your event:
_ YES XNO Fireworks, rockets, or other pyrotechnics? If YES, please describe:
`YES XNO Any signs, banners, decorations, special lighting? If YES, please describe:
Revised 08/10/05
5
CITY OF NATIONAL CITY
NEIGHBORHOOD SERVICES DIVISION
APPLICATION FOR A TEMPORARY USE PERMIT
RECOMMENDATIONS AND CONDITIONS
SPONSORING ORGANIZATION: National City Fire Department
EVENT: 12th Annual 9/11 Remembrance Ceremony
DATE OF EVENT: September 11, 2013
TIME OF EVENT: 6am to 10am
APPROVALS:
DEVELOPMENT SERVICES
RISK MANAGER
PUBLIC WORKS
FINANCE
FIRE
COMMUNITY SERVICES
POLICE
CITY ATTORNEY
YES [x ]
YES [x]
YES [x
YES [ x ]
YES [x]
YES [ x
YES [ x
YES [ x ]
NO [ ]
NO [ ]
NO [ ]
NO [ ]
NO [ ]
NO [ ]
NO [ ]
NO [ ]
SEE CONDITIONS [ x ]
SEE CONDITIONS [ x ]
SEE CONDITIONS [ x
SEE CONDITIONS [ x
SEE CONDITIONS [ x ]
SEE CONDITIONS [ x
SEE CONDITIONS [ x ]
SEE CONDITIONS [ x ]
CONDITIONS OF APPROVAL:
DEVELOPMENT SERVICES (619) 336-4318
Building: No comments.
Planning: No comments.
Engineering: MTS needs to be notified of the closure for the ceremony.
RISK MANAGER (619) 336-4370
Risk Management has no issues with this City sponsored event.
PUBLIC WORKS (619)366-4580
Street Division
• Staff will barricade affected streets and remove them when the event is over.
• Staff will post "no parking" signs along affected streets before the event.
• The cost to provide Street personnel is estimated to be:
1. "No Parking" signs 16 x $0.45 $ 7.20
2. Equipment 4 x $19.09 $ 76.36
3. Barricades 12 x $0.35 $ 4.20
4. Regular Hours 4 x $32.57 $130.28
6. Total $218.04
Park Division
No involvement
Facilities Division
• The cost to provide tables and chairs for this event is as follows:
1. Tables 10 x $1 ea $ 10.00
2. Chairs 50 x $0.75 $ 37.50
3. Total $ 47.50
Facilities personnel will deliver tables and chairs to Station #34 prior to the event
and make arrangements for pickup.
FINANCE
Finance has no involvement with this event.
FIRE (619) 336-4550
Stipulations required by the Fire Department for this event are as follows:
The Fire Department has no stipulations for this event
COMMUNITY SERVICES
CS has no involvement.
POLICE
The PD has no stipulations. PD will work on getting the Honor Guard for the
event.
CITY ATTORNEY
I have no comments as this is a City program/application.
MEETING DATE:
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
August 20, 2013
AGENDA ITEM NO. 0
ITEM TITLE:
Investment Report for the quarter ended June 30, 2013.
PREPARED BY: Arnold Ocana
PHONE: (619) 336-4342
EXPLANATION:
See attached staff report.
DEPARTMENT: Financ
APPROVED BY:
FINANCIAL STATEMENT: APPROVED: GsP 4 Finance
ACCOUNT NO. APPROVED: MIS
See attached staff report.
ENVIRONMENTAL REVIEW:
This is not a project and, therefore, not subject to environmental review.
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Accept and file the Investment Report for the quarter ended June 30, 2013.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1. Staff Report
2. Investment Listings
City Council Staff Report
July 31, 2013
ITEM
Staff Report: Investment Report for the quarter ended June 30, 2013.
BACKGROUND
The California Government Code (§ 53646(b)) requires that, when the treasurer or the chief
fiscal officer of a local agency renders to the legislative body of the agency a quarterly report on
the agency's investment portfolio, such report shall include the following information regarding
all securities, investments, and moneys held by the local agency:
type of investment;
➢ issuer (bank or institution);
y date of maturity;
➢ dollar amount invested; and
➢ current market valuation as of the date of the report.
In addition, the Government Code (§ 53646(b)(2)) requires that the report state the City's
compliance with its investment policy and include a statement regarding the ability of the local
agency to meet its pool's ability to meet its expenditure requirements Code (§ 53646(b)(3)).
OVERVIEW OF CITY INVESTMENTS
The City's pooled investment portfolio balance as of June 30, 2013 is summarized below and
compared to the balance as of June 30, 2012.
6/30/13
6/30/12
Book Value (1)
$ 59,246,949
$ 55,855,617
Market Value (2)
$ 58,969,729
$ 55,814,463
(1) actual cost of investments
(2) amount at which the investments could be sold
The California Treasurer's Local Agency Investment Fund ("LAIF") and The County of San
Diego Pooled Money Fund comprise 61.43% of the City of National City's total investment
portfolio (52.99% and 8.44 %, respectively). These are liquid investment pools that allow
participants to earn market rate returns, while retaining access to funds within 24 to 48 hours of a
Page 2
Staff Report: Investment Report for the quarter ended June 30, 2013.
July 31, 2013
withdrawal request with no penalty. The remainder of the City's portfolio is composed of
investments that may be liquidated at any time. However, these investments likely do not provide
the short liquidity (i.e., quick access to funds) of the pooled money funds, and
liquidation/withdrawal of these investments is at the risk of loss and/or penalty to the City.
Summaries of the City's investment portfolio are illustrated below.
INVESTMENT PORTFOLIO SUMMARY BY ISSUER/MANAGER
As of June 30, 2013
Total Market % of
Issuer/Manager Book Value Market Value' Yield to Mat. Portfolio
Local Agency Investment Fund
Chandler Asset Management
County of San Diego
Neighborhood National Bank
First Tennessee National Bank2
Totals for June 2013
1 includes accrued interest
2 calculated on 30/360 basis
County of San
Diego
$4,968,000
Chandler Asset
Management
$20,073,957
31,393,226
20,353,723
5,000,000
2,000,000
500,000
59,246,949
31,408,418
20,073,957
4,968,000
2,000,000
519,354
58,969,729
0.25%
0.49%
0.41%
0.65%
1.97%
52.99%
34.35%
8.44%
3.38%
0.84%
100.00%
Local Agency
Investment Fund
$31,408,418
Page 3
Staff Report: Investment Report for the quarter ended June 30, 2013.
July 31, 2013
INVESTMENT PERFORMANCE BY ISSUER/MANAGER
Issuer/Manager
For the Quarter Ended June 30, 2013
Total Market Value
3/31/13 6/30/13 Change Rate (Net)
Local Agency Investment Fund $ 21,393,226 2 $ 31,408,418 $ 10,015,192 3 0.24%
Chandler Asset Management 20,142,370 20,073,957 (68,413) -1.36%
County of San Diego 4,989,000 4,968,000 (21,000) -1.68%
Neighborhood National Bank (CDARS CD) 2,000,000 2 2,000,000 3,244 0.65%
First Tennessee National Bank 519,894 519,354 (540) 2.00%
Totals for June 2013 $ 49,044,490 $ 58,969,729 $ 9,928,483
I includes accrued interest
2 March 31, 2013 report total incorrect
3 $10M transferred to LAIF account 5/29/13
COMPLIANCE STATEMENT
All of the City's investments are in compliance with the City's investment policy (City Council
Policy No. 203) and the California Government Code (§ 53601 et seq).
FINANCIAL STATEMENT
Realized and unrealized gains/(losses), reflected below, for the period were ($71,517). These
changes include changes in security market values, gain/(loss) from the sale of assets, accrued
interest, and reinvested interest/earnings.
Issuer/Manager Gain/(Loss)
Local Agency Investment Fund $ 15,192
Chandler Asset Management (68,413)
County of San Diego (21,000)
Neighborhood National Bank (CDARS CD)1 3,244
First Tennessee National Bank' (540)
Totals for June 2013 $ (71,517)
interest paid to the City is not reinvested
Staff certifies that there are sufficient funds to meet the pool's expenditure requirements.
RECOMMENDATIONS
Accept and file the Investment Report for the quarter ended June 30, 2013.
Monthly Account Statement
City of National City
June 1, 2013 through June 30, 2013
Chandler Team
For questions about your account,
please call (800) 317-4747 or
Email operations@chandlerasset.com
Custodian
Bank of New York Mellon Trust
Company
Amy Kung
213-630-6374
Information contained herein is confidential. We urge you to compare this statement to the one you receive from your
qualified custodian. Prices are provided by IDC, an independent pricing source.
v d
n Diego, CA 9
Pho
7 474`I
F
City of National City
Account#10162
Portfolio Summary
As of 6/30/2013
PORTFOLIO CHARACTERISTICS
Average Duration
Average Coupon
Average Purchase YTM
Average Market YTM
Average S&P/Moody Rating
Average Final Maturity
Average Life
1.85
2.02 %
0.49
0.49
AA+/Aaa
1.90 yrs
1.89 yrs
SECTOR ALLOCATION
Agency
(77.5 %)
Money
Market
Fund
FI
(0.2 %)
US
Treasury
(22.3 %)
ACCOUNT SUMMARY
Market Value
Accrued Interest
Total Market Value
Income Earned
Cont/WD
Par
Book Value
Cost Value
Beg. Values
as of 5/31/13
20,019,039
97,217
20,116,256
33,453
19,548,125
20,324,571
20,324,571
End Values
as of 6/30/13
19,985,928
88,029
20,073,957
33,314
-1,007
19,590,277
20,353,723
20,353,723
MATURITY DISTRIBUTION
40%
30%
20%
10%
0-.25 .25-.5 .5-1 1-2 2-3 3.4 4-5 5+
Maturity (Yrs)
TOP ISSUERS
Issuer % Portfolio
Government of United States 22.3 %
Federal National Mortgage Assoc 21.8 %
Federal Home Loan Mortgage Corp 20.5 %
Federal Home Loan Bank 19.2 %
Federal Farm Credit Bank 15.9 %
Federated Govt Obligation Money 0.2 %
100.0 %
CREDIT QUALITY (S&P)
AA
(99.8 %)
AAA
(0.2 %)
PERFORMANCE REVIEW
Total Rate of Return
As of 6/30/2013
City of National City
Current Latest Year
Month 3 Months To Date 1 Yr 3 Yrs
-0.21 % -0.32 % -0.21 % 0.23 % N/A
Annualized
S Yrs 10 Yrs
N/A N/A
2/29/2012
0.32 %
Since
2/29/2012
0.43 %
1-3 Yr TreasuryAgency
-0.08 % -0.12 % 0.00 % 0.33 %
N/A
N/A N/A 0.36 %
0.48 %
Chandler Asset Mai lay.. tent - CONFIDENTIAL
rage
Execution Time: 7/2/2013 12:36:01 PM
of Na#1 naltional City
Ho Is Report
As or 6/30/13
Purchase Date Cost Value Mkt Price Market Value % of Port. Moody Maturity
CUSIP Security Description Par Value/Units Book Yield Book Value Mkt YTM Accrued Int. Gain/Loss S&P Duration
AGENCY
31398AX31 FNMA Note
1.25% Due 8/20/2013
490,000.00 03/07/2012
0.28 %
496,872.25 100.15
496,872.25 0.19 %
490,719.81
2.46 %
Aaa 0.14
2,228.82 (6,152.44) AA+ 0.14
3133X1BV8 FHLB Note
4.5% Due 9/16/2013
415,000.00 03/07/2012 441,480.32 100.91 418,766.96 2.11 % Aaa 0.21
0.30 %
441,480.32
0.20 % 5,446.88
(22,713.36) AA+ 0.21
3133XSAE8 FHLB Note
3.625% Due 10/18/2013
560,000.00 02/21/2012 590,312.81 101.03 565,762.40 2.84 % Aaa 0.30
0.34 % 590,312.81 0.19 % 4,116.39 (24,550.41) AA+ 0.30
3134A4UK8 FHLMC Note
4.875% Due 11/15/2013
460,000.00 02/24/2012 495,671.16 101.78 468,206.86 2.35 % Aaa 0.38
0.34 % 495,671.16 0.11 % 2,865.42 (27,464.30) AA+ 0.37
31331RP90 FFCB Note
5.45% Due 12/11/2013
545,000.00 02/28/2012 593,701.20 102.36 557,841.84 2.79 % Aaa 0.45
0.42 %
593,701.20
0.18 % 1,650.14
(35,859.36) AA+ 0.45
31398AVZ2 FNMA Note
2.75% Due 3/13/2014
3137EACB3 FHLMC Note
2.5% Due 4/23/2014
470,000.00 02/24/2012 492,683.61 101.78 478,345.32 2.40 % Aaa 0.70
0.38 % 492,683.61 0.22 % 3,877.50 (14,338.29) AA+ 0.70
475,000.00 02/21/2012 496,260.53 101.87 483,894.85 2.42 % Aaa 0.81
0.42 % 496,260.53 0.20 % 2,243.06 (12,365.68) AA+ 0.81
3133X7FK5 FHLB Note
5.25% Due 6/18/2014
530,000.00 02/21/2012 589,291.10 104.87 555,831.14 2.77 % Aaa 0.97
0.40 % 589,291.10 0.20 % 1,004.79 (33,459.96) AA+ 0.95
3137EACD9 FHLMC Note 470,000.00 02/24/2012 498,859.88 102.90 483,636.58 2.44 % Aaa 1.08
3% Due 7/28/2014 0.45 % 498,859.88 0.30 % 5,992.50 (15,223.30) AA+ 1.05
31398AZV7 FNMA Note 470,000.00 02/21/2012 496,614.22 103.25 485,254.79 2.42 % Aaa 1.39
2.625% Due 11/20/2014 0.54 % 496,614.22 0.28 % 1,405.10 (11,359.43) AA+ 1.37
313381H24 FHLB Note 625,000.00 06/21/2013 624,343.75 99.94 624,621.25 3.12 % Aaa 1.55
0.25% Due 1/16/2015 0.32 % 624,343.75 0.29 % 716.15 277.50 AA+ 1.54
3137EACHO FHLMC Note 560,000.00
2.875% Due 2/9/2015
02/24/2012 598,380.16 104.05 582,654.80 2.93 % Aaa 1.61
0.53 % 598,380.16 0.35 % 6,350.56 (15,725.36) AA+ 1.56
31331KLE8 FFCB Note
1.6% Due 5/18/2015
540,000.00 05/16/2013 554,277.60 102.13 551,507.94 2.75 % Aaa 1.88
0.28 % 554,277.60 0.46 % 1,032.00 (2,769.66) AA+ 1.86
31398AU34 FNMA Note
2.375% Due 7/28/2015
470,000.00 02/24/2012 497,406.17 103.95 488,574.40 2.46 % Aaa 2.08
0.65 % 497,406.17 0.46 % 4,744.06 (8,831.77) AA+ 2.02
3133EADW5 FFCB Note 425,000.00
0.55% Due 8/17/2015
04/19/2012 424,260.50 99.80 424,162.32 2.12 % Aaa 2.13
0.60 % 424,260.50 0.64 % 870.07 (98.18) AA+ 2.11
3137EACM9 FHLMC Note 535,000.00
1.75% Due 9/10/2015
02/24/2012 555,169.50 102.74 549,646.70 2.75 % Aaa 2.20
0.67 % 555,169.50 0.49 % 2,886.77 (5,522.80) AA+ 2.15
313370JB5 FHLB Note
1.75% Due 9/11/2015
565,000.00 01/11/2013 585,407.80 102.76 580,572.53 2.91 % Aaa 2.20
0.38 % 585,407.80 0.49 % 3,021.18 (4,835.27) AA+ 2.15
31398A4M1 FNMA Note
1.625% Due 10/26/2015
525,000.00 05/06/2013 541,779.00 102.48 538,015.28 2.69 % Aaa 2.32
0.32 % 541,779.00 0.55 % 1,540.36 (3,763.72) AA+ 2.28
31331J2S1 FFCB Note
1.5% Due 11/16/2015
375,000.00 02/27/2012 386,490.75 102.18 383,187.00 1.91 % Aaa 2.38
0.66 % 386,490.75 0.57 % 703.13 (3,303.75) AA+ 2.33
313371NW2 FHLB Note 600,000.00
1.375% Due 12/11/2015
11/16/2012 617,928.00 101.98 611,850.60 3.05 % Aaa 2.45
0.39 % 617,928.00 0.56 % 458.33 (6,077.40) AA+ 2.41
Chandler Asset Management - CONFIDENTIAL
Page 3 Execution Time: 7/2/2013 12:36:01 PM
City of National City
Account#10162
Holdings Report
As of 6/30/13
CUSIP
Security Description
Purchase Date Cost Value Mkt Price Market Value % of Port. Moody Maturity
Par Value/Units Book Yield Book Value Mkt YTM Accrued Int. Gain/Loss S&P Duration
AGENCY
3135G0SB0 FNMA Note
0.375% Due 12/21/2015
490,000.00
11/26/2012
0.45 %
488,858.30
99.44
488,858.30 0.60 %
487,262.86
51.04 (1,595.44) AA+ 2.46
2.43 %
Aaa 2.48
3133ECFV1 FFCB Note
0.43% Due 1/29/2016
515,000.00 02/25/2013 514,902.15 99.39 511,856.96 2.55 % Aaa 2.58
0.44 % 514,902.15 0.67 % 793.53 (3,045.19) AA+ 2.56
3133EAJU3 FFCB Note
1.05% Due 3/28/2016
340,000.00 03/11/2013 346,079.20 101.04 343,552.32 1.72 % Aaa 2.75
0.46 % 346,079.20 0.67 % 922.25 (2,526.88) AA+ 2.70
3135G0BA0 FNMA Note
2.375% Due 4/11/2016
375,000.00 02/24/2012 397,993.13 104.55 392,076.75 1.96 % Aaa 2.78
0.86 % 397,993.13 0.72 % 1,979.17 (5,916.38) AA+ 2.69
3137EACT4 FHLMC Note 375,000.00 03/20/2012 395,804.63 105.01 393,781.88 1.97 % Aaa 2.91
885.42
2.5% Due 5/27/2016
1.14 %
395,804.63 0.76 %
(2,022.75) AA+ 2.81
3137EACW7 FHLMC Note 575,000.00
2% Due 8/25/2016
01/09/2013 604,762.00 103.60 595,694.25 2.99 % Aaa 3.16
0.56 % 604,762.00 0.84 % 4,025.00 (9,067.75) AA+ 3.04
31331V3Z7 FFCB Note
5.2% Due 9/15/2016
365,000.00 06/22/2012 430,134.25 113.24 413,326.37 2.09 % Aaa 3.21
0.88 % 430,134.25 1.00 % 5,588.56 (16,807.88) AA+ 2.96
313371PV2 FHLB Note
1.625% Due 12/9/2016
480,000.00 02/29/2012 494,668.80 102.37 491,364.96 2.45 % Aaa 3.45
0.97 % 494,668.80 0.92 % 476.67 (3,303.84) AA+ 3.34
3135G0GY3 FNMA Note 400,000.00 09/17/2012 409,328.00 100.61 402,448.00 2.02 % Aaa 3.59
1.25% Due 1/30/2017 0.71 % 409,328.00 1.08 % 2,097.22 (6,880.00) AA+ 3.48
3135G0UY7 FNMA Callable Note 1X 02/27/15 600,000.00
1% Due 2/27/2017
04/26/2013 605,766.00 99.53 597,192.60 2.99 % Aaa 3.67
0.74 % 605,766.00 1.13 % 2,066.67 (8,573.40) AA+ 3.57
3137EADCO FHLMC Note 535,000.00 08/20/2012 538,386.55 99.51 532,378.50 2.66 % Aaa 3.69
1% Due 3/8/2017 0.86 % 538,386.55 1.14 % 1,679.31 (6,008.05) AA+ 3.60
Total Agency
15,155,000.00 0.53 %
15,803,873.32
15,803,873.32
15,483,988.82 77.50 % Aaa 1.96
0.52 % 73,718.05 (319,884.50) AA+ 1.92
MONEY MARKET FUND FI
60934N807 Federated Govt Oblig Fund Inst.
30,277.00 Various 30,277.00 1.00 30,277.00 0.15 % Aaa 0.00
0.01 % 30,277.00 0.01 % 0.00 0.00 AAA 0.00
Total Money Market Fund FI
30,277.00 0.01 %
30,277.00 30,277.00 0.15 % Aaa 0.00
30,277.00 0.01 % 0.00 0.00 AAA 0.00
US TREASURY
912828PB0 US Treasury Note
0.5% Due 10/15/2013
500,000.00 01/30/2013 501,271.21 100.11 500.566.50 2.50 % Aaa 0.29
0.14 % 501,271.21 0.11 % 525.96 (704.71) AA+ 0.29
912828PU8 US Treasury Note
0.5% Due 11/15/2013
490,000.00 02/21/2012 491,705.16 100.14 490,708.05 2.45 % Aaa 0.38
0.30 % 491,705.16 0.11 % 312.91 (997.11) AA+ 0.37
912828PZ7 US Treasury Note
1.25% Due 3/15/2014
500,000.00 02/21/2012 509,493.86 100.77 503,867.00 2.52 % Aaa 0.71
0.32 % 509,493.86 0.16 % 1,834.24 (5,626.86) AA+ 0.71
912828LK4 US Treasury Note
2.375% Due 8/31/2014
470,000.00 02/24/2012 493,244.54 102.51 481,786.66 2.42 % Aaa 1.17
0.39 % 493,244.54 0.22 % 3,730.94 (11,457.88) AA+ 1.15
Chandler Asset Man ement - CONFIDENTIAL
e 4 Execution Time: 7/277013 12:36:01 PM
Account of National#10162 City
Hol es Report
As of 6/30/13
Purchase Date Cost Value Mkt Price Market Value % of Port. Moody Maturity
CUSIP Security Description Par Value/Units Book Yield Book Value Mkt YTM Accrued Int. Gain/Loss S&P Duration
US TREASURY
912828MZ0 US Treasury Note
2.5% Due 4/30/2015
420,000.00 02/24/2012
0.49 %
446,612.34 103.94
446,612.34 0.34 %
436,553.88
2.18 %
Aaa
1,769.02 (10,058.46) AA+
1.83
1.80
912828TK6 US Treasury Note
0.25% Due 8/15/2015
520,000.00 04/29/2013 520,022.05 99.66 518,212.24 2.58 % Aaa 2.13
0.25 %
520,022.05 0.41 %
488.40 (1,809.81) AA+ 2.12
912828PE4 US Treasury Note
1.25% Due 10/31/2015
435,000.00 02/24/2012 445,434.66 101.84 443,020.53 2.21 % Aaa 2.34
0.59 % 445,434.66 0.45 % 916.10 (2,414.13) AA+ 2.30
912828QA1 US Treasury Note
2.25% Due 3/31/2016
500,000.00 12/14/2012 530,431.36 104.51 522,539.00 2.62 % Aaa 2.75
0.38
530,431.36
0.60 % 2,827.87
(7,892.36) AA+ 2.66
912828RF9 US Treasury Note
1% Due 8/31/2016
570,000.00 10/12/2012 581,357.38 100.77
0.48 %
581,357.38 0.75 %
574,408.38 2.87 % Aaa
1,905.16 (6,949.00)
AA+
3.17
3.11
Total US Treasury
4,405,000.00
0.37 %
4,519,572.56
4,519,572.56
4,471,662.24 22.35 % Aaa
1.67
0.36 % 14,310.60 (47,910.32) AA+ 1.64
TOTAL PORTFOLIO
19,590,277.00
20,353,722.88
0.49 % 20,353,722.88
0.49 %
19,985,928.06 100.00 %
88,028.65 (367,794.82)
Aaa
AA+
1.90
1.85
TOTAL MARKET VALUE PLUS ACCRUED
20,073,956.71
Chandler Asset Management - CONFIDENTIAL
Page 5 Execution Time: 7/2/2013 12:36:01 PM
County of San Diego
Treasurer Investment Report
MONTH ENDING
June 30, 2013
COUNTY OF SAN DIEGO TREASURER - TAX COLLECTOR
Certificates of Deposit
Commercial Paper
Fannie Mae
Fannie Mae Discount Notes
Federal Farm Credit Bank Discount Notes
Federal Farm Credit Bank Notes
Federal Home Loan Bank Discount Notes
Federal Home Loan Bank Notes
Federal Home Loan Mortgage Corp Discount Notes
Federal Home Loan Mortgage Corp Notes
Money Market Funds
Negotiable CD
Repurchase Agreements
U.S. Treasury Notes
Totals for June 2013
Totals for May 2013
Change From Prior Month
Portfolio Effective Duration
Summary Portfolio Statistics
County of San Diego Pooled Money Fund
as of June 30, 2013
Percent of Current Par/ Current Market
Portfolio WAM WAC YTM Share Book Price
0.97 137 137 0.30 64,613,000 64,613,000 1.000
15.37 31 31 0.14 1,025,000,000 1,024,880,546 1.000
18.02 919 675 0.69 1,196,497,000 1,202,248,671 0.997
2.40 67 67 0.11 160,000,000 159,959,119 0.999
2.70 171 171 0.19 180,000,000 179,854,542 0.998
4.24 125 125 0.23 282,689,000 282,676,066 1.000
1.84 226 226 0.14 122,700,000 122,586,606 0.999
21.37 306 221 0.47 1,421,065,000 1,425,595,886 1.004
0.75 348 348 0.16 50,000,000 49,922,889 0.998
11.73 800 352 0.91 777,879,000 782,227,568 1.007
2.43 1 1 0.09 162, 325,000 162,325,000 1.001
14.17 33 33 0.15 945,000,000 945,002,470 1.000
0.33 1 0.02 22,159,009 22,159,009 1.000
3.68 1,068 1068 1.18 242,000,000 245,564,862 1.016
100.00 393 276 0.44 6,651,927,009 6,669,616,233 1.002
100.00 357 250 0.44 6,715,202,614 6,733,356,873 1.003
36 26 0.00 (63,275,605) (63,740,640) (0.001)
0.870 years
June
Retum Annualized
Book Value 0.034% 0.411%
Market Value 0.034% 0.412%
Fiscal Year
To Date
Return
0.034%
0.034%
Annualized
0.411%
0.412%
Calendar Year
To Date
Return
0.249%
0.249%
Annualized
0.429%
0.428%
Market
Value
64,613,000
1,024,733,330
1,193,429,886
159,905,060
179,662,190
282,708,750
122,583,423
1,427,004,997
49,920,650
783,306,171
162,430,105
945,002,450
22,159,009
245,816,660
6,663,275,681
Current Yield to Unrealized
Accr Int Worst Gain/Loss
2,986 0.30 0
0 0.14 (147,216)
3,414,012 0.68 (8,818,785)
0 0.11 (54,059)
0 0.19 (192,352)
159,701 0.23 32,684
0 0.14 (3,183)
2,491,494 0.47 1,409,111
0 0.16 (2,239)
3,774,623 0.56 1,078,603
11,891 0.09 105,105
98,999 0.15 (20)
37 0.02 0
830,805 1.18 251,798
10,784,548 0.40 (6,340,552)
6,738,407,582 11,141,892 0.39 5,050,710
(75,131,901) (357,344) 0.01 (11,391,262)
Note
Yield to maturity (YTM) is the estimated rate of return on a bond given its purchase price, assuming all coupon payments are made on a timely basis and reinvested at this same rate of return to the maturity date.
Yield to call (YTC) is the estimated rate of return on a bond given its purchase price, assuming all coupon payments are made on a timely basis and reinvested at this same rate of return to the call date.
Yield to worst (YTW) is the lesser of yield to maturity or yield to call, reflecting the optionality of the bond issuer.
Yields for the portfolio are aggregated based on the book value of each security.
COUNTY OF SAN DIEGO TREASURER - TAX COLLECTOR
3
Participant Cash Balances
PARTICIPANT
FMV
FMV
San Diego Pooled Money Fund
as of June 30, 2013
($000)
FMV %of
04/30/13 05/31/13 06/30/13 Total
COUNTY
COUNTY SPECIAL TRUST FUNDS
NON -COUNTY INVESTMENT FUNDS
SCHOOLS - (K THRU 12)
COMMUNITY COLLEGES
San Diego
Gross mont
Mira Costa
Palomar
Southwestern
$1,385,991 $ 889,082
1,778,596 1,694,218
333,545 328,818
2,742,133 2,686,316
184,537
29,016
36,095
163,375
160,179
157,701
27,418
38,460
154,923
158,846
$ 618,878
1,775,882
268,393
2,864,716
156,549
36,488
27,982
164,320
165,597
9.29%
26.65%
4.03%
42.99%
2.35%
0.55%
0.42%
2.47%
2.48%
Total Community Colleges
SDCERA
SANCAL
MTDB
SANDAG
CITIES
Chula Vista
Del Mar
Encinitas
National City
INDEPENDENT AGENCIES
Alpine FPD
Bonita Sunnyside FPD
Borrego Springs FPD
Deer Springs FPD
Fallbrook Public Utl
Public Agency Self Insurance System
Julian-Cuyamaca FPD
Lake Cuyamaca Rec & Park
Lakeside Fire
Leucadia Water District
Lower Sweetwater FPD
PARTICIPANT
FMV
FMV
FMV
% of
04/30/13 05/31/13 06/30/13 Total
Metropolitan Transit System
Majestic Pines CSD
Mission Resource Conservation District
North County Cemetery District
North County Cemetry Perpetual
North County Cemetery
North County Dispatch
North County Fire
Otay Water District Investment
Palomar Resource Conservation District
Pine Valley FPD
573,203 537,348 550,935 8.27% Pomerado Cem Perpetual
Pomerado Cemetery District
3,911 3,991 4,167 Ramona Cemetery District
59,082 55,341 53,147 Ramona Cemetery Perpetual
700 700 696 Rancho Santa Fe FPD
105,962 105,973 105,400 San Diego Housing Commission
San Diego Rural Fire
San Dieguito Riker
39,026 39,031 38,820 San Marcos FPD
3,011 3,011 2,995 San Miguel FPD
2 2 2 San Ysidro Sanitation
4,995 4,995 4,968 Santa Fe Irrigation District
1,397
4,404
1,357
6,384
14
445
100
414
8,621
11,287
392
1,617
4,730
1,434
7,302
14
446
174
372
9,052
11,288
383
1,439
4,441
1,465
6,655
14
443
202
358
8,873
11,227
414
SDC Regional Airport Authority
So County OPS Center
Spring Valley/Casa de Oro
Upper San Luis Rey Reservoir
Vallecitos Water District
Valley Center FPD
Valley Cntr Cemetery
Valley Ctr Cem Perpetual
Valley Ctr Water District
Vista FPD
5,465
9
410
1,330
1,434
1,279
2,467
3,236
20,090
0
372
5
1,490
617
340
11,602
2,378
244
-184
1
8,386
13
3,994
267,188
0
2,543
11
5,047
4,130
78
223
11,066
2,092
5,180
9
413
1,367
1,442
1,297
2,449
3,625
20,092
0
395
5
1,502
621
340
12,302
2,378
0
-123
1
7,918
13
3,994
262,236
0
2,534
12
5,048
4,264
81
223
11,062
2,092
4,644
9
414
1,397
1,445
1,531
2,161
2,217
19,983
0
415
7
1,574
616
338
11,723
2,365
0
-189
1
5,527
13
3,973
254,778
0
0
13
5,021
3,980
75
223
12,414
2,081
Total Independent Agencies
608,858 602,627 584,472 8.77%
Pooled Money Fund Total
$ 7, 422, 326 $ 6, 738, 408 $ 6, 663, 276 100.00%
COUNTY OF SAN DIEGO TREASURER - TAX COLLECTOR
City of National City
City of National City
Portfolio Management
Portfolio Summary
June 30, 2013
Par Market Book % of Days to YTM/C YTM/C
Investments Value Value Value Portfolio Term Maturity 360 Equiv. 365 Equiv.
LAIF 31,393,226.16 31,401,803.01 31,393,226.16 92.62 1 1 0.241 0.244
Federal Agency Securities 500,000.00 515,660.00 500,000.00 1.48 1,826 778 1.973 2.000
CDARS 2,000,000.00 2,000,000.00 2,000,000.00 5.90 364 249 0.641 0.650
Investments
33,893,226.16 33,917,463.01
33,893,226.16 100.00% 49 27 0.290 0.294
Total Earnings June 30 Month Ending
Current Year
Average Daily Balance
Effective Rate of Return
Fiscal Year To Date Fiscal Year Ending
Reporting period 06/01/2013-06130/2013
Run Date: 08/01/2013 - 11.24
8,222.61
33,893,226.16
0.30%
125,785.45 125,785.45
Portfolio CNC
CC
PM (PRF_PM1) SymRept 6.41.202b
Report Ver. 5.00
CUSIP
LAIF
98-37-576
City of National City
Portfolio Management
Portfolio Details - Investments
June 30, 2013
Page 2
Average Purchase
Stated YTM/C Days to Maturity
Investment # Issuer Balance Date Par Value Market Value Book Value Rate S&P 365 Maturity Date
11058 Local Agency lnvestmerit Fund
Subtotal and Average 31,393,226.16
31, 393,226.16
31,393,226.16
31,401,803.01 31,393,226.16 0.244
31,401,803.01 31,393,226.16
0.244 1
0.244 1
Federal Agency Securities
3136FPAB3 11362 Federal Natl. Mortgage Assoc. 08/18/2010 500,000.00 515,660.00 500,000.00 2.000 AAA 2.000 778 08/18/2015
Subtotal and Average 500,000.00 500,000.00 515,660.00 500,000.00 2.000 778
CDARS
SYS11387 11387 Neighborhood National Bank 03/08/2013 2,000,000.00 2,000,000.00 2,000,000.00 0.650 0.650 249 03/07/2014
Subtotal and Average 2,000,000.00 2,000,000.00 2,000,000.00 2,000,000.00 0.650 249
Total and Average 33,893,226.16
Run Date, 08/01 /2013 - 11:24
33,893,226.16
33, 917,463.01 33,893, 226.16
0.294 27
Portfolio CNC
CC
PM (PRF_PM2) SymRept 6.41.202b
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE August 20th, 2013
AGENDA ITEM NO. 11_1
ITEM TITLE:
Warrant Register #3 for the period of 07/10/13 through 07/16/13 in the amount of $895,639.59.
(Finance)
PREPARED BY:
K. Apalategui
PHONE: 1619-336-4331
DEPARTMENT: Finan
APPROVED BY:
EXPLANATION:
Per Government Section Code 37208, attached are the warrants issued for the period of 07/10/13
through 07/16/13
The Finance Department has implemented a policy explanation of all warrants above $50,000.00
Vendor
Koch Armstrong Engr
Internal Revenue Svcs
Public Emp Retirement
Check
308268
308269
308337
Amount
191, 947.65
100,000.00
304,456.20
Explanation
City Wide Pedestrian
Crossing Project
Partial Notice of Levy
MJ Koch Inc
Retirement Insurance
06/25/2013 — 07/08/2013
FINANCIAL STATEMENT:
ACCOUNT NO. I
N/A
APPROVED:
APPROVED:
ENVIRONMENTAL REVIEW:
This is not a project and, therefore, not subject to environmental review
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
Finance
MIS
STAFF RECOMMENDATION:
Ratification of warrants in the amount of $895,639.59
BOARD / COMMISSION RECOMMENDATION:
N/AN
ATTACHMENTS:
Narrant Register #3
PAYEE
KOCH ARMSTRONG GENERAL ENGR
INTERNAL REVENUE SERVICES
DUNBAR ARMORED INC
SWEETWATER AUTHORITY
AETNA RESOURCES FOR LIVING
ALL FRESH PRODUCTS
AYLES, T
BOOT WORLD
BUCKNAM INFRASTRUCTURE GRP INC
CALIFORNIA HIGHWAY ADOPTION CO
CALIFORNIA POLICE CHIEFS
CANINE TACTICAL OPERATIONS
CANINE TACTICAL OPERATIONS
CASA DE MEXICO
CATACUTAN, B
CHILDREN'S HOSPITAL
SEL, J
DERO, E
)UNTY OF SAN DIEGO
CULLIGAN
DALEY & HEFT LLP
DALEY & HEFT LLP
DANIELS TIRE SERVICE
DECKSIDE POOL SERVICE
DELTA CARE USA
DELTA DENTAL
DREW FORD
DUNBAR ARMORED INC
ERGOGENESIS LLC
EXPERIAN
FEDERLE, M
FERNANDEZ, K
FIRE SERVICE SPECIF. & SUPPLY
FON-JON KENNELS
GEOHYDROLOGIC CONSULTANT INC
GEORGE WATERS NUTRITION CENTER
GERMAN, M
GOLDEN STATE GARAGE DOORS INC
GROSSMAN PSYCHOLOGICAL
HAPPY SOFTWARE INC
HARMS, J
COREN & CONE
.DEPENDENT FORENSIC SERVICES
IRON MOUNTAIN
IVAT
JOHN DEERE LANDSCAPES
JOHNSON, S
JONES, D
WARRANT REGISTER # 3
7/16/2013
DESCRIPTION
CITYWIDE PEDESTRIAN CROSSING
PARTIAL LEVY/ MJ KOCH INC/33-0791759
ARMORED SERVICES / FINANCE
WATER UTILITIES / S A
EMP ASSIST PROGRAM - JULY 2013
FOOD / NUTRITION CENTER
WC CLAIM COSTS
MOP 64096 WEARING APPAREL
STREET SIGN INVENTORY, JUNE HOURS
PARADISE CREEK LITTER REMOVAL
MEMBERSHIP FOR CHIEF RODRIGUEZ
TUITION: SWAT K9 INTERACTING
TUITION: SWAT K9 INTERACTING
FIRE ENGINEER RECRUITMENT LUNCH
REFUND - POOL PUNCH PASS
SAFE ROUTES TO SCHOOL, CYCLE 3
REIMB - TINY TOTS GRADUATION
ADV SUBSISTENCE - SHERMAN BLOCK LEADERSHIP
DISTRICT RENEWAL FEE
WATER SOFTENER / NUTRITION
LIABILITY CLAIM COSTS
LIABILITY CLAIM COSTS
235/55R17 98W S2 EAG RSA TIRES
HYDROCHLORIC ACID, DRY CHLORINE
PMI DENTAL INS - JULY 2013
DENTAL INS - JULY 2013
MOP 49078 AUTO PARTS
ARMORED SERVICES / FINANCE
ERGOGENESIS ERGONOMIC CHAIR
CREDIT CHECKS / POLICE DEPARTMENT
REIMB - RECREATION SUPPLIES
REIMB - EDUCATIONAL
HYD SPREADER/HYD CUTTER/TELESCOPIC RAM
KENNEL FEES/POLICE
DUCK POND WELL TAG REPLACEMENT
PROMOTIONAL ACTIVITIES
REFUND - POOL PUNCH PASS
LABOR INSTALL LIFTMASTER ANTENNA
PSYCHOLOGICAL EXAMS / POLICE
HAPPY SOFTWARE RENEWAL FY 2014
REFUND - POOL PUNCH PASS
CONTRACT SVCS/PROPERTY TAX APR-JUN
SART EXAMS / POLICE
RECORDS MANAGEMENT / JUL 2013
TUITION: 18TH INTERNATIONAL CONFERENCE / PD
MOP 69277 PLANTING MATERIAL
REIMB - TINY TOTS GRADUATION
REIMB - LUNCH ITEMS FOR TECATE
1/3
CHK NO DATE AMOUNT
308268 7/11/13 191,947.65
308269 7/11/13 100,000.00
308270 7/16/13 149.85
308271 7/16/13 950.48
308272 7/16/13 733.90
308273 7/16/13 48.85
308274 7/16/13 3,512.40
308275 7/16/13 233.25
308276 7/16/13 2,819.00
308277 7/16/13 864.00
308278 7/16/13 1,600.00
308279 7/16/13 495.00
308280 7/16/13 495.00
308281 7/16/13 101.51
308282 7/16/13 30.00
308283 7/16/13 36,370.00
308284 7/16/13 533.57
308285 7/16/13 468.00
308286 7/16/13 358.00
308287 7/16/13 204.50
308288 7/16/13 4,942.79
308289 7/16/13 2,477.50
308290 7/16/13 2,367.59
308291 7/16/13 1,047.20
308292 7/16/13 2,846.48
308293 7/16/13 13,576.92
308294 7/16/13 274.00
308295 7/16/13 14.09
308296 7/16/13 2,757.15
308297 7/16/13 44.06
308298 7/16/13 146.05
308299 7/16/13 1,200.00
308300 7/16/13 24,211.53
308301 7/16/13 50.00
308302 7/16/13 450.00
308303 7/16/13 937.50
308304 7/16/13 21.00
308305 7/16/13 175.00
308306 7/16/13 500.00
308307 7/16/13 6,411.00
308308 7/16/13 9.00
308309 7/16/13 2,400.00
308310 7/16/13 2,471.00
308311 7/16/13 148.00
308312 7/16/13 470.00
308313 7/16/13 464.94
308314 7/16/13 37.02
308315 7/16/13 175.43
PAYEE
KAISER FOUNDATION HEALTH PLANS
LANGUAGE LINE SERVICES
LEADS ONLINE LLC
LIEBERT CASSIDY WHITMORE
LOPEZ, T
MAN K-9 INC.
MASON'S SAW &
MCDOUGAL LOVE ECKIS
MELLADO DESIGNS
MONEDA, P
MORALES, L
MUNICIPAL MAINTENANCE EQUIP
NBS
NORTH STATE ENVIRONMENTAL
PACIFIC TELEMANAGEMENT SERVICE
PADRE JANITORIAL SUPPLIES INC
PERRY FORD
POT, K
POWERSTRIDE BATTERY CO INC
PRO BUILD
PRUDENTIAL OVERALL SUPPLY
PUBLIC EMP RETIREMENT SYSTEM
R J SAFETY SUPPLY
RED SEA ENTERPRISES
RED WING SHOES
ROAD ONE TOWING
RON BAKER CHEVROLET
RPM WELDING INC
S & S WELDING
S D COUNTY SHERIFFS DEPT
SAN DIEGO PET & LAB SUPPLY
SCS ENGINEERS
SDG&E
SEAPORT MEAT COMPANY
SELTZER CAPLAN MCMAHON VITEK
SMART SOURCE OF CA LLC
SOUTH BAY WINDOW & GLASS CO
SOUTH COUNTY ECONOMIC
SOUTHWEST SIGNAL SERVICE
STAPLES ADVANTAGE
SUPERIOR READY MIX
THOMSON WEST
TOM MOYNAHAN
U S BANK
UNION TRIBUNE PUB CO
URBAN FUTURES
VALLEY INDUSTRIAL SPECIALTIES
VERIZON WIRELESS
WARRANT REGISTER # 3
7/16/2013
DESCRIPTION
RETIREES INS - JULY 2013
LANGUAGE INTERPRETATION SERVICES
LEADS ONLINE TOTAL TRACK SERVICE
AFFORDABLE CARE ACT ANALYSIS
TRANSLATION SERVICES FOR FY 2014.
TRAINING FOR POLICE K-9 / JUNE 2013
MOP 45729 MOBILE TOOLS
TRAINING
MISS NATIONAL CITY PAGEANT SASHES
REFUND - POOL PUNCH PASS
REIMB - CURTAINS FOR TEEN CENTER
79444-IN / EQUIPMENT SUPPLIES / PW
COST ALLOCATION PLAN SVCS 15-31-13
HAZARDOUS WASTE DISPOSAL
PACIFIC TELEMANAGEMENT SERVICE
HDM SUPPLIES / NUTRITION
MOP 45703 R&M AUTO EQUIPMENT
REIMB - SUMMER FIELD TRIP TEEN CENTER
MOP 67839 AUTO PARTS
MOP 45707 BUILDING MATERIAL
MOP 45742 LAUNDRY SERVICE
SERVICE PERIOD 06/25/13 - 07/08/13
SAFETY SUPPLIES / ENG
POLICE CAR STRESS RELIEVER
WATERPROOF SAFETY FOOTWEAR / PW
MOP 75948 TOWING SERVICE - PD
MOP 45751 R&M AUTO EQUIPMENT
MOP 45749 R&M BUILDINGS
40 3/4 X 25 1/2 X 2 1/2 GRATE
SHERIFF'S RANGE USE / POLICE
MOP 45753 K9 FOOD - PD
SERVICES, 1200 NCBLVD, MAY, 2013
FACILITIES GAS & ELECTRIC
FOOD / NUTRITION CENTER
PROFESSIONAL SVCS THROUGH 06/30/13
PROPOSED BUDGET BOOK PRINTING
WINDOW/DOOR/MIRROR
MEMBERSHIPS DUES
TRAFFIC SIGNAL & STREET LIGHTING
MOP 45704 OFFICE SUPPLIES - COMM SVCS
TACK OIL, 3/8 SHEET & COLDMIX ASPHALTS
ONLINE LEGAL RESEARCH / JUN 2013
MOP 45734. TOWING SVCS / POLICE
CREDIT CARD EXP - COMM SVC
LEGAL NOTICES ADVERTISING / JUN 2013
FINANCIAL ADVISORY SERVICES
MOP 46453 PLUMBING MATERIAL
VERIZON WIRELESS PHONE SERVICE
2/3
CHK NO DATE AMOUNT
308316 7/16/13 22,373.09
308317 7/16/13 33.29
308318 7/16/13 10,602.00
308319 7/16/13 98.00
308320 7/16/13 210.00
308321 7/16/13 800.00
308322 7/16/13 908.17
308323 7/16/13 800.00
308324 7/16/13 97.20
308325 7/16/13 38.00
308326 7/16/13 20.00
308327 7/16/13 184.95
308328 7/16/13 1,315.00
308329 7/16/13 1,234.95
308330 7/16/13 228.00
308331 7/16/13 200.27
308332 7/16/13 3F"
308333 7/16/13
308334 7/16/13
308335 7/16/13 3,742.14
308336 7/16/13 413.80
308337 7/16/13 304,456.20
308338 7/16/13 354.52
308339 7/16/13 496.65
308340 7/16/13 125.00
308341 7/16/13 75.00
308342 7/16/13 176.97
308343 7/16/13 394.60
308344 7/16/13 239.80
308345 7/16/13 200.00
308346 7/16/13 243.59
308347 7/16/13 616.00
308348 7/16/13 11,037.92
308349 7/16/13 1,273.31
308350 7/16/13 946.68
308351 7/16/13 1,427.69
308352 7/16/13 1,328.31
308353 7/16/13 5,000.00
308354 7/16/13 19,373.46
308355 7/16/13 784.32
308356 7/16/13 421.20
308357 7/16/13 58'
308358 7/16/13 7
308359 7/16/13 51
308360 7/16/13 938.40
308361 7/16/13 2,362.50
308362 7/16/13 1,317.05
308363 7/16/13 5,217.30
PAYEE
W W GRAINGER
WEBB, J
WILLY'S ELECTRONIC SUPPLY
ZOLL MEDICAL CORP
ZOLL MEDICAL CORP
WIRED PAYMENTS
TRISTAR RISK MANAGEMENT
TRISTAR RISK MANAGEMENT
SECTION 8 HAPS PAYMENTS
WARRANT REGISTER # 3
7/16/2013
DESCRIPTION
MOP 65179 ELECTRICAL MATERIAL
REIMB - SOUTHWEST LAUNDERING CONFERENCE
MOP 45763 MATERIALS & SUPPLIES
AUTOPULSE LILON BATTERY
SALES TAX ON INVOICE
PREFUND FOR PAUL BOYD JR
JUNE 2013 W/C REPLENISHMENT
Start Date End Date
7/10/2013 7/16/2013
GRAND TOTAL
CHK NO DATE
308364 7/16/13
308365 7/16/13
308366 7/16/13
308367 7/16/13
308368 7/16/13
A/P Total
818007 7/16/13
818027 7/16/13
3/3
AMOUNT
1,179.99
86.95
379.37
1,791.38
39.83
819,784.65
24,528.61
39,070.07
12,256.26
$ 895,639.59
Certification
IN ACCORDANCE WITH SECTION 37202, 37208, 372059 OF THE GOVERNMENT CODE, WE
HEREBY CERTIFY TO THE ACCURACY OF THE DEMANDS LISTED ABOVE AND TO THE
AVAILABILITY OF FUNDS FOR THE PAYMENT THEREOF AND FURTHER THAT THE ABOVE
CLAIMS AND DEMANDS HAVE BEEN AUDITED AS REQUIRED BY LAW.
MARK ROBERTS, FINANCE
LESLIE DEESE, CITY MANAGER
FINANCE COMMITTEE
RONALD J. MORRISON, MAYOR -CHAIRMAN
LUIS NATIVIDAD, VICE -MAYOR ALEJANDRA SOTELO-SOLIS, MEMBER
MONA RIOS, MEMBER JERRY CANO, MEMBER
1 HEREBY CERTIFY THAT THE FOREGOING CLAIMS AND DEMANDS WERE APPROVED AND
THE CITY TREASURER IS AUTHORIZED TO ISSUE SAID WARRANTS IN PAYMENT THEREOF
BY THE CITY COUNCIL ON THE 20`h OF AUGUST, 2013.
AYES
NAYS
ABSENT
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20th, 2013
AGENDA ITEM NO. 412
ITEM TITLE:
Warrant Register #4 for the period of 07/17/13 through 07/23/13 in the amount of $1,012,486.71.
(Finance)
PREPARED BY: K. Apalategui; DEPARTMENT: Financy
PHONE: 019-336-4331 APPROVED BY: (Gi
EXPLANATION:
Per Government Section Code 37208, attached are the warrants issued for the period of 07/17/13
through 07/23/13
The Finance Department has implemented a policy explanation of all warrants above $50,000.00
Vendor Check Amount Explanation
ARJIS 308369 55,709.00 JPA Costs, Utilization
Network Charges
SDG&E 308391 58,601.58 City Utilities
I
FINANCIAL STATEMENT:
ACCOUNT NO.
N/i!
APPROVED: ff14,1&inance
APPROVED: MIS
ENVIRONMENTAL REVIEW:
This is not a project and, therefore, not subject to environmental review
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Ratification of warrants in the amount of $1,012,486.71
BOARD / COMMISSION RECOMMENDATION:
N/AN
ATTACHMENTS:
Narrant Register #4
PAYEE
ARJIS
ATKINS NORTH AMERICA INC
BRIAN COX MECHANICAL INC
CHILDREN'S HOSPITAL
CITY OF CHULA VISTA
COURTESY REFRIGERATION INC
CUMMINS & WHITE LLP
DAY WIRELESS SYSTEMS (20)
DONNOE & ASSOCIATES INC
HONDO, E
HYDRO SCAPE PRODUCTS INC
KNOX COMPANY
LOCAL GOVERNMENT PUBLICATIONS
LORMAN EDUCATION SERVICES
MEYERS/NAVE LAW CORP
NATIONAL CITY CAR WASH
v"TIONAL CITY CHAMBER OF
ER & VARCO
KIN PEST CONTROL
POWER PLUS
PRUDENTIAL OVERALL SUPPLY
REGIONAL TRAINING CENTER
SDG&E
SMART & FINAL
SOUTH COAST EMERGENCY
STAPLES ADVANTAGE
SWEETWATER AUTHORITY
U S HEALTHWORKS
VCA EMERGENCY ANIMAL HOSPITAL
WEST PAYMENT CENTER
PAYROLL
Pay period Start Date
2 6/11/2013
WARRANT REGISTER #4
7/23/2013
DESCRIPTION
JPA COSTS, UTILIZATION NETWORK CHARGES
PROVIDE SEWER BILL/TAX ROLL PREP
NC REPAIRS, SERVICES
CHILD ABUSE EXAMS / POLICE
ANIMAL SHELTER COSTS / POLICE
PARTS
SERVICES THROUGH JUNE 30, 2013
RADIO MAINTENANCE SERVICE
PROMOTIONAL ACTIVITIES
RETIREE HEALTH BENEFITS - JULY 2013
MOP 45720 PIPES, VALVES, FITTINGS
FIRE PLUG W/SWIVEL-GUARD 2.5 FDC
LOCAL GOV'T PUBLICATIONS
REGISTRATION FEE: PREVAILING WAGE LAW
2013050636 - LEGAL SERVICES
MOP 72454 R&M AUTO EQUIPMENT
TOURISM MARKETING FEE - MAY 2013
LEGAL SERVICES AGREEMENT
PEST MAINTENANCE
TEMP POWER, AQUATIC CENTER
MOP 45742 LAUNDRY SVC - NSD
TRAINING - SEXUAL HARASSMENT
FACILITIES GAS & ELECTRIC
MOP 45756 MISC SUPPLIES - HR
LABOR & PARTS TO REPAIR FIRE ENGINE
MOP 45704 OFFICE SUPPLIES - FINANCE
FACILITIES DIVISION WATER BILL
MEDICAL SERVICES
STRAY ANIMAL VET CARE / POLICE
CLEAR INVESTIGATIVE DATABASES
End Date Check Date
6/24/2013 7/3/2013
1/1
CHK NO DATE AMOUNT
308369 7/23/13 55,709.00
308370 7/23/13 1,586.00
308371 7/23/13 2,671.93
308372 7/23/13 2,205.00
308373 7/23/13 26,869.00
308374 7/23/13 530.94
308375 7/23/13 820.00
308376 7/23/13 1,245.82
308377 7/23/13 496.50
308378 7/23/13 110.00
308379 7/23/13 1,502.97
308380 7/23/13 379.32
308381 7/23/13 138.56
308382 7/23/13 339.00
308383 7/23/13 7,545.50
308384 7/23/13 430.00
308385 7/23/13 20,919.92
308386 7/23/13 4,940.00
308387 7/23/13 375.73
308388 7/23/13 195.00
308389 7/23/13 81.03
308390 7/23/13 960.00
308391 7/23/13 58,601.58
308392 7/23/13 20.02
308393 7/23/13 12,181.24
308394 7/23/13 467.64
308395 7/23/13 4,054.76
308396 7/23/13 65.00
308397 7/23/13 186.00
308398 7/23/13 433.44
MP Total 206,060.90
806,425.81
GRAND TOTAL $ 1,012,486.71
Certification
IN ACCORDANCE WITH SECTION 37202, 37208, 372059 OF THE GOVERNMENT CODE, WE
HEREBY CERTIFY TO THE ACCURACY OF THE DEMANDS LISTED ABOVE AND TO THE
AVAILABILITY OF FUNDS FOR THE PAYMENT THEREOF AND FURTHER THAT THE ABOVE
CLAIMS AND DEMANDS HAVE BEEN AUDITED AS REQUIRED BY LAW.
MARK ROB TS, FINANCE LESLIE DEESE, CITY MANAGER
FINANCE COMMITTEE
RONALD J. MORRISON, MAYOR -CHAIRMAN
LUIS NATIVIDAD, VICE -MAYOR ALEJANDRA SOTELO-SOLIS, MEMBER
MONA RIOS, MEMBER JERRY CANO, MEMBER
I HEREBY CERTIFY THAT THE FOREGOING CLAIMS AND DEMANDS WERE APPROVED AND
THE CITY TREASURER IS AUTHORIZED TO ISSUE SAID WARRANTS IN PAYMENT THEREOF
BY THE CITY COUNCIL ON THE 20th OF AUGUST, 2013.
AYES
NAYS
ABSENT
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 13
ITEM TITLE:
A Public Hearing to consider the updated Sewer System Management Plan (SSMP), as required by
State Water Resources Control Board Order No. 2006-0003-DWQ.
PREPARED BY: Joe Smith
PHONE: 336-4587
EXPLANATION:
See attached explanation.
DEPARTMENT: Public W
APPROVED BY:
FINANCIAL STATEMENT:
ACCOUNT NO. N/A
There is no financial impact to the City
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
Hold the public hearing
BOARD / COMMISSION RECOMMENDATION:
ATTACHMENTS:
Explanation
Sewer System Management Plan is on file in the City Clerks office
Staff Recommendation
Staff is recommending the City Council of the City of National City hold a Public Hearing to
consider the updated Sewer System Management Plan as requested by the State Water
Resources Control Board Order No. 2006-0003-DWQ which requires recertification by the
goveming board of the Enrollee when significant changes to the SSMP are made.
Explanation
The City of National City owns, operates and maintains a sanitary sewer collection system that
conveys wastewater from all properties within the City to the Point Loma Wastewater Treatment
Plant. Like all other participating agencies that operate their own sanitary sewer collection
systems, the National City is required to take a variety of steps to prevent overflows from their
sanitary sewer collection system. The actions taken to prevent and respond to sanitary sewer
overflows (SSO) are detailed in the Sewer System Management Plan (SSMP) which is a
document required by the State of California. The State regulations require the development
and implementation of an SSMP include State Water Resources Control Board (SWRCB) Order
No. 2006-0003-DWQ, San Diego Regional Water Quality Control Board (RWQCB) Order No.
R9-2007-0005, and SWRCB Order WQ 2008-0002-EXEC.
National City's first SSMP was prepared in 2009 by Infrastructure Engineering Corporation.
Subsequently, representatives from the SWRCB and RWQCB audited the City's SSMP program
in February 2012. Some deficiencies were noted in the original SSMP and corresponding
procedures as detailed in the audit report issued by the RWQCB in August 2012. To address
the concerns raised, the City contracted D-MAx Engineering to review and update the City's
SSMP to ensure it meets State standards and to fulfill the routine requirement in SWRCB Order
No. 2006-0003-DWQ to review and update the SSMP every two years. As a result of this effort,
a revised SSMP has been prepared. All major findings from the State audit have been
addressed in the revised SSMP.
The major changes to the SSMP include updates and clarifications to the City's SSO response
and recordkeeping procedures. New flow charts were prepared to clarify which actions are
needed in which circumstances and how to appropriately classify and report various categories
of SSOs, including relevant timelines and reporting mechanisms. New forms designed to track
all required information were prepared, along with more detailed procedures on how and when
to use them. Public Works staff has been trained on these new procedures and are currently
using them. Updates to the City's map of its sanitary sewer infrastructure, including locations
requiring higher cleaning frequencies, were also made, and a revised set of metrics for tracking
program effectiveness has been added. The overall layout of the SSMP document was also
revised to include explicit references to State requirements within the text of the SSMP and to
show how each requirement is addressed by the City's program.
The updated SSMP was posted on the City's website thirty days prior to the Public Hearing and
members of the public where invited to comment on the revised SSMP, which is available by
request from Public Works.
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 14
ITEM TITLE:
public Hearing — Appeal of Planning Commission Revocation of Conditional Use Permit 2010-33 CUP for live
entertainment at an existing bar/restaurant located at 105 E. 8th Street (Case File No.: 2013-11 R)!,
PREPARED BY: •Martin Reeder, AICP, DEPARTMENT: (Planning
PHONE: 1619-336-4313 APPROVED Bjw
EXPLANATION: The business located at 105 East 8th Street (McDini's) was approved for a Conditional Use
Permit (2011-33 CUP) to construct a 6-foot by 20-foot stage, with a 9-foot by 20-foot dance area, and offer live
entertainment and dancing from 6 p.m. to 1 a.m. Thursday through Sunday in association with the existing
bar/restaurant. Since approval of the CUP on February 21, 2012, the Police Department had alleged ongoing
violations of Conditions of Approval contained in City Council Resolution 2012-49, which approved the CUP.
At their meeting of June 17, 2013, the National City Planning Commission determined that one or more of the facts
set forth in Section 18.12.110(H)(1)(a) were present, and as a result of the evidence produced at said revocation
hearing, the Commission revoked the Conditional Use Permit. The permit holder has filed an appeal of the Planning
Commission's revocation to the City Council, per Section 18.12.060 of the National City Municipal Code.
The attached background report describes the item in detail.'
FINANCIAL STATEMENT:
ACCOUNT NO.
ENVIRONMENTAL REVIEW:
N/A.,
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
'Staff concurs with the decision of the Planning Commission.
BOARD / COMMISSION RECOMMENDATION:
[The Planning Commission voted to revoke the Conditional Use Permit
Ayes: Alvarado, Baca, Bush, Flores, Pruitt Absent: Garcia
Abstain: DelaPaz
ATTACHMENTS:
1. Background Report 4. Planning Commission staff report (including PD memorandum
2. Location Map 5. Planning & PD PowerPoint presentations from 7/17/13 PC meeting
3. Public Hearing Notice 6. Planning Commission Resolution 14-2013
7. June 17, 2013 Planning Commission meeting minutes'
BACKGROUND REPORT
McDini's has two Conditional Use Permits related to live entertainment:
2009-10 CUP — permitted internal expansion of the premises with a reduction in required
parking. A portion of this Conditional Use Permit (CUP) that requested extended live
entertainment hours, a dance floor, and stage to be constructed was denied;
2010-33 CUP — permitted live entertainment Thursday through Sunday from 6 p.m. to 2 a.m. This
CUP superseded CUP-1986-10, which originally approved live entertainment. 2010-33 CUP was
subject to 24 Conditions of Approval, one of which required that the Planning Commission review
the CUP one year from the date of the Resolution approval. To this end, a report was given to the
Planning Commission on March 4, 2013 by City staff. The Police Department made a
presentation on activities at McDini's within the previous 12 months. The Commission ultimately
set the item for hearing for June 17, 2013.
Timeline
The following is a summarized timeline regarding this matter:
[Applicant ("permittee") informed that annual review would take place at the Planning
Commission meeting of March 4, 2013]
2/27/13 Permittee submitted a written request that the meeting of March 4, 2013 be
continued.
3/4/13 Planning Commission continued the hearing per applicant's request May 6, 2013.
5/6/13 No hearing conducted due to inadequate notice — Planning Commission set the
revocation hearing for June 17, 2013.
5/30/13 Planning Commission staff report for 6/17/13 hearing provided to applicant.
6/14/13 Permittee submitted a written request that the meeting of June 17, 2013 be
continued for one month.
6/17/13 Planning Commission took no action on the requested continuance and
conducted a public hearing to consider revocation. Hearing closed.
6/27/13 Permittee submitted a written request that the Resolution scheduled to be acted
upon at the July 1, 2013 Planning Commission meeting be pulled from the agenda.
7/1/13 Request to pull Resolution from agenda not entertained. Resolution adopted
revoking 2010-33 CUP.
i
Revocation Hearing
At the revocation hearing conducted on June 17, 2013, Planning staff made a PowerPoint
presentation giving the history of the process to date. The Police Department (PD) made a
comprehensive PowerPoint presentation on the allegations against McDini's as stated in the
original memorandum ("PD Memo") submitted to the Planning Department. The PowerPoint
presentations are attached with this packet. The PD memorandum is an attachment with the
June 17, 2013 Planning Commission staff report (attached).
The Police Department provided information in their presentation regarding recently
advertised events, ABC licensing types, previous license violations at McDini's, lack of qualified
security staff, calls for service, violent incidents, and other CUP violations. Almost all
information provided constituted or contributed to violations of Conditional Use Permit 2010-
33 CUP, as noted in the PD Memo.
The permittee responded to some of the allegations, stating that he felt the information
unfounded, and suggested that some City staff was unqualified to report out on the matter. He
stated that he was running a legitimate and legal business within the scope of his CUP. The
Planning Commission disagreed with the permittee and expressed disappointment at recent
events. The Commission ultimately voted to revoke 2010-33 CUP, based on violations outlined
in the PD memo. With the exception of one absence, all Commissioners who were in
attendance at the revocation hearing voted unanimously to revoke the CUP. One member
abstained from the July 1, 2013 Resolution vote as they were not present at the June 17, 2013
public hearing. The Resolution revoking 2010-33 CUP is attached to this report.
Notice of Violation
Condition No. 2 of City Council Resolution 2012-49, which approved 2010-33 CUP contained the
following language:
2. No live entertainment, dancing, or construction of any stage or dancing area may commence
until the stipulated judgment has been rescinded or modified appropriately so as to allow for
such activities. In the event that the stipulated judgment is modified to allow for live
entertainment, the following conditions shall apply:
a. If any incidents involving calls for service involving any types of violence occur in a 12 month
period (at McDini's, the areas adjacent to McDini's, at Big Bens or Union Bank, or the
McDini's parking lot) and the Police Department responds then McDini's agrees to
penalties, as follows:
i. 1st incident: $1,000
ii. 2nd incident: $2,000
iii. 3`d incident: $3,000
If an incident occurs that requires more law enforcement resources, the cost of which
exceeds the penalty, McDini's agrees to reimburse for the additional costs.
As a result of PD's allegations of calls for service regarding violent incidents, the Planning
Department issued a Notice of Violation on February 26, 2013, requiring the payment of fines in
the amount of$6,000, as noted in Condition No. 2 quoted above. The applicant was given until
March 24, 2013 to pay these fines. Although the fine due date was extended until April 23,
2013, no fines have yet to be paid.
Appeal Process
The permittee has filed an appeal of the Planning Commission's revocation to the City Council per
Section 18.12.060 of the National City Municipal Code, submitted with an appeal fee of $3,710.
NCMC Section 18.12.060 (C)(3) provides the following direction:
"At the time set for such hearing, the City Council shall give the appealing party a
reasonable opportunity to be heard on the matter, and may require reports from any
City department. After the hearing, the City Council shall affirm, disaffirm, or modify the
decision appealed. The decision of the city council shall be final and conclusive."
Staff concurs with the decision of the Planning Commission and recommends that the revocation
of Conditional Use Permit 2010-33 CUP by the Planning Commission be affirmed.
3
` % 1
4
10
sk
CO
Project Location
Zone Boundary
1 1
0 75 150
I Feet
300
105 E 8th Street
APN: 556-332-20
Planning Commission
Location Map
2013-11 R
5.6.13
4
CITY OF NATIONAL CITY - PLANNING DEPARTMENT
1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950
NOTICE OF PUBLIC HEARING
APPEAL OF PLANNING COMMISSION REVOCATION OF
CONDITIONAL USE PERMIT 2010-33 CUP FOR LIVE ENTERTAINMENT
AT AN EXISTING BAR/RESTAURANT LOCATED AT 105 E. 8TH STREET.
CASE FILE NO.: 2013-11 R
APN: 556-332-20
The City Council of the City of National City will hold a public hearing after the hour of 6:00 p.m.
Tuesday, August 20, 2013, in the City Council Chambers, Civic Center, 1243 National City
Boulevard, National City, California, to hear the appeal of the Planning Commission's
revocation of Conditional Use Permit 2010-33 CUP for live entertainment at an existing
bar/restaurant located At 105 E. 8th Street. (Applicants: Ben and Charlton Adler)
The business located at 105 East 8th Street (McDini's) was approved for a Conditional Use
Permit (2011-33 CUP) to construct a 6-foot by 20-foot stage, with a 9-foot by 20-foot dance
area, and offer live entertainment and dancing from 6 p.m. to 1 a.m. Thursday through Sunday
in association with the existing bar/restaurant. Since approval of the CUP on February 21,
2012, the Police Department had alleged ongoing violations of Conditions of Approval
contained in City Council Resolution 2012-49, which approved the CUP. At their meeting of
June 17, 2013, the National City Planning Commission determined that one or more of the facts
set forth in Section 18.12.110(H)(1)(a) were present, and as a result of the evidence produced at
said revocation hearing, the Commission revoked the Conditional Use Permit. The permit holder
has filed an appeal of the Planning Commission's revocation to the City Council, per Section
18.12.060 of the National City Municipal Code. This public notice has been prepared subject to
Section 18.12.050 of the National City Municipal Code.
Information is available for review at the City's Planning Division, Civic Center. Members of the
public are invited to comment. Written comments should be received by the Planning Division
on or before 12:00 p.m., August 20, 2013, who can be contacted at 619-336-4310 or
planninqenationalcityca.gov
If you challenge the nature of the proposed action in court, you may be limited to raising only
those issues you or someone else raised at the public hearing described in this notice, or in
written correspondence delivered to the Planning Commission at, or prior to, the public hearing.
NATIONAL CITY PLANNING DIVISION
wm. BRAD RAULSTON
Executive Director
5
CITY OF NATIONAL CITY - DEVELOPMENT SERVICES DEPARTMENT
1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950
PLANNING COMMISSION STAFF REPORT
Title:
Original Case File No.:
Location:
Assessor's Parcel No.:
Staff Report By:
Property owners:
BACKGROUND
Item no.
June 17, 2013
PUBLIC HEARING TO CONSIDER REVOCATION
OF CONDITIONAL USE PERMIT 2010-33 CUP FOR
LIVE ENTERTAINMENT AT AN EXISTING
BAR/RESTAURANT LOCATED AT 105 E. 8TH
STREET.
2010-33 CUP
Southwest corner of East 8th Street and A Avenue
556-332-20
Martin Reeder, AICP — Assistant Planner
Adler Howard Trust 11-23-99
Previous Action
A report was given to the Planning Commission on March 4, 2013 by City staff.
The Police Department made a presentation on activities at McDini's
Bar/Restaurant within the previous months. The approval resolution (City Council
Resolution 2012-49) for the Conditional Use Permit (2010-33 CUP) that granted
extended hours of operation and allowed live entertainment had a condition
requiring this annual review. The Commission ultimately set the item for hearing for
June 17, 2013.
History
The current property owner took over management of McDini's in 2008. The
business operates under a Type 47 alcohol license (On -Sale General Eating
Place). A previous Conditional Use Permit (CUP-1986-10) was approved in
October of 1986 that extended alcohol sales hours until 2 a.m. and allowed for
live entertainment three days a week (Thursday through Saturday) until midnight.
6
Another CUP was partially approved in 2009 (2009-10 CUP). As part of this
permit, the applicant requested to extend the live entertainment hours allowed at
that time, and to allow for a dance floor and stage to be constructed. The request
also included the conversion of a storage area in to seating area, which had been
converted without permits. The expansion/conversion also included an exception
for less than required parking. The Planning Commission approved the
requested expansion and parking exception but denied the extension of live
entertainment hours.
In 2010, a stipulated judgment was entered into between the City and McDini's,
which allowed McDini's to continue operating provided that live entertainment
was no longer conducted and that all outstanding code enforcement and building
issues were resolved. The applicant, in an effort to modify the stipulated
judgment, proposed various conditions to address underlying concerns. These
proposals resulted in additional conditions to be added to the CUP, and also to
the Stipulated Judgment. The most recent CUP, approved in 2012 (2010-33
CUP) allowed live entertainment at McDini's Thursday through Sunday from 6 p.m.
to 2 a.m. The approval Resolution (City Council Resolution 2012-49) included the
Conditions of Approval as stated in the modified Stipulated Judgment.
New Information
The Police Department has provided an updated summary report of incidents
occurring between February 2012 and May 2013 (attached). The report alleges
many incidents that would violate the approved CUP and is recommending that
the Planning Commission revoke 2010-33 CUP.
Due to reported calls for service and specific incidents documented at or around
McDini's, staff issued a Notice of Violation on February 26, 2013 that required
$6,000 in fines be paid within 30 days. Specifically, Condition No. 2, section (b)
of City Council Resolution 2012-49 would apply:
2. (b). If any incidents involving calls for service involving any types
of violence occur in a 12 month period (at McDini's, the
areas adjacent to McDini's, at Big Bens or Union Bank, or
the McDini's parking lot) and the Police Department
responds then McDini's agrees to penalties, as follows:
i. 1st incident: $1,000
ii. 2nd incident: $2,000
iii. 3rd incident: $3,000
As a courtesy to the property owners, staff granted a 30 day extension to the
date of required payment, which was April 23, 2013. No fine has yet been paid.
Furthermore, McDini's was asked to provide a statement indicating total alcohol
and food sales for the 2012 calendar to ensure compliance with CUP-1986-10,
7
which required that sales of alcohol be incidental to the sale of food. Information
provided by the manager indicated that alcohol sales were 50% of total sale, not
considered being incidental (typically less than food sales). However, additional
requested information required to audit this percentage has not been provided to
date (due May 18, 2013).
Hearing
Tonight's hearing is the opportunity for the Police Department to present the facts in
support of their request for revocation of the Conditional Use Permit (CUP), as
provided by Municipal Code section 18.12.110(H). It is also the opportunity for the
CUP holder to respond to any and all allegations and also to present evidence. The
public hearing is held pursuant to and consistent with Municipal Code section
18.12.050. The Planning Commission may establish the rules governing the
conduct of its proceedings. Typically in public hearings, there is a presentation, the
applicant is present and may respond, and the public is also provided an
opportunity to comment and provide information. The formal rules of evidence do
not apply.
The Planning Commission will be acting in a quasi-judicial capacity and shall, at this
public hearing, determine whether any one of the facts, set forth in Section
18.12.110(H)(1)(a) (attached) are present. Per 18.12.110(H)(1)b, if, as a result of
the evidence produced at such hearing, the Commission determines that any one
of such facts are present, it shall revoke the Conditional Use Permit.
Section 18.12.110(H)(1)(a) includes subsections ii and iii, which state as follows:
ii. That the conditional use permit is being exercised in a manner contrary to
any law or condition of approval imposed upon such conditional use permit; or
iii. That any use or uses pursuant to such conditional use permit is being, or
has been, exercised in a manner detrimental to public peace, health, safety, or
welfare, or in a manner to constitute a public nuisance.
These are the pertinent sections in this matter. Once all of the information has been
presented, and if the Planning Commission determines specific Conditions of
Approval have been violated, then the Commission will need to make a finding for
each individual violation, which would be reflected in a Resolution to follow.
8
RECOMMENDATION
1. Find that specific Conditions of Approval of City Council Resolution 2012-49
have been violated, based on attached findings, and revoke 2010-33 CUP;
or
2. Find that specific Conditions of Approval of City Council Resolution 2012-49
have not been violated, based on findings to be determined by the Planning
Commission, and file the report.
ATTACHMENTS
1. Recommended Findings for Violation
2. Police Department Memorandum, dated May 20, 2013
3. Sections 18.12.110(H)(1)(a) and 18.12.050 of the National City Municipal
Code
4. Location Map
5. Public Hearing Notice (Sent to 406 property owners and occupants)
6. City Council Resolution 2012-49
7. Notice of Violation, dated February 26, 2013
MARTIN REEDER, AICP
Assistant Planner
BRAD RAULSTON
Executive Director
9
RECOMMENDED FINDINGS FOR VIOLATION OF
CITY COUNCIL RESOLUTION 2012-49
1. Based on the fact that the National City Police Department responded to 28
incidents at McDini's Bar, 105 E. 8th Street, National City, between February
22, 2012 to February 21, 2013,as further detailed in Police Department
memorandum dated May 20, 2013, which facts are incorporated into these
findings, the owner and/or operator of McDini's is in violation of Condition of
Approval number 2, section a, of City Council Resolution 2012-49.
2. Based on the fact that the National City Police Department responded to 6
incidents involving violence at McDini's Bar, 105 E. 8th Street, National City,
between May 11, 2012 to May 11, 2013, as further detailed in Police
Department memorandum dated May 20, 2013, which facts are incorporated
into these findings, the owner and/or operator of McDini's is in violation of
Condition of Approval number 2, section b, of City Council Resolution 2012-
49.
3. Based on the fact that the National City Police Department responded to 28
incidents between February 22, 2012 to February 21, 2013, and 6 incidents
involving violence between May 11, 2012 to May 11, 2013 at McDini's Bar,
105 E. 8th Street, National City, as further detailed in Police Department
memorandum dated May 20, 2013, which facts are incorporated into these
findings, the owner and/or operator of McDini's is in violation of Condition of
Approval number 2, section c, of City Council Resolution 2012-49.
4. Based on the fact that the National City Police Department observed — on
three separate occasions from February 23, 2013 to April 5, 2013 — exterior
doors left open for extended periods of time during live entertainment
activities, as further detailed in Police Department memorandum dated May
20, 2013, which facts are incorporated into these findings, the owner and/or
operator of McDini's is in violation of Condition of Approval numberl3 of City
Council Resolution 2012-49.
5. Based on the fact that the National City Police Department observed — on
four separate occasions from December 20, 2012 to March 14, 2013 — that
McDini's security officers were found not to be professional (licensed)
security guards; and that on February 15, 2013, only two licensed guards
were on duty when a minimum of three were required, as further detailed in
Police Department memorandum dated May 20, 2013, which facts are
incorporated into these findings, the owner and/or operator of McDini's is in
violation of Condition of Approval number 14 of City Council Resolution
2012-49.
6. Based on the fact that the National City Police Department responded to 17
incidents at McDini's Bar, 105 E. 8th Street, National City, between the hours
10
of 5:00 p.m. and 3:00 a.m. during the 2012 calendar year, an increase in
calls for service of 750%, as further detailed in Police Department
memorandum dated May 20, 2013, which facts are incorporated into these
findings, the owner and/or operator of McDini's is in violation of Condition of
Approval number 15 of City Council Resolution 2012-49.
7. Based on the fact that the National City Police Department observed — on
four separate occasions from February 16, 2013 to April 28, 2013 — McDini's
patrons wearing ball caps, as further detailed in Police Department
memorandum dated May 20, 2013, which facts are incorporated into these
findings, the owner and/or operator of McDini's is in violation of Condition of
Approval number 23 of City Council Resolution 2012-49.
11
�^ Mf1F $I4IA,.
IJvco33ofter
NATIONAL CITE' POLICE DEPARTMENT
MEMORANDUM
DATE: May 20, 2013
TO: Leslie Deese, City Manager
National City Planning Commission
FROM: Manuel Rodriguez, Chief of Police
SUBJECT: McDini's Bar/Restaurant Violation of City Council Resolution
No. # 2012-49
I. Summary
The National City Police Department is requesting revocation of Conditional Use
Permit (CUP) #2010-33 CUP (Resolution #No. 2012-49) issued to McDini's
Bar/Restaurant (105 E. 8th Street) by the City of National City for violations of the
terms of the permit. The City and Police Department have documented the following
violations of the CUP by McDini's:
A. Six violent acts occurred at McDini's during a 12 month period.
B. The police department has responded to 28 calls for service at McDini's
over the course of 12 months (February 22, 2012 to February 2013).
C. Calls for service have increased by more than 10% during the hours of
5:00 pm and 3:00 am.
D. Violations of the dress code and security provisions as required by the CUP.
II. Background
In 2008, the ownership of McDini's changed I transferred ownership to the Adler
Family Trust. This change in ownership resulted in McDini's using an excessive
amount of Police and City resources between the years 2009 and 2010.
In March of 2010, McDini's was closed by the City through a Superior Court
injunction for violation of the Conditional Use Permit (CUP) they had previously been
issued.
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
12
In 2012, in a show of good faith, the City negotiated the re -opening of McDini's with
the Adler Family Trust under Resolution No. 2012-49 (2010-33 CUP). The opening
of McDini's was contingent upon the Adler Family Trust adhering to the terms and
conditions outlined in the Resolution for live entertainment at the establishment. The
City and the Adler Family Trust agreed to the terms and conditions of the Resolution
on February 21, 2012.
According to the Resolution, police activity at McDini's would be evaluated after 12
consecutive months from the date it was adopted. The evaluation would look at any
increase in police responses to incidents originating from McDini's; data in this report
for 2011 is included for comparison purposes. The Police Department was assigned
the responsibility for evaluating compliance with the terms of the CUP.
A review of the records show McDini's has been and is currently in violation of
several terms and conditions of the CUP; Specifically, Pages 2 & 3, condition 2
(sections "a" and "c") and Pages 4 & 5, conditions 13, 15, 22, and 23. The listed
sections pertain to police response activity, security, and dress code violations.
Based on the violations listed, the National City Police Department recommends
revocation of (2010-33 CUP) by the City of National City.
Ill. Findings
The following police findings show McDini's is in violation of Resolution No. 2012-49
as it pertains to the associated terms and conditions:
A. Condition 2, Section "a."
i. This section states that if after 12 consecutive months there are no
incidents. The parties agree to meet to discuss whether the
stipulated judgment should remain in place.
ii. Result: From February 22, 2012 to February 21, 2013, the
National City Police Department responded to 28 incidents at
McDini's Bar, 105 E. 8th Street, National City.
B. Condition 2, Section "b."
i. This section states that if any incidents involving calls for service
involving any types of violence occur in a 12 month period at
McDini's, the areas adjacent to McDini's, at Big Bens or Union Bank,
or the McDini's parking lot, and the Police Department responds,
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
13
3
then McDini's agrees to the following penalties:
i. 1st incident: $1000.00
ii. 2nd incident: $2000.00
iii. 3rd incident: $3000.00
ii. Result: From May 11, 2012 to May 11, 2013 (12 month period),
the NCPD responded to six (6) incidents involving violence. AU
four of these incidents occurred at McDini's:
1. Incident #1 was a felony battery that occurred on October 20,
2012 (NCPD Case #1206322).
2. Incident #2 was an assault with a deadly weapon that occurred
on December 21, 2012 (NCPD Case #1207728).
3. Incident #3 was a felony battery that occurred on January 21,
2013 (NCPD Case #1300451).
4. Incident #4 was a felony battery that occurred on March 14,
2013 (NCPD Case #1301677).
5. Incident #5 was an assault with a deadly weapon that occurred
on March 20, 2013 (NCPD Case #1301798).
6. Incident #6 was a battery that occurred on May 11, 2013
(NCPD Case #1302901).
C. Condition 2, Section "c."
i. This section states that if four (4) incidents occur within a 12
month period, then all live entertainment immediately ceases and
is suspended for 12 months.
ii. Result: As previously mentioned, the NCPD responded to 28
incidents over the course of 12 months (February 22, 2012 to
February 21, 2013). These responses generated six (6) crime
cases and two (2) arrests. Also, as previously mentioned, the
NCPD responded to six (6) incidents involving violence from May
11, 2012 to May 11, 2013 (12 month period).
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
14
So far, from January 1, 2013 through May 11, 2013, the NCPD
responded to fifteen (15) incidents at McDini's Bar.
D. Condition 15
i. This paragraph outlines how the CUP is subject to revocation if live
entertainment results in a ten percent (10%) increase in police
services during the hours of 5:00 pm to 3:00 am.
Result: In 2011, NCPD responded to two (2) incidents between
the hours of 5:00 pm and 3:00 am. In 2012, NCPD responded to
seventeen (17) incidents during the same time frame. This is an
increase of 750%.
From January 1, 2013 through May 11, 2013, the NCPD has
already responded to twelve (12) incidents related to McDini's
between the hours of 5:00 pm and 3:00 am. Based on the current
response to calls, it is estimated the NCPD will respond to over
thirtv-one (31) incidents between 5:00 pm and 3:00 am in 2013.
IV. Police Activity
Crime Cases/Arrest Reports - The following table lists crime cases and arrest reports
for 2012 and January through May 11, 2013. The information is comprised of police
activity that has been conducted at McDini's Bar located at 105 E. 8th Street,
National City, CA. Police activity includes calls for service, crime cases, arrests, and
field interviews.
Crime Case
iflOd:ifilt) to
Case ifUrn e -
UCR Category
; Ylolation
Wailon_Qesar io
Sep 11, 2012, 12:00 am
1205495
larceny >= $400
488 PC
Petty Theft
Oct 20, 2012, 1:30 am
1206322
Aggravated Assault
243(d) PC
Battery w/ Serious Bodily Injury
Dec 21, 2012, 2:00 am
1207728
Aggravated Assault
245A1 PC
Assault w/deadly weapon other than
firearm or GBI force
Dec 27, 2012, 12:37 am
1207870
Part II Crime
981000ZZ
Miscellaneous Incident
Dec 31, 2012, 9:34 pm
1207929
Part II Crime
981153ZZ
Miscellaneous Report -153
Jan 21, 2013, 12:00 am
1300451
Aggravated Assault
243(d) PC
Battery with Serious Bodily Injury
Mar 10, 2013, 3:15 am
1201553
Part I1 Crime
Misc
Underage Drinking
Mar 14, 2013, 9:27 pm
1301677
Aggravated Assault
243(d) PC
Battery w/ Serious Injury
Mar 20, 2013, 9:41 pm
1301798
Aggravated Assault
254A1 PC
Assault w/ Deadly weapon other than
firearm
Apr 20, 2013, 12:58 pm
1302453
Part II Crime
981000ZZ
Miscellaneous Incident
May 11, 2013, 1:44 am
1302901
XXX
242 PC
Battery
4
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
15
Arrests
Incident Date
Case Number
UCR Category
Violation
Violation Description
Dec 21, 2012, 2:47 am
1207728
Part II Crime
674(f) PC
Disorderly Conduct: Alcohol
Dec 28, 2012, 1:42 am
1207870
Part 1I Crime
12403.7(a) PC
Illegal Possess Tear Gas/Etc
Apr 14, 2013, 9:40 pm
1302311
Part 11 Crime
674(f) PC
Disorderly Conduct: Alcohol
Field interviews
Incident Date
incident
Number
UCR Category.
Violation
Violation Description
Jan 13, 2012, 8:20 pm
1522889
Part 11 Crime
11550(a) HS
Use/under influence of controlled substance
Jan 13, 2012, 8:20 pm
1522890
Part II Crime
11550(a) HS
Uselunder influence of controlled substance
Dec 21, 2012, 2:47 am
1773874
Part II Crime
Gangs ZZ
Gang Related Offense
Mar 10, 2013, 3:14 am
1768046
Part 11 Crime
647(a) PC
Disorderly Conduct/Solicit Lewd Act
Mar 16, 2013, 11:40 am
1784204
Part II Crime
647(f) PC
Felony Prostitution
The following information is comprised of additional police activity that has been
conducted at businesses and parking lots immediately surrounding McDini's Bar
located at 105 E 8th Street, National City, CA. This report will only include crime
cases and arrests.
Crime Case
Incident Date
Incient
d
Number
Violation
Violation Descrlptloti
,. K,
Full tocation
Nov 8, 2012, 10:50 pm
1206776
460(b) PC
Vehicle Burglary
100 E 07th Street, National City, CA
Dec 20, 2012, 5:00 pm
1207732
594(b)(1) PC
Vandalism ($400+)
130 E 08th Street, National City, CA
Dec 20, 2012, 6:00 pm
1300346
594(b)(1) PC
Vandalism ($400+)
117 E 08th Street, National city, CA
Arrests
incident pate
incidentt
Number'
Violation
, ' "
Violation Descrlption
�. ,,,,.._. „ , _
Full"Locaatlon
Feb 22, 2012, 1:17 pm
1201123
978.5 PC
warrant
108 E 08 h Street, National City, CA
Feb 25, 2012, 8:46 am
1201193
647(0 PC
Disorderly Conduct: Alcohol
700 A Ave, National City, CA
Mar 27, 2012, 8:41 am
1201879
647(f) PC
Disorderly Conduct: Alcohol
800 A Ave, National City, CA
Apr 4, 2012, 10:40 pm
1202077
647(f) PC
Disorderly Conduct: Alcohol
700 A Ave, National City, CA
Jul 1, 2012, 12:01 am
1203883
647(f) PC
Disorderly Conduct: Alcohol
100 E 08th Street, National City, CA
Jul 8, 2012, 1:38 pm
1204047
647(f) PC
Disorderly Conduct: Alcohol
100 E 08th Street, National City, CA
Oct 28, 2012, 2:26 am
1206488
23152aCVC
DUI alcohol and/or drugs
100 E 08th Street, National City, CA
Oct 28, 2012,11:43 pm
1206502
11550a HS
Use/Under influence of
controlled substance
700 A Ave, National City, CA
5
1200 National City Boulevard
National City, CA 97950
(619) 336-4512/Fax (619) 336-4525
16
A. Considerations
a. The crime cases and arrests listed in this report do not include all
police activity that occurred in the surrounding area around
McDini's Bar. All crime cases/arrests were reviewed. The incidents
that excluded any possible involvement with McDini's Bar were
removed.
b. Incident #1203883, the arrestee admitted to drinking at McDini's
Bar.
B. Calls for Service (CFS) - CFS are broken down by year and then
categorized by Nature of Problem. Only Priority 1-4 calls are included in
this report. Priority 5 calls were excluded because they are "self -initiated"
by patrol officers.
2011
Priority 1 - 4
,Nature ofProblem ;-
Total
415 Drinking in Pubic
2
415 Noise
1
488R Petty Theft Report
1
647E Drunk in Public
1
Total
5
2012
Priority 1 - 4
Nature of Problem
Total
'20002 tit & Run tion-lnj
1
242 Battery
2
245 Assault wl Deadly Weapon
2
314 indecent Exposure
1
1415 Drinking in Pubic
2
8415 Music
3
415 Noise
1
i415 Other
1
415 Refusing to Leave
2
415 Subject
3
415 Verbal
2
459V Burglary Vehicle
1
48414 PossiUse of Ace Card
1
4 '< Petty Theft
1
537 Defrawkng Innkeeper
1
594R VandalisneMal Mischief
1
`647b Prostitution
1
647F Drunk in Public
1
Check the Welfare Urgent
1
Total
28
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
17
2013- January through May 11tn
Priority 1 - 4
Nature of Problem
Total
242 Battery
2
245R Assault w/ Deadly Wpn
1
911 Disconn1243(d) Fel. Battery
1
417 Disp weapon (Union Bank)
1
415 Music
2
415 Group
3
415 Fight (Union Bank lot)
1
415 Subject
1
647(f) Drunk in Public Subject
1
Check the Welfare
1
Check the Welfare Urgent
1
Total
15
V. Miscellaneous CUP violations
The Resolution No. 2012-49 also contains the following provisions:
1. The doors shall remain closed during any and all live entertainment
events - the following are instances of violations:
• On February 23, 2013, at about 0010 hours, a NCPD officer
observed the south door left open for an extended period of time
while loud music was playing inside the bar.
• On March 14, 2013, at about 2345 hours, a NCPD officer observed
the north and south doors left open for an extended period of time
while a DJ was playing music.
• On April 5, 2013, at about 2205 hours, a NCPD officer observed
the south door left open for an extended period of time while loud
music was playing inside the bar.
2. A uniformed professional guard service shall be hired and on the
premises between the hours of 6:00 pm and 2:00 am, on all nights live
entertainment in provided. The guard service shall patrol the outside of
the premises as well as the inside, and shall prevent any loitering and/or
undesirable activity in the parking lot. In addition, a minimum of three
guards per live entertainment event shall be present as follows: The
guards/security must be licensed and certified. One armed guard (off duty
police officer or equivalent) and two other guards for the exterior; and one
staff person for the purposes of security shall be present inside.
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
18
8
3. There will be a security guard present at each point of entry/exit to the
premises - the following are instances of violations of Conditions No. #2
and#3:
• On December 20, 2012, at about 0203 hours, NCPD officers
responded to an assault with a deadly weapon call at the bar.
The two security guards working at the bar at the time did not
possess State of CA "guard cards." One security card showed "no
guard card issued" through the California State Bureau of Security
and Investigative Services (BSIS) website. The other security
guard's card was ""cancelled" in 2009 per the BSIS website.
• On December 28, 2012, at about 0142 hours, NCPD officers
responded to an incident at the bar in which a security guard
employed by the bar pepper sprayed a patron outside the bar. It
was determined the security guard did not possess a State of CA
"guard card." In fact, the security guard was a felon and was
arrested for being a felon in possession of tear gas (a felony).
• On February 14, 2013, at about 2355 hours, a NCPD officer found
only one uniformed security guard working at the bar while a DJ
was playing music inside. The guard did not have a State of CA
issued "guard card." The guard stated he worked for and was paid
directly by the owner of the bar.
• On February 15, 2013, at about 2355 hours, a NCPD officer found
only two uniformed security guards working at the bar while a DJ
was playing music inside. The two guards possessed valid State
of CA "guard cards." The guards stated they worked for and were
paid directly by the owner of the bar.
• On March 14, 2013, at about 2345 hours, NCPD officers
responded to a 911 hang up call at the bar. Officers arrived and
determined the sole security guard on duty was the victim of a
felony battery. Officers also spoke with the employee who tried to
call 911. The employee said the management told her not to call
911 and to hang up the phone. The security guard (victim) did not
have a valid State of CA "guard card." In fact, the security guard
had an active felony warrant.
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
19
• On March 16, 2013, at about 2310 hours, NCPD officers contacted
two security guards at the bar. One of the guards did not have a
State of CA "guard card." The other guard's "guard card" was
"cancelled" per the BSIS website.
4. A dress code shall be observed for live entertainment events as follows:
• No ball caps.
• No gang colors or attire.
• No persons appearing intoxicated, inebriated, or appearing under
the influence.
• No weapons.
the following are instances of violations:
i. On Saturday, February 16, 2013, at about 2307 hours, an NCPD
officer saw three males wearing baseball caps being allowed into the
bar while a DJ was playing music. The officer contacted Charleton
Adler outside the bar. Mr. C. Adler tried to explain to the officer that a
baseball cap was not considered a "ball cap" as outlined in the dress
code provision of Resolution No. 2012-49.
ii. On Saturday, February 23, 2013, between 2355 to 0145 hours, NCPD
officers saw numerous males enter the bar wearing motorcycle club
colors" (motorcycle vests with logos) and baseball hats.
iii. On Sunday, March 31, 2013, at about 0055 hours, NCPD officers saw
a male enter the bar wearing a baseball cap while a DJ was playing
music.
iv. On Sunday, April 28, 2013, at about 0139 hours, an NCPD officer saw
subjects exit the bar wearing baseball caps.
Vi. Recommendation
As discussed, the findings show that in 2011, NCPD responded to two (2) incidents
between the hours of 5:00 pm and 3:00 am. In 2012, NCPD responded to seventeen
(17) incidents during the same time frame, a 750% increase. From January through
May 11, 2013, NCPD responded to twelve (12) incidents. This represents a 600%
increase over all of 2011.
Both the City and the Police Department have assisted the Adler Family Trust (when
contacted) to abide by and conform to the terms and conditions set forth by past
9
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
20
Condition Use Permits as well as the existing Resolution No. 2012-49. The
establishment continues violate the terms and conditions of the resolution. McDini's bar
and Restaurant continues to be a public safety concern due to the number of police calls
associated with its operations. McDini's has had a negative impact on the quality of life
to the residents who live in the area.
A review of the data by the Crime Analysis Unit has determined the reinstatement of live
entertainment has resulted in or significantly contributed to much more than a 10°/a
increase for police services during the hours of 5:00 pm to 3:00 am.
The National City Police Department recommends the City of National City revoke
McDini's Conditional Use Permit (CUP# 2010-33) per Resolution No. 2012-49 due to the
numerous violations of the Resolution discussed in this report and the negative impact
to the residents of National City.
MANUEL RODRIGUEZ
10
1200 National City Boulevard
National City, CA 91950
(619) 336-4512/Fax (619) 336-4525
21
18.12.110 - Conditional use permits.
H. Revocation.
1. Conditional use permits may be subject to revocation in the time and
manner as set forth in this section. Whenever the city manager or
his/her designee finds that any of the following facts exist, with
reference to a conditional use permit, he/she may recommend to the
planning commission or city council, whichever body granted the
permit, that the conditional use permit be revoked:
a. That the conditional use permit was obtained by fraud; or
i. That the use authorized by such conditional use permit
has ceased, or has been suspended, for any reason, for
a period of six months or more; or
ii. That the conditional use permit is being exercised in a
manner contrary to any law or conditions of approval
imposed upon such conditional use permit; or
iii. That any use or uses pursuant to such conditional use
permit is being, or has been, exercised in a manner
detrimental to public peace, health, safety, or welfare, or
in a manner to constitute a public nuisance.
b. Upon receipt of such recommendation, the granting body shall
expeditiously set and conduct a public hearing upon such matter
after having given notice in the manner set forth in Section
18.12.050. At the time and place of such hearing, the body
conducting such hearing shall determine whether any one of the
facts, set forth in Section 18.12.110(H)(1)a are present. If, as a
result of the evidence produced at such hearing, the body
conducting the hearing determines that any one of such facts
are present, it shall revoke the conditional use permit.
c. If the revocation proceeding is conducted before the planning
commission, the decision of the commission shall be subject to
an appeal to the city council in the time and manner as set forth
in Section 18.12.060. In the absence of such appeal from a
commission decision, its decision shall be final and conclusive.
The action of the city council, either upon an appeal or as a
conducting body, shall be final and conclusive for all purposes.
22
18.12.050 - Noticing and public hearings.
A. Public Hearing Defined. A public hearing is a noticed public session to receive
original evidence or testimony on applications regulated by this title. These
are held by the planning commission and city council.
B. Scheduling. For all proposals to be heard by the planning commission, the
city manager or his/her designee shall set the date for public hearing and give
the required notice. For all appeals of planning commission decisions and all
other matters requiring public hearings by the city council, the city clerk shall
set dates for public hearings and give required notices. The date of the
hearings shall be not less than ten days nor more than forty-five days from
the time of the filing of such verified application or the adoption of a resolution
or the making of a motion to set the public hearing.
C. Notice —Generally. Notice of time and place of public hearings shall be given
in the following manner:
1. A notice of any public hearing upon a proposed amendment to this
title, or to the zoning map, shall be given by at least one publication in
a newspaper of general circulation in the city not less than ten days
before the date of the public hearing.
2. Notice of public hearing to consider a variance, conditional use permit,
planned development permit, or reclassification of any property shall
be given by mailing a written notice not less than ten days prior to the
date of such hearing to the applicant, and to owners of property within
a radius of three hundred feet of the exterior boundaries of the property
to be changed, using for this purpose the name and address of such
owners and properties, as shown on the latest adopted San Diego
County tax roll, and other persons on request.
3. In the event that the number of owners to whom notice may be sent
pursuant to this section is greater than one thousand, notice may be
given at least ten days prior to the hearing by either of the following
procedures:
a. By placing a display advertisement of at least one-fourth page in a
newspaper having general circulation within the area affected by
the proposed ordinance or amendment; or
b. By placing an insert with any generalized mailing sent by the city to
property owners in the area affected by the proposed ordinance or
amendment, such as billings for city services.
D. Notice —Additional Requirement for Conditional Use Permits for the Sale of
Alcoholic Beverages. In addition to notice required pursuant to this section,
written notice for a public hearing on a conditional use permit for the sale of
23
alcoholic beverages shall be provided as specified in Section 18.30.050 of
this title.
E. Notice —Required Wording. Such public notice of hearings on zone
reclassifications, amendments, variances, planned development permits, or
conditional use permits shall consist of the words "Notice of Proposed
Change of Zone Boundaries or Classification" or "Notice of Proposed
Variance," "Notice of Proposed Planned Development Permit," or "Notice of
Proposed conditional use permit," as the case may be, setting forth the
description of the property under consideration, the nature of the proposed
change or use, and the time and place at which the public hearing, or
hearings, on the matter will be held.
F. Hearing Rules. The planning commission may establish rules governing the
conduct of its proceedings.
G. Continuation of Hearing. If, for any reason, testimony on any case set for
public hearing cannot be completed on the date set for such hearing, the
person presiding at such public hearing may, before adjournment or recess
thereof, publicly announce the time and place at which the hearing will be
continued, and no further notice is required.
H. Testimony. A summary of all pertinent testimony offered at public hearings
held in connection with an application filed pursuant to this title and the
names of persons testifying shall be recorded and made a part of the
permanent files of the case.
Planning Commission Recommendation.
1. For applications requiring a final decision by the city council, the
planning commission shall first hold a public hearing on the matter. For
such hearing, the commission shall recommend to the city council
approval or denial of the request, including the reasons for the
recommendation.
2. Upon receipt of the recommendation from the planning commission,
the city council shall hold a public hearing.
3. The city council may approve, modify, or disapprove of the
recommendation of the planning commission; provided that any
modification of the proposed amendment by the city council not
previously considered by the planning commission during its hearing
shall first be referred to the planning commission for report and
recommendation, but the planning commission shall not be required to
hold a public hearing thereon. Failure of the planning commission to
report within forty days after the reference shall be deemed to be
approval of the proposed modification.
J. Hearing Body Decision. The hearing body responsible for making a final
determination on a matter pursuant to Section 18.12.020, be it the planning
24
commission or city council, shall announce its findings by formal resolution,
and said resolution shall recite, among other things, the facts and reasons
which, in the opinion of the hearing body, make the granting or denial of the
permit or action necessary to carry out the provisions and general purpose of
this title, and shall order that the permit or other action be granted, denied, or
modified subject to such conditions or limitations that it may impose.
K. Notice of Decision. Not later than seven days following the adoption of a
resolution ordering that a permit or other action be granted or denied, a copy
of said resolution shall be mailed to the applicant and to any other parties
requesting notice of the action. The resolution shall also be filed with the city
clerk.
L. Effective Date of Decision.
1. The decision of the planning commission shall become effective and
final thirty days following the adoption of the resolution, unless, within
such period of time, the applicant or other interested party files a
written letter of appeal. Within such thirty days, the planning
commission resolution shall be transmitted to the city council who may
set the matter for a public hearing.
2. If the appeal period is waived in accordance with Section
18.12.060(D), then the decision of the planning commission shall
become effective and final immediately upon adoption of the
resolution.
3. The decision of the city council shall become effective and final
immediately upon adoption of the resolution.
M. Refiling Procedure. Where an application has been denied by a hearing body
and that action has become final, no new application for substantially the
same request shall be accepted for a period of one year after the effective
date of the denial, unless that hearing body specifies in its decision that the
denial is without prejudice.
25
CITY OF NATIONAL CITY- DEVELOPMENT SERVICES DEPARTMENT
1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950
NOTICE OF PUBLIC HEARING
REVOCATION HEARING FOR CONDITIONAL USE PERMIT 2010-33 CUP
FOR LIVE ENTERTAINMENT AT AN EXISTING BAR/RESTAURANT
LOCATED AT 105 E. 8TH STREET.
CASE FILE NO.: 2013-11 R
APN: 556-332-20
The National City Planning Commission will hold a public hearing after the hour of 6:00 p.m.
Monday, June 17, 2013, in the City Council Chambers, Civic Center, 1243 National City
Boulevard, National City, California, on the proposed request. (Applicant: National City Police
Department)
The business located at 105 East 8th Street (McDini's) was approved for a Conditional Use
Permit (2011-33 CUP) to construct a 6-foot by 20-foot stage, with a 9-foot by 20-foot dance
area, and offer live entertainment and dancing from 6 p.m. to 1 a.m. Thursday through Sunday
in association with the existing bar/restaurant. Since approval of the CUP on February 21,
2012, the Police Department has alleged ongoing violations of Conditions of Approval
contained in City Council Resolution 2012-49, which approved the CUP. The Planning
Commission will determine whether any one of the facts, set forth in Section 18.12.110(H)(1)(a)
are present. If, as a result of the evidence produced at said hearing, the Commission determines
that any one of such facts are present, it shall revoke the Conditional Use Permit.
Information is available for review at the City's Planning Division, Civic Center. Members of the
public are invited to comment. Written comments should be received by the Planning Division
on or before 12:00 p.m., June 17, 2013, who can be contacted at 619-336-4310 or
plannincOnationalcityca.gov
If you challenge the nature of the proposed action in court, you may be limited to raising only
those issues you or someone else raised at the public hearing described in this notice, or in
written correspondence delivered to the Planning Commission at, or prior to, the public hearing.
NATIONAL CITY PLANNING DIVISION
Executive Director
26
RESOLUTION NO. 2012 — 49
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
APPROVING A CONDITIONAL USE PERMIT FOR LIVE ENTERTAINMENT
AT MCDINI'S BAR/RESTAURANT LOCATED AT 105 EAST 8TH STREET
WITH A ZONE VARIANCE FOR LESS THAN REQUIRED PARKING
WHEREAS, the Planning Commission considered a Conditional Use Permit for
Live Entertainment at McDini's Bar/Restaurant, located at 105 East 8th Street with a Zone
Variance for less than required parking at a duly advertised public hearings held on November 7
and December 5, 2011, at which time orat and documentary evidence was presented; and
WHEREAS, at said public hearing, the Planning Commission considered the staff
report contained in Case File No. 2010-33 CUP, maintained by the City and incorporated herein
by reference, along with evidence and testimony from said hearing; and
WHEREAS, the Planning Commission voted to approve the Conditional Use
Permit for Live Entertainment at McDini's Bar/Restaurant located at 105 East 8a' Street with a
Zone Variance for less than required parking by a unanimous vote in favor of approval; and
WHEREAS, a Notice of Determination was before the City Council on January
10, 2012, and a public hearing was set for February 7, 2012, and continued to February 21,
2012; and
WHEREAS, the City Council considered a Conditional Use Permit for Live
Entertainment at McDini's Bar/Restaurant, located at 105 East 8th Street, with a Zone Variance for
less than required parking at duly advertised public hearings held on February 7. and 21, 2012,
at which time oral and documentary evidence was presented; and
WHEREAS, at said public hearing, the City Council considered the staff report
contained in Case File No. 2010-33 CUP, maintained by the City and incorporated' herein by
reference along with evidence and testimony from said hearing; and
WHEREAS, this action is taken pursuant to all applicable procedures required by
state and City laws; and
WHEREAS, the action recited herein is found to be essential for the preservation
of public health, safety and general welfare.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
National City that the testimony and evidence presented to the City Council at the public
hearings held on February 7 and 21, 2012, support the following findings:
RECOMMENDED FINDINGS FOR APPROVAL
OF THE CONDITIONAL USE PERMIT
That the site for the proposed use is adequate in size and shape, since the addition of 835
square feet would be inside the existing building envelope and the extension of live
entertainment hours and the addition of dancing would occur inside the existing building.
27
Resolution No. 2012 49
February 21, 2012
Page Two
2. That the site has sufficient access to streets and highways that are adequate in width
and pavement type to carry the volume and type of traffic generated by the proposed
use, since the subsequent 84 additional average daily trips can easily be accommodated
by 8th Street, an arterial street.
3. That the proposed use will not have an adverse effect upon adjacent or abutting properties,
since the live entertainment and dancing activities would occur inside an existing building
previously devoted to similar uses. Also, conditions of approval controlling said activities on
site will reduce any potential for adverse effects.
RECOMMENDED FINDINGS FOR APPROVAL
OF THE ZONE VARIANCE
1. Because of special circumstances applicable to the property, including size and
surroundings, the strict application of Title 18 of the Municipal Code (Zoning) deprives such
property of privileges enjoyed by other properties in the vicinity and under the identical zone
classification, since the property is completely developed and cannot be modified to
construct additional parking, and since the building is not being expanded beyond the
existing envelope within which the expansion is proposed.
2. The requested Variance is subject to such conditions that will assure that the authorized
adjustment will not constitute a grant of special privileges inconsistent with the limitations
upon other properties in the vicinity and zone in which such property is situated, since there
are multiple businesses in the Downtown Specific Plan Area that have less than required
parking or no parking in some cases, and since the majority of area businesses are
closed in the evenings when the majority of the subject property's patrons are in
attendance, thus making nearby street parking spaces available.
3. The Variance does not authorize a use or activity which is not otherwise expressly
authorized by the zoning regulations governing the parcel of property, since the existing
bar/restaurant use is permitted in Downtown Specific Plan Development Zone 9.
BE IT FURTHER RESOLVED that the application for Conditional Use Permit is
approved subject to the following conditions:
GENERAL
1. This Conditional Use Permit authorizes an approximately 835 square -foot interior
addition, live entertainment, and dancing from 6 p.m. to 1 a.m., Thursday through
Sunday, and the construction of a 6-foot by 20-foot stage, with a 9-foot by 20-foot dance
area for the live entertainment. Except as required by conditions of approval, all plans
submitted for permits associated with the project shall conform to Exhibit A, Case File
No. 2010-33 CUP, dated September 1, 2011.
2. No live entertainment, dancing, or construction of any stage or dancing area may
commence until the stipulated judgment has been rescinded or modified appropriately so
as to allow for such activities. In the event that the stipulated judgment is modified to
allow for live entertainment, the following conditions shall apply:
28
Resolution No.. 2012 - 49
February 21, 2012
Page Three
a. If after 12 consecutive months there are no incidents, the parties agree to meet
to discuss whether the stipulated judgment should remain in place.
b. If any incidents involving calls for service involving any types of violence occur in
a 12 month period at McDini's, the areas adjacent to McDini's, at Big Bens or
Union Bank, or the McDint's parking lot, and the Police Department responds,
then McDini's agrees to penalties, as follows:
i. 1'incident: $1,000
ii. 2nd incident: $2,000
3b incident: $3,000
If an incident occurs that requires more law enforcement resources, the cost of
which exceeds the penalty, McDini's agrees to reimburse for the additional costs.
c. If four incidents occur within a 12 month period, then all live entertainment
immediately ceases and is suspended for 12 rnonths. This condition is separate
and additional to condition number 15 allowing for a revocation if there is a 10%
increase in calls for service between the hours of 5:00 p.m. and 3:00 a.m.
i. Applicant waives any right to an appeal for the imposition of a one year
suspension of operations based upon four incidents occurring during a 12
month period.
3. Within four (4) days of approval, pursuant to Fish and Game Code 711.4 and the California
Code of Regulations, Title 14, Section 753.5, the applicant shall pay all necessary
environmental filing fees to the San Diego County Clerk. Checks shall be made payable to
the County Clerk and submitted to the National City Planning Department.
4. This permit shall become null and void if not exercised within one year after adoption of the
Resolution of approval, unless extended according to procedures specified in Section
18.116.190 of the National City Municipal Code.
5. This permit shall expire if the use authorized by this Resolution is discontinued for a period
of 12 months or longer. This permit may also be revoked, pursuant to provisions of the
Land Use Code, if discontinued for any lesser period of time.
6. Before this Conditional Use Permit shall become effective, the applicant and the property
owner both shall sign and have notarized an Acceptance Form, provided by the Planning
Department, acknowledging and accepting all conditions imposed upon the approval of this
permit. Failure to return the signed and notarized Acceptance Form within 30 days of its
receipt shall automatically terminate the Conditional Use Permit. The applicant shall also
submit evidence to the satisfaction of the Planning Division that a Notice of Restriction on
Real Property is recorded with the County Recorder. The applicant shall pay necessary
recording fees to the County. The Notice of Restriction shall provide information that
conditions imposed by approval of the Conditional Use Permit are binding on all present or
29
Resolution No. 2012 — 49
February 21, 2012
Page Four
future interest holders or estate holders of the property. The Notice of Restriction shall be
approvedas to form by the City Attorney, and signed by the City Manager, or designee,
prior to recordation.
7. If approved, this Conditional Use Permit shall be subject to a six-month review in order to
guarantee compliance with Conditions of Approval, and to ensure no significant impacts to
area residents or uses have occurred. The CUP shall be reviewed every six months after
approval for a minimum of two years.
8. This Conditional Use Permit may be revoked if the operator is found to be in violation of
Conditions of Approval.
BUILDING
9. Plans submitted for construction shall comply with the 2010 editions of the California
Building, Electrical, Mechanical, Plumbing, Energy, Fire, Residential, and Green Codes.
FIRE
10. Plans submitted for construction shall comply with the 2010 edition of the California Fire
Code and the 2010 edition of National Fire Protection Agency ("NFPA").
. PLANNING
11. Live entertainment shall be limited to between the hours of 6 p.m. to 1 a.m., Thursday
through Sunday.
12. All operations and activities, including live entertainment, shall comply with Title 12 (Noise
Control) of the National City Municipal Code.
13. All doors shall remain dosed during any and all live entertainment events.
14, A uniformed professional guard service shall be hired and on the premises between the
hours of 6:00 p.m. and 2:00 a.m., on all nights live entertainment is provided. The guard
service shall patrol the outside of the premises as well as the inside, and shall prevent
any loitering and/or undesirable activity in the parking lot.
15. The Conditional Use Permit shall be subject to revocation by the Planning Commission if
the Chief of Police determines that the reinstatement of live entertainment has resulted
in or significantly contributed to a ten percent (10%) increase in the demand for police
services during the hours of 5:00 p.m. to 3:00 a.m. The demand for police services and
police enforcement activities in this immediate area will be reviewed quarterly.
a. An appeal may be heard before an independent arbitrator jointly selected, if the
parties agree. Applicant bears the costs of any arbitration proceeding.
30
Resolution No. 2012 — 49
February 21, 2012
Page Four
b. if the ruling is against Applicant, a letter shall be sent to the Department of
Alcoholic Beverage Control ("ABC") requesting modification of the ABC liquor
license to exclude live entertainment.
16. The Conditional Use Permit shall be subject to review by the Planning Commission one
year from the date of the Resolution approving said permit.
17. The premises and parking lot shall be maintained and adequate lighting provided at the
entrances, exits, and the parking lot during hours of operation. The parking lot lighting shall
be shielded and shall not overflow to adjacent properties. Graffiti shall be removed within
72 hours.
18. Signs shall be posted at each entrance to the applicant's premises prohibiting loitering on
or in front of the premises.
19. Permittee shall post signs, to be approved by the Planning Division, on the exterior building
walls in compliance with Chapter 10.30.070 of the National City Municipal Code. Said signs
shall not be less than 17 by 22 inches in size, with Lettering not less than one inch in height.
The signs shall read as follows:
It is unlawful to drink an alcoholic beverage or to possess an
open alcoholic beverage container in public or in a public parking
lot. NCMC 10.30.050 and 10.30.060.
20. A video surveillance system shall be installed to monitor activity throughout the project site.
Details for the system shall be shown on building permit (tenant improvement) plans and
shall be reviewed by and be acceptable to the Police Department
21. The property shall have a dumpster on site, which shall have a locking cover and gate.
Details for the dumpster shall be shown on building plans.
22. A minimum of three guards per live entertainment event shall be present as follows: The
guards/security must be licensed and certified: One armed guard (off duty police officer
or equivalent) and two other guards for the exterior; and one staff person for the
purposes of security shall be present inside. There will be a security guard present at
each point of entry/exit to the premises.
23_ A dress code shall be observed for live entertainment events as follows:
a. No ball caps.
b. No gang colors or attire.
c. No persons appearing intoxicated, inebriated, or appearing under the influence.
d. No weapons.
31
Resolution No. 2012- 49
February 21, 2012
Page Five
POLICE
24. Permittee shall comply with all regulatory provisions of the Business and Professions
Code that pertain to the sale, display and marketing or merchandising of alcoholic
beverages or to live entertainment.
BE IT FURTHER RESOLVED that copies of this Resolution shall be transmitted
forthwith to the applicant.
BE IT FURTHER RESOLVED that this Resolution shall become effective and final on
the day following the City Council meeting where the Resolution is adopted. The time within which
judicial review of this decision may be sought is governed by the provisions of Code of Civil Procedure
Section 1094.6.
PASSED and ADOPTED this 21st day of Februa012.
ATTEST:
Michael R. Della, City Clerk
A'' OVED AS TO FORM:
a Silva
City Attomey
n Morrison, Mayor
32
Passed and adopted by the Council of the City of National City, California, on February
21, 2012 by the following vote, to -wit:
Ayes: Councilmernbers Morrison, Natividad, Rios, Sotelo-Solis, Zarate.
Nays: None,
Absent: None.
Abstain: None.
AUTHENTICATED BY: RON MORRISON
Mayor of the City of National City, California
MICHAEL R, DALLA
City Clerk of the City of National City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 2012-49 of the City of National City, California, passed and adopted
by the Council of said City on February 21, 2012.
City C rk of the City National City, California
By:
Deputy
33
CITY OF NATIONAL CITY PLANNING DEPARTMENT
1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950
(619) 336-4310 (619) 336-4321 (FAx)
NOTICE OF VIOLATION
February 26, 2013
Adler Family Trust, Ben and Charleton Adler
105 East 8th Street
National City, CA 91950
Dear Property Owner,
This is a NOTICE that you are in violation of your 'Conditional Use Permit (2010-33 CUP), specifically
the Conditions of Approval contained in Citi Council Resolution 2012-49 (attac ed), dated
February 21, 2012. Condition number 16 of said resolution states that the Conditional Use Permit
shall be subject to review by the Planning Commission one year from the date of the Resolution
approving said permit. In anticipation of this review the Police Department (NCPD) h s provided
information related to police activity conducted ih association with McDini's Bar/Restau ant for the
preceding year (attached).
The specific Condition that you are in violation of is number 2, which read as follows:
2. No live entertainment, dancing, or construction of any stage or dancing area may
commence until the stipulated judgment has been rescinded or modified appropriately
so as to allow for such activities. In the event that the stipulated judgment is modified to
allow for live entertainment, the following conditions shall apply:
a. If after 12 consecutive months there are no incidents, the parties agree to meet to
discuss whether the stipulated judgment should remain in place.
b. If any incidents involving calls for 'service involving any types of violenc occur in a
12 month period (at McDini's, the areas adjacent to McDini's, at Big Be s or Union
Bank, or the McDini's parking Ibt) and the Police Department res onds then
McDini's agrees to penalties, as follows:
i. 1st incident: $1,000
ii. 2nd incident: $2,000
iii. 3rd incident: $3,000
If an incident occurs that requires more law enforcement resources, he cost of
which exceeds the penalty, McDini's agrees to reimburse for the additional costs.
McDini's Notice of Violation 12/26/113 1 Page 3
34
c. If 4 incidents occur within a 12 month period, then all live en ertainment
immediately ceases and is suspended for 12 months. This condition is s parate and
additional to condition number 15 allowing for a revocation if the is a 10%
increase in calls for service between the hours of 5:00 p.m. and 3:00 a.m
i. Applicant waives any right to an appeal for the imposition of one year
suspension of operations basted upon 4 incidents occurring during 12 month
period. i
According to information provided by the Police Department there have been at least 12 calls for
service between the dates of February 22, 2012 And January 31, 2013 of a serious nature. Three (3)
of these incidents were of a violent nature and would thus be subject to fines pursuant to condition
no. 2 (b) of City Council Resolution 2012-49. Accc rding to the fine structure in this condition, a total
of $6,000 worth of penalties is due to the City.
A review of your Conditional Use Permit will be considered at the National Ciiy Planning
Commission hearing of March 4, 2013. You are epcouraged to attend. A presentation will be made
at that time by City staff on activities related to McDini's Bar/Restaurant in the past 12 rronths.
The enclosed notice has been mailed to you by certified mail and first-class mail. Receip constitutes
service of notice. The $6,000 in penalties must be paid within thirty days (March 24, 2013).
If you have any questions, please contact Assistant Planner Martin Reeder at (619) 336-4313
Sincerely,
MARTIN REEDER, AICP
Assistant Planner
Attachments: City Council Resolution 2012-491
NCPD incident report
McDini's Notice of Violation 12/26/13 I Page 3
35
^-: 6AttRO`RN�RIA.._..
1e Ot 4ii.
Public Hearing
Revocation hearing of
2010-33 CUP for live entertainment
at McDini's located at 105 E. 8th St.
2013-11 R
History:
➢ Type 47 alcohol license (On -Sale General Eating Place).
> Non -conforming.
> CUP-1986-10 extended alcohol sales hours
> 2009-10 CUP requested extended live entertainment
hours, dance floor, stage — denied.
➢ Partial approval of expansion, exception for parking.
➢ 2010 - stipulated judgment barred all live entertainment.
> 2010-33 CUP permitted live entertainment again.
Previous
Action:
> City Council Resolution 2012-49 for 2010-33 CUP
required annual review.
D March 4, 2013 — PD presentation on activities at McDini's
Bar/Restaurant within previous months.
> Commission set revocation hearing for June 17, 2013.
New info:
> PD report alleges multiple incidents between February
2012 and May 2013 .
> Staff issued Notice of Violation per stipulated judgment.
> $6,000 in fines be paid within 30 days.
>Despite 30-day extension — no fines yet paid.
➢ McDini's asked to provide food/beverage statement per
1986 approval.
➢Alcohol sales to be Tess than 50% (incidental).
➢ Statement showed 50% (not incidental) — audit yet to
be conducted.
1
Hearing:
➢ Opportunity for PD to present facts to support
revocation.
➢ Opportunity for CUP holder to respond to allegations
and present evidence.
➢ Public hearing held pursuant to 18.12.050
➢ Presentation - response - public comment.
➢ Formal rules of evidence do not apply.
➢ Commission acting in quasi-judicial capacity -
determine if facts are present.
➢ If facts determined - revoke CUP.
Hearing:
➢ Findings [per Section 18.12.110(H)(1)(a)]:
➢ ii. That the conditional use permit is being exercised
in a manner contrary to any law or condition of
approval imposed upon such conditional use permit;
or
➢ iii. That any use or uses pursuant to such
conditional use permit is being, or has been,
exercised in a manner detrimental to public peace,
health, safety, or welfare, or in a manner to
constitute a public nuisance.
➢ Once all information presented, finding needs to be
made for each individual violation, if facts found.
2
Planning Commission Hearing
June 17, 2013
What type of ABC license does
McDini's have?
• McDini's currently has a Type 47 ABC license
(since 2008).
➢Why is this important?
>What does it mean?
Why are we here?
(This isn't the first time)
>Blatant disregard for state and municipal
ordinances.
➢Disregard for public safety.
>Broken promises.
>Failure to manage a restaurant within
prescribed guidelines.
What is a Type 47 ABC license?
> On sale general — eating place -(restaurant).
> Sale of beer, wine and distilled spirits for consumption on the
licenses premises.
➢ Sale of beer and wine for consumption off the licensee's premises.
➢ Must operate and maintain the licensed premises as a bona fide
eating place.
S. Must maintain suitable ldtchen facilities,
➢ Must make actual and substantial sales from meals for consumption
on the premises.
➢ Minors are allowed on the premises.
8/12/2013
1
Examples of Type 47 ABC licensed
establishments
OUTBACK
• Bona fide eating establishments. They have substantial
sales from meals for consumption on their premises.
Mr. Adler's own words to the Planning
Commission on August 17, 2009
•...As opposed to making more of an entertainment venue, the actual
surprise here is, aside from the entertainment that is already in place, we
want to make it more into a coffee shop and a diner."
-"...We're not going after any bars per se. We don't even want to be
considered a bar. If I hear that word, it's a three letter word that I can't
stand..."
"...So I'm going to be really honest with everybody bere...I'm going to
take responsibility personally for the last 37 years of everything that's
happened in that block...I'm going to take all the responsbiility...because
in 37 years, what I should have done, is I should have stood up and I
should have called the police. I should have said, hey, the guys vomiting
here, the guys urinating here, they're breaking windows, they're making
a mess. Do something about it. I never did. But I'm going to take
responsibility..."
8/12/2013
Mr. Adler's own words to tie -arming
Commission on August 17, 2009
• "...Furthermore, if I see this stuff happen again, I'm the business
manager at McDini's, my son is the owner...If there is any problems
there, I'll shut the place down myself. I'm not going to let this place
get out of hand. What I saw in 37 years is not going to come back..."
• "...This is going to be a great family facility. It's going to be for kids. ,.
You can bring your grandchildren there, your grandmother, your ma`s'
wife, your spouse, your girlfriend, whatever. Everyone is going to be
welcome there...If I find something I don't like, I'll shut it down
immediately. Because as much as we want to make money, we
respect the police department..."
2
In reference to adding a dance floor...
"We're actually proposing a small area, maybe 18 ft xi8 ft
that fits 20 people." — Mr. Ben Adler (o8/17/2oo9)
Baoebook phoW far'Bar toy' posted on April to, xot3
8/12/2013
3
8/12/2013
• No mention of cuisine
on the advertisements.
• Names the premises as
a "bar" or a
"nightclub." No
mention of a restaurant
on the advertisements.
4
• •s+P= btuzrtt,
pr IG5111: i ti:'N t Nb'-:,,,71
3R9103 Fii1911i P,PP.II 19, 9913
8/12/2013
5
8/12/2013
ac9 A,�vj za^A1A . not ,Pas, rtR I4)Y1T]1H6
McDini's has conditions with the
Type 47 ABC license
➢ Alcoholic beverage sales shall be incidental to food
service.
> No dancing shall be permitted on the premises.
➢ Live entertainment shall be permitted only on
Thursdays, Fridays, and Saturdays until midnight (12:00
midnight).
> Operation of the licensed premises shall at all times be in
accordance with National City Council Resolution
Number 15,121.
6
What is a Type 48 ABC license?
> "ON SALE GENERAL — PUBLIC PREMISES (Bar,
Nightclub):
➢ This is not a restaurant... Authorizes the sale of beer,
wine and distilled spirits for consumption on the
premises where sold.
> Authorizes the sale of beer and wine for consumption
off the premises where sold.
> Food service is not required.
➢ Minors are not allowed to enter and remain (exception
for musicians).
Why Is All This Important?
Because we have been in this situation
before!
➢McDini's was closed by order of the San Diego
Superior Court in 2010.
>Why?
➢Violations of ABC conditions on their license.
➢Violations of their conditional use permit.
> Being a danger to the public.
> Being a public nuisance.
Violations of the conditions on
McDini's ABC license:
➢In 2009, NCPD received complaints about violations of
McDini's ABC conditions.
>NCPD conducted three undercover operations confirming the
violations. These violations included:
Dancing during two of the operations.
➢ Live entertainment after the designated hours and on days
when live entertainment is not permitted.
Three cases were submitted to ABC.
>ABC's actions against McDini's resulted in a fine against
McDini's of $3,00o in lieu of having their ABC license
suspended.
8/12/2013
7
A danger to the public...
• Construction issues prior to obtaining a new C.U.P.
o Load bearing walls removed without proper engineering and
permits.
• Failure to comply with Fire Marshal regulations.
• Failing to install a sprinkler system when mandated.
• Overcapacity during entertainment events.
• Lack of qualified security
• Guards were untrained.
• Guards were not licensed or permitted.
• Another violation of the law.
• Creating an environment that promotes violence.
• Telling victims/witnesses not to call the police.
• Intimidating neighbors.
ABC's response to the "public
nuisance letter:"
• ABC sent a "2420o B&P letter" to the Adlers.
8/12/2013
A Public Nuisance
> December 2009: NCPD submitted a letter to ABC
notifying them that McDini's constituted a "public
nuisance" for the following reasons:
➢ Excessive calls for service.
> Non-compliance with ABC conditions.
➢ Inadequate security.
➢ Security guards not properly permitted/licensed.
➢ Complaints from neighbors.
> Non-compliance with the existing C.U.P.
Violations of their Conditional
Use Permit
• The Adler's violations of the C.U.P. are what
eventually closed McDini's down.
. In March, 2oto, the City obtained a court injunction by
the San Diego Superior Court to close McDini's.
• The violations included but were not limited to:
▪ Starting construction without permits under a new
C.U.P., improper engineering for ongoing construction.
• Failing to install fire sprinklers and have the system
inspected by the Fire Marshal.
8
Proactive measures by the City and
Police Department to no avail in
correcting the problem
➢The Police Department met with the Adlers in 2008 and explained
what being a responsible ABC License holder entailed.
➢November 4, 2009, City Manager Chris Zapata organized a meeting
with the Adlers and their representation to address problems.
>On November 24, 2009, Ben Adler, Victor Gonzalez (head of
McDini's security), Jodi Doucette (Asst. City Attorney) and Sgt. Young
met to further address the problems at McDini's.
Here we are again
➢We have the same issues
➢We have the same owners
>We have the same complaints from
neighbors
➢We have a different C.U.P. that gave the Adlers
and McDini's more activities, yet the problems
are the same...
Proactive measures by the City and
Police Department to no avail in
correcting the problem
>On December 5, 2009, Ben Adler (McDini's owner), Arthur Sloan
(Attorney for McDini's), Jodi Doucette (Asst. City Attorney), Chief
Adolfo Gonzales (NCPD Chief), and Sgt. Young met again after
receiving further complaints from neighbors.
➢Attorney Arthur Sloan told the Adlers, "they had to stop this
activity because in court their actions were indefensible from his
stand point."
New resolution to the C.U.P.
conditions:
• "If any incidents involving calls for service involving any
types of violence occur in a 12 month period at McDini's
or adjacent areas and the police department
responds...McDini's agrees to penalties:"
1st incident = $1,000
2nd incident = $2,000
3'd incident = $3,000
• There were FOUR violent incidents at McDini's from
March 14, 2012 through March 14, 2013.
8/12/2013
9
Incident #1
Saturday, October 20, 2012 - 1:30am
• NCPD Case #1206322 - Felony Battery
• A male victim was punched in the face two times in the
parking lot of McDini's at about 1:30am by a male
suspect.
Victim suffered a fractured jaw which required surgery.
The sole McDini's security guard working when the
incident occurred said he did not see the fight. He also
said he was the only security guard working on Sat., Oct.
20, 2012.
Incident #3
Sunday night to Monday morning, January
20/21, 2013 - 00:00-1:00am
• NCPD Case #1300451 - Felony Battery
• A male victim was punched in the face just
outside the bar shortly after midnight by another
male suspect.
• The victim suffered a fractured cheekbone.
Incident #2
Friday, December 21, 2012 - 2:03am
• NCPD Case #1207728 — Assault w/ Deadly
Weapon
• A female victim was struck with a bottle after a
fight ensued between bar patrons and bar
security just outside the bar.
Incident #4
Thursday night, March 14, 2013 - 9:27pm
• NCPD lase #1301677 - Felony Battery
• Call came into the Police Department as a "911 hang up."
• Officers arrived and found a security guard with a head injury
being tended to by bar a employee in the back office.
• Officers learned a male patron beat and kicked the security
guard inside the bar. The security guard lost consciousness
during the beating.
• Someone attempted to clean up blood at the crime scene before
officers arrived.
• Victim was transported to the hospital and was admitted
overnight for a head injury.
• Officers spoke to a female bartender who said she
called 911, but was instructed by her manager to hang
up the phone and NOT contact police.
8/12/2013
10
New Resolution to the C.U.P.
conditions:
• "If four incidents occur within a 12 month period,
then all live entertainment immediately ceases and
is suspended for 12 months."
NCPD responded to 28 incidents over the course of 12
months (Feb. 22, 2012 to Feb. 21, 2013).
• Resulted in six (6) crime cases and two (2) arrests.
• There were four incidents involving violence from March
14, 2012 to March 14, 2013.
• So far from Jan. 1, 2013 through June 16, 2013, NCPD has
responded to 21 incidents at McDini's
New Resolution to the C.U.P.
conditions:
• "A11 doors shall remain closed during any and
all live entertainment events."
• Doors were observed open by NCPD officers:
• Sunday, February 23, 2013, at o0:10 am
• South door left open.
▪ Thursday, March 14, 2013, at 11:45 pm
• North and south door left open.
" Friday, April 5, 2013, at 10:05 pm
• South door left open
New Resolution to the C.U.P.
conditions (Calls for Service):
"The Conditional Use Permit shall be subject to revocation by
the Planning Commission if the Chief of Police determines that
the reinstatement of live entertainment has resulted in or
significantly contributed to a ten percent (io%) increase in the
demand for police services during the hours of 5: oopm and
3:ooam."
▪ 2011- NCPD responded to two (2) incidents.
• 2012 - NCPD responded to seventeen (17) incidents
• 75O% increase over 2011 in calls for service.
• 2013 — Jan 1st to June 16, 2013 — NCPD responded to
twelve (18) incidents from 5pm - 3am.
• Estimated NCPD will respond to over forty-five (451
incidents in 2013.... 265% increase over 2012.
New Resolution to the C.U.P.
conditions: Security
• "Uniformed professional guard service shall be hired and on the
premises between the hours of 6:oopm and 2:ooam, on all nights
live entertainment is provided."
• "The guard service shall patrol the outside of the premises as well
as the inside, and shall prevent any loitering and/or undesirable
activity in the parking lot."
• "In addition, a minimum of three guards per live event shall be
present as follows: The guards/security must be licensed and
certified."
"One armed guard (off duty police officer or equivalent) and two
other security guards for the exterior; and one staff person for the
purposes of security shall be present inside."
• °There will be a security guard present at each point of entry/exit to
the premises."
8/12/2013
11
Guard Service violations
• Friday, December 21, 2012 - 2:o3am
• Assault with deadly weapon call. The two security
guards working at the time did not possess State of
CA "guard cards."
• Friday, December 28, 2012 - 1:42am
• A security guard "pepper sprayed" a patron outside
the bar. The security guard did not have a State of CA
"guard card" and was a FELON. The guard was
arrested for being a felon is possession of tear gas and
booked into countyjail.
Thursday, February 14, 2013—11:55Pm
• NCPD found only one uniformed security guard
working while live music was being played. The
guard did not have a State of CA "guard card." He
also stated he worked for and was paid by the owner
of the bar.
Dress Code
• A dress code shall be observed for live
entertainment events:
• No ball caps
• No gang colors or attire
• No persons appearing intoxicated, inebriated, or
appearing under the influence
• No weapons
Guard Service violations
• Friday, February 15, 2013—11:55Pm
^ NCPD found only two uniformed security officers
working while live music was being played. The
guards stated they worked for and were paid directly
by the owner of the bar.
• Thursday, March 14, 2013—11:45Pm
• 911 hang up call that ended up being a felony battery.
The only security guard working was the victim of the
felony battery. The security guard did not have a
State of CA "guard card." In addition, the victim
security guard had a felony warrant.
Saturday, March 16, 2013—11:1opm
• NCPD officers contacted two security guards at the
bar. Once of the guards did not have a State of CA
"guard card." The other's guard card was "cancelled"
by the State of CA
Dress Code violations
VIOLATIONS:
• Saturday, February 16, 2023 - 11:o7pm
• NCPD officer saw three males wearing baseball caps being
allowed into the bar while a DJ played music inside.
• Saturday, February 23, 2013 - 11:55pm to 1:45am
• NCPD officers saw numerous males wearing motorcycle club
"colors" (motorcycle vests with logos) and baseball hats being
allowed into the bar while a DJ played music inside.
• Sunday, March 31, so13 - 12:55am
• NCPD officers saw a male enter the bar wearing a baseball cap
while a DJ was playing music inside.
• inside.
Sunday, April 28, 2013 - 1:39 am
• NCPD officer saw a subjects exiting the bar wearing baseball
caps.
8/12/2013
12
Other issues
• March 10, 2013— 1:59am
Officers investigated a 91.1 call of a possible fight
inside or outside the bar. Officers did not locate a
fight, but located two intoxicated underage females
(ages 18 and 19) exiting the bar. Both females were
wearing orange wristbands issued by the bar allowing
them to drink alcohol.
▪ Both females admitted to drinking alcoholic
beverages in the bar and said there were regular
patrons.
• The wrist bands were impounded at NCPD and the
females were taken to their homes and dropped off.
Calls for service relate
McDini's vs.
Trophy Lounge a Stoney's
• January 1, 2013 through June 1.6, 2013
• McDini's = 21 calls for service.
o Trophy Lounge = call for service.
• Stoney's = 6 calls for service.
8/12/2013
13
RESOLUTION NO. 14-2013
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF NATIONAL CITY, CALIFORNIA,
REVOKING CONDITIONAL USE PERMIT 2010-33 CUP
FOR LIVE ENTERTAINMENT AT AN EXISTING BAR/RESTAURANT
LOCATED AT 105 E. 8TH STREET.
CASE FILE NO. 2013-11 R
APN: 556-332-20
WHEREAS, the Planning Commission of the City of National City considered the
revocation of Conditional Use Permit No. 2010-33 CUP, which authorized live
entertainment at an existing bar/restaurant located at 105 East 8th Street ("McDini's"), at
a duly advertised public hearing held on June 17, 2013, ("the Public Hearing") at which
time oral and documentary evidence was presented; and,
WHEREAS, at the Public Hearing the Planning Commission considered the staff
report contained in Case File No. 2013-11 R maintained by the City and incorporated
herein by reference along with evidence and testimony at said hearing; and,
WHEREAS, at the Public Hearing the Planning Commission also received
documentary and testimonial evidence from the owners/operators of McDini's, Benny
Charlton Adler; and,
WHEREAS, at the Public Hearing the Planning Commission also received
comment from members of the public; and,
WHEREAS, this action is taken pursuant to all applicable procedures required by
State law and City law; and,
WHEREAS, the action recited herein is found to be essential for the preservation
of public health, safety, and general welfare.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City
of National City, California, that the testimony and evidence presented to the Planning
Commission at the Public Hearing held on June 17, 2013 support the following findings:
1. That based on the fact that the National City Police Department responded to 28
incidents at McDini's Bar, 105 E. 8th Street, National City, between February 22,
2012 to February 21, 2013, as further detailed in Police Department memorandum
dated May 20, 2013, which facts are incorporated into these findings, the owner
and/or operator of McDini's is in violation of Condition of Approval number 2,
section a, of City Council Resolution 2012-49.
2. That based on the fact that the National City Police Department responded to 6
incidents involving violence at McDini's Bar, 105 E. 8th Street, National City,
between May 11, 2012 to May 11, 2013, as further detailed in Police Department
memorandum dated May 20, 2013, which facts are incorporated into these
52
findings, the owner and/or operator of McDini's is in violation of Condition of
Approval number 2, section b, of City Council Resolution 2012-49.
3. That based on the fact that the National City Police Department responded to 28
incidents between February 22, 2012 to February 21, 2013, and 6 incidents
involving violence between May 11, 2012 to May 11, 2013 at McDini's Bar, 105 E.
8th Street, National City, as further detailed in Police Department memorandum
dated May 20, 2013, which facts are incorporated into these findings, the owner
and/or operator of McDini's is in violation of Condition of Approval number 2,
section c, of City Council Resolution 2012-49.
4. That based on the fact that the National City Police Department observed — on
three separate occasions from February 23, 2013 to April 5, 2013 — exterior doors
left open for extended periods of time during live entertainment activities, as further
detailed in Police Department memorandum dated May 20, 2013, which facts are
incorporated into these findings, the owner and/or operator of McDini's is in
violation of Condition of Approval numberl3 of City Council Resolution 2012-49.
5. That based on the fact that the National City Police Department observed — on four
separate occasions from December 20, 2012 to March 14, 2013 that McDini's
security officers were found not to be professional (licensed) security guards; and
that on February 15, 2013, only two licensed guards were on duty when a
minimum of three were required, as further detailed in Police Department
memorandum dated May 20, 2013, which facts are incorporated into these
findings, the owner and/or operator of McDini's is in violation of Condition of
Approval number 14 of City Council Resolution 2012-49.
6. That based on the fact that the National City Police Department responded to 17
incidents at McDini's Bar, 105 E. 8th Street, National City, between the hours of
5:00 p.m. and 3:00 a.m. during the 2012 calendar year, an increase in calls for
service of 750%, as further detailed in Police Department memorandum dated
May 20, 2013, which facts are incorporated into these findings, the owner and/or
operator of McDini's is in violation of Condition of Approval number 15 of City
Council Resolution 2012-49.
7. That based on the fact that the National City Police Department observed — on four
separate occasions from February 16, 2013 to April 28, 2013 — McDini's patrons
wearing ball caps, as further detailed in Police Department memorandum dated
May 20, 2013, which facts are incorporated into these findings, the owner and/or
operator of McDini's is in violation of Condition of Approval number 23 of City
Council Resolution 2012-49.
BE IT FURTHER RESOLVED that, based on findings 1 through 7 above, the
Planning Commission finds that the use authorized by Conditional Use Permit No. 2010-
33 CUP has been exercised in a manner contrary to the conditions of approval; and that
the use has been exercised in a manner detrimental to the public health, safety and
welfare.
53
BE IT FURTHER RESOLVED that, pursuant to Municipal Code Section
18.12.110 (H)(1)(b), the Planning Commission hereby revokes Conditional Use Permit
2010-33 CUP.
BE IT FURTHER RESOLVED that copies of this Resolution be transmitted
forthwith to the owners/operators of McDini's and to the City Council.
BE IT FINALLY RESOLVED that this Resolution shall become effective and final
thirty days following the date that the Planning Commission resolution is adopted,
unless, within such period of time, the applicant or other interested party files a written
letter of appeal with the Planning Department requesting an appeal before the City
Council. The time within which judicial review of this decision may be sought is
governed by the provisions of Code of Civil Procedures Section 1094.6.
CERTIFICATION:
This certifies that the Resolution was adopted by the Planning Commission at their
meeting of July 1, 2013, by the following vote:
AYES: Pruitt, Baca, Flores, Alvarado, Bush
NAYS: None
ABSENT: Garcia
ABSTAIN: DeLaPaz
cfV4,
CHAIRPERSON
54
Punning Comm ission
Minutes
Meeting of June 17, 2013
6:00 P.M. to 8:03 P.M.
City Council Chambers, Civic Center
1243 National City Boulevard
National City, CA 91950
These minutes have been abbreviated. Video recordings of the full proceedings are on file
and available to the public.
Agenda Items
The meeting was called to order by Chairwoman Flores at 6:00 p.m.
Roll Call
Commissioners Present: Garcia, Baca, Pruitt, Flores, Alvarado, Bush
Commissioner Absent: DeLaPaz
Also Present: Deputy City Attorney Jennifer Knight, Executive Director Brad Raulston,
Assistant Planner Martin Reeder, NC Police Chief Manuel Rodriguez, Lt. Robert
Rounds-NCPD, Sgt. Graham Young-NCPD
Pledge of Allegiance by Commissioner Bush.
Approval of Minutes
1. Approval of Minutes of the Meeting held on May 20, 2013.
Motion by Baca, 2nd by Alvarado to approve the Minutes from the meeting of
May 20, 2013.
Motion carried by the following vote:
Ayes: Garcia, Baca, Pruitt, Flores, Alvarado, Bush
Absent: DeLaPaz
Planning Commission Meeting Minutes June 17, 2013
Page 1 of 3
55
Approval of Agenda
2. Approval of Agenda for the Meeting on June 17, 2013.
Motion by Pruitt, 2°d by Baca to approve the Agenda for the meeting on June 17,
2013.
Motion carried by the following vote:
Ayes: Garcia, Baca, Pruitt, Flores, Alvarado, Bush
Absent: DeLaPaz
ORAL COMMUNICATION
None
PRESENTATIONS
None
PUBLIC HFARINGS
3. Public Hearing — To consider revocation of Conditional Use Permit 2010-33 CUP for Live
Entertainment at an existing bar/restaurant located at 105 E 811 Street (Case File No. 2013-11
R).
Presentation by Assistant Planner Martin Reeder
Presentation by Sgt. Graham Young and Lt. Robert Rounds of NCPD
Business owners/operators Ben and Charlton Adler responded to staff presentations.
Commissioners Baca, Bush, Pruitt, Alvarado, and Garcia commented on alleged activities and
expressed disappointment and that the CUP should be revoked.
Jack Armstrong of 801 National City Blvd. commented that there was noise late at nights,
usually Thursday through Saturday.
Closing remarks by Ben Adler
Motion by Bush, 2nd by Pruitt to close the Public Hearing. Assistant Planner
Reeder confirmed that staff was to return to the Commission with a Resolution
revoking the CUP.
Motion carried by the following vote:
Ayes: Garda, Baca, Pruitt, Flores, Alvarado, Bush
Absent: DeLaPaz
Planning Commission Meeting Minutes June 17, 2013
Page 2 of 3
56
4. Code Amendment initiation — Proposed Code Amendment of sections 18.30.360 and 18.41.010
(c) (2) of the Land Use Code related to fast food restaurant locational requirements and drive
through restaurant design guidelines (Case File No. 2013-12 A)
Presentation by Assistant Planner Martin Reeder.
Comments by Applicant Tom Gotfredson. Mr. Gotfredson understands and agrees with the
requirements as presented.
Commissioners asked about scope of Code Amendment and effect on certain properties.
Motion by Baca, 2nd by Alvarado to initiate Proposed Code Amendment of sections
18.30.360 and 18.41.010 (c) (2) of the Land Use Code related to fast food restaurant locational
requirements and drive through restaurant design guidelines.
Motion carried by the following vote:
Ayes: Garcia, Baca, Pruitt, Flores, Alvarado, Bush
Absent: DeLaPaz
OTHER BUSINESS -
None
STAFF REPORTS
Deputy City Attorney — None
Commissioners
Baca — Butterfly Park is looking good
Flores — Welcome to former Commissioner Vince Reynolds for attending the
meeting
Pruitt —None
Bush — None
Garcia — None
Alvarado — None
Executive Director — SANDAG was scheduled to attend the meeting to present a
Comprehensive Update, however will be rescheduled to a future meeting.
Also a presentation on Series 13 Population Growth
Adjournment at 8:03 p.m. to next regularly scheduled meeting on July 1, 2013.
CHAIRPERSON
Planning Commission Meeting Minutes June 17, 2013
Page 3of3
57
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE:
August 20, 2013 AGENDA ITEM NO. 15
ITEM TITLE:
An Ordinance of the City Council of the City of National City amending Chapter 1.08 of the National
City Municipal Code pertaining to Official City Seals, Logos, Insignias, Badges, and Names
PREPARED BY: Claudia Gacitua Silva
PHONE: Ext. 4222
EXPLANATION:
DEPARTMENT:
APPROVED BY:
ttorney
Chapter 1.08 of the National City Municipal Code requires an amendment to inclu►e the ame of the
Successor Agency to the Community Development Commission as the National Cit ' -.evelopment
Agency, and the additional badges designed for the Police and Fire personnel for the City's 125th
Anniversary.
FINANCIAL STATEMENT: APPROVED:
ACCOUNT NO. APPROVED:
N/A
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
X
Finance
MIS
STAFF RECOMMENDATION:
Adopt ordinance.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
Proposed ordinance.
follows:
ORDINANCE NO. 2013 — 2382
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY AMENDING
CHAPTER 1.08 OF THE NATIONAL CITY MUNICIPAL CODE
PERTAINING TO OFFICIAL CITY SEALS, LOGOS,
INSIGNIAS, BADGES, AND NAMES
BE IT ORDAINED by the City Council of the City of National City as
Section 1. Title 1.08 of the National City Municipal Code is hereby amended
by amending the Table of Contents to read as follows:
Sections:
1.08.010
1.08.020
1.08.030
1.08.040
1.08.050
1.08.060
1.08.065
1.08.070
1.08.080
1.08.090
1.08.100
Chapter 1.08
OFFICIAL CITY SEALS, LOGOS, INSIGNIAS, BADGES AND NAMES
City Seal.
City Insignia.
City Logo.
City Logo.
Official City Name Adopted.
Official Community Development Commission of the City of National City
Name Adopted.
Official Successor Agency to the Community Development Commission as
the National City Redevelopment Agency Name Adopted.
Police Department Badges.
Fire Department Badges.
Fire Department Logo.
Violations of Public Usage Without Permission.
Section 2. That Chapter 1.08 is amended by adding Section 1.08.065 to read
as follows:
1.08.065 Official Successor Agency to the Community Development
Commission as the National City Redevelopment Agency Name Adopted. The official
name for the Successor Agency to the Community Development Commission as the
National City Redevelopment Agency shall be the "Successor Agency to the Community
Development Commission as the National City Redevelopment Agency", and hereby
constitutes and is adopted as the official name for the Successor Agency to the
Community Development Commission as the National City Redevelopment Agency. The
name "Successor Agency" shall also constitute a secondary official name for the
Successor Agency to the Community Development Commission as the National City
Redevelopment Agency.
Section 3. That Chapter 1.08 is amended
1.08.080 to read as follows:
1.08.070 Police Department Badges.
inscriptions thereupon constitute and are adopted
Department of the City.
by amending Sections 1.08.070 and
The following symbols with the
as the official badges of the Police
1.08.080 Fire Department Badges. The following symbols with the
inscriptions thereupon constitute and are adopted as the official badges of the Fire
Department of the City.
PASSED and ADOPTED this 20th day of August, 2013.
ATTEST:
Michael R. Della, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
Ordinance 2013 — 2382
Ron Morrison, Mayor
2 Amending NCMC 1.08
Logos, Insignias, Names, Badges
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO.16
ITEM TITLE:
Resolution of the City Council of the City of National City approving the updated Sewer System
Management Plan (SSMP), as required by State Water Resources Control Board Order No. 2006-
0003-DWQ.
PREPARED BY: Joe Smith
PHONE: 336-4587
EXPLANATION:
See attached explanation.
DEPARTMENT: Public Wo .s
APPROVED BY:
FINANCIAL STATEMENT:
ACCOUNT NO. N/A
There is no financial impact to the City
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
Hold the public hearing
BOARD / COMMISSION RECOMMENDATION:
ATTACHMENTS:
Explanation
Sewer System Management Plan is on file in the City Clerks office
Staff Recommendation
Staff is recommending the City Council of the City of National City approve the updated Sewer
System Management Plan as requested by the State Water Resources Control Board Order No.
2006-0003-DWQ which requires recertification by the governing board of the Enrollee when
significant changes to the SSMP are made.
Explanation
The City of National City owns, operates and maintains a sanitary sewer collection system that
conveys wastewater from all properties within the City to the Point Loma Wastewater Treatment
Plant. Like all other participating agencies that operate their own sanitary sewer collection
systems, the National City is required to take a variety of steps to prevent overflows from their
sanitary sewer collection system. The actions taken to prevent and respond to sanitary sewer
overflows (SSO) are detailed in the Sewer System Management Plan (SSMP) which is a
document required by the State of California. The State regulations require the development
and implementation of an SSMP include State Water Resources Control Board (SWRCB) Order
No. 2006-0003-DWQ, San Diego Regional Water Quality Control Board (RWQCB) Order No.
R9-2007-0005, and SWRCB Order WQ 2008-0002-EXEC.
National City's first SSMP was prepared in 2009 by Infrastructure Engineering Corporation.
Subsequently, representatives from the SWRCB and RWQCB audited the City's SSMP program
in February 2012. Some deficiencies were noted in the original SSMP and corresponding
procedures, as detailed in the audit report issued by the RWQCB in August 2012. To address
the concems raised, the City contracted D-Max Engineering to review and update the City's
SSMP to ensure it meets State standards and to fulfill the routine requirement in SWRCB Order
No. 2006-0003-DWQ to review and update the SSMP every two years. As a result of this effort,
a revised SSMP has been prepared. All major findings from the State audit have been
addressed in the revised SSMP.
The major changes to the SSMP include updates and clarifications to the City's SSO response
and recordkeeping procedures. New flow charts were prepared to clarify which actions are
needed in which circumstances and how to appropriately classify and report various categories
of SSOs, including relevant timelines and reporting mechanisms. New forms designed to track
all required information were prepared, along with more detailed procedures on how and when
to use them. Public Works staff has been trained on these new procedures and are currently
using them. Updates to the City's map of its sanitary sewer infrastructure, including locations
requiring higher cleaning frequencies, were also made, and a revised set of metrics for tracking
program effectiveness has been added. The overall layout of the SSMP document was also
revised to include explicit references to State requirements within the text of the SSMP and to
show how each requirement is addressed by the City's program.
The updated SSMP was posted on the City's website thirty days prior to the Public Hearing and
members of the public where invited to comment on the revised SSMP, which is available by
request from Public Works.
RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
APPROVING THE UPDATED SANITARY SEWER MANAGEMENT PLAN (SSMP)
AS REQUIRED BY STATE WATER RESOURCES CONTROL BOARD ORDER NO. 2006-003
WHEREAS, on July 10, 2007, the City Council issued Resolution No. 2007-159,
authorizing the execution of an agreement with Infrastructure Engineering Corporation to
provide engineering consultant services for the City's Sewer Management Plan (SSMP)
preparation; and
WHEREAS, the development of a SSMP allows the City to comply with the terms
of the State of California Water Resources Control Board (SWRCB) Order No. 2006-003, as
well as Order No. R9-2007-0005, subsequently adopted by Regional Board 9, the San Diego
Region. These Orders mandate that all Federal and State agencies, municipalities, counties,
districts, and other public entities that own or operate sanitary sewer systems greater than one
mile in length that collect and/or convey untreated or partially treated wastewater to a publicly
owned treatment facility in the State of California, develop an appropriate SSMP development
plan and schedule; and
WHEREAS, after a 2012 audit conducted by representatives from the SWRCB
and RWQCB revealed some deficiencies in the original SSMP and corresponding procedures.
the City contracted D-MAx Engineering to review and update the City's SSMP to ensure it meets
State standards and to fulfill the routine requirement in SWRCB Order No. 2006-0003-DWQ to
review and update the SSMP every two years. As a result of this effort, a revised SSMP has
been prepared. All major findings from the State audit have been addressed in the revised
SSMP; and
WHEREAS, a public hearing on the updated SSMP has been held by the City
Council.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
National City hereby approves the updated Sanitary Sewer Management Plan (SSMP), as
required by State Water Resources Control Board Order No. 2006-003. Said SSMP is on file in
the office of the City Clerk.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST:
Michael R. Dalla, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO.]I7
ITEM TITLE:
'Resolution of the City Council of the City of National City authorizing the Mayor (or City Manager) to execute a
Purchase and Sale Agreement by and between the City of National City and Alturas Imperial LLC for the sale of
a recently vacated portion of `G' Avenue, south of East 24th Street in National City.,
PREPARED BY: Ma inn Reeder, AICF
PHONE: 1619-336-4313
DEPARTMENT: {Planning.]
APPROVED BY►_�w
EXPLANATION: On December 18, 2012, the Council ordered the vacation of the northerly 194 feet of the
easterly 15 feet of' G' Avenue in association with the construction of a proposed Social Security Administration office.
The vacated area would allow for the expansion of the proposed parking lot so that it can accommodate emergency
access vehicles and provide increased parking for customers. The fee ownership of the land underneath the former
street right-of-way belongs to the City. On February 19, 2013, the City Council declared the vacated portion of G
Avenue as surplus property, the first step in allowing for the sale of the property. The property is not identified in the
General Plan or other Specific Plans as being needed for any City development or improvement projects and would
be of greater benefit to an adjacent property now that it is no longer needed as a right-of-way. Therefore, staff
recommends that the property be sold in order to facilitate a project which will be a benefit to the community.
Since declaration of the property as surplus, the developers of the adjacent property have ordered an appraisal of the
property and title insurance per City Council Policy 901 (attached). The property was appraised, the value of which
was established at $18,000. Council Policy 901 requires that the City pay for the title insurance and half of the
escrow fee, which comes to $670 ($420 for the title insurance and half of the $500 escrow fee). These fees would be
deducted from the appraised sale price.,
FINANCIAL STATEMENT:
ACCOUNT NO.
ENVIRONMENTAL REVIEW:
N/A,
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
!Direct staff to enter into a 30-day escrow to sell the surplus portion of 'G' Avenue for the appraised value of
$18,000, Tess title insurance fees and half of the escrow fee.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
1. City Council Policy 901 4. Purchase and Sale Agreement
2. Legal Description and Site Plan 5. Resolution
3 Appraisal of Real Property in Summary Report',
CITY COUNCIL POLICY
TITLE: SALE OF SURPLUS REAL PROPERTY
POLICY
NUMBERV9oi
ADOPTED: JUNE 19, 1984
• AMENDED OR livaust 14, 1990
REVISED: .
Pura
To establish .a ol? c ! and procedure for to sale of surplus property am
use of the arms from that sale.
Policy
The following steps are to be followed to sale City -owned pieces of
property:
1. Obtain other City ems` cammanta for the sale of the property.
2. Secure preliminary title reports for the property.
3. Prepare plats and 1PgAl descriptions for tbe property.
4. Request the City Council (Real Estate Committee) to declare the
property surplus and direct the staff to sell it.
5. If applicable, send a written offer to sell"or lease the property to
the other government agencies (Government Code Section 54222).
6. Order a letter of appraisal far the property from a licensed
appraiser.
7. Order CLTA title insurance policy for the property to be sold.
8. Prepare the advertising and bid packages for the marketable
properties, and reyueet the City Council.'s approval to proceed with
the advertisement of the marketable properties.
9. Advertise the sale of marketable properties.
10. Prepare a final report to the. City (Y tmcil providiru3 inform atian on
the results of the bid opening or the negotiations.
11. Obtain approval from the City Cam cil to enter into an escrow to seli
the property. Unless otherwise specified in the offer, or in the bid
package, the City will open a normal escrow where the City will pay
for the cost of the title insurance, and one-half of the escr+aw fee.
The proceeds from the sale will be spent on beautification or improvement
projects throughout the City,
Related Belief Beeriness
None
City of National City
i
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE WESTERLY 15.00 FEET OF THE EASTERLY 25.00 FEET OF "G" AVENUE, SAID
"G" AVENUE BEING FORMERLY AN UNNAMED STREET (80.00 FEET WIDE) WITHIN
FLORA M. KIMBALL'S SUBDIVISION OF A PORTION OF QUARTER SECTION 152 OF
RANCHO DE LA NACION, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 44, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY SEPTEMBER 30,
1886.
EXCEPTING THEREFROM ANY PORTION LYING NORTHERLY OF THE SOUTHERLY
RIGHT-OF-WAY LINE OF 24TH STREET (80.00 FEET WIDE).
ALSO EXCEPTING THEREFROM ANY PORTION LYING SOUTHERLY OF A LINE
DRAWN PARALLEL WITH AND 194.00 FEET SOUTHERLY OF SAID SOUTHERLY
RIGHT-OF-WAY LINE OF 245TH STREET.
ALL AS CLOSED AND VACATED TO PUBLIC USE BY RESOLUTION 2012-246 OF THE
CITY OF NATIONAL CITY RECORDED DECEMBER 27, 2012 AS FILE NO. 2012-
0816789, OFFICIAL RECORDS.
5072/3692.001
9
2
M
1 WA EFIELD
4747 EXECUTIVE DRIVE, 9TH FLOOR
SAN DIEGO, CA 92121
April 24, 2013
Mr. Craig Metz
Imperial Group
12675 Danielson Court, Suite 414
Poway, CA 92064
Re: Appraisal of Real Property
In a Summary Report
Vacant Land
G Avenue at 24th Street
National City, National City County, CA 91950
C&W File ID: 13-38503-900143
Dear Mr. Metz:
In fulfillment of our agreement as outlined in the Letter of Engagement, we are pleased to transmit our appraisal
of the above property in a summary report dated April 24, 2013. The effective date of value is April 17, 2013.
This appraisal report has been prepared for the Imperial Group. This is a summary appraisal, which is intended
to comply with the reporting requirements set forth under Standards Rule 2-2(b) of the Uniform Standards of
Professional Appraisal Practice. As such, it presents limited discussions of the data, reasoning, or analyses used
in the appraisal process to develop the appraisers' opinion of value. Additional supporting documentation
concerning the data, reasoning, and analyses is retained in our files. The depth of discussion contained in this
report is specific to the needs of the client and for the intended use stated below.
MARKET VALUE AS IS
Based on the agreed to Scope of Work, and as outlined in the report, we have developed an opinion that the
Market Value of the Fee Simple estate of the subject property, subject to the assumptions and limiting conditions,
certifications, extraordinary and hypothetical conditions, if any, and definitions, on April 17, 2013, was:
EIGHTEEN THOUSAND DOLLARS
$18,000
The value opinion in this report is qualified by certain assumptions, limiting conditions, certifications, and
definitions. We particularly call your attention to the extraordinary assumptions listed below.
EXTRAORDINARY ASSUMPTIONS
For a definition of Extraordinary Assumptions please see the Glossary of Terms & Definitions.
This appraisal does not employ any extraordinary assumptions.
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MR. CRAIG METZ
IMPERIAL GROUP
APRIL 24, 2013
PAGE 2
CUSHMAN & WAKEFIELD WESTERN, INC.
HYPOTHETICAL CONDITIONS
For a definition of Hypothetical Conditions please see the Glossary of Terms & Definitions.
This appraisal does not employ any Hypothetical Conditions.
This letter is invalid as an opinion of value if detached from the report, which contains the text, exhibits, and
Addenda.
Respectfully submitted,
CUSHMAN & WAKEFIELD WESTERN, INC.
Kevin M. Thene, MAI
Managing Director
California Certified General Appraiser
License No. AG003085
Expiration Date: January 25, 2014
kevin.thene@cushwake.com
858.334.4015 Office Direct
858.452.3206 Fax
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PURCHASE AND SALE AGREEMENT
(G Avenue, South of 24`h Street, National City, California)
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20`h
day of August, 2013 ("Effective Date") by and between City of National City ("Seller") and
Alturas Imperial LLC, a California Limited Liability Company ("Purchaser").
RECITALS
A. The Seller owns the fee interest in that certain parcel of real property described in
Exhibit A, attached to this Agreement, and defined below, (the "Property.") The Property is in
the City of National City, California.
B. On December 18, 2012, pursuant to Resolution No. 2012-246, the City Council of
the City of National City authorized the vacation of the Property.
C. On February 19, 2013, pursuant to Resolution No. 2013-24, the City Council
declared the Property as surplus property and directed the City Engineer to dispose of the
Property in accordance with City Council Policy.
D. On July 2, 2013, pursuant to Resolution No. 2013-100, the City Council
authorized the Mayor to execute a temporary Encroachment Permit and Agreement between
Seller and Purchaser so that the Purchaser could construct a portion of a parking lot on the
Property. The Encroachment Permit expires on November 2, 2013, or upon purchase of the
Property by the Purchaser from the Seller.
E. Provided the various conditions to Closing (as defined below) set forth in this
Agreement are satisfied, the Seller agrees to sell the Property (as defined below) to the Purchaser
and the Purchaser agrees to purchase the Property from the Seller as set forth in this Agreement.
AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are acknowledged, the Seller and the Purchaser hereby agree as follows:
1. Purchase and Sale. In consideration of the mutual covenants set forth in this Agreement,
the Purchaser will acquire all of the Property, on the terms and conditions set forth herein,
provided the various conditions to Closing set forth in this Agreement are satisfied.
(a) Sale of the Property. The Seller agrees to sell the Property to the Purchaser, and
the Purchaser agrees to purchase the Property from Seller, on the terms and conditions set forth
herein. At Closing, the Seller shall convey the fee interest in the Property to the Purchaser by
recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title Policy
(as defined below) to the Purchaser at Closing.
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(b) Possession of the Property. As stated in Recital D above, the Purchaser has an
Encroachment Permit and Agreement for the Property. The Seller shall deliver possession of the
Property to Purchaser at Closing, subject only to the Title Exceptions, all as defined below.
2. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
"Agreement" means this Purchase and Sale Agreement between the Seller and the
Purchaser.
"Applicable Environmental Law" means all laws applicable to the presence of any
Hazardous Materials (as defined below) on or within the Property, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601,
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, et seq.); the Clean
Water Act (33 U.S.C. §2601, et seq.); the Safe Drinking Water Act (14 U.S.C. §300f, et seq.);
the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); the Toxic Substances
Control Act (15 U.S.C. §2601, et seq.); the Federal Water Pollution Control Act (33 U.S.C.
§1300, et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136, et seq.);
the Atomic Energy Act (42 U.S.C. §2011, et seq.); the Nuclear Waste Policy Act (42 U.S.C.
§10101, et seq.); the Clean Air Act (42 U.S.C. §7401, et seq.); the California Hazardous Waste
Control Act (California Health and Safety Code §25100, et seq.); the Carpenter -Presley -Tanner
Hazardous Substance Account Act (California Health and Safety Code §25300, et seq.); the Safe
Drinking Water and Toxic Enforcement Act ("Proposition 65") (California Health and Safety
Code §25249.5, et seq.); and the Porter -Cologne Water Quality Control Act (California Water
Code §13000, et seq.); and any similar federal, state or local laws, all regulations and
publications implementing or promulgated pursuant to the foregoing, as any of the foregoing
may be amended or supplemented from time to time.
"Business Day" means any day other than a Saturday, Sunday or any other day on which
Purchaser or Escrow Agent is not open for business. In the event any date, deadline or due date
set forth in this Agreement falls on a day that is not a Business Day, then such deadline or due
date shall automatically be extended to the next Business Day.
"Close" or "Closing" means the close of Escrow as provided in this Agreement.
"Closing Date" means the date on which the Closing occurs, which date shall be
, 2013.
"Conditions Precedent for the Benefit of the Seller" shall have the meaning set forth in
Section 5 of this Agreement.
"Conditions Precedent for the Benefit of the Purchaser" shall have the meaning set forth
in Section 6 of this Agreement.
"Deposit" shall have the meaning set forth in Section 3(b)(1) of this Agreement.
"Effective Date" is defined above.
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"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
"Escrow Agent" means Tom Votel at Chicago Title Company, 2365 Northside Dr., 4500,
San Diego, CA 92108.
"Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple
title to the Property from the Seller to the Purchaser, in a form reasonably acceptable to the Seller
and Purchaser.
"Hazardous Materials" means:
(1) Those substances included within the definitions of "hazardous
substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste,"
"pollutant" or "contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery Act
(42 U.S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. §2601 et seq.); the Toxic Substances
Control Act (15 U.S.C. §9601 et seq.); the Hazardous Materials Transportation Act (49 U.S.C.
§ 1801 et seg.); or under any other Environmental Laws.
(2) Those substances included within the definitions of "Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under §§25115, 25117 or
25122.7 of the California Health and Safety Code, or is listed or identified pursuant to §§25140
or 44321 of the California Health and Safety Code.
(3) Those substances included within the definitions of "Hazardous Material,"
"Hazardous Substance," "Hazardous Waste," "Toxic Air Contaminant" or "Medical Waste"
under §§25281, 25316, 25501, 25501.1, 25023.2 or 39655 of the California Health and Safety
Code.
(4) Those substances included within the definitions of "Oil" or a "Hazardous
Substance" listed or identified pursuant to §311 of the Federal Water Pollution Control Act, 33
U.S.C. § 1321, as well as any other hydrocarbonic substance or by-product.
(5) Those substances included within the definitions of "Hazardous Waste,"
Extremely Hazardous Waste" or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title
22 of the California Code of Regulations.
(6) Those substances listed by the State of California as a chemical known by
the State to cause cancer or reproductive toxicity pursuant to §25249.9(a) of the California
Health and Safety Code.
(7) Any material which due to its characteristics or interaction with one or
more other substances, chemical compounds, or mixtures, damages or threatens to damage,
health, safety, or the environment, or is required by any law or public agency to be remediated,
including remediation which such law or public agency requires in order for the property to be
put to any lawful purpose.
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(8) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank.
(9) Pesticides regulated under the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. §136 et seq.
(10) Asbestos, PCBs, and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq.
(11) Any radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," "low-level wastes," "high-level
radioactive waste," "spent nuclear fuel" or "transuranic waste" and any other radioactive
materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42
U.S.C. §§2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C. §§10101 et seq., or pursuant to
the California Radiation Control Law, California Health and Safety Code §§25800 et seq.
(12) Any material regulated under the Occupational Safety and Health Act, 29
U.S.C. §§651 et seq., or the California Occupational Safety and Health Act, California Labor
Code §§6300 et seq.
(13) Any material regulated under the Clean Air Act, 42 U.S.C. §§7401 et seq.
or pursuant to Division 26 of the California Health and Safety Code.
(14) Those substances listed in the United States Department of Transportation
Table (49 CFR Part 172.101), or by the Environmental Protection Agency, or any successor
agency, as hazardous substances (40 CFR Part 302).
(15) Other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state or local laws or regulations.
(16) Any material, waste or substance that is a petroleum or refined petroleum
product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33
U.S.C. §1321 or listed pursuant to 33 U.S.C. §1317, a flammable explosive or a radioactive
material.
"Immediately Available Funds" means a bank wire transfer or a certified bank or
cashier's check.
"Improvements" means collectively: (i) any and all buildings, structures and
improvements, of any kind whatsoever, located at or affixed to the Property; (ii) all rights,
privileges and easements appurtenant to the Property, if any, including, without limitation, all
minerals, oil, gas and other hydrocarbon substances on and under the Property, if any; and (iii)
all development rights, air rights, and water rights if any, relating to the Property.
"Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions
in the Title Policy; (ii) real property taxes and assessments which are a lien but not yet payable;
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and (iii) all applicable building, zoning and use restrictions and/or regulations of any
municipality, township, county or state.
"Property" means the Property and the Improvements, if any.
"Purchase Price" shall have the meaning set forth in Section 3(a) of this Agreement.
"Purchaser" means Alturas Imperial LLC, a California Limited Liability Company;
provided, however, if it assigns its interest in this Agreement pursuant to Section 10 of this
Agreement, then the term "Purchaser" shall mean such assignee.
"Seller" means the City of National City.
"Title Policy" means a CLTA Owner's Policy of Title Insurance in the amount of the
Purchase Price, insuring that title to the fee interest in the Property is vested in the Purchaser
subject only to the Permitted Exceptions The Title Policy shall be obtained through Chicago
Title Company. Seller shall pay the cost of the CLTA Owner's Policy of Title Insurance.
Purchaser may obtain an ALTA Owner's Policy of Title Insurance, in which event Purchaser
shall pay the cost difference between the cost of the ALTA Owner's Policy of Title Insurance
and the cost of a CLTA Owner's Policy of insurance.
3. Purchase Price.
(a) Total Purchase Price. The purchase price to be paid by the Purchaser for the
Property shall be Eighteen Thousand and No/100 dollars ($18,000.00) ("Purchase Price").
(b) Deposit; Liquidated Damages.
(1) Deposit. Purchaser shall make a deposit ("Deposit") into Escrow of
Immediately Available Funds in the amount of Five Thousand and no/100 dollars ($5,000.00)
within three (3) Business Days of the Effective Date. The Deposit shall be credited against the
Purchase Price. If the Purchaser elects to terminate this Agreement prior to Closing, then the
Deposit shall be immediately returned by Escrow Agent to the Purchaser. At Closing, the
Deposit shall be released by Escrow Agent to the Seller. The Deposit, and any interest earned on
the Deposit, shall be credited in favor of the Purchaser against the Purchase Price as set forth in
Section 3(c), below.
(2) LIQUIDATED DAMAGES. THE DEPOSIT SHALL BE
REFUNDABLE TO THE PURCHASER AS MAY BE EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF PURCHASER'S
DEFAULT HEREUNDER, THE SOLE REMEDY OF THE SELLER SHALL BE TO
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO
PURCHASER AND ESCROW AGENT, WHEREUPON THE SELLER SHALL RETAIN THE
DEPOSIT(S) ACTUALLY DEPOSITED BY PURCHASER INTO ESCROW AS
LIQUIDATED DAMAGES. (AND THE SELLER WAIVES ANY RIGHT TO SPECIFICALLY
ENFORCE THIS AGREEMENT SET FORTH IN CALIFORNIA CIVIL CODE SECTION
1680 OR 3389). THEREAFTER, NO PARTY HERETO SHALL HAVE ANY FURTHER
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LIABILITY OR OBLIGATION TO ANY OTHER PARTY HERETO EXCEPT FOR: (i) THE
SELLER'S RIGHT TO RECEIVE AND RETAIN SUCH LIQUIDATED DAMAGES; AND (ii)
THE OBLIGATION OF THE PARTIES TO PAY AMOUNTS INTO ESCROW TO PAY A
PORTION OF THE FEES AND COSTS OF ESCROW AS SET FORTH IN SECTIONS SAND
6 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE
SELLER'S ACTUAL DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT
HEREUNDER ARE UNCERTAIN IN AMOUNT AND DIFFICULT TO ASCERTAIN, AND
THAT SUCH AMOUNT OF LIQUIDATED DAMAGES IS REASONABLE UNDER THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ., CONSIDERING
ALL OF THE CIRCUMSTANCES EXISTING ON THE DA I E HEREOF INCLUDING,
WITHOUT LIMITATION, THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF
POTENTIAL HARM TO THE SELLER THAT CAN REASONABLY BE ANTICIPATED
AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES RESULTING FROM
SUCH DEFAULT WOULD BE COSTLY AND INCONVENIENT. IN PLACING ITS
INITIALS IN THE SPACE BELOW, EACH PARTY HERETO SPECIFICALLY CONFIRMS
THE ACCURACY OF THE FOREGOING AND THE FACT THAT SUCH PARTY HAS
BEEN REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION.
THE PROVISIONS OF THIS SECTION 3(B)(2) SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Seller's Initials Purchaser's Initials
(c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (1)
Business Day prior to the Closing Date, the Purchaser shall cause Immediately Available Funds
to be delivered to the Escrow Agent in an amount of equal to the Purchase Price, minus the
Deposit.
(d) Disbursement to the Seller. Immediately after the Closing, the Escrow Agent
shall disburse to the Seller the funds that the Seller is entitled to receive under this Agreement.
4. Due Diligence. The Purchaser has completed its due diligence with respect to the
Property.
5. Conditions Precedent for the Benefit of the Seller. The Seller's obligation to Close shall
be conditioned upon the satisfaction or emailed or written waiver by the Seller of all of the
conditions precedent ("Conditions Precedent for the Benefit of the Seller") set forth in this
Section 5. Any of the Conditions Precedent for the Benefit of the Seller may be waived by the
Seller unilaterally; and if so waived, such conditions shall be of no further effect hereunder. Any
such waiver shall be effective only if the same is expressly waived (i) by email from the Seller to
the Purchaser and Escrow Agent; or (ii) in a writing signed by the Seller and delivered to the
Purchaser and Escrow Agent. If the Conditions Precedent for the Benefit of the Seller are not
satisfied by the deadlines set forth in this Section 5 or expressly waived, the Seller (provided the
Seller is not in default hereunder) may provide emailed or written notice of the Seller's
conditional termination of this Agreement to the Purchaser and Escrow Agent. After receipt of
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such notice of conditional termination, the Purchaser shall have ten (10) Business Days to cure
any non -satisfaction of a condition or other default specified in the notice of conditional
termination; provided, however, the foregoing grace period shall be two (2) Business Days if the
unsatisfied condition is a failure by Purchaser to deliver funds required to close on the Closing
Date. If such matter remains unsatisfied or the default remains uncured after the expiration of
such ten (10) Business Day period, then this Agreement shall terminate at the close of business
on such tenth (loth) Business Day (or second (2nd) Business Day if the unsatisfied condition is a
failure by Purchaser to deliver funds required to close on the Closing Date). In the event of
termination of this Agreement (and by operation of law the Escrow) pursuant to this Section 5,
then: (x) as set forth in the liquidated damages provision of Section 3(b)(2) above, all rights and
liabilities of the Purchaser and the Seller with respect to this Agreement shall immediately
terminate, except those which specifically survive such termination; (y) Escrow Agent shall
deliver the Deposit to the Seller and shall return to the Seller all funds or other things deposited
in Escrow by the Seller; and (z) Escrow Agent shall return to the Purchaser all funds or other
things deposited in Escrow by the Purchaser, less the Deposit. Provided, however, all fees and
costs charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2)
by the Purchaser. Notwithstanding clause (x) of this Section 5, in the event of termination of this
Agreement pursuant to this Section 5, the Purchaser and the Seller shall cooperate with one
another, execute all documents reasonably necessary and take all reasonable steps as may be
required by Escrow Agent in order to accomplish the purposes of this Section 5.
(a) Purchaser making the Deposit into Escrow, as set forth in Section 3(b)(1), above.
(b) The delivery by the Purchaser into Escrow at least one (1) Business Day prior to
Closing of Immediately Available Funds in the amount required by Section 3(c), above.
(c) The delivery by the Purchaser into Escrow of all other documents and instruments
required by this Agreement or reasonably required by Seller and/or Escrow Agent to complete
the Closing, at least one (1) Business Day prior to Closing.
(d) Purchaser not being in default of any of its representations or warranties under
this Agreement, or any other material terms or conditions related to Purchaser.
(e) As of the Closing Date, the Purchaser has not made an assignment for the benefit
of creditors, filed a bankruptcy petition, been adjudicated insolvent or bankrupt, petitioned a
court for the appointment of any receiver of, or trustee for, the Purchaser, or commenced any
proceeding relating to the Purchaser under any reorganization, arrangement, readjustment of
debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect.
(f) This Agreement has been formally approved by resolution of the City Council of
the City of National City.
6. Conditions Precedent for the Benefit of the Purchaser. The Purchaser's obligation to
Close shall be conditioned upon the satisfaction or emailed or written waiver by the Purchaser of
all of the conditions precedent ("Conditions Precedent for the Benefit of the Purchaser") set forth
in this Section 6. Any of the Conditions Precedent for the Benefit of the Purchaser may be
waived by the Purchaser unilaterally; and if so waived, such conditions shall be of no further
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effect hereunder. Any such waiver shall be effective only if the same is expressly waived (i) by
email from the Purchaser to the Seller and Escrow Agent; or (ii) in a writing signed by the
Purchaser and delivered to the Seller and Escrow Agent. If the Conditions Precedent for the
Benefit of the Purchaser are not satisfied by the deadlines set forth in this Section 6 or expressly
waived, the Purchaser (provided the Purchaser is not in default hereunder) may provide emailed
or written notice of the Purchaser's conditional termination of this Agreement to the Seller and
Escrow Agent. After receipt of such notice of conditional termination, the Seller shall have ten
(10) Business Days to cure any non -satisfaction of a condition or other default specified in the
notice of conditional termination. If such matter remains unsatisfied or the default remains
uncured after the expiration of such ten (10) Business Day period, then this Agreement shall
terminate at the close of business on such tenth (10th) Business Day. In the event of termination
of this Agreement (and by operation of law the Escrow) pursuant to this Section 6, then: (x)
except to subparagraph (f) below, the same shall be a default by the Seller (y) Escrow Agent
shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser,
including without limitation, the Deposit; and (z) Escrow Agent shall return to the Seller all
funds or other things deposited in Escrow by the Seller. Purchaser is not waiving any default by
the Seller and nothing contained in this Section 6, including, without limitation, the immediately
foregoing sentence shall be a waiver of any right of Purchaser to recover damages from the
Seller for failure of any Conditions Precedent for the Benefit of the Purchaser. Provided,
however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the
Seller and one-half (1/2) by the Purchaser.
(a) The deposit into Escrow by the Seller of the Grant Deed, duly executed and
acknowledged, conveying fee simple title to the Property to the Purchaser at least one (1)
Business Day prior to Closing.
(b) The deposit by the Seller into Escrow of a duly executed affidavit that it is not a
foreign person and is a "United States Person" as such term is defined in Section 7761(a)(30) of
the Internal Revenue Code of 1986, as amended, at least one (1) Business Days prior to Closing.
The affidavit shall be in the form prescribed by federal regulations, if any.
(c) The deposit by the Seller into Escrow of a duly executed California Form 593(c)
or other evidence that withholding of any portion of the Purchase Price is not required by the
Revenue and Taxation Code of California, at least one (1) Business Day prior to Closing.
(d) The deposit by the Seller into Escrow of all additional documents and instruments
as are reasonably required by the Purchaser and/or Escrow Agent to complete the Closing, at
least one (1) Business Day prior to Closing.
(e) The Escrow Agent is prepared and obligated to issue the Title Policy in
Purchaser's favor upon the recordation of the Grant Deed and there are no exceptions to the Title
Policy, except for Permitted Exceptions.
(f) Seller not being in default of any of its representations or warranties under this
Agreement, or any other material terms or conditions related to Seller.
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(g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement
affecting the Property, except for the Encroachment Permit and Agreement, as described in
Recital D, above.
(h) As of the Closing Date there is not pending, or threatened to be pending, any
action or proceeding by any person or before any government authority, the outcome of which
could prohibit the use of the Property as intended by the Purchaser.
7. Representations and Warranties; Waivers and Releases.When making the representations
and warranties set forth in this Section 7, each party making a representation and/or warranty
represents that the same are true, correct and complete as of the date hereof and shall be and are
true, correct and complete as of the Closing Date. The representations and warranties shall
survive the Closing.
(a) Representations and Warranties Regarding Authority. The Seller and the
Purchaser each hereby represents and warrants to the other that this Agreement and all
documents or instruments executed by them which are to be delivered at or prior to the Closing
are, or on the Closing Date will be, duly authorized, executed and delivered by the Seller or the
Purchaser, as applicable.
(b) Representations and Warranties Regarding Enforceability of Agreement. The
Seller and the Purchaser each hereby represents and warrants to the other that this Agreement
and all documents required hereby to be executed by them shall be valid, legally binding
obligations of, and enforceable against, the Seller or the Purchaser, as applicable, in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally and general principles of equity
(whether enforcement is sought in equity or at law).
(c) Seller Representations and Warranties Pertaining to Legal Matters. The Seller
hereby represents and warrants to the Purchaser that:
(1) As of the Effective Date and the Closing Date, the Seller is the sole owner
of the fee title interest to the Property.
(2) There is no pending or threatened proceeding in eminent domain or
otherwise, which would affect the Property, or any portions thereof, nor any facts which
might give rise to such action or proceeding.
(d) Seller Representations and Warranties Pertaining to Options. The Seller hereby
represents and warrants to the Purchaser that no person has any option or right of first refusal to
purchase the Property or any parts thereof.
(e) Material Adverse Changes. If Seller receives any notice or knowledge of
anything materially adversely affecting Seller's representations or warranties after the date of
this Agreement, then Seller shall immediately notify Purchaser in writing of such fact or
circumstance. If Purchaser receives written notice from Seller pursuant to the immediately
preceding sentence, and Seller in such notice does not agree to cure the same at or prior to
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Closing to Purchaser's reasonable satisfaction, then, Purchaser shall have the right to bring an
action against Seller on the breach of such representation or warranty.
(f) Seller Representation and Warranty Pertaining to Tenants. The Seller hereby
represents and warrants to the Purchaser that no person has any lease or other right to occupy the
Property or any parts thereof, except for the Encroachment Permit and Agreement as described
in Recital D, above.
(g) Seller Representation and Warranty Regarding Operation of the Property. The
Seller hereby represents and warrants to the Purchaser that there are no oral or written
agreements or understandings concerning the Property by which the Purchaser would be bound
following the Closing.
(h) AS IS CONDITION. PURCHASER HEREBY ACKNOWLEDGES,
REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL
INDUCEMENT TO SELLER TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN
CONSIDERATION OF THE PERFORMANCE BY SELLER OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENTTHAT, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF THIS
AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE
ON AN "AS IS, WHERE IS" BASIS, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXISTENCE
OF HAZARDOUS MATERIALS OR MOLD UPON THE PROPERTY OR ANY PORTION
THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND
WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER
AND FAULTING; (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE
PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE
OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN,
FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL
ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES,
OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING
PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION,
DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR
FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE
IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183, 12186(B) —
12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS
MATERIALS IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY; (9) THE
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SQUARE FOOTAGE OF THE PROPERTY OR THE IMPROVEMENTS THEREON; (10)
IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION,
THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES, AND PERSONAL
PROPERTY, IF ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER
OR WATER RIGHTS; (13) THE DEVELOPMENT POTENTIAL FOR THE PROPERTY; (14)
THE ABILITY OF PURCHASER TO REZONE THE PROPERTY OR CHANGE THE USE
OF THE PROPERTY; (15) THE ABILITY OF PURCHASER TO ACQUIRE ADJACENT
PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY
UNDERGROUND UTILITIES; (17) THE EXISTENCE AND POSSIBLE LOCATION OF
ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE PROPERTY
WERE BUILT, IN WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE
BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE
IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE
NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR
USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL
PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS ORLAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR
OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER
AFFIRMING THAT PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT
FOR ANY PARTICULAR PURPOSE); AND/OR (23) ANY OTHER MATTER
CONCERNING THE PROPERTY. NOTWITHSTANDING THE FOREGOING OR
ANYTHING TO THE CON 1'RARY SET FORTH IN THIS AGREEMENT, SELLER IS NOT
RELEASED FROM ANY LIABILITY TO PURCHASER FOR FRAUD ORBREACH OF
ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS
AGREEMENT. Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation, this Section 7(h), any right waived by Purchaser and any release by
Purchaser, shall only release or waive the Purchaser's right to enforce any judgment (including
without limitation, damages, attorneys' fees, costs, expenses or any other compensation of any
type whatsoever) personally against only the Seller and Seller's successors, assigns, officers,
directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and
agents (collectively, the "Seller Parties") or any of them. Purchaser is not waiving any right to
bring any action against any of the "Non -Released Parties" (defined below) or waiving recovery
against or otherwise releasing or agreeing to forego Purchaser's rights with respect to any
insurance policy, or any other person (other than the right to enforce a judgment personally
against any of the Seller Parties), including without limitation persons obligated to the Seller
Parties, by right of subrogation or otherwise, prior owners or occupants of the Property, the
tenants, persons performing work at the Property and/or any insurance policies held by any or all
such persons (collectively, the "Non -Released Parties").
PURCHASER ACKNOWLEDGES THAT PURCHASER SHALL HAVE
COMPLETED ALL PHYSICAL AND FINANCIAL EXAMINATIONS RELATING TO THE
ACQUISITION OF THE PROPERTY HEREUNDER AND WILL ACQUIRE THE SAME
SOLELY ON THE BASIS OF SUCH EXAMINATIONS AND THE TITLE INSURANCE
PRO 1'ECTION FOR THE PROPERTY AFFORDED BY THE TITLE POLICY, EXCEPT AS
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SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF
THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT THE
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION
OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY OR COMPLETENESS OF SUCH INFORMATION, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF
THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR ANY NEGLIGENT
MISREPRESENTATION OR FAILURE TO INVESTIGATE THE PROPERTY NOR SHALL
SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORTS, OR
OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION
THEREOF, FURNISHED BY SELLER, OR ANY REAL ESTATE BROKER, AGENT,
REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON . ACTING ON
SELLER'S BEHALF EXCEPT FOR REPRESENTATIONS AND WARRANTIES
EXPRESSLY PROVIDED IN SECTION 7 OF THIS AGREEMENT. IT IS
ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY SELLER AND
PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. NOTWITHSTANDING
THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, SELLER IS NOT RELEASED FROM ANY LIABILITY TO PURCHASER
FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY
SET FORTH IN THIS AGREEMENT.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT PURCHASER IS
FULLY AWARE OF THE AGE OF THE PROPERTY, THAT OVER TIME VARIOUS
EVENTS MAY HAVE OCCURRED ON THE PROPERTY WHICH EVENTS MAY BE
TYPICAL AND (OR) ATYPICAL OF EVENTS OCCURRING TO OTHER PROPERTIES OF
SIMILAR AGE TO THE PROPERTY AND SIMILARLY LOCATED IN THE CITY OF
NATIONAL CITY AND (OR) THE COUNTY OF SAN DIEGO, CALIFORNIA, AND THAT
SUCH EVENTS MAY INCLUDE, WITHOUT LIMITATION, SLAB LEAKS, MOLD, FIRE,
SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS,
PERMITS, APPROVALS, LICENSES AND (OR) ORDERS OF GOVERNMENTAL
AGENCIES WITH JURISDICTION OVER THE PROPERTY.
THE CLOSING OF THE PURCHASE OF THE PROPERTY BY PURCHASER
HEREUNDER SHALL BE CONCLUSIVE EVIDENCE THAT: (A) PURCHASER HAS
FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND
COMPLETELY INSPECTED) THE PROPERTY; AND (B) PURCHASER ACCEPTS THE
PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE
FOR PURCHASER'S PURPOSES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR
RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN
SECTION 7 OF THIS AGREEMENT, PURCHASER SHALL PERFORM AND RELY
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SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE
PROPERTY, AND THE PROPERTY'S FITNESS THEREFOR. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT SELLER'S COOPERATION WITH PURCHASER
WHETHER BY AUTHORIZING THE ENCROACHMENT PERMIT AND AGREEMENT,
PROVIDING DOCUMENTS RELATING TO THE PROPERTY, OR PERMITTING
INSPECTION OF THE PROPERTY, SHALL NOT BE CONSTRUED AS ANY WARRANTY
OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO
THE PROPERTY, OR WITH RESPECT TO THE ACCURACY, COMPLETENESS, OR
RELEVANCE OF THE DOCUMENTS PROVIDED TO PURCHASER BY SELLER IN
RELATION TO THE PROPERTY, PROVIDED THAT THE FOREGOING SHALL NOT BE
A LIMITATION OR MODIFICATION OF THE REPRESENTATIONS AND WARRANTIES
EXPRESSLY PROVIDED FOR IN SECTION 7 OF THIS AGREEMENT.
SELLER'S INITIALS PURCHASER'S INITIALS
(i)
Indemnity and Release.
(1) Indemnity. For the purposes of this Section 7(i), the term "Claims" shall
mean any and all claims, obligations, liabilities, causes of action, suits, debts, liens, damages,
judgments, losses, demands, orders, penalties, settlements, costs and expenses (including,
without limitation, attorneys' fees and costs and any and all costs and expenses related to,
whether directly or indirectly, any and all clean-up, remediation, investigations, monitoring,
abatement, mitigation measures, fines or removal with respect to Hazardous Materials) of any
kind or nature whatsoever. The definition of "Claims" shall include, without limitation, Claims
under contract law or tort law. Purchaser acknowledges that but for Purchaser's agreement to
each and every provision of this Section 7(i), Seller would not have entered into the Agreement.
Purchaser, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"),
shall indemnify, defend, protect and hold Seller and Seller's successors, assigns, partners,
affiliates and members and all their respective officers, directors, shareholders, participants,
partners, affiliates, employees, representatives, invitees and agents (collectively, "Seller Parties")
harmless from and against any and all Claims resulting from, related to, or based upon, whether
directly or indirectly: (i) the breach by Purchaser of any representation, warranty, covenant or
obligation contained in the Agreement, or in any other agreement, document, exhibit or
instrument related hereto or referenced herein; (ii) any Claim or Claims, if the basis of such
Claim or Claims arose on or after the Closing, except as noted in subparagraph (iv) below, and if
the basis of such Claim or Claims arose from, is based upon, relates to or pertains to, whether
directly or indirectly, the operation, management and use of the Property; (iii) any Claim or
Claims which Claim or Claims (or the basis for which) arose from, is based upon, relates to or
pertains to, whether directly or indirectly, any act or omission of Purchaser or any of its
employees, agents or representatives; and (iv) (A) any Claim or Claims that relate to the
condition of the Property on or after the Close of Escrow, including any judgment, order or
settlement under or otherwise pursuant to a lawsuit, and (B) any Claim or Claims that relate to
defects in the Property (including, without limitation, patent and latent construction defects),
regardless of whether said defects or the cause of the same arose either before or after the Close
of Escrow, including any judgment, order or settlement under or otherwise pursuant to the
lawsuit. Any defense of any or all of the Seller Parties referenced in this Section 7(i)(1), shall be
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at the Purchaser's sole cost and expense and by counsel selected by the Purchaser, subject to the
reasonable approval of the indemnified person, which counsel may, without limiting the rights of
any of the Seller Parties pursuant to the next succeeding sentence of this Section 7(i)(1), also
represent the Purchaser in such investigation, action or proceeding. If any of the Seller Parties
that is being indemnified determines reasonably and in good faith that its defenseby the
Purchaser is reasonably likely to cause a conflict of interest or is being conducted in a manner
which is prejudicial to such persons interests, such indemnified person may elect to conduct its
own defense through counsel of its own choosing, subject to the reasonable approval of the
Purchaser, and at the expense of the Purchaser.
(2) Release and &1542 Waiver. Notwithstanding the following or anything to
the contrary set forth in this Agreement, the Seller is not released from any liability to the
Purchaser for fraud or breach of any covenant or warranty set forth in this Agreement. Subject to
the immediately preceding sentence and the Purchaser's right to rely on the Seller's express
representations and warranties set forth in Section 7 hereof, Purchaser for itself and on behalf of
each of its successors and/or assigns (collectively, the "Releasors") by this general release of
lcnown and unknown claims (this "Release") hereby irrevocably and unconditionally release and
forever discharge Seller and each of the Seller Parties (collectively, the "Releasees") or any of
them, from and against any and all Claims of any kind or nature whatsoever, WHETHER
KNOWN OR UNKNOWN, suspected or unsuspected, fixed or contingent, liquidated or
unliquidated which any of the Releasors now have, own, hold, or claim to have had, owned, or
held, against any of the Releasees arising from, based upon or related to, whether directly or
indirectly any facts, matters, circumstances, conditions or defects (whether patent or latent) of all
or any kinds, related to, arising from, or based upon, whether directly or indirectly, the Property,
including without limitation, (i) the physical condition, quality and state of repair of the Property
conveyed, (ii) any latent or patent defect affecting the Property conveyed, and (iii) the presence
of Hazardous Materials in, on, about or under the Property or which have migrated from adjacent
lands to the Property or from the Property to adjacent lands.
Except for Claims for Seller's fraud or the breach of any representations and warranties
of the Seller expressly provided for in Section 7 of this Agreement, Releasors hereby further
agree as follows:
(i) Releasors acknowledge that there is a risk that subsequent to the
execution of this Agreement, Releasors may discover, incur, or suffer from Claims which were
unknown or unanticipated at the time this Release is executed, including, without limitation,
unknown or unanticipated Claims which, if known by Releasors on the date this Release is being
executed, may have materially affected Releasors' decision to execute this Agreement. Releasors
acknowledge that Releasors are assuming the risk of such unknown and unanticipated Claims
and agree that this Release applies thereto. Releasors expressly waive the benefits of Section
1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
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(ii) Releasors represent and warrant that Releasors have been
represented by independent counsel of Releasors' own choosing in connection with the
preparation and review of the Release set forth herein, that Releasors have specifically discussed
with such counsel the meaning and effect of this Release and that Releasors have carefully read
and understand the scope and effect of each provision contained herein. Releasors further
represent and warrant that Releasors do not rely and have not relied upon any representation or
statement made by any of the Releasees or any of their representatives, agents, employees,
attorneys or officers with regard to the subject matter, basis or effect of this Release.
(iii) Releasors represent and warrant to Releasees that Releasors have
not and shall not assign or transfer or purport to assign or transfer any Claim or Claims or any
portion thereof or any interest therein, and shall indemnify, defend, protect and hold the
Releasees harmless from and against any Claim or Claims based on or arising out of, whether
directly or indirectly, any such assignment or transfer, or purported assignment or transfer.
SELLER'S INITIALS PURCHASER'S INITIALS
It is specifically intended that each of the Seller Parties shall be third party beneficiaries
of this Section 7(i).
(3) Survival. The provisions of this Section 7(i) shall survive the Closing and,
as applicable, the termination of this Agreement.
(j) Waiver of Subrogation; Survival. Purchaser hereby waives any right of
subrogation as to Seller or the Seller Parties. Each and every provision of this Section 7 shall,
except as may be expressly limited in this Section 7, survive the Closing and, as applicable, the
termination of this Agreement, and, but for Purchaser's agreement to each and every provision of
this Section 7, Seller would not have executed this Agreement.
8. Condemnation of the Property.
(a) If between the Effective Date and the Closing Date, any condemnation or eminent
domain proceeding is commenced that will result in the taking of any part of the Property,
Purchaser may, at Purchaser's election, either:
(1) Terminate this Agreement by giving written or emailed notice to the Seller
and the Escrow Agent in which event all remaining funds or other things deposited in Escrow by
Purchaser, including without limitation, the Deposit, shall be returned to the Purchaser
immediately from Escrow, together with any interest earned thereon and all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser; or
(2) Proceed with the Closing with no reduction in the Purchase Price, in
which event the Seller shall assign to the Purchaser all of the Seller's rights, titles and interests to
any award made for the condemnation or eminent domain action.
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(b) Notice. If the Seller obtains notice of the commencement of or the threatened
commencement of eminent domain or condemnation proceedings with respect to all of any
portion of the Property, the Seller shall notify the Purchaser in writing.
9. Broker's Commission. The Purchaser and Seller each hereby represents and warrants to
the other that it has not engaged the services of any real estate agent or broker with respect to the
transaction that is the subject of this Agreement.The Purchaser and the Seller each agree that, to
the extent any real estate commission, brokerage commission or finder's fee shall be earned or
claimed in connection with this Agreement or the Closing, the payment of such fee or
commission, and the defense of any action in connection therewith, shall be the sole and
exclusive obligation of the party who requested (or is alleged to have requested) the services of
the broker or finder. In the event that any claim, demand or cause of action for any such
commission or finder's fee is asserted against the party to this Agreement who did not request
such services (or is not alleged to have requested such services), the party through whom the
broker or finder is making the claim shall indemnify, defend (with an attorney of the
indemnitee's choice), protect and hold harmless the other from and against any and all such
claims, demands and causes of action and expenses related thereto, including, without limitation,
attorneys' fees and costs.The provisions of this Section 9 shall survive the Closing or termination
of this Agreement.
10. Assignment. The Purchaser shall not assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the Seller, which consent may be
withheld or granted in Seller's sole and absolute discretion; provided, however, the Purchaser
may assign this Agreement to an entity in which the Purchaser has a controlling or majority
interest without the prior written consent of the Seller provided Purchaser and such assignee
execute an assignment agreement in form and substance reasonably acceptable to Seller.
11. Notices. All notices under this Agreement shall be in writing and sent (a) by certified or
registered mail, return receipt requested, in which case notice shall be deemed delivered three (3)
Business Days after deposit, postage prepaid in the United States Mail, (b) overnight by a
nationally recognized overnight courier such as UPS Overnight, or FedEx, in which case notice
shall be deemed delivered one (1) Business Day after deposit with that courier, (c) by personal
delivery, in which case notice shall be deemed delivered upon the actual date of delivery, or (d)
by email, in which case notice shall be deemed delivered upon the actual date of delivery. All
notices shall be delivered to the following addresses:
If to Purchaser:
Alturas Imperial LLC
Attn: Craig Metz, Manager
Imperial Group
12675 Danielson Court, Suite 414
Poway, CA 92064
Tel: (949) 706-7575
Fax: (858) 456-6577
Email: craigmetz@pacificmidwest.com
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If to Seller:
City of National City
Attn: Martin Reeder, Principal Planner
1243 National City Boulevard
National City, CA 91950
Tel: (619) 336-4313
Fax: (619) 336-4321
Email: mreeder@nationalcityca.gov
The addresses above may be changed by written notice to the other party; provided
however, that no notice of a change of address shall be effective until actual receipt of the notice.
12. Risk of Loss. The risk of loss or damage to the Property until the close of Escrow will
be borne by Purchaser, due to the Encroachment Permit and Agreement. If prior to the close of
Escrow there is damage to or destruction of the Property, Purchaser shall nevertheless close
Escrow with the Property in such damaged condition, and the Purchase Price shall not be
reduced. Seller shall not be obligated to repair or restore the Property.
13. Prorations. Real property taxes and assessments and utility costs, and other expenses of
operating the Property (provided, however, no proration shall be made with regard to any capital
improvements) shall be prorated as of the close of Escrow. Seller shall pay all documentary
transfer taxes. Seller shall pay all real property taxes and assessments applicable to the period
prior to the close of Escrow, and if any such taxes are unpaid after the close of Escrow, then
Seller shall pay them promptly and in any event within ten (10) days after Purchaser's request
(which shall include a copy of the relevant tax bill).
14. General Provisions.
(a) Governing Law. This Agreement shall be interpreted and construed in
accordance with California law, without regard to any choice of law principles.
(b) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(c) Captions. The captions in this Agreement are inserted for convenience of
reference and in no way define, describe or limit the scope or intent of this Agreement or any of
the provisions of this Agreement.
(d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors, heirs and permitted assigns.
(e) Modifications; Waiver. No waiver, modification, amendment, discharge or
change of this Agreement shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver, amendment, discharge or change is sought.
(f) Entire Agreement. This Agreement contains the entire agreement between the
parties relating to Purchaser's acquisition of the Property from the Seller and all prior or
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contemporaneous agreements, understandings, representations or statements, oral or written, are
superseded.
(g) Partial Invalidity. Any provision of this Agreement which is unenforceable,
invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of
this Agreement shall have no effect, but all the remaining provisions of this Agreement shall
remain in full effect.
(h) Survival. Provisions of this Section 14 shall survive the Closing or the
termination of this Agreement.
(i) No Third -Party Rights. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties to this Agreement and their respective
successors and assigns, any rights or remedies.
(j) Time of Essence. Time is of the essence in this Agreement.
(k) Attorneys' Fees. The parties agree that the prevailing party in litigation for the
breach and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and attorneys' fees as may be
awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5
and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998. All claims, disputes, causes of action or controversies shall be
subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch.
(I) Relationship. Nothing contained in this Agreement shall be deemed or construed
by the parties or by any third person to create a relationship of principal and agent or partnership
or a joint venture between the Purchaser and the Seller or between any of them and any third
party.
(m)
Recording. Neither this Agreement nor a memorandum hereof shall be recorded.
(n) Seller Approval. Where this Agreement refers to an action or approval of the
Seller, it shall mean the approval of the of the Seller, or designee, unless otherwise provided.
(o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are
hereby incorporated in this Agreement by this reference, regardless of whether or not the exhibits
are actually attached to this Agreement. The Recitals to this Agreement are hereby incorporated
in this Agreement by this reference.
(p) Independent Counsel. Seller and Purchaser each acknowledge that: (a) they have
been given the opportunity to be represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such counsel, if such
counsel was retained; and (c) this Agreement is the result of negotiations between the parties
hereto and the advice and assistance of their respective counsel, if such counsel was retained.
The fact that this Agreement was prepared or negotiated by Purchaser's or Seller's counsel as a
matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this
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Agreement shall not be construed against either party due to the fact that Purchaser's or Seller's
counsel prepared or negotiated this Agreement in its final form.
(q) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations
set forth in this Agreement, including without limitation, the deadline for Closing and the
deadline for making the Deposit, shall all be automatically extended by one (1) Business Day for
each Business Day that the Seller fails to timely provide any notice, report, materials, studies,
documentation or other information required by this Agreement.
(r) Capacity and Authority. All individuals signing this Agreement for a party which
is a corporation, limited liability company, partnership or other legal entity, or signing under a
power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent
and warrant that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
PURCHASER: SELLER:
Alturas Imperial, LLC City of National City
By: f 0-6,-
44/
• By:
c�
Print Name: 0)1E6A -5§t4GJG�n ,I(L. Print Name:
Its: 141Je1 . Its:
By:
Print Name:
Its:
Approved as to Form:
By:
19
Claudia Gacitua Silva
City Attorney
24
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AND SALE
AGREEMENT AND AUTHORIZE CITY STAFF TO ENTER A 30-DAY
ESCROW BY AND BETWEEN THE CITY OF NATIONAL CITY AND
ALTURAS IMPERIAL, LLC, FOR THE SALE OF A RECENTLY VACATED
PORTION OF "G" AVENUE, SOUTH OF EAST 24T" STREET IN NATIONAL CITY
WHEREAS, on December 18, 2012, the City Council adopted Resolution No.
2012-246, which ordered the vacation of the northerly 194 feet of the easterly 15 feet of' "G"
Avenue (the "Property") in association with the construction of a proposed Social Security
Administration Office; and
WHEREAS, the vacated area would allow for the expansion of the proposed
parking lot serving the proposed Social Security Administration Office so that it can accommodate
emergency vehicle access and increased parking for customers; and
WHEREAS, in order to construct improvements upon this property, the developer
for the new Social Security Office desires to purchase the City -owned Property so that
improvements can be constructed upon the Property; and
WHEREAS, the Property does not meet minimum design standards for a buildable
lot, as it is a separate parcel immediately surrounded by parking and road uses, it is not identified
in the General Plan or other plans as being needed for any City development or improvement
projects, and would be of greater benefit to an adjacent property now that it is no longer a right-of-
way; and
WHEREAS, on February 19, 2013, the City Council adopted Resolution No.
2013-24, declaring that the vacated street right-of-way described as the northerly 194 feet of the
easterly 15 feet of "G" Avenue was determined to no longer be necessary for City use, and that
said remnant parcel was declared to be surplus in accordance with City Council Policy 901.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
National City that the vacated street right-of-way described as the northerly 194 feet of the
easterly 15 feet of "G" Avenue has been appraised and its title insured in accordance with City
Council Policy 901, and City staff is directed to enter into a 30-day escrow to sell said remnant
parcel consistent with the terms of the Purchase and Sale Agreement.
BE IT FURTHER RESOLVED that the City Council of the City of National City
hereby authorizes the Mayor to execute the Purchase and Sale Agreement and authorizes the
City Manager or her designee to execute all documents as required by the Purchase and Sale
Agreement and escrow instructions.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST: APPROVED AS TO FORM:
Michael R. Dalla, City Clerk
Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013,
AGENDA ITEM NO.. 18
ITEM TITLE:
Resolution of the City Council of the City of National City authorizing the reallocation of $2,095,492 of U.S.
Department of Housing and Urban Development HOME Investment Partnerships entitlement grant funds to the
Community Development Commission- Housing Authority of the City of National City to be used for the
acquisition and development of a 4.143 acre parcel of land at the corner of 22nd and Hoover Avenue for Phase
I of the Westside In -fill Transit Oriented Development Project comprised of 109 affordable rental units.
PREPARED BY: Carlos Aguirre, Comm. Dev. Spec. If
PHONE: 619.336. 43911
Housing, Grants,&
DEPARTMENT: Asset Management
EXPLANATION: APPROVED BY:
Please see attached background report and explanation.
FINANCIAL STATEMENT:
ACCOUNT NO.
APPROVED:
APPROVED:
Finance
MIS
$2,095,492 in HOME funds previously allocated to the Community Housing Works/ Paradise Creek
Partners, L.P. are available for reallocation,
ENVIRONMENTAL REVIEW:
the U.S. Department of HUD received a NEPA Environmental Assessment from the City and issued the
Authority to Use Grant Funds on 8/15/2012
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt the Resolution
BOARD / COMMISSION RECOMMENDATION:
Not applicable to this report.
ATTACHMENTS:
1. Background Report and Explanation
2. CDC- Housing Authority Application for HOME Funds
Attachment No. 1
Background Report and Explanation
The Westside Infill Transit Oriented Development (WI-TOD), also known as the Paradise
Creek Affordable Housing Project, is a proposed 201-unit affordable housing
development on the east side of Paradise Creek, and the expansion of Paradise Creek
Educational Park on the west side of the creek. The proposed project is based on a
concept that was developed through a neighborhood and stakeholder design participation
process and incorporated into the Westside Specific Plan, which was adopted in 2010.
The current proposed project design was developed with continuing public input and
participation through stakeholder and community meetings.
Development Agreement. After adoption of the Westside Specific Plan, a request for
proposals was issued, and the applicant was selected to develop the site. The applicant
entered into a Disposition and Development Agreement with the Community
Development Commission to develop the project. The agreement is an enforceable
obligation of the Successor Agency to the Community Development Commission (SA).
The entire site is owned by the City; however, the housing portion of the site will be
transferred to the Housing Authority. Pursuant to the Disposition and Development
Agreement, the developer will be required to enter into a long-term ground lease for the
housing site and will manage and operate the housing development, including resident
services and programs. The Community Development Commission -Housing Authority
will retain ownership of the housing site.
Housing Development. The housing development side of the project would consist of two
phases on the east side of Paradise Creek. The first phase would be built on
approximately four acres on the southern portion of the site and would include 109 units
within two buildings and a separate residential services building. The second phase
would be built on approximately two acres on the northern portion of the site and would
include 92 units within two buildings. The anticipated unit mix would include studios, one -
bedroom, two -bedroom, and three -bedroom units on three to four levels within the four
residential buildings. The residential buildings would generally be oriented along 22nd
Street and Hoover Avenue and set back from Paradise Creek with open space along the
creek boundary.
Park Development. The park development side of the project would add nearly four acres
to Paradise Creek Educational Park on the west side of the creek. Paradise Creek
Housing Partners is required to construct the park improvements pursuant to the
Disposition and Development Agreement. The proposed improvements would include a
naturalized planting buffer along Paradise Creek, a lawn area, a community garden, a
playground, a plaza, picnic tables, a pedestrian/bicycle path along the length of the creek,
and tree and shrub plantings along the western edge of the park. Park ownership would
be maintained by the City.
Certificate of Compliance. Consistent with the Parcel Map Waiver approved by the
National City Planning Commission on May 20, 2013 for the WITOD Project, the City of
National City can file a Certificate of Compliance that creates new legal parcels for the
1
Attachment No. 1
development. The entire project site consisted of nine parcels and portions of adjacent
rights -of -way; the Certificate of Compliance divides seven of the parcels into four parcels
to allow the development of the housing on the east side of Paradise Creek and the park
on the west side of the creek. The parcel map consists of 10.27 acres. Parcel 1 is 4.14
acres and would be developed with 109 units and the residential services building as
Phase I of the housing project. Parcel 2 is 2.16 acres and would be developed with 92
units in Phase II. Parcel 3 is 1.33 acres and would be developed with park improvements.
Proposed Parcel 4 is 2.60 acres and would delineate Paradise Creek and Paradise Creek
Educational Park. The Certificate of Compliance creates developable parcels that are
configured based on the proposed phasing of the WITOD project and to allow the leasing
of the parcels pursuant to the Disposition and Development Agreement.
Reallocation of HOME Funds. The City of National City is a Project Jurisdiction that
receives an annual entitlement grant allocation of HOME Investment Partnership (HOME)
Program funds from the U.S. Department of Housing and Urban Development for the
preservation and development of affordable housing in National City. The City allocated
$95,492 of HOME funds in Fiscal Year 2011 and $2,000,000 in Fiscal Year 2013 to
Community HousingWorks on behalf of Paradise Creek Housing Partners, L.P. to fund
predevelopment activities related to the development of 109 affordable housing units
included in Phase I of the Westside In -fill Transit Oriented Development Project.
Community HousingWorks has consented to the reallocation of said HOME funds to the
Community Development Commission -Housing Authority ("CDC -HA") for the purpose of
acquiring the 4.14 acre parcel (Parcel 1) of land designated for 109 newly constructed
affordable rental units at the corner of 22nd and Hoover Avenue. The CDC -HA has
submitted an application to the City of National City for the reallocation of a total of
$2,095,492 in HOME funds for the acquisition of land and development activities eligible
under the HOME program.
Acquisition of Parcels 1 and 2 by the CDC- Housing Authority. The City is the current
owner of Parcel 1 and 2 totaling 6.3 acres, generally bounded by 19th Street, Harding
Avenue, 22nd Street, and Hoover Avenue at WITOD development site. The Successor
Agency to the Community Development Commission as the National City Redevelopment
Agency (SA) is subject to the enforceable obligation commonly referred to as the Westside
Infill Transit Oriented Development Development and Disposition Agreement (DDA),
entered into June 21, 2011 with Paradise Creek Housing Partners, LP (Developer). The
sale of Parcel 1 and 2 to the CDC -HA is being undertaken so that the SA can fulfill its
enforceable obligations pursuant to the requirements of the WITOD DDA. The CDC -HA has
accepted the affordable housing functions of the former redevelopment agency. Appraisals
completed within the last 60 days indicated a value of $3.815 million for Parcel I and $3.22
million for Parcel 2 for a total value of the Property of $7.035 million. The CDC -HA intends
to use $2,094,000 in HOME funds to acquire Parcel I and the CDC -HA has also requested
a loan in the amount of $4,941,000 from the City in order to provide full consideration for the
market value of Parcel 1 and 2.
2
Attachment No. 1
Leaseback of Public Works Yard to the City. Parcel 1 and Parcel 2 will continue to be
occupied by the National City Public Works Department, and the CDC -HA will provide a
month -to -month lease agreement for $1.00 per month until the operation is relocated to
allow for environmental remediation and the development of affordable housing on the site.
Relocation of Public Works Yard and the Purchase of 1726 Wilson Avenue. As part of
the WI-TOD DDA, National City Public Works ("PW') operations at 2100 Hoover Avenue
will need to relocate to other sites in order for the Successor Agency to complete
environmental remediation and develop 201 affordable housing units on Parcel 1 and
Parcel 2. The City's relocation plans for PW have accommodated for a substantial part of
PW operations within existing City facilities. The City still needs to secure a facility that can
house the following PW functions: streets/sewer, vehicle maintenance and storage, and
office space. The City reviewed options for relocation but alternatives that have been
considered are not readily available or do not fully satisfy PW's operational requirements
and do not fall within the timeline for implementing the WI-TOD development. The City
entered into a letter of intent to purchase a 1.17 acre site which fits the needs of PW and
provides 6430 sq. ft. of useable building area including office space and a repair shop
with two large entry bays. The property is commonly known as 1726 Wilson Avenue in
National City. The owners of the 1726 Wilson Avenue site are willing to sell their property
have accepted an offer by the City to purchase the property at a negotiated price of
$1,650,000.
3
Attachment No. 2
APPLICATION GENERAL INFORMATION
Program Name:
Westside Infill Transit Oriented Development (WI-TOD)
Name of Organization
Submitting Proposal:
City of National City Housing Authority
Mailing Address:
1243 National City Boulevard, National City, CA 91950
Main Telephone:
(619) 336-4450
Fax:
(619) 336-4451
Type of Organization
(check all that apply):
CHDO ❑ Faith -Based
• Non -Profit 0 Government ■
Tax ID Number
95-2558328
Dun and Bradstreet
Number (D-U-N-S)
883811150
Program Contact and Title:
Leslie Deese, Executive Director of Housing Authority
Direct Telephone:
(619) 336-4250
Email Address:
Ideese@nationalcityca.gov
Authorized Contact and Title:
Brad Raulston, Executive Director
Direct Telephone:
(619) 336-4450
Email Address:
braulston@nationalcityca.gov
CDBG Funds Requested:
n/a
Minimum CDBG funding
required to complete project:
n/a
National Objective (See pg 4):
1
Performance Measurement
Objective (See pg 5):
Provide Decent Affordable Housing
Performance Measurement
Outcome (See pg 5):
Affordability
HOME Funds Requested
$2,095,492.00
Program Description - Provide a brief description of use to which requested funds would be used
(not to exceed the space provided below).
Fee simple purchase acquisition of approximately 6-acre parcel that will be used for the
development of 109 lower -income apartment units.
Total Number of clients you anticipate serving:
Households:
109
OR
Persons:
Extremely Low
Income
<30% AMI
Low
Income
31-50% AMI
Moderate
Income
51-80s/o AMI
Non -Low
Moderate Income
81-100% AMI
Disabled
Persons
Female
Head of
Households
12
^'// _9,7
Date Received: 6+ lj (?1! j'rj .1 Staff Use
Only
Application
Application
#I
complete:eriincomplete: 0
Number:
Received by: /f°S v# rr"�..
Method:, °Mall Hand Deb ery.
Performance Measurement Objective/Outcome:
gable Activity:
City of National City - FY 2012-2013 CDBG & HOME Application
11
Attachment No. 2
APPLICATION GENERAL INFORMATION (continued)
1) If the applicant is a partnership or is incorporated, list the names of all partners or all board
members and the Board President.
On file with the City of National City Housing Authority
2) Mission or goals of the organization (Attach a copy of the By -Laws and the Articles of
Incorporation):
On file with the City of National City Housing Authority
3) Does the applicant define itself as a faith -based organization? Yes
4) History of the organization:
No X
On file with the City of National City Housing Authority
5) Prior experience with federal programs:
6)
On file with the City of National City Housing Authority
Program Year
Amount funded
Program Name
2011
- 2012
$
2010
- 2011
$
2009
- 2010
$
2008
- 2009
$
2007
- 2008
$
7) Describe internal administrative controls to be used, including financial record -keeping
procedures and management controls. Include copy of financial policies.
On file with the City of National City Housing Authority
City of National City - FY 2012-2013 CDBG & HOME Application
12
Attachment No. 2
8) Describe the record -keeping system to be used to maintain program data.
On file with the City of National City Housing Authority
9) Describe the mechanisms to be used to fulfill responsibilities regarding non-discrimination,
equal employment opportunities, and other relevant local, State and Federal requirements.
On file with the City of National City Housing Authority
10) OMB Circular A-133 requires non-federal entities that expand $500,000 or more in a year in
federal awards shall have a single or program -specific audit conducted for that year in
accordance with OMB Circular A-133.
Is the applicant aware of this audit requirement? Yes X No
If the applicant has met the audit threshold in the last three years, or will meet the threshold
as a result of this program/activity, please attach or provide upon completion a copy of the
audit results.
THIS COMPLETES THE APPLICATION GENERAL INFORMATION.
PLEASE PROCEED TO ONE OF THE FOLLOWING SECTIONS:
➢ SECTION A: PUBLIC SERVICE ACTIVITIES (PAGE 14)
➢ SECTION B: PUBLIC FACILITIES & IMPROVEMENTS (PAGE 17)
➢ SECTION C: RENOVATION/ACQUISITION OF EXISTING HOUSING (PAGE 21)
➢ SECTION D: NEW HOUSING CONSTRUCTION (PAGE 25)
City of National City - FY 2012-2013 CDBG & HOME Application
13
Attachment No. 2
SECTION D: NEW HOUSING CONSTRUCTION
1) Property address:
2020 and 2100 South Hoover Avenue
2) Legal description of property:
On file with the City of National City Housing Authority
3) Do you currently own the property? Yes — NoX_ (If you do not own the property, do
you have an agreement to purchase? Yes _ NoX (If yes, please attach a copy. If you
do not own the property, list the nameand address of the owner(s).
Name: City of National City
Address: 1243 National City Boulevard, National City, CA 91950
Name:
Address:
4) Assessed or appraised value of the property:
To be determined.
5) How many units will be In the project upon completion?
109.
6) How many units will be made exclusively to households within the following categories?
at or below 30% of the median family income (MFI)
12 at or below 50% MFI
at or below 60% MFI
97at or below 80% MFI
over 80% MFI
All projects must Include proiected completion dates and progress timelines, as Identified
below. Projects that do not proceed or meet completion/expenditure timelines may be
canceled with the funding being reallocated.
Insert dates:
Fall 2013 --Receipt of all funding commitments identified for this project
Fall 2013 --Acquisition (if applicable)
N/A --Risk Assessment (If applicable)
Winter 2014 --Plans/specifications prepared
Winter 2014 --Solicitation of bids
Spring 2014 --Bid award
Spring 2014 --Start of construction
Fall 2015 --Completion Date
City of National City - FY 2012-2013 CDBG & HOME Application
25
Attachment No. 2
8) Describe the proposed project.
Development of 109 low- and moderate -income apartment units as first phase of 201-unit
project.
9) Attach a proposed site plan and floor plan of the property. Note: On file with the City of
National City Housing Authority.
10) Attach a 15-year operating Income and expense projection for the project and rate of return
on investment. Note: On file with the City of National City Housing Authority.
11)
Proposed monthly rent/sales price of each
unit
On file with the City of National City Housing
Authority
Occupancy restrictions for each unit
(household income in relation to the
median family income)
On file with the City of National City Housing
Authority
Project characteristics (i.e., congregate
care for the elderly, etc.)
On file with the City of National City Housing
Authority
Identification of utilities included in rent
and utilities to be paid by tenant
On file with the City of National City Housing
Authority
This information will be required upon project completion:
Unit number
Unit size (number of bedrooms)
Unit occupancy (vacant or occupied)
Household income in relation to median
family income
Number of people in the household
Race and ethnicity of the head of
household
Household characteristics (elderly,
female -head of household, disabled, etc.)
Total existing monthly rent (including
utilities)
Proposed monthly rent (Including utilities)
after renovations
Identification of utilities included in rent
and utilities to be paid by tenant
Type of rental assistance, if applicable
(Section 8 certificate or voucher, other
assistance, no assistance)
12) Provide a cost breakdown for the project. (Davis -Bacon wage rates may apply to CDBG
projects with more than eight units and to HOME projects with more than 11 units.)
Cost estimate supplied by:
Name: The Related Companies of California
Title: c/o Rick Westberg, Project Manager
Address: 18201 Von Karman Avenue, Suite 400
Irvine, CA 92612
City of National City - FY 2012-2013 CDBG & HOME Application
26
Attachment No. 2
13) Are all other funds identified for this project available and/or committed? Yes X
(If no, please identify which funds are not and when they will be.)
14) What will be the status of your project If you do not receive CDBG/HOME funding, or if you do
not receive the full amount requested?
Inability to purchase site for project development.
15) Is funding available for cost overruns? YesX No
(If yes, please describe the source and how much is available. If no, how will cost overruns be
handled?
Budgets include 10% contingency. Alternate sources of funds also potentially available.
City of National City - FY 2012-2013 CDBG & HOME Application
27
Attachment No. 2
16) Please complete the activity budget/table below.
Column A: List the items for which you anticipate the need for CDBG/HOME funds during the
2011 Program Year.
Column B: Provide the projected request for CDBG/HOME funds.
Column C: Provide the total of other funds to be used.
Column D: List the name(s) of the other funding source.
Column E: List the total item budget.
Column A
Budget Item
Column B
CDBG/HOME
Request
Column C
Other
Sources
Column D
List Name(s) of Other
Sources
Column E
Total
Budget
Personnel
(List Salaried
Position Job Titles)
Fringe Benefits
Delivery Costs
Acquisition
$2,095,492
Development
Physical Inspection
Architectural
Engineering
Rehab Loan Costs
Permits and Fees
Insurance
Legal Fees
Financing
Appraisal costs
Other:
Budget Total
$2,095,492
THIS COMPLETES SECTION D.
GO TO:
➢ APPLICATION CHECKLIST (PAGE 29)
D APPLICATION CONFLICT QUESTIONNAIRE (PAGE 30)
D APPLICATION CERTIFICATION (PAGE 31)
City of National City - FY 2012-2013 CDBG & HOME Application
28
Attachment No. 2
116Y2LOPa1T/1T C05T2 A 6UOIEI,B BASIC DLTSRMINAT N4
N.Ood City- Pan I.0400 MAW - 21041DM74atoraa
Dewlopmrl Prdnw 1.4
Ad•ktl C'MspanteootLNltondo
Pdrdad oh Wilt 61 1:0170
109 oohs TCAC TCAC
Bndtet %aolld. A,10 4410••u
ACQUISITION COSTS
ParokoseArias 117 056 0
000114014010e Can. 50.000 0% 0
TOTALACQU11mTN COTS 50p00 0% 0
PAO968NONAL Mt
A0611400reA O;yionedng 0614/00 106% 19624300
Olp.r hofwi6nal l O.D4Oos 300,000 10o1 30200
Tina. PAOPE9SC04I P9 2062010 0% 2062.000
0665ANDP6M4170 1,090,010 100% 1p90000
CONSTRUCTION COSTS 0 0% 0
Doloo1111.0 253,000 0% 0
OMR Imp1'atae.4 2,100A76 0% 0
16u-101006.120000/44 0 0% 0
Sb Unpmvemanb 2,112,100 10016 2,112000
Puking 90010t1 6,419,724 160% 6.107,724
lA.duaping/Common Anal 0 100% 0
Aeridw0alshowa 11,040000 10014 15010.203
UM. C4n0021.0 410.060 10010 110,000
Aahkl Cme+qS 0 0% 0
Oonenr Ca0dllinrd 1,340p16 100% 1,510,060
Cmmndo O.uleud 770033 100% 710,055
Cbn6Mr I%01 I,297 7I9 I00% 1,213,100
Canceler larsu 430019 100% 471,919
CarmDwliom Bond Prom,.,, 445,502 100% 14S,502
C4041,441100 Conlina4ry 1,307A17 103% 1,507002
1244000110Sua.alw -Ton OC 0 100% 0
C.a6006o ld.apemsnt 0 100% 0
TOTALiAt$116UC17UN COSTS 31052,95D 074. 39,101,314
POOANCINU 005IT
Acgai,dkan Lan Costs 0 0% 0
Sap Lan Coda 107,000 100% 100,007
Co4001040 Loon Co* 102,000 1001 100000
4a.n0110,104o fool 217,000 10016 217,000
CmtNsdm 96rlad Inbai P67 000 100% 167000
0401.Conoraekon10ueat 907.000 0M 0
P4401406 Ledo Gab 501000 0% 0
Mm.rnita. has 41000 051. 0
Bond broom Cub 200,000 0% 0
ICAO Ptw 61,000 0% 0
1612 Rogow Con 0 0% 0
TOTALPINAWC)N0002T1 1,622.000 0% 1.214,000
0T1[6RCO670
PuOislly,YNara & Qgwpomnl 125000 100% 125,000
11040000104t 175,000 006 0
LaldPea 125,000 10% 37500
Pnpmt2Tax% 35p00 95% 10,750
S44 Col 001601000 100,020 100% 100,000
Adomdipn Bwlmna 0 0% 0
6nrbdnucnrd lama.. Policy 1MMO DO% 120.0d0
hemming /Aoat/Other 60oan. 700,020 WIG 340,000
tAwlapmrOwdrud 1000000 10012 1010,000
D•aTbPsYaa 1.500000 I00% 1,501000
'DcmMOn/Ogn009Aaana 5001100 0% 0
00,44Co&/11460w1 4220/4 0% 0
TOTAL OTHER COSTS 3,020,014 . 0% 3061,710
TOTAL DEYELOP003NTCOSTS Sa,010,964 137.694J64
/TOTAL i0100L5.OAOIO
TUTALBA816AB[NIL73oniMcoda.a AAlaed lfoa6dd eau 14.IC 0
TOTAL ABQUBBna) tUTADIUSIBD BUO@LBBASIS 37694,%4
HOCotl Ana A0Jan.u0 110%
TOTAL ADAI652D 0120IDIS8/1815 49p03,194
40116•16.90,40o,r 100%
TOTAL QUALIFIED OASTS 49.03,194
Teu1 CroditR.du.Oee 0% O
TOTAL ADJUSTED QUALIP4009A015 41,003,194
EXHIBIT 11G"
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Attachment No. 2
SECTION D: NEW HOUSING CONSTRUCTION
QUESTION 12
PROVIDE A COST BREAKDOWN FOR THE PROJECT
Attachment No. 2
UNIT D187RIRV11ON
N6daoal CRV-Piave 0- %dm I4023.3. flog D17A Proforma
Dwtlopm of Protons 5A
%Aoki Companies ef Canteen%
Panted on Vied 1 at 1:45 PM
Teal
Number lawny Cram 1411I4 Net Nei Rent M.nbiy Amosl Bqu.n
Ot11014 Category SR Rem Aluwnce Ant Pee3031 Ant Rem Ud4% B.elrrte
6ndto
1 Bedroom
2
2 bedrooms
49
10%TC
35%TC
40%TC
43%TC
10%7C
40%TC
Marten
Manager
99999999
S30
S38
$at
S36
S30
336
SO
10
t24.3:1g
88a11gffieS
M23R22
•
D
0
0
0
9
0
30%1C FLAT 615 S441 333 1346 3063 31,164 $13,961 304 1,641
3311TC 611 S3 333 0 ok SO SO 0% 0
10%1C KAT 615 3569 $53 $536 80.87 $1,680 831,160 504 3075
SS%TC 615 SO 353 0 W. So 30 0% 6
5014 TC PLAT 613 $736 333 $613 S1.11 36379 6106.541 1254 7,995
30%73.AND RDA FLAT .313 5336 353 3647 $1.11 12349 $24.161 3% 1,143
Maker 6IS SO S0 0 1d. S0 SO 014 0
Mamma 615 $D SO 0 We SO SO 0% 0
30%TCPLAT 625 $330 169 $461 3036 61,323 $16,796 3% 1,445
30%TCTH 940 $330 369 8461 30.49 $922 , $11,064 1% LIM
10%1C PLAT 1133 3707 549 5636 $0.77 33390 530,230 514 4.123
40%1CT11 940 3707 S69 3636 30.68 $3,190 $31,200 5% 4,700
30%7C FLAT 625 S403 369 3814 50.99 $9,768 5117.216 11% 9,900
50%TCTN 940 4033 349 6114 S0,S4 $9,760 $117,216 II% 11,240
5074TC MO IDA PLAT 825 6849 $69 5780 30.95 $3,110 S37,440 4% 3.300
3054TC AND RDA TT( 940 4849 569 $700 50.83 $3.900 846.090 554 4.700
Minim 035 SO SO 0 d. SO S0 0% 0
t6ua8or 940 S9 S0 0 Ws 60 30 1% 940
3 Dedruem
1 3044,TC TX 1,131 $612 U4 $520 $6.43 52,112 325a44 4% 4,940
0 33%7C 1,235 SD S31 0 da 86 SO 0% 0
8 40047CTN 1,233 S816 $114 S732 SO.39 55,856 370,272 7% 0,880
0 45%7C 1,235 SO S64 0 d. 60 SO 0% 0
12 50%7CTH 1,233 51,020 SW 6936 10,76 316,043 S202,176 17% 22,130
6 30%7C AND RDA TN 8,235 4944 364 1160 30.70 55,160 $61,920 6% 1,410
0 SFuket 1,235 SD so a eie so SO 0% a
0 Meer" 1,233 50 SO 0 we SO SO 014 9
36
4 Bedroom
D.RDisM6.U.n Summary
30% TC
33%TC
40%TC
43% TC
50% TC
60% TC
Minkel
Mamba
S0 S107 0 ok SO 30 013
SO $107 0 1J. 30 40 0%
SO 5107 0 nl. SO SD O%
30 S107 0 d4 60 So 0%
10 5107 0 .J. SO SO a%
30 8107 0 da 80 80 0%
S0 S0 0 1.k 0 30 0%
m 30 D d. 60 m 0%
Seminars drone Units Tete1% MII She Uele TeAI%
TealeIBF , 102,520 30%7C 12 1i34 SIail 0 016
Aq. Ike SF 911 55%TC 0 0Si 1Bedroom 24 32%
Stole* Km 379,09 40%7C 13 23% 1Sodom= 49 IS%
Amosl Rem $959.1144 45%7C 0 094 3Bedrooms 36 33%
Oro. Am (excl. miler's) 6711 5016TC et RDA 16 17% I Bedrooms 0 0%
30%7C 55 SI%
Mi. Root PSF (e.d. rrmgds) 80,79 60%TC 0 074 Taut 109 100%
Ballrooms 230 SWIM 0 0%
11010161 106 100%
UMW, 1
Teal 100
EXHIBIT "Gel
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Attachment No. 2
SECTION D: NEW HOUSING CONSTRUCTION
QUESTION 11
UNIT DISTRIBUTION
Attachment No. 2
STADIUZED C4543 FLOW ANALYSIS
14060001 Q(y - PIMP I - Sip 1k2k3 -nod DNA P09(9rw•
Ilpeleoewol Prefymp 1.4
r MN Complain O7cdi64 16
\ ad on 3/(1/120(lU9AM
Loot Chased 0n: 1412011 292 PM
Poor A 7 9 )0 11 11 0 14 n
1NCOML
01v.9Ma64m.0 159061 91),167 1208.481 1503,672 2059,315 1,106023 1,113,151 1,110911 1)0%506 2190144 1321111 IA59,450 1350916 1323.111 7J14361
O..i.1:1ys,651 0 0 • 0 0 0 0 0 0 0 0 0 0 0 0
1w4081271062•0 7040 1044 8,245 0111 6461 1311 9.101 9119 9501 9)01 10206 16,291 10,355 10019 11009
Met Mass 9 0 0 6 0 0 8 1 0 0 0 0 1 0 0
'ilu.w*J.M6 %P'.7A., (L6,w11/ <50,615, (fl,J , 051.- 0: (54:.44. (7I11), (52.51(1 (26,951. 00.1271 (6I.1i4, Vol ,Il 1 101111 (66.7,1J1 VS:1411
041A4m 1, 0 0 0 0 9 0 0 0 0 0 0 0 0 0 0
v0,a40•e 1031X 0 0 • • 0 • 0 0 0 0 0 0 0 0 0
7:11GCf15'5gauss 196671111 C 919530 943315 045.471 4*010 1034710 1440,110 30E4.141 1075,710 1110,113 3.240,117 106A20 (10674 1,154.1/7 1767707 110590
S%12No16
AL4iLn,Ao ,.12,0001 .44303J 144„655 ,4149_) 151459, 815.1141 .512:11 .57.97) ,27.561 161371) 505.977) 4058,77) a1:2,1) 002103 cyxh)
4a0mewfl1Q60% (7;160, IOy5:9. (5;911) (59;013, ((4(R6, (ri,•41, {N9,A1 (42591, 07,797, (rkW), 1793011, 173771, (7(.174, (76014. {]7Yte,
01m1111 (111.106) (l4KI40 I111252/ (15(3471 (161.03) 11672.2I 1171,14 i1 ll72.4133 11257121 (15 ,4)6) (1¢.,I111 (Onto]) (2i1,1511 (1503074) (2/1; n)
mimosa ISSSV111 I1.•,031 01:.v173 ((<Y1341 ,632144 1412531 (7.4141 192.51 02.6741 (7.11501 411511. 01771. M'•NL) 10: n12) ts18Iz
4040.0.1 ,115042 119..7172 '12611, .114,8721 6154,8M, ,180,711. ,169947, 1171,1311 +.177,2991 7181,9011 (1141,151) l IY1044 (103,:"t8 6711,1,11 .7169143
7002 0,1514) (7.1ir1) (5740'] 14(114 (54)5) (55201 (511111 (57451 15.996, (1:.731 1244,1) (0.317) 14.141) (92i3) (0517)
*mod Lase 135.30 (J51,IG, (755W, (75f1J1 (77..29 (75:2,,11 (721401 051212 (J5,(hOl (351403 (11195JI 47300. (i) 71.1 (110191 (79)491
W..Q ,12.44)1 ,76255) 71407) ,76585) 0041 9113i,fl 1414441 .441260 .19011) ,1-.1911 439,111) 151609) 01015 ,34711) (364311
710144 4@W„ .4 50') 0:1211 Vitrb fli f 01191 O:x.1 .i:94) 422I ) I•ITb WAG. .sThu, lu0n, 4033L ,0710,
4.04140451110050, 1727,4l (35.5351 ,7:71')) 1101,79J 4144.375, ,1111049) 11129551. 1117,708 1117.0421 ,l027415 4102103 0_45,9391 (,40,.17A1 5144a79) 4151013t
TOTAL 071:1417100 IPC111314 0.451391 1(4,1.481) 16414671 (105.6)61 1731.4,6) ,]41525) (7513h`7 (1321111 1195011 (1.1.17151 4010063) 1.010291 (1700131 4954.9415 .199971
NET 091101714411400215 214271 117S31 211304 244,100 711333 171343 734730 191,333 300014 )01119 701.110 ]M317 110164 312515 314371
OCp➢63.2W3(t
Po,mO•w W10sl•(7n.tl,. A) 12104771 01122775 1710.2531 121(,.0721 ,711011 019217) 4310:172, 471011/1/21111/21 0.10411/ 1110,1121 1214221) (310.721 41145713 41/04271
Rahn 0114PwY (]Y.l) 0 0 0 0 0 0 1 p 0 0 0 0 0 0 0
6i M,SM141611.,M1. 67,110 06, 61 10512 7001 71,301 005641 17,710 16,144. 19441 07.147 12116 4,141 99,412 101514 101,113
4044 I10 132 I31 133 1.37 120 1610 1.41 IA IM 1,45 146 1.47 146 (.19
AVMs (530M NMI (LIPS) (5A64) (509) (5.1/6) (SSW) (6,149) 1824) (,92O (0.210) 40,921] (1139) 054)) {25631
2402•014M01400•195108 (n3O) (15750) (76Sn1 (21719) P6171) (11BI1) (11A511 00,7a1) 0136s1 01119) 17133911) 124,8013 (]56%) (56.712) (174157
Cd 21e0AR4104 72,7113 16,561 )0,703 41117 43,616 45,651 97316 49,416 51019 35104 74.561 11,111 26040 37,312 21,112
(90016.9044'40411],.64€1525d3817 42011 5).741 59504 62113 70117 76130 11A(9 17.220 124II 97,745 101.641 107130 111079 117514 121,911
2-9 010 19 Crab 31e• AOer feu 11M1.0
.085.Fe" 0.0wl159,5i,ill 0 0 • 0 0 a o 0 0 0 0 0 o 0 0
ivl(AFA'53%) 0 0 • 0 • 0 0 0 0 0 0 0 0 0 0
b
Lao P.p0o,➢.4w MOAN.<SNP. 0 0 • • • 0 0 0 • 0 0 0 0 0 0
Owd3 t'I%Aemee We01e5L 0 O • 0 0 4, 0 0 0 0 • 0 0 0 0
NH Co. 11180 AIMM0a14J4r1w Myargul 35,103 16361 18,705 41,227 4/416 45061 41516 493.6 5)4)9 51104 51501 55711 24040 3711R 57711
04.0370n'b erg 1.148. Pld loan (14%)
Clg5bw%C11W 150494191k v11.14%.(J6%1
C10'704Nbad.L00 HAW
8402000.25A
uW Sbu9'y%e01
614001.MWW
4.750 5,153 1519 5090 4,131 6132 6051 7,151 7317 1501 1.711 7.90 1.001 1/W 1,541
11100 12071 11)n 14714 15,577 165W 33127 17114 11412 1001 194419 19395 15921 211971 20021
64611340 63410147 6,0,0111 65170,502 6.100On 600441 6,035/05 6M3054 94.1 911 60105/3 49706 31A4 61N4AA! 0.101,170 6.10M10 6212601
11401 15070 12010 II,OW I3,p00 13,000 15000 12,900 13020 13)00 12000 15000 15000 15)18 33060
(0.751 (1.1121 (35271 154001 (6_'11 1.2531 (F9511 C.1211 03P1 own) I7.T955 (?.tin (64011 p1.in) (424(1
6N10142 01410461 61)29563 4)31613 6041,441 2055,115 6)64)39 6071912 6,077513 6106934 6041.137 6,101515 6.1002•1 6.11450. 1211011
1711W 11wsnal444»N Lau SAX)
100N0O1010•04014wv 14A57A00 I4N3,4M Is001))6 13430,774 43051534 15)744/1 15P00}n 15117,00 13,137,511 15,1565115 15,171476 15,194771 11)11110 ls1Wj16 1331/311
4000m1401(24 27131 37.U6 31AI1 3757/ 31.630 314)9 77141 71.794 27.514 31)91 151440 11,014 71025 21076 31010
Oup 91e44y isol (121011 1171711 (15)735 (1.1,7151 (155731 WO. (17,1231 1170161 (121.1921 D35411 1(9,UW NO1M. <:e12e, 151.71, (3634711
1340611,01400.e00s 16,911,499 15312110 15350,771 15011024/50/5011 15916310 13,111006 15,127,511 /5,156065 15.175076 13.1 4)27 15711,413 11,1)0,219 11147.111 13,265020
CAM 0, 5514ba IC Tugs 1w(1556)
Oeggi•01,•6044404 4563342 44564 6 4,651111 43147,411 411.1,217 4014.745 /,617344 4630072 4A11,109 4305A41 4597A61 4.510111 11,510430 1.112.114 4.363136
%u14%o10M • 0 0 0 0 0 0 0 0 0 0 0 0 0 0
C181Fbn'➢55s,11 96,251 154„2,) ,A,P12 {8.14.4) 985411 IA.291 (15tla1 ]5449) 17Y1i) .7•2111 14,19.43 44,15%) I2d16) 40IO2. 145611
pd6glan4.4,o 4,6344111 4A53171 45)47671 4041117 4039743 4027011 4170071 013,119 9003513 4579,56) 4512170 450 010 4575.424 4563.116 4563165
Attachment No. 2
SECTION D: NEW MOUSING CONSTRUCTION
QUESTION 10
15-YEAR OPERATING INCOME AND EXPENSE
PROJECTION
Attachment No. 2
APPLICATION CERTIFICATION
I certify that I have read and understand all the instructions related to this application and the
Information provided is true and correct; the document has been duly authorized by the governing
body of the applicant; and the applicant will comply with assurances, federal, state and local laws &
regulations if funding is approved. I have reviewed the standard subreciplent agreement required
for participation I the CDBG/HOME Program available on the City's webslte www.nationalcitvca.00v.
,.� SIN113
Signature of Director/Owner Date Signature of Board President Date
Leslie Deese
Executive Director of Housing Authority
Certification must be signed by any and all owners.
Signature of Owner Date Signature of Owner Date
Signature of Director/Owner Date Signature of Board President Date
Signature of Director/Owner Date Signature of Board President Date
City of National City - FY 2012-2013 CDBG & HOME Application
31
RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE REALLOCATION OF $2,095,492 OF U.S. DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT HOME INVESTMENT PARTNERSHIPS ENTITLEMENT
GRANT FUNDS TO THE COMMUNITY DEVELOPMENT COMMISSION — HOUSING
AUTHORITY OF THE CITY OF NATIONAL CITY TO BE USED FOR THE ACQUISITION AND
DEVELOPMENT OF A 4.143 ACRE PARCEL OF LAND AT THE CORNER OF 22ND AND
HOOVER AVENUE FOR PHASE I OF THE WESTSIDE IN -FILL TRANSIT ORIENTED
DEVELOPMENT PROJECT COMPRISED OF 109 AFFORDABLE RENTAL UNITS
WHEREAS, the City of National City is a Project Jurisdiction that receives an
annual entitlement grant allocation of HOME Investment Partnership (HOME) Program funds
from the U.S. Department of Housing and Urban Development for the preservation and
development of affordable housing in National City; and
WHEREAS, the City allocated $95,492 of HOME funds in Fiscal Year 2011 and
$2,000,000 in Fiscal Year 2013 to Community HousingWorks on behalf of Paradise Creek
Housing Partners, L.P., to fund predevelopment activities related to the development of 109
affordable housing units included in Phase I of the Westside In -fill Transit Oriented Development
Project ("WI-TOD"); and
WHEREAS, Community HousingWorks has consented to the reallocation of said
HOME funds to the Community Development Commission — Housing Authority ("CDC -HA") for
the purpose of acquiring the 4.143 acre parcel of land designated for 109 newly constructed
affordable rental units at the corner of 22nd and Hoover Avenue; and
WHEREAS, the CDC -HA has submitted an application for said HOME funds for
the acquisition of land and development activities that are eligible under the HOME program.
NOW THEREFORE BE IT RESOLVED that the City Council of the City of
National City hereby authorizes the reallocation of HOME funds in the amount of $2,095,492 to
the Community Development Commission — Housing Authority for the acquisition and
development of a 4.143 acre parcel of land for Phase I of the WI-TOD comprised of 109
affordable rental units.
BE IT FURTHER RESOLVED that the City Manager or her designee is hereby
authorized to execute all grant -related documents.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST: APPROVED AS TO FORM:
Michael R. Dalla, City Clerk Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO.19
ITEM TITLE:
Resolution of the City Council of the City of National City authorizing the Mayor to execute a Purchase and Sale
Agreement with the Community Development Commission - Housing Authority of the City of National City ("CDC -HA") for
the sale of two parcels of land totaling 6.299 acres for a total purchase price of $7,035,000, generally bounded by 19th
Street, Harding Avenue, 22nd Street, and Hoover Avenue, in the City of National City, for the development of 201
affordable housing units as Phase I and II of the Westside In -fill Transit Oriented Development Project, approving a loan
from the City of National City to the CDC -HA for $4,941,000 to complete said purchase, and approving the Month -to -Month
Leaseback of the subject property from the CDC -HA.
PREPARED BY: Carlos Aguirre, Comm. Dev. Spec. II
PHONE: 619.336.4391:
EXPLANATION:
Please see attached background report and explanation.
DEPARTMENT:
Housing, Grants,&
Asset Management
APPROVED R_ --— ,
FINANCIAL STATEMENT: APPROVED: 61 (l
ACCOUNT NO.
APPROVED:
Finance
MIS
HOME funds reallocated to the CDC -HA will provide $2,094,000 and the City will carry back a loan for
$4,941,000.
ENVIRONMENTAL REVIEW:
The Certified Environmental Impact Report for the Westside Specific Plan analyzed a transit oriented
development for this site.
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt the Resolution
BOARD / COMMISSION RECOMMENDATION:
The Planning Commission approved the Tentative Parcel Map and Variance on June 5, 2012 and approved a Parcel Map
Waiver on May 20, 2013 that included findings of consistency with the General Plan for the WITOD Project.
ATTACHMENTS:
1. Background Report and Explanation
2. Purchase and Sale Agreement
3. Promissory Note and Grant Deed
4. Month -to -Month Lease
Attachment No. 1
Background Report and Explanation
The Westside Infill Transit Oriented Development (WI-TOD), also known as the Paradise
Creek Affordable Housing Project, is a proposed 201-unit affordable housing
development on the east side of Paradise Creek, and the expansion of Paradise Creek
Educational Park on the west side of the creek. The proposed project is based on a
concept that was developed through a neighborhood and stakeholder design participation
process and incorporated into the Westside Specific Plan, which was adopted in 2010.
The current proposed project design was developed with continuing public input and
participation through stakeholder and community meetings.
Development Agreement. After adoption of the Westside Specific Plan, a request for
proposals was issued, and the applicant was selected to develop the site. The applicant
entered into a Disposition and Development Agreement with the Community
Development Commission to develop the project. The agreement is an enforceable
obligation of the Successor Agency to the Community Development Commission (SA).
The entire site is owned by the City; however, the housing portion of the site will be
transferred to the Housing Authority. Pursuant to the Disposition and Development
Agreement, the developer will be required to enter into a long-term ground lease for the
housing site and will manage and operate the housing development, including resident
services and programs. The Community Development Commission -Housing Authority
will retain ownership of the housing site.
Housing Development. The housing development side of the project would consist of two
phases on the east side of Paradise Creek. The first phase would be built on
approximately four acres on the southern portion of the site and would include 109 units
within two buildings and a separate residential services building. The second phase
would be built on approximately two acres on the northern portion of the site and would
include 92 units within two buildings. The anticipated unit mix would include studios, one -
bedroom, two -bedroom, and three -bedroom units on three to four levels within the four
residential buildings. The residential buildings would generally be oriented along 22nd
Street and Hoover Avenue and set back from Paradise Creek with open space along the
creek boundary.
Park Development. The park development side of the project would add nearly four acres
to Paradise Creek Educational Park on the west side of the creek. Paradise Creek
Housing Partners is required to construct the park improvements pursuant to the
Disposition and Development Agreement. The proposed improvements would include a
naturalized planting buffer along Paradise Creek, a lawn area, a community garden, a
playground, a plaza, picnic tables, a pedestrian/bicycle path along the length of the creek,
and tree and shrub plantings along the western edge of the park. Park ownership would
be maintained by the City.
Certificate of Compliance. Consistent with the Parcel Map Waiver approved by the
National City Planning Commission on May 20, 2013 for the WITOD Project, the City of
National City can file a Certificate of Compliance that creates new legal parcels for the
1
Attachment No. 1
development. The entire project site consisted of nine parcels and portions of adjacent
rights -of -way; the Certificate of Compliance divides seven of the parcels into four parcels
to allow the development of the housing on the east side of Paradise Creek and the park
on the west side of the creek. The parcel map consists of 10.27 acres. Parcel 1 is 4.14
acres and would be developed with 109 units and the residential services building as
Phase I of the housing project. Parcel 2 is 2.16 acres and would be developed with 92
units in Phase II. Parcel 3 is 1.33 acres and would be developed with park improvements.
Proposed Parcel 4 is 2.60 acres and would delineate Paradise Creek and Paradise Creek
Educational Park. The Certificate of Compliance creates developable parcels that are
configured based on the proposed phasing of the WITOD project and to allow the leasing
of the parcels pursuant to the Disposition and Development Agreement.
Reallocation of HOME Funds. The City of National City is a Project Jurisdiction that
receives an annual entitlement grant allocation of HOME Investment Partnership (HOME)
Program funds from the U.S. Department of Housing and Urban Development for the
preservation and development of affordable housing in National City. The City allocated
$95,492 of HOME funds in Fiscal Year 2011 and $2,000,000 in Fiscal Year 2013 to
Community HousingWorks on behalf of Paradise Creek Housing Partners, L.P. to fund
predevelopment activities related to the development of 109 affordable housing units
included in Phase I of the Westside In -fill Transit Oriented Development Project.
Community HousingWorks has consented to the reallocation of said HOME funds to the
Community Development Commission -Housing Authority ("CDC -HA") for the purpose of
acquiring the 4.14 acre parcel (Parcel 1) of land designated for 109 newly constructed
affordable rental units at the corner of 22nd and Hoover Avenue. The CDC -HA has
submitted an application to the City of National City for the reallocation of a total of
$2,095,492 in HOME funds for the acquisition of land and development activities eligible
under the HOME program.
Acquisition of Parcels 1 and 2 by the CDC- Housing Authority. The City is the current
owner of Parcel 1 and 2 totaling 6.3 acres, generally bounded by 19th Street, Harding
Avenue, 22nd Street, and Hoover Avenue at WITOD development site. The Successor
Agency to the Community Development Commission as the National City Redevelopment
Agency (SA) is subject to the enforceable obligation commonly referred to as the Westside
Infill Transit Oriented Development Development and Disposition Agreement (DDA),
entered into June 21, 2011 with Paradise Creek Housing Partners, LP (Developer). The
sale of Parcel 1 and 2 to the CDC -HA is being undertaken so that the SA can fulfill its
enforceable obligations pursuant to the requirements of the WITOD DDA. The CDC -HA has
accepted the affordable housing functions of the former redevelopment agency. Appraisals
completed within the last 60 days indicated a value of $3.815 million for Parcel 1 and $3.22
million for Parcel 2 for a total value of the Property of $7.035 million. The CDC -HA intends
to use $2,094,000 in HOME funds to acquire Parcel I and the CDC -HA has also requested
a loan in the amount of $4,941,000 from the City in order to provide full consideration for the
market value of Parcel 1 and 2.
2
Attachment No. 1
Leaseback of Public Works Yard to the City. Parcel 1 and Parcel 2 will continue to be
occupied by the National City Public Works Department, and the CDC -HA will provide a
month -to -month lease agreement for $1.00 per month until the operation is relocated to
allow for environmental remediation and the development of affordable housing on the site.
Relocation of Public Works Yard and the Purchase of 1726 Wilson Avenue. As part of
the WI-TOD DDA, National City Public Works ("PW') operations at 2100 Hoover Avenue
will need to relocate to other sites in order for the Successor Agency to complete
environmental remediation and develop 201 affordable housing units on Parcel 1 and
Parcel 2. The City's relocation plans for PW have accommodated for a substantial part of
PW operations within existing City facilities. The City still needs to secure a facility that can
house the following PW functions: streets/sewer, vehicle maintenance and storage, and
office space. The City reviewed options for relocation but alternatives that have been
considered are not readily available or do not fully satisfy PW's operational requirements
and do not fall within the timeline for implementing the WI-TOD development. The City
entered into a letter of intent to purchase a 1.17 acre site which fits the needs of PW and
provides 6430 sq. ft. of useable building area including office space and a repair shop
with two large entry bays. The property is commonly known as 1726 Wilson Avenue in
National City. The owners of the 1726 Wilson Avenue site are willing to sell their property
have accepted an offer by the City to purchase the property at a negotiated price of
$1, 650, 000.
3
City of National City
Office of the City Clerk
1243 National City Blvd., National City, CA 91950-4397
Michael R. Dalla — City Clerk
(619)336-4226 (619) 336-4229
NOTE TO FILE
The following document titled:
PURCHASE AND SALE AGREEMENT
(Westside TOD Affordable Site APNs: 559-124-00, 560-391-08-00 and 560-
396-06-00)
In an amended version of the original document included in the Agenda Packets and
were distributed at the City Council meeting prior to action by the City Council.
The amended document relates to Agenda Items # 19 on the City Council Agenda for
the meeting of August 20, 2013.
8/20 Agenda Items 19 8, 25
Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
PURCHASE AND SALE AGREEMENT
(Westside TOD Affordable Site, National City, 91950)
(APNs: 559-124-05-00, 560-391-08-00, and 560-396-06-00)
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20a' day
of August, 2013 ("Effective Date") by and between City of National City ("Seller") and the
Community Development Commission -Housing Authority of the City of National City
("Purchaser").
RECITALS
A. The Seller owns the fee interest in that certain parcel of real property legally
described in Exhibit A-1 attached hereto ("Parcel 1 ") and the fee interest in that certain parcel of
real property legally described in Exhibit A-2B attached hereto ("Parcel 2"). Parcel 1 and Parcel
2, are defined hereinbelow, collectively as the "Real Property." The Real Property is generally
bounded by 19`t' Street, Harding Avenue, 22nd Street and Hoover Avenue in National City,
California.
B. The successor agency to the Community Development Commission as the
National City Redevelopment Agency ("Successor Agency") is subject to the enforceable
obligation commonly referred to as the Westside Infr11 Transit Oriented Development (WI-TOD)
Disposition and Development and Disposition Agreement ("DDA"), entered into June 21, 2011
with Paradise Creek Housing Partners, LP. The DDA requires the Real Property to be acquired
for and developed into a 201 unit affordable housing project. The Purchaser's purchase of Parcel
1 and Parcel 2 is being undertaken pursuant to the requirements of the DDA and as an
enforceable obligation of the Successor Agency. The Purchaser accepted the affordable housing
functions of the Community Development Commission of the City of National City as the
Redevelopment Agency of the City of National City former redevelopment agency pursuant to
resolution number 2012-01. The value of the consideration for the Real Property (i.e., the Parcel
1 Purchase Price for Parcel 1 and the Parcel 2 Purchase Price for Parcel 2), is not less than the
appraised value of the Real Property. The consideration being paid for Parcel 1 is the Parcel 1
Purchase Price of Three Million Eight Hundred Fifteen Thousand and No/100 Dollars
($3,815,000.00), which equals the appraised value of Parcel 1 as determined by that certain Land
Appraisal performed by Lea & Company effective as of June 27, 2013, but dated June 30, 2013.
The consideration being paid for Parcel 2 is the Parcel 2 Purchase Price of Three Million Two
Hundred Twenty Thousand and No/100 Dollars ($3,220,000.00), which equals the appraised
value of Parcel 2 as determined by that certain Land Appraisal performed by Lea & Company
effective as of June 27, 2013, but dated June 30, 2013. Provided the various conditions to
Closing (as defined below) set forth in this Agreement are satisfied, the Seller agrees to sell the
Property (as defined below) to the Purchaser and the Purchaser agrees to purchase the Property
from the Seller as set forth in this Agreement.
C. The Purchaser is acquiring Parcel 1 in part utilizing United States Department of
Housing and Urban Development HOME funds. After Closing, the Seller will temporarily lease
the Property back from the Purchaser on a month -to -month basis for a total consideration of
$1.00 per month. After the Seller vacates the Property, the Purchaser shall cause Parcel 1 to be
1
8/20 Agenda Items 19 & 25
Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
developed as the "Phase I Project," as defined in the DDA, which shall be an affordable rental
housing project for persons and families of very low and low income. Construction and
operation of the Phase 1 Project shall be governed by all applicable United States Department of
Housing and Urban Development regulations and shall be consistent with the California
Community Redevelopment Law whether or not specifically referenced in this Agreement.
Failure of the Purchaser to cause Parcel 1 to be developed as an affordable rental housing project
for persons and families of very low and low income shall be a default hereunder. This
obligation shall not be merged into the Grant Deed and shall survive the Closing.
AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are acknowledged, the Seller and the Purchaser hereby agree as follows:
1. Purchase, Sale and Leaseback. In consideration of the mutual covenants set forth in this
Agreement, the Purchaser will acquire all of the Property, on the terms and conditions set forth
herein, provided the various conditions to Closing set forth in this Agreement are satisfied.
(a) Sale of the Property. The Seller agrees to sell the Property to the Purchaser, and
the Purchaser agrees to purchase the Property from Seller, on the terms and conditions set forth
herein. At Closing, the Seller shall convey the fee interest in the Real Property to the Purchaser
by recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title
Policy (as defined below) to the Purchaser at Closing.
(b) Possession of the Property, Leaseback. The Seller shall deliver possession of the
Property to Purchaser at Closing, subject only to the Title Exceptions, all as defined hereinbelow.
Notwithstanding the foregoing, after Closing the Purchaser will allow the Seller to lease the
Property from the Purchaser on a month -to -month basis for a total consideration of $1.00 per
month, as set forth in the Lease.
2. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
"Agreement" means this Purchase and Sale Agreement between the Seller and the
Purchaser.
"Applicable Environmental Law" means all laws applicable to the presence of any
Hazardous Materials (as defined below) on or within the Property, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601,
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, et seq.); the Clean
Water Act (33 U.S.C. §2601, et seq.); the Safe Drinking Water Act (14 U.S.C. §300f, et seq.);
the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); the Toxic Substances
Control Act (15 U.S.C. §2601, et seq.); the Federal Water Pollution Control Act (33 U.S.C.
§1300, et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136, et seq.);
the Atomic Energy Act (42 U.S.C. §2011, et seq.); the Nuclear Waste Policy Act (42 U.S.C.
§10101, et seq.); the Clean Air Act (42 U.S.C. §7401, et seq.); the California Hazardous Waste
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
Control Act (California Health and Safety Code §25100, et seq.); the Carpenter -Presley -Tanner
Hazardous Substance Account Act (California Health and Safety Code §25300, et seq.); the Safe
Drinking Water and Toxic Enforcement Act ("Proposition 65") (California Health and Safety
Code §25249.5, et seq.); and the Porter -Cologne Water Quality Control Act (California Water
Code §13000, et seq.); and any similar federal, state or local laws, all regulations and
publications implementing or promulgated pursuant to the foregoing, as any of the foregoing
may be amended or supplemented from time to time.
"Business Day" means any day other than a Saturday, Sunday or any other day on which
Purchaser or Escrow Agent is not open for business. In the event any date, deadline or due date
set forth in this Agreement falls on a day that is not a Business Day, then such deadline or due
date shall automatically be extended to the next Business Day.
"Close" or "Closing" means the close of Escrow as provided herein, which shall not be
later than the last day of the Due Diligence Period.
"Closing Date" means the date on which the Closing occurs, which date shall be August
28, 2013.
"Conditions Precedent for the Benefit of the Seller" shall have the meaning set forth in
Section 5 of this Agreement.
"Conditions Precedent for the Benefit of the Purchaser" shall have the meaning set forth
in Section 6 of this Agreement.
"Deposit" shall have the meaning set forth in Section 3(b)(1) of this Agreement.
"Due Diligence Period" means the period of time commencing on the Effective Date and
ending on July 15, 2013.
"Effective Date" is defined above.
"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
"Escrow Agent" means Carla Burchard at Stewart Title Company, 5740 Fleet Street,
Suite 100, Carlsbad, California 92008.
"Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple
title to the Real Property from the Seller to the Purchaser, in the form attached hereto as Exhibit
B.
"Hazardous Materials" means:
(1) Those substances included within the definitions of "hazardous substance,"
"hazardous waste," "hazardous material," "toxic substance," "solid waste," "pollutant" or
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"contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery
Act (42 U.S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. §2601 et seq.); the Toxic
Substances Control Act (15 U.S.C. §9601 et seq.); the Hazardous Materials
Transportation Act (49 U.S.C. §1801 et seq.); or under any other Environmental Laws.
(2) Those substances included within the definitions of "Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under §§251 15, 25117 or
25122.7 of the California Health and Safety Code, or is listed or identified pursuant to
§§25140 or 44321 of the California Health and Safety Code.
(3) Those substances included within the definitions of "Hazardous Material,"
"Hazardous Substance," "Hazardous Waste," "1'oxic Air Contaminant' or "Medical
Waste" under §§25281, 25316, 25501, 25501.1, 25023.2 or 39655 of the California
Health and Safety Code.
(4) Those substances included within the definitions of "Oil" or a "Hazardous
Substance" listed or identified pursuant to §311 of the Federal Water Pollution Control
Act, 33 U.S.C. §1321, as well as any other hydrocarbonic substance or by-product.
(5) Those substances included within the definitions of "Hazardous Waste,"
Extremely Hazardous Waste" or an "Acutely Hazardous Waste" pursuant to Chapter 11
of Title 22 of the California Code of Regulations.
(6) Those substances listed by the State of California as a chemical known by the
State to cause cancer or reproductive toxicity pursuant to §25249.9(a) of the California
Health and Safety Code.
(7) Any material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures, damages or threatens to damage,
health, safety, or the environment, or is required by any law or public agency to be
remediated, including remediation which such law or public agency requires in order for
the property to be put to any lawful purpose.
(8) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field
Manual, whether or not the presence of such material resulted from a leaking
underground fuel tank.
(9) Pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. § 136 et seq.
(10) Asbestos, PCBs, and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq.
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
(11) Any radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," "low-level wastes,"
"high-level radioactive waste," "spent nuclear fuel" or "transuranic waste" and any other
radioactive materials or radioactive wastes, however produced, regulated under the
Atomic Energy Act, 42 U.S.C. §§2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C.
§§10101 et seq., or pursuant to the California Radiation Control Law, California Health
and Safety Code §§25800 et seq.
(12) Any material regulated under the Occupational Safety and Health Act, 29
U.S.C. §§651 et seq., or the California Occupational Safety and Health Act, California
Labor Code §§6300 et seq.
(13) Any material regulated under the Clean Air Act, 42 U.S.C. §§7401 et seq.
or pursuant to Division 26 of the California Health and Safety Code.
(14) Those substances listed in the United States Department of Transportation
Table (49 CFR Part 172.101), or by the Environmental Protection Agency, or any
successor agency, as hazardous substances (40 CFR Part 302).
(15) Other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state or local laws or regulations.
(16) Any material, waste or substance that is a petroleum or refined petroleum
product, asbestos, polychlorinated biphenyl, designated as a hazardous substance
pursuant to 33 U.S.C. §1321 or listed pursuant to 33 U.S.C. §1317, a flammable
explosive or a radioactive material.
"Immediately Available Funds" means a bank wire transfer or a certified bank or
cashier's check.
"Improvements" means collectively: (i) any and all buildings, structures and
improvements, of any kind whatsoever, located at or affixed to the Real Property; (ii) all rights,
privileges and easements appurtenant to the Real Property, if any, including, without limitation,
all minerals, oil, gas and other hydrocarbon substances on and under the Real Property, if any;
and (iii) all development rights, air rights, and water rights if any, relating to the Real Property.
"Lease" means a lease in the form attached hereto as Exhibit C.
"Parcel 1" means that certain parcel of real property legally described in Exhibit A-1
attached hereto.
"Parcel 1 Purchase Price" means the purchase price to be paid by the Purchaser for Parcel
1, which shall be Three Million Eight Hundred Fifteen Thousand and No/100 Dollars
($3,815,000.00), which amount equals the appraised value of Parcel 1 as determined by that
certain Land Appraisal performed by Lea & Company effective as of June 27, 2013, but dated
June 30, 2013. A portion of the Parcel 1 Purchase Price only, is being paid by the Purchaser
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
utilizing Two Million Ninety -Four Thousand and No/100 Dollars ($2,094,000.00) of United
States Department of Housing and Urban Development HOME funds. None of the United States
Department of Housing and Urban Development HOME funds are being used to acquire Parcel
2. After the Seller vacates the Property, the Purchaser shall cause Parcel 1 to be developed as the
"Phase 1 Project," as defined in the DDA, which shall be an affordable rental housing project for
persons and families of very low and low income. Construction and operation of the Phase 1
Project shall be governed by all applicable United States Department of Housing and Urban
Development regulations and shall be consistent with the California Community Redevelopment
Law whether or not specifically referenced in this Agreement. The Purchaser shall cause Parcel
1 to be restricted in accordance with the United States Department of Housing and Urban
Development HOME regulations (24 CFR Part 92) and in accordance with the California
Community Redevelopment Law.
"Parcel 2" means that certain parcel of real property legally described in Exhibit A=213
attached hereto.
"Parcel 2 Purchase Price" means the purchase price to be paid by the Purchaser for Parcel
2, which shall be Three Million Two Hundred Twenty Thousand and No/100 Dollars
($3,220,000.00), which amount equals the appraised value of Parcel 2 as determined by that
certain Land Appraisal performed by Lea & Company effective as of June 27, 2013, but dated
June 30, 2013. After the Seller vacates the Property, the Purchaser shall cause Parcel 2 to be
developed as the '`Phase 2 Project," as defined in the DDA, which shall be an affordable rental
housing project for persons and families of very low and low income. Construction and
operation of the Phase 1 Project shall be consistent with the California Community
Redevelopment Law whether or not specifically referenced in this Agreement. The Purchaser
shall cause Parcel 2 to be restricted in accordance with the California Community
Redevelopment Law.
"Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions
in the Title Policy; (ii) the exceptions shown as items A-E and 1-9 on that certain Preliminary
Report dated as of June 12, 2013, issued by Stewart Title of California, Inc., Order No. 01180-
50484; (iii) real property taxes and assessments which are a lien but not yet payable; and (iv) all
applicable building, zoning and use restrictions and/or regulations of any municipality, township,
county or state.
"Property" means collectively, the Real Property and the Improvements.
"Purchase Price" means collectively, the Parcel 1 Purchase Price and the Parcel 2
Purchase Price, which total Seven Million Thirty -Five Thousand and No/100 Dollars
($7,035,000.00).
"Purchaser" means the Community Development Commission -Housing Authority of the
City of National City; provided, however, if the Community Development Commission -Housing
Authority of the City of National City assigns its interest in this Agreement pursuant to Section
10 of this Agreement, then the tern "Purchaser" shall mean such assignee.
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
"Real Property" means collectively, Parcel 1 and Parcel 2.
"Seller" means the City of National City.
"Title Policy" means a CLTA Owner's Policy of Title Insurance in the amount of the
Purchase Price, insuring that title to the fee interest in the Property is vested in the Purchaser
subject only to the Permitted Exceptions, which Title Policy shall be obtained through Stewart
Title Company. Purchaser shall pay the cost of the CLTA Owner's Policy of Title Insurance and
any endorsements it desires.
3. Purchase Price.
(a) Purchase Price. The Seven Million Thirty -Five Thousand and No/100 Dollars
($7,035,000.00) Purchase Price shall be paid by Purchaser to Seller as follows:
(1) Two Million Ninety -Four Thousand and No/100 Dollars ($2,094,000.00)
of United States Department of Housing and Urban Development HOME funds shall be payable
at Closing, all of which is being paid by the Purchaser to acquire Parcel 1 only; and
(2) The Four Million Nine Hundred Forty -One Thousand and No/100 Dollars
(S4,941,000.00) balance of the Purchase Price (constituting the remaining balance of the
purchase price for Parcel 1 in the total amount of $1,721.000 and the full purchase price for
Parcel 2 in the total amount of $3,220,000) shall be paid by the Purchaser to the Seller with
interest at the rate of zero percent (0.00%) in annual installments equal to the annual amount the
Purchaser receives from any ground leases Parcel 1 and Parcel 2 and from the residual receipts
loans that the Purchaser will be is —making to the affordable housing developers that will
construct affordable housing projects on each of Parcel 1 and Parcel 2 pursuant to the DDA. At
Closing, the Purchaser shall execute a promissory note in favor of Seller in a form acceptable to
the Seller and Purchaser.
(b) Deposit; Liquidated Damages.
(1) Deposit. Purchaser shall make a deposit ("Deposit") into Escrow of
Immediately Available Funds in the amount of One Thousand and No/100 Dollars ($1,000.00)
within three (3) Business Days of the Effective Date. The Deposit shall be credited against the
Purchase Price. If the Purchaser elects to terminate this Agreement prior to Closing, then the
Deposit shall be immediately returned by Escrow Agent to the Purchaser. At Closing, the
Deposit shall be released by Escrow Agent to the Seller. The Deposit, and any interest earned on
the Deposit, shall be credited in favor of the Purchaser against the Purchase Price as set forth in
Section 3(c), below.
(2) LIQUIDATED DAMAGES. THE DEPOSIT SHALL BE
REFUNDABLE TO THE PURCHASER AS MAY BE EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF PURCHASER'S
DEFAULT HEREUNDER, THE SOLE REMEDY OF THE SELLER SHALL BE TO
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO
PURCHASER AND ESCROW AGENT, WHEREUPON THE SELLER SHALL RETAIN THE
DEPOSIT(S) ACTUALLY DEPOSITED BY PURCHASER INTO ESCROW AS
LIQUIDATED DAMAGES (AND THE SELLER WAIVES ANY RIGHT TO SPECIFICALLY
ENFORCE THIS AGREEMENT SET FORTH IN CALIFORNIA CIVIL CODE SECTION
1680 OR 3389). THEREAFTER, NO PARTY HERETO SHALL HAVE ANY FURTHER
LIABILITY OR OBLIGATION TO ANY OTHER PARTY HERETO EXCEPT FOR: (i) THE
SELLER'S RIGHT TO RECEIVE AND RETAIN SUCH LIQUIDATED DAMAGES; AND (ii)
THE OBLIGATION OF THE PARTIES TO PAY AMOUNTS INTO ESCROW TO PAY A
PORTION OF THE FEES AND COSTS OF ESCROW AS SET FORTH IN SECTIONS 5 AND
6 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE
SELLER'S ACTUAL DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT
HEREUNDER ARE UNCERTAIN IN AMOUNT AND DIFFICULT TO ASCERTAIN, AND
THAT SUCH AMOUNT OF LIQUIDATED DAMAGES IS REASONABLE UNDER THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ., CONSIDERING
ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE HEREOF INCLUDING,
WITHOUT LIMITATION, THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF
POTENTIAL HARM TO THE SELLER THAT CAN REASONABLY BE ANTICIPATED
AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES RESULTING FROM
SUCH DEFAULT WOULD BE COSTLY AND INCONVENIENT. IN PLACING ITS
INITIALS IN THE SPACE BELOW, EACH PARTY HERETO SPECIFICALLY CONFIRMS
THE ACCURACY OF THE FOREGOING AND THE FACT THAT SUCH PARTY HAS
BEEN REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION.
THE PROVISIONS OF THIS SECTION 3(B)(2) SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Seller's Initials Purchaser's Initials
(c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (1)
Business Day prior to the Closing Date, the Purchaser shall cause Immediately Available Funds
to be delivered to the Escrow Agent in an amount equal to $2,094,000.00 ($2,093,000.00 minus
the Deposit).
(d) Disbursement to the Seller. Immediately after the Closing, the Escrow Agent
shall disburse to the Seller the funds that the Seller is entitled to receive under this Agreement.
4. Due Diligence. The Purchaser has completed its due diligence with respect to the
Property.
5. Conditions Precedent for the Benefit of the Seller. The Seller's obligation to Close shall
be conditioned upon the satisfaction or emailed or written waiver by the Seller of all of the
conditions precedent ("Conditions Precedent for the Benefit of the Seller") set forth in this
Section 5. Any of the Conditions Precedent for the Benefit of the Seller may be waived by the
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
Seller unilaterally; and if so waived, such conditions shall be of no further effect hereunder. Any
such waiver shall be effective only if the same is expressly waived (i) by email from the Seller to
the Purchaser and Escrow Agent; or (ii) in a writing signed by the Seller and delivered to the
Purchaser and Escrow Agent. If the Conditions Precedent for the Benefit of the Seller are not
satisfied by the deadlines set forth in this Section 5 or expressly waived, the Seller (provided the
Seller is not in default hereunder) may provide emailed or written notice of the Seller's
conditional termination of this Agreement to the Purchaser and Escrow Agent. After receipt of
such notice of conditional termination, the Purchaser shall have ten (10) Business Days to cure
any non -satisfaction of a condition or other default specified in the notice of conditional
termination; provided, however, the foregoing grace period shall be two (2) Business Days if the
unsatisfied condition is a failure by Purchaser to deliver funds required to close on the Closing
Date. If such matter remains unsatisfied or the default remains uncured after the expiration of
such ten (10) Business Day period, then this Agreement shall terminate at the close of business
on such tenth (10th) Business Day (or second (21'1) Business Day if the unsatisfied condition is a
failure by Purchaser to deliver funds required to close on the Closing Date). In the event of
termination of this Agreement (and by operation of law the Escrow) pursuant to this Section 5,
then: (x) as set forth in the liquidated damages provision of Section 3(b)(2) above, all rights and
liabilities of the Purchaser and the Seller with respect to this Agreement shall immediately
terminate, except those which specifically survive such termination; (y) Escrow Agent deliver
the Deposit to the Seller and shall return to the Seller all funds or other things deposited in
Escrow by the Seller; and (z) Escrow Agent shall return to the Purchaser all funds or other things
deposited in Escrow by the Purchaser, Tess the Deposit. Provided, however, all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser. Notwithstanding clause (x) of this Section 5, in the event of termination of this
Agreement pursuant to this Section 5, the Purchaser and the Seller shall cooperate with one
another, execute all documents reasonably necessary and take all reasonable steps as may be
required by Escrow Agent in order to accomplish the purposes of this Section 5.
(a) Purchaser making the Deposit into Escrow. as set forth in Section 3(b)(1), above.
(b) The delivery by the Purchaser into Escrow at least one (1) Business Day prior to
Closing of Immediately Available Funds in the amount required by Section 3(c), above.
(c) The delivery by the Purchaser into Escrow of all other documents and instruments
required by this Agreement or reasonably required by Seller and/or Escrow Agent to complete
the Closing, at least one (1) Business Day prior to Closing.
(d) Purchaser not being in default of any of its representations or warranties under
this Agreement, or any other material terms or conditions related to Purchaser.
(e) As of the Closing Date, the Purchaser has not made an assignment for the benefit
of creditors, filed a bankruptcy petition, been adjudicated insolvent or bankrupt, petitioned a
court for the appointment of any receiver of, or trustee for, the Purchaser, or commenced any
proceeding relating to the Purchaser under any reorganization, arrangement, readjustment of
debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect.
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
City.
(f) This Agreement has been formally approved by resolution of the City of National
6. Conditions Precedent for the Benefit of the Purchaser. The Purchaser's obligation to
Close shall be conditioned upon the satisfaction or emailed or written waiver by the Purchaser of
all of the conditions precedent ("Conditions Precedent for the Benefit of the Purchaser") set forth
in this Section 6. Any of the Conditions Precedent for the Benefit of the Purchaser may be
waived by the Purchaser unilaterally; and if so waived, such conditions shall be of no further
effect hereunder. Any such waiver shall be effective only if the same is expressly waived (i) by
email from the Purchaser to the Seller and Escrow Agent; or (ii) in a writing signed by the
Purchaser and delivered to the Seller and Escrow Agent. If the Conditions Precedent for the
Benefit of the Purchaser are not satisfied by the deadlines set forth in this Section 6 or expressly
waived, the Purchaser (provided the Purchaser is not in default hereunder) may provide emailed
or written notice of the Purchaser's conditional termination of this Agreement to the Seller and
Escrow Agent. After receipt of such notice of conditional termination, the Seller shall have ten
(10) Business Days to cure any non -satisfaction of a condition or other default specified in the
notice of conditional tennination. If such matter remains unsatisfied or the default remains
uncured after the expiration of such ten (10) Business Day period, then this Agreement shall
terminate at the close of business on such tenth (10th) Business Day. In the event of termination
of this Agreement (and by operation of law the Escrow) pursuant to this Section 6, then: (x)
except to subparagraph (f) below, the same shall be a default by the Seller (y) Escrow Agent
shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser,
including without limitation, the Deposit; and (z) Escrow Agent shall return to the Seller all
funds or other things deposited in Escrow by the Seller. Purchaser is not waiving any default by
the Seller and nothing contained in this Section 6, including, without limitation, the nnmediately
foregoing sentence shall be a waiver of any right of Purchaser to recover damages from the
Seller for failure of any Conditions Precedent for the Benefit of the Purchaser. Provided,
however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the
Seller and one-half (1/2) by the Purchaser.
(a) The deposit into Escrow by the Seller of the Grant Deed, duly executed and
acknowledged, conveying fee simple title to the Property to the Purchaser at least one (1)
Business Day prior to Closing.
(b) The deposit by the Seller into Escrow of a duly executed affidavit that it is not a
foreign person and is a "United States Person" as such term is defined in Section 7761(a)(30) of
the Internal Revenue Code of 1986, as amended, at least one (1) Business Days prior to Closing.
The affidavit shall be in the form prescribed by federal regulations, if any.
(c) The deposit by the Seller into Escrow of a duly executed California Form 593(c)
or other evidence that withholding of any portion of the Purchase Price is not required by the
Revenue and Taxation Code of California, at least one (1) Business Day prior to Closing.
(d) The deposit by the Seller into Escrow of all additional documents and instruments
as are reasonably required by the Purchaser and/or Escrow Agent to complete the Closing, at
least one (1) Business Day prior to Closing.
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
(e) The Escrow Agent is prepared and obligated to issue the Title Policy in
Purchaser's favor upon the recordation of the Grant Deed and there are no exceptions to the Title
Policy, except for Permitted Exceptions.
(f) Seller not being in default of any of its representations or warranties under this
Agreement, or any other material terms or conditions related to Seller.
(g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement
affecting the Property, except for the lease of the property from the Purchaser back to the Seller,
as described in Section 1(b), above.
(h) As of the Closing Date there is not pending, or threatened to be pending, any
action or proceeding by any person or before any government authority, the outcome of which
could prohibit the use of the Property as intended by the Purchaser.
(i) This Agreement has been formally approved by resolution of the Community
Development Commission -Housing Authority of the City of National City.
7. Representations and Warranties; Waivers and Releases. When making the
representations and warranties set forth in this Section 7, each party making a representation
and/or warranty represents that the same are true, correct and complete as of the date hereof and
shall be and are true, correct and complete as of the Closing Date. The representations and
warranties shall survive the Closing.
(a) Representations and Warranties Regarding Authority. The Seller and the
Purchaser each hereby represents and warrants to the other that this Agreement and all
documents or instruments executed by them which are to be delivered at or prior to the Closing
are, or on the Closing Date will be, duly authorized, executed and delivered by the Seller or the
Purchaser, as applicable.
(b) Representations and Warranties Regarding Enforceability of Agreement. The
Seller and the Purchaser each hereby represents and warrants to the other that this Agreement
and all documents required hereby to be executed by them shall be valid, legally binding
obligations of, and enforceable against, the Seller or the Purchaser, as applicable, in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally and general principles of equity
(whether enforcement is sought in equity or at law).
(c) Seller Representations and Warranties Pertaining to Legal Matters. The Seller
hereby represents and warrants to the Purchaser that:
(1) As of the Effective Date and the Closing Date, the Seller is the sole owner
of the fee title interest to the Property.
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
(2) There is no pending or threatened proceeding in eminent domain or
otherwise, which would affect the Property, or any portions thereof, nor any facts which
might give risc to such action or proceeding.
(d) Seller Representations and Warranties Pertaining to Options. The Seller hereby
represents and warrants to the Purchaser that no person has any option or right of first refusal to
purchase the Property or any parts thereof
(e) Material Adverse Changes. If Seller receives any notice or knowledge of
anything materially adversely affecting Seller's representations or warranties after the date of
this Agreement, then Seller shall immediately notify Purchaser in writing of such fact or
circumstance. If Purchaser receives written notice from Seller pursuant to the immediately
preceding sentence, and Seller in such notice does not agree to cure the same at or prior to
Closing to Purchaser's reasonable satisfaction, then, Purchaser shall have the right to bring an
action against Seller on the breach of such representation or warranty.
(f) Seller Representation and Warranty Pertaining to Tenants. The Seller hereby
represents and warrants to the Purchaser that no person has any lease or other right to occupy the
Property or any parts thereof, except for the Seller's right to lease the Property from the Seller as
described in Section 1(b), above.
(g) Seller Representation and Warranty Regarding Operation of the Property. The
Seller hereby represents and warrants to the Purchaser that there arc no oral or written
agreements or understandings concerning the Property by which the Purchaser would be bound
following the Closing.
(h) AS IS CONDITION. PURCHASER HEREBY ACKNOWLEDGES,
REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL
INDUCEMENT TO SELLER TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN
CONSIDERATION OF THE PERFORMANCE BY SELLER OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENT THAT, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF THIS
AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE
ON AN "AS IS, WHERE IS" BASIS, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER. WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXISTENCE
OF HAZARDOUS MATERIALS OR MOLD UPON THE PROPERTY OR ANY PORTION
THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND
WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER
AND FAULTING; (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE
PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE
OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN,
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL
ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES,
OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING
PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION,
DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR
FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE
IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183, 12186(B) —
12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS
MATERIALS IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY; (9) THE
SQUARE FOOTAGE OF THE PROPERTY OR THE IMPROVEMENTS THEREON; (10)
IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION,
THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES, AND PERSONAL
PROPERTY, IF ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER
OR WATER RIGHTS; (13) THE DEVELOPMENT POTENTIAL FOR THE PROPERTY; (14)
THE ABILITY OF PURCHASER TO REZONE THE PROPERTY OR CHANGE THE USE
OF THE PROPERTY; (15) THE ABILITY OF PURCHASER TO ACQUIRE ADJACENT
PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY
UNDERGROUND UTILITIES; (17) THE EXISTENCE AND POSSIBLE LOCATION OF
ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE PROPERTY
WERE BUILT, IN WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE
BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE
IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE
NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR
USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL
PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR
OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER
AFFIRMING THAT PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT
FOR ANY PARTICULAR PURPOSE); AND/OR (23) ANY OTHER MATTER
CONCERNING THE PROPERTY. NOTWITHSTANDING THE FOREGOING OR
ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, SELLER IS NOT
RELEASED FROM ANY LIABILITY TO PURCHASER FOR FRAUD OR BREACH OF
ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS
AGREEMENT. Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation, this Section 7(h), any right waived by Purchaser and any release by
Purchaser, shall only release or waive the Purchaser's right to enforce any judgment (including
without limitation, damages, attorneys' fees, costs, expenses or any other compensation of any
type whatsoever) personally against only the Seller and Seller's successors, assigns, officers,
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and
agents (collectively, the "Seller Parties") or any of them. Purchaser is not waiving any right to
bring any action against any of the "Non -Released Parties" (defined below) or waiving recovery
against or otherwise releasing or agreeing to forego Purchaser's rights with respect to any
insurance policy, or any other person (other than the right to enforce a judgment personally
against any of the Seller Parties), including without limitation persons obligated to the Seller
Parties, by right of subrogation or otherwise, prior owners or occupants of the Property, the
tenants, persons performing work at the Property and/or any insurance policies held by any or all
such persons (collectively, the "Non -Released Parties").
PURCHASER ACKNOWLEDGES THAT AS OF THE EXPIRATION OF THE DUE
DILIGENCE PERIOD, PURCHASER SHALL HAVE HAS COMPLETED ALL PHYSICAL
AND FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF THE
PROPERTY HEREUNDER (IT BEING ACKNOWLEDGED AND AGREED THAT
PURCHASER SHALL BE DEEMED TO HAVE INSPECTED THE PROPERTY EACH
APARTMENT UNIT WITHIN THE PROPERTY) AND WILL ACQUIRE THE SAME
SOLELY ON THE BASIS OF SUCH EXAMINATIONS AND THE TITLE INSURANCE
PROTECTION FOR THE PROPERTY AFFORDED BY THE TITLE POLICY, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF
THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT THE
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION
OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE
ACCURACY OR COMPLETENESS OF SUCH INFORMATION, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S
EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF
THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR ANY NEGLIGENT
MISREPRESENTATION OR FAILURE TO INVESTIGATE THE PROPERTY NOR SHALL
SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORTS, OR
OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION
THEREOF, FURNISHED BY SELLER, OR ANY REAL ESTATE BROKER, AGENT,
REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON ACTING ON
SELLER'S BEHALF EXCEPT FOR REPRESENTATIONS AND WARRANTIES
EXPRESSLY PROVIDED IN SECTION 7 OF THIS AGREEMENT. IT IS
ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY SELLER AND
PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. NOTWITHSTANDING
THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, SELLER IS NOT RELEASED FROM ANY LIABILITY TO PURCHASER
FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY
SET FORTH IN THIS AGREEMENT.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT PURCHASER IS
FULLY AWARE OF THE AGE OF THE PROPERTY, THAT OVER TIME VARIOUS
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EVENTS MAY HAVE OCCURRED ON THE PROPERTY WHICH EVENTS MAY BE
TYPICAL AND(OR) ATYPICAL OF EVENTS OCCURRING TO OTHER PROPERTIES OF
SIMILAR AGE TO THE PROPERTY AND SIMILARLY LOCATED IN THE CITY OF
NATIONAL CITY AND (OR) THE COUNTY OF SAN DIEGO, CALIFORNIA, AND THAT
SUCH EVENTS MAY INCLUDE, WITHOUT LIMITATION, SLAB LEAKS, MOLD, FIRE,
SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS,
PERMITS, APPROVALS, LICENSES AND(OR) ORDERS OF GOVERNMENTAL
AGENCIES WITH JURISDICTION OVER THE PROPERTY.
THE CLOSING OF THE PURCHASE OF THE PROPERTY BY PURCHASER
HEREUNDER SHALL BE CONCLUSIVE EVIDENCE THAT: (A) PURCHASER HAS
FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND
COMPLETELY INSPECTED) THE PROPERTY; AND (B) PURCHASER ACCEPTS THE
PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE
FOR PURCHASER'S PURPOSES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR
RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN
SECTION 7 OF THIS AGREEMENT, PURCHASER SHALL PERFORM AND RELY
SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE
PROPERTY, AND THE PROPERTY'S FITNESS THEREFOR. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT SELLER'S COOPERATION WITH PURCHASER
WHETHER BY PROVIDING DOCUMENTS RELATING TO THE PROPERTY OR
PERMITTING INSPECTION OF THE PROPERTY, SHALL NOT BE CONSTRUED AS ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH
RESPECT TO THE PROPERTY, OR WITH RESPECT TO THE ACCURACY,
COMPLETENESS, OR RELEVANCE OF THE DOCUMENTS PROVIDED TO
PURCHASER BY SELLER IN RELATION TO THE PROPERTY, PROVIDED THAT THE
FOREGOING SHALL NOT BE A LIMITATION OR MODIFICATION OF THE
REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED FOR IN SECTION 7
OF THIS AGREEMENT.
SELLER'S INITIALS PURCHASER'S INITIALS
(i) Indemnity and Release.
(1) Indemnity. For the purposes of this Section 7(i), the term "Claims" shall
mean any and all claims, obligations, liabilities, causes of action, suits, debts, liens, damages,
judgments, losses, demands, orders, penalties, settlements, costs and expenses (including,
without limitation, attorneys' fees and costs and any and all costs and expenses related to,
whether directly or indirectly, any and all clean-up, remediation, investigations, monitoring,
abatement, mitigation measures, fines or removal with respect to Hazardous Materials) of any
kind or nature whatsoever. The definition of "Claims" shall include, without limitation, Claims
under contract law or tort law. Purchaser acknowledges that but for Purchaser's agreement to
each and every provision of this Section 7(i), Seller would not have entered into the Agreement.
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Purchaser, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"),
shall indemnify, defend, protect and hold Seller and Seller's successors, assigns, partners,
affiliates and members and all their respective officers, directors, shareholders, participants,
partners, affiliates, employees, representatives, invitees and agents (collectively, "Seller Parties")
harmless from and against any and all Claims resulting from, related to, or based upon, whether
directly or indirectly: (i) the breach by Purchaser of any representation, warranty, covenant or
obligation contained in the Agreement, or in any other agreement, document, exhibit or
instrument related hereto or referenced herein; (ii) any Claim or Claims, if the basis of such
Claim or Claims arose on or after the Closing, except as noted in subparagraph (iv) below, and if
the basis of such Claim or Claims arose from, is based upon, relates to or pertains to, whether
directly or indirectly, the operation, management and use of the Property; (iii) any Claim or
Claims which Claim or Claims (or the basis for which) arose from, is based upon, relates to or
pertains to, whether directly or indirectly, any act or omission of Purchaser or any of its
employees, agents or representatives; and (iv) (A) any Claim or Claims that relate to the
condition of the Property on or after the Close of Escrow, including any judgment, order or
settlement under or otherwise pursuant to a lawsuit, and (B) any Claim or Claims that relate to
defects in the Property (including, without limitation, patent and latent construction defects),
regardless of whether said defects or the cause of the same arose either before or after the Close
of Escrow, including any judgment, order or settlement under or otherwise pursuant to the
lawsuit. Any defense of any or all of the Seller Parties referenced in this Section 7(i)(1), shall be
at the Purchaser's sole cost and expense and by counsel selected by the Purchaser, subject to the
reasonable approval of the indemnified person, which counsel may, without limiting the rights of
any of the Seller Parties pursuant to the next succeeding sentence of this Section 7(i)(1), also
represent the Purchaser in such investigation, action or proceeding. If any of the Seller Parties
that is being indemnified determines reasonably and in good faith that its defense by the
Purchaser is reasonably likely to cause a conflict of interest or is being conducted in a manner
which is prejudicial to such persons interests, such indemnified person may elect to conduct its
own defense through counsel of its own choosing, subject to the reasonable approval of the
Purchaser, and at the expense of the Purchaser.
(2) Release and §1542 Waiver. Notwithstanding the following or anything to
the contrary set forth in this Agreement, the Seller is not released from any liability to the
Purchaser for fraud or breach of any covenant or warranty set forth in this Agreement. Subject to
the immediately preceding sentence and the Purchaser's right to rely on the Seller's express
representations and warranties set forth in Section 7 hereof, Purchaser for itself and on behalf of
each of its successors and/or assigns (collectively, the "Releasors") by this general release of
known and unknown claims (this "Release") hereby irrevocably and unconditionally release and
forever discharge Seller and each of the Seller Parties (collectively, the "Releasees") or any of
them, from and against any and all Claims of any kind or nature whatsoever, WHETHER
KNOWN OR UNKNOWN, suspected or unsuspected, fixed or contingent, liquidated or
unliquidated which any of the Releasors now have, own, hold, or claim to have had, owned, or
held, against any of the Releasees arising from, based upon or related to, whether directly or
indirectly any facts, matters, circumstances, conditions or defects (whether patent or latent) of all
or any kinds, related to, arising from, or based upon, whether directly or indirectly, the Property,
including without limitation, (i) the physical condition, quality and state of repair of the Property
conveyed, (ii) any latent or patent defect affecting the Property conveyed, and (iii) the presence
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of Hazardous Materials in, on, about or under the Property or which have migrated from adjacent
lands to the Property or from the Property to adjacent lands.
Except for Claims for Seller's fraud or the breach of any representations and warranties
of the Seller expressly provided for in Section 7 of this Agreement, Releasors hereby further
agree as follows:
(i) Releasors acknowledge that there is a risk that subsequent to the execution
of this Agreement, Releasors may discover, incur, or suffer from Claims which were unknown or
unanticipated at the time this Release is executed, including, without limitation, unknown or
unanticipated Claims which, if known by Releasors on the date this Release is being executed,
may have materially affected Releasors' decision to execute this Agreement. Releasors
acknowledge that Releasors are assuming the risk of such unknown and unanticipated Claims
and agree that this Release applies thereto. Releasors expressly waive the benefits of Section
1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
(ii) Releasors represent and warrant that Releasors have been represented by
independent counsel of Releasors' own choosing in connection with the preparation and review
of the Release set forth herein, that Releasors have specifically discussed with such counsel the
meaning and effect of this Release and that Releasors have carefully read and understand the
scope and effect of each provision contained herein. Releasors further represent and warrant that
Releasors do not rely and have not relied upon any representation or statement made by any of
the Releasees or any of their representatives, agents, employees, attorneys or officers with regard
to the subject matter, basis or effect of this Release.
(iii) Releasors represent and warrant to Releasees that Releasors have not and
shall not assign or transfer or purport to assign or transfer any Claim or Claims or any portion
thereof or any interest therein, and shall indemnify, defend, protect and hold the Releasees
harmless from and against any Claim or Claims based on or arising out of, whether directly or
indirectly, any such assignment or transfer, or purported assignment or transfer.
SELLER'S INITIALS PURCHASER'S INITIALS
It is specifically intended that each of the Seller Parties shall be third party beneficiaries
of this Section 7(i).
(3)
Survival. The provisions of this Section 7(i) shall survive the Closing and,
as applicable, the termination of this Agreement.
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(j) Waiver of Subrogation; Survival. Purchaser hereby waives any right of
subrogation as to Seller or the Seller Parties. Each and every provision of this Section 7 shall,
except as may be expressly limited in this Section 7, survive the Closing and, as applicable, the
termination of this Agreement, and, but for Purchaser's agreement to each and every provision of
this Section 7, Seller would not have executed this Agreement.
8. Condemnation of the Property.
(a) If between the Effective Date and the Closing Date, any condemnation or eminent
domain proceeding is commenced that will result in the taking of any part of the Property,
Purchaser may, at Purchaser's election, either:
(1) Terminate this Agreement by giving written or emailed notice to the Seller
and the Escrow Agent (in which event all remaining funds or other things deposited in Escrow
by Purchaser, including without limitation, the Deposit, shall be returned to the Purchaser
immediately from Escrow, together with any interest earned thereon and all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser; or
(2) Proceed with the Closing with no reduction in the Purchase Price, in
which event the Seller shall assign to the Purchaser all of the Seller's rights, titles and interests to
any award made for the condemnation or eminent domain action.
(b) Notice. If the Seller obtains notice of the commencement of or the threatened
commencement of eminent domain or condemnation proceedings with respect to all of any
portion of the Property, the Seller shall notify the Purchaser in writing.
9. Broker's Commission. The Purchaser and Seller each hereby represents and warrants to
the other that it has not engaged the services of any real estate agent or broker with respect to the
transaction that is the subject of this Agreement. The Purchaser and the Seller each agree that, to
the extent any real estate commission, brokerage commission or finder's fee shall be earned or
claimed in connection with this Agreement or the Closing, the payment of such fee or
commission, and the defense of any action in connection therewith, shall be the sole and
exclusive obligation of the party who requested (or is alleged to have requested) the services of
the broker or finder. In the event that any claim, demand or cause of action for any such
commission or finder's fee is asserted against the party to this Agreement who did not request
such services (or is not alleged to have requested such services), the party through whom the
broker or finder is making the claim shall indemnify, defend (with an attorney of the
indemnitee's choice), protect and hold harmless the other from and against any and all such
claims, demands and causes of action and expenses related thereto, including, without limitation,
attorneys' fees and costs. The provisions of this Section 9 shall survive the Closing or
termination of this Agreement.
10. Assignment. The Purchaser shall not assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the Seller, which consent may be
withheld or granted in Seller's sole and absolute discretion; provided, however, the Purchaser
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
may assign this Agreement to an entity in which the Purchaser has a controlling or majority
interest without the prior written consent of the Seller provided Purchaser and such assignee
execute an assignment agreement in form and substance reasonably acceptable to Seller.
11. Notices. All notices under this Agreement shall be in writing and sent (a) by certified or
registered mail, return receipt requested, in which case notice shall be deemed delivered three (3)
Business Days after deposit, postage prepaid in the United States Mail, (b) overnight by a
nationally recognized overnight courier such as UPS Overnight, or FedEx, in which case notice
shall be deemed delivered one (1) Business Day after deposit with that courier, (c) by personal
delivery, in which case notice shall be deemed delivered upon the actual date of delivery, or (d)
by email, in which case notice shall be deemed delivered upon the actual date of delivery. All
notices shall be delivered to the following addresses:
If to Purchaser:
If to Seller:
Copy to:
Community Development Commission -Housing Authority
of the City of National City
Attn: Alfredo Ybarra
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: alfredoy@nationalcityca.gov
City of National City
Attn: Brad Raulston
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: braulston@nationalcityca.gov
Christensen & Spath LLP
Attention: Walter F. Spath III
550 West C Street, Suite 1660
San Diego, CA 92101
Facsimile No. (619) 236-8307
Email: wfs@candslaw.net
The addresses above may be changed by written notice to the other party; provided
however, that no notice of a change of address shall be effective until actual receipt of the notice.
12. Risk of Loss.
(a) Damage or Destruction. Subject to the provisions of this Section 12(a), the risk of
loss or damage to the Property until the close of Escrow will be borne by Seller. Upon the
occurrence of any damage to or destruction of the Property, Seller shall within thirty (30) days
after the occurrence of such damage or destruction give written notice to Purchaser ("Damage
Notice") specifying the estimated cost to repair or restore the Property and an estimate of the
insurance proceeds, if any, that will be available with respect to such damage or destruction. The
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close of Escrow shall be appropriately delayed to provide adequate time for Seller to give the
Damage Notice and Purchaser to make its election provided for below.
(b) Damage in Excess of $100,000. If prior to the close of Escrow there is damage to
or destruction of the Property that will cost in excess of One Hundred Thousand Dollars
($100,000) to repair or restore, Purchaser shall have the right by written notice given to Seller
within ten (10) days of Purchaser receiving the Damage Notice, to elect to: (i) close Escrow in
such damaged condition, in which event the Purchase Price shall not be reduced (but the Seller
shall be obligated to pay the deductibles under the applicable insurance policy or policies) and
Seller shall not be obligated to repair or restore the Property and all insurance proceeds shall be
assigned and payable to Purchaser, and if Seller receives any such insurance proceeds, they shall
be immediately remitted by Seller to Purchaser at Closing or, if received by Seller after Closing,
promptly after receipt; (ii) terminate this Agreement, in which event the Deposit and all interest
accrued thereon shall be immediately returned to Purchaser, and neither party shall have any
further rights or obligations to the other party, except neither party shall be relieved of any
obligations provided for in this Agreement which expressly survives its termination.
(c) Damage of $100,000 or Less. if prior to the close of Escrow there is damage to or
destruction of the Property that will cost One Hundred Thousand Dollars ($100,000) or less to
repair or restore, Purchaser shall nevertheless close Escrow with the Property in such damaged
condition, the Purchase Price shall not be reduced (but the Seller shall be obligated to pay the
deductibles under the applicable insurance policy or policies) and Seller shall not be obligated to
repair or restore the Property, and all insurance proceeds shall be assigned and payable to
Purchaser, and if Seller should receive any such insurance proceeds, they shall be immediately
remitted to Purchaser.
13. Prorations. Real property taxes and assessments and utility costs, and other expenses of
operating the Property (provided, however, no proration shall be made with regard to any capital
improvements) shall be prorated as of the close of Escrow. Seller shall pay all documentary
transfer taxes. Seller shall pay all real property taxes and assessments applicable to the period
prior to the close of Escrow, and if any such taxes are unpaid after the close of Escrow, then
Seller shall pay them promptly and in any event within ten (10) days after Purchaser's request
(which shall include a copy of the relevant tax bill).
14. General Provisions.
(a) Governing Law. This Agreement shall be interpreted and construed in
accordance with California law, without regard to any choice of law principles.
(b) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(c) Captions. The captions in this Agreement are inserted for convenience of
reference and in no way define, describe or limit the scope or intent of this Agreement or any of
the provisions of this Agreement.
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(d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors, heirs and permitted assigns.
(e) Modifications; Waiver. No waiver, modification, amendment, discharge or
change of this Agreement shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver, amendment, discharge or change is sought.
(f) Entire Agreement. This Agreement contains the entire agreement between the
parties relating to Purchaser's acquisition of the Property from the Seller and all prior or
contemporaneous agreements, understandings, representations or statements, oral or written, are
superseded.
(g) Partial Invalidity. Any provision of this Agreement which is unenforceable,
invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of
this Agreement shall have no effect, but all the remaining provisions of this Agreement shall
remain in full effect.
(h) Survival. Provisions of this Section 19 shall survive the Closing or the
termination of this Agreement.
(i) No Third -Party Rights. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties to this Agreement and their respective
successors and assigns, any rights or remedies.
(j) Time of Essence. Time is of the essence in this Agreement.
(k) Attorneys' Fees. The parties agree that the prevailing party in litigation for the
breach and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and attorneys' fees as may be
awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5
and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998. All claims, disputes, causes of action or controversies shall be
subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch.
(1) Relationship. Nothing contained in this Agreement shall be deemed or construed
by the parties or by any third person to create a relationship of principal and agent or partnership
or a joint venture between the Purchaser and the Seller or between any of them and any third
party.
(m)
Recording. Neither this Agreement nor a memorandum hereof shall be recorded.
(n) Purchaser Approval. Where this Agreement refers to an action or approval of the
Purchaser, it shall mean the approval of the Community Development Executive Director of the
Purchaser, or designee, unless otherwise provided. Where this Agreement refers to an action or
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
approval oi' the Seller, it shall mean the approval of the City Manager. or designee, unless
otherwise provided.
(o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are
hereby incorporated in this Agreement by this reference, regardless of whether or not the exhibits
are actually attached to this Agreement. The Recitals to this Agreement are hereby incorporated
in this Agreement by this reference.
(p) Independent Counsel. Seller and Purchaser each acknowledge that: (a) they have
been given the opportunity to be represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such counsel, if such
counsel was retained; and (c) this Agreement is the result of negotiations between the parties
hereto and the advice and assistance of their respective counsel, if such counsel was retained.
The fact that this Agreement was prepared or negotiated by Purchaser's or Seller's counsel as a
matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this
Agreement shall not be construed against either party due to the fact that Purchaser's or Seller's
counsel prepared or negotiated this Agreement in its final form.
(q) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations
set forth in this Agreement, including without limitation, the Due Diligence Period, the deadline
for Closing, the deadline for making the Deposit, shall all be automatically extended by one (1)
Business Day for each Business Day that the Seller fails to timely provide any notice, report,
materials, studies, documentation or other information required by this Agreement.
(r) Capacity and Authority. All individuals signing this Agreement for a party which
is a corporation, limited liability company, partnership or other legal entity, or signing under a
power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent
and warrant that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
PURCHASER:
Community Development Commission -Housing Authority of the City of National City
By:
Ron MorrisonLcslic Deese, Chairman Executive Director
Approved as to Form:
By:
Claudia Gacitua Silva
General Counsel
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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SELLER:
City of National City
By:
Ron Morrison, Mayor
Approved as to Form:
By:
Claudia Gacitua Silva
City Attorney
24
8/20 Agenda Items 19 & 25
Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
EXHIBIT "A-1"
PROPERTY PARCEL 1 LEGAL DESCRIPTION
Real property in the City of National City, County of San Diego, State of California, described as
follows:
Parcel 1:
Lots 1 to 22 inclusive of Block 107; and Lots 1 to 22 inclusive of Block 108 of National City, in
the City of National City, County of San Diego, State of California according to map thereof no.
348 filed in the Office of the County Recorder of San Diego County October 2, 1882;
Together with that portion of Coolidge Avenue between 20th Street and 22nd Street, and 21 St
Street between Harding Avenue and Hoover Avenue as set forth in that certain Order of
Vacation (Resolution No. 8338 of the City Council of the City of National City) recorded April
8, 1963 as file no. 59590 of Official Records;
And those portions of the Unnamed Alley lying within Blocks 107 and 108 of said map no. 348
as set forth in the certain Order of Vacation (Resolution No. 9816 of the City Council of the City
of National City) recorded May 12, 1969 as file no. 82961 of Official Records
25
8/20 Agenda Items 19 & 25
Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
Exhibit "A-1"
PARCEL 1 LEGAL DESCRIPTION
Real property in the City of National City, County of San Diego, State of California, described as
follows:
Parcel 2:
Lots 7 to 16 inclusive of Block 85 of National City, in the City of National City, County of San
Diego, State of California according to map thereof no. 348 filed in the Office of the County
Recorder of San Diego County October 2, 1882, excepting therefrom that portion of land as set
forth in that certain Corporation Grant Deed recorded November 20, 1964 as file no. 211364 of
Official Records.
In addition, that portion of Coolidge Avenue between 20th Street and 22 Street, and 21st Street
between Harding Avenue and Hoover Avenue as set forth in that certain Order of Vacation
(Resolution No. 8338 of the City Council of the City of National City) recorded April 8, 1963 as
file no. 59590 of Official Records;
And those portions of the Unnamed Alley lying within Block 85 of said map no. 348 as set forth
in the certain Order of Vacation (Resolution No. 9816 of the City Council of the City of National
City) recorded May 12, 1969 as file no. 82961 of Official Records.
Parcel 3:
Lots 1 to 22 inclusive of Block 86 of National City. in the City of National City, County of San
Diego, State of California according to map thereof no. 348 filed in the Office of the County
Recorder of San Diego County October 2, 1882.
In addition, that portion of Coolidge Avenue between 20th Street and 22nd Street, and 21 st
Street between Harding Avenue and Hoover Avenue as set forth in that certain Order of
Vacation (Resolution No. 8338 of the City Council of the City of National City) recorded April
8, 1963 as file no. 59590 of Official Records;
And the Unnamed Alley lying within Block 86 of said map no. 348 as set forth in the certain
Order of Vacation (Resolution No. 9816 of the City Council of the City of National City)
recorded May 12, 1969 as file no. 82961 of Official Records
APN: 559-124-05-00, 560-391-08-00, and 560-396-06-00
26
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
Exhibit "B"
GRANT DEED
27
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Revisions to Attachment No. 2 Document: Purchase and Sale Agreement
Exhibit "C"
LEASE
28
8/20/13 CC Agenda Items 19 & 25
Revisions to Attachment No. 3 Document: Promissory Note
PROMISSORY NOTE
(Westside TOD Affordable Site)
("Note")
National City, California August , 2013
1. Principal; No Interest. For value received and in consideration of the Purchase and Sale
Agreement (Westside TOD Affordable Site) dated as of August 20, 2013 ("Agreement"), by and
between the City of National City ("Seller") and Community Development Commission -
Housing Authority of the City of National City ("Maker'), Maker promises to pay to Seller, or
order, at 1243 National City Boulevard, National City, California 91950-4397, or such other
place as the holder may from time to time designate by written notice to Maker, the principal
sum of Four Million Nine Hundred Forty -One Thousand and No/100 Dollars ($4,941,000.00).
This Note shall not bear interest. The principal amount of this Note represents the remaining
balance of the purchase price for Maker's purchase of Parcel 1 (as defined in the Agreement)
from Seller and the full purchase price for Maker's purchase of Parcel 2 (as defined in the
Agreement) from Seller, pursuant to the Agreement. All capitalized terms which are not defined
herein shall have the meaning ascribed to them in the Agreement.
2. Term of Loan, Due Date and Right of Prepayment. Payments shall be due and payable as
follows:
(a) The Maker intends to ground lease Parcel 1 and Parcel 2, as such terms are
defined in the Agreement, and make one or more residual receipts loans to the developers of
Parcel 1 and Parcel 2, for the development of a 201 unit affordable housing project pursuant to
that certain Disposition and Development Agreement ("DDA") entered into June 21, 2011 by
and between Paradise Creek Housing Partners, L.P. and the Community Development
Commission of the City of National City in its capacity as the Redevelopment Agency of the
City of National City. Those ground leases may or may not require annual ground rent payments
to be made to the Maker. Those residual receipts loans will require the developers of Parcel 1
and Parcel 2 to make annual payments to the Maker based on the residual receipts generated by
the operations on Parcel 1 and Parcel 2, if any. The Maker shall pay to the Seller an amount
equal to the amount received from the developers of Parcel 1 and Parcel 2 (whether from ground
rent or residual receipts payments) within ten (10) business days of Maker's receipt of the same.
The Maker shall have no obligation to make any payments to Seller hereunder, unless and until
the Maker receives funds from the developers of Parcel 1 and Parcel 2. except that as set forth in
Section 2(b), below.
(b) Notwithstanding the provisions of Section 2(a), above, ilf all amounts otherwise
payable hereunder are not paid in full within sixty-five (65) years from the date first set forth
above, all principal shall be due and payable.
(c) This Note shall be payable in full upon acceleration of this Note pursuant to the
provisions of Paragraph 4 of this Note.
8/20/13 CC Agenda Items 19 & 25
Revisions to Attachment No. 3 Document: Promissory Note
(d) This Note shall be payable in full upon the conveyance of all or any part of the fee
interest in Parcel 1 or Parcel 2.
(e) This Note may be prepaid in whole or in part at any time and, from time to time,
without notice or penalty. Any prepayment shall be allocated first to unpaid interest, if any, and
then to principal.
3. Unsecured Note. This Note shall be unsecured.
4. Acceleration Upon Default. Notwithstanding Section 2, above, or anything contained
herein to the contrary, in the event of: (i) any default in the performance of any of the terns,
covenants and conditions contained in this Note or the Agreement, in each case after the
expiration of applicable cure periods, or (ii) in the event of the filing of a bankruptcy proceeding
by or against Maker which is not dismissed within ninety (90) days thereafter, then all sums
owing by Maker to the Seller shall at the option of the Seller immediately become due and
payable. These remedies shall be in addition to any and all other rights and remedies available to
the Seller, either at law or in equity.
5. Costs Paid by Maker. Maker agrees to pay the following costs and expenses incurred by
the holder of this Note, or adjudged by a court: (a) reasonable costs. expenses and attorneys' fees
paid or incurred in connection with the collection or enforcement of this Note, whether or not
suit is filed; and (b) costs of suit and such sum as the court may adjudge as reasonable attorneys'
fees in any action to enforce payment of this Note or any part of it.
6. Payment and Interest Calculation. Payments shall be applied to interest first, if any, and
then to any unpaid principal balance.
7. Recourse Note. In any action brought to enforce the obligations of Maker under this
Note, the judgment or decree shall be enforceable against Maker.
8. Late Charge. If any installment due hereunder is not paid within fifteen (15) days from
the date due, Maker promises to pay a "late charge" of $100.00 to defray the expense incident to
handling any such delinquent payment or payments.
9. Severability. If any provision of this Note is determined to be void by court of competent
jurisdiction, such determination shall not affect any other provisions of this Note, and such other
provisions shall remain in full force and effect.
10. Non -Waiver. No delay in demanding or failure to demand performance hereunder shall
constitute a waiver by the holder of its right to subsequently demand such performance or to
exercise any remedies for any default hereunder. Further, in order to be effective, any waiver of
any of the Seller's rights and remedies hereunder must be in a writing signed by the Seller.
Further waiver by the Seller of any right hereunder shall not constitute a waiver of any other
right, including but not limited to the right to exercise any and all remedies for a different or
subsequent event of default.
2
8/20/13 CC Agenda Items 19 & 25
Revisions to Attachment No. 3 Document: Promissory Note
Maker:
Community Development Commission -Housing Authority of the City of National City
By:
Leslie Deese, Executive Director
Approved as to Form:
By:
Claudia Gacitua Silva
General Counsel
Print Name:
3
Agenda Item 19 Revised Resolution
RESOLUTION NO. 2013 -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AND SALE AGREEMENT
WITH THE COMMUNITY DEVELOPMENT COMMISSION — HOUSING AUTHORITY OF
THE CITY OF NATIONAL CITY ("CDC -HA") FOR THE SALE OF TWO PARCELS OF LAND
TOTALING 6.299 ACRES FOR A TOTAL PURCHASE PRICE OF $7,035,000, GENERALLY
BOUNDED BY 19TH STREET, HARDING AVENUE, 22ND STREET, AND HOOVER AVENUE,
IN THE CITY OF NATIONAL CITY, FOR THE DEVELOPMENT OF 201 AFFORDABLE
HOUSING UNITS AS PHASE I AND II OF THE WESTSIDE INFILL TRANSIT ORIENTED
DEVELOPMENT PROJECT, APPROVING A LOAN FROM THE CITY OF NATIONAL CITY TO
THE CDC -HA FOR $4,941,000 TO COMPLETE SAID PURCHASE, AND APPROVING THE
MONTH TO MONTH LEASE BACK OF THE SUBJECT PROPERTY FROM THE CDC -HA
WHEREAS, the City is the owner of that certain real property (the "Property") in the
City of National City, State of California, consisting of two legal parcels ("Parcel 1 and Parcel 2")
totaling 6.299 acres, generally bounded by 19th Street, Harding Avenue, 22nd Street, and Hoover
Avenue; and
WHEREAS, the Successor Agency to the Community Development Commission as
the National City Redevelopment Agency (Successor Agency) is subject to the enforceable
obligation commonly referred to as the Westside Infill Transit Oriented Development (WI-TOD)
Development and Disposition Agreement (DDA), entered into June 21, 2011 with Paradise Creek
Housing Partners, LP (Developer); and
WHEREAS, the DDA requires the Property to be acquired for and developed into a
201 unit affordable housing project (the Project) as described in the DDA; and
WHEREAS, the sale of Parcel 1 and Parcel 2 to the CDC -HA is being undertaken
so that the Successor Agency can fulfill its enforceable obligations pursuant to the requirements of
the DDA; and
WHEREAS, in accordance with California Health and Safety Code section 34176,
the CDC -HA has accepted the affordable housing functions of the former redevelopment agency
pursuant to resolution number 2012-01; and
WHEREAS, the value of the consideration for the Property, pursuant to proposed
Purchase and Sale Agreement (Agreement) will not be less than the appraised value; and
WHEREAS, appraisals completed within the last 60 days indicate a value of $3.815
million for Parcel I and $3.22 million for Parcel 2 for a total value of the Property of $7.035 million;
and
WHEREAS, the CDC -HA will use $2,094,000 in HOME funds to acquire Parcel I
and the CDC -HA has requested a loan in the amount of $4,941,000 from the City in order to
provide full consideration for the remaining balance of the appraised value of Parcel 1 in the
amount of $1,721,0003,815,000 and the full appraised value of Parcel 2 in the amount of
$3,220,000; and
WHEREAS, the CDC -HA would repay the loan with ground lease income and loan
repayments made by the developer of the Project; and
Agenda Item 19 Revised Resolution
WHEREAS, the Property will continue to be temporarily occupied by the National
City Public Works Department, and the CDC -HA will provide a month -to -month lease agreement
for $1.00 per month until the operation is relocated to another site; and
Resolution No. 2013 —
Page Two
WHEREAS, the sale of the Property pursuant to the proposed Agreement will
improve the quality of life of the residents of National City and its visitors through the elimination
of blight and the development of a quality Project in the area by providing for the reuse and
redevelopment of a brownfield site; and
WHEREAS, all actions required by all applicable law with respect to the
proposed Agreement have been taken in an appropriate and timely manner; and
WHEREAS, the City Council has duly considered all terms and conditions of the
proposed Agreement and believes that the disposition of the Property pursuant thereto, loan,
and month to month lease, are in the best interests of the City of National City and the health,
safety, and welfare of its residents, and in accord with the public purposes and provisions of
applicable state and local law requirements.
NOW, THEREFORE, BE IT RESOLVED that the City Council authorizes the Mayor
to execute the Purchase and Sale Agreement between the City of National City and the
Community Development Commission -Housing Authority for the sale of 6.299 acres of land for a
total purchase price of $7,035,000. Said Purchase and Sale Agreement is on file in the Office of
the City Clerk.
BE IT FURTHER RESOLVED that the City Council accepts the partial payment of
the purchase price by the CDC -HA from the use of HOME Grant funds in the amount of
$2,094,000.
BE IT FURTHER RESOLVED that the City Council authorizes the City Manager or
her designee to execute any and all loan documents necessary to make the unsecured loan of
$4,941,000 provided by the City to the CDC -HA for consideration of value owed on the purchase
price, and as necessary to fulfill the terms the Purchase and Sale Agreement, including escrow
documents. Said loan documents are on file in the Office of the City Clerk.
BE IT FURTHER RESOLVED that the City Council authorizes the Mayor to execute
a Month -to -Month Lease Agreement for the Property until City Public Works operations are
relocated to another site. Said Lease Agreement is on file in the Office of the City Clerk.
BE IT FURTHER RESOLVED that the City Council determines that the WI-TOD
project was previously addressed in the Final Environmental Impact Report for the Westside
Specific Plan (State Clearinghouse No. 2008071092) which was certified by the City Council on
March 16, 2010, thus satisfying CEQA.
PASSED and ADOPTED this 20th day of August, 2013.
Attachment No. 2
PURCHASE AND SALE AGREEMENT
(Westside TOD Affordable Site, National City, 91950)
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20th day
of August, 2013 ("Effective Date") by and between City of National City ("Seller") and the
Community Development Commission -Housing Authority of the City of National City
("Purchaser").
RECITALS
A. The Seller owns the fee interest in that certain parcel of real property legally
described in Exhibit A attached hereto ("Parcel 1 ") and the fee interest in that certain parcel of
real property legally described in Exhibit B attached hereto ("Parcel 2"). Parcel 1 and Parcel 2,
are defined hereinbelow, collectively as the "Real Property." The Real Property is generally
bounded by 19th Street, Harding Avenue, 22na Street and Hoover Avenue in National City,
California.
B. The successor agency to the Community Development Commission as the
National City Redevelopment Agency ("Successor Agency") is subject to the enforceable
obligation commonly referred to as the Westside Infill Transit Oriented Development (WI-TOD)
Development and Disposition Agreement ("DDA"), entered into June 21, 2011 with Paradise
Creek Housing Partners, LP. The DDA requires the Real Property to be acquired for and
developed into a 201 unit affordable housing project. The Purchaser's purchase of Parcel 1 and
Parcel 2 is being undertaken pursuant to the requirements of the DDA and as an enforceable
obligation of the Successor Agency. The Purchaser accepted the affordable housing functions of
the former redevelopment agency pursuant to resolution number 2012-01. The value of the
consideration for the Real Property (i.e., the Parcel 1 Purchase Price for Parcel 1 and the Parcel 2
Purchase Price for Parcel 2), is not less than the appraised value of the Real Property. The
consideration being paid for Parcel 1 is the Parcel 1 Purchase Price of Three Million Eight
Hundred Fifteen Thousand and No/100 Dollars ($3,815,000.00), which equals the appraised
value of Parcel 1 as determined by that certain Land Appraisal performed by Lea & Company
effective as of June 27, 2013, but dated June 30, 2013. The consideration being paid for Parcel
2 is the Parcel 2 Purchase Price of Three Million Two Hundred Twenty Thousand and No/100
Dollars ($3,220,000.00), which equals the appraised value of Parcel 2 as determined by that
certain Land Appraisal performed by Lea & Company effective as of June 27, 2013, but dated
June 30, 2013. Provided the various conditions to Closing (as defined below) set forth in this
Agreement are satisfied, the Seller agrees to sell the Property (as defined below) to the Purchaser
and the Purchaser agrees to purchase the Property from the Seller as set forth in this Agreement.
C. The Purchaser is acquiring Parcel 1 in part utilizing United States Department of
Housing and Urban Development HOME funds. After Closing, the Seller will temporarily lease
the Property back from the Purchaser on a month -to -month basis for a total consideration of
$1.00 per month. After the Seller vacates the Property, the Purchaser shall cause Parcel 1 to be
developed as the "Phase 1 Project," as defined in the DDA, which shall be an affordable rental
housing project for persons and families of very low and low income. Construction and
operation of the Phase 1 Project shall be governed by all applicable United States Department of
1
Attachment No. 2
Housing and Urban Development regulations whether or not specifically referenced in this
Agreement. Failure of the Purchaser to cause Parcel 1 to be developed as an affordable rental
housing project for persons and families of very low and low income shall be a default
hereunder. This obligation shall not be merged into the Grant Deed and shall survive the
Closing.
AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are acknowledged, the Seller and the Purchaser hereby agree as follows:
1. Purchase, Sale and Leaseback. In consideration of the mutual covenants set forth in this
Agreement, the Purchaser will acquire all of the Property, on the terms and conditions set forth
herein, provided the various conditions to Closing set forth in this Agreement are satisfied.
(a) Sale of the Property. The Seller agrees to sell the Property to the Purchaser, and
the Purchaser agrees to purchase the Property from Seller, on the terms and conditions set forth
herein. At Closing, the Seller shall convey the fee interest in the Real Property to the Purchaser
by recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title
Policy (as defined below) to the Purchaser at Closing.
(b) Possession of the Property, Leaseback. The Seller shall deliver possession of the
Property to Purchaser at Closing, subject only to the Title Exceptions, all as defined hereinbelow.
Notwithstanding the foregoing, after Closing the Purchaser will allow the Seller to lease the
Property from the Purchaser on a month -to -month basis for a total consideration of $1.00 per
month, as set forth in the Lease.
2. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
"Agreement" means this Purchase and Sale Agreement between the Seller and the
Purchaser.
"Applicable Environmental Law" means all laws applicable to the presence of any
Hazardous Materials (as defined below) on or within the Property, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601,
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, et seq.); the Clean
Water Act (33 U.S.C. §2601, et seq.); the Safe Drinking Water Act (14 U.S.C. §300f, et seq.);
the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); the Toxic Substances
Control Act (15 U.S.C. §2601, et seq.); the Federal Water Pollution Control Act (33 U.S.C.
§1300, et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136, et seq.);
the Atomic Energy Act (42 U.S.C. §2011, et seq.); the Nuclear Waste Policy Act (42 U.S.C.
§10101, et seq.); the Clean Air Act (42 U.S.C. §7401, et seq.); the California Hazardous Waste
Control Act (California Health and Safety Code §25100, et seq.); the Carpenter -Presley -Tanner
Hazardous Substance Account Act (California Health and Safety Code §25300, et seq.); the Safe
Drinking Water and Toxic Enforcement Act ("Proposition 65") (California Health and Safety
2
Attachment No. 2
Code §25249.5, et seq.); and the Porter -Cologne Water Quality Control Act (California Water
Code §13000, et seq.); and any similar federal, state or local laws, all regulations and
publications implementing or promulgated pursuant to the foregoing, as any of the foregoing
may be amended or supplemented from time to time.
"Business Day" means any day other than a Saturday, Sunday or any other day on which
Purchaser or Escrow Agent is not open for business. In the event any date, deadline or due date
set forth in this Agreement falls on a day that is not a Business Day, then such deadline or due
date shall automatically be extended to the next Business Day.
"Close" or "Closing" means the close of Escrow as provided herein, which shall not be
later than the last day of the Due Diligence Period.
"Closing Date" means the date on which the Closing occurs, which date shall be August
28, 2013.
"Conditions Precedent for the Benefit of the Seller" shall have the meaning set forth in
Section 5 of this Agreement.
"Conditions Precedent for the Benefit of the Purchaser" shall have the meaning set forth
in Section 6 of this Agreement.
"Deposit" shall have the meaning set forth in Section 3(b)(1) of this Agreement.
"Due Diligence Period" means the period of time commencing on the Effective Date and
ending on July 15, 2013.
"Effective Date" is defined above.
"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
"Escrow Agent" means Carla Burchard at Stewart Title Company, 5740 Fleet Street,
Suite 100, Carlsbad, California 92008.
"Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple
title to the Real Property from the Seller to the Purchaser, in the form attached hereto as Exhibit
B.
"Hazardous Materials" means:
(1) Those substances included within the definitions of "hazardous substance,"
"hazardous waste," "hazardous material," "toxic substance," "solid waste," "pollutant" or
"contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery
Act (42 U.S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. §2601 et seq.); the Toxic
3
Attachment No. 2
Substances Control Act (15 U.S.C. §9601 et seq.); the Hazardous Materials
Transportation Act (49 U.S.C. § 1801 et seq.); or under any other Environmental Laws.
(2) Those substances included within the definitions of "Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under §§25115, 25117 or
25122.7 of the California Health and Safety Code, or is listed or identified pursuant to
§§25140 or 44321 of the California Health and Safety Code.
(3) Those substances included within the definitions of "Hazardous Material,"
"Hazardous Substance," "Hazardous Waste," "Toxic Air Contaminant" or "Medical
Waste" under §§25281, 25316, 25501, 25501.1, 25023.2 or 39655 of the California
Health and Safety Code.
(4) Those substances included within the definitions of "Oil" or a "Hazardous
Substance" listed or identified pursuant to §311 of the Federal Water Pollution Control
Act, 33 U.S.C. §1321, as well as any other hydrocarbonic substance or by-product.
(5) Those substances included within the definitions of "Hazardous Waste,"
Extremely Hazardous Waste" or an "Acutely Hazardous Waste" pursuant to Chapter 11
of Title 22 of the California Code of Regulations.
(6) Those substances listed by the State of California as a chemical known by the
State to cause cancer or reproductive toxicity pursuant to §25249.9(a) of the California
Health and Safety Code.
(7) Any material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures, damages or threatens to damage,
health, safety, or the environment, or is required by any law or public agency to be
remediated, including remediation which such law or public agency requires in order for
the property to be put to any lawful purpose.
(8) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field
Manual, whether or not the presence of such material resulted from a leaking
underground fuel tank.
(9) Pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. §136 et seq.
(10) Asbestos, PCBs, and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq.
(11) Any radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," "low-level wastes,"
"high-level radioactive waste," "spent nuclear fuel" or "transuranic waste" and any other
radioactive materials or radioactive wastes, however produced, regulated under the
4
Attachment No. 2
Atomic Energy Act, 42 U.S.C. §§2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C.
§§10101 et seq., or pursuant to the California Radiation Control Law, California Health
and Safety Code §§25800 et seq.
(12) Any material regulated under the Occupational Safety and Health Act, 29
U.S.C. §§651 et seq., or the California Occupational Safety and Health Act, California
Labor Code §§6300 et seq.
(13) Any material regulated under the Clean Air Act, 42 U.S.C. §§7401 et seq.
or pursuant to Division 26 of the California Health and Safety Code.
(14) Those substances listed in the United States Depaitiuent of Transportation
Table (49 CFR Part 172.101), or by the Environmental Protection Agency, or any
successor agency, as hazardous substances (40 CFR Part 302).
(15) Other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state or local laws or regulations.
(16) Any material, waste or substance that is a petroleum or refined petroleum
product, asbestos, polychlorinated biphenyl, designated as a hazardous substance
pursuant to 33 U.S.C. §1321 or listed pursuant to 33 U.S.C. §1317, a flammable
explosive or a radioactive material.
"Immediately Available Funds" means a bank wire transfer or a certified bank or
cashier's check.
"Improvements" means collectively: (i) any and all buildings, structures and
improvements, of any kind whatsoever, located at or affixed to the Real Property; (ii) all rights,
privileges and easements appurtenant to the Real Property, if any, including, without limitation,
all minerals, oil, gas and other hydrocarbon substances on and under the Real Property, if any;
and (iii) all development rights, air rights, and water rights if any, relating to the Real Property.
"Lease" means a lease in the form attached hereto as Exhibit C.
"Parcel 1" means that certain parcel of real property legally described in Exhibit A
attached hereto.
"Parcel 1 Purchase Price" means the purchase price to be paid by the Purchaser for Parcel
1, which shall be Three Million Eight Hundred Fifteen Thousand and No/100 Dollars
($3,815,000.00), which amount equals the appraised value of Parcel 1 as determined by that
certain Land Appraisal performed by Lea & Company effective as of June 27, 2013, but dated
June 30, 2013. A portion of the Parcel 1 Purchase Price only, is being paid by the Purchaser
utilizing Two Million Ninety -Four Thousand and No/100 Dollars ($2,094,000.00) of United
States Department of Housing and Urban Development HOME funds. None of the United States
Department of Housing and Urban Development HOME funds are being used to acquire Parcel
2. After the Seller vacates the Property, the Purchaser shall cause Parcel 1 to be developed as the
5
Attachment No. 2
"Phase 1 Project," as defined in the DDA, which shall be an affordable rental housing project for
persons and families of very low and low income. Construction and operation of the Phase 1
Project shall be governed by all applicable United States Department of Housing and Urban
Development regulations whether or not specifically referenced in this Agreement. The
Purchaser shall cause Parcel 1 to be restricted in accordance with the United States Department
of Housing and Urban Development HOME regulations (24 CFR Part 92).
"Parcel 2" means that certain parcel of real property legally described in Exhibit B
attached hereto.
"Parcel 2 Purchase Price" means the purchase price to be paid by the Purchaser for Parcel
2, which shall be Three Million Two Hundred Twenty Thousand and No/100 Dollars
($3,220,000.00), which amount equals the appraised value of Parcel 2 as determined by that
certain Land Appraisal performed by Lea & Company effective as of June 27, 2013, but dated
June 30, 2013.
"Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions
in the Title Policy; (ii) the exceptions shown as items A-E and 1-9 on that certain Preliminary
Report dated as of June 12, 2013, issued by Stewart Title of California, Inc., Order No. 01180-
50484; (iii) real property taxes and assessments which are a lien but not yet payable; and (iv) all
applicable building, zoning and use restrictions and/or regulations of any municipality, township,
county or state.
"Property" means collectively, the Real Property and the Improvements.
"Purchase Price" means collectively, the Parcel 1 Purchase Price and the Parcel 2
Purchase Price, which total Seven Million Thirty -Five Thousand and No/100 Dollars
($7,035,000.00).
"Purchaser" means the Community Development Commission -Housing Authority of the
City of National City; provided, however, if the Community Development Commission -Housing
Authority of the City of National City assigns its interest in this Agreement pursuant to Section
10 of this Agreement, then the term "Purchaser" shall mean such assignee.
"Real Property" means collectively, Parcel 1 and Parcel 2.
"Seller" means the City of National City.
"Title Policy" means a CLTA Owner's Policy of Title Insurance in the amount of the
Purchase Price, insuring that title to the fee interest in the Property is vested in the Purchaser
subject only to the Permitted Exceptions, which Title Policy shall be obtained through Stewart
Title Company. Purchaser shall pay the cost of the CLTA Owner's Policy of Title Insurance and
any endorsements it desires.
6
Attachment No. 2
3. Purchase Price.
(a) Purchase Price. The Seven Million Thirty -Five Thousand and No/100 Dollars
($7,035,000.00) Purchase Price shall be paid as follows:
(1) Two Million Ninety -Four Thousand and No/100 Dollars ($2,094,000.00)
of United States Department of Housing and Urban Development HOME funds shall be payable
at Closing, all of which is being paid by the Purchaser to acquire Parcel 1 only; and
(2) The Four Million Nine Hundred Forty -One Thousand and No/100 Dollars
($4,941,000.00) balance of the Purchase Price shall be paid by the Purchaser to the Seller with
interest at the rate of zero percent (0.00%) in annual installments equal to the annual amount the
Purchaser receives from any ground leases Parcel 1 and Parcel 2 and from the residual receipts
loans that the Purchaser is making to the affordable housing developers that will construct
affordable housing projects on each of Parcel 1 and Parcel 2. At Closing, the Purchaser shall
execute a promissory note in favor of Seller in a form acceptable to the Seller and Purchaser.
(b) Deposit; Liquidated Damages.
(1) Deposit. Purchaser shall make a deposit ("Deposit") into Escrow of
Immediately Available Funds in the amount of One Thousand and No/100 Dollars ($1,000.00)
within three (3) Business Days of the Effective Date. The Deposit shall be credited against the
Purchase Price. If the Purchaser elects to terminate this Agreement prior to Closing, then the
Deposit shall be immediately returned by Escrow Agent to the Purchaser. At Closing, the
Deposit shall be released by Escrow Agent to the Seller. The Deposit, and any interest earned on
the Deposit, shall be credited in favor of the Purchaser against the Purchase Price as set forth in
Section 3(c), below.
(2) LIQUIDATED DAMAGES. THE DEPOSIT SHALL BE
REFUNDABLE TO THE PURCHASER AS MAY BE EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF PURCHASER'S
DEFAULT HEREUNDER, THE SOLE REMEDY OF THE SELLER SHALL BE TO
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO
PURCHASER AND ESCROW AGENT, WHEREUPON THE SELLER SHALL RETAIN THE
DEPOSIT(S) ACTUALLY DEPOSITED BY PURCHASER INTO ESCROW AS
LIQUIDATED DAMAGES (AND THE SELLER WAIVES ANY RIGHT TO SPECIFICALLY
ENFORCE THIS AGREEMENT SET FORTH IN CALIFORNIA CIVIL CODE SECTION
1680 OR 3389). THEREAFTER, NO PARTY HERETO SHALL HAVE ANY FURTHER
LIABILITY OR OBLIGATION TO ANY OTHER PARTY HERETO EXCEPT FOR: (i) THE
SELLER'S RIGHT TO RECEIVE AND RETAIN SUCH LIQUIDATED DAMAGES; AND (ii)
THE OBLIGATION OF THE PARTIES TO PAY AMOUNTS INTO ESCROW TO PAY A
PORTION OF THE FEES AND COSTS OF ESCROW AS SET FORTH IN SECTIONS 5 AND
6 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE
SELLER'S ACTUAL DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT
HEREUNDER ARE UNCERTAIN IN AMOUNT AND DIFFICULT TO ASCERTAIN, AND
7
Attachment No. 2
THAT SUCH AMOUNT OF LIQUIDATED DAMAGES IS REASONABLE UNDER THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ., CONSIDERING
ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE HEREOF INCLUDING,
WITHOUT LIMITATION, THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF
POTENTIAL HARM TO THE SELLER THAT CAN REASONABLY BE ANTICIPATED
AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES RESULTING FROM
SUCH DEFAULT WOULD BE COSTLY AND INCONVENIENT. IN PLACING ITS
INITIALS IN THE SPACE BELOW, EACH PARTY HERETO SPECIFICALLY CONFIRMS
THE ACCURACY OF THE FOREGOING AND THE FACT THAT SUCH PARTY HAS
BEEN REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION.
THE PROVISIONS OF THIS SECTION 3(B)(2) SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Seller's Initials Purchaser's Initials
(c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (1)
Business Day prior to the Closing Date, the Purchaser shall cause Immediately Available Funds
to be delivered to the Escrow Agent in an amount equal to $2,094,000.00 ($2,093,000.00 minus
the Deposit).
(d) Disbursement to the Seller Immediately after the Closing, the Escrow Agent
shall disburse to the Seller the funds that the Seller is entitled to receive under this Agreement.
4. Due Diligence. The Purchaser has completed its due diligence with respect to the
Property.
5. Conditions Precedent for the Benefit of the Seller. The Seller's obligation to Close shall
be conditioned upon the satisfaction or emailed or written waiver by the Seller of all of the
conditions precedent ("Conditions Precedent for the Benefit of the Seller") set forth in this
Section 5. Any of the Conditions Precedent for the Benefit of the Seller may be waived by the
Seller unilaterally; and if so waived, such conditions shall be of no further effect hereunder. Any
such waiver shall be effective only if the same is expressly waived (i) by email from the Seller to
the Purchaser and Escrow Agent; or (ii) in a writing signed by the Seller and delivered to the
Purchaser and Escrow Agent. If the Conditions Precedent for the Benefit of the Seller are not
satisfied by the deadlines set forth in this Section 5 or expressly waived, the Seller (provided the
Seller is not in default hereunder) may provide emailed or written notice of the Seller's
conditional termination of this Agreement to the Purchaser and Escrow Agent. After receipt of
such notice of conditional termination, the Purchaser shall have ten (10) Business Days to cure
any non -satisfaction of a condition or other default specified in the notice of conditional
termination; provided, however, the foregoing grace period shall be two (2) Business Days if the
unsatisfied condition is a failure by Purchaser to deliver funds required to close on the Closing
Date. If such matter remains unsatisfied or the default remains uncured after the expiration of
such ten (10) Business Day period, then this Agreement shall terminate at the close of business
8
Attachment No. 2
on such tenth (10th) Business Day (or second (2"d) Business Day if the unsatisfied condition is a
failure by Purchaser to deliver funds required to close on the Closing Date). In the event of
termination of this Agreement (and by operation of law the Escrow) pursuant to this Section 5,
then: (x) as set forth in the liquidated damages provision of Section 3(b)(2) above, all rights and
liabilities of the Purchaser and the Seller with respect to this Agreement shall immediately
terminate, except those which specifically survive such termination; (y) Escrow Agent deliver
the Deposit to the Seller and shall return to the Seller all funds or other things deposited in
Escrow by the Seller; and (z) Escrow Agent shall return to the Purchaser all funds or other things
deposited in Escrow by the Purchaser, less the Deposit. Provided, however, all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser. Notwithstanding clause (x) of this Section 5, in the event of termination of this
Agreement pursuant to this Section 5, the Purchaser and the Seller shall cooperate with one
another, execute all documents reasonably necessary and take all reasonable steps as may be
required by Escrow Agent in order to accomplish the purposes of this Section 5.
(a) Purchaser making the Deposit into Escrow, as set forth in Section 3(b)(1), above.
(b) The delivery by the Purchaser into Escrow at least one (1) Business Day prior to
Closing of Immediately Available Funds in the amount required by Section 3(c), above.
(c) The delivery by the Purchaser into Escrow of all other documents and instruments
required by this Agreement or reasonably required by Seller and/or Escrow Agent to complete
the Closing, at least one (1) Business Day prior to Closing.
(d) Purchaser not being in default of any of its representations or warranties under
this Agreement, or any other material terms or conditions related to Purchaser.
(e) As of the Closing Date, the Purchaser has not made an assignment for the benefit
of creditors, filed a bankruptcy petition, been adjudicated insolvent or bankrupt, petitioned a
court for the appointment of any receiver of, or trustee for, the Purchaser, or commenced any
proceeding relating to the Purchaser under any reorganization, arrangement, readjustment of
debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect.
(f) This Agreement has been formally approved by resolution of the City of National
City.
6. Conditions Precedent for the Benefit of the Purchaser. The Purchaser' s obligation to
Close shall be conditioned upon the satisfaction or emailed or written waiver by the Purchaser of
all of the conditions precedent ("Conditions Precedent for the Benefit of the Purchaser") set forth
in this Section 6. Any of the Conditions Precedent for the Benefit of the Purchaser may be
waived by the Purchaser unilaterally; and if so waived, such conditions shall be of no further
effect hereunder. Any such waiver shall be effective only if the same is expressly waived (i) by
email from the Purchaser to the Seller and Escrow Agent; or (ii) in a writing signed by the
Purchaser and delivered to the Seller and Escrow Agent. If the Conditions Precedent for the
Benefit of the Purchaser are not satisfied by the deadlines set forth in this Section 6 or expressly
waived, the Purchaser (provided the Purchaser is not in default hereunder) may provide emailed
9
Attachment No. 2
or written notice of the Purchaser's conditional termination of this Agreement to the Seller and
Escrow Agent. After receipt of such notice of conditional termination, the Seller shall have ten
(10) Business Days to cure any non -satisfaction of a condition or other default specified in the
notice of conditional termination. If such matter remains unsatisfied or the default remains
uncured after the expiration of such ten (10) Business Day period, then this Agreement shall
terminate at the close of business on such tenth (10t1i) Business Day. In the event of termination
of this Agreement (and by operation of law the Escrow) pursuant to this Section 6, then: (x)
except to subparagraph (f) below, the same shall be a default by the Seller (y) Escrow Agent
shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser,
including without limitation, the Deposit; and (z) Escrow Agent shall return to the Seller all
funds or other things deposited in Escrow by the Seller. Purchaser is not waiving any default by
the Seller and nothing contained in this Section 6, including, without limitation, the immediately
foregoing sentence shall be a waiver of any right of Purchaser to recover damages from the
Seller for failure of any Conditions Precedent for the Benefit of the Purchaser. Provided,
however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the
Seller and one-half (1/2) by the Purchaser.
(a) The deposit into Escrow by the Seller of the Grant Deed, duly executed and
acknowledged, conveying fee simple title to the Property to the Purchaser at least one (1)
Business Day prior to Closing.
(b) The deposit by the Seller into Escrow of a duly executed affidavit that it is not a
foreign person and is a "United States Person" as such term is defined in Section 7761(a)(30) of
the Internal Revenue Code of 1986, as amended, at least one (1) Business Days prior to Closing.
The affidavit shall be in the form prescribed by federal regulations, if any.
(c) The deposit by the Seller into Escrow of a duly executed California Form 593(c)
or other evidence that withholding of any portion of the Purchase Price is not required by the
Revenue and Taxation Code of California, at least one (1) Business Day prior to Closing.
(d) The deposit by the Seller into Escrow of all additional documents and instruments
as are reasonably required by the Purchaser and/or Escrow Agent to complete the Closing, at
least one (1) Business Day prior to Closing.
(e) The Escrow Agent is prepared and obligated to issue the Title Policy in
Purchaser's favor upon the recordation of the Grant Deed and there are no exceptions to the Title
Policy, except for Permitted Exceptions.
(f) Seller not being in default of any of its representations or warranties under this
Agreement, or any other material terms or conditions related to Seller.
(g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement
affecting the Property, except for the lease of the property from the Purchaser back to the Seller,
as described in Section 1(b), above.
10
Attachment No. 2
(h) As of the Closing Date there is not pending, or threatened to be pending, any
action or proceeding by any person or before any government authority, the outcome of which
could prohibit the use of the Property as intended by the Purchaser.
(i) This Agreement has been formally approved by resolution of the Community
Development Commission -Housing Authority of the City of National City.
7. Representations and Warranties; Waivers and Releases. When making the
representations and warranties set forth in this Section 7, each party making a representation
and/or warranty represents that the same are true, correct and complete as of the date hereof and
shall be and are true, correct and complete as of the Closing Date. The representations and
warranties shall survive the Closing.
(a) Representations and Warranties Regarding Authority. The Seller and the
Purchaser each hereby represents and warrants to the other that this Agreement and all
documents or instruments executed by them which are to be delivered at or prior to the Closing
are, or on the Closing Date will be, duly authorized, executed and delivered by the Seller or the
Purchaser, as applicable.
(b) Representations and Warranties Regarding Enforceability of Agreement. The
Seller and the Purchaser each hereby represents and warrants to the other that this Agreement
and all documents required hereby to be executed by them shall be valid, legally binding
obligations of, and enforceable against, the Seller or the Purchaser, as applicable, in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally and general principles of equity
(whether enforcement is sought in equity or at law).
(c) Seller Representations and Warranties Pertaining to Legal Matters. The Seller
hereby represents and warrants to the Purchaser that:
(1) As of the Effective Date and the Closing Date, the Seller is the sole owner
of the fee title interest to the Property.
(2) There is no pending or threatened proceeding in eminent domain or
otherwise, which would affect the Property, or any portions thereof, nor any facts which
might give rise to such action or proceeding.
(d) Seller Representations and Warranties Pertaining to Options. The Seller hereby
represents and warrants to the Purchaser that no person has any option or right of first refusal to
purchase the Property or any parts thereof
(e) Material Adverse Changes. If Seller receives any notice or knowledge of
anything materially adversely affecting Seller's representations or warranties after the date of
this Agreement, then Seller shall immediately notify Purchaser in writing of such fact or
circumstance. If Purchaser receives written notice from Seller pursuant to the immediately
preceding sentence, and Seller in such notice does not agree to cure the same at or prior to
11
Attachment No. 2
Closing to Purchaser's reasonable satisfaction, then, Purchaser shall have the right to bring an
action against Seller on the breach of such representation or warranty.
(f) Seller Representation and Warranty Pertaining to Tenants. The Seller hereby
represents and warrants to the Purchaser that no person has any lease or other right to occupy the
Property or any parts thereof, except for the Seller's right to lease the Property from the Seller as
described in Section 1(b), above.
(g) Seller Representation and Warranty Regarding Operation of the Property. The
Seller hereby represents and warrants to the Purchaser that there are no oral or written
agreements or understandings concerning the Property by which the Purchaser would be bound
following the Closing.
(h) AS IS CONDITION. PURCHASER HEREBY ACKNOWLEDGES,
REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL
INDUCEMENT TO SELLER TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN
CONSIDERATION OF THE PERFORMANCE BY SELLER OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENT THAT, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF THIS
AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE
ON AN "AS IS, WHERE IS" BASIS, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXISTENCE
OF HAZARDOUS MATERIALS OR MOLD UPON THE PROPERTY OR ANY PORTION
THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND
WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER
AND FAULTING; (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE
PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE
OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN,
FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL
ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES,
OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING
PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION,
DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR
FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE
IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183, 12186(B) —
12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS
12
Attachment No. 2
MATERIALS IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY; (9) THE
SQUARE FOOTAGE OF THE PROPERTY OR THE IMPROVEMENTS THEREON; (10)
IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION,
THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES, AND PERSONAL
PROPERTY, IF ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER
OR WATER RIGHTS; (13) THE DEVELOPMENT POTENTIAL FOR THE PROPERTY; (14)
THE ABILITY OF PURCHASER TO REZONE THE PROPERTY OR CHANGE THE USE
OF THE PROPERTY; (15) THE ABILITY OF PURCHASER TO ACQUIRE ADJACENT
PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY
UNDERGROUND UTILITIES; (17) THE EXISTENCE AND POSSIBLE LOCATION OF
ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE PROPERTY
WERE BUILT, IN WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE
BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSTEMS IN THE
IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE
NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR
USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL
PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR
OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER
AFFIRMING THAT PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT
FOR ANY PARTICULAR PURPOSE); AND/OR (23) ANY OTHER MATTER
CONCERNING THE PROPERTY. NOTWITHSTANDING THE FOREGOING OR
ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, SELLER IS NOT
RELEASED FROM ANY LIABILITY TO PURCHASER FOR FRAUD OR BREACH OF
ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS
AGREEMENT. Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation, this Section 7(h), any right waived by Purchaser and any release by
Purchaser, shall only release or waive the Purchaser's right to enforce any judgment (including
without limitation, damages, attorneys' fees, costs, expenses or any other compensation of any
type whatsoever) personally against only the Seller and Seller's successors, assigns, officers,
directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and
agents (collectively, the "Seller Parties") or any of them. Purchaser is not waiving any right to
bring any action against any of the "Non -Released Parties" (defined below) or waiving recovery
against or otherwise releasing or agreeing to forego Purchaser's rights with respect to any
insurance policy, or any other person (other than the right to enforce a judgment personally
against any of the Seller Parties), including without limitation persons obligated to the Seller
Parties, by right of subrogation or otherwise, prior owners or occupants of the Property, the
tenants, persons performing work at the Property and/or any insurance policies held by any or all
such persons (collectively, the "Non -Released Parties").
PURCHASER ACKNOWLEDGES THAT AS OF THE EXPIRATION OF THE DUE
DILIGENCE PERIOD, PURCHASER SHALL HAVE COMPLETED ALL PHYSICAL AND
FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF THE PROPERTY
13
Attachment No. 2
HEREUNDER (IT BEING ACKNOWLEDGED AND AGREED THAT PURCHASER SHALL
BE DEEMED TO HAVE INSPECTED EACH APARTMENT UNIT WITHIN THE
PROPERTY) AND WILL ACQUIRE THE SAME SOLELY ON THE BASIS OF SUCH
EXAMINATIONS AND THE TITLE INSURANCE PROTECTION FOR THE PROPERTY
AFFORDED BY THE TITLE POLICY, EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT AND SUBJECT TO SELLER'S EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 7 OF THIS AGREEMENT. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED
OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT THE SELLER HAS NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT
AND SUBJECT TO SELLER'S EXPRESS REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTION 7 OF THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR
ANY NEGLIGENT MISREPRESENTATION OR FAILURE TO INVESTIGATE THE
PROPERTY NOR SHALL SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL
ASSESSMENT REPORTS, OR OTHER INFORMATION PERTAINING TO THE
PROPERTY OR THE OPERATION THEREOF, FURNISHED BY SELLER, OR ANY REAL
ESTATE BROKER, AGENT, REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER
PERSON ACTING ON SELLER'S BEHALF EXCEPT FOR REPRESENTATIONS AND
WARRANTIES EXPRESSLY PROVIDED IN SECTION 7 OF THIS AGREEMENT. IT IS
ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY SELLER AND
PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. NOTWITHSTANDING
THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, SELLER IS NOT RELEASED FROM ANY LIABILITY TO PURCHASER
FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY
SET FORTH IN THIS AGREEMENT.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT PURCHASER IS
FULLY AWARE OF THE AGE OF THE PROPERTY, THAT OVER TIME VARIOUS
EVENTS MAY HAVE OCCURRED ON THE PROPERTY WHICH EVENTS MAY BE
TYPICAL AND(OR) ATYPICAL OF EVENTS OCCURRING TO OTHER PROPERTIES OF
SIMILAR AGE TO THE PROPERTY AND SIMILARLY LOCATED IN THE CITY OF
NATIONAL CITY AND (OR) THE COUNTY OF SAN DIEGO, CALIFORNIA, AND THAT
SUCH EVENTS MAY INCLUDE, WITHOUT LIMITATION, SLAB LEAKS, MOLD, FIRE,
SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS,
PERMITS, APPROVALS, LICENSES AND(OR) ORDERS OF GOVERNMENTAL
AGENCIES WITH JURISDICTION OVER THE PROPERTY.
THE CLOSING OF THE PURCHASE OF THE PROPERTY BY PURCHASER
HEREUNDER SHALL BE CONCLUSIVE EVIDENCE THAT: (A) PURCHASER HAS
FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND
COMPLETELY INSPECTED) THE PROPERTY; AND (B) PURCHASER ACCEPTS THE
14
Attachment No. 2
PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE
FOR PURCHASER'S PURPOSES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR
RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN
SECTION 7 OF THIS AGREEMENT, PURCHASER SHALL PERFORM AND RELY
SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE
PROPERTY, AND THE PROPERTY'S FITNESS THEREFOR. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT SELLER'S COOPERATION WITH PURCHASER
WHETHER BY PROVIDING DOCUMENTS RELATING TO THE PROPERTY OR
PERMITTING INSPECTION OF THE PROPERTY, SHALL NOT BE CONSTRUED AS ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH
RESPECT TO THE PROPERTY, OR WITH RESPECT TO THE ACCURACY,
COMPLETENESS, OR RELEVANCE OF THE DOCUMENTS PROVIDED TO
PURCHASER BY SELLER IN RELATION TO THE PROPERTY, PROVIDED THAT THE
FOREGOING SHALL NOT BE A LIMITATION OR MODIFICATION OF THE
REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED FOR IN SECTION 7
OF THIS AGREEMENT.
SELLER'S INITIALS PURCHASER'S INITIALS
(i) Indemnity and Release.
(I) Indemnity. For the purposes of this Section 7(i), the term "Claims" shall
mean any and all claims, obligations, liabilities, causes of action, suits, debts, liens, damages,
judgments, losses, demands, orders, penalties, settlements, costs and expenses (including,
without limitation, attorneys' fees and costs and any and all costs and expenses related to,
whether directly or indirectly, any and all clean-up, remediation, investigations, monitoring,
abatement, mitigation measures, fines or removal with respect to Hazardous Materials) of any
kind or nature whatsoever. The definition of "Claims" shall include, without limitation, Claims
under contract law or tort law. Purchaser acknowledges that but for Purchaser's agreement to
each and every provision of this Section 7(i), Seller would not have entered into the Agreement.
Purchaser, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"),
shall indemnify, defend, protect and hold Seller and Seller's successors, assigns, partners,
affiliates and members and all their respective officers, directors, shareholders, participants,
partners, affiliates, employees, representatives, invitees and agents (collectively, "Seller Parties")
harmless from and against any and all Claims resulting from, related to, or based upon, whether
directly or indirectly: (i) the breach by Purchaser of any representation, warranty, covenant or
obligation contained in the Agreement, or in any other agreement, document, exhibit or
instrument related hereto or referenced herein; (ii) any Claim or Claims, if the basis of such
Claim or Claims arose on or after the Closing, except as noted in subparagraph (iv) below, and if
the basis of such Claim or Claims arose from, is based upon, relates to or pertains to, whether
directly or indirectly, the operation, management and use of the Property; (iii) any Claim or
Claims which Claim or Claims (or the basis for which) arose from, is based upon, relates to or
pertains to, whether directly or indirectly, any act or omission of Purchaser or any of its
15
Attachment No. 2
employees, agents or representatives; and (iv) (A) any Claim or Claims that relate to the
condition of the Property on or after the Close of Escrow, including any judgment, order or
settlement under or otherwise pursuant to a lawsuit, and (B) any Claim or Claims that relate to
defects in the Property (including, without limitation, patent and latent construction defects),
regardless of whether said defects or the cause of the same arose either before or after the Close
of Escrow, including any judgment, order or settlement under or otherwise pursuant to the
lawsuit. Any defense of any or all of the Seller Parties referenced in this Section 7(i)(1), shall be
at the Purchaser's sole cost and expense and by counsel selected by the Purchaser, subject to the
reasonable approval of the indemnified person, which counsel may, without limiting the rights of
any of the Seller Parties pursuant to the next succeeding sentence of this Section 7(i)(1), also
represent the Purchaser in such investigation, action or proceeding. If any of the Seller Parties
that is being indemnified determines reasonably and in good faith that its defense by the
Purchaser is reasonably likely to cause a conflict of interest or is being conducted in a manner
which is prejudicial to such persons interests, such indemnified person may elect to conduct its
own defense through counsel of its own choosing, subject to the reasonable approval of the
Purchaser, and at the expense of the Purchaser.
(2) Release and § 1542 Waiver. Notwithstanding the following or anything to
the contrary set forth in this Agreement, the Seller is not released from any liability to the
Purchaser for fraud or breach of any covenant or warranty set forth in this Agreement. Subject to
the immediately preceding sentence and the Purchaser's right to rely on the Seller's express
representations and warranties set forth in Section 7 hereof, Purchaser for itself and on behalf of
each of its successors and/or assigns (collectively, the "Releasors") by this general release of
known and unknown claims (this "Release") hereby irrevocably and unconditionally release and
forever discharge Seller and each of the Seller Parties (collectively, the "Releasees") or any of
them, from and against any and all Claims of any kind or nature whatsoever, WHETHER
KNOWN OR UNKNOWN, suspected or unsuspected, fixed or contingent, liquidated or
unliquidated which any of the Releasors now have, own, hold, or claim to have had, owned, or
held, against any of the Releasees arising from, based upon or related to, whether directly or
indirectly any facts, matters, circumstances, conditions or defects (whether patent or latent) of all
or any kinds, related to, arising from, or based upon, whether directly or indirectly, the Property,
including without limitation, (i) the physical condition, quality and state of repair of the Property
conveyed, (ii) any latent or patent defect affecting the Property conveyed, and (iii) the presence
of Hazardous Materials in, on, about or under the Property or which have migrated from adjacent
lands to the Property or from the Property to adjacent lands.
Except for Claims for Seller's fraud or the breach of any representations and warranties
of the Seller expressly provided for in Section 7 of this Agreement, Releasors hereby further
agree as follows:
(i) Releasors acknowledge that there is a risk that subsequent to the execution
of this Agreement, Releasors may discover, incur, or suffer from Claims which were unknown or
unanticipated at the time this Release is executed, including, without limitation, unknown or
unanticipated Claims which, if known by Releasors on the date this Release is being executed,
may have materially affected Releasors' decision to execute this Agreement. Releasors
acknowledge that Releasors are assuming the risk of such unknown and unanticipated Claims
16
Attachment No. 2
and agree that this Release applies thereto. Releasors expressly waive the benefits of Section
1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
(ii) Releasors represent and warrant that Releasors have been represented by
independent counsel of Releasors' own choosing in connection with the preparation and review
of the Release set forth herein, that Releasors have specifically discussed with such counsel the
meaning and effect of this Release and that Releasors have carefully read and understand the
scope and effect of each provision contained herein. Releasors further represent and warrant that
Releasors do not rely and have not relied upon any representation or statement made by any of
the Releasees or any of their representatives, agents, employees, attorneys or officers with regard
to the subject matter, basis or effect of this Release.
(iii) Releasors represent and warrant to Releasees that Releasors have not and
shall not assign or transfer or purport to assign or transfer any Claim or Claims or any portion
thereof or any interest therein, and shall indemnify, defend, protect and hold the Releasees
harmless from and against any Claim or Claims based on or arising out of, whether directly or
indirectly, any such assignment or transfer, or purported assignment or transfer.
SELLER'S INITIALS PURCHASER'S INITIALS
It is specifically intended that each of the Seller Parties shall be third party beneficiaries
of this Section 7(i).
(3) Survival. The provisions of this Section 7(i) shall survive the Closing and,
as applicable, the termination of this Agreement.
(j) Waiver of Subrogation; Survival. Purchaser hereby waives any right of
subrogation as to Seller or the Seller Parties. Each and every provision of this Section 7 shall,
except as may be expressly limited in this Section 7, survive the Closing and, as applicable, the
termination of this Agreement, and, but for Purchaser's agreement to each and every provision of
this Section 7, Seller would not have executed this Agreement.
8. Condemnation of the Property.
(a) If between the Effective Date and the Closing Date, any condemnation or eminent
domain proceeding is commenced that will result in the taking of any part of the Property,
Purchaser may, at Purchaser's election, either:
(1) Terminate this Agreement by giving written or emailed notice to the Seller
and the Escrow Agent (in which event all remaining funds or other things deposited in Escrow
17
Attachment No. 2
by Purchaser, including without limitation, the Deposit, shall be returned to the Purchaser
immediately from Escrow, together with any interest earned thereon and all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser; or
(2) Proceed with the Closing with no reduction in the Purchase Price, in
which event the Seller shall assign to the Purchaser all of the Seller's rights, titles and interests to
any award made for the condemnation or eminent domain action.
(b) Notice. If the Seller obtains notice of the commencement of or the threatened
commencement of eminent domain or condemnation proceedings with respect to all of any
portion of the Property, the Seller shall notify the Purchaser in writing.
9. Broker's Commission. The Purchaser and Seller each hereby represents and warrants to
the other that it has not engaged the services of any real estate agent or broker with respect to the
transaction that is the subject of this Agreement. The Purchaser and the Seller each agree that, to
the extent any real estate commission, brokerage commission or finder's fee shall be earned or
claimed in connection with this Agreement or the Closing, the payment of such fee or
commission, and the defense of any action in connection therewith, shall be the sole and
exclusive obligation of the party who requested (or is alleged to have requested) the services of
the broker or finder. In the event that any claim, demand or cause of action for any such
commission or finder's fee is asserted against the party to this Agreement who did not request
such services (or is not alleged to have requested such services), the party through whom the
broker or finder is making the claim shall indemnify, defend (with an attorney of the
indemnitee's choice), protect and hold harmless the other from and against any and all such
claims, demands and causes of action and expenses related thereto, including, without limitation,
attorneys' fees and costs. The provisions of this Section 9 shall survive the Closing or
termination of this Agreement.
10. Assignment. The Purchaser shall not assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the Seller, which consent may be
withheld or granted in Seller's sole and absolute discretion; provided, however, the Purchaser
may assign this Agreement to an entity in which the Purchaser has a controlling or majority
interest without the prior written consent of the Seller provided Purchaser and such assignee
execute an assignment agreement in form and substance reasonably acceptable to Seller.
11. Notices. All notices under this Agreement shall be in writing and sent (a) by certified or
registered mail, return receipt requested, in which case notice shall be deemed delivered three (3)
Business Days after deposit, postage prepaid in the United States Mail, (b) overnight by a
nationally recognized overnight courier such as UPS Overnight, or FedEx, in which case notice
shall be deemed delivered one (1) Business Day after deposit with that courier, (c) by personal
delivery, in which case notice shall be deemed delivered upon the actual date of delivery, or (d)
by email, in which case notice shall be deemed delivered upon the actual date of delivery. All
notices shall be delivered to the following addresses:
18
If to Purchaser:
If to Seller:
Copy to:
Attachment No. 2
Community Development Commission -Housing Authority
of the City of National City
Attn: Alfredo Ybarra
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: alfredoy@nationalcityca.gov
City of National City
Attn: Brad Raulston
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: baulston@nationalcityca.gov
Christensen & Spath LLP
Attention: Walter F. Spath III
550 West C Street, Suite 1660
San Diego, CA 92101
Facsimile No. (619) 236-8307
Email: wfs@candslaw.net
The addresses above may be changed by written notice to the other party; provided
however, that no notice of a change of address shall be effective until actual receipt of the notice.
12. Risk of Loss.
(a) Damage or Destruction. Subject to the provisions of this Section 12(a), the risk of
loss or damage to the Property until the close of Escrow will be borne by Seller. Upon the
occurrence of any damage to or destruction of the Property, Seller shall within thirty (30) days
after the occurrence of such damage or destruction give written notice to Purchaser ("Damage
Notice") specifying the estimated cost to repair or restore the Property and an estimate of the
insurance proceeds, if any, that will be available with respect to such damage or destruction. The
close of Escrow shall be appropriately delayed to provide adequate time for Seller to give the
Damage Notice and Purchaser to make its election provided for below.
(b) Damage in Excess of $100,000. If prior to the close of Escrow there is damage to
or destruction of the Property that will cost in excess of One Hundred Thousand Dollars
($100,000) to repair or restore, Purchaser shall have the right by written notice given to Seller
within ten (10) days of Purchaser receiving the Damage Notice, to elect to: (i) close Escrow in
such damaged condition, in which event the Purchase Price shall not be reduced (but the Seller
shall be obligated to pay the deductibles under the applicable insurance policy or policies) and
Seller shall not be obligated to repair or restore the Property and all insurance proceeds shall be
assigned and payable to Purchaser, and if Seller receives any such insurance proceeds, they shall
be immediately remitted by Seller to Purchaser at Closing or, if received by Seller after Closing,
promptly after receipt; (ii) terminate this Agreement, in which event the Deposit and all interest
19
Attachment No. 2
accrued thereon shall be immediately returned to Purchaser, and neither party shall have any
further rights or obligations to the other party, except neither party shall be relieved of any
obligations provided for in this Agreement which expressly survives its termination.
(c) Damage of $100,000 or Less. If prior to the close of Escrow there is damage to or
destruction of the Property that will cost One Hundred Thousand Dollars ($100,000) or less to
repair or restore, Purchaser shall nevertheless close Escrow with the Property in such damaged
condition, the Purchase Price shall not be reduced (but the Seller shall be obligated to pay the
deductibles under the applicable insurance policy or policies) and Seller shall not be obligated to
repair or restore the Property, and all insurance proceeds shall be assigned and payable to
Purchaser, and if Seller should receive any such insurance proceeds, they shall be immediately
remitted to Purchaser.
13. Proration. Real property taxes and assessments and utility costs, and other expenses of
operating the Property (provided, however, no proration shall be made with regard to any capital
improvements) shall be prorated as of the close of Escrow. Seller shall pay all documentary
transfer taxes. Seller shall pay all real property taxes and assessments applicable to the period
prior to the close of Escrow, and if any such taxes are unpaid after the close of Escrow, then
Seller shall pay them promptly and in any event within ten (10) days after Purchaser's request
(which shall include a copy of the relevant tax bill).
14. General Provisions.
(a) Governing Law. This Agreement shall be interpreted and construed in
accordance with California law, without regard to any choice of law principles.
(b) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(c) Captions. The captions in this Agreement are inserted for convenience of
reference and in no way define, describe or limit the scope or intent of this Agreement or any of
the provisions of this Agreement.
(d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors, heirs and permitted assigns.
(e) Modifications; Waiver. No waiver, modification, amendment, discharge or
change of this Agreement shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver, amendment, discharge or change is sought.
(f) Entire Agreement. This Agreement contains the entire agreement between the
parties relating to Purchaser's acquisition of the Property from the Seller and all prior or
contemporaneous agreements, understandings, representations or statements, oral or written, are
superseded.
20
Attachment No. 2
(g) Partial Invalidity. Any provision of this Agreement which is unenforceable,
invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of
this Agreement shall have no effect, but all the remaining provisions of this Agreement shall
remain in full effect.
(h) Survival. Provisions of this Section 19 shall survive the Closing or the
termination of this Agreement.
(i) No Third -Party Rights. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties to this Agreement and their respective
successors and assigns, any rights or remedies.
(j) Time of Essence. Time is of the essence in this Agreement.
(k) Attorneys' Fees. The parties agree that the prevailing party in litigation for the
breach and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and attorneys' fees as may be
awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5
and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998. All claims, disputes, causes of action or controversies shall be
subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch.
(1) Relationship. Nothing contained in this Agreement shall be deemed or construed
by the parties or by any third person to create a relationship of principal and agent or partnership
or a joint venture between the Purchaser and the Seller or between any of them and any third
party.
(m) Recording. Neither this Agreement nor a memorandum hereof shall be recorded.
(n) Purchaser Approval. Where this Agreement refers to an action or approval of the
Purchaser, it shall mean the approval of the Community Development Executive Director of the
Purchaser, or designee, unless otherwise provided.
(o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are
hereby incorporated in this Agreement by this reference, regardless of whether or not the exhibits
are actually attached to this Agreement. The Recitals to this Agreement are hereby incorporated
in this Agreement by this reference.
(p) Independent Counsel. Seller and Purchaser each acknowledge that: (a) they have
been given the opportunity to be represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such counsel, if such
counsel was retained; and (c) this Agreement is the result of negotiations between the parties
hereto and the advice and assistance of their respective counsel, if such counsel was retained.
The fact that this Agreement was prepared or negotiated by Purchaser's or Seller's counsel as a
matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this
21
Attachment No. 2
Agreement shall not be construed against either party due to the fact that Purchaser's or Seller's
counsel prepared or negotiated this Agreement in its final form.
(q) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations
set forth in this Agreement, including without limitation, the Due Diligence Period, the deadline
for Closing, the deadline for making the Deposit, shall all be automatically extended by one (1)
Business Day for each Business Day that the Seller fails to timely provide any notice, report,
materials, studies, documentation or other information required by this Agreement.
(r) Capacity and Authority. All individuals signing this Agreement for a party which
is a corporation, limited liability company, partnership or other legal entity, or signing under a
power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent
and warrant that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
PURCHASER:
Community Development Commission -Housing Authority of the City of National City
By:
Leslie Deese, Executive Director
Approved as to Form:
By:
Claudia Gacitua Silva
General Counsel
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
22
SELLER:
City of National City
By:
Ron Morrison, Chairman
Approved as to Form:
By:
Claudia Gacitua Silva
City Attorney
23
Attachment No. 2
Attachment No. 2
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
Real property in the City of National City, County of San Diego, State of California, described as
follows:
Parcel 1:
Lots 1 to 22 inclusive of Block 107; and Lots 1 to 22 inclusive of Block 108 of National City, in
the City of National City, County of San Diego, State of California according to map thereof no.
348 filed in the Office of the County Recorder of San Diego County October 2, 1882;
Together with that portion of Coolidge Avenue between 20th Street and 22nd Street, and 21 St
Street between Harding Avenue and Hoover Avenue as set forth in that certain Order of
Vacation (Resolution No. 8338 of the City Council of the City of National City) recorded April
8, 1963 as file no. 59590 of Official Records;
And those portions of the Unnamed Alley lying within Blocks 107 and 108 of said map no. 348
as set forth in the certain Order of Vacation (Resolution No. 9816 of the City Council of the City
of National City) recorded May 12, 1969 as file no. 82961 of Official Records
Parcel 2:
Lots 7 to 16 inclusive of Block 85 of National City, in the City of National City, County of San
Diego, State of California according to map thereof no. 348 filed in the Office of the County
Recorder of San Diego County October 2, 1882, excepting therefrom that portion of land as set
forth in that certain Corporation Grant Deed recorded November 20, 1964 as file no. 211364 of
Official Records.
In addition, that portion of Coolidge Avenue between 20th Street and 22 Street, and 21st Street
between Harding Avenue and Hoover Avenue as set forth in that certain Order of Vacation
(Resolution No. 8338 of the City Council of the City of National City) recorded April 8, 1963 as
file no. 59590 of Official Records;
And those portions of the Unnamed Alley lying within Block 85 of said map no. 348 as set forth
in the certain Order of Vacation (Resolution No. 9816 of the City Council of the City of National
City) recorded May 12, 1969 as file no. 82961 of Official Records.
Parcel 3:
Lots 1 to 22 inclusive of Block 86 of National City, in the City of National City, County of San
Diego, State of California according to map thereof no. 348 filed in the Office of the County
Recorder of San Diego County October 2, 1882.
In addition, that portion of Coolidge Avenue between 20th Street and 22nd Street, and 21st
Street between Harding Avenue and Hoover Avenue as set forth in that certain Order of
24
Attachment No. 2
Vacation (Resolution No. 8338 of the City Council of the City of National City) recorded April
8, 1963 as file no. 59590 of Official Records;
And the Unnamed Alley lying within Block 86 of said map no. 348 as set forth in the certain
Order of Vacation (Resolution No. 9816 of the City Council of the City of National City)
recorded May 12, 1969 as file no. 82961 of Official Records
APN: 559-124-05-00, 560-391-08-00, and 560-396-06-00
25
Attachment No. 2
Exhibit "B"
GRANT DEED
26
Attachment No. 2
Exhibit "C"
LEASE
27
Attachment No. 3
PROMISSORY NOTE
(Westside TOD Affordable Site)
("Note")
National City, California August , 2013
1. Principal; No Interest. For value received and in consideration of the Purchase and Sale
Agreement (Westside TOD Affordable Site) dated as of August 20, 2013 ("Agreement"), by and
between the City of National City ("Seller") and Community Development Commission -Housing
Authority of the City of National City ("Maker"), Maker promises to pay to Seller, or order, at
1243 National City Boulevard, National City, California 91950-4397, or such other place as the
holder may from time to time designate by written notice to Maker, the principal sum of Four
Million Nine Hundred Forty -One Thousand and No/100 Dollars ($4,941,000.00). This Note shall
not bear interest. All capitalized terms which are not defined herein shall have the meaning
ascribed to them in the Agreement.
2. Term of Loan, Due Date and Right of Prepayment. Payments shall be due and payable as
follows:
(a) The Maker intends to ground lease Parcel 1 and Parcel 2, as such terms are defined
in the Agreement, and make one or more residual receipts loans to the developers of Parcel 1 and
Parcel 2. Those ground leases may or may not require annual ground rent payments to be made to
the Maker. Those residual receipts loans will require the developers of Parcel 1 and Parcel 2 to
make annual payments to the Maker based on the residual receipts generated by the operations on
Parcel 1 and Parcel 2, if any. The Maker shall pay to the Seller an amount equal to the amount
received from the developers of Parcel 1 and Parcel 2 (whether from ground rent or residual
receipts payments) within ten (10) business days of Maker's receipt of the same. The Maker shall
have no obligation to make any payments to Seller hereunder, unless and until the Maker receives
funds from the developers of Parcel 1 and Parcel 2.
(b) If all amounts otherwise payable hereunder are not paid in full within sixty-five
(65) years from the date first set forth above, all principal shall be due and payable.
(c) This Note shall be payable in full upon acceleration of this Note pursuant to the
provisions of Paragraph 4 of this Note.
(d) This Note shall be payable in full upon the conveyance of all or any part of the fee
interest in Parcel 1 or Parcel 2.
(e) This Note may be prepaid in whole or in part at any time and, from time to time,
without notice or penalty. Any prepayment shall be allocated first to unpaid interest, if any, and
then to principal.
3. Unsecured Note. This Note shall be unsecured.
1
Attachment No. 3
4. Acceleration Upon Default. Notwithstanding Section 2, above, or anything contained
herein to the contrary, in the event of: (i) any default in the performance of any of the terms,
covenants and conditions contained in this Note or the Agreement, in each case after the expiration
of applicable cure periods, or (ii) in the event of the filing of a bankruptcy proceeding by or against
Maker which is not dismissed within ninety (90) days thereafter, then all sums owing by Maker to
the Seller shall at the option of the Seller immediately become due and payable. These remedies
shall be in addition to any and all other rights and remedies available to the Seller, either at law or
in equity.
5. Costs Paid by Maker. Maker agrees to pay the following costs and expenses incurred by
the holder of this Note, or adjudged by a court: (a) reasonable costs, expenses and attorneys' fees
paid or incurred in connection with the collection or enforcement of this Note, whether or not suit
is filed; and (b) costs of suit and such sum as the court may adjudge as attorneys' fees in any action
to enforce payment of this Note or any part of it.
6. Payment and Interest Calculation. Payments shall be applied to interest first, if any, and
then to any unpaid principal balance.
7. Recourse Note. In any action brought to enforce the obligations of Maker under this Note,
the judgment or decree shall be enforceable against Maker.
8. Late Charge. If any installment due hereunder is not paid within fifteen (15) days from the
date due, Maker promises to pay a "late charge" of $100.00 to defray the expense incident to
handling any such delinquent payment or payments.
9. Severability. If any provision of this Note is determined to be void by court of competent
jurisdiction, such determination shall not affect any other provisions of this Note, and such other
provisions shall remain in full force and effect.
10. Non -Waiver. No delay in demanding or failure to demand performance hereunder shall
constitute a waiver by the holder of its right to subsequently demand such performance or to
exercise any remedies for any default hereunder. Further, in order to be effective, any waiver of
any of the Seller's rights and remedies hereunder must be in a writing signed by the Seller. Further
waiver by the Seller of any right hereunder shall not constitute a waiver of any other right,
including but not limited to the right to exercise any and all remedies for a different or subsequent
event of default.
Maker:
Community Development Commission -Housing Authority of the City of National City
By:
Print Name:
Its:
2
Attachment No. 3
Recording Requested By And When
Recorded Mail To And Mail Tax
Statements To:
City of National City
1243 National City Boulevard
National City, CA 91950
This document is exempt from payment of a recording fee
pursuant to Government Code Section 6103.
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
City of National City
hereby grant to
Community Development Commission -Housing Authority of the City of National
City
the real property in the County of San Diego, State of California, described on Exhibit "A"
attached hereto and incorporated herein. This grant deed is recorded to pursuant to the authority
granted by the City of National City, as referenced within City of National City board report
, and City of National City Resolution No. , adopted on
August 20, 2013.
City of National City
By: Dated: August , 2013
Ron Morrison, Mayor
Approved as to Form:
By:
Claudia Gacitua Silva
City Attomey
1
ACKNOWLEDGMENT
State of California
County of San Diego
Attachment No. 3
On , 2013, before me, , notary public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity on behalf of which the person acted,
executed the instrument.
1 certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
2
Attachment No. 3
ACCEPTANCE
This is to certify that the interest(s) in real property conveyed by this instrument to the
Community Development Commission -Housing Authority of the City of National City are
hereby accepted by the undersigned officer on behalf of the Community Development
Commission -Housing Authority of the City of National City, pursuant to the authority conferred
by City of National City Resolution No. on August 20, 2013, and the grantee
consents to recordation thereof by its duly authorized officer.
Community Development Commission -Housing Authority of the City of National City
By: Dated: August , 2013
Leslie Deese, Executive Director
Approved as to Form:
By:
Claudia Gacitua Silva
General Counsel
ACKNOWLEDGMENT
State of California
County of San Diego
On , 2013, before me, , notary public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity on behalf of which the person acted,
executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
3
Attachment No. 3
EXHIBIT "A"
The land referred to herein is situated in the State of California, County of San Diego, City of
National City and described as follows:
PARCEL 1:
THAT CERTAIN PARCEL OF LAND SITUATE IN THE CITY OF NATIONAL CITY, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF LOTS 1 TO 10, INCLUSIVE, IN
BLOCK 175 OF NATIONAL CITY ACCORDING TO MAP THEREOF NO, 348 FILED OCTOBER 2,
1882, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AND A
PORTION OF THE SOUTHEASTERLY HALF OF THE CLOSED PORTION OF 17TH STREET
ABUTTING UPON SAID LOT 1, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 10 IN BLOCK 175, SAID
CORNER BEING IN THE NORTHWESTERLY LINE OF 18TH STREET AS SHOWN ON SAID
MAP; THENCE SOUTHWESTERLY ALONG THE SOUTHEASTERLY LINE OF SAID LOT 10, A
DISTANCE OF 42.00 FEET TO A LINE PARALLEL WITH AND DISTANT 17.00 FEET
NORTHEASTERLY, MEASURED AT RIGHT ANGLES, FROM THE CENTER LINE OF SAN
DIEGO & ARIZONA EASTERN RAILWAY COMPANY'S MAIN TRACT (SAN DIEGO-SAN
YSIDRO); THENCE NORTHWESTERLY ALONG SAID PARALLEL LINE. 290.00 FEET TO THE
CENTER LINE OF SAID I7TH STREET; THENCE NORTHEASTERLY ALONG SAID CENTER
LINE, 48.00 FEET TO THE NORTHWESTERLY PROLONGATION OF THE NORTHEAS 1'ERLY
LINE OF SAID LOT I IN BLOCK 175; THENCE SOUTHEASTERLY ALONG SAID
PROLONGATION AND THE NORTHEASTERLY LINE OF SAID LOTS 1 TO 10, A DISTANCE OF
290.00 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH THAT PORTION OF THE SOUTHWESTERLY 1/2 OF THE ALLEY
ADJOINING SAID LOTS 6 THROUGH 10 ON THE NORTHEAST AS VACATED AND CLOSED
TO PUBLIC USE.
EXCEPT THAT PORTION OF SAID LAND LYING BELOW A DEPTH OF 500.00 FEET,
MEASURED VERTICALLY, FROM THE CONTOUR OF THE SURFACE OF SAID PROPERTY;
HOWEVER, GRANTOR. OR ITS SUCCESSORS AND ASSIGNS, SHALL NOT HAVE THE RIGHT
FOR ANY PURPOSE WHATSOEVER TO ENTER UPON, INTO OR THROUGH THE SURFACE OF
SAID PROPERTY OR ANY PART THEREOF LYING BETWEEN SAID SURFACE AND 500.00
FEET BELOW SAID SURFACE, AS EXCEPTED IN THE DEED RECORDED FEBRUARY 7, 1980.
AS FILE NO. 80-044143.
PARCEL 2:
LOTS 13, 14, 15, 16 AND 17 IN BLOCK 115 OF NATIONAL CITY, IN THE CITY OF NATIONAL
CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. 348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
OCTOBER 2, 1882.
EXCEPTING FROM SAID LOT 13, THE SOUTHERLY 20 FEET THEREOF, TOGETHER WITH
THAT PORTION OF THE NORTHEASTERLY 1/2 OF THE ALLEY ADJOINING SAID LOTS 14
THROUGH 17 AND THE REMAINDER PORTION OF LOT 13 ON THE SOUTHWEST AS
VACATED AND CLOSED TO PUBLIC USE.
4
Attachment No. 3
PARCEL 3:
LOTS 18 AND 19 IN BLOCK 175 OF NATIONAL CITY, IN THE CITY OF NATIONAL CITY,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO.
348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY.
APN: 559-086-13-00, 559-086-12-00, 559-086-05-00, and 559-086-03-00
5
Attachment No. 4
MONTH -TO -MONTH LEASE
(Public Works Yard-Westside TOD Affordable Site, National City, 91950)
THIS MONTH -TO -MONTH LEASE ("Lease") is dated as of the 30th day of August, 2013,
by and between the Community Development Commission -Housing Authority of the City of
National City ("Landlord"), and the City of National City ("Tenant").
1. Definitions.
"Commencement Date" means August 30, 2013.
"Landlord" means the Community Development Commission -Housing Authority of the
City of National City.
"Premises" means the approximately 6.29 acres of real property in the City of National
City, bounded by 19th Street, Harding Avenue, 22nd Street and Hoover Avenue.
"Rent Commencement Date" means August 30, 2013.
"Tenant" means the City of National City.
"Term" shall have that meaning ascribed to it in Section 3 of this Lease.
2. Lease of the Premises; "As -Is" Condition. Landlord leases to Tenant and Tenant leases
from Landlord the Premises on a triple net basis. Tenant hereby agrees and acknowledges that
Tenant is leasing the Premises "As -Is" from Landlord, without relying on any communications not
set forth herein that may have been made by Landlord, or any of Landlord's agents or employees,
with respect to the Premises or Tenant's intended use thereof Without limiting the generality of
the foregoing, Tenant shall be solely responsible for determining the condition of the Premises.
Landlord shall have no obligation to improve the Premises.
3. Month -to -Month Lease. This Lease shall commence on the Commencement Date and shall
continue on a month -to -month basis and shall terminate on the earlier of: (i) thirty (30) days written
notice from Landlord to Tenant; (ii) thirty (30) days written notice from Tenant to Landlord; or
(iii) a date mutually agreed upon by Landlord and Tenant ("Term").
4. Rent.
(a) Monthly Rent. Tenant agrees to pay Landlord rent in the amount of $1.00 per
month each and every month during the Term commencing upon the Rent Commencement Date.
(b) Utilities; Maintenance Costs. This Lease is a triple net lease. Tenant shall be
responsible for the payment of all utilities, taxes, assessments, maintenance costs, trash collection
and all other costs of any kind whatsoever with respect to, arising out of or otherwise associated
with the Premises.
Attachment No. 4
5. Alterations. Neither the Landlord, nor Tenant shall make alterations or other changes to
the Premises.
6. Use.
(a) Continued Use. The Landlord purchased the Premises from the Tenant. The Tenant
may continue to use the Premises in the manner used by the Tenant immediately prior to the sale
of the Premises to the Landlord. Tenant shall keep the Premises in a neat, clean and orderly
condition at all times during the Term, and shall not permit rubbish, waste or garbage, to
accumulate at any time. Tenant shall not commit or permit any waste of the Premises or any acts
to be done in violation of any laws or ordinances. Tenant shall not use or permit the use of the
Premises for any illegal purposes.
(b) Inspection of Premises. Landlord shall have the right to enter upon the Premises at
all reasonable times without abatement of rent. Tenant hereby waives any claim for damages for
any injury or inconvenience to or interference with Tenant's business, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby. Any entry to the Premises
or portions thereof by Landlord shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an eviction, actual or constructive,
of Tenant from the Premises, or any portion thereof. Any such entries upon the Premises by the
Landlord shall be performed with as little disturbance and inconvenience to Tenant as reasonably
possible.
7. Waiver of Subrogation. If either party sustains loss or damage to the Premises or the
fixtures, goods, wares, merchandise or any other property located thereon, from which it is
protected by an insurance policy, then, to the extent that such party is so protected, it waives any
right of recovery from the other party.
8. Assignment and Sublease. Tenant shall not directly or indirectly, voluntarily or by
operation of law, sublease, sell, assign, encumber, pledge or otherwise transfer or hypothecate all
or any part of the Premises or this Lease, without the written consent of Landlord, which may be
withheld by Landlord in its sole and absolute discretion.
9. Attorneys' Fees. If any action shall be instituted by either Landlord or Tenant for the
enforcement or interpretation of any of its rights or remedies in or under this Lease, the prevailing
party shall be entitled to recover from the losing party all costs incurred by the prevailing party in
said action and any appeal therefrom, including reasonable attorneys' fees and court costs to be
fixed by the court therein.
10. Default.
(a) Tenant's Default. The occurrence of any one or more of the following shall
constitute a default hereunder by Tenant:
(1) Tenant abandons the Premises or vacates the Premises for a period of ten
(10) or more consecutive days;
Attachment No. 4
(2) Tenant fails to pay any rent or other charges required to be paid by Tenant
under this Lease and such failure continues for five (5) days after it is due;
(3) Tenant fails to promptly and fully perform any other covenant, condition or
agreement contained in this Lease and such failure continues for ten (10) days (or such shorter
time provided herein) after written notice thereof from Landlord. Such ten (10) day notice shall
be in lieu of and not in addition to any notice required under California Code of Civil Procedure
Section 1161;
(4) A trustee, disbursing agent or receiver is appointed to take possession of all
or substantially all of Tenant's assets or of Tenant's interest in this Lease and Tenant does not
regain possession within ten (10) days after such appointment; Tenant makes an assignment for
the benefit of creditors; or all or substantially all of Tenant's assets in, on or about the Premises or
Tenant's interest in this Lease are attached or levied upon under execution (and Tenant does not
discharge the same within ten (10) days thereafter);
(5) A petition in bankruptcy, insolvency or for reorganization or arrangement
is filed by or against Tenant pursuant to any federal or state statute and, with respect to any such
petition filed against it, Tenant fails to secure a stay or discharge thereof within ten (10) days after
the filing of the same;
(6) Immediately, in the event of any assignment, subletting or other transfer for
which the prior written consent of the Landlord has not been obtained;
(7) Immediately, in the event Tenant admits in writing its inability to pay its
debts as they mature; or
(8) Immediately, upon the suspension of Tenant's right to conduct its business,
caused by the order, judgment, decree, decision or other act of any court or governmental agency.
(b) Landlord's Remedies. Upon the occurrence of a default by Tenant that is not cured
by Tenant within any applicable grace period, Landlord shall have the following rights and
remedies in addition to all other rights and remedies available to Landlord at law or in equity:
(1)
with applicable law;
The right to terminate this Lease by giving notice to Tenant in accordance
(2) The right and power to enter the Premises and remove therefrom all persons
and property, to store such property in a public warehouse or elsewhere at the cost of and for the
account of Tenant. Before retaking of any such property from storage, Tenant shall pay to
Landlord, upon demand, all expenses incurred in such removal and all storage charges against such
property. Any such property of Tenant not so retaken from storage by Tenant within thirty (30)
days after such property is removed from the Premises shall be deemed abandoned and may be
either disposed of by Landlord pursuant to Section 1988 of the California Civil Code or retained
by Landlord as its own property;
Attachment No. 4
(3) The right to have a receiver appointed for Tenant, upon application by
Landlord, to take possession of the Premises and to apply any rental collected from the Premises
and to exercise all other rights and remedies granted to Landlord for Tenant pursuant to this Section
10; and
(4) The rights and remedies provided by California Civil Code Section 1951.2
to recover from Tenant upon termination of this Lease;
11. Ouiet Enjoyment. Upon payment by Tenant of the rents herein provided, and upon the
observance and performance of all the covenants, terms and conditions on Tenant's part to be
observed and performed, Tenant shall peaceably and quietly hold and enjoy the Premises for the
term hereby demised without hindrance or interruption by Landlord or any other person or persons
lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms
and conditions of this Lease.
12. Notices. Any notices required or permitted hereunder shall be in writing and delivered in
person to the other party or by a nationally recognized overnight courier such as FedEx, or United
States Certified Mail, Return Receipt Requested, postage fully prepaid, to the addresses set forth
below or to such other address as either party may designate in writing and deliver as provided in
this Section.
Landlord:
Tenant:
Community Development Commission -Housing Authority
of the City of National City
Attn: Alfredo Ybarra
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: alfredoy@nationalcityca.gov
City of National City
Attn: Brad Raulston
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: braulston(1 .nationalcityca.gov
13. Brokers. Landlord and Tenant covenant, warrant and represent that no broker has been
involved in the negotiation or consummation of this Lease. Tenant and Landlord each agree to
indemnify, defend (with an attorney of the indemnitee's choice) and hold the other harmless from
and against all claims, demands, causes of action and liabilities, including (without limitation)
attorneys' fees and costs, arising out of a claim for a commission by any broker purporting to have
acted on behalf of the indemnifying party.
14. Force Majeure. Neither party shall be required to perform any term, covenant or condition
of this Lease so long as such performance is delayed or prevented by force majeure, which shall
Attachment No. 4
mean any acts of God, material restriction by any governmental authority, civil riot, and any other
cause not reasonably within the control of such party and which by the exercise of due diligence
such party is unable, wholly or in part, to prevent or overcome.
15. General Conditions.
(a) Counterparts. This Lease may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
(b) Captions. The captions in this Lease are inserted for convenience of reference and
in no way define, describe or limit the scope or intent of this Lease or any of the provisions of this
Lease.
(c) Partial Invalidity. Any provision of this Lease which is unenforceable, invalid, or
the inclusion of which would adversely affect the validity, legality, or enforcement of this Lease
shall have no effect, but all the remaining provisions of this Lease shall remain in full effect.
(d) No Third -Party Rights. Nothing in this Lease, express or implied, is intended to
confer upon any person, other than the parties to this Lease and their respective successors and
assigns, any rights or remedies.
(e)
Time Of Essence. Time is of the essence in this Lease.
(f) Relationship. Nothing contained in this Lease shall be deemed or construed by the
parties or by any third person to create a relationship of principal and agent or partnership or a
joint venture between Landlord and Tenant or between either or both of them and any third party.
(g) Approval. Where this Lease refers to an action or approval of the Landlord, it shall
mean the approval of the Executive Director of the Community Development Commission -
Housing Authority of the City of National City, or designee, unless otherwise provided. Where
this Lease refers to an action or approval of the Tenant, it shall mean the approval of the City
Manager of the City of National City, or designee, unless otherwise provided.
(h) Further Assurances. Landlord and Tenant agree to execute all such instruments and
documents and to take all actions which are reasonably necessary to carry out this Lease or
accomplish its intent.
(i) Incorporation of Prior Agreements. This Lease contains all agreements of Landlord
and Tenant with respect to any matter mentioned, or dealt with, herein. No prior agreement or
understanding pertaining to any such matter shall be binding upon Landlord or Tenant.
(j) Amendment. This Lease may only be amended by written agreement signed by
Landlord and by Tenant.
Attachment No. 4
(k) No Waiver. No waiver by either party of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach of the same or any other
provision. Landlord's consent to or approval of any act shall not be deemed to render unnecessary
obtaining such Landlord's consent to or approval of any subsequent act. No waiver by either party
shall be effective unless it is in writing, executed on behalf of such party.
(1) Consents. All consents to be given by either party shall be reasonably and timely
given.
(m) No Leasehold Mortgages. Tenant shall not encumber its leasehold interest in the
Premises, without the prior written approval of the Landlord.
(n) Nondiscrimination. There shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed, religion, sex, sexual orientation,
marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use,
occupancy, tenure or enjoyment of the Premises, nor shall Tenant itself, or any person claiming
under or through it, establish or permit such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants or vendees in the Premises.
(o) Signature Authority. All individuals signing this Lease for a party which is a
corporation, limited liability company, partnership or other legal entity, or signing under a power
of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the
each other party hereto that they have the necessary capacity and authority to act for, sign and bind
the respective entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties have executed this Lease.
TENANT:
City of National City
By:
Ron Morrison, Mayor
Approved as to Form:
By:
Claudia Gacitua Silva
City Attorney
LANDLORD:
Community Development Commission -Housing Authority of the City of National City
Attachment No. 4
By:
Leslie Deese, Executive Director
Approved as to Form:
By:
Claudia Gacitua Silva
General Counsel
RESOLUTION NO. 2013 -
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AND SALE AGREEMENT
WITH THE COMMUNITY DEVELOPMENT COMMISSION - HOUSING AUTHORITY OF
THE CITY OF NATIONAL CITY ("CDC -HA") FOR THE SALE OF TWO PARCELS OF LAND
TOTALING 6.299 ACRES FOR A TOTAL PURCHASE PRICE OF $7,035,000, GENERALLY
BOUNDED BY 19TH STREET, HARDING AVENUE, 22ND STREET, AND HOOVER AVENUE,
IN THE CITY OF NATIONAL CITY, FOR THE DEVELOPMENT OF 201 AFFORDABLE
HOUSING UNITS AS PHASE I AND II OF THE WESTSIDE INFILL TRANSIT ORIENTED
DEVELOPMENT PROJECT, APPROVING A LOAN FROM THE CITY OF NATIONAL CITY TO
THE CDC -HA FOR $4,941,000 TO COMPLETE SAID PURCHASE, AND APPROVING THE
MONTH TO MONTH LEASE BACK OF THE SUBJECT PROPERTY FROM THE CDC -HA
WHEREAS, the City is the owner of that certain real property (the "Property") in the
City of National City, State of California, consisting of two legal parcels ("Parcel 1 and Parcel 2")
totaling 6.299 acres, generally bounded by 19th Street, Harding Avenue, 22nd Street, and Hoover
Avenue; and
WHEREAS, the Successor Agency to the Community Development Commission as
the National City Redevelopment Agency (Successor Agency) is subject to the enforceable
obligation commonly referred to as the Westside Ina Transit Oriented Development (WI-TOD)
Development and Disposition Agreement (DDA), entered into June 21, 2011 with Paradise Creek
Housing Partners, LP (Developer); and
WHEREAS, the DDA requires the Property to be acquired for and developed into a
201 unit affordable housing project (the Project) as described in the DDA; and
WHEREAS, the sale of Parcel 1 and Parcel 2 to the CDC -HA is being undertaken
so that the Successor Agency can fulfill its enforceable obligations pursuant to the requirements of
the DDA; and
WHEREAS, in accordance with California Health and Safety Code section 34176,
the CDC -HA has accepted the affordable housing functions of the former redevelopment agency
pursuant to resolution number 2012-01; and
WHEREAS, the value of the consideration for the Property, pursuant to proposed
Purchase and Sale Agreement (Agreement) will not be less than the appraised value; and
WHEREAS, appraisals completed within the last 60 days indicate a value of $3.815
million for Parcel I and $3.22 million for Parcel 2 for a total value of the Property of $7.035 million;
and
WHEREAS, the CDC -HA will use $2,094,000 in HOME funds to acquire Parcel I
and the CDC -HA has requested a loan in the amount of $4,941,000 from the City in order to
provide full consideration for the remaining balance of the appraised value of Parcel 1 in the
amount of $3,815,000 and the full appraised value of Parcel 2 in the amount of $3,220,000; and
WHEREAS, the CDC -HA would repay the loan with ground lease income and loan
repayments made by the developer of the Project; and
WHEREAS, the Property will continue to be temporarily occupied by the National
City Public Works Department, and the CDC -HA will provide a month -to -month lease agreement
for $1.00 per month until the operation is relocated to another site; and
Resolution No. 2013 —
Page Two
WHEREAS, the sale of the Property pursuant to the proposed Agreement will
improve the quality of life of the residents of National City and its visitors through the elimination
of blight and the development of a quality Project in the area by providing for the reuse and
redevelopment of a Brownfield site; and
WHEREAS, all actions required by all applicable law with respect to the
proposed Agreement have been taken in an appropriate and timely manner; and
WHEREAS, the City Council has duly considered all terms and conditions of the
proposed Agreement and believes that the disposition of the Property pursuant thereto, loan,
and month to month lease, are in the best interests of the City of National City and the health,
safety, and welfare of its residents, and in accord with the public purposes and provisions of
applicable state and local law requirements.
NOW, THEREFORE, BE IT RESOLVED that the City Council authorizes the Mayor
to execute the Purchase and Sale Agreement between the City of National City and the
Community Development Commission -Housing Authority for the sale of 6.299 acres of land for a
total purchase price of $7,035,000. Said Purchase and Sale Agreement is on file in the Office of
the City Clerk.
BE IT FURHTER RESOLVED that the City Council accepts the partial payment of
the purchase price by the CDC -HA from the use of HOME Grant funds in the amount of
$2,094,000.
BE IT FURTHER RESOLVED that the City Council authorizes the City Manager or
her designee to execute any and all loan documents necessary to make the unsecured loan of
$4,941,000 provided by the City to the CDC -HA for consideration of value owed on the purchase
price, and as necessary to fulfill the terms the Purchase and Sale Agreement, including escrow
documents. Said loan documents are on file in the Office of the City Clerk.
BE IT FURTHER RESOLVED that the City Council authorizes the Mayor to execute
a Month -to -Month Lease Agreement for the Property until City Public Works operations are
relocated to another site. Said Lease Agreement is on file in the Office of the City Clerk.
BE IT FURTHER RESOLVED that the City Council determines that the WI-TOD
project was previously addressed in the Final Environmental Impact Report for the Westside
Specific Plan (State Clearinghouse No. 2008071092) which was certified by the City Council on
March 16, 2010, thus satisfying CEQA.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST: APPROVED AS TO FORM:
Michael R. Della, City Clerk Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 20
ITEM TITLE:
Resolution of the City Council of the City of National City authorizing the Mayor to execute a Purchase
and Sale Agreement with Robert T. Comartin and David P. Comartin for the purchase of property
located at 1726 Wilson Avenue for the total purchase price of $1,650,000 for the relocation of the
National City Public Works facilities from 2100 Hoover Avenue in the City of National City allowing for
the development of 201 affordable rental housing units as Phase I and II of the Westside In -fill Transit
Oriented Development Project.
PREPARED BY: Carlos Aguirre, Comm. Dev. Spec. II
PHONE: 1619.336.4391;
EXPLANATION:
Please see attached background report and explanation.
Housing, Grants,&
Asset Management
APPROVED
DEPARTMENT:
FINANCIAL STATEMENT:
ACCOUNT NO.
APPROVED:
APPROVED:
Finance
MIS
A State Catalyst Grant will reimburse up to $500,000 of the purchase cost. The City will also allocate
part of approximately $2.08 million in net proceeds from the sale of land at the WI-TOD development.
ENVIRONMENTAL REVIEW:
Exempt from CEQA environmental review under CEQA Guidelines Sec. 15301 Existing Facilities
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
Adopt the Resolution
BOARD / COMMISSION RECOMMENDATION:
ATTACHMENTS:
1. Background Report and Explanation
2. Purchase and Sale Agreement
Attachment No. 1
Background Report and Explanation
The Westside Infill Transit Oriented Development (WI-TOD), also known as the Paradise
Creek Affordable Housing Project, is a proposed 201-unit affordable housing
development on the east side of Paradise Creek, and the expansion of Paradise Creek
Educational Park on the west side of the creek. The proposed project is based on a
concept that was developed through a neighborhood and stakeholder design participation
process and incorporated into the Westside Specific Plan, which was adopted in 2010.
The current proposed project design was developed with continuing public input and
participation through stakeholder and community meetings.
Development Agreement. After adoption of the Westside Specific Plan, a request for
proposals was issued, and the applicant was selected to develop the site. The applicant
entered into a Disposition and Development Agreement with the Community
Development Commission to develop the project. The agreement is an enforceable
obligation of the Successor Agency to the Community Development Commission (SA).
The entire site is owned by the City; however, the housing portion of the site will be
transferred to the Housing Authority. Pursuant to the Disposition and Development
Agreement, the developer will be required to enter into a long-term ground lease for the
housing site and will manage and operate the housing development, including resident
services and programs. The Community Development Commission -Housing Authority
will retain ownership of the housing site.
Housing Development. The housing development side of the project would consist of two
phases on the east side of Paradise Creek. The first phase would be built on
approximately four acres on the southern portion of the site and would include 109 units
within two buildings and a separate residential services building. The second phase
would be built on approximately two acres on the northern portion of the site and would
include 92 units within two buildings. The anticipated unit mix would include studios, one -
bedroom, two -bedroom, and three -bedroom units on three to four levels within the four
residential buildings. The residential buildings would generally be oriented along 22nd
Street and Hoover Avenue and set back from Paradise Creek with open space along the
creek boundary.
Park Development. The park development side of the project would add nearly four acres
to Paradise Creek Educational Park on the west side of the creek. Paradise Creek
Housing Partners is required to construct the park improvements pursuant to the
Disposition and Development Agreement. The proposed improvements would include a
naturalized planting buffer along Paradise Creek, a lawn area, a community garden, a
playground, a plaza, picnic tables, a pedestrian/bicycle path along the length of the creek,
and tree and shrub plantings along the western edge of the park. Park ownership would
be maintained by the City.
Certificate of Compliance. Consistent with the Parcel Map Waiver approved by the
National City Planning Commission on May 20, 2013 for the WITOD Project, the City of
National City can file a Certificate of Compliance that creates new legal parcels for the
1
Attachment No. 1
development. The entire project site consisted of nine parcels and portions of adjacent
rights -of -way; the Certificate of Compliance divides seven of the parcels into four parcels
to allow the development of the housing on the east side of Paradise Creek and the park
on the west side of the creek. The parcel map consists of 10.27 acres. Parcel 1 is 4.14
acres and would be developed with 109 units and the residential services building as
Phase I of the housing project. Parcel 2 is 2.16 acres and would be developed with 92
units in Phase II. Parcel 3 is 1.33 acres and would be developed with park improvements.
Proposed Parcel 4 is 2.60 acres and would delineate Paradise Creek and Paradise Creek
Educational Park. The Certificate of Compliance creates developable parcels that are
configured based on the proposed phasing of the WITOD project and to allow the leasing
of the parcels pursuant to the Disposition and Development Agreement.
Reallocation of HOME Funds. The City of National City is a Project Jurisdiction that
receives an annual entitlement grant allocation of HOME Investment Partnership (HOME)
Program funds from the U.S. Department of Housing and Urban Development for the
preservation and development of affordable housing in National City. The City allocated
$95,492 of HOME funds in Fiscal Year 2011 and $2,000,000 in Fiscal Year 2013 to
Community HousingWorks on behalf of Paradise Creek Housing Partners, L.P. to fund
predevelopment activities related to the development of 109 affordable housing units
included in Phase I of the Westside In -fill Transit Oriented Development Project.
Community HousingWorks has consented to the reallocation of said HOME funds to the
Community Development Commission -Housing Authority ("CDC -HA") for the purpose of
acquiring the 4.14 acre parcel (Parcel 1) of land designated for 109 newly constructed
affordable rental units at the corner of 22nd and Hoover Avenue. The CDC -HA has
submitted an application to the City of National City for the reallocation of a total of
$2,095,492 in HOME funds for the acquisition of land and development activities eligible
under the HOME program.
Acquisition of Parcels 1 and 2 by the CDC- Housing Authority. The City is the current
owner of Parcel 1 and 2 totaling 6.3 acres, generally bounded by 19th Street, Harding
Avenue, 22nd Street, and Hoover Avenue at WITOD development site. The Successor
Agency to the Community Development Commission as the National City Redevelopment
Agency (SA) is subject to the enforceable obligation commonly referred to as the Westside
Infill Transit Oriented Development Development and Disposition Agreement (DDA),
entered into June 21, 2011 with Paradise Creek Housing Partners, LP (Developer). The
sale of Parcel 1 and 2 to the CDC -HA is being undertaken so that the SA can fulfill its
enforceable obligations pursuant to the requirements of the WITOD DDA. The CDC -HA has
accepted the affordable housing functions of the former redevelopment agency. Appraisals
completed within the last 60 days indicated a value of $3.815 million for Parcel I and $3.22
million for Parcel 2 for a total value of the Property of $7.035 million. The CDC -HA intends
to use $2,094,000 in HOME funds to acquire Parcel I and the CDC -HA has also requested
a loan in the amount of $4,941,000 from the City in order to provide full consideration for the
market value of Parcel 1 and 2.
2
Attachment No. 1
Leaseback of Public Works Yard to the City. Parcel 1 and Parcel 2 will continue to be
occupied by the National City Public Works Department, and the CDC -HA will provide a
month -to -month lease agreement for $1.00 per month until the operation is relocated to
allow for environmental remediation and the development of affordable housing on the site.
Relocation of Public Works Yard and the Purchase of 1726 Wilson Avenue. As part of
the WI-TOD DDA, National City Public Works ("PW') operations at 2100 Hoover Avenue
will need to relocate to other sites in order for the Successor Agency to complete
environmental remediation and develop 201 affordable housing units on Parcel 1 and
Parcel 2. The City's relocation plans for PW have accommodated for a substantial part of
PW operations within existing City facilities. The City still needs to secure a facility that can
house the following PW functions: streets/sewer, vehicle maintenance and storage, and
office space. The City reviewed options for relocation but alternatives that have been
considered are not readily available or do not fully satisfy PW's operational requirements
and do not fall within the timeline for implementing the WI-TOD development. The City
entered into a letter of intent to purchase a 1.17 acre site which fits the needs of PW and
provides 6430 sq. ft. of useable building area including office space and a repair shop
with two large entry bays. The property is commonly known as 1726 Wilson Avenue in
National City. The owners of the 1726 Wilson Avenue site are willing to sell their property
have accepted an offer by the City to purchase the property at a negotiated price of
$1,650,000.
3
Attachment No. 2
PURCHASE AND SALE AGREEMENT
(1726 Wilson Avenue, National City, 91950)
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20th day
of August, 2013 ("Effective Date") by and between David Comartin and Robert Comartin.
(collectively, the "Seller") and the City of National City ("Purchaser").
RECITALS
A. The Seller owns the fee interest in that certain real property generally located at
1726 Wilson Avenue, National City, California 91950, legally described in Exhibit A attached
hereto and made a part hereof ("Real Property").
B. Provided the various conditions to Closing (as defined below) set forth in this
Agreement are satisfied. the Seller agrees to sell the Property (as defined below) to the Purchaser
and the Purchaser agrees to purchase the Property from the Seller as set forth in this Agreement.
Provided, however, the Seller acknowledges and agrees that in order to bind Purchaser to the
terms and conditions of this Agreement, this Agreement must be approved by the City of
National City.
AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION. the receipt and adequacy of which
are acknowledged, the Seller and the Purchaser hereby agree as follows:
1. Purchase and Sale. In consideration of the mutual covenants set forth in this Agreement,
the Purchaser will acquire all of the Property, on the terms and conditions set forth herein,
provided the various conditions to Closing set forth in this Agreement are satisfied.
(a) Sale of the Property. The Seller agrees to sell the Property to the Purchaser, and
the Purchaser agrees to purchase the Property from Seller, on the terms and conditions set forth
herein. At Closing, the Seller shall convey the fee interest in the Real Property to the Purchaser
by recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title
Policy (as defined below) to the Purchaser at Closing.
(b) Possession of the Property. The Seller shall deliver possession of the Property to
Purchaser at Closing. Possession of the Property shall be delivered to Purchaser subject only to
the Title Exceptions, all as defined hereinbelow.
2. Definitions. As used in this Agreement. the following terms shall have the following
meanings:
"Agreement" means this Purchase and Sale Agreement between the Seller and the
Purchaser.
Attachment No. 2
"Applicable Environmental Law" means all laws applicable to the presence of any
Hazardous Materials (as defined below) on or within the Property, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601,
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, et seq.); the Clean
Water Act (33 U.S.C. §2601, et seq.); the Safe Drinking Water Act (14 U.S.C. §300f, et seq.);
the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); the Toxic Substances
Control Act (15 U.S.C. §2601, et seq.); the Federal Water Pollution Control Act (33 U.S.C.
§ 1300, et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136, et seq,);
the Atomic Energy Act (42 U.S.C. §2011, el seq.); the Nuclear Waste Policy Act (42 U.S.C.
§10101, et seq.); the Clean Air Act (42 U.S.C. §7401, et seq.); the California Hazardous Waste
Control Act (California Health and Safety Code §25100, et seq.); the Carpenter -Presley -Tanner
Hazardous Substance Account Act (California Health and Safety Code §25300, et seq.); the Safe
Drinking Water and Toxic Enforcement Act ("Proposition 65") (California Health and Safety
Code §25249.5, et seq.); and the Porter -Cologne Water Quality Control Act (California Water
Code §13000, et seq.); and any similar federal. state or local laws, all regulations and
publications implementing or promulgated pursuant to the foregoing. as any of the foregoing
may be amended or supplemented from time to time.
"Business Day" means any day other than a Saturday, Sunday or any other day on which
Purchaser or Escrow Agent is not open for business. In the event any date, deadline or due date
set forth in this Agreement falls on a day that is not a Business Day, then such deadline or due
date shall automatically be extended to the next Business Day.
"Close" or "Closing" means the close of Escrow as provided herein, which shall not be
later than the last day of the Due Diligence Period.
"Closing Date" means the date on which the Closing occurs; which date shall be August
29, 2013.
"Conditions Precedent for the Benefit of the Seller' shall have the meaning set forth in
Section 5 of this Agreement.
"Conditions Precedent for the Benefit of the Purchaser" shall have the meaning set forth
in Section 6 of this Agreement.
"Deposit" shall have the meaning set forth in Section 3(b)(I) of this Agreement.
"Due Diligence Period" means the period of time commencing on the Effective Date and
ending on August 23. 2013.
"Effective Date" is defined above.
"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
1
Attachment No. 2
"Escrow Agent" means Carla Burchard at Stewart Title Company, 5740 Fleet Street,
Suite 100, Carlsbad, California.92008.
"Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple
title to the Real Property from the Seller to the Purchaser, in substantially the form attached
hereto as Exhibit B and made a part hereof.
"Hazardous Materials" means:
(1) Those substances included within the definitions of "hazardous substance,"
"hazardous waste," "hazardous material." "toxic substance," "solid waste," "pollutant" or
"contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601 el seq.); the Resource Conservation and Recovery
Act (42 U.S.G. §6901 et seq.); the Clean Water Act (33 U.S.C. §2601 et seq.); the Toxic
Substances Control Act (15 U.S.C. §960] et seq.); the Hazardous Materials
Transportation Act (49 U.S.C. § 1801 et seq.); or under any other Environmental Laws.
(2) Those substances included within the definitions of "Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under §§251 15, 25117 or
25122.7 of the California Health and Safety Code, or is listed or identified pursuant to
§§25140 or 44321 of the California Health and Safety Code.
(3) Those substances included within the definitions of "Hazardous Material."
"Hazardous Substance," "Hazardous Waste," "Toxic Air Contaminant" or "Medical
Waste" under §§25281, 25316, 25501. 25501.1, 25023.2 or 39655 of the California
Health and Safety Code.
(4) Those substances included within the definitions of "Oil" or a "Hazardous
Substance' listed or identified pursuant to §311 of the Federal Water Pollution Control
Act. 33 U.S.C. §1321, as well as any other hydrocarbonic substance or by-product.
(5) Those substances included within the definitions of "Hazardous Waste,"
Extremely Hazardous Waste" or an "Acutely Hazardous Waste" pursuant to Chapter 11
of Title 22 of the California Code of Regulations.
(6) Those substances listed by the State of California as a chemical known by the
State to cause cancer or reproductive toxicity pursuant to §25249.9(a) of the California
Health and Safety Code.
(7) Any material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures, damages or threatens to damage,
health, safety, or the environment, or is required by any law or public agency to be
remediated, including remediation which such law or public agency requires in order for
the property to be put to any lawful purpose.
Attachment No. 2
(8) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field
Manual. whether or not the presence of such material resulted from a leaking
underground fuel tank.
(9) Pesticides regulated under the Federal Insecticide. Fungicide and Rodenticide
Act, 7 U.S.C. § 136 et seq.
(10) Asbestos. PCBs, and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq.
(11) Any radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," "low-level wastes,"
"high-level radioactive waste." "spent nuclear fuel" or "transuranic waste" and any other
radioactive materials or radioactive wastes. however produced, regulated under the
Atomic Energy Act, 42 U.S.C. §§2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C.
§§10101 et seq., or pursuant to the California Radiation Control Law, California Ilealth
and Safety Code §§25800 et seq.
(12) Any material regulated under the Occupational Safety and Health Act, 29
U.S.C. §§651 el seq.. or the California Occupational Safety and Health Act. California
Labor Code §§6300 et seq.
(13) Any material regulated under the Clean Air Act, 42 U.S.C. §§7401 et seq.
or pursuant to Division 26 of the California Health and Safety Code.
(14) Those substances listed in the United States Department of Transportation
Table (49 CFR Part 172.101), or by the Environmental Protection Agency. or any
successor agency, as hazardous substances (40 CFR Part 302).
(15) Other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state or local laws or regulations.
(16) Any material, waste or substance that is a petroleum or refined petroleum
product. asbestos, polychlorinated biphenyl, designated as a hazardous substance
pursuant to 33 U.S.C. §1321 or listed pursuant to 33 U.S.C. §1317, a flammable
explosive or a radioactive material.
"Immediately Available Funds" means a bank wire transfer or a certified bank or
cashier's check.
"Improvements" means collectively: (i) any and all buildings, structures and
improvements. of any kind whatsoever, located at or affixed to the Real Property; (ii) all rights,
privileges and easements appurtenant to the Real Property, if any, including, without limitation.
all minerals. oil. gas and other hydrocarbon substances on and under the Real Property, if any;
and (iii) all development rights. air rights, and water rights if any. relating to the Real Property.
4
Attachment No. 2
"Permitted Exceptions" means collectively. the (i) the printed exceptions and exclusions
in the Title Policy; (ii) the exceptions shown on Schedule B of that certain Preliminary Report
dated May 30, 2013, issued by Stewart Title of California, Inc., Order No. 01180-50483, except
for that certain Deed of Trust shown as Exception No. 13 thereon and the community property
rights of the Seller's spouses shown as Exception No. 14 thereon. ; (iii) real property taxes and
assessments which are a lien but not yet payable; (iv) all applicable building; zoning and use
restrictions and/or regulations of any municipality, township, county or state; and (v) defects that
are shown on the American Land Title Association survey of the Real Property and
Improvements which are approved by Purchaser in writing, or deemed approved by Purchaser. as
provided in Section 4(c) below.
"Property" means collectively, the Real Property and the Improvements.
"Purchase Price'' shall have the meaning set forth in Section 3(a) of this Agreement.
"Purchaser" means the City of National City; provided, however, if the City of National
City assigns its interest in this Agreement pursuant to Section 10 of this Agreement, then the
term `Purchaser" shall mean such assignee.
"Real Property" is defined above.
"Seller" means collectively, David Comartin and Robert Comartin.
"Title Policy" means a CLTA Owner's Policy of Title Insurance in the amount of the
Purchase Price, insuring that title to the fee interest in the Property is vested in the Purchaser
subject only to the Permitted Exceptions, which Title Policy shall be obtained through Stewart
Title Company. Seller shall pay the cost of the CLTA Owner's Policy of Title Insurance.
Purchaser shall pay the cost of any endorsements it desires. Purchaser may obtain an ALTA
Owner's Policy of Title Insurance in which event Purchaser shall pay the cost difference between
the cost of the ALTA Owner's Policy of Title Insurance and the cost of a CLTA Owner's Policy
of Title Insurance.
3. Purchase Price.
(a) Total Purchase Price, The purchase price to be paid by the Purchaser for all of the
Property shall be One Million Six Hundred Fifty Thousand and No/100 Dollars (S1,650,000.00)
("Purchase Price").
(b) Deposit; Liquidated Damages.
(1) Deposit. Purchaser shall make a deposit ("Deposit") into Escrow of
Immediately Available Funds in the amount of Five Thousand and No/100 Dollars ($5,000.00)
within three (3) Business Days of the Effective Date. The Deposit shall be credited against the
Purchase Price. If the Purchaser elects to terminate this Agreement prior to expiration of the Due
Diligence Period, as set forth in Section 4 below. then the Deposit shall be immediately returned
5
Attachment No. 2
by Escrow Agent to the Purchaser. At Closing, the Deposit shall be released by Escrow Agent to
the Seller. The Deposit, and any interest earned on the Deposit, shall be credited in favor of the
Purchaser against the Purchase Price as set forth in Section 3(c), below.
(2) LIQUIDATED DAMAGES. THE DEPOSIT SHALL BE
REFUNDABLE TO THE PURCHASER AS MAY BE EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF PURCHASER'S
DEFAULT HEREUNDER, THE SOLE REMEDY OF THE SELLER SHALL BE TO
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO
PURCHASER AND ESCROW AGENT, WHEREUPON THE SELLER SHALL RETAIN THE
DEPOSIT(S) ACTUALLY DEPOSITED BY PURCHASER INTO ESCROW AS
LIQUIDATED DAMAGES (AND THE SELLER WAIVES ANY RIGHT TO SPECIFICALLY
ENFORCE THIS AGREEMENT SET FORTH IN CALIFORNIA CIVIL CODE SECTION
1680 OR 3389). THEREAFTER, NO PARTY HERETO SHALL HAVE ANY FURTHER
LIABILITY OR OBLIGATION TO ANY OTHER PARTY HERETO EXCEPT FOR: (i) THE
SELLER'S RIGHT TO RECEIVE AND RETAIN SUCH LIQUIDATED DAMAGES; AND (ii)
THE OBLIGATION OF THE PARTIES TO PAY AMOUNTS INTO ESCROW TO PAY A
PORTION OF THE FEES AND COSTS OF ESCROW AS SET FORTH IN SECTIONS 5 AND
6 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE
SELLER'S ACTUAL DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT
HEREUNDER ARE UNCERTAIN IN AMOUNT AND DIFFICULT TO ASCERTAIN, AND
THAT SUCH AMOUNT OF LIQUIDATED DAMAGES IS REASONABLE UNDER THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ., CONSIDERING
ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE HEREOF INCLUDING,
WITHOUT LIMITATION, THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF
POTENTIAL HARM TO THE SELLER THAT CAN REASONABLY BE ANTICIPATED
AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES RESULTING FROM
SUCH DEFAULT WOULD BE COSTLY AND INCONVENIENT. IN PLACING ITS
INITIALS IN THE SPACE BELOW, EACH PARTY HERETO SPECIFICALLY CONFIRMS
THE ACCURACY OF THE FOREGOING AND THE FACT THAT SUCH PARTY HAS
BEEN REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION.
THE PROVISIONS OF THIS SECTION 3(B)(2) SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Seller's Initials Purchaser's Initials
(c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (1)
Business Day prior to the Closing Date, the Purchaser shall cause Immediately Available Funds
to be delivered to the Escrow Agent in an amount equal to the Purchase Price, minus the Deposit
and any interest earned on the Deposit, and plus or minus any adjustments for prorations and
expenses required under this Agreement.
6
Attachment No. 2
(d) Disbursement to the Seller. Immediately after the Closing, the Escrow Agent
shall disburse to the Seller the funds that the Seller is entitled to receive under this Agreement.
4. Due Diligence Period. During the Due Diligence Period, the Purchaser may detennine in
the Purchaser's sole and absolute discretion, whether to proceed with the purchase of the
Property. During the Due Diligence Period, the Purchaser may terminate this Agreement for any
reason or for no reason at all. If the Purchaser terminates this Agreement during the Due
Diligence Period, then: (i) all rights and liabilities of the Purchaser and the Seller with respect to
this Agreement shall immediately terminate, except for rights and liabilities that specifically
survive such termination; (ii) Escrow Agent shall return to the Purchaser all funds or other things
deposited in Escrow by the Purchaser; and (iii) Escrow Agent shall return to the Seller all funds
or other things deposited in Escrow by the Seller. Provided, however, all fees and costs charged
by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser.
(a) Access to the Property and Cooperation. During the Due Diligence Period, and
during nonnal business hours, upon not less than twenty-four (24) hours advance notice to the
Seller, Purchaser and its representatives, consultants and attorneys shall have access to entry
upon the Property. Purchaser shall indemnify, defend, protect and hold the Seller and all Seller
Parties (as defined in Section 7(h)(1) below), and the Property harmless from any losses, costs,
damages, claims and/or liabilities. including but not limited to, mechanics' and materialmen's
liens and attorney fees and costs proximately caused by such entry upon the Property. In the
event Escrow does not close due to an election by the Purchaser not to purchase the Property or a
default by the Purchaser, the Purchaser shall, at its sole cost and expense, promptly return the
Property to the Seller in the same physical condition it now enjoys. and shall repair any physical
damage caused by the Purchaser to the Property as part of or in connection with any such entry
upon the Property. The Purchaser is self -insured with excess coverage provided pursuant to an
insurance pool. Any agents, consultants or contractors that perform activities on the Property
shall maintain: (1) comprehensive public liability and property damage insurance, including
direct contractual and contingent liability with limits of $2.000,000 for personal liability to or
death of any one person. $2,000,000 for personal injury to or death of any one person on an
occurrence basis, $1,000,000 for property damage in any one accident and $2,000,000 policy
limit for aggregate operation on an occurrence basis; and (2) comprehensive automobile liability
insurance with limits of $1,000,000 for personal injury to or death of any one person, $2,000,000
for personal injury to or death of more than one person in any one accident and $1,000,000 for
property damage in any one accident. Certificates of such insurance shall be delivered by the
Purchaser to the Seller before entry onto the Property by the Purchaser or its agents, contractors
or employees. The Purchaser shall not permit any mechanic's, materialman's, contractor's,
subcontractor's or other lien arising from any work done by the Purchaser or its agents pursuant
to this Agreement to stand against the Property. If any such lien shall be filed against the
Property, the Purchaser shall cause the same to be discharged or bonded within ten (10) days
after actual notice of such filing. by payment, deposit, bond or otherwise. The Purchaser's
obligations under this Section 4(a) shall survive the termination or expiration of this Agreement
and/or Closing, The Purchaser shall have the right during the Due Diligence Period, after
providing not less than twenty-four (24) hours advance notice to the Seller, to perform (or cause
its consultants and contractors to perform) lead based paint and asbestos testing provided the
7
Attachment No. 2
same are performed in accordance with ASTM published testing standards. Except as set forth
in the immediately preceding sentence, if Purchaser desires to do any invasive testing at the
Property, the Purchaser may do so only after obtaining Seller's prior written consent to the same,
which consent may be withheld or granted on conditions in Seller's sole and absolute discretion.
The Purchaser shall promptly restore the Property to the condition the Property was in
immediately prior to any such tests, at the Purchaser's sole cost and expense. The Purchaser
shall provide the Seller with a complete set of plans. drawings and specifications ("Invasive
Testing Plans") that define to the sole satisfaction of the Seller the invasive testing to be
performed on the Property and the names of all environmental and other consultants, contractors
and subcontractors who will be performing such invasive testing (collectively "Purchaser's
Consultants"). The Purchaser shall deliver the names of the Purchaser's Consultants and the
Invasive Testing Plans to the Seller concurrently with its request to the Seller that the Purchaser
desires to perform invasive testing (unless the narnes of Purchaser's Consultants have previously
been provided to the Seller).
(b) Due Diligence Deliveries. Not later than five (5) Business Days after execution
and delivery of this Agreement to the Escrow Agent, the Seller shall either provide the Purchaser
with true, correct and complete copies of all plans and specifications for the Property (including
a set of current as -built plans and specifications), if any.
5. Conditions Precedent for the Benefit of the Seller. The Seller's obligation to Close shall
be conditioned upon the satisfaction or emailed or written waiver by the Seller of all of the
conditions precedent ("Conditions Precedent for the Benefit of the Seller") set forth in this
Section 5. Any of the Conditions Precedent for the Benefit of the Seller may be waived by the
Seller unilaterally; and if so waived, such conditions shall be of no further effect hereunder. Any
such waiver shall be effective only if the same is expressly waived (i) by email from the Seller to
the Purchaser and Escrow Agent; or (ii) in a writing signed by the Seller and delivered to the
Purchaser and Escrow Agent. If the Conditions Precedent for the Benefit of the Seiler are not
satisfied by the deadlines set forth in this Section 5 or expressly waived, the Seller (provided the
Seller is not in default hereunder) may provide emailed or written notice of the Seller's
conditional termination of this Agreement to the Purchaser and Escrow Agent. After receipt of
such notice of conditional termination, the Purchaser shall have ten (10) Business Days to cure
any non -satisfaction of a condition or other default specified in the notice of conditional
termination; provided, however, the foregoing grace period shall be two (2) Business Days if the
unsatisfied condition is a failure by Purchaser to deliver funds required to close on the Closing
Date. If such matter remains unsatisfied or the default remains uncured after the expiration of
such ten (10) Business Day period, then this Agreement shall terminate at the close of business
on such tenth (10th) Business Day (or second (2id) Business Day if the unsatisfied condition is a
failure by Purchaser to deliver funds required to close on the Closing Date), In the event of
termination of this Agreement (and by operation of law the Escrow) pursuant to this Section 5,
then: (x) as set forth in the liquidated damages provision of Section 3(b)(2) above, all rights and
liabilities of the Purchaser and the Seller with respect to this Agreement shall immediately
terminate, except those which specifically survive such termination; (y) Escrow Agent deliver
the Deposit to the Seller and shall return to the Seller all funds or other things deposited in
Escrow by the Seller; and (z) Escrow Agent shall return to the Purchaser all funds or other things
deposited in Escrow by the Purchaser, less the Deposit. Provided, however, all fees and costs
8
Attachment No. 2
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser. Notwithstanding clause (x) of this Section 5, in the event of termination of this
Agreement pursuant to this Section 5, the Purchaser and the Seller shall cooperate with one
another, execute all documents reasonably necessary and take all reasonable steps as may be
required by Escrow Agent in order to accomplish the purposes of this Section 5.
(a) Purchaser making the Deposit into Escrow, as set forth in Section 3(b)(1) above.
(b) The delivery by the Purchaser into Escrow at least one (1) Business Day prior to
Closing of Immediately Available Funds equal to the Purchase Price (less the Deposit and plus
or minus expenses and prorations) as required by Section 3(c) above.
(c) The delivery by the Purchaser into Escrow of al] other documents and instruments
required by this Agreement or reasonably required by Seller and/or Escrow Agent to complete
the Closing, at least one (1) Business Day prior to Closing.
(d) Purchaser not being in default of any of its representations or warranties under
this Agreement, or any other material terms or conditions related to Purchaser.
(e) As of the Closing Date. the Purchaser has not made an assignment for the benefit
of creditors, filed a bankruptcy petition, been adjudicated insolvent or bankrupt. petitioned a
court for the appointment of any receiver of, or trustee for. the Purchaser, or commenced any
proceeding relating to the Purchaser under any reorganization, arrangement, readjustment of
debt. dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect.
6. Conditions Precedent for the Benefit of the Purchaser. The Purchaser's obligation to
Close shall be conditioned upon the satisfaction or emailed or written waiver by the Purchaser of
all of the conditions precedent ("Conditions Precedent for the Benefit of the Purchaser") set forth
in this Section 6. Any of the Conditions Precedent for the Benefit of the Purchaser may be
waived by the Purchaser unilaterally; and if so waived, such conditions shall be of no further
effect hereunder. Any such waiver shall be effective only if the same is expressly waived (i) by
email from the Purchaser to the Seller and Escrow Agent: or (ii) in a writing signed by the
Purchaser and delivered to the Seller and Escrow Agent If the Conditions Precedent for the
Benefit of the Purchaser are not satisfied by the deadlines set forth in this Section 6 or expressly
waived, the Purchaser (provided the Purchaser is not in default hereunder) may provide emailed
or written notice of the Purchaser's conditional termination of this Agreement to the Seller and
Escrow Agent. After receipt of such notice of conditional termination, the Seller shall have ten
(10) Business Days to cure any non -satisfaction of a condition or other default specified in the
notice of conditional termination, If such matter remains unsatisfied or the default remains
uncured after the expiration of such ten (10) Business Day period, then. this Agreement shall
terminate at the close of business on such tenth (10`h) Business Day. In the event of termination
of this Agreement (and by operation of law the Escrow) pursuant to this Section 6, then: (x)
except to subparagraph (f) below, the same shall be a default by the Seller (y) Escrow Agent
shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser,
including without limitation. the Deposit; and (z) Escrow Agent shall return to the Seller all
funds or other things deposited in Escrow by the Seller. Purchaser is not waiving any default by
9
Attachment No. 2
the Seller and nothing contained in this Section 6, including, without limitation, the immediately
foregoing sentence shall be a waiver of any right of Purchaser to recover damages from the
Seller for failure of any Conditions Precedent for the Benefit of the Purchaser. Provided,
however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the
Seller and one-half (1/2) by the Purchaser.
(a) The deposit into Escrow by the Seller of the Grant Deed, duly executed and
acknowledged, conveying fee simple title to the Property to the Purchaser at least one (1)
Business Day prior to Closing.
(b) The deposit by the Seller into Escrow of a duly executed affidavit that it is not a
foreign person and is a "United States Person" as such terns is defined in Section 7761(a)(30) of
the Internal Revenue Code of 1986, as amended, at least one (1) Business Days prior to Closing.
The affidavit shall be in the form prescribed by federal regulations. if any.
(c) The deposit by the Seller into Escrow of a duly executed California Form 593(e)
or other evidence that withholding of any portion of the Purchase Price is not required by the
Revenue and Taxation Code of California, at least one (1) Business Day prior to Closing.
(d) I he deposit by the Seller into Escrow of all additional documents and instruments
as are reasonably required by the Purchaser and/or Escrow Agent to complete the Closing, at
least one (1) Business Day prior to Closing.
(e) The Escrow Agent is prepared and obligated to issue the Title Policy in
Purchaser's favor upon the recordation of the Grant Deed and there are no exceptions to the Title
Policy, except for Permitted Exceptions.
(i) Seller not being in default of any of its representations or warranties under this
Agreement, or any other material terms or conditions related to Seller.
(g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement
affecting the Property.
(h) As of the Closing Date there is not pending, or threatened to be pending, any
action or proceeding by any person or before any government authority, the outcome of which
could prohibit the use of the Property as intended by the Purchaser.
(i) This Agreement has been formally approved by resolution of the City of National
City.
7. Representations and Warranties; Waivers and Releases. When making the
representations and warranties set forth in this Section 7, each party making a representation
and/or warranty represents that the same are true, correct and complete as of the date hereof and
shall be and are true, correct and complete as of the Closing Date. The representations and
warranties shall survive the Closing.
10
Attachment No. 2
(a) Representations and Warranties Regarding Authority. The Seller and the
Purchaser each hereby represents and warrants to the other that this Agreement and all
documents or instruments executed by them which are to be delivered at or prior to the Closing
are, or on the Closing Date will be, duly authorized, executed and delivered by the Seller or the
Purchaser, as applicable.
(b) Representations and Warranties Regarding Enforceability of Agreement. The
Seller and the Purchaser each hereby represents and warrants to the other that this Agreement
and all documents required hereby to be executed by them shall be valid, legally binding
obligations of, and enforceable against, the Seller or the Purchaser. as applicable, in accordance
with their terms, subject to applicable bankruptcy, insolvency. reorganization. moratorium and
other similar laws affecting the rights of creditors generally and general principles of equity
(whether enforcement is sought in equity or at law).
(c) Seller Representations and Warranties Pertaining to Legal Matters. The Seller
hereby represents and warrants to the Purchaser that;
(I) As of the Effective Date and the Closing Date. the Seller is the sole owner
of the fee title interest to the Property.
(2) There is no pending or threatened proceeding in eminent domain or
otherwise, which would affect the Property. or any portions thereof, nor any facts which
might give rise to such action or proceeding.
(d) Seller Representations and Warranties Pertaining to Options. The Seller hereby
represents and warrants to the Purchaser that no person has any option or right of first refusal to
purchase the Property or any parts thereof.
(e) Material Adverse Changes. If Seller receives any notice or knowledge of
anything materially adversely affecting Seller's representations or warranties after the date of
this Agreement, then Seller shall immediately notify Purchaser in writing of such fact or
circumstance. If Purchaser receives written notice from Seller pursuant to the immediately
preceding sentence. and Seller in such notice does not agree to cure the same at or prior to
Closing to Purchaser's reasonable satisfaction, then, Purchaser shall have the right to bring an
action against Seller on the breach of such representation or warranty.
(f) Seller Representation and Warranty Pertaining to Tenants. The Seller hereby
represents and warrants to the Purchaser that no person has any lease or other right to occupy the
Property or any parts thereof
(g) Seller Representation and Warranty Regarding Operation of the Property. The
Seller hereby represents and warrants to the Purchaser that there are no oral or written
agreements or understandings concerning the Property by which the Purchaser would be bound
following the Closing.
11
Attachment No. 2
(h) AS IS CONDITION. PURCHASER HEREBY ACKNOWLEDGES,
REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL
INDUCEMENT TO SELLER TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN
CONSIDERATION OF THE PERFORMANCE BY SELLER OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENT THAT, EXCEPT AS SPECIFICALLY
PROVIDED 1N THIS AGREEMENT AND SUBJECT TO SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF THIS
AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE
ON AN "AS IS, WHERE IS" BASIS, SELLER HAS NOT MADE. DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTHERWISE. OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXISTENCE
OF HAZARDOUS MATERIALS OR MOLD UPON THE PROPERTY OR ANY PORTION
THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING. WITHOUT LIMITATION,
SUBSIDENCE., SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND
WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER
AND FAULTING; (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE
PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE
OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN,
FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY. PAST SOIL REPAIRS, SOIL
ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES,
OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING
PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, SIZE. LOCATION, AGE. USE. DESIGN. QUALITY, DESCRIPTION,
DURABILITY, STRUCTURAL INTEGRITY. OPERATION. TITLE TO, OR PHYSICAL OR
FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF, INCLUDING. WITHOUT LIMITATION, WHETHER OR NOT THE
IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183. 12186(B) -
12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS
MATERIALS IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY; (9) THE
SQUARE FOOTAGE OF THE PROPERTY OR THE IMPROVEMENTS THEREON; (10)
IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION,
THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES. AND PERSONAL
PROPERTY. IF ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER
OR WATER RIGHTS, (13) THE DEVELOPMENT POTENTIAL FOR THE PROPERTY; (14)
THE ABILITY OF PURCHASER TO REZONE THE PROPERTY OR CHANGE THE USE
OF THE PROPERTY; (15) THE ABILITY OF PURCHASER TO ACQUIRE ADJACENT
PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY
UNDERGROUND UTILITIES; (17) THE EXISTENCE AND POSSIBLE LOCATION OF
ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE PROPERTY
WERE BUILT, IN WHOLE OR IN PART. IN COMPLIANCE WITH APPLICABLE
BUILDING CODES; (19) THE STATUS OF ANY LIFE -SAFETY SYSIEMS IN THE
12
Attachment No. 2
IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE
NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR
USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL
PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES.
REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR
OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER
AFFIRMING THAT PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT
FOR ANY PARTICULAR PURPOSE): AND/OR (23) ANY OTHER MATTER
CONCERNING THE PROPERTY. NOTWITHSTANDING THE FOREGOING OR
ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, SELLER IS NOT
RELEASED FROM ANY LIABILITY TO PURCHASER FOR FRAUD OR BREACH OF
ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS
AGREEMENT. Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation, this Section 7(h), any right waived by Purchaser and any release by
Purchaser, shall only release or waive the Purchaser's right to enforce any judgment (including
without limitation, damages. attorneys' fees, costs, expenses or any other compensation of any
type whatsoever) personally against only the Seller and Seller's successors, assigns, officers,
directors. shareholders, participants, partners, affiliates, employees. representatives, invitees and
agents (collectively, the "Seller Parties") or any of them. Purchaser is not waiving any right to
bring any action against any of the "Non -Released Parties" (defined below) or waiving recovery
against or otherwise releasing or agreeing to forego Purchaser's rights with respect to any
insurance policy, or any other person (other than the right to enforce a judgment personally
against any of the Seller Parties), including without limitation persons obligated to the Seller
Parties, by right of subrogation or otherwise, prior owners or occupants of the Property, the
tenants, persons performing work at the Property and/or any insurance policies held by any or all
such persons (collectively, the "Non -Released Parties").
PURCHASER ACKNOWLEDGES THAT AS OF THE EXPIRATION OF THE DUE
DILIGENCE PERIOD, PURCHASER SHALL HAVE COMPLETED ALL PHYSICAL AND
FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF THE PROPERTY
HEREUNDER (IT BEING ACKNOWLEDGED AND AGREED THAT PURCHASER SHALL
BE DEEMED TO HAVE INSPECTED EACH APARTMENT UNIT WITHIN THE
PROPERTY) AND WILL ACQUIRE THE SAME SOLELY ON THE BASIS OF SUCH
EXAMINATIONS AND THE TITLE INSURANCE PROTECTION FOR THE PROPERTY
AFFORDED BY THE TITLE POLICY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT AND SUBJECT TO SELLER'S EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 7 OF THIS AGREEMENT. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED
OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT THE SELLER HAS NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT
13
Attachment No. 2
AND SUBJECT TO SELLER'S EXPRESS REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTION 7 OF THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR
ANY NEGLIGENT MISREPRESENTATION OR FAILURE TO INVESTIGATE THE
PROPERTY NOR SHALL SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL
ASSESSMENT REPORTS, OR OTHER INFORMATION PERTAINING TO THE
PROPERTY OR THE OPERATION THEREOF. FURNISHED BY SELLER, OR ANY REAL
ESTATE BROKER, AGENT, REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER
PERSON ACTING ON SELLER'S BEHALF EXCEPT FOR REPRESENTATIONS AND
WARRANTIES EXPRESSLY PROVIDED IN SECTION 7 OF THIS AGREEMENT. IT IS
ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY SELLER AND
PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. NOTWITHSTANDING
THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, SELLER IS NOT RELEASED FROM ANY LIABILITY TO PURCHASER
FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY
SET FORTH IN THIS AGREEMENT.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT PURCHASER IS
FULLY AWARE OF THE AGE OF THE PROPERTY. THAT OVER TIME VARIOUS
EVENTS MAY HAVE OCCURRED ON THE PROPERTY WHICH EVENTS MAY BE
TYPICAL AND(OR) ATYPICAL OF EVENTS OCCURRING TO OTHER PROPERTIES OF
SIMILAR AGE TO THE PROPERTY AND SIMILARLY LOCATED IN THE CITY OF
NATIONAL CITY AND (OR) THE COUNTY OF SAN DIEGO, CALIFORNIA, AND THAT
SUCH EVENTS MAY INCLUDE. WITHOUT LIMITATION, SLAB LEAKS, MOLD, FIRE,
SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS,
PERMITS, APPROVALS, LICENSES AND(OR) ORDERS OF GOVERNMENTAL
AGENCIES WITH JURISDICTION OVER THE PROPERTY.
THE CLOSING OF THE PURCHASE OF THE PROPERTY BY PURCHASER
HEREUNDER SHALL BE CONCLUSIVE EVIDENCE THAT: (A) PURCHASER HAS
FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND
COMPLETELY INSPECTED) THE PROPERTY; AND (B) PURCHASER ACCEPTS THE
PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE
FOR PURCHASER'S PURPOSES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR
RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN
SECTION 7 OF THIS AGREEMENT, PURCHASER SHALL PERFORM AND RELY
SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE
PROPERTY, AND THE PROPERTY'S FITNESS THEREFOR. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT SELLER'S COOPERATION WITH PURCHASER
WHETHER BY PROVIDING DOCUMENTS RELATING TO THE PROPERTY OR
PERMITTING INSPECTION OF THE PROPERTY. SHALL NOT BE CONSTRUED AS ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH
RESPECT TO THE PROPERTY, OR WITH RESPECT TO THE ACCURACY,
COMPLETENESS, OR RELEVANCE OF THE DOCUMENTS PROVIDED TO
14
Attachment No. 2
PURCHASER BY SELLER IN RELATION TO THE PROPERTY, PROVIDED THAT THE
FOREGOING SHALL NOT BE A LIMITATION OR MODIFICATION OF THE
REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED FOR IN SECTION 7
OF THIS AGREEMENT.
y�QC : EEC
SELLER'S INITIALS
(i) Indemnity and Release.
PURCHASER'S INITIALS
(l) Indemnity. For the purposes of this Section 7(i), the tern "Claims" shall
mean any and all claims, obligations, liabilities. causes of action, suits, debts, liens. damages,
judgments. losses, demands, orders, penalties, settlements, costs and expenses (including,
without limitation, attorneys' fees and costs and any and all costs and expenses related to.
whether directly or indirectly, any and all clean-up. remediation, investigations. monitoring.
abatement, mitigation measures. fines or removal with respect to Hazardous Materials) of any
kind or nature whatsoever. The definition of "Claims" shall include, without limitation, Claims
under contract law or tort law. Purchaser acknowledges that but for Purchaser's agreement to
each and every provision of this Section 7(i), Seller would not have entered into the Agreement.
Purchaser, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"),
shall indemnify, defend. protect and hold Seller and Seller's successors, assigns. partners.
affiliates and members and all their respective officers, directors. shareholders. participants,
partners, affiliates. employees, representatives. invitees and agents (collectively, "Seller Parties")
harmless from and against any and all Claims resulting from. related to, or based upon, whether
directly or indirectly: (i) the breach by Purchaser of any representation, warranty, covenant or
obligation contained in the Agreement. or in any other agreement, document, exhibit or
instrument related hereto or referenced herein; (ii) any Claim or Claims, if the basis of such
Claim or Claims arose on or after the Closing, except as noted in subparagraph (iv) below, and if
the basis of such Claim or Claims arose from, is based upon, relates to or pertains to, whether
directly or indirectly, the operation, management and use of the Property: (iii) any Claim or
Claims which Claim or Claims (or the basis for which) arose from. is based upon, relates to or
pertains to. whether directly or indirectly, any act or omission of Purchaser or any of its
employees. agents or representatives; and (iv) (A) any Claim or Claims that relate to the
condition of the Property on or after the Close of Escrow, including any judgment, order or
settlement under or otherwise pursuant to a lawsuit, and (B) any Claim or Claims that relate to
defects in the Property (including, without limitation, patent and latent construction defects).
regardless of whether said defects or the cause of the same arose either before or after the Close
of Escrow, including any judgment, order or settlement under or otherwise pursuant to the
lawsuit. Any defense of any or all of the Seller Parties referenced in this Section 7(i)(1), shall be
at the Purchaser's sole cost and expense and by counsel selected by the Purchaser, subject to the
reasonable approval of the indemnified person, which counsel may, without limiting the rights of
any of the Seller Parties pursuant to the next succeeding sentence of this Section 7(i)(1), also
represent the Purchaser in such investigation, action or proceeding. If any of the Seller Parties
that is being indemnified determines reasonably and in good faith that its defense by the
Purchaser is reasonably likely to cause a conflict of interest or is being conducted in a manner
which is prejudicial to such persons interests, such indemnified person may elect to conduct its
15
Attachment No. 2
own defense through counsel of its own choosing, subject to the reasonable approval of the
Purchaser, and at the expense of the Purchaser. -
(2) Release and 1542 Waiver. Notwithstanding the following or anything to
the contrary set forth in this Agreement, the Seller is not released from any liability to the
Purchaser for fraud or breach of any covenant or warranty set forth in this Agreement. Subject to
the immediately preceding sentence and the Purchaser's right to rely on the Seller's express
representations and warranties set forth in Section 7 hereof, Purchaser for itself and on behalf of
each of its successors and/or assigns (collectively. the "Releasers'') by this general release of
known and unknown claims (this "Release") hereby irrevocably and unconditionally release and
forever discharge Seller and each of the Seller Parties (collectively, the "Releasees") or any of
them, from and against any and all Claims of any kind or nature whatsoever, WHETHER
KNOWN OR UNKNOWN. suspected or unsuspected. fixed or contingent, liquidated or
unliquidated which any of the Releasors now have, own. hold. or claim to have had, owned. or
held, against any of the Releasees arising from, based upon or related to, whether directly or
indirectly any facts, matters, circumstances, conditions or defects (whether patent or latent) of all
or any kinds, related to, arising from, or based upon, whether directly or indirectly, the Property,
including without limitation, (i) the physical condition, quality and state of repair of the Property
conveyed. (ii) any latent or patent defect affecting the Property conveyed. and (iii) the presence
of Hazardous Materials in, on, about or under the Property or which have migrated from adjacent
lands to the Property or from the Property to adjacent lands.
Except for Claims for Seller's fraud or the breach of any representations and warranties
of the Seller expressly provided for in Section 7 of this Agreement. Releasers hereby further
agree as follows:
(i) Releasers acknowledge that there is a risk that subsequent to the execution
of this Agreement, Releasers may discover, incur, or suffer from Claims which were unknown or
unanticipated at the time this Release is executed, including, without limitation, unknown or
unanticipated Claims which, if known by Releasers on the date this Release is being executed,
may have materially affected Releasers' decision to execute this Agreement. Releasors
acknowledge that Releasors are assuming the risk of such unknown and unanticipated Claims
and agree that this Release applies thereto. Releasers expressly waive the benefits of Section
1542 of the California Civil Code. which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
(ii) Releasors represent and warrant that Releasers have been represented by
independent counsel of Releasors' own choosing in connection with the preparation and review
of the Release set forth herein, that Releasors have specifically discussed with such counsel the
meaning and effect of this Release and that Releasors have carefully read and understand the
scope and effect of each provision contained herein. Releasors further represent and warrant that
Releasors do not rely and have not relied upon any representation or statement made by any of
16
Attachment No. 2
the Releasees or any of their representatives. agents, employees, attorneys or officers with regard
to the subject matter, basis or effect of this Release.
(iii) Releasors represent and warrant to Releasees that Releasors have not and
shall not assign or transfer or purport to assign or transfer any Claim or Claims or any portion
thereof or any interest therein. and shall indemnify. defend, protect and hold the Releasees
harmless from and against any Claim or Claims based on or arising out of, whether directly or
indirectly, any such assignment or transfer. or purported assignment or transfer.
SELLER'S INITIALS PURCHASER'S INITIALS
It is specifically intended that each of the Seller Parties shall be third party beneficiaries
of this Section 7(i).
(3) Survival. The provisions of this Section 7(i) shall survive the Closing and,
as applicable, the termination of this Agreement.
(j) Waiver of Subrogation; Survival. Purchaser hereby waives any right of
subrogation as to Seller or the Seller Parties. Each and every provision of this Section 7 shall,
except as may be expressly limited in this Section 7, survive the Closing and, as applicable, the
termination of this Agreement, and. but for Purchaser's agreement to each and every provision of
this Section 7, Seller would not have executed this Agreement.
8. Condemnation of the Property.
(a) If between the Effective Date and the Closing Date, any condemnation or eminent
domain proceeding is commenced that will result in the taking of any part of the Property,
Purchaser may, at Purchaser's election, either:
(1) Terminate this Agreement by giving written or emailed notice to the Seller
and the Escrow Agent (in which event all remaining funds or other things deposited in Escrow
by Purchaser, including without limitation, the Deposit, shall be returned to the Purchaser
immediately from Escrow. together with any interest earned thereon and all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1 /2) by the
Purchaser; or
(2) Proceed with the Closing with no reduction in the Purchase Price, in
which event the Seller shall assign to the Purchaser all of the Seller's rights, titles and interests to
any award made for the condemnation or eminent domain action.
(b) Notice. If the Seller obtains notice of the commencement of or the threatened
commencement of eminent domain or condemnation proceedings with respect to all of any
portion of the Property, the Seller shall notify the Purchaser in writing.
9. Broker's.
17
Attachment No. 2
(a) Seller's Broker. The Seller hereby represents and warrants to the Purchaser that
the Seller has engaged Margo Villarin of JDM Properties ("Seller's Broker") to represent the
Seller in the transaction that is the subject of this Agreement and that the Seller has not engaged
the services of any other real estate agent or broker with respect to the transaction that is the
subject of this Agreement. The Seller shall pay any and all remuneration, brokerage
commissions. fees and other compensation to the Seller's Broker pursuant to an agreement
between the Seller and the Seller's Broker.
(b) Purchaser's Broker. The Purchaser hereby represents and warrants to the Seller
that the Purchaser has not engaged the services of any real estate agent or broker with respect to
the transaction that is the subject of this Agreement.
(c) Indemnity. The Purchaser and the Seller each agree that, to the extent any real
estate commission. brokerage commission or finder's fee shall be earned or claimed in
connection with this Agreement or the Closing, the payment of such fee or commission, and the
defense of any action in connection therewith, shall be the sole and exclusive obligation of the
party who requested (or is alleged to have requested) the services of the broker or finder. In the
event that any claim, demand or cause of action for any such commission or finder's fee is
asserted against the party to this Agreement who did not request such services (or is not alleged
to have requested such services). the party through whorn the broker or finder is making the
claim shall indemnify, defend (with an attorney of the indemnitee's choice), protect and hold
harmless the other from and against any and all such claims, demands and causes of action and
expenses related thereto, including, without limitation. attorneys' fees and costs.
(d) Survival. The provisions of this Section 9 shall survive the Closing or termination
of this Agreement.
(e)
Properties:
Properties.
Scope of Broker Duty. Buyer and Seller acknowledge and agree that JDM
(1) Did not decide what price Buyer should pay or Seller should accept.
(2) Does not guarantee the condition of the Property.
(3) Shall not be responsible for identifying defects that are not known to JDM
(4) Shall not be responsible for providing legal or tax advice regarding any
aspect of the transaction entered into by Buyer and Seller.
(5) Shall not be responsible for providing other advice or information that
exceeds the knowledge, education and experience required to perform real estate licensed
activity. Buyer and Seller agree to seek legal and tax advice from appropriate professionals.
18
Attachment No. 2
(6) Shall not be responsible for verifying square footage, representations of
others or infoiutation contained in inspection reports, advertisements, or flyers.
(7) Does not guarantee the performance, adequacy or completeness of
inspections. services, products or repairs provided or made by Seller or others.
10. Assignment. The Purchaser shall not assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the Seller, which consent may be
withheld or granted in Seller's sole and absolute discretion; provided. however. the Purchaser
may assign this Agreement to an entity in which the Purchaser has a controlling or majority
interest without the prior written consent of the Seller provided Purchaser and such assignee
execute an assignment agreement in form and substance reasonably acceptable to Seller.
11. Notices. All notices under this Agreement shall be in writing and sent (a) by certified or
registered mail. return receipt requested, in which case notice shall be deemed delivered three (3)
Business Days after deposit, postage prepaid in the United States Mail, (b) overnight by a
nationally recognized overnight courier such as UPS Overnight. or FedEx, in which case notice
shall be deemed delivered one (1) Business Day after deposit with that courier, (c) by personal
delivery, in which case notice shall be deemed delivered upon the actual date of delivery, or (d)
by email. in which case notice shall be deemed delivered upon the actual date of delivery. All
notices shall be delivered to the following addresses:
If to Seller:
If to Purchaser:
Copy to:
David Comartin and Robert Comartin
1ivokrmsrickr
[. Hu s trI i17 • �%�.
qr(/i3
Facsimile No.
Email: 6clic,CcsmA2nn; yp%ce . ter-%
City of National City
Attn: Brad Raulston
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: braulston@nationalcityca.gov
Christensen & Spath LLP
Attention: Walter F. Spath III
550 West C Street, Suite 1660
San Diego, CA 92101
Facsimile No. (619) 236-8307
Email: wfs@eandslaw.net
The addresses above may be changed by written notice to the other party; provided
however. that no notice of a change of address shall be effective until actual receipt of the notice.
19
Attachment No. 2
12. Risk of Loss.
(a) Damage or Destruction. Subject to the provisions of this Section 12(a), the risk of
loss or damage to the Property until the close of Escrow will be borne by Seller. Upon the
occurrence of any damage to or destruction of the Property, Seller shall within thirty (30) days
after the occurrence of such damage or destruction give written notice to Purchaser ("Damage
Notice") specifying the estimated cost to repair or restore the Property and an estimate of the
insurance proceeds, if any, that will be available with respect to such damage or destruction. The
close of Escrow shall be appropriately delayed to provide adequate time for Seller to give the
Damage Notice and Purchaser to make its election provided for below.
(b) Damage in Excess of $100,000. If prior to the close of Escrow there is damage to
or destruction of the Property that will cost in excess of One Hundred Thousand Dollars
($100,000) to repair or restore. Purchaser shall have the right by written notice given to Seller
within ten (10) days of Purchaser receiving the Damage Notice. to elect to: (i) close Escrow in
such damaged condition. in which event the Purchase Price shall not be reduced (but the Seller
shall be obligated to pay the deductibles under the applicable insurance policy or policies) and
Seller shall not be obligated to repair or restore the Property and all insurance proceeds shall be
assigned and payable to Purchaser, and if Seller receives any such insurance proceeds, they shall
be immmediately remitted by Seller to Purchaser at Closing or, if received by Seller after Closing,
promptly after receipt; (ii) terminate this Agreement, in which event the Deposit and all interest
accrued thereon shall be immediately returned to Purchaser, and neither party shall have any
further rights or obligations to the other party, except neither party shall be relieved of any
obligations provided for in this Agreement which expressly survives its teunination.
(c) Damage of $100.000 or Less. if prior to the close of Escrow there is damage to or
destruction of the Property that will cost One Hundred Thousand Dollars ($100,000) or less to
repair or restore, Purchaser shall nevertheless close Escrow with the Property in such damaged
condition, the Purchase Price shall not be reduced (but the Seller shall be obligated to pay the
deductibles under the applicable insurance policy or policies) and Seller shall not be obligated to
repair or restore the Property, and all insurance proceeds shall be assigned and payable to
Purchaser, and if Seller should receive any such insurance proceeds, they shall be immediately
remitted to Purchaser.
13. Proration. Real property taxes and assessments and utility costs, and other expenses of
operating the Property (provided, however, no proration shall be made with regard to any capital
improvements) shall be prorated as of the close of Escrow. Seller shall pay all documentary
transfer taxes. Seller shall pay all real property taxes and assessments applicable to the period
prior to the close of Escrow, and if any such taxes are unpaid after the close of Escrow, then
Seller shall pay them promptly and in any event within ten (10) days after Purchaser's request
(which shall include a copy of the relevant tax bill).
14. General Provisions.
(a) Governing Law. This Agreement shall be interpreted and construed in
accordance with California law, without regard to any choice of law principles.
20
Attachment No. 2
(b) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(c) Captions. The captions in this Agreement are inserted for convenience of
reference and in no way define, describe or limit the scope or intent of this Agreement or any of
the provisions of this Agreement.
(d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors, heirs and permitted assigns.
(e) Modifications; Waiver. No waiver, modification, amendment, discharge or
change of this Agreement shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification. waiver, amendment. discharge or change is sought.
(1) Entire Agreement. This Agreement contains the entire agreement between the
parties relating to Purchaser's acquisition of the Property from the Seller and all prior or
contemporaneous agreements, understandings, representations or statements, oral or written, are
superseded.
(g) Partial Invalidity. Any provision of this Agreement which is unenforceable,
invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of
this Agreement shall have no effect. but all the remaining provisions of this Agreement shall
remain in full effect.
(h) Survival. Provisions of this Section 19 shall survive the Closing or the
termination of this Agreement.
(i) No Third -Party Rights. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties to this Agreement and their respective
successors and assigns, any rights or remedies.
(j) Time of Essence. Time is of the essence in this Agreement.
(k) Attorneys' Fees. The parties agree that the prevailing party in litigation for the
breach andlor interpretation and/or enforcement of the terms of this Agreement shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and attorneys' fees as may be
awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5
and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998. All claims, disputes, causes of action or controversies shall be
subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch.
(1) Relationship. Nothing contained in this Agreement shall be deemed or construed
by the parties or by any third person to create a relationship of principal and agent or partnership
21
Attachment No. 2
or a joint venture between the Purchaser and the Seller or between any of them and any third
party.
(m) Recording. Neither this Agreement nor a memorandum hereof shall be recorded.
(n) Purchaser Anproval. Where this Agreement refers to an action or approval of the
Purchaser, it shall mean the approval of the Community Development Executive Director of the
Purchaser, or designee, unless otherwise provided.
(o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are
hereby incorporated in this Agreement by this reference, regardless of whether or not the exhibits
are actually attached to this Agreement. The Recitals to this Agreement are hereby incorporated
in this Agreement by this reference.
(p) Independent Counsel. Seller and Purchaser each acknowledge that: (a) they have
been given the opportunity to be represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such counsel. if such
counsel was retained: and (c) this Agreement is the result of negotiations between the parties
hereto and the advice and assistance of their respective counsel, if such counsel was retained.
The fact that this Agreement was prepared or negotiated by Purchaser's or Seller's counsel as a
matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this
Agreement shall not be construed against either party due to the fact that Purchaser's or Seller's
counsel prepared or negotiated this Agreement in its final fours.
(q) 1031 Exchange. In order to effect an Intemal Revenue Code section 1031 tax -
deferred exchange of the Property, Seller has the right to engage an accommodator to fulfill
Seller's obligations hereunder; in which case Purchaser shall cooperate to accomplish such
exchange provided each of the following conditions are satisfied: (i) Purchaser shall, in such
cooperation, incur no cost, liability- or obligation for consideration (or otherwise) other than the
costs and consideration called for in this Agreement; and (ii) the Closing shall not be delayed or
prevented.
(r) Tolling of Deadlines. Any periods of time. deadlines or time or day limitations
set forth in this Agreement, including without limitation, the Due Diligence Period, the deadline
for Closing, the deadline for making the Deposit, shall all be automatically extended by one (1)
Business Day for each Business Day that the Seller fails to timely provide any notice, report,
materials, studies, documentation or other information required by this Agreement.
(s) Capacity and Authority. All individuals signing this Agreement for a party which
is a corporation, limited liability company, partnership or other legal entity, or signing under a
power of attorney, or as a trustee. guardian, conservator, or in any other legal capacity, represent
and warrant that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written..
22
Attachment No. 2
SELLER:
(-----\\T izi T &.ti,in
David Comartin Robet Comartin
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Attachment No. 2
PURCHASER:
City of National City
By:
Print Name:
Its:
Approved as to Form:
By:
Claudia Gacitua Silva
City Attorney
24
Attachment No. 2
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
Real property in the City of National City; County of San Diego, State of California, described as
follows:
PARCEL 1:
THAT CERTAIN PARCEL OF LAND SITUATE IN THE CITY OF NATIONAL CITY.
COUNTY OF SAN DIEGO. STA 1E OF CALIFORNIA, BEING A PORTION OF LOTS 1 TO
10, INCLUSIVE. IN BLOCK 175 OF NATIONAL CITY ACCORDING-1 0 MAP THEREOF
NO, 348 FILED OCTOBER 2, 1882, IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, AND A PORTION OF THE SOUTHEASTERLY HALF OF THE
CLOSED PORTION OF 17TH STREET ABUTTING UPON SAID LOT 1. MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 10 IN BLOCK 175,
SAID CORNER BEING IN THE NORTHWESTERLY LINE OF 18TH STREET AS SHOWN
ON SAID MAP; THENCE SOUTHWESTERLY ALONG THE SOUTHEASTERLY LINE OF
SAID LOT 10, A DISTANCE OF 42.00 FEET TO A LINE PARALLEL WITH AND
DISTANT 17.00 FEET NORTHEASTERLY. MEASURED AT RIGHT ANGLES, FROM THE
CENTER LINE OF SAN DIEGO & ARIZONA EASTERN RAILWAY COMPANY'S MAIN
TRACT (SAN DIEGO-SAN YSIDRO); THENCE NORTHWESTERLY ALONG SAID
PARALLEL LINE. 290.00 FEET TO THE CENTER LINE OF SAID 17TH STREET;
THENCE NORTHEASTERLY ALONG SAID CENTER LINE, 48.00 FEET TO THE
NORTHWESTERLY PROLONGATION OF THE NORTHEAS IERLY LINE OF SAID LOT 1
IN BLOCK 175; THENCE SOUTHEASTERLY ALONG SAID PROLONGATION AND THE
NORTHEASTERLY LINE OF SAID LOTS 1 TO 10, A DISTANCE OF 290.00 FEET TO
THE POINT OF BEGINNING.
TOGETHER WITH THAN' PORTION OF THE SOUTHWESTERLY 1/2 OF THE ALLEY
ADJOINING SAID LOTS 6 THROUGH 10 ON THE NORTHEAST AS VACATED AND
CLOSED TO PUBLIC USE.
EXCEPT THAT PORTION OF SAID LAND LYING BELOW A DEPTH OF 500.00 FEET,
MEASURED VERTICALLY. FROM THE CONTOUR OF THE SURFACE OF SAID
PROPERTY; HOWEVER, GRANTOR. OR ITS SUCCESSORS AND ASSIGNS, SHALL
NOT HAVE THE RIGHT FOR ANY PURPOSE WHATSOEVER TO ENTER UPON. INTO
OR THROUGH THE SURFACE OF SAID PROPERTY OR ANY PART THEREOF LYING
BETWEEN SAID SURFACE AND 500.00 FEET BELOW SAID SURFACE, AS EXCEPTED
IN THE DEED RECORDED FEBRUARY 7, 1980. AS FILE NO. 80-044143.
PARCEL 2:
25
Attachment No. 2
LOTS 13, 14, 15, 18 AND 17 IN BLOCK 115 OF NATIONAL CITY, IN THE CITY OF
NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF NO. 348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY, OCTOBER 2, 1882.
EXCEPTING FROM SAID LOT 13, THE SOUTHERLY 20 FEET THEREOF, TOGETHER
WITH THAT PORTION OP THE NORTHEASTERLY 1/2 OF THE ALLEY ADJOINING
SAID LOTS 14 THROUGH 17 AND THE REMAINDER PORTION OF LOT 13 ON THE
SOUTHWEST AS VACATED AND CLOSED TO PUBLIC USE.
PARCEL 3:
LOTS 18 AND 19 IN BLOCK 175 OF NATIONAL CITY, IN THE CITY OF NATIONAL
CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP
THEREOF NO. 348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY.
APN: 559-086-13-00, 559-086-12-00. 559-086-05-00, and 559-086-03-00
26
Attachment No. 2
EXHIBIT "B"
GRANT DEED
WHEN RECORDED MAIL TO:
MAIL TAX STATEMENTS TO:
SPACE? ABOVE THIS LINE. FOR RECORDER'S USE
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged.
do hereby GRANT to [ 1,
organized under the laws of the State of [ J. the real property in the County of San
Diego. State of California, described on Exhibit "A" attached hereto and incorporated herein by
this reference.
David Comartin
Robert Comartin
Dated .2013
Dated ,2013
27
Attachment No. 2
ACCEPTANCE
This is to certify that the interest(s) in real property conveyed by this instrument to the City of
National City, are hereby accepted by the undersigned officer on behalf of the City of National
City, pursuant to authority conferred by resolution of the City of National City, Resolution No.
, adopted on , 2013, and the grantee consents to recordation thereof by its
duly authorized officer.
City of National City
By: Dated: , 2013
Print Name:
Its:
Approved as to Form:
By:
Claudia Gacitua Silva
City Attorney
28
RESOLUTION NO. 2013 —
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE A PURCHASE AND SALE AGREEMENT
WITH ROBERT T. COMARTIN AND DAVID P. COMARTIN FOR THE PURCHASE OF
PROPERTY LOCATED AT 1726 WILSON AVENUE FOR THE TOTAL PURCHASE
PRICE OF $1,650,000 FOR THE RELOCATION OF THE NATIONAL CITY
PUBLIC WORKS FACILITIES FROM 2100 HOOVER AVENUE IN THE CITY OF
NATIONAL CITY ALLOWING FOR THE DEVELOPMENT OF 201 AFFORDABLE
RENTAL HOUSING UNITS AS PHASE I AND 11 OF THE WESTSIDE
IN -FILL TRANSIT ORIENTED DEVELOPMENT PROJECT
WHEREAS, the Successor Agency to the Community Development Commission as
the National City Redevelopment Agency (Successor Agency) is subject to the enforceable
obligation commonly referred to as the Westside Infill Transit Oriented Development (WI-TOD)
Development and Disposition Agreement (DDA), entered into June 21, 2011 with Paradise Creek
Housing Partners, LP (Developer); and
WHEREAS, as part of the WI-TOD DDA, National City Public Works ("PW")
operations at 2100 Hoover Avenue will need to be relocated to other sites in order for the
Successor Agency to complete environmental remediation and develop 201 affordable housing
units at the Hoover property, as required by the DDA; and
WHEREAS, the City's relocation plans for PW have accommodated for a
substantial part of PW operations within existing City facilities; and
WHEREAS the City still needs to secure a facility that can house the following PW
functions: streets/sewer, vehicle maintenance and storage, and office space; and
WHEREAS, the City has reviewed options for relocation but alternatives that
have been considered are not readily available or do not fully satisfy PW's operational
requirements and do not fall within the timeline for implementing the WI-TOD DDA
development; and
WHEREAS, the City has entered into a letter of intent to purchase a 1.17 acre site
that provides 6430 sq. ft. of useable building area including office space and a repair shop with
two large entry bays commonly known as 1726 Wilson Avenue in the City of National City (the
Property); and
WHEREAS, the owners of the 1726 Wilson Avenue site are willing to sell their
property at a negotiated price of $1,650,000; and
WHEREAS, all actions required by all applicable law with respect to the
proposed Purchase and Sale Agreement have been taken in an appropriate and timely manner;
and
WHEREAS, the City Council has duly considered all terms and conditions of the
proposed Purchase and Sale Agreement and believes that the acquisition of the Property is in
the best interests of the City of National City and the health, safety, and welfare of its residents,
and in accord with the public purposes and provisions of applicable state and local law
requirements.
Resolution No. 2013 —
Page Two
NOW, THEREFORE, BE IT RESOLVED that the City Council authorizes the Mayor
to execute the Purchase and Sale Agreement between the City of National City and Robert T.
Comartin and David P. Comartin for the purchase of the Property in the City of National City for a
total purchase price of $1,650,000. Said Purchase and Sale Agreement is on file with the City
Clerk.
BE IT FURTHER RESOLVED that the City Council authorizes City Manager or her
designee to execute any other documents necessary to fulfill the terms of the Purchase and Sale
Agreement, including escrow documents.
BE IT FURTHER RESOLVED that the City Council determines the purchase of the
Property is exempt under CEQA, pursuant to section 15301 of the Guidelines, because the
purchase and use of the Property would involve negligible or no expansion of the existing use of
the structures and/or facilities, thus it is categorically exempt.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Mayor
ATTEST:
Michael R. Della, City Clerk
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 21
ITEM TITLE:
Notice of Decision — Planning Commission approval of a Conditional Use Permit for the sale of
secondhand jewelry, gold, and/or other precious metals at a retail jewelry store located at 1536
Sweetwater Road, Suite D. (Applicant: Leo Hamel Fine Jewelers) (Case File 2013-17 CUP)
PREPARED BY: Martin Reeder, AICP DEPARTMENT: 'Planning.
PHONE: (336-4313 ' APPROVED
EXPLANATION:
The project site is located at the west end of the long central multi -tenant building in the Sweetwater
Crossings Shopping Center. The applicant (Leo Hamel) wishes to open a retail jewelry (new) outlet that
also proposes to buy, trade, and/or sell secondhand jewelry, watches, gold, and other precious metals
otherwise sold as new in the store. No physical changes are proposed above what would be found in a
standard retail store. The business would be subject to all state requirements as well as the City's
Municipal Code, recently amended to address sale/trade of such items.
Planning Commission conducted a public hearing on August 5, 2013. Commissioners asked questions
regarding business activities and reporting of used merchandise. The Commission voted to approve the
Conditional Use Permit based on required findings and subject to Conditions of Approval.
The attached Planning Commission staff report describes the proposal in detail.]
FINANCIAL STATEMENT:
ACCOUNT NO.
ENVIRONMENTAL REVIEW:
Not a project under CEQA
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
;Staff concurs with the decision of the Planning Commission and recommends that the Notice of
Decision be filed.
BOARD / COMMISSION RECOMMENDATION:
The Planning Commission approved the Conditional Use Permit.
Ayes: Alvarado, Baca, Bush, DeLaPaz, Flores, Garcia, Pruit
ATTACHMENTS:
j1. Location Map
2. Planning Commission Staff Report
3. Resolution No. 2013-16
4. Reduced Plans
APN:
563-231 -1 6
Planning Commission
Location Map
1
7.24..13
CITY OF NATIONAL CITY - DEVELOPMENT SERVICES DEPARTMENT
1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950
PLANNING COMMISSION STAFF REPORT
Title:
Case File No.:
Location:
Assessor's Parcel No:
Staff report by:
Applicant:
Property owner:
Combined General Plan/
Zoning designation:
Adjacent land use/zoning:
North:
East:
South:
West:
Environmental review:
Item no. 3
August 5, 2013
PUBLIC HEARING — CONDITIONAL USE PERMIT FOR
THE SALE OF SECONDHAND JEWELRY, GOLD,
AND/OR OTHER PRECIOUS METALS AT A RETAIL
JEWELRY STORE LOCATED AT 1536
SWEETWATER ROAD.
2013-17 CUP
1536 Sweetwater Road, Suite D.
563-231-16
Martin Reeder, AICP — Principal Planner
Leo Hamel Fine Jewelers
Sweetwater Associates LP
Major Mixed -Use District (MXD-2)
Commercial across Sweetwater Rd. / MXD-2
Staples / MXD-2
State Route 54 / OS
Mor Furniture / MXD-2
Not a project under CEQA (existing facilities, no
expansion)
2
BACKGROUND
Site Characteristics
Sweetwater Crossings Shopping Center is located in the south portion of the City in the
Major Mixed -Use District (MXD-2) zone. There are 14 separate buildings in the center,
including several multi -tenant buildings, Carl's Jr. Denny's, L.A. Fitness, and
Cornerstone Church (among others). 1536 Sweetwater Road, suite D is located at the
west end of the long central multi -tenant building, which also houses CVS and Mor
Furniture. Leo Hamel Fine Jewelers have been in business in the San Diego area for
over 30 years.
Proposed Use
The applicant wishes to open a retail jewelry (new) outlet that also proposes to buy,
trade, and/or sell secondhand jewelry, watches, gold, and other precious metals
otherwise sold as new in the store. No physical changes are proposed above what
would be found in a standard retail store. The business would be subject to all state
requirements as well as the City's Municipal Code, recently amended to address
sale/trade of such items.
Analysis
The purchase, trade, and/or sale of secondhand gold, jewelry, and other precious
metals are regulated by section 18.30.320 of the Land Use Code. This section also
regulates pawn shops and businesses engaged in secondhand dealing. This code
section was amended in 2012, prior to which a moratorium had been enacted regarding
such uses. The moratorium was in response to concerns over stolen goods being sold
without adequate monitoring. The Code Amendment added language to the Land Use
Code to ensure adequate business practices related to licensing, reporting, and
disposition of second hand items.
Generally, the subject use requires a Conditional Use Permit and is only permitted as
accessory to a legitimate retail business that sells as new the item(s) in question as its
primary business function. In addition, the total gross receipts of jewelry and precious
metals purchased or taken for credit may not exceed fifty percent of total retail sales of
these items.
All pawnbrokers and secondhand dealers are required, at minimum, to obtain a
secondhand dealer license and to abide by state -mandated reporting requirements for
secondhand tangible personal property as required in the Business and Professions
Code. Secondhand tangible personal property is defined as including, but not limited to,
all items that bear a serial number or personalized initials or inscription or which, at the
time it is acquired by the secondhand dealer, as defined by the California Business and
Professions Code. In addition, secondhand tangible personal property also includes
precious metals such as gold, silver, platinum, and jewelry.
3
A secondhand dealer means and includes any person, co -partnership, firm, or
corporation whose business includes buying, selling, trading, taking in pawn, accepting
for sale on consignment, accepting for auctioning, or auctioning secondhand tangible
personal property. Both secondhand dealers and secondhand property are defined in
the Glossary of the Land Use Code. All of these requirements are included as
Conditions of Approval.
The Land Use Code also has requirements related to where such a business may be
located. Generally, no businesses engaged in secondhand dealing may be located east
of Interstate 805 or within two thousand feet of another such business. The proposed
business is in compliance with these requirements, although they do not generally apply
in this case; Shopping centers of fifty thousand square feet or more, which includes
Sweetwater Crossings, are exempt from the distance requirements. The Code also
states that secondhand dealers shall be no closer than two hundred.4ifty feet from
residential zones. The business complies with this requirement.
Department Comments:
The Building and Fire Departments provided comments requiring compliance with
Building and Fire Code. No comments were received from the Police Department.
Summary
The proposed accessory use involving the purchase, trade, and/or sale of secondhand
gold, jewelry, and other precious metals is consistent with the Land Use Code with the
approval of a Conditional Use Permit and subject to the attached findings and
Conditions of Approval. The subject business is within a shopping center of greater
than fifty thousand square feet and would sell the type of items in question as new.
Conditions of Approval are consistent with a recent Code Amendment related to such
transactions and will help to alleviate concerns over stolen items. Leo Hamel Fine
Jewelers is a reputable business that has been in business for over 30 years in the San
Diego region.
4
RECOMMENDATION
Staff recommends approval of 2013-17 CUP based on attached findings and subject to
the attached Conditions of Approval.
ATTACHMENTS
1. Recommended Findings for Approval
2. Recommended Conditions of Approval
3. Location Map
4. Public Hearing Notice (Sent to 14 property owners)
5. Site photos
6. Applicant's Plans (Exhibit A, Case File No. 2013-17 CUP, dated 6/13/2013)
MARTIN REEDER, AICP
Principal Planner
BRAD RAULSTON
Executive Director
5
RECOMMENDED FINDINGS FOR APPROVAL
2013-17 CUP, 1536 Sweetwater Road, suite D
1. That the site for the proposed use is adequate in size and shape, since the
proposed use will be contained within a commercial building which was
constructed and designed for a commercial use, with adequate parking provided.
2. That the site has sufficient access to streets and highways that are adequate in
width and pavement type to carry the volume and type of traffic generated by the
proposed use, since the proposed use is consistent with a retail use already
considered during the design and construction of the commercial building.
3. That the proposed use will not have an adverse effect upon adjacent or abutting
properties, since the use is contained wholly within a commercial structure, there
is no expansion proposed, and the use is typical of a commercial use considered
in the General Plan and Land Use Code.
4. That the proposed use is deemed essential and desirable to the public
convenience, since it will provide a service that is in demand among consumers.
6
RECOMMENDED CONDITIONS OF APPROVAL
2013-17 CUP, 1536 Sweetwater Road, suite D
General
1. This Conditional Use Permit authorizes the accessory buying, trade, and/or sale of
secondhand jewelry, watches, gold, and other precious metals otherwise sold as
new at Leo Hamel Fine Jewelers located at 1536 Sweetwater Road, suite D. Except
as required by Conditions of Approval, all plans submitted for permits associated with
the project shall conform to Exhibit A, Case File No. 2013-17 CUP, dated 6/13/2013.
2. Before this Conditional Use Permit shall become effective, the applicant and the
property owner both shall sign and have notarized an Acceptance Form, provided by
the Planning Department, acknowledging and accepting all conditions imposed upon
the approval of this permit. Failure to return the signed and notarized Acceptance
Form within 30 days of its receipt shall automatically terminate the Conditional Use
Permit. The applicant shall also submit evidence to the satisfaction of the Planning
Department that a Notice of Restriction on Real Property is recorded with the County
Recorder. The applicant shall pay necessary recording fees to the County. The
Notice of Restriction shall provide information that conditions imposed by approval of
the Conditional Use Permit are binding on all present or future interest holders or
estate holders of the property. The Notice of Restriction shall be approved as to form
by the City Attorney and signed by the Executive Director prior to recordation.
3. This permit shall become null and void if not exercised within one year after adoption
of the resolution of approval unless extended according to procedures specified in the
National City Municipal Code.
4. This permit shall expire if the use authorized by this resolution is discontinued for a
period of 12 months or longer. The permit may also be revoked, pursuant to
provisions of the Land Use Code, if discontinued for any lesser period of time.
Building
5. Any plans submitted for construction shall comply with the 2010 editions of the
California Building, Electrical, Mechanical, Plumbing, Energy, Fire, Residential and
Green Codes
Fire
6. Any plans submitted for construction shall comply with the 2010 edition of the
California Fire Code and the 2010 edition of NFPA.
7. If the occupancy load is 50 or greater, the requirements for panic hardware and
illuminated green exits signs with emergency lights will be required.
8. An occupancy load sign shall be provided if the occupancy is 50 or greater.
9. Exit doors required for intended use of business shall be evaluated by the Building
Division for adequate exiting and ADA requirements.
10. Fire extinguishers shall be placed inside the building per California Fire Code
requirements. Placement shall be coordinated with the Fire Department.
7
11.Locking entry and exit doors shall not be used as security measures during normal
business hours.
12.A 48 hour notice is required prior to any required fire inspections.
Planning
13.The buying, trade, and/or sale of secondhand gold, jewelry, and other precious
metals shall only be permitted as accessory to a legitimate retail business that sells
as new the item(s) in question as its primary business function.
14.Total gross receipts of precious metals purchased or taken for credit shall not
exceed fifty percent of total retail sales of precious metals.
15.AII pawnbrokers and secondhand dealers shall require, at minimum, a secondhand
dealer license and shall abide by state -mandated reporting requirements for
secondhand tangible personal property as required in the Business and Professions
Code.
16. No melting down of any precious metals may occur on site.
17.This Conditional Use Permit shall be referred to the Planning Commission for
consideration of revocation upon recommendation by the Police Chief if the operator
is found to be in violation of any state, or local law regulating Secondhand Dealers in
accordance with Section 18.12.110.
Police
18.Within 24 hours of all jewelry, gold or other precious metal buying transactions, a
copy of a CA JUS 123 form and the customer's ID shall be submitted to the Police
Department for review.
19.Jewelry, gold or other precious metals purchased shall be held for a period of 30
days prior to recycling to allow adequate time for the Police Department to review
the items in conjunction with a potential theft, burglary, or other criminal activity.
20.The applicant shall provide documentation that the business has been registered as
a Secondhand Dealer and at all times, shall be operated in compliance with
California Business and Professions Code Sections 21625-21647, or any other
sections pertaining to Secondhand Dealers.
21. Pursuant to Financial Code Section 21208 and Business and Professions Code
Section 21628, the business shall report daily, or the first working day after receipt
or purchase, to the Police Chief providing a listing of defined sales and/or goods.
8
CITY OF NATIONAL CITY - DEVELOPMENT SERVICES DEPARTMENT
1243 NATIONAL CITY BLVD., NATIONAL CITY, CA 91950
NOTICE OF PUBLIC HEARING
CONDITIONAL USE PERMIT FOR THE SALE OF SECONDHAND JEWELRY,
GOLD, AND/OR OTHER PRECIOUS METALS AT A RETAIL JEWELRY STORE
LOCATED AT 1536 SWEETWATER ROAD.
CASE FILE NO.: 2013-17 CUP
APN: 563-231-16
The National City Planning Commission will hold a public hearing after the hour of 6:00
p.m. Monday, August 5th, 2013, in the City Council Chambers, Civic Center, 1243
National City Boulevard, National City, California, on the proposed request. (Applicant:
Leo Hamel)
The applicant proposes to buy, sell, and trade secondhand jewelry, gold, and/or other
precious metals otherwise sold as new as part of a new jewelry store.
Information is available for review at the City's Planning Division, Civic Center.
Members of the public are invited to comment. Written comments should be received
by the Planning Division on or before 12:00 p.m., August 5th, 2013, who can be
contacted at 619-336-4310 or planning ar7nationalcityca.gov
If you challenge the nature of the proposed action in court, you may be limited to raising
only those issues you or someone else raised at the public hearing described in this
notice, or in written correspondence delivered to the Planning Commission at, or prior
to, the public hearing.
NATIONAL CITY PLANNING DIVISION
BRAD RAULSTON
Executive Director
9
2013-17 CUP — Leo Hamel — Site Photos
Suite exterior — looking south
Suite interior — looking north
10
RESOLUTION NO. 2013-16
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF NATIONAL CITY, CALIFORNIA,
APPROVING A CONDITIONAL USE PERMIT FOR THE SALE
OF SECONDHAND JEWELRY, GOLD, AND/OR OTHER PRECIOUS METALS
AT A RETAIL JEWELRY STORE LOCATED AT 1536 SWEETWATER ROAD.
CASE FILE NO. 2013-17 CUP
APN: 563-231-16
WHEREAS, the Planning Commission of the City of National City considered a
Conditional Use Permit for the sale & trade of jewelry, gold, and other precious metals
at a retail jewelry store located at 1536 Sweetwater Road at a duly advertised public
hearing held on August 5, 2013, at which time oral and documentary evidence was
presented; and,
WHEREAS, at said public hearings the Planning Commission considered the
staff report contained in Case File No. 2013-17 CUP maintained by the City and
incorporated herein by reference along with evidence and testimony at said hearing;
and,
WHEREAS, this action is taken pursuant to all applicable procedures required by
State law and City law; and,
WHEREAS, the action recited herein is found to be essential for the preservation
of public health, safety, and general welfare.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City
of National City, California, that the testimony and evidence presented to the Planning
Commission at the public hearing held on August 5, 2013, support the following findings:
1. That the site for the proposed use is adequate in size and shape, since the
proposed use will be contained within a commercial building which was
constructed and designed for a commercial use, with adequate parking provided.
2. That the site has sufficient access to streets and highways that are adequate in
width and pavement type to carry the volume and type of traffic generated by the
proposed use, since the proposed use is consistent with a retail use already
considered during the design and construction of the commercial building.
3. That the proposed use will not have an adverse effect upon adjacent or abutting
properties, since the use is contained wholly within a commercial structure, there
is no expansion proposed, and the use is typical of a commercial use considered
in the General Plan and Land Use Code.
4. That the proposed use is deemed essential and desirable to the public
convenience, since it will provide a service that is in demand among consumers.
BE IT FURTHER RESOLVED that the application for Conditional Use Permit is
approved subject to the following conditions:
11
General
1. This Conditional Use Permit authorizes the accessory buying, trade, and/or sale of
secondhand jewelry, watches, gold, and other precious metals otherwise sold as
new at Leo Hamel Fine Jewelers located at 1536 Sweetwater Road, suite D. Except
as required by Conditions of Approval, all plans submitted for permits associated with
the project shall conform to Exhibit A, Case File No. 2013-17 CUP, dated 6/13/2013.
2. Before this Conditional Use Permit shall become effective, the applicant and the
property owner both shall sign and have notarized an Acceptance Form, provided by
the Planning Department, acknowledging and accepting all conditions imposed upon
the approval of this permit. Failure to return the signed and notarized Acceptance
Form within 30 days of its receipt shall automatically terminate the Conditional Use
Permit. The applicant shall also submit evidence to the satisfaction of the Planning
Department that a Notice of Restriction on Real Property is recorded with the County
Recorder. The applicant shall pay necessary recording fees to the County. The
Notice of Restriction shall provide information that conditions imposed by approval of
the Conditional Use Permit are binding on all present or future interest holders or
estate holders of the property. The Notice of Restriction shall be approved as to form
by the City Attorney and signed by the Executive Director prior to recordation.
3. This permit shall become null and void if not exercised within one year after adoption
of the resolution of approval unless extended according to procedures specified in the
National City Municipal Code.
4. This permit shall expire if the use authorized by this resolution is discontinued for a
period of 12 months or longer. The permit may also be revoked, pursuant to
provisions of the Land Use Code, if discontinued for any lesser period of time.
Building
5. Any plans submitted for construction shall comply with the 2010 editions of the
California Building, Electrical, Mechanical, Plumbing, Energy, Fire, Residential and
Green Codes
Fire
6. Any plans submitted for construction shall comply with the 2010 edition of the
California Fire Code and the 2010 edition of NFPA.
7. If the occupancy load is 50 or greater, -the requirements for panic hardware and
illuminated green exits signs with emergency lights will be required.
8. An occupancy load sign shall be provided if the occupancy is 50 or greater.
9. Exit doors required for intended use of business shall be evaluated by the Building
Division for adequate exiting and ADA requirements.
10. Fire extinguishers shall be placed inside the building per California Fire Code
requirements. Placement shall be coordinated with the Fire Department.
11. Locking entry and exit doors shall not be used as security measures during normal
business hours.
12. A 48 hour notice is required prior to any required fire inspections.
12
Planning
13. The buying, trade, and/or sale of secondhand gold, jewelry, and other precious
metals shall only be permitted as accessory to a legitimate retail business that sells
as new the item(s) in question as its primary business function.
14. Total gross receipts of precious metals purchased or taken for credit shall not
exceed fifty percent of total retail sales of precious metals.
15.AII pawnbrokers and secondhand dealers shall require, at minimum, a secondhand
dealer license and shall abide by state -mandated reporting requirements for
secondhand tangible personal property as required in the Business and Professions
Code.
16. No melting down of any precious metals may occur on site.
17.This Conditional Use Permit shall be referred to the Planning Commission for
consideration of revocation upon recommendation by the Police Chief if the operator
is found to be in violation of any state, or local law regulating Secondhand Dealers in
accordance with Section 18.12.110.
Police
18.Within 24 hours of all jewelry, gold or other precious metal buying transactions, a
copy of a CA JUS 123 form and the customer's ID shall be submitted to the Police
Department for review.
19. Jewelry, gold or other precious metals purchased shall be held for a period of 30
days prior to recycling to allow adequate time for the Police Department to review
the items in conjunction with a potential theft, burglary, or other criminal activity.
20.The applicant shall provide documentation that the business has been registered as
a Secondhand Dealer and at all times, shall be operated in compliance with
California Business and Professions Code Sections 21625-21647, or any other
sections pertaining to Secondhand Dealers.
21. Pursuant to Financial Code Section 21208 and Business and Professions Code
Section 21628, the business shall report daily, or the first working day after receipt
or purchase, to the Police Chief providing a listing of defined sales and/or goods.
BE IT FURTHER RESOLVED that copies of this Resolution be transmitted
forthwith to the applicant and to the City Council.
BE IT FINALLY RESOLVED that this Resolution shall become effective and final
on the day following the City Council meeting where the Planning Commission
resolution is set for review, unless an appeal in writing is filed with the City Clerk prior to
5:00 p.m. on the day of that City Council meeting. The City Council may, at that
meeting, appeal the decision of the Planning Commission and set the matter for public
hearing.
13
CERTIFICATION:
This certifies that the Resolution was adopted by the Planning Commission at their
meeting of August 5, 2013, by the following vote:
AYES: Garcia, Baca, Pruitt, Flores, Alvarado, Bush, Dela Paz
NAYS: None
ABSENT: None
ABSTAIN: None
CHAIRPERSON
14
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16
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 22
ITEM TITLE:
Proposed date of October 8, 2013 for a City Council Workshop on City Council Policy Manual
(Chapters 200 - 500)
PREPARED BY: Leslie Deese, City Manager
PHONE: 619-336-4240
EXPLANATION:
In order to continue the City Council's review of Council Policies, staff is requesting that Council
consider October 8, 2013 at 6:00 pm for a Workshop to review Chapters 200 - 500.
Chapter 200 —
Chapter 300 —
Chapter 400 —
Chapter 500 —
Financial Services
Legal and Legislative Services
Municipal Planning and Development
Public Works
DEPARTMENT: City M�
APPROVED B
FINANCIAL STATEMENT:
ACCOUNT NO. N/A
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
Consider scheduling October 8, 2013 for a Council Workshop to review and update the Chapters 200 -
500 policies.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
None
CITY OF NATIONAL CITY, CALIFORNIA
COUNCIL AGENDA STATEMENT
MEETING DATE: August 20, 2013
AGENDA ITEM NO.23
ITEM TITLE:
City Council Review of League of California Cities 2013 Annual Conference Resolutions
PREPARED BY: ,Leslie Deese, City Manager DEPARTMENT: City Man gar
PHONE: 619-336-4240 APPROVED BY -
EXPLANATION:
See attached report.
FINANCIAL STATEMENT:
ACCOUNT NO.
N/A
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED:
APPROVED:
Finance
MIS
STAFF RECOMMENDATION:
City Council consider the League's resolutions and determine the City's position so that our voting delegates can represent
the City's position during the League conference on September 18-20 in Sacramento.
BOARD / COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
Staff Report
League of California Cities 2013 Annual Conference Resolutions Packet
Staff Report: City Council Review of League of California Cities 2013
Annual Conference Resolutions
This year's League of California Cities Annual Conference will be held
September 18-20 in Sacramento. Policy development is a vital and ongoing
process within the League. The principal means for deciding policy on the
important issues facing cities and the League is through the League's eight
standing policy committee and the board of directors. The process allows for
timely consideration of issues in a changing environment and assures city
officials the opportunity to both initiate and influence policy decisions.
On June 4, 2013, the City Council voted to appoint Mayor Morrison as the voting
delegate and Councilmember Rios as 1s1 alternate and Councilmember Cano as
2'd alternate to represent National City at the 2013 League Annual Business
Meeting. The meeting will be held at 12:00 p.m. on Friday, September 20, at the
Sacramento Hyatt Regency Hotel.
At the Annual Conference, the League will consider two resolutions, the details of
which are provided in the attached information packet. Also provided for the City
Council's information are staff's comments on the proposed resolutions:
1) Resolution calling upon the Governor and the Legislature to work with the
League of California Cities in providing adequate funding and to prioritize
water bonds to assist local government in water conservation, ground
water recharge and reuse of storm water and urban runoff programs.
Staff recommends the City Council support this resolution as it provides
funding to agencies to assist with the stricter storm water permit
requirements and compliance.
2) Resolution calling upon the Governor and Legislature to enter into
discussions with the League and California Police Chiefs' Association
representatives to identify and enact strategies that will ensure the
success of public safety realignment from a local municipal law
enforcement perspective.
Staff recommends the City Council support this resolution as it provides
more input and funding for municipalities. It also provides more inclusion
of local government into the realignment process. Specifically it provides
the following for local government:
• Recognizes the need to fully fund municipal police departments with
constitutionally protected funding to appropriately address realignment
issues facing front-line law enforcement;
• Amends AB 109 to change the criteria justifying the release of non-
violent, non -serious, non -sex offender inmates (N3) inmates to include
1
their total criminal and mental history instead of only their last criminal
conviction;
• Enacts legislation giving the option for city police officers to make ten
(10) day flash incarcerations in city jails for probationers who violate the
conditions of their probation;
• Establishes oversight procedures to encourage transparency and
accountability over the use of realignment funding;
• Provides for greater representation of city officials on the local
Community Corrections Partnerships. Currently AB 117 provides for only
one city official (a police chief) on the seven -member body, six of which
are aligned with the county in which the partnership has been established.
As a result, the counties dominate the committees and the subsequent
distribution of realignment funds.
The League encourages city councils to consider the resolutions and determine a
city position so their voting delegate(s) can represent its position during the
conference, and / or provide a report back to Council on action taken by the
League on the resolutions. If there is any particular direction that the Council
would like to provide, direction tonight would be appropriate.
Some Councils just allow their voting delegates to "vote your conscience" since
the measures tend to get modified during the policy committee process. Others
like to provide specific direction to vote for or against a particular resolution.
There is no requirement that the Council discuss or take action on each issue.
1400 K STREET
SACRAMENTO, CA 95814
rx:(916) 658-8200
Fx: (916) 658-8240
RECEIVED JUL 2 9 2013
�OEA�GUE
CITIESSM
W W W.CACITIES.O RG
July 23, 2013
TO: Mayors, City Managers and City Clerks
League Board of Directors
RE: Annual Conference Resolutions Packet
Notice of League Annual Meeting
Enclosed please find the 2013 Annual Conference Resolutions Packet.
Annual Conference in Sacramento. This year's League Annual Conference will be held September 18 -
20 in Sacramento. The conference announcement has previously been sent to all cities and we hope that
you and your colleagues will be able to join us. More information about the conference is available on the
League's Web site at www.cacities.org/ac. We look forward to welcoming city officials to the conference.
Annual Luncheon/Business Meeting - Friday, September 20, 12:00 p.m. The League's Annual
Business Meeting will be held at the Hyatt Regency Hotel.
Resolutions Packet. At the Annual Conference, the League will consider the two resolutions introduced by
the deadline, Saturday, July 20, 2013, midnight. These resolutions are included in this packet. New this
year, resolutions submitted to the General Assembly must be concurred in by five cities or by city officials
from at least five or more cities. These letters of concurrence are included with this packet. We request that
you distribute this packet to your city council.
We encourage each city council to consider the resolutions and to determine a city position so that
your voting delegate can represent your city's position on each resolution. A copy of the resolutions packet is
posted on the League's website for your convenience: www.cacities.org/resolutions.
The resolutions packet contains additional information related to consideration of the resolutions at the
Annual Conference. This includes the date, time and location of the meetings at which resolutions will be
considered.
Voting Delegates. Each city council is encouraged to designate a voting delegate and two alternates to
represent their city at the Annual Business Meeting. A letter asking city councils to designate their voting
delegate and two alternates has already been sent to each city. Copies of the letter, voting delegate form, and
additional information are also available at: www.cacities.org/resolutions.
Please Bring This Packet to the Annual Conference
1 September 18 - 20 — Sacramento
i 3
GpUt 636-M
LEAGUF®
OF CALIFORNIA
CITIES
Annual Conference
Resolutions Packet
I15th Annual Conference
Sacramento
September 18 - 20, 2013
`1
NUAL CONFERI.NCEMEETII
SCHEDULE FOR RESOLUTIONS
1''folicyi.cnnimitee.111e0Ongs
Wednesday, September 18, 2013
1230 J Street;$acrattento
Public Safety: 9:00. a.m. — 10:30 a.m. -
Environmental Quality: 10:30 a.m.— 12:00 p.m.
2. General Resolutions Committee
Thursday, September 19, 2013, 1:00 p.m.
Sacramento Convention Center
1400 J Street, Sacramento
3. IttliltarBUOtteSs-:-Meetlitg.-00(1',GeneKal
Friday, September 20, 2013, 12:00 p.m.
Hyatt Regency Hotel
1209 L Street, Sacramento
INFORMATION AND PROCEDURES
RESOLUTIONS CONTAINED IN THIS PACKET: The League bylaws provide that resolutions shall
be referred by the president to an appropriate policy committee for review and recommendation.
Resolutions with committee recommendations shall then be considered by the General Resolutions
Committee at the Annual Conference.
This year, two resolutions have been introduced for consideration by the Annual Conference and referred
to the League policy committees.
POLICY COMMITTEES: Two policy committees will meet at the Annual Conference to consider and take
action on resolutions referred to them. The committees are Environmental Quality and Public Safety. These
committees will meet on Wednesday, September 18, 2013, at the Sheraton Grand Hotel in Sacramento. The
sponsors of the resolutions have been notified of the time and location of the meetings.
GENERAL RESOLUTIONS COMMITTEE: This committee will meet at 1:00 p.m. on Thursday,
September 19, at the Sacramento Convention Center, to consider the reports of the two policy committees
regarding the two resolutions. This committee includes one representative from each of the League's regional
divisions, functional departments and standing policy committees, as well as other individuals appointed by the
League president. Please check in at the registration desk for room location.
ANNUAL LUNCHEON/BUSINESS MEETING/GENERAL ASSEMBLY: This meeting will be held at
12:00 p.m. on Friday, September 20, at the Hyatt Regency Hotel.
PETITIONED RESOLUTIONS: For those issues that develop after the normal 60-day deadline, a
resolution may be introduced at the Annual Conference with a petition signed by designated voting
delegates of 10 percent of all member cities (47 valid signatures required) and presented to the Voting
Delegates Desk at least 24 hours prior to the time set for convening the Annual Business Session of the
General Assembly. This year, that deadline is 12:00 p.m., Thursday, September 19. If the petitioned
resolution is substantially similar in substance to a resolution already under consideration, the petitioned
resolution may be disqualified by the General Resolutions Committee.
Resolutions can be viewed on the League's Web site: www.cacities.org/resolutions.
Any questions concerning the resolutions procedures may be directed to Meg Desmond at the League
office: mdesmond(ricacities.oru or (916) 658-8224
1
GUIDELINES FOR ANNUAL CONFERENCE RESOLUTIONS
Policy development is a vital and ongoing process within the League. The principal means for deciding policy
on the important issues facing cities is through the League's eight standing policy committees and the board of
directors. The process allows for timely consideration of issues in a changing environment and assures city
officials the opportunity to both initiate and influence policy decisions.
Annual conference resolutions constitute an additional way to develop League policy. Resolutions should
adhere to the following criteria.
Guidelines for Annual Conference Resolutions
1. Only issues that have a direct bearing on municipal affairs should be considered or adopted at the
Annual Conference.
2. The issue is not of a purely local or regional concern.
3. The recommended policy should not simply restate existing League policy.
4. The resolution should be directed at achieving one of the following objectives:
(a)
Focus public or media attention on an issue of major importance to cities.
(b) Establish a new direction for League policy by establishing general principals around which
more detailed policies may be developed by policy committees and the board of directors.
(c) Consider important issues not adequately addressed by the policy committees and board of
directors.
(d) Amend the League bylaws (requires 2/3 vote at General Assembly).
2
LOCATION OF MEETINGS
Policy Committee Meetings
Wednesday, September 18, 2013
Sheraton Grand Hotel
1230 J Street, Sacramento
Public Safety: 9:00 a.m. — 10:30 a.m.
Environmental Quality: 10:30 a.m. — 12:00 p.m.
General Resolutions Committee
Thursday, September 19, 2013, 1:00 p.m.
Sacramento Convention Center
1400 J Street, Sacramento
Annual Business Meeting and General Assembly Luncheon
Friday, September 20, 2013, 12:00 p.m.
Hyatt Regency Hotel
1209 L Street, Sacramento
3
KEY TO ACTIONS TAKEN ON RESOLUTIONS
Resolutions have been grouped by policy committees to which they have been assigned.
Number
Key Word Index
Reviewing Body Action
2
3
1 - Policy Committee Recommendation
to General Resolutions Committee
2 - General Resolutions Committee
3 - General Assembly
ENVIRONMENTAL QUALITY POLICY COMMITTEE
1 2
3
1
Water Bond Funds
PUBLIC SAFETY POLICY COMMITTEE
2
Public Safety Realignment
Information pertaining to the Annual Conference Resolutions will also be posted on each committee's
page on the League website: www.cacities.or t. The entire Resolutions Packet will be posted at:
www.caci ti es.ore/resol ut i ons.
4
KEY TO ACTIONS TAKEN ON RESOLUTIONS (Continued)
KEY TO REVIEWING BODIES KEY TO ACTIONS TAKEN
1. Policy Committee A - Approve
2. General Resolutions Committee D - Disapprove
3. General Assembly N - No Action
Action Footnotes
* Subject matter covered in another resolution
** Existing League policy
*** Local authority presently exists
R - Refer to appropriate policy committee for
study
a - Amend
Aa - Approve as amended
Aaa - Approve with additional amendment(s)
Ra - Amend and refer as amended to
appropriate policy committee for study
Raa - Additional amendments and refer
Da - Amend (for clarity or brevity) and
Disapprove
Na - Amend (for clarity or brevity) and take
No Action
W - Withdrawn by Sponsor
Procedural Note: Resolutions that are approved by the General Resolutions Committee, as well as all
qualified petitioned resolutions, are reported to the floor of the General Assembly. In addition, League policy
provides the following procedure for resolutions approved by League policy committees but not approved by
the General Resolutions Committee:
Resolutions initially recommended for approval and adoption by all the League policy committees to which
the resolution is assigned, but subsequently recommended for disapproval, referral or no action by the
General Resolutions Committee, shall then be placed on a consent agenda for consideration by the General
Assembly. The consent agenda shall include a brief description of the basis for the recommendations by
both the policy committee(s) and General Resolutions Committee, as well as the recommended action by
each. Any voting delegate may make a motion to pull a resolution from the consent agenda in order to
request the opportunity to fully debate the resolution. If, upon a majority vote of the General Assembly, the
request for debate is approved, the General Assembly shall have the opportunity to debate and subsequently
vote on the resolution.
5
2013 ANNUAL CONFERENCE RESOLUTIONS
RESOLUTION REFERRED TOENVIRONMENTAL QUALITY POLICY COMMITTEE
1. RESOLUTION CALLING UPON THE GOVERNOR AND THE LEGISLATURE TO WORK
WITH THE LEAGUE OF CALIFORNIA CITIES IN PROVIDING ADEQUATE FUNDING
AND TO PRIORITIZE WATER BONDS TO ASSIST LOCAL GOVERNMENT IN WATER
CONSERVATION, GROUND WATER RECHARGE AND REUSE OF STORMWATER AND
URBAN RUNOFF PROGRAMS.
Source: Los Angeles County Division
Concurrence of five or more cities/citv officials: Cities of Alhambra; Cerritos; Claremont; Glendora;
Lakewood; La Mirada; La Verne; Norwalk; Signal Hill; Mary Ann Lutz, Mayor, city of Monrovia.
Referred to: Environmental Quality Policy Committee
Recommendations to General Resolutions Committee: Approve
WHEREAS, local governments play a critical role in providing water conservation, ground water
recharge and reuse of stormwater infrastructure, including capture and reuse of stormwater for their citizens,
businesses and institutions; and
WHEREAS, local governments support the goals of the Clean Water Act to ensure safe, clean
water supply for all and the U.S. Environmental Protection Agency has encouraged local governments to
implement programs to capture, infiltrate and treat stormwater and urban runoff with the use of low impact
development ordinances, green street policies and programs to increase the local ground water supply
through stormwater capture and infiltration programs; and
WHEREAS, local governments also support the State's water quality objectives, specifically
Section 13241 of the Porter -Cologne Water Quality Control Act, on the need to maximize the use of
reclaimed and water reuse and the Regional Water Quality Control Boards and the State Water Resources
Board encourage rainwater capture efforts; and
WHEREAS, the State's actions working through the water boards, supported by substantial
Federal, State and local investments, have led to a dramatic decrease in water pollution from wastewater
treatment plants and other so-called "point sources" since 1972. However, the current threats to the State's
water quality are far more difficult to solve, even as the demand for clean water increases from a growing
population and an economically important agricultural industry; and
WHEREAS, the State's Little Hoover Commission found in 2009 that more than 30,000 stormwater
discharges are subject to permits regulating large and small cities, counties, construction sites and industry.
The Commission found that a diverse group of water users — the military, small and large businesses, home
builders and local governments and more — face enormous costs as they try to control and limit stormwater
pollution. The Commission concluded that the costs of stormwater clean up are enormous and that the costs
of stormwater pollution are greater, as beach closures impact the State's economy and environmental
damage threatens to impair wildlife; and
WHEREAS, at the same time that new programs and projects to improve water quality are
currently being required by the U.S. EPA and the State under the National Pollution Discharge Elimination
System (NPDES) permits and the Total Daily Maximum Load (TMDL) programs, many local governments
find that they lack the basic infrastructure to capture, infiltrate and reuse stormwater and cities are facing
difficult economic challenges while Federal and State financial assistance has been reduced due to the
impacts of the recession and slow economic recovery; and
6
WHEREAS, cities have seen their costs with the new NPDES permit requirements double and
triple in size in the past year, with additional costs anticipated in future years. Additionally, many local
businesses have grown increasingly concerned about the costs of retrofitting their properties to meet
stormwater and runoff requirements required under the NPDES permits and TMDL programs; and
WHEREAS, the League of California Cities adopted water polices in March of 2012, recognizing
that the development and operation of water supply, flood control and storm water management, among
other water functions, is frequently beyond the capacity of local areas to finance and the League found that
since most facilities have widespread benefits, it has become the tradition for Federal, State and local
governments to share their costs (XIV, Financial Considerations); and the League supports legislation
providing funding for stormwater and other water programs; and
WHEREAS, the Governor and the Legislature are currently contemplating projects for a water
bond and a portion of the bond could be directed to assist local government in funding and implementing the
goals of the Clean Water Act and the State's water objectives of conserving and reusing stormwater in order
to improve the supply and reliability of water supply; and now therefore let it be
RESOLVED by the General Assembly of the League of California Cities, assembled in Sacramento
on September 20, 2013, that the League calls for the Governor and the Legislature to work with the League
and other stakeholders to provide adequate funding for water conservation, ground water recharge and
capture and reuse of stormwater and runoff in the water bond issue and to prioritize future water bonds to
assist local governments in funding these programs. The League will work with its member cities to educate
federal and state officials to the challenges facing local governments in providing for programs to capture,
infiltrate and reuse stormwater and urban runoff.
//////////
Background Information on Resolution No. 1
Source: Los Angeles County Division
Background:
In order to meet the goals of both the Federal Clean Water Act and the State's Porter -Cologne Water
Quality Control Act, which seek to ensure safe clean water supplies, cities provide critical water
conservation, ground water recharge and reuse of stormwater infrastructure, including capture and reuse of
stormwater for their citizens, businesses and institutions.
Working with the State's Regional Water Quality Control Boards and the State Water Resources Board
through the National Pollution Discharge Elimination System (NPDES) permitting process and Total
Maximum Daily Load (TMDL) Programs, California's cities implement programs to capture, infiltrate and
treat stormwater and urban runoff with the use of low impact development ordinances, green streets policies
and other programs to increase the local ground water supply.
These actions have led to a dramatic decrease in water pollution from wastewater treatment plants and other
so-called "point sources" since the adoption of the Clean Water Act in 1972. However, current threats to the
State's "non -point sources " of pollution, such as stormwater and urban runoff are far more difficult to solve,
even as the demand for clean water increases from a growing population and an economically important
agricultural industry.
7
Current Problem Facing California's Cities
The Little Hoover Commission found in 2009 that more than 30,000 stormwater discharges are subject to
permits regulating large and small cities, counties, construction sites and industry. The Commission found
that a diverse group of water users — the military, small and large businesses, home builders and local
governments and more — face enormous costs as they try and control and limit stormwater pollution. The
Commission concluded that the costs of stormwater clean up are enormous and that the costs of stormwater
pollution are greater as beach closures impact the state's economy and environmental damage threatens to
impair wildlife.
Additionally, new programs and projects to improve water quality are currently being required by the U.S.
EPA and the State under the NPDES permits and the TMDL programs. Many local governments find that
they lack the basic infrastructure to capture, infiltrate and reuse stormwater and the cities are facing difficult
economic challenges while Federal and State financial assistance has been reduced due to the impacts of the
recession and slow economic recovery.
Cities have seen their costs with the new NPDES permit requirements triple in size in the past year, with
additional costs anticipated in future years. Additionally, many local businesses have grown increasingly
concerned about the costs of retrofitting their properties to meet stormwater and runoff requirements
required under the NPDES permits and TMDL programs.
In Los Angeles County alone, reports commissioned by the Los Angeles County Flood Control District
estimate the costs of achieving region -wide compliance for implementing TMDL programs in the NPDES
permits required by the Los Angeles Regional Water Quality Control Board (LARWQCB) will be in the
tens of billions of dollars over the next twenty years. Additionally, failure to comply with the LARWQCB's
terms could result in significant Clean Water Act fines, state fines and federal penalties anywhere from
$3,000- $37,500 per day. Violations can also result in third -party litigation. Such costs are not confined to
Los Angeles County and are being realized statewide.
Clearly, compliance with the NPDES permit and TMDL programs will be expensive for local governments
over a long period of time and cities lack a stable, long-term, dedicated local funding source to address this
need. Many cities are faced with the choice of either cutting existing services or finding new sources of
revenue to fund the NPDES and TMDL programs.
Los Angeles County Division Resolution
The Division supports strong League education and advocacy at both the State and Federal levels to help
cities face the challenges in providing programs to capture, infiltrate and reuse stormwater and urban runoff.
While Los Angeles County cities and other regions seek to secure local funding sources to meet the Clean
Water Act and the State's water objectives, it will simply not be enough to meet the enormous costs of
compliance. The Los Angeles County Division strongly believes that State and Federal cooperation are
necessary to fund programs to secure and reuse stormwater in order to improve water supply and reliability
throughout the state.
The Division calls for the League to engage in discussions on 2014 State Water Bond to assist cities in
funding and implementing the goals of the Clean Water Act and the State's Water objectives. This
resolution does not support the 2014 bond issue, since the League and individual cities will need to make
this decision at a later time upon review of the final language. However, the Govemor and Legislature have
reopened discussions for the 2014 water bond and funding of urban runoff and stormwater programs has
taken a back seat in past bond issues, such as Proposition 84. In May, Assembly Speaker John Perez
appointed a Water Bond Working Group which recently outlined a new set of Priorities and Accountability
Measures for developing a water bond that would gain the support of 2/3 of the Legislature and voters. One
of the priorities identified by the committee included, "Regional Self Reliance/Integrated Regional Water
8
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Management," posing the question if stormwater capture should be included in any future bonds. The
Division believes the opportunity to advocate for funding in the bond is now.
League of California Cities Staff Analysis on Resolution No. 1
Staff: Jason Rhine; (916) 658-8264
Committee: Environmental Quality
Summary:
This resolution seeks to call upon the Governor and the Legislature to work with the League of California
Cities in providing adequate funding and to prioritize water bonds to assist local governments in water
conservation, ground water recharge and reuse of stormwater and urban runoff programs.
Background:
In 2009, the State Legislature passed and Governor Arnold Schwarzenegger signed a package of legislation
that included four policy bills and an $11.1 billion water bond (The Clean, and Reliable Drinking Water
Supply Act). The water bond included the following major spending proposals:
• $455 million for drought relief projects, disadvantaged communities, small community wastewater
treatment improvements and safe drinking water revolving fund
• $1.4 billion for "integrated regional water management projects"
• $2.25 billion for projects that "support delta sustainability options"
• $3 billion for water storage projects
• $1.7 billion for ecosystem and watershed protection and restoration projects in 21 watersheds
• $1 billion for groundwater protection and cleanup
• $1.25 billion for "water recycling and advanced treatment technology projects"
The $11.1 billion bond also included nearly $2 billion in earmarks. Projects slated for funding included:
• $40 million to educate the public about California's water
• $100 million for a Lake Tahoe Environmental Improvement Program for watershed restoration, bike
trails and public access and recreation projects
• $75 million for the Sierra Nevada Conservancy, for public access, education and interpretive
projects
• $20 million for the Baldwin Hills Conservancy to be used to buy more land
• $20 million for the Bolsa Chica Wetlands for interpretive projects for visitors
The water bond was originally scheduled to appear on the 2010 ballot as Proposition 18. However, due to
significant criticism over the size of the bond, the amount of earmarked projects, and a lack of public
support, the Legislature has voted twice to postpone the ballot vote. The water bond is now slated for the
November 4, 2014 ballot.
It is unclear whether or not the water bond will actually appear on the November 2014 ballot. In recent
months, pressure has been mounting to postpone the water bond yet again or significantly rewrite the water
bond to drastically reduce the overall size of the bond and remove all earmarks. The Legislature has until
the summer of 2014 to act.
Fiscal Impact:
Unknown. This resolution does not seek a specified appropriation from a water bond.
9
Existing League Policy:
In 2008, the League formed a new Water Task Force to consider updates and revision to the Water
Guidelines the League drafted and adopted 20 years earlier. These new Guidelines were formally approved
by the League board of directors in Feb. 2010. Below are the most pertinent policy and guiding principles
related to the proposed resolution. To view the entire water policy guidelines, go to
www. cacities.om/waterpol i cvauidelines.
General Principles
• The League supports the development of additional groundwater and surface water storage,
including proposed surface storage projects now under study if they are determined to be feasible,
including but not limited to: environmentally, economically, and geographically relating to point of
origin. Appropriate funding sources could include, but are not limited to user fees, bonds and federal
funding.
• The League supports state water policy that allows undertaking aggressive water conservation and
water use efficiency while preserving, and not diminishing, public and constitutional water rights.
Water Conservation
• The League supports the development of a statewide goal to reduce water use by 20% by 2020
through the implementation of fair and equitable measures consistent with these principles.
• Accomplishing water conservation and water use efficiency goals will require statewide action by
all water users, including residential, commercial, industrial and agricultural water users, local and
regional planning agencies, state and federal agencies, chambers of commerce, and business,
commercial and industrial professional and trade associations.
Water Recycling
• Wherever feasible, water recycling should be practiced in urban, industrial and agricultural sectors.
This includes increasing the use of recycled water over 2002 levels by at least one million acre-
feet/year (afy) by 2020 and by at least two million afy by 2030.
• Increased recycling, reuse and other refinements in water management practices should be included
in all water supply programs.
Water Storage
• The development of additional surface facilities and use of groundwater basins to store surface
water that is surplus to that needed to maintain State Water Resource Control Board (SWRCB) Bay -
Delta estuary water quality standards should be supported.
Groundwater
• The principle that local entities within groundwater basins (i.e., cities, counties, special districts, and
the regional water quality control boards) working cooperatively should be responsible for and
involved in developing and implementing basin wide groundwater, basin management plans should
be supported. The plans should include, but not be limited to: a) protecting groundwater quality; b)
identifying means to correct groundwater overdraft; c) implementing better irrigation techniques; d)
increasing water reclamation and reuse; and e) refining water conservation and other management
practices.
• Financial assistance from state and federal governments should be made available to requesting
local agencies to develop and implement their groundwater management plans.
Financial Considerations
• It is recognized that the development and operation of water supply, water conveyance, flood control
and stormwater management, water storage, and wastewater treatment facilities is frequently beyond
the capability of local areas to finance;
10
• The League supports legislation to provide funding for stormwater, water and wastewater programs,
including a constitutional amendment which would place stormwater fees in the category of water
and wastewater fees, for the purposes of Proposition 218 compliance.
Support:
New this year, any resolutions submitted to the General Assembly must be concurred in by five cities or by
city officials from at least five or more cities. Those submitting resolutions were asked to provide written
documentation of concurrence. The following letters of concurrence were received: cities of Alhambra;
Cerritos; Claremont; Glendora; Lakewood; La Mirada; La Verne; Norwalk; Signal Hill; and Mary Ann Lutz,
Mayor, city of Monrovia. A letter of support was also received from the California Contract Cities
Association.
RESOLUTION REFERRED TO PUBLIC SAFETY POLICY COMMITTEE
2. RESOLUTION CALLING UPON THE GOVERNOR AND LEGISLATURE TO ENTER INTO
DISCUSSIONS WITH THE LEAGUE AND CALIFORNIA POLICE CHIEFS' ASSOCIATION
REPRESENTATIVES TO IDENTIFY AND ENACT STRATEGIES THAT WILL ENSURE THE
SUCCESS OF PUBLIC SAFETY REALIGNMENT FROM A LOCAL MUNICIPAL LAW
ENFORCEMENT PERSPECTIVE.
Source: Public Safety Policy Committee
Concurrence of five or more cities/city officials: Cities of Arroyo Grande, Covina; Fontana; Glendora;
Monrovia; Ontario; Pismo Beach; and Santa Barbara
Referred to: Public Safety Policy Committee
Recommendation to General Resolutions Committee: Approve
WHEREAS, in October 2011 the Governor proposed the realignment of public safety responsibilities
from state prisons to local government as a way to address recent court orders in response to litigation
related to state prison overcrowding, and to reduce state expenditures; and
WHEREAS, the Governor stated that realignment needed to be fully funded with a constitutionally
protected source of funds if it were to succeed; and
WHEREAS, the Legislature enacted the realignment measures, AB 109 and AB 117, and the
Governor signed them into law without full constitutionally protected funding and liability protection for
stakeholders; and
WHEREAS, California currently has insufficient jail space, probation officers, housing and job
placement programs, medical and mental health facilities, lacks a uniform definition of recidivism; and
utilizes inappropriate convictions used to determine inmate eligibility for participation in the realignment
program; and
WHEREAS, since the implementation of realignment there have been numerous issues identified that
have not been properly addressed that significantly impact municipal police departments' efforts to
successfully implement realignment; and
WHEREAS, ultimately many of these probationers who have severe mental illness are released into
communities where they continue to commit crimes that impact the safety of community members and drain
the resources of probation departments and police departments throughout the state; and
11
WHEREAS, an estimated 30 counties were operating under court -ordered or self-imposed population
caps before realignment, and the current lack of bed space in county jails has since led to many convicted
probationers being released early after serving a fraction of their time; with inadequate to no subsequent
supervision, leaving them free to engage in further criminal offenses in our local cities; and
WHEREAS, there is increasing knowledge among the offender population which offenses will and
will not result in a sentence to state prison, and many offenders, if held in custody pending trial, that would
be sentenced to county jail are ultimately sentenced to time served due to overcrowding in county facilities;
and
WHEREAS, there are inadequate databases allowing local police departments to share critical
offender information among themselves, with county probation departments, and with other county and state
law enforcement entities; and
WHEREAS, local police departiuents have not received adequate funding to properly address this new
population of offenders who are victimizing California communities; and now therefore let it be
RESOLVED by the General Assembly of the League of California Cities, assembled in Sacramento
on September 20, 2013, to request the Governor and State Legislature to immediately enter into discussions
with League representatives and the California Police Chiefs' Association to address the following issues:
1. The need to fully fund municipal police departments with constitutionally protected funding to
appropriately address realignment issues facing front-line law enforcement;
2. Amend appropriate sections of AB 109 to change the criteria justifying the release of non-violent,
non -serious, non -sex offender inmates (N3) inmates to include their total criminal and mental
history instead of only their last criminal conviction;
3. Establish a uniform definition of recidivism with the input of all criminal justice stakeholders
throughout the state;
4. Enact legislation that will accommodate the option for city police officers to make ten (10) day flash
incarcerations in city jails for probationers who violate the conditions of their probation;
5. Establish oversight procedures to encourage transparency and accountability over the use of
realignment funding;
6. Implement the recommendations identified in the California Little Hoover Commission Report #216
dated May 30, 2013;
7. Provide for greater representation of city officials on the local Community Corrections Partnerships.
Currently AB 117 provides for only one city official (a police chief) on the seven -member body, six
of which are aligned with the county in which the partnership has been established. As a result, the
counties dominate the committees and the subsequent distribution of realignment funds.
8. Provide, either administratively or by legislation, an effective statewide data sharing mechanism
allowing state and local law enforcement agencies to rapidly and efficiently share offender
information to assist in tracking and monitoring the activities of AB 109 and other offenders.
////NN//
12
Background Information on Resolution No. 2
Source: Public Safety Policy Committee
Background:
In October 2011 the Governor proposed the realignment of public safety tasks from State Prisons to local
government as a way to address certain judicial orders dealing with State prison overcrowding and to reduce
State expenditures. This program shifts the prisoner burden from State prisons to local counties and cities.
When the Governor signed into law realignment he stated that realignment needed to be fully funded with
constitutionally protected source of funds to succeed. Nonetheless, the law was implemented without full
constitutional protected funding for counties and cities; insufficient liability protections to local agencies;
jail space; probation officers; housing and job placement programs; medical and mental health facilities; and
with an inappropriate definition of N3 (non -serious, non -sexual, non-violent) criminal convictions used to
screen inmates for participation in the program.
Two-thirds of California's 58 counties are already under some form of mandated early release. Currently, 20
counties have to comply with maximum population capacity limits enforced by court order, while another 12
counties have self-imposed population caps to avoid lawsuits.
At this time no one knows what the full impact of realignment will ultimately be on crime. We hope that
crime will continue to drop, but with the current experience of the 40,000 offenders realigned since October
201 1, and an estimated additional 12,000 offenders being shifted from State prison to local jails and
community supervision by the end of fiscal year 2013-14, it will be very difficult to realize lower crime rates
in the future.
Beginning in October 2011, California State prisons began moving N3 offenders into county jails, the
county probation and court systems, and ultimately funneled them into community supervision or alternative
sentencing program in cities where they will live, work, and commit crime.
Note: There is currently no uniform definition of recidivism throughout the state and no database that can
deliver statistical information on the overall impact realignment has had on all cities in California. Because
of this problem we have used data from Los Angeles County.
The March 4, 2013 report to the Los Angeles County Criminal Justice Coordination Committee (CCJCC)
shows a strong effort and progress in addressing the realignment mandate. However, there is insufficient
funding.
The report also states the jail population continues to be heavily influenced by participants housed locally.
On September 30, 2012, the inmate count in the Los Angeles County Jail was 15,463; on January 31, 2013,
the count was 18,864. The realignment population accounted for 32% of the Jail population; 5,743 offenders
sentenced per Penal Code Section 1170 (h) and 408 parole violations.
By the end of January 2013, 13,535 offenders were released on Post Release Community Supervision
(PRCS) to Los Angeles County including prisoners with the highest maintenance costs because of medical
and drug problems and mental health issues costing counties and local cities millions of dollars in unfunded
mandates since the beginning of the program. Prisoners with prior histories of violent crimes are also being
released without proper supervision. That is why sections of AB 109 must be amended to change the
criteria used to justify the release of N3 inmates to include an offender's total criminal and mental
history instead of only their last criminal conviction. Using the latter as the key criteria does not provide
13
an accurate risk assessment of the threat these offenders pose to society if they are realigned to county
facilities, or placed on Post Release Community Supervision.
Chief Jerry Powers from the Los Angeles County Probation Department recently stated the release criteria
for N3 offenders "has nothing to do with reality." He said initially the State estimated the population of
released PRCS offenders would be 50% High Risk, 25% Medium Risk and 25% Low Risk. The reality is
3% are Very High Risk, 55% are High Risk, 40% are Medium Risk and only 2% are Low Risk offenders. He
said the High Risk and serious mentally ill offenders being released "are a very scary population." One of
the special needs offenders takes the resources of 20-30 other offenders.
Assistant Sheriff Terri McDonald who is the county Jail Administrator recently stated the Jail has only 30
beds for mentally ill offenders being released — when in fact she actually needs 300 beds to accommodate
the volume of serious mentally ill offenders being released that require beds.
Los Angeles County data shows 7,200 released offenders have had some sort of revocation. This number is
expected to increase because of a significant increase in the first four months of year two of realignment that
totals 83% of the entire first year of the program; 4,300 warrants were issued for offenders; 6,200 offenders
have been rearrested; and 1,400 prosecuted. Data reveals one in 10 offenders will test positive for drugs
during the first 72 hours after being released knowing they are required to report to a probation officer
during that time. Only one in three offenders will successfully complete probation.
There are more than 500 felony crimes that qualify State prison infnates for release under realignment. They
will be spending their time in cities with little, if any, supervision.
//////////
League of California Cities Staff Analysis on Resolution No. 2
Staff: Tim Cromartie (916) 658-8252
Committee: Public Safety Policy Committee
Summary:
This Resolution seeks to outline the deficiencies in the State's current public safety realignment policy, as
implemented in 2011 by AB 109, and to identify policy changes that will assist State, county and municipal
law enforcement entities to cope with the expanded universe of offenders that are now being directed to
county facilities, resulting in increased related impacts on both local communities and municipal law
enforcement.
Background:
This resolution was brought to the Public Safety Policy Committee by individual members of that committee
who are increasingly concerned about municipal public safety impacts resulting from county jail
overcrowding, a problem that has intensified with realignment, resulting in certain categories of offenders
doing no jail time or being sentenced to time served. This has created a climate in which some offenses
receive little or no jail time, accompanied by a growing body of anecdotal evidence that property crimes
have correspondingly increased, with some, such as auto theft, being committed in serial fashion. Increased
criminal activity has strained the resources of many local police departments already struggling to more
closely coordinate information sharing with county probation offices to effectively monitor offenders on
post -community release supervision.
In addition, there is growing concern about the criteria established for determining which offenders are
eligible for post -release community supervision (the non-violent, non -serious, non -sex offenders). There is
so much concern that a May 2013 report of California's Little Hoover Commission recommended adjusting
14 0G�
the criteria to examine an offender's total criminal history rather than merely his or her last known offense,
as a means of more accurately assessing the risk he or she might pose to the community.
Implementation of the realignment policy is handled in part by the Community Corrections Partnerships
established by AB 109, which currently have only one city representative, compared to at least four county -
level representatives.
Fiscal Impact:
Unknown impact on the State General Fund. This resolution seeks to establish increased and
constitutionally protected funding for city police departments (and county sheriff's departments, to the
degree they are contracted to provide police services for cities), but does not specify a dollar amount for the
revenue stream. At a minimum, it would entail an annual revenue stream of at least the amount provided for
cities for front-line law enforcement in the State's 2013-14 Budget, $27 5 million, indefinitely — although
that revenue stream has never been formally identified by the Brown Administration as having any direct
connection to realignment.
Existing League Policy:
Related to this resolution, existing policy provides:
• The League supports policies establishing restrictions on the early release of state inmates for the
purpose of alleviating overcrowding, and limiting parole hearing opportunities for state inmates
serving a life sentence, or paroled inmates with a violation.
• The League supports increasing municipal representation on and participation in the Community
Corrections Partnerships, which are charged with developing local corrections plans.
• In addition, the Strategic Priorities for 2012, as adopted by the League Board of Directors, included
the promotion of local control for strong cities. The resolution's objectives of locking in ongoing
funding for front-line municipal law enforcement, and increasing city participation in the
Community Corrections Partnerships, are consistent with promoting local control.
Support:
New this year, any resolutions submitted to the General Assembly must be concurred in by five cities or by
city officials from at least five or more cities. Those submitting resolutions were asked to provide written
documentation of concurrence. The following cities/city officials have concurred: cities of Arroyo Grande;
Covina; Fontana; Glendora; Monrovia; Ontario; Pismo Beach; and Santa Barbara.
15
LETTERS OF CONCURRENCE
Resolution #1
Water Bond Funds
16
Gateway
to the
San Gabriel Val/es
n1
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Alluunbra
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91801
626
570- 5010
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281-224E
City of Alhambra
Office of the Mayor and City Council
July 1,2013
Bill Bogaard
President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
RE: Los Angeles County Division Annual Conference Resolution
Dear President Bogaard:
The City of Alhambra supports the Los Angeles County Division's effort to
submit a resolution for consideration by the General Assembly at the
League's 2013 Annual Conference in Sacramento.
The Division's resolution seeks to address a critical funding need for cities
working to meet the State's water quality objectives and storm water
management plans by providing direction for the League to educate state
leaders and advocate for funding during discussions on the 2014 Water
Bond. The City of Alhambra is anticipating spending $24,101.96 this year to
start the development of the Enhanced Watershed Plan and monitoring plan.
Priorto 2016, the City anticipates spending $1,169,000 forfull capture device
on our storm drain catch basins. In the future, it is estimated the city may
need $34 million dollars to finance the required infrastructure to meet the
new permit guidelines. We also anticipate needing to hire additional staff to
monitor and maintain the program. None of these costs have a dedicated
funding source.
As members of the League, our city values the policy development process
provided to the General Assembly. We appreciate your time on this issue.
Please feel free to contact Mary Chavez, Director of Public Works, at (626)
570-5067 if you have any questions.
Very truly yours,
Steven Placido, DDS
Mayor
cc: Jennifer Quan, League of California Cities
PHlNT ED oN DEO EUL En HN'EH
17
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TOS
CIVIC CENTER • 15125 BLOOMFIELD AVENUE.
P.O. BOX 3130 • CBRRITOS, CALIFORNIA 90703.3130
P11011E) (552) 916-1310 • FAX: 1582) 468-1095
CELL PHONE) (562) 547-1732
B-mail: bbar90703Qvaol.com
W W W. C£RRITOS. US
orr1CF, Or Tut: MAYOR
alma; W. BARROWS
July 8, 2013
Bill Bogaard
President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
RE: Los Angeles County Division Annual Conference Resolution
r—.
Presiders ard:r
The City of Cerritos supports the Los Angeles County Division's effort to submit a
resolution for consideration by the General Assembly at the League's 2013 Annual
Conference in Sacramento.
Cerritos
AN -America CIty
2008
The Division's resolution seeks to address a critical funding need for cities working to
meet the State's water quality objectives and storm water management plans by
providing direction for the League to educate state leaders and advocate for funding
during discussions on the 2014 Water Bond. The City of Cerritos expended $866,000 in
the Fiscal Year 2011-2012 for compliance with required stormwater programs. Future
expenditures are expected to be over $1.5 million annually, as the City will be required
to begin construction of costly stormwater capital improvements.
As members of the League our city values the policy development process provided to
the General Assembly. We appreciate your time on this issue. Please feel free to
contact Art Gallucci, City Manager at (562)916-1301 or agallucci@cerritos.us, if you
have any questions.
Bruce W. Barrows
MAYOR
cc: Ling -Ling Chang, President, Los Angeles County Division c/o
Robb Korinke, Executive Director, Los Angeles County Division, robb@lacities.org
18
CITY OF CLAREMONT
City Hall
207 Harvard Avenue
P.O. Box 880
Claremont, CA 91711-0880
Fax: (909) 399-5492
Website: www.ci.claremont.ca.us
Email: contact@ci.claremont.ca.us
July 1, 2013
Bill Bogaard
President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
President Bogaard:
City Council • (909) 399-5444
Corey Calaycay
Joseph M. Lyons
Opanyi K. Nasiali
Sam Pedroza
Larry Schroeder
RE: Los Angeles County Division Proposed Resolution for LCC Approval
At The 2013 Annual Conference
The City of Claremont supports the Los Angeles County Division's effort to submit a
resolution for consideration by the General Assembly at the League's 2013 Annual
Conference in Sacramento.
The Division's resolution seeks to address a critical funding need for cities working to
meet the State's water quality objectives and storm water management plans by
providing direction for the League to educate state leaders and advocate for funding
during discussions on the 2014 Water Bond.
As members of the League, our City values the policy development process provided to
the General Assembly and appreciates your time on this issue. )f you have any
questions, please feel free to contact Tony Ramos, City Manager, at (909) 399-5441.
Sincerely,
Opanyi Nasiali
Mayor
c: Jennifer Quan, League of California Cities
v:RMoreno/My Coul iVtenen/LCC Annue!Cunf Apwuva�Ltr-OHJuiy'13
19
CITY OF GLENDORA CITY HALL (626) 914-8200
11.6 East Foothill Blvd., Glendora, C.alifornia 91741
www.ci.glendorasca.us
July 15, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
RE: Los Angeles County Division Annual Conference Resolution
President Bogaard:
The City of Glendora supports the Los Angeles County Division's effort to submit a resolution
for consideration by the General Assembly at the League's 2013 Annual Conference in
Sacramento.
The Division's resolution seeks to address a critical funding need for cities working to meet the
State's water quality objectives and storm water management plans by providing direction for
the League to educate state leaders and advocate for funding during discussions on the 2014
Water Bond.
As members of the League our city values the policy development process provided to the
General Assembly. We appreciate your time on this issue. Please feel free to contact me, if
you have any questions.
Sincerely,
Joe Santoro, Mayor
cc: Ling -Ling Chang, President, Los Angeles County Division c/o Robb Korinke,
Executive Director, Los Angeles County Division, robb®lacities.org
Jennifer Quan, Regional Public Affairs Manager, League of California Cities —
jquan@cacities.org
PRIDE OF THE FOOTHILLS
20
Todd Rogers
Vice Mayor
Diane DuBois
Connell Member
July 2, 2013
Mr. Bill Bogaard
President
League of California Cities
1400 K Street, Suite 400
Sacramento, California 95814
F,
Steve Croft
Mayor
Jeff Wood
Council Member
Ron Piarao
Connell Member
RE: Los Angeles County Division Annual Conference Resolution - Support
Dear President Bogaard-
The City of Lakewood supports the Los Angeles County Division's effort to submit a
resolution for consideration by the General Assembly at the League's 2013 Annual
Conference in Sacramento.
The Division's resolution seeks to address a critical funding need for cities working to
meet the State's water quality objectives and storm water management plans by
providing direction for the League to educate state leaders and advocate for funding
during discussions on the 2014 Water Bond
For Lakewood, the initial cost alone to prepare the Watershed Management Plan
(WMP), Coordinated Integrated Management Plan (CIMP), and Reasonable Assurance
Modeling for the three watersheds that Lakewood is a part of is estimated to be
$153,167. This cost does not include administration costs monitoring costs,
construction costs, or inspection costs, which are estimated to be in the millions of
dollars.
As members of the League our city values the Polio, development proce provided to
the General Assembly. We appreciate your time on this issue. Please feel free to
contact Paolo Beltran, Senior Management Analyst, at (562) 866-9771, extension 2140,
or email at pbeltranMakewoodcitv.orq, if you have any questions.
Steve Croft
Mayor
cc: Ling -Ling Chang, President, Los Angeles County Division c/o
Robb Korinke, Executive Director, Los Angeles County Division,
robb@iacities.org
Lakewood
5050 Clark A ennt
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CITY OF LA MIRADA
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July 15, 2013 LETTER OF SUPPORT
Bill Bogaard
President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
SUBJECT: LOS ANGELES COUNTY DIVISION ANNUAL CONFERENCE RESOLUTION
Dear President Bogaard:
On behalf of the City of La Mirada, I am writing to express support for the League of California
Cities, Los Angeles County Division's effort to submit a resolution for consideration by the
League's General Assembly at the September 2013 Annual Conference in Sacramento.
The Division's resolution seeks to address a critical funding need for local governments working
to meet Federal and State objectives to protect water resources and storm water management
plans. The resolution also provides direction for the League to educate State leaders and
advocates for the inclusion of storm water funding in the State's proposed 2014 Water Bond.
Like many cities, the City of La Mirada does not have the basic infrastructure to capture, filter,
and reuse storm water, and Federal and State funding to assist in providing this infrastructure
has been reduced in recent years as a result of the economic recession. Compliance with the
MS-4 permit and other storm water regulations could cost the City millions, and reduce funding
for other vital City services such as infrastructure and public safety. The City could also face
steep fines, penalties, and third party lawsuits if it is unable to meet the National Pollutant
Discharge Elimination Systems (NPDES) permit requirements. Receiving State funding could
help alleviate the financial burden placed on local governments to meet storm water
requirements.
As a member of the League, our City values the policy development process provided to the
General Assembly. Please contact Jeff Boynton, Deputy City Manager, at (562) 943-0131 if you
have any questions.
Sincerely,
CITY OF LA MIRADA
Steve De Ruse
Mayor
TER:jb:vdr
cc: Ling -Ling Chang, President, Los Angeles County Division
Robb Korinke, Executive Director, Los Angeles County Division
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CITY OF LAVERNE
CITY HALL
3660 "D" Street, La Verne, California 91750-3599
www.ci.la-verne.ca.us
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July 2, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
RE: Los Angeles County Division Annual Conference Resolution
President Bogaard:
The City of La Verne supports the Los Angeles County Division's effort to submit a
resolution for consideration by the General Assembly at the League's 2013 Annual
Conference in Sacramento.
The Division's resolution seeks to address a critical funding need for cities working to
meet the State's water quality objectives and storm water management plans by
providing direction for the League to educate state leaders and advocate for funding
during discussions on the 2014 Water Bond. While the City is still in the process of
identifying the costs associated with meeting the new requirements of the MS-4
PERMIT, it is expected these measures will far exceed existing local resources.
As members of the League, our city values the policy development process provided
to the General Assembly. We appreciate your time on this issue. Please feel free to
contact our City Manager, Bob Russi at 909-596-8726, if you have any questions.
cc: Jennifer Quan, League of California Cities
JR Rariells, Senior Management Analyst
U:1My Documents\CITY COUNCIL\D KENDRICK\Support 2013 League Cont Reso.doc
General Administration 90S/596-87Z6 • Water Customer Service 909/596-B744 • Parks & Community Services 909/596-8700
Public Works 909/596-B741 • Finance 909159B-06 • Community Development 909/596-B706 • Building 9091596-B713
Police Department 909/596-1913 • Fii 3Depaltment 909/596-5E91 • General Fax 909/596.8737
LUIG] VERNOLA
Mayor
MARCEL RODARTE
Vice Mayor
CHERI KELLEY
Council member
MICHAEL MENDEZ
Councilmernber
LEONARD SHRYOCK
Councihncmber
MICHAEL J. EGAN
City Manager
12700 NORWALK BLVD., P.O. BOX 1030, NORWALK, CA 90651.1030 " PHONE: 562/929-5700 • FACSIMILE: 562/929-5773 " W W W.NORWALKCA.GOV
July 2, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
RE: Los Angeles County Division Annual Conference Resolution
Dear President Bogaard:
The city of Norwalk supports the Los Angeles County Division's effort to submit a
resolution for consideration by the General Assembly at the League's 2013 Annual
Conference in Sacramento.
The Division's resolution seeks to address a critical funding need for cities working to
meet the State's water quality objectives and storm water management plans by
providing direction for the League to educate state leaders and advocate for funding
during discussions on the 2014 Water Bond. The cost of compliance with the new
storm water permit is in the millions of dollars. The Watershed Management Plan alone
will cost close to $1 M. implementation of projects in the near future based on that
Watershed Management Plan could potentially cost the City of Norwalk $5 - $10 million
annually.
As members of the League our City values the policy development process provided to
the General Assembly. We appreciate your time on this issue. Please feel free to
contact Mike Egan, City Managgf, at (562) 929-5772 if you have any questions.
Sine
Vet'nola
Mayor
cc: Ling -Ling Chang, President, Los Angeles County Division c/o
Robb Korinke, Executive Director, Los Angeles County Division, robb@lacities.org
24
CITY OF SIGNAL HILL
2175 Cherry Avenue . Signal l- 1, California 90755-3799
June 27, 2013
Bill Bogaard
President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
RE: Los Angeles County Division Annual Conference Resolution
President Bogaard:
The city of Signal Hill supports the Los Angeles County Division's effort to submit a resolution for
consideration by the General Assembly at the League's 2013 Annual Conference in Sacramento.
The Division's resolution seeks to address a critical funding need for cities working to meet the State's
water quality objectives and storm water management plans by providing direction for the League to
educate state leaders and advocate for funding during discussions on the 2014 Water Bond. The city of
Signal Hill currently budgets for $755,000 annually for compliance with required stormwater programs,
which represents over 4% of the entire General Fund. Future expenditures are expected to be over $1.5
million annually, as the City will be required to begin construction of costly stormwater capital
improvements,
As members of the League our city values the policy development process provided to the General
Assembly. We appreciate your time on this issue. Please feel free to contact Ken Farfsing, City
Manager at (562) 989-7302 or Icfarfsing@cityofsignal.org, if you have any questions.
Sincerely,
Michael J. Noll
Mayor
CC: Ling -Ling Chang, President, Los Angeles County Division c/o
Robb Korinke, Executive Director, Los Angeles County Division, robb@lacities.org
25
City of MONROVIA
an-t�ti�anv
11111!
Office of the Mayor and the City Council
July 2, 2013
Bill Bogaard
President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
SUBJECT: Los Angeles County Division Annual Conference Resolution
1887
Dear President Bogaard:
As Mayor of the City of Monrovia, i support the Los Angeles County Division's effort to submit a
resolution for consideration by the General Assembly at the League's 2013 Annual Conference in
Sacramento.
The Division's resolution seeks to address a critical funding need for cities working to meet the State's
water quality objectives and storm water management plans by providing direction for the League to
educate state leaders and advocate for funding during discussions on the 2014 Water Bond. The City is
anticipating millions of dollars in stormwater permit compliance costs over the next five years — funds the
City currently does not have available. Funding assistance is vital in order for the City to meet
stormwater permit requirements.
As members of the League, our City values the policy development process provided to the General
Assembly. We appreciate your time on this issue. Please feel free to contact Heather Maloney, Senior
Management Analyst, at (626) 932-5577 or hmaloney@ci.monrovia.ca.us, if you have any questions.
Sincere!
Mary ,inn Lu
Mayor
()Al
cc: City Council
Ling -Ling Chang, President, Los Angeles County Division clo
Robb Korinke, Executive Director, Los Angeles County Division, robb@lacities.org
Laurie K. Lile, City Manager
Ron Bow, Director of Public Works
4:15 South Ivy Avenue ® Monrovia, California 91026-2888 e (626) 932-5550 @ FAX (626) 932-5520
,p~ry,
EXECUTIVE BOARD
PRESIDENT
STEVETYE
Diamond Bar
VICE PRESIDENT
VICTOR MANALO
Artesia
SECRETARY/TREASURER
GUSTAVO CAMCHO
Pico Rivera
PAST PRESIDENT
DIANE J. MARTINEZ
Paramount
DIRECTOR AT LARGE
JEFF WOOD
Lakewood
DIRECTOR AT LARGE.
SANDRA ARMENTA
Rosemead
BUDGET & AUDIT COMMITTEE
MICHAE.L DAVITT
La Canada Flintridge
BY, LAWS COMMITTEE
LOU LA MONTE
Malibu
CITY MGRS/ ADM. COMMITT[::E
JIM DESTEFANO
Diamond Bar
LEGAL/CITY-COUNTY
CONTRACTS COMMITTEF
NANCY TRAGARZ
Walnut
LEGISLATIVE COMMITTEE
SAM PEDROZA
Claremont
MEMBERSHIP COMMITTEE
ANDREW SAREGA-
La Mirada
RESOLUTIONS COMMITTEE
BARU SANCHEZ
Cudahy
SELECTIONS COMMITTEE
LIZ REILLY
Duarte
SPECIAL EVENTS COMMITTEE
JAMES R. BOZAJIAN
Calabasas
ASSOCIATE MEMBERS COMMITTEE
FRANK V. ZERUNYAN
Rolling Hills Estates
EXECUTIVE DIRECTOR
SAM OLIVITO
June 20, 2013
Bill Bogaard
President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
RE: Los Angeles County Division Annual Conference Resolution
President Bogaard:
The California Contract Cities Association supports the Los Angeles County Division's
effort to submit a resolution for consideration by the General Assembly at the
League's 2013 Annual Conference in Sacramento.
The Division's resolution seeks to address a critical funding need for cities working to
meet the State's water quality objectives and storm water management plans by
providing direction for the League to educate state leaders and advocate for funding
during discussions on the 2014 Water Bond. All of the 58 cities we represent can ill
afford this increasingly expensive ongoing cost.
As members of the League our association values the policy development process
provided to the General Assembly. We appreciate your time on this issue. Please
feel free to contact our office at (562) 622-5533 if you have any questions.
Sincerely,
Steve Tye
CCCA President
CC: Ling -Ling Chang, President, Los Angeles County Division c/o
Robb Korinke, Executive Director, Los Angeles County Division, robb@lacities.org
11027 Downey Ave. Downey, CA 90241 P{562) 622-5S33 FIS62) 622-9555 www.contrac:tcities.org
27
LETTERS OF CONCURRENCE
Resolution #2
Public Safety Realignment
28
OFFICE OF THE
MAYOR
July 17, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, CA 95814
RE: Public Safety Realignment Resolution
Dear President Bogaard:
300 Fast Branch Street.
Arroyo Grande, CA 93420
Phone: (SOS) 473-5400
FAX: (805) 473-0386
agcitytarroyogran de.org
vrrvw.arroyogrande,org
On behalf of the City of Arroyo Grande, I am writing to express support for the League of California Cities'
Public Safety Resolution, which will be submitted for consideration by the League's General Assembly at
the September 2013 Annual Conference in Sacramento.
The League's Resolution seeks to highlight a number of deficiencies with the current public safety
realignment policy, and what funding and policy changes need to occur in response. The resolution
specifically calls ou.t the need for ongoing local law enforcement funding related to realignment, as well as
modification of the criteria for which offenders are eligible for post -release community supervision, i.e. a
non-violent, non -serious, non -sex offender criteria that focuses on total criminal history rather than
merely the last recorded offense.
As a member of the League, our City values the policy development process provided to the General
Assembly. Please contact our City Manager, Steve Adams, at (805)473-5404, if you have any questions.
Sincerely,
Tigo f,t
Mayor, City of Arroyo Grande
29
CITY OF COVI-NA
J 25 East College Street s Covina, California 91723-2199
www.covin.aca.gov
July 17, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, California 95814
RE: Public Safety Realignment Resolution
Dear President Bogaard:
On behalf of the City of Covina, 1 am writing to express support for the League of California
Cities' Public Safety Resolution, which will be submitted for consideration by the League's
General Assembly at the September 2013 Annual Conference in Sacramento.
The League's Resolution seeks to highlight a number of deficiencies with the current public
safety realignment policy, and what funding and policy changes need to occur in response. The
resolution specifically calls out the need for ongoing local law enforcement funding related to
realignment, as well as modification of the criteria for which offenders are eligible for post -
release community supervision, i.e. a non-violent, non -serious, non -sex offender criteria that
focuses on total criminal history rather than merely the last recorded offense.
As a member of the League, our City values the policy development process provided to the
General Assembly. Please contact Daryl Parrish, City Manager, at (626) 384-5410, if you have
any questions.
Sincerely,
Walter Allen II1
Mayor, City of Covina
The City of Covina provides responsive municipal services and ,manages
public resources to enhance the quality of life for our community.
30
Mayor Acquanetta Warren
July 17, 2013
Bill Bogaard, President
League of California Cities
1.400 K Street, Suite 400
Sacramento, California 95814
RE: Public Safety Realignment Resolution
Dear President Bogaard:
On behalf of the City of Fontana, 1 am writing to express support for the League of California Cities'
Public Safety Resolution, which will be submitted for consideration by the League's General
Assembly at the September 2013 Annual Conference in Sacramento.
The League's Resolution seeks to highlight a number of deficiencies with the current public safety
realignment policy, and what funding and policy changes need to occur in response. The resolution
specifically calls out the need for ongoing local law enforcement funding related to realignment, as
well as modification of the criteria for which offenders are eligible for post -release community
supervision, i.e. a non-violent, non -serious, non -sex offender criteria that focuses on total criminal
history rather than merely the last recorded offense.
As a member of the League, our City values the policy development process provided to the General
Assembly. Please contact Ken Hunt City Manager, at (909)350-7654, if you have any questions.
Sincerely,
Mayor, City of Fontana
A W/ac
8353 SIERRA AVENUE, FONTANA, CALIFORNIA 92335 (909) 350-7606 FAX (909) 350-6613 www.fhntana.org
31
OFFICE OF THE MAYOR
July 19, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, California 95814
RE: Public Safety Realignment Resolution
CITY OF GLENDORA CITY HALL (626) 914-8201
116 East Foothill Blvd., Glendora, California 91741
FAX (626) 914-8221
www.CLglendora.ca.Us
Dear President Bogaard:
On behalf of the City of Glendora, I am writing to express support for the League of California
Cities' Public Safety Resolution, which will be submitted for consideration by the League's
General Assembly at the September 2013 Annual Conference in Sacramento.
The League's Resolution. seeks to highlight a number of'deficiencies with the current public
safety realignment policy, and what funding and policy changes need to occur in response. The
resolution specifically calls out the need for ongoing local law enforcement funding related to
realignment, as well as modification of the criteria for which offenders are eligible for post -
release community supervision, i.e. a non-violent, non -serious, non -sex offender criteria that
focuses on total criminal history rather than merely the last recorded offense.
As a member of the League, our City values the policy development process provided to the
General Assembly. Please contact Chris Jeffers, City Manager, at cieffers a,ci.nlendora.ca.us or
(626) 914-8201, if you have any questions.
Sincerely,
City of Glendora
L
Joe Santoro
Mayor
PRIDE OF THE FOOTHILLS
32
City of MO ROVIA 1887
Office ni the Mayor and the City Council
July 19, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, California 95814
RE: PUBLIC SAFETY REALIGNMENT RESOLUTION
Dear President Bogaard:
As Mayor of the City of Monrovia, I am writing to express support for the League of
California Cities' Public Safety Resolution, which will be submitted fur consideration by
the League's General Assembly at the September 2013 Annual Conference in
Sacramento.
The League's Resolution seeks to highlight a number of deficiencies with the current
public safety realignment policy, and what funding and policy changes need to occur in
response. The resolution specifically calls out the need for ongoing local law
enforcement funding related to realignment, as well as modification of the criteria for
which offenders are eligible for post -release community supervision, i.e. a non-violent,
non -serious, non -sex offender criteria that focuses on total criminal history rather than
merely the last recorded offense.
As a member of the League, our City values the policy development process provided
to the General Assembly. Please contact Laurie Lile, City Manager, at (626) 932-5501,
if you have any questions.
Sincerely.,
Mary Ann utz
Mayor
cc: City Council
James Hunt, Police Chief
415 South Ivy Avenue • Monrovia, California 91016-2888 • (626) 932-5550 • FAX (626) 932-5520
33
Ia' 400 IF'
r rF&
303 EAST "B" STREET, CIVIC CENTER ONTARIO �kroav - b% CALIFORNIA 01754-4105 (909) 395-2000
FAX (909) 395-2070
PAUL S. LEON
MAYOR
JIM W. BOWMAN
MAYCAi PRO Tf:M
ALAN D. WAPNER
DEBRA DORST-PORADA
PAUL VINCENT AVILA
COUNCIL MEMBERS
Bill Bogaard, President
League of California Cities
1409 K Street, Suite 400
Sacramento, California 95814
RE: Public Safety Realignment Resolution
Dear President Bogaard:
July 18, 2013
CHRIS HUGHES
cif' MANAGER
MARY E. WIRTES, MMC
cm CLERK
JAMES R. MILHISEA
TREASURER
On behalf of the City of Ontario, 1 am writing to express support for the League of' California Cities'
Public Safety Resolution, which will be submitted for consideration by the League's General Assembly at
the September 2013 Annual Conference in Sacramento.
The League's Resolution seeks to highlight a number of deficiencies with the current public safety
realignment policy, and what funding and policy changes need to occur in response. The resolution
specifically calls out the need for ongoing local law enforcement funding related to realignment, as well
as modification of the criteria for which offenders arc eligible for post -release community supervision;
i.e., n non-violent, non -serious, non -sex offender criteria that focuses on total criminal history rather than
merely the last recorded offense.
As a member of the League, our City values the policy development process provided to the General
Assembly. Please contact Chris Hughes, City Manager, at (909) 395-2010, if you have any questions.
Sincerely,
PAUL S. LEON
Mayor
www.ci.orttario.ca.us
34
® Printed on recycled paper
From the Office of the Mayor
Shelly Higginbotham
760 Matte Road
Pismo Beach, CA 93449
(805) 235-6604
shigginbotham6Qpismobeach. org
July 18, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, California 95814
RE: Public Safety Realignment Resolution
Dear President Bogaard:
On behalf of the City of Pismo Beach, I am writing to express support for the League of
California Cities' Public Safety Resolution, which will be submitted for consideration by
the League's General Assembly at the September 2013 Annual Conference in
Sacramento.
The League's Resolution seeks to highlight a number of deficiencies with the current
public safety realignment policy, and what funding and policy changes need to occur in
response. The resolution specifically calls out the need for ongoing local law
enforcement funding related to realignment, as well as modification of the criteria for
which offenders are eligible for post -release community supervision, i.e. a non-violent,
non -serious, non -sex offender criteria that focuses on total criminal history rather than
merely the last recorded offense.
As a member of the League, our City values the policy development process provided
to the General Assembly. Please contact James R. Lewis, City Manager, at (805) 773-
7007, if you have any questions.
Sincerely,
c--...
Shelly
Mayor
ginbdtham
35 /p
Helene Schneider
Mayor
City Hal!
735 Anacapa Street
Santa Barbara, CA
93101-1990
Mailing Address:
P.O. Box 1990
Santa Barbara, CA
93102-1990
Tel: 505.564.5323
Fax:605.564.5475
City of Santa Barbara
Office of Mayor
July 19, 2013
Bill Bogaard, President
League of California Cities
1400 K Street, Suite 400
Sacramento, California 95814
RE: Public Safety Realignment Resolution
hlSchneider@SantaBarbaraCA.gov
www.SantaBarbareCA.gov
Dear President Bogaard:
On behalf of the City of Santa Barbara, 1 am writing to express support for the League of
California Cities' Public Safety Resolution, which will be submitted for consideration by the
League's General Assembly at the September 2013 Annual Conference in Sacramento.
The League's Resolution seeks to highlight a number of deficiencies with the current public
safety realignment policy, and what funding and policy changes need to occur in response. The
resolution specifically calls out the need for ongoing local law enforcement funding related to
realignment, as well as modification of the criteria for which offenders are eligible for post -
release community supervision, i.e. a non-violent, non -serious, non -sex offender criteria that
focuses on total criminal history rather than merely the last recorded offense.
It is important to our City, that such state -mandated programs remain fully -funded and that the
regulations do not impede our law enforcement officers' ability to use their professional
discretion in protecting our community.
As a member of the League, our City values the League's leadership and policy direction on
this issue.
Sincerely,
Helene Schneider,
Mayor
cc: Dave Mullinax, League of California Cities
..ase c ons`u!er the environment before printing this letter.
36
PREPARED BY:
PHONE:
COMMUNITY DEVELOPMENT COMMISSION
HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY
AGENDA STATEMENT
IIEETING DATE: August 20, 2013 AGENDA ITEM NO. 24
ITEM TITLE:
Resolution of the Community Development Commission of the City of National City approving the
Section 8 Management Assessment Program (SEMAP) for Fiscal Year ending June 30, 2013 and
authorizing the submittal of the SEMAP to the U.S. Department of Housing and Urban Development.
Hermi Oliveria ft/
Housing Programs Manager
619 336-4259
EXPLANATION:
See attached report.
DEPARTMENT: Housing, Grants and Asset Mgmt.
APPROVED BY:
FINANCIAL STATEMENT:
ACCOUNT NO. N/A
ENVIRONMENTAL REVIEW:
N/A
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
APPROVED: Finance
APPROVED. MIS
STAFF RECOMMENDATION:
1. ADOPT Resolution approving the Section 8 Management Assessment Program (SEMAP); and
2. AUTHORIZE the submittal of the SEMAP to the U.S. Department of Housing and Urban Development.
BOARD / COMMISSION RECOMMENDATION:
Not applicable
ATTACHMENTS:
1. Background Report
2. Resolution
3. SEMAP Report
Community Development Commission —
Housing Authority of the City of National City
August 20, 2013
Background Report:
On September 10, 1998, the U.S. Department of Housing and Urban Development
(HUD) published its final rule for the Section 8 Management Assessment Program
(SEMAP), which took effect on October 13, 1998. SEMAP provides for the objective
measurement of the performance of a Public Housing Agency (PHA) in key areas of the
Section 8 Tenant -based Rental Assistance Program. SEMAP enables HUD to ensure
program integrity and accountability identifying PHA management capabilities and
deficiencies and by improving risk assessment to effectively target monitoring and
program assistance. PHAs' can use SEMAP performance analysis to assess their own
program operations.
The SEMAP Indicators Report provides information on families participating in the
Section 8 Housing Choice Voucher Program. The report is one of the several inputs
used to derive a score and rating for PHAs as it relates to SEMAP certification. The
SEMAP requires a PHA who administers Section 8 Tenant -based Rental Assistance
Programs to submit annually a SEMAP certification form.
On July 17, 2013, the Community Development Commission — Housing Authority of the
City of National City submitted its SEMAP certification report to HUD.
The Section 8 Rental Assistance Program has a current lease -up rate of 98%. With
National City's population of 58,582, there are 1,125 low-income families that are
currently receiving rental assistance through the program and 4,107 waiting to be
assisted. With the current Federal Sequestration, the PHA is not processing any
additional participants on the program and is reducing its program size through attrition.
Below is the breakdown of participants and applicants to the program as of July 1, 2013.
(see next page)
RACE
PARTICIPANTS
APPLICANTS
White
918
3010
Black/African American
67
376
American Indian / Alaska
Native
6
22
Asian
126
611
Native Hawaiian / other
Pacific Islander
8
88
TOTAL
1125
4107
ETHNICITY
PARTICIPANTS
APPLICANTS
Hispanic
851
2837
Non Hispanic
274
1270
TOTAL
1125
4107
Elderly
566
1108
Disabled
210
1116
Families with Children
349
1883
TOTAL
1125
4107
2
SEMAP Certification
Page 1 of 3
,S�sarriet
Prr;#ilk _.
List
Field Office:
Reports
Get Help 0 l_ogoff / Return to Secure Systems
Submission 1
Summary
Certification
9DPH LOS ANGELES HUB OFFICE
Hermi Oliveria
(M98564) Housing Agency: CA116 National City
PIC Main PHA Fiscal Year End: 6/30/2013
SEMAP
Logof f
Profile Comments
OMB Approval No. 2577-0215
SEMAP CERTIFICATION (Page 1)
Public reporting burden for this collection of information is estimated to average 12 hours per
response, including the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing the collection of
information.This agency may not conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB control number.
This collection of information is required by 24 CFR sec 985.101 which requires a Public
Housing Agency (PHA) administering a Section 8 tenant -based assistance program to submit an
annual SEMAP Certification within 60 days after the end of its fiscal year. The information from
the PHA concerns the performance of the PHA and provides assurance that there is no
evidence of seriously deficient performance. HUD uses the information and other data to assess
PHA management capabilities and deficiencies, and to assign an overall performance rating to
the PHA. Responses are mandatory and the information collected does not lend itself to
confidentiality.
Check here if the PHA expends less than $300,000 a year in federal awards
Indicators 1 - 7 will not be rated if the PHA expends less than $300,000 a year in Federal awards
and its Section 8 programs are not audited for compliance with regulations by an independent
auditor. A PHA that expends less than $300,000 in Federal awards in a year must still complete
the certification for these indicators.
Performance Indicators
1 Selection from Waiting List (24 CFR 982.54(d)(1) and 982.204(a))
a. The HA has written policies in its administrative plan for selecting applicants from the
waiting list,
PHA Response u Yes No
b. The PHA's quality control samples of applicants reaching the top of the waiting list and
admissions show that at least 98% of the families in the samples were selected from the waiting
list for admission in accordance with the PHA's policies and met the selection criteria that
determined their places on the waiting list and their order of selection.
PHA Response v Yes No
2 Reasonable Rent (24 CFR 982.4, 982.54(d)(15), 982.158(f)(7) and 982.507)
a. The PHA has and implements a reasonable written method to determine and document for
each unit leased that the rent to owner is reasonable based on current rents for comparable
unassisted units (i) at the time of initial leasing, (ii) before any increase in the rent to owner, and
(iii) at the HAP contract anniversary if there is a 5 percent decrease in the published FMR in
effect 60 days before the HAP contract anniversary. The PHA's method takes into
consideration the location, size, type, quality, and age of the program unit and of similar
https://hudapps.hud. gov/pic/semap/smpassessmentcertification. asp 7/11 /2013
SEMAP Certification Page 2 of 3
unassisted units and any amenities, housing services, maintenance or utilities provided by the
owners.
PHA Response u Yes No
b. The PHA's quality control sample of tenant files for which a determination of reasonable
rent was required to show that the PHA followed its written method to determine reasonable
rent and documented its determination that the rent to owner is reasonable as required for
(check one):
PHA Response 0 At least 98% of units sampled 80 to 97% of units sampled
Less than 80% of units sampled
3 Determination of Adjusted Income (24 CFR part 5, subpart F and 24 CFR 982.516)
The PHA's quality control sample of tenant files show that at the time of admission and
reexamination, the PHA properly obtained third party verification of adjusted income or
documented why third party verification was not available; used the verified information in
determining adjusted income; properly attributed allowances for expenses; and, where the
family is responsible for utilities under the lease, the PHA used the appropriate utility
allowances for the unit leased in determining the gross rent for (check one):
PHA Response u At least 90% of files sampled 80 to 89% of files sampled
Less than 80% of files sampled
4 Utility Allowance Schedule (24 CFR 982.517)
The PHA maintains an up-to-date utility schedule. The PHA reviewed utility rate data that it
obtained within the last 12 months, and adjusted its utility allowance schedule if there has been
a change of 10% or more in a utility rate since the last time the utility allowance schedule was
revised.
PHA Response o Yes No
5 HQS Quality Control (24 CFR 982.405(b))
The PHA supervisor (or other qualified person) reinspected a sample of units during the PHA
fiscal year, which met the minimum sample size required by HUD (see 24 CFR 985.2), for
quality control of HQS inspections. The PHA supervisor's reinspected sample was drawn from
recently completed HQS inspections and represents a cross section of neighborhoods and the
work of cross section of inspectors.
PHA Response a Yes No
6 HQS Enforcement (24 CFR 982.404)
The PHA's quality control sample of case files with failed HQS inspections shows that, for all
cases sampled, any cited life -threatening HQS deficiencies were corrected within 24 hours from
the inspection and, all other cited HQS deficiencies were corrected within no more than 30
calendar days from the inspection or any PHA -approved extension, or, if HQS deficiencies were
not corrected within the required time frame, the PHA stopped housing assistance payments
beginning no later than the first of the month following the correction period, or took prompt and
vigorous action to enforce the family obligations for (check one):
PHA Response .+ At least 98% of cases sampled Less than 98% of cases sampled
7 Expanding Housing Opportunities.
(24 CFR 982.54(d)(5), 982.153(b)(3) and (b)(4), 982.301(a) and 983.301(b)(4) and (b)(12))
Applies only to PHAs with jurisdiction in metropolitan FMR areas
https://hudapps.hud. gov/pi c/semap/smpassessmentcertification.asp 7/11 /2013
SEMAP Certification Page 3 of 3
Check here if not applicable
a. The PHA has a written policy to encourage participation by owners of units outside areas of
poverty or minority concentration which clearly delineates areas in its jurisdiction that the PHA
considers areas of poverty or minority concentration, and which includes actions the PHA will
take to encourage owner participation.
PHA Response Yes No
b. The PHA has documentation that shows that it took actions indicated in its written policy to
encourage participation by owners outside areas of poverty and minority concentration.
PHA Response Yes No
c. The PHA has prepared maps that show various areas, both within and neighboring its
jurisdiction, with housing opportunities outside areas of poverty and minority concentration; the
PHA has assembled information about job opportunities, schools and services in these areas;
and the PHA uses the maps and related information when briefing voucher holders.
PHA Response Yes No
d. The PHA's information packet for certificate and voucher holders contains either a list of
owners who are willing to lease, or properties available for lease, under the voucher program,
or a list of other organizations that will help families find units and the list includes properties or
organizations that operate outside areas of poverty or minority concentration.
PHA Response Yes No
e. The PHA's information packet includes an explanation of how portability works and includes
a list of neighboring PHAs with the name, address and telephone number of a portability
contact person at each.
PHA Response Yes No
f, The PHA has analyzed whether voucher holders have experienced difficulties in finding
housing outside areas of poverty or minority concentration and, where such difficulties were
found, the PHA has considered whether it is appropriate to seek approval of exception payment
standard amounts in any part of its jurisdiction and has sought HUD approval when necessary.
PHA Response Yes No
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Housing Agency: CA116 National City,
PHA Fiscal Year End: 6/30/2013
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SEMAP CERTIFICATION (Page 2)
Performance Indicators
8 Payment Standards(24 CFR 982.503)
The PHA has adopted current payment standards for the voucher program by unit size for each FMR area in
the PHA jurisdiction and, if applicable, for each PHA -designated part of an FMR area, which do not exceed
110 percent of the current applicable FMR and which are not less than 90 percent of the current FMR (unless
a lower percent is approved by HUD). (24 CFR 982.503)
PHA Response v Yes No
FMR Area Name San Diego FMR 1 of 1
Enter current FMRs and payment standards (PS)
0-BR FMR 959 1-BR FMR 1054 2-BR FMR 1382 3-BR FMR 2009 4-BR FMR 2448
PS 922 PS 1052 PS 1277 PS 1861 PS 2244
Save I ; Add i Delete
If the PHA has jurisdiction in more than one FMR area, and/or if the PHA has established separate payment
standards for a PHA -designated part of an FMR area, add similar FMR and payment standard comparisions
for each FMR area and designated area.
9 Timely Annual Reexaminations(24 CFR 5.617)
The PHA completes a reexamination for each participating family at least every 12 months.(24 CFR 5.617)
PHA Response o Yes No
10 Correct Tenant Rent Calculations(24 CFR 982, Subpart K)
The PHA correctly calculates tenant rent in the rental certificate program and the family rent to owner in the
rental voucher program (24 CFR 982,Subpart K)
PHA Response a Yes No
11 Pre -Contract HQS Inspections(24 CFR 982.305)
Each newly leased unit passes HOS inspection before the beginning date of the assisted lease and HAP
contract.(24 CFR 982.305)
PHA Response u Yes No
12 Annual HQS Inspections(24 CFR 982.405(a))
The PHA inspects each unit under contract at least annually (24 CFR 982.405(a))
PHA Response v Yes No
13 Lease -Up
The PHA executes assistance contracts on behalf of eligible families for the number of units that has been
under budget for at least one year. The PHA executes assistance contracts on behalf of eligible families for
the number of units that has been under budget for at least one year
PHA Response v Yes No
14 Family Self -Sufficiency (24 CFR 984.105 and 984.305)
14a.Family Self -Sufficiency Enrollment. The PHA has enrolled families in FSS as
required.
Applies only to PHAs required to administer an FSS program.
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SEMAP Certification Page 2 of 2
Check here if not applicable
a. Number of mandatory FSS slots (Count units funded under the FY 1992 FSS
incentive awards and in FY 1993 and later through 10/20/1998. Exclude units funded in
connection with Section 8 and Section 23 project -based contract terminations; public
housing demolition, disposition and replacement; HUD multifamily property sales;
prepaid or terminated mortgages under section 236 or section 221(d)(3); and Section 8
renewal funding. Subtract the number of families that successfully completed their
contracts on or after 10/21/1998.)
Or, Number of mandatory FSS slots under HUD -approved exception (If not
applicable, leave blank)
b. Number of FSS families currently enrolled
c. Portability: If you are the initial PHA, enter the number of families currently enrolled in
your FSS program, but who have moved under portability and whose Section 8
assistance is administered by another PHA
Percent of FSS slots filled (b+c divided by a) (This is a nonenterable field. The
system will calculate the percent when the user saves the page)
14b. Percent of FSS Participants with Escrow Account Balances.The PHA has made
progress in supporting family self-sufficiency as measured by the percent of currently
enrolled FSS families with escrow account balances.(24 CFR 984.305)
Applies only to PHAs required to
administer an FSS program
Check here if not applicable ✓
PHA
Response Yes No
Portability: If you are the initial PHA, enter the number of families with FSS escrow
accounts currently enrolled in your FSS program, but who have moved under portability
and whose Section 8 assistance is administered by another PHA
15 Deconcentration Bonus
The PHA is submitting with this certification data which show that :
(1) Half or more of all Section 8 families with children assisted by the PHA in its principal operating area
resided in low poverty census tracts at the end of the last PHA FY;
(2) The percent of Section 8 mover families with children who moved to low poverty census tracts in the
PHA's principal operating area during the last PHA FY is atleast two percentage points higher than the
percent of all Section 8 families with children who resided in low poverty census tracts at the end of the last
PHA FY; or
(3) The percent of Section 8 mover families with children who moved to low poverty census tracts in the
PHA's principal operating area over the last two PHA FY is at least two percentage points higher than the
percent of all Section 8 families with children who resided in low poverty census tracts at the end of the
second to lass PHA FY.
PHA Response Yes o No
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General - 07/11/2013 - Hermi Oliveria(PHA y Indicator #15 Edit Delete
The Housing Authority of the City of National City is in a high poverty operating area.
General - 07/11/2013 - Herml Oliveria(PHA) Indicator #14 Edit Delete
The Housing Authority of the City of National City does not operate a FSS program.
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RESOLUTION NO. 2013 —
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION -
HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY APPROVING
THE SECTION 8 MANAGEMENT ASSESSMENT PROGRAM (SEMAP) FOR
FISCAL YEAR ENDING JUNE 30, 2013, AND AUTHORIZING
THE SUBMITTAL OF THE ANNUAL SEMAP TO THE U.S. DEPARTMENT
OF HOUSING AND URBAN DEVELOPMENT
WHEREAS, on September 10, 1998, the U.S. Department of Housing and Urban
Development ("HUD") published its final rule for the Section 8 Management Assessment
Program ("SEMAP"), which took effect on October 13, 1998; and
WHEREAS, SEMAP provides for the objective measurement of the performance
of a Public Housing Agency ("PHA") in key areas of the Section 8 Tenant -based Rental
Assistance Program; and
WHEREAS, the SEMAP requires a PHA who administers Section 8 Tenant -
based Rental Assistance Programs to annually submit a SEMAP certification form.
NOW, THEREFORE, BE IT RESOLVED that the Community Development
Commission — Housing Authority of the City of National City hereby approves the Section 8
Management Assessment Program.
BE IT FURTHER RESOLVED that the Community Development Commission —
Housing Authority of the City of National City hereby authorizes the submittal of the SEMAP
certification form to the U.S. Department of Housing and Urban Development.
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Chairman
ATTEST:
Leslie Deese, Secretary
APPROVED AS TO FORM:
Claudia Gacitua Silva
City Attorney
COMMUNITY DEVELOPMENT COMMISSION -
HOUSING AUTHORITY OF THE CITY OF NATIONAL CITY
MEETING DATE: August 20, 2013
AGENDA ITEM NO. 25
ITEM TITLE:
Resolution of the Community Development Commission -Housing Authority of the City of National City Authorizing the
Chairman to execute a Purchase and Sale Agreement with the City of National City for the purchase of two parcels totaling
6.299 acres, generally bounded by 19th Street, Harding Avenue, 22nd street, and Hoover Avenue, in the City of National
City for the development of 201 affordable housing units as Phase I and II of the Westside In -fill Transit Oriented
Development Project, accepting a Home allocation of $2,095,492 from the City of National City, authorizing the use of the
Home allocation for the partial payment of the property purchase, authorizing the executive director or designee to execute
a Promissory Note for $4,941,000 payable to the City of National City to complete said purchase, and approving a Month -
to -Month Leaseback to the City of National City of said property
PREPARED BY: Carlos Aguirre, Comm. Dev. Spec. II'
PHONE: 619.336.4391
EXPLANATION:
Please see attached background report and explanation.
DEPARTMENT: Housing, Grants,&
Asset Management
APPROVED 134A:17-.11,4e.51
FINANCIAL STATEMENT: APPROVED: Finance
ACCOUNT NO. APPROVED: MIS
CDC -HA will be reallocated $2,095,492 in HOME funds of which $2,094,000 will be used in the
acquisition. The City will carry back a loan of $4,941,000.
ENVIRONMENTAL REVIEW:
The Certified Environmental Impact Report for the Westside Specific Plan analyzed a transit oriented
development for this site. Authority to Use Grant Funds was issued by the U.S. Dept. of HUD.
ORDINANCE: INTRODUCTION:
FINAL ADOPTION:
STAFF RECOMMENDATION:
'Adopt the Resolution
BOARD / COMMISSION RECOMMENDATION:
The Planning Commission approved the Tentative Parcel Map and Variance on June 5, 2012 and approved a Parcel Map
Waiver on May 20, 2013 that included findings of consistency with the General Plan for the WITOD Project.
ATTACHMENTS:
1. Background Report and Explanation
2. Purchase and Sale Agreement
3. Promissory Note and Grant Deed
4. Month -to -Month Lease
Attachment No. 1
Background Report and Explanation
The Westside Infill Transit Oriented Development (WI-TOD), also known as the Paradise
Creek Affordable Housing Project, is a proposed 201-unit affordable housing
development on the east side of Paradise Creek, and the expansion of Paradise Creek
Educational Park on the west side of the creek. The proposed project is based on a
concept that was developed through a neighborhood and stakeholder design participation
process and incorporated into the Westside Specific Plan, which was adopted in 2010.
The current proposed project design was developed with continuing public input and
participation through stakeholder and community meetings.
Development Agreement. After adoption of the Westside Specific Plan, a request for
proposals was issued, and the applicant was selected to develop the site. The applicant
entered into a Disposition and Development Agreement with the Community
Development Commission to develop the project. The agreement is an enforceable
obligation of the Successor Agency to the Community Development Commission (SA).
The entire site is owned by the City; however, the housing portion of the site will be
transferred to the Housing Authority. Pursuant to the Disposition and Development
Agreement, the developer will be required to enter into a long-term ground lease for the
housing site and will manage and operate the housing development, including resident
services and programs. The Community Development Commission -Housing Authority
will retain ownership of the housing site.
Housing Development. The housing development side of the project would consist of two
phases on the east side of Paradise Creek. The first phase would be built on
approximately four acres on the southern portion of the site and would include 109 units
within two buildings and a separate residential services building. The second phase
would be built on approximately two acres on the northern portion of the site and would
include 92 units within two buildings. The anticipated unit mix would include studios, one -
bedroom, two -bedroom, and three -bedroom units on three to four levels within the four
residential buildings. The residential buildings would generally be oriented along 22nd
Street and Hoover Avenue and set back from Paradise Creek with open space along the
creek boundary.
Park Development. The park development side of the project would add nearly four acres
to Paradise Creek Educational Park on the west side of the creek. Paradise Creek
Housing Partners is required to construct the park improvements pursuant to the
Disposition and Development Agreement. The proposed improvements would include a
naturalized planting buffer along Paradise Creek, a lawn area, a community garden, a
playground, a plaza, picnic tables, a pedestrian/bicycle path along the length of the creek,
and tree and shrub plantings along the western edge of the park. Park ownership would
be maintained by the City.
Certificate of Compliance. Consistent with the Parcel Map Waiver approved by the
National City Planning Commission on May 20, 2013 for the WITOD Project, the City of
National City can file a Certificate of Compliance that creates new legal parcels for the
1
Attachment No. 1
development. The entire project site consisted of nine parcels and portions of adjacent
rights -of -way; the Certificate of Compliance divides seven of the parcels into four parcels
to allow the development of the housing on the east side of Paradise Creek and the park
on the west side of the creek. The parcel map consists of 10.27 acres. Parcel 1 is 4.14
acres and would be developed with 109 units and the residential services building as
Phase I of the housing project. Parcel 2 is 2.16 acres and would be developed with 92
units in Phase II. Parcel 3 is 1.33 acres and would be developed with park improvements.
Proposed Parcel 4 is 2.60 acres and would delineate Paradise Creek and Paradise Creek
Educational Park. The Certificate of Compliance creates developable parcels that are
configured based on the proposed phasing of the WITOD project and to allow the leasing
of the parcels pursuant to the Disposition and Development Agreement.
Reallocation of HOME Funds. The City of National City is a Project Jurisdiction that
receives an annual entitlement grant allocation of HOME Investment Partnership (HOME)
Program funds from the U.S. Department of Housing and Urban Development for the
preservation and development of affordable housing in National City. The City allocated
$95,492 of HOME funds in Fiscal Year 2011 and $2,000,000 in Fiscal Year 2013 to
Community HousingWorks on behalf of Paradise Creek Housing Partners, L.P. to fund
predevelopment activities related to the development of 109 affordable housing units
included in Phase I of the Westside In -fill Transit Oriented Development Project.
Community HousingWorks has consented to the reallocation of said HOME funds to the
Community Development Commission -Housing Authority ("CDC -HA") for the purpose of
acquiring the 4.14 acre parcel (Parcel 1) of land designated for 109 newly constructed
affordable rental units at the corner of 22nd and Hoover Avenue. The CDC -HA has
submitted an application to the City of National City for the reallocation of a total of
$2,095,492 in HOME funds for the acquisition of land and development activities eligible
under the HOME program.
Acquisition of Parcels 1 and 2 by the CDC- Housing Authority. The City is the current
owner of Parcel 1 and 2 totaling 6.3 acres, generally bounded by 19th Street, Harding
Avenue, 22nd Street, and Hoover Avenue at WITOD development site. The Successor
Agency to the Community Development Commission as the National City Redevelopment
Agency (SA) is subject to the enforceable obligation commonly referred to as the Westside
lnfill Transit Oriented Development Development and Disposition Agreement (DDA),
entered into June 21, 2011 with Paradise Creek Housing Partners, LP (Developer). The
sale of Parcel 1 and 2 to the CDC -HA is being undertaken so that the SA can fulfill its
enforceable obligations pursuant to the requirements of the WITOD DDA. The CDC -HA has
accepted the affordable housing functions of the former redevelopment agency. Appraisals
completed within the last 60 days indicated a value of $3.815 million for Parcel I and $3.22
million for Parcel 2 for a total value of the Property of $7.035 million. The CDC -HA intends
to use $2,094,000 in HOME funds to acquire Parcel I and the CDC -HA has also requested
a loan in the amount of $4,941,000 from the City in order to provide full consideration for the
market value of Parcel 1 and 2.
2
Attachment No. 1
Leaseback of Public Works Yard to the City. Parcel 1 and Parcel 2 will continue to be
occupied by the National City Public Works Department, and the CDC -HA will provide a
month -to -month lease agreement for $1.00 per month until the operation is relocated to
allow for environmental remediation and the development of affordable housing on the site.
Relocation of Public Works Yard and the Purchase of 1726 Wilson Avenue. As part of
the WI-TOD DDA, National City Public Works ("PW') operations at 2100 Hoover Avenue
will need to relocate to other sites in order for the Successor Agency to complete
environmental remediation and develop 201 affordable housing units on Parcel 1 and
Parcel 2. The City's relocation plans for PW have accommodated for a substantial part of
PW operations within existing City facilities. The City still needs to secure a facility that can
house the following PW functions: streets/sewer, vehicle maintenance and storage, and
office space. The City reviewed options for relocation but alternatives that have been
considered are not readily available or do not fully satisfy PW's operational requirements
and do not fall within the timeline for implementing the WI-TOD development. The City
entered into a letter of intent to purchase a 1.17 acre site which fits the needs of PW and
provides 6430 sq. ft. of useable building area including office space and a repair shop
with two large entry bays. The property is commonly known as 1726 Wilson Avenue in
National City. The owners of the 1726 Wilson Avenue site are willing to sell their property
have accepted an offer by the City to purchase the property at a negotiated price of
$1,650,000.
Attachment No. 2
PURCHASE AND SALE AGREEMENT
(Westside TOD Affordable Site, National City, 91950)
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated as of the 20th day
of August, 2013 ("Effective Date") by and between City of National City ("Seller") and the
Community Development Commission -Housing Authority of the City of National City
("Purchaser").
RECITALS
A. The Seller owns the fee interest in that certain parcel of real property legally
described in Exhibit A attached hereto ("Parcel 1") and the fee interest in that certain parcel of
real property legally described in Exhibit B attached hereto ("Parcel 2"). Parcel 1 and Parcel 2,
are defined hereinbelow, collectively as the "Real Property." The Real Property is generally
bounded by 19th Street, Harding Avenue, 22"d Street and Hoover Avenue in National City,
California.
B. The successor agency to the Community Development Commission as the
National City Redevelopment Agency ("Successor Agency") is subject to the enforceable
obligation commonly referred to as the Westside Infill Transit Oriented Development (WI-TOD)
Development and Disposition Agreement ("DDA"), entered into June 21, 2011 with Paradise
Creek Housing Partners, LP. The DDA requires the Real Property to be acquired for and
developed into a 201 unit affordable housing project. The Purchaser's purchase of Parcel 1 and
Parcel 2 is being undertaken pursuant to the requirements of the DDA and as an enforceable
obligation of the Successor Agency. The Purchaser accepted the affordable housing functions of
the former redevelopment agency pursuant to resolution number 2012-01. The value of the
consideration for the Real Property (i.e., the Parcel 1 Purchase Price for Parcel 1 and the Parcel 2
Purchase Price for Parcel 2), is not less than the appraised value of the Real Property. The
consideration being paid for Parcel 1 is the Parcel 1 Purchase Price of Three Million Eight
Hundred Fifteen Thousand and No/100 Dollars ($3,815,000.00), which equals the appraised
value of Parcel 1 as determined by that certain Land Appraisal performed by Lea & Company
effective as of June 27, 2013, but dated June 30, 2013. The consideration being paid for Parcel
2 is the Parcel 2 Purchase Price of Three Million Two Hundred Twenty Thousand and No/100
Dollars ($3,220,000.00), which equals the appraised value of Parcel 2 as determined by that
certain Land Appraisal performed by Lea & Company effective as of June 27, 2013, but dated
June 30, 2013. Provided the various conditions to Closing (as defined below) set forth in this
Agreement are satisfied, the Seller agrees to sell the Property (as defined below) to the Purchaser
and the Purchaser agrees to purchase the Property from the Seller as set forth in this Agreement.
C. The Purchaser is acquiring Parcel 1 in part utilizing United States Department of
Housing and Urban Development HOME funds. After Closing, the Seller will temporarily lease
the Property back from the Purchaser on a month -to -month basis for a total consideration of
$1.00 per month. After the Seller vacates the Property, the Purchaser shall cause Parcel 1 to be
developed as the "Phase 1 Project," as defined in the DDA, which shall be an affordable rental
housing project for persons and families of very low and low income. Construction and
operation of the Phase 1 Project shall be governed by all applicable United States Department of
1
Attachment No. 2
Housing and Urban Development regulations whether or not specifically referenced in this
Agreement. Failure of the Purchaser to cause Parcel 1 to be developed as an affordable rental
housing project for persons and families of very low and low income shall be a default
hereunder. This obligation shall not be merged into the Grant Deed and shall survive the
Closing.
AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
are acknowledged, the Seller and the Purchaser hereby agree as follows:
1. Purchase, Sale and Leaseback. In consideration of the mutual covenants set forth in this
Agreement, the Purchaser will acquire all of the Property, on the terms and conditions set forth
herein, provided the various conditions to Closing set forth in this Agreement are satisfied.
(a) Sale of the Property. The Seller agrees to sell the Property to the Purchaser, and
the Purchaser agrees to purchase the Property from Seller, on the terms and conditions set forth
herein. At Closing, the Seller shall convey the fee interest in the Real Property to the Purchaser
by recordation of the Grant Deed (as defined below). The Escrow Agent shall issue the Title
Policy (as defined below) to the Purchaser at Closing.
(b) Possession of the Property, Leaseback. The Seller shall deliver possession of the
Property to Purchaser at Closing, subject only to the Title Exceptions, all as defined hereinbelow.
Notwithstanding the foregoing, after Closing the Purchaser will allow the Seller to lease the
Property from the Purchaser on a month -to -month basis for a total consideration of $1.00 per
month, as set forth in the Lease.
2. Definitions. As used in this Agreement, the following terms shall have the following
meanings:
"Agreement" means this Purchase and Sale Agreement between the Seller and the
Purchaser.
"Applicable Environmental Law" means all laws applicable to the presence of any
Hazardous Materials (as defined below) on or within the Property, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §9601,
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901, et seq.); the Clean
Water Act (33 U.S.C. §2601, et seq.); the Safe Drinking Water Act (14 U.S.C. §300f, et seq.);
the Hazardous Materials Transportation Act (49 U.S.C. §5101, et seq.); the Toxic Substances
Control Act (15 U.S.C. §2601, et seq.); the Federal Water Pollution Control Act (33 U.S.C.
§1300, et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136, et seq.);
the Atomic Energy Act (42 U.S.C. §2011, et seq.); the Nuclear Waste Policy Act (42 U.S.C.
§10101, et seq.); the Clean Air Act (42 U.S.C. §7401, et seq.); the California Hazardous Waste
Control Act (California Health and Safety Code §25100, et seq.); the Carpenter -Presley -Tanner
Hazardous Substance Account Act (California Health and Safety Code §25300, et seq.); the Safe
Drinking Water and Toxic Enforcement Act ("Proposition 65") (California Health and Safety
2
Attachment No. 2
Code §25249.5, et seq.); and the Porter -Cologne Water Quality Control Act (California Water
Code § 13000, et seq.); and any similar federal, state or local laws, all regulations and
publications implementing or promulgated pursuant to the foregoing, as any of the foregoing
may be amended or supplemented from time to time.
"Business Day" means any day other than a Saturday, Sunday or any other day on which
Purchaser or Escrow Agent is not open for business. In the event any date, deadline or due date
set forth in this Agreement falls on a day that is not a Business Day, then such deadline or due
date shall automatically be extended to the next Business Day.
"Close" or "Closing" means the close of Escrow as provided herein, which shall not be
later than the last day of the Due Diligence Period.
"Closing Date" means the date on which the Closing occurs, which date shall be August
28, 2013.
"Conditions Precedent for the Benefit of the Seller" shall have the meaning set forth in
Section 5 of this Agreement.
"Conditions Precedent for the Benefit of the Purchaser" shall have the meaning set forth
in Section 6 of this Agreement.
"Deposit" shall have the meaning set forth in Section 3(b)(1) of this Agreement.
"Due Diligence Period" means the period of time commencing on the Effective Date and
ending on July 15, 2013.
"Effective Date" is defined above.
"Escrow" means the escrow depository and disbursement services to be performed by
Escrow Agent pursuant to the provisions of this Agreement.
"Escrow Agent" means Carla Burchard at Stewart Title Company, 5740 Fleet Street,
Suite 100, Carlsbad, California 92008.
"Grant Deed" means a duly executed and acknowledged grant deed conveying fee simple
title to the Real Property from the Seller to the Purchaser, in the form attached hereto as Exhibit
B.
"Hazardous Materials" means:
(1) Those substances included within the definitions of "hazardous substance,"
"hazardous waste," "hazardous material," "toxic substance," "solid waste," "pollutant" or
"contaminant" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. §9601 et seq.); the Resource Conservation and Recovery
Act (42 U.S.C. §6901 et seq.); the Clean Water Act (33 U.S.C. §2601 et seq.); the Toxic
3
Attachment No. 2
Substances Control Act (15 U.S.C. §9601 et seq.); the Hazardous Materials
Transportation Act (49 U.S.C. §1801 et seq.); or under any other Environmental Laws.
(2) Those substances included within the definitions of "Extremely Hazardous
Waste," "Hazardous Waste," or "Restricted Hazardous Waste," under §§25115, 25117 or
25122.7 of the California Health and Safety Code, or is listed or identified pursuant to
§§25140 or 44321 of the California Health and Safety Code.
(3) Those substances included within the definitions of "Hazardous Material,"
"Hazardous Substance," "Hazardous Waste," "Toxic Air Contaminant" or "Medical
Waste" under §§25281, 25316, 25501, 25501.1, 25023.2 or 39655 of the California
Health and Safety Code.
(4) Those substances included within the definitions of "Oil" or a "Hazardous
Substance" listed or identified pursuant to §311 of the Federal Water Pollution Control
Act, 33 U.S.C. § 1321, as well as any other hydrocarbonic substance or by-product.
(5) Those substances included within the definitions of "Hazardous Waste,"
Extremely Hazardous Waste" or an "Acutely Hazardous Waste" pursuant to Chapter 11
of Title 22 of the California Code of Regulations.
(6) Those substances listed by the State of California as a chemical known by the
State to cause cancer or reproductive toxicity pursuant to §25249.9(a) of the California
Health and Safety Code.
(7) Any material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures, damages or threatens to damage,
health, safety, or the environment, or is required by any law or public agency to be
remediated, including remediation which such law or public agency requires in order for
the property to be put to any lawful purpose.
(8) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field
Manual, whether or not the presence of such material resulted from a leaking
underground fuel tank.
(9) Pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. §136 et seq.
(10) Asbestos, PCBs, and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq.
(11) Any radioactive material including, without limitation, any "source
material," "special nuclear material," "by-product material," "low-level wastes,"
"high-level radioactive waste," "spent nuclear fuel" or "transuranic waste" and any other
radioactive materials or radioactive wastes, however produced, regulated under the
4
Attachment No. 2
Atomic Energy Act, 42 U.S.C. §§2011 et seq., the Nuclear Waste Policy Act, 42 U.S.C.
§§10101 et seq., or pursuant to the California Radiation Control Law, California Health
and Safety Code §§25800 et seq.
(12) Any material regulated under the Occupational Safety and Health Act, 29
U.S.C. §§651 et seq., or the California Occupational Safety and Health Act, California
Labor Code §§6300 et seq.
(13) Any material regulated under the Clean Air Act, 42 U.S.C. §§7401 et seq.
or pursuant to Division 26 of the California Health and Safety Code.
(14) Those substances listed in the United States Department of Transportation
Table (49 CFR Part 172.101), or by the Environmental Protection Agency, or any
successor agency, as hazardous substances (40 CFR Part 302).
(15) Other substances, materials, and wastes that are or become regulated or
classified as hazardous or toxic under federal, state or local laws or regulations.
(16) Any material, waste or substance that is a petroleum or refined petroleum
product, asbestos, polychlorinated biphenyl, designated as a hazardous substance
pursuant to 33 U.S.C. §1321 or listed pursuant to 33 U.S.C. §1317, a flammable
explosive or a radioactive material.
"Immediately Available Funds" means a bank wire transfer or a certified bank or
cashier's check.
"Improvements" means collectively: (i) any and all buildings, structures and
improvements, of any kind whatsoever, located at or affixed to the Real Property; (ii) all rights,
privileges and easements appurtenant to the Real Property, if any, including, without limitation,
all minerals, oil, gas and other hydrocarbon substances on and under the Real Property, if any;
and (iii) all development rights, air rights, and water rights if any, relating to the Real Property.
"Lease" means a lease in the form attached hereto as Exhibit C.
"Parcel 1" means that certain parcel of real property legally described in Exhibit A
attached hereto.
"Parcel 1 Purchase Price" means the purchase price to be paid by the Purchaser for Parcel
1, which shall be Three Million Eight Hundred Fifteen Thousand and No/100 Dollars
($3,815,000.00), which amount equals the appraised value of Parcel 1 as determined by that
certain Land Appraisal performed by Lea & Company effective as of June 27, 2013, but dated
June 30, 2013. A portion of the Parcel 1 Purchase Price only, is being paid by the Purchaser
utilizing Two Million Ninety -Four Thousand and No/100 Dollars ($2,094,000.00) of United
States Department of Housing and Urban Development HOME funds. None of the United States
Department of Housing and Urban Development HOME funds are being used to acquire Parcel
2. After the Seller vacates the Property, the Purchaser shall cause Parcel 1 to be developed as the
5
Attachment No. 2
"Phase 1 Project," as defined in the DDA, which shall be an affordable rental housing project for
persons and families of very low and low income. Construction and operation of the Phase 1
Project shall be governed by all applicable United States Department of Housing and Urban
Development regulations whether or not specifically referenced in this Agreement. The
Purchaser shall cause Parcel 1 to be restricted in accordance with the United States Department
of Housing and Urban Development HOME regulations (24 CFR Part 92).
"Parcel 2" means that certain parcel of real property legally described in Exhibit B
attached hereto.
"Parcel 2 Purchase Price" means the purchase price to be paid by the Purchaser for Parcel
2, which shall be Three Million Two Hundred Twenty Thousand and No/100 Dollars
($3,220,000.00), which amount equals the appraised value of Parcel 2 as determined by that
certain Land Appraisal performed by Lea & Company effective as of June 27, 2013, but dated
June 30, 2013.
"Permitted Exceptions" means collectively, the (i) the printed exceptions and exclusions
in the Title Policy; (ii) the exceptions shown as items A-E and 1-9 on that certain Preliminary
Report dated as of June 12, 2013, issued by Stewart Title of California, Inc., Order No. 01180-
50484; (iii) real property taxes and assessments which are a lien but not yet payable; and (iv) all
applicable building, zoning and use restrictions and/or regulations of any municipality, township,
county or state.
"Property" means collectively, the Real Property and the Improvements.
"Purchase Price" means collectively, the Parcel 1 Purchase Price and the Parcel 2
Purchase Price, which total Seven Million . Thirty -Five Thousand and No/100 Dollars
($7,035,000.00).
"Purchaser" means the Community Development Commission -Housing Authority of the
City of National City; provided, however, if the Community Development Commission -Housing
Authority of the City of National City assigns its interest in this Agreement pursuant to Section
10 of this Agreement, then the term "Purchaser" shall mean such assignee.
"Real Property" means collectively, Parcel 1 and Parcel 2.
"Seller" means the City of National City.
"Title Policy" means a CLTA Owner's Policy of Title Insurance in the amount of the
Purchase Price, insuring that title to the fee interest in the Property is vested in the Purchaser
subject only to the Permitted Exceptions, which Title Policy shall be obtained through Stewart
Title Company. Purchaser shall pay the cost of the CLTA Owner's Policy of Title Insurance and
any endorsements it desires.
6
Attachment No. 2
3. Purchase Price.
(a) Purchase Price. The Seven Million Thirty -Five Thousand and No/100 Dollars
($7,035,000.00) Purchase Price shall be paid as follows:
(1) Two Million Ninety -Four Thousand and No/100 Dollars ($2,094,000.00)
of United States Department of Housing and Urban Development HOME funds shall be payable
at Closing, all of which is being paid by the Purchaser to acquire Parcel 1 only; and
(2) The Four Million Nine Hundred Forty -One Thousand and No/100 Dollars
($4,941,000.00) balance of the Purchase Price shall be paid by the Purchaser to the Seller with
interest at the rate of zero percent (0.00%) in annual installments equal to the annual amount the
Purchaser receives from any ground leases Parcel 1 and Parcel 2 and from the residual receipts
loans that the Purchaser is making to the affordable housing developers that will construct
affordable housing projects on each of Parcel 1 and Parcel 2. At Closing, the Purchaser shall
execute a promissory note in favor of Seller in a form acceptable to the Seller and Purchaser.
(b) Deposit; Liquidated Damages.
(1) Deposit. Purchaser shall make a deposit ("Deposit") into Escrow of
Immediately Available Funds in the amount of One Thousand and No/100 Dollars ($1,000.00)
within three (3) Business Days of the Effective Date. The Deposit shall be credited against the
Purchase Price. if the Purchaser elects to terminate this Agreement prior to Closing, then the
Deposit shall be immediately returned by Escrow Agent to the Purchaser. At Closing, the
Deposit shall be released by Escrow Agent to the Seller. The Deposit, and any interest earned on
the Deposit, shall be credited in favor of the Purchaser against the Purchase Price as set forth in
Section 3(c), below.
(2) LIQUIDATED DAMAGES. THE DEPOSIT SHALL BE
REFUNDABLE TO THE PURCHASER AS MAY BE EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT. IF ESCROW FAILS TO CLOSE AS A RESULT OF PURCHASER'S
DEFAULT HEREUNDER, THE SOLE REMEDY OF THE SELLER SHALL BE TO
TERMINATE THIS AGREEMENT BY GIVING WRITTEN NOTICE THEREOF TO
PURCHASER AND ESCROW AGENT, WHEREUPON THE SELLER SHALL RETAIN THE
DEPOSIT(S) ACTUALLY DEPOSITED BY PURCHASER INTO ESCROW AS
LIQUIDATED DAMAGES (AND THE SELLER WAIVES ANY RIGHT TO SPECIFICALLY
ENFORCE THIS AGREEMENT SET FORTH IN CALIFORNIA CIVIL CODE SECTION
1680 OR 3389). THEREAFTER, NO PARTY HERETO SHALL HAVE ANY FURTHER
LIABILITY OR OBLIGATION TO ANY OTHER PARTY HERETO EXCEPT FOR: (i) THE
SELLER'S RIGHT TO RECEIVE AND RETAIN SUCH LIQUIDATED DAMAGES; AND (ii)
THE OBLIGATION OF THE PARTIES TO PAY AMOUNTS INTO ESCROW TO PAY A
PORTION OF THE FEES AND COSTS OF ESCROW AS SET FORTH IN SECTIONS 5 AND
6 BELOW. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE
SELLER'S ACTUAL DAMAGES IN THE EVENT OF PURCHASER'S DEFAULT
HEREUNDER ARE UNCERTAIN IN AMOUNT AND DIFFICULT TO ASCERTAIN, AND
7
Attachment No. 2
THAT SUCH AMOUNT OF LIQUIDATED DAMAGES IS REASONABLE UNDER THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ., CONSIDERING
ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE HEREOF INCLUDING,
WITHOUT LIMITATION, THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF
POTENTIAL HARM TO THE SELLER THAT CAN REASONABLY BE ANTICIPATED
AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES RESULTING FROM
SUCH DEFAULT WOULD BE COSTLY AND INCONVENIENT. IN PLACING ITS
INITIALS IN THE SPACE BELOW, EACH PARTY HERETO SPECIFICALLY CONFIRMS
THE ACCURACY OF THE FOREGOING AND THE FACT THAT SUCH PARTY HAS
BEEN REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF
THIS LIQUIDATED DAMAGES PROVISION.
THE PROVISIONS OF THIS SECTION 3(B)(2) SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Seller's Initials Purchaser's Initials
(c) Delivery of Remainder of Purchase Price into Escrow. Not less than one (1)
Business Day prior to the Closing Date, the Purchaser shall cause Immediately Available Funds
to be delivered to the Escrow Agent in an amount equal to $2,094,000.00 ($2,093,000.00 minus
the Deposit).
(d) Disbursement to the Seller. Immediately after the Closing, the Escrow Agent
shall disburse to the Seller the funds that the Seller is entitled to receive under this Agreement.
4. Due Diligence. The Purchaser has completed its due diligence with respect to the
Property.
5. Conditions Precedent for the Benefit of the Seller. The Seller's obligation to Close shall
be conditioned upon the satisfaction or emailed or written waiver by the Seller of all of the
conditions precedent ("Conditions Precedent for the Benefit of the Seller") set forth in this
Section 5. Any of the Conditions Precedent for the Benefit of the Seller may be waived by the
Seller unilaterally; and if so waived, such conditions shall be of no further effect hereunder. Any
such waiver shall be effective only if the same is expressly waived (i) by email from the Seller to
the Purchaser and Escrow Agent; or (ii) in a writing signed by the Seller and delivered to the
Purchaser and Escrow Agent. If the Conditions Precedent for the Benefit of the Seller are not
satisfied by the deadlines set forth in this Section 5 or expressly waived, the Seller (provided the
Seller is not in default hereunder) may provide emailed or written notice of the Seller's
conditional termination of this Agreement to the Purchaser and Escrow Agent. After receipt of
such notice of conditional termination, the Purchaser shall have ten (10) Business Days to cure
any non -satisfaction of a condition or other default specified in the notice of conditional
termination; provided, however, the foregoing grace period shall be two (2) Business Days if the
unsatisfied condition is a failure by Purchaser to deliver funds required to close on the Closing
Date. If such matter remains unsatisfied or the default remains uncured after the expiration of
such ten (10) Business Day period, then this Agreement shall terminate at the close of business
8
Attachment No. 2
on such tenth (loth) Business Day (or second (2nd) Business Day if the unsatisfied condition is a
failure by Purchaser to deliver funds required to close on the Closing Date). In the event of
termination of this Agreement (and by operation of law the Escrow) pursuant to this Section 5,
then: (x) as set forth in the liquidated damages provision of Section 3(b)(2) above, all rights and
liabilities of the Purchaser and the Seller with respect to this Agreement shall immediately
terminate, except those which specifically survive such termination; (y) Escrow Agent deliver
the Deposit to the Seller and shall return to the Seller all funds or other things deposited in
Escrow by the Seller; and (z) Escrow Agent shall return to the Purchaser all funds or other things
deposited in Escrow by the Purchaser, less the Deposit. Provided, however, all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser. Notwithstanding clause (x) of this Section 5, in the event of termination of this
Agreement pursuant to this Section 5, the Purchaser and the Seller shall cooperate with one
another, execute all documents reasonably necessary and take all reasonable steps as may be
required by Escrow Agent in order to accomplish the purposes of this Section 5.
(a) Purchaser making the Deposit into Escrow, as set forth in Section 3(b)(1), above.
(b) The delivery by the Purchaser into Escrow at least one (1) Business Day prior to
Closing of Immediately Available Funds in the amount required by Section 3(c), above.
(c) The delivery by the Purchaser into Escrow of all other documents and instruments
required by this Agreement or reasonably required by Seller and/or Escrow Agent to complete
the Closing, at least one (1) Business Day prior to Closing.
(d) Purchaser not being in default of any of its representations or warranties under
this Agreement, or any other material terms or conditions related to Purchaser.
(e) As of the Closing Date, the Purchaser has not made an assignment for the benefit
of creditors, filed a bankruptcy petition, been adjudicated insolvent or bankrupt, petitioned a
court for the appointment of any receiver of, or trustee for, the Purchaser, or commenced any
proceeding relating to the Purchaser under any reorganization, arrangement, readjustment of
debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect.
(f) This Agreement has been formally approved by resolution of the City of National
City.
6. Conditions Precedent for the Benefit of the Purchaser. The Purchaser's obligation to
Close shall be conditioned upon the satisfaction or emailed or written waiver by the Purchaser of
all of the conditions precedent ("Conditions Precedent for the Benefit of the Purchaser") set forth
in this Section 6. Any of the Conditions Precedent for the Benefit of the Purchaser may be
waived by the Purchaser unilaterally; and if so waived, such conditions shall be of no further
effect hereunder. Any such waiver shall be effective only if the same is expressly waived (i) by
email from the Purchaser to the Seller and Escrow Agent; or (ii) in a writing signed by the
Purchaser and delivered to the Seller and Escrow Agent. If the Conditions Precedent for the
Benefit of the Purchaser are not satisfied by the deadlines set forth in this Section 6 or expressly
waived, the Purchaser (provided the Purchaser is not in default hereunder) may provide emailed
9
Attachment No. 2
or written notice of the Purchaser's conditional termination of this Agreement to the Seller and
Escrow Agent. After receipt of such notice of conditional termination, the Seller shall have ten
(10) Business Days to cure any non -satisfaction of a condition or other default specified in the
notice of conditional termination. If such matter remains unsatisfied or the default remains
uncured after the expiration of such ten (10) Business Day period, then this Agreement shall
terminate at the close of business on such tenth (loth) Business Day. In the event of termination
of this Agreement (and by operation of law the Escrow) pursuant to this Section 6, then: (x)
except to subparagraph (f) below, the same shall be a default by the Seller (y) Escrow Agent
shall return to the Purchaser all funds or other things deposited in Escrow by the Purchaser,
including without limitation, the Deposit; and (z) Escrow Agent shall return to the Seller all
funds or other things deposited in Escrow by the Seller. Purchaser is not waiving any default by
the Seller and nothing contained in this Section 6, including, without limitation, the immediately
foregoing sentence shall be a waiver of any right of Purchaser to recover damages from the
Seller for failure of any Conditions Precedent for the Benefit of the Purchaser. Provided,
however, all fees and costs charged by the Escrow Agent shall be paid one-half (1/2) by the
Seller and one-half (1/2) by the Purchaser.
(a) The deposit into Escrow by the Seller of the Grant Deed, duly executed and
acknowledged, conveying fee simple title to the Property to the Purchaser at least one (1)
Business Day prior to Closing.
(b) The deposit by the Seller into Escrow of a duly executed affidavit that it is not a
foreign person and is a "United States Person" as such term is defined in Section 7761(a)(30) of
the Internal Revenue Code of 1986, as amended, at least one (1) Business Days prior to Closing.
The affidavit shall be in the form prescribed by federal regulations, if any.
(c) The deposit by the Seller into Escrow of a duly executed California Form 593(c)
or other evidence that withholding of any portion of the Purchase Price is not required by the
Revenue and Taxation Code of California, at least one (1) Business Day prior to Closing.
(d) The deposit by the Seller into Escrow of all additional documents and instruments
as are reasonably required by the Purchaser and/or. Escrow Agent to complete the Closing, at
least one (1) Business Day prior to Closing.
(e) The Escrow Agent is prepared and obligated to issue the Title Policy in
Purchaser's favor upon the recordation of the Grant Deed and there are no exceptions to the Title
Policy, except for Permitted Exceptions.
(f) Seller not being in default of any of its representations or warranties under this
Agreement, or any other material terms or conditions related to Seller.
(g) As of the Closing Date, there exists no lease, tenancy or occupancy agreement
affecting the Property, except for the lease of the property from the Purchaser back to the Seller,
as described in Section 1(b), above.
10
Attachment No. 2
(h) As of the Closing Date there is not pending, or threatened to be pending, any
action or proceeding by any person or before any government authority, the outcome of which
could prohibit the use of the Property as intended by the Purchaser.
(i) This Agreement has been formally approved by resolution of the Community
Development Commission -Housing Authority of the City of National City.
7. Representations and Warranties; Waivers and Releases. When making the
representations and warranties set forth in this Section 7, each party making a representation
and/or warranty represents that the same are true, correct and complete as of the date hereof and
shall be and are true, correct and complete as of the Closing Date. The representations and
warranties shall survive the Closing.
(a) Representations and Warranties Regarding Authority. The Seller and the
Purchaser each hereby represents and warrants to the other that this Agreement and all
documents or instruments executed by them which are to be delivered at or prior to the Closing
are, or on the Closing Date will be, duly authorized, executed and delivered by the Seller or the
Purchaser, as applicable.
(b) Representations and Warranties Regarding Enforceability of Agreement. The
Seller and the Purchaser each hereby represents and warrants to the other that this Agreement
and all documents required hereby to be executed by them shall be valid, legally binding
obligations of, and enforceable against, the Seller or the Purchaser, as applicable, in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally and general principles of equity
(whether enforcement is sought in equity or at law).
(c) Seller Representations and Warranties Pertaining to Legal Matters. The Seller
hereby represents and warrants to the Purchaser that:
(1) As of the Effective Date and the Closing Date, the Seller is the sole owner
of the fee title interest to the Property.
(2) There is no pending or threatened proceeding in eminent domain or
otherwise, which would affect the Property, or any portions thereof, nor any facts which
might give rise to such action or proceeding.
(d) Seller Representations and Warranties Pertaining to Options. The Seller hereby
represents and warrants to the Purchaser that no person has any option or right of first refusal to
purchase the Property or any parts thereof.
(e) Material Adverse Changes. if Seller receives any notice or knowledge of
anything materially adversely affecting Seller's representations or warranties after the date of
this Agreement, then Seller shall immediately notify Purchaser in writing of such fact or
circumstance. If Purchaser receives written notice from Seller pursuant to the immediately
preceding sentence, and Seller in such notice does not agree to cure the same at or prior to
11
Attachment No. 2
Closing to Purchaser's reasonable satisfaction, then, Purchaser shall have the right to bring an
action against Seller on the breach of such representation or warranty.
(f) Seller Representation and Warranty Pertaining to Tenants. The Seller hereby
represents and warrants to the Purchaser that no person has any lease or other right to occupy the
Property or any parts thereof, except for the Seller's right to lease the Property from the Seller as
described in Section 1(b), above.
(g) Seller Representation and Warranty Regarding Operation of the Property. The
Seller hereby represents and warrants to the Purchaser that there are no oral or written
agreements or understandings concerning the Property by which the Purchaser would be bound
following the Closing.
(h) AS IS CONDITION. PURCHASER HEREBY ACKNOWLEDGES,
REPRESENTS, WARRANTS, COVENANTS AND AGREES THAT AS A MATERIAL
INDUCEMENT TO SELLER TO EXECUTE AND ACCEPT THIS AGREEMENT AND IN
CONSIDERATION OF THE PERFORMANCE BY SELLER OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENT THAT, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT AND SUBJECT TO SELLER'S EXPRESS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 7 OF THIS
AGREEMENT, THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE
ON AN "AS IS, WHERE IS" BASIS, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE EXISTENCE
OF HAZARDOUS MATERIALS OR MOLD UPON THE PROPERTY OR ANY PORTION
THEREOF; (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND
WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER
AND FAULTING; (3) WHETHER OR NOT AND TO THE EXTENT TO WHICH THE
PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE
OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN,
FLOODWAY OR SPECIAL FLOOD HAZARD; (4) DRAINAGE; (5) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL
ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES,
OR THE SUFFICIENCY OF ANY UNDERSHORING; (6) USES OF ADJOINING
PROPERTIES; (7) THE VALUE, COMPLIANCE WITH THE PLANS AND
SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION,
DURABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR
FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY
RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR
ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE
IMPROVEMENTS COMPLY WITH THE REQUIREMENTS OF TITLE III OF THE
AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. §§ 12181-12183, 12186(B) —
12189 AND RELATED REGULATIONS; (8) THE PRESENCE OF HAZARDOUS
12
Attachment No. 2
MATERIALS IN OR ON, UNDER OR IN THE VICINITY OF THE PROPERTY; (9) THE
SQUARE FOOTAGE OF THE PROPERTY OR THE IMPROVEMENTS THEREON; (10)
IMPROVEMENTS AND INFRASTRUCTURE, INCLUDING, WITHOUT LIMITATION,
THE CONDITION OF THE ROOF, FOUNDATION, FIXTURES, AND PERSONAL
PROPERTY, IF ANY; (11) DEVELOPMENT RIGHTS AND EXTRACTIONS; (12) WATER
OR WATER RIGHTS; (13) THE DEVELOPMENT POTENTIAL FOR THE PROPERTY; (14)
THE ABILITY OF PURCHASER TO REZONE THE PROPERTY OR CHANGE THE USE
OF THE PROPERTY; (15) THE ABILITY OF PURCHASER TO ACQUIRE ADJACENT
PROPERTIES; (16) THE EXISTENCE AND POSSIBLE LOCATION OF ANY
UNDERGROUND UTILITIES; (17) THE EXISTENCE AND POSSIBLE LOCATION OF
ANY ENCROACHMENTS; (18) WHETHER THE IMPROVEMENTS ON THE PROPERTY
WERE BUILT, IN WHOLE OR IN PART, IN COMPLIANCE WITH APPLICABLE
BUILDING CODES; (19) THE STATUS OF ANY L1FE-SAFETY SYSTEMS IN THE
IMPROVEMENTS ON THE PROPERTY; (20) THE CHARACTER OF THE
NEIGHBORHOOD IN WHICH THE PROPERTY IS SITUATED; (21) THE CONDITION OR
USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL
PAST, PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR
OTHER SIMILAR LAWS; (22) THE MERCHANTABILITY OF THE PROPERTY OR
FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER
AFFIRMING THAT PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT
FOR ANY PARTICULAR PURPOSE); AND/OR (23) ANY OTHER MATTER
CONCERNING THE PROPERTY. NOTWITHSTANDING THE FOREGOING OR
ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, SELLER IS NOT
RELEASED FROM ANY LIABILITY TO PURCHASER FOR FRAUD OR BREACH OF
ANY COVENANT, REPRESENTATION OR WARRANTY SET FORTH IN THIS
AGREEMENT. Notwithstanding anything to the contrary set forth in this Agreement, including
without limitation, this Section 7(h), any right waived by Purchaser and any release by
Purchaser, shall only release or waive the Purchaser's right to enforce any judgment (including
without limitation, damages, attorneys' fees, costs, expenses or any other compensation of any
type whatsoever) personally against only the Seller and Seller's successors, assigns, officers,
directors, shareholders, participants, partners, affiliates, employees, representatives, invitees and
agents (collectively, the "Seller Parties") or any of them. Purchaser is not waiving any right to
bring any action against any of the "Non -Released Parties" (defined below) or waiving recovery
against or otherwise releasing or agreeing to forego Purchaser's rights with respect to any
insurance policy, or any other person (other than the right to enforce, a judgment personally
against any of the Seller Parties), including without limitation persons obligated to the Seller
Parties, by right of subrogation or otherwise, prior owners or occupants of the Property, the
tenants, persons performing work at the Property and/or any insurance policies held by any or all
such persons (collectively, the "Non -Released Parties").
PURCHASER ACKNOWLEDGES THAT AS OF THE EXPIRATION OF THE DUE
DILIGENCE PERIOD, PURCHASER SHALL HAVE COMPLETED ALL PHYSICAL AND
FINANCIAL EXAMINATIONS RELATING TO THE ACQUISITION OF THE PROPERTY
13
Attachment No. 2
HEREUNDER (IT BEING ACKNOWLEDGED AND AGREED THAT PURCHASER SHALL
BE DEEMED TO HAVE INSPECTED EACH APARTMENT UNIT WITHIN THE
PROPERTY) AND WILL ACQUIRE THE SAME SOLELY ON THE BASIS OF SUCH
EXAMINATIONS AND THE TITLE INSURANCE PROTECTION FOR THE PROPERTY
AFFORDED BY THE TITLE POLICY, EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT AND SUBJECT TO SELLER'S EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 7 OF THIS AGREEMENT. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED
OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND THAT THE SELLER HAS NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT
AND SUBJECT TO SELLER'S EXPRESS REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTION 7 OF THIS AGREEMENT. SELLER SHALL NOT BE LIABLE FOR
ANY NEGLIGENT MISREPRESENTATION OR FAILURE TO INVESTIGATE THE
PROPERTY NOR SHALL SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, APPRAISALS, ENVIRONMENTAL
ASSESSMENT REPORTS, OR OTHER INFORMATION PERTAINING TO THE
PROPERTY OR THE OPERATION THEREOF, FURNISHED BY SELLER, OR ANY REAL
ESTATE BROKER, AGENT, REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER
PERSON ACTING ON SELLER'S BEHALF EXCEPT FOR REPRESENTATIONS AND
WARRANTIES EXPRESSLY PROVIDED IN SECTION 7 OF THIS AGREEMENT. IT IS
ACKNOWLEDGED AND AGREED THAT THE PROPERTY IS SOLD BY SELLER AND
PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. NOTWITHSTANDING
THE FOREGOING OR ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, SELLER IS NOT RELEASED FROM ANY LIABILITY TO PURCHASER
FOR FRAUD OR BREACH OF ANY COVENANT, REPRESENTATION OR WARRANTY
SET FORTH IN THIS AGREEMENT.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT PURCHASER IS
FULLY AWARE OF THE AGE OF THE PROPERTY, THAT OVER TIME VARIOUS
EVENTS MAY HAVE OCCURRED ON THE PROPERTY WHICH EVENTS MAY BE
TYPICAL AND(OR) ATYPICAL OF EVENTS OCCURRING TO OTHER PROPERTIES OF
SIMILAR AGE TO THE PROPERTY AND SIMILARLY LOCATED IN THE CITY OF
NATIONAL CITY AND (OR) THE COUNTY OF SAN DIEGO, CALIFORNIA, AND THAT
SUCH EVENTS MAY INCLUDE, WITHOUT LIMITATION, SLAB LEAKS, MOLD, FIRE,
SHIFTING, AND VIOLATIONS OF LAWS, ORDINANCES, RULES, REGULATIONS,
PERMITS, APPROVALS, LICENSES AND(OR) ORDERS OF GOVERNMENTAL
AGENCIES WITH JURISDICTION OVER THE PROPERTY.
THE CLOSING OF THE PURCHASE OF THE PROPERTY BY PURCHASER
HEREUNDER SHALL BE CONCLUSIVE EVIDENCE THAT: (A) PURCHASER HAS
FULLY AND COMPLETELY INSPECTED (OR HAS CAUSED TO BE FULLY AND
COMPLETELY INSPECTED) THE PROPERTY; AND (B) PURCHASER ACCEPTS THE
14
Attachment No. 2
PROPERTY AS BEING IN GOOD AND SATISFACTORY CONDITION AND SUITABLE
FOR PURCHASER'S PURPOSES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR
RELIANCE ON REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN
SECTION 7 OF THIS AGREEMENT, PURCHASER SHALL PERFORM AND RELY
SOLELY UPON ITS OWN INVESTIGATION CONCERNING ITS INTENDED USE OF THE
PROPERTY, AND THE PROPERTY'S FITNESS THEREFOR. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT SELLER'S COOPERATION WITH PURCHASER
WHETHER BY PROVIDING DOCUMENTS RELATING TO THE PROPERTY OR
PERMITTING INSPECTION OF THE PROPERTY, SHALL NOT BE CONSTRUED AS ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND WITH
RESPECT TO THE PROPERTY, OR WITH RESPECT TO THE ACCURACY,
COMPLETENESS, OR RELEVANCE OF THE DOCUMENTS PROVIDED TO
PURCHASER BY SELLER IN RELATION TO THE PROPERTY, PROVIDED THAT THE
FOREGOING SHALL NOT BE A LIMITATION OR MODIFICATION OF THE
REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED FOR IN SECTION 7
OF THIS AGREEMENT.
SELLER'S INITIALS PURCHASER'S INITIALS
(i) Indemnity and Release.
(1) Indemnity. For the purposes of this Section 7(i), the term "Claims" shall
mean any and all claims, obligations, liabilities, causes of action, suits, debts, liens, damages,
judgments, losses, demands, orders, penalties, settlements, costs and expenses (including,
without limitation, attorneys' fees and costs and any and all costs and expenses related to,
whether directly or indirectly, any and all clean-up, remediation, investigations, monitoring,
abatement, mitigation measures, fines or removal with respect to Hazardous Materials) of any
kind or nature whatsoever. The defmition of "Claims" shall include, without limitation, Claims
under contract law or tort law. Purchaser acknowledges that but for Purchaser's agreement to
each and every provision of this Section 7(i), Seller would not have entered into the Agreement.
Purchaser, on behalf of itself, its successors, assigns and successors -in -interest ("Successors"),
shall indemnify, defend, protect and hold Seller and Seller's successors, assigns, partners,
affiliates and members and all their respective officers, directors, shareholders, participants,
partners, affiliates, employees, representatives, invitees and agents (collectively, "Seller Parties")
harmless from and against any and all Claims resulting from, related to, or based upon, whether
directly or indirectly: (i) the breach by Purchaser of any representation, warranty, covenant or
obligation contained in the Agreement, or in any other agreement, document, exhibit or
instrument related hereto or referenced herein; (ii) any Claim or Claims, if the basis of such
Claim or Claims arose on or after the Closing, except as noted in subparagraph (iv) below, and if
the basis of such Claim or Claims arose from, is based upon, relates to or pertains to, whether
directly or indirectly, the operation, management and use of the Property; (iii) any Claim or
Claims which Claim or Claims (or the basis for which) arose from, is based upon, relates to or
pertains to, whether directly or indirectly, any act or omission of Purchaser or any of its
15
Attachment No. 2
employees, agents or representatives; and (iv) (A) any Claim or Claims that relate to the
condition of the Property on or after the Close of Escrow, including any judgment, order or
settlement under or otherwise pursuant to a lawsuit, and (B) any Claim or Claims that relate to
defects in the Property (including, without limitation, patent and latent construction defects),
regardless of whether said defects or the cause of the same arose either before or after the Close
of Escrow, including any judgment, order or settlement under or otherwise pursuant to the
lawsuit. Any defense of any or all of the Seller Parties referenced in this Section 7(i)(1), shall be
at the Purchaser's sole cost and expense and by counsel selected by the Purchaser, subject to the
reasonable approval of the indemnified person, which counsel may, without limiting the rights of
any of the Seller Parties pursuant to the next succeeding sentence of this Section 7(i)(1), also
represent the Purchaser in such investigation, action or proceeding. If any of the Seller Parties
that is being indemnified determines reasonably and in good faith that its defense by the
Purchaser is reasonably likely to cause a conflict of interest or is being conducted in a manner
which is prejudicial to such persons interests, such indemnified person may elect to conduct its
own defense through counsel of its own choosing, subject to the reasonable approval of the
Purchaser, and at the expense of the Purchaser.
(2) Release and ,1542 Waiver. Notwithstanding the following or anything to
the contrary set forth in this Agreement, the Seller is not released from any liability to the
Purchaser for fraud or breach of any covenant or warranty set forth in this Agreement. Subject to
the immediately preceding sentence and the Purchaser's right to rely on the Seller's express
representations and warranties set forth in Section 7 hereof, Purchaser for itself and on behalf of
each of its successors and/or assigns (collectively, the "Releasors") by this general release of
known and unknown claims (this "Release") hereby irrevocably and unconditionally release and
forever discharge Seller and each of the Seller Parties (collectively, the "Releasees") or any of
them, from and against any and all Claims of any kind or nature whatsoever, WHETHER
KNOWN OR UNKNOWN, suspected or unsuspected, fixed or contingent, liquidated or
unliquidated which any of the Releasors now have, own, hold, or claim to have had, owned, or
held, against any of the Releasees arising from, based upon or related to, whether directly or
indirectly any facts, matters, circumstances, conditions or defects (whether patent or latent) of all
or any kinds, related to, arising from, or based upon, whether directly or indirectly, the Property,
including without limitation, (i) the physical condition, quality and state of repair of the Property
conveyed, (ii) any latent or patent defect affecting the Property conveyed, and (iii) the presence
of Hazardous Materials in, on, about or under the Property or which have migrated from adjacent
lands to the Property or from the Property to adjacent lands.
Except for Claims for Seller's fraud or the breach of any representations and warranties
of the Seller expressly provided for in Section 7 of this Agreement, Releasors hereby further
agree as follows:
(i) Releasors acknowledge that there is a risk that subsequent to the execution
of this Agreement, Releasors may discover, incur, or suffer from Claims which were unknown or
unanticipated at the time this Release is executed, including, without limitation, unknown or
unanticipated Claims which, if known by Releasors on the date this Release is being executed,
may have materially affected Releasors' decision to execute this Agreement. Releasors
acknowledge that Releasors are assuming the risk of such unknown and unanticipated Claims
16
Attachment No. 2
and agree that this Release applies thereto. Releasors expressly waive the benefits of Section
1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor."
(ii) Releasors represent and warrant that Releasors have been represented by
independent counsel of Releasors' own choosing in connection with the preparation and review
of the Release set forth herein, that Releasors have specifically discussed with such counsel the
meaning and effect of this Release and that Releasors have carefully read and understand the
scope and effect of each provision contained herein. Releasors further represent and warrant that
Releasors do not rely and have not relied upon any representation or statement made by any of
the Releasees or any of their representatives, agents, employees, attorneys or officers with regard
to the subject matter, basis or effect of this Release.
(iii) Releasors represent and warrant to Releasees that Releasors have not and
shall not assign or transfer or purport to assign or transfer any Claim or Claims or any portion
thereof or any interest therein, and shall indemnify, defend, protect and hold the Releasees
harmless from and against any Claim or Claims based on or arising out of, whether directly or
indirectly, any such assignment or transfer, or purported assignment or transfer.
SELLER'S INITIALS PURCHASER'S INITIALS
It is specifically intended that each of the Seller Parties shall be third party beneficiaries
of this Section 7(i).
(3) Survival. The provisions of this Section 7(i) shall survive the Closing and,
as applicable, the termination of this Agreement.
(j) Waiver of Subrogation; Survival. Purchaser hereby waives any right of
subrogation as to Seller or the Seller Parties. Each and every provision of this Section 7 shall,
except as may be expressly limited in this Section 7, survive the Closing and, as applicable, the
termination of this Agreement, and, but for Purchaser's agreement to each and every provision of
this Section 7, Seller would not have executed this Agreement.
8. Condemnation of the Property.
(a) If between the Effective Date and the Closing Date, any condemnation or eminent
domain proceeding is commenced that will result in the taking of any part of the Property,
Purchaser may, at Purchaser's election, either:
(1) Terminate this Agreement by giving written or emailed notice to the Seller
and the Escrow Agent (in which event all remaining funds or other things deposited in Escrow
17
Attachment No. 2
by Purchaser, including without limitation, the Deposit, shall be returned to the Purchaser
immediately from Escrow, together with any interest earned thereon and all fees and costs
charged by the Escrow Agent shall be paid one-half (1/2) by the Seller and one-half (1/2) by the
Purchaser; or
(2) Proceed with the Closing with no reduction in the Purchase Price, in
which event the Seller shall assign to the Purchaser all of the Seller's rights, titles and interests to
any award made for the condemnation or eminent domain action.
(b) Notice. If the Seller obtains notice of the commencement of or the threatened
commencement of eminent domain or condemnation proceedings with respect to all of any
portion of the Property, the Seller shall notify the Purchaser in writing.
9. Broker's Commission. The Purchaser and Seller each hereby represents and warrants to
the other that it has not engaged the services of any real estate agent or broker with respect to the
transaction that is the subject of this Agreement. The Purchaser and the Seller each agree that, to
the extent any real estate commission, brokerage commission or finder's fee shall be earned or
claimed in connection with this Agreement or the Closing, the payment of such fee or
commission, and the defense of any action in connection therewith, shall be the sole and
exclusive obligation of the party who requested (or is alleged to have requested) the services of
the broker or finder. In the event that any claim, demand or cause of action for any such
commission or finder's fee is asserted against the party to this Agreement who did not request
such services (or is not alleged to have requested such services), the party through whom the
broker or finder is making the claim shall indemnify, defend (with an attorney of the
indemnitee's choice), protect and hold harmless the other from and against any and all such
claims, demands and causes of action and expenses related thereto, including, without limitation,
attorneys' fees and costs. The provisions of this Section 9 shall survive the Closing or
termination of this Agreement.
10. Assignment. The Purchaser shall not assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the Seller, which consent may be
withheld or granted in Seller's sole and absolute discretion; provided, however, the Purchaser
may assign this Agreement to an entity in which the Purchaser has a controlling or majority
interest without the prior written consent of the Seller provided Purchaser and such assignee
execute an assignment agreement in form and substance reasonably acceptable to Seller.
11. Notices. All notices under this Agreement shall be in writing and sent (a) by certified or
registered mail, return receipt requested, in which_case notice shall be deemed delivered three (3)
Business Days after deposit, postage prepaid in the United States Mail, (b) overnight by a
nationally recognized overnight courier such as UPS Overnight, or FedEx, in which case notice
shall be deemed delivered one (1) Business Day after deposit with that courier, (c) by personal
delivery, in which case notice shall be deemed delivered upon the actual date of delivery, or (d)
by email, in which case notice shall be deemed delivered upon the actual date of delivery. All
notices shall be delivered to the following addresses:
18
If to Purchaser:
If to Seller:
Copy to:
Attachment No. 2
Community Development Commission -Housing Authority
of the City of National City
Attn: Alfredo Ybarra
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: alfredoy@nationalcityca.gov
City of National City
Attn: Brad Raulston
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: braulston@nationalcityca.gov
Christensen & Spath LLP
Attention: Walter F. Spath III
550 West C Street, Suite 1660
San Diego, CA 92101
Facsimile No. (619) 236-8307
Email: wfs@candslaw.net
The addresses above may be changed by written notice to the other party; provided
however, that no notice of a change of address shall be effective until actual receipt of the notice.
12. Risk of Loss.
(a) Damage or Destruction. Subject to the provisions of this Section 12(a), the risk of
loss or damage to the Property until the close of Escrow will be borne by Seller. Upon the
occurrence of any damage to or destruction of the Property, Seller shall within thirty (30) days
after the occurrence of such damage or destruction give written notice to Purchaser ("Damage
Notice") specifying the estimated cost to repair or restore the Property and an estimate of the
insurance proceeds, if any, that will be available with respect to such damage or destruction. The
close of Escrow shall be appropriately delayed to provide adequate time for Seller to give the
Damage Notice and Purchaser to make its election provided for below.
(b) Damage in Excess of $100,000. If prior to the close of Escrow there is damage to
or destruction of the Property that will cost in excess of One Hundred Thousand Dollars
($100,000) to repair or restore, Purchaser shall have the right by written notice given to Seller
within ten (10) days of Purchaser receiving the Damage Notice, to elect to: (i) close Escrow in
such damaged condition, in which event the Purchase Price shall not be reduced (but the Seller
shall be obligated to pay the deductibles under the applicable insurance policy or policies) and
Seller shall not be obligated to repair or restore the Property and all insurance proceeds shall be
assigned and payable to Purchaser, and if Seller receives any such insurance proceeds, they shall
be immediately remitted by Seller to Purchaser at Closing or, if received by Seller after Closing,
promptly after receipt; (ii) terminate this Agreement, in which event the Deposit and all interest
19
Attachment No. 2
accrued thereon shall be immediately returned to Purchaser, and neither party shall have any
further rights or obligations to the other party, except neither party shall be relieved of any
obligations provided for in this Agreement which expressly survives its termination.
(c) Damage of $100,000 or Less. If prior to the close of Escrow there is damage to or
destruction of the Property that will cost One Hundred Thousand Dollars ($100,000) or less to
repair or restore, Purchaser shall nevertheless close Escrow with the Property in such damaged
condition, the Purchase Price shall not be reduced (but the Seller shall be obligated to pay the
deductibles under the applicable insurance policy or policies) and Seller shall not be obligated to
repair or restore the Property, and all insurance proceeds shall be assigned and payable to
Purchaser, and if Seller should receive any such insurance proceeds, they shall be immediately
remitted to Purchaser.
13. Proration. Real property taxes and assessments and utility costs, and other expenses of
operating the Property (provided, however, no proration shall be made with regard to any capital
improvements) shall be prorated as of the close of Escrow. Seller shall pay all documentary
transfer taxes. Seller shall pay all real property taxes and assessments applicable to the period
prior to the close of Escrow, and if any such taxes are unpaid after the close of Escrow, then
Seller shall pay them promptly and in any event within ten (10) days after Purchaser's request
(which shall include a copy of the relevant tax bill).
14. General Provisions.
(a) Governing Law. This Agreement shall be interpreted and construed in
accordance with California law, without regard to any choice of law principles.
(b) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(c) Captions. The captions in this Agreement are inserted for convenience of
reference and in no way define, describe or limit the scope or intent of this Agreement or any of
the provisions of this Agreement.
(d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective legal representatives, successors, heirs and permitted assigns.
(e) Modifications; Waiver. No waiver; modification, amendment, discharge or
change of this Agreement shall be valid unless it is in writing and signed by the party against
which the enforcement of the modification, waiver, amendment, discharge or change is sought.
(f) Entire Agreement. This Agreement contains the entire agreement between the
parties relating to Purchaser's acquisition of the Property from the Seller and all prior or
contemporaneous agreements, understandings, representations or statements, oral or written, are
superseded.
20
Attachment No. 2
(g) Partial Invalidity. Any provision of this Agreement which is unenforceable,
invalid, or the inclusion of which would adversely affect the validity, legality, or enforcement of
this Agreement shall have no effect, but all the remaining provisions of this Agreement shall
remain in full effect.
(h) Survival. Provisions of this Section 19 shall survive the Closing or the
termination of this Agreement.
(i) No Third -Party Rights. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties to this Agreement and their respective
successors and assigns, any rights or remedies.
(j) Time of Essence. Time is of the essence in this Agreement.
(k) Attorneys' Fees. The parties agree that the prevailing party in litigation for the
breach and/or interpretation and/or enforcement of the terms of this Agreement shall be entitled
to their expert witness fees, if any, as part of their costs of suit, and attorneys' fees as may be
awarded by the court, pursuant to California Code of Civil Procedure ("CCP") Section 1033.5
and any other applicable provisions of California law, including, without limitation, the
provisions of CCP Section 998. All claims, disputes, causes of action or controversies shall be
subject solely to the jurisdiction of the San Diego Superior Court, Downtown Branch.
(1) Relationship. Nothing contained in this Agreement shall be deemed or construed
by the parties or by any third person to create a relationship of principal and agent or partnership
or a joint venture between the Purchaser and the Seller or between any of them and any third
party.
(m) Recording. Neither this Agreement nor a memorandum hereof shall be recorded.
(n) Purchaser Approval. Where this Agreement refers to an action or approval of the
Purchaser, it shall mean the approval of the Community Development Executive Director of the
Purchaser, or designee, unless otherwise provided.
(o) Exhibits and Recitals Incorporated. All exhibits referred to in this Agreement are
hereby incorporated in this Agreement by this reference, regardless of whether or not the exhibits
are actually attached to this Agreement. The Recitals to this Agreement are hereby incorporated
in this Agreement by this reference.
(p) Independent Counsel. Seller and Purchaser each acknowledge that: (a) they have
been given the opportunity to be represented by independent counsel in connection with this
Agreement; (b) they have executed this Agreement with the advice of such counsel, if such
counsel was retained; and (c) this Agreement is the result of negotiations between the parties
hereto and the advice and assistance of their respective counsel, if such counsel was retained.
The fact that this Agreement was prepared or negotiated by Purchaser's or Seller's counsel as a
matter of convenience shall have no import or significance. Any uncertainty or ambiguity in this
21
Attachment No. 2
Agreement shall not be construed against either party due to the fact that Purchaser's or Seller's
counsel prepared or negotiated this Agreement in its final form.
(q) Tolling of Deadlines. Any periods of time, deadlines or time or day limitations
set forth in this Agreement, including without limitation, the Due Diligence Period, the deadline
for Closing, the deadline for making the Deposit, shall all be automatically extended by one (1)
Business Day for each Business Day that the Seller fails to timely provide any notice, report,
materials, studies, documentation or other information required by this Agreement.
(r) Capacity and Authority. All individuals signing this Agreement for a party which
is a corporation, limited liability company, partnership or other legal entity, or signing under a
power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, represent
and warrant that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
PURCHASER:
Community Development Commission -Housing Authority of the City of National City
By:
Leslie Deese, Executive Director
Approved as to Form:
By:
Claudia Gacitua Silva
General Counsel
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
22
SELLER:
City of National City
By:
Ron Morrison, Chairman
Approved as to Form:
By:
Claudia Gacitua Silva
City Attorney
23
Attachment No. 2
Attachment No. 2
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
Real property in the City of National City, County of San Diego, State of California, described as
follows:
Parcel 1:
Lots 1 to 22 inclusive of Block 107; and Lots 1 to 22 inclusive of Block 108 of National City, in
the City of National City, County of San Diego, State of California according to map thereof no.
348 filed in the Office of the County Recorder of San Diego County October 2, 1882;
Together with that portion of Coolidge Avenue between 20th Street and 22nd Street, and 21St
Street between Harding Avenue and Hoover Avenue as set forth in that certain Order of
Vacation (Resolution No. 8338 of the City Council of the City of National City) recorded April
8, 1963 as file no. 59590 of Official Records;
And those portions of the Unnamed Alley lying within Blocks 107 and 108 of said map no. 348
as set forth in the certain Order of Vacation (Resolution No. 9816 of the City Council of the City
of National City) recorded May 12, 1969 as file no. 82961 of Official Records
Parcel 2:
Lots 7 to 16 inclusive of Block 85 of National City, in the City of National City, County of San
Diego, State of California according to map thereof no. 348 filed in the Office of the County
Recorder of San Diego County October 2, 1882, excepting therefrom that portion of land as set
forth in that certain Corporation Grant Deed recorded November 20, 1964 as file no. 211364 of
Official Records.
In addition, that portion of Coolidge Avenue between 20th Street and 22 Street, and 21 st Street
between Harding Avenue and Hoover Avenue as set forth in that certain Order of Vacation
(Resolution No. 8338 of the City Council of the City of National City) recorded April 8, 1963 as
file no. 59590 of Official Records;
And those portions of the Unnamed Alley lying within Block 85 of said map no. 348 as set forth
in the certain Order of Vacation (Resolution No. 9816 of the City Council of the City of National
City) recorded May 12, 1969 as file no. 82961 of Official Records.
Parcel 3:
Lots 1 to 22 inclusive of Block 86 of National City, in the City of National City, County of San
Diego, State of California according to map thereof no. 348 filed in the Office of the County
Recorder of San Diego County October 2, 1882.
In addition, that portion of Coolidge Avenue between 20th Street and 22nd Street, and 21st
Street between Harding Avenue and Hoover Avenue as set forth in that certain Order of
24
Attachment No. 2
Vacation (Resolution No. 8338 of the City Council of the City of National City) recorded April
8, 1963 as file no. 59590 of Official Records;
And the Unnamed Alley lying within Block 86 of said map no. 348 as set forth in the certain
Order of Vacation (Resolution No. 9816 of the City Council of the City of National City)
recorded May 12, 1969 as file no. 82961 of Official Records
APN: 559-124-05-00, 560-391-08-00, and 560-396-06-00
25
Attachment No. 2
Exhibit "B"
GRANT DEED
26
Attachment No. 2
Exhibit "C"
LEASE
27
Attachment No. 3
PROMISSORY NOTE
(Westside TOD Affordable Site)
("Note")
National City, California August 2013
1. Principal; No Interest. For value received and in consideration of the Purchase and Sale
Agreement (Westside TOD Affordable Site) dated as of August 20, 2013 ("Agreement"), by and
between the City of National City ("Seller") and Community Development Commission -Housing
Authority of the City of National City ("Maker"), Maker promises to pay to Seller, or order, at
1243 National City Boulevard, National City, California 91950-4397, or such other place as the
holder may from time to time designate by written notice to Maker, the principal sum of Four
Million Nine Hundred Forty -One Thousand and No/100 Dollars ($4,941,000.00). This Note shall
not bear interest. All capitalized terms which are not defined herein shall have the meaning
ascribed to them in the Agreement.
2. Term of Loan, Due Date and Right of Prepayment. Payments shall be due and payable as
follows:
(a) The Maker intends to ground lease Parcel 1 and Parcel 2, as such terms are defined
in the Agreement, and make one or more residual receipts loans to the developers of Parcel 1 and
Parcel 2. Those ground leases may or may not require annual ground rent payments to be made to
the Maker. Those residual receipts loans will require the developers of Parcel 1 and Parcel 2 to
make annual payments to the Maker based on the residual receipts generated by the operations on
Parcel 1 and Parcel 2, if any. The Maker shall pay to the Seller an amount equal to the amount
received from the developers of Parcel 1 and Parcel 2 (whether from ground rent or residual
receipts payments) within ten (10) business days of Maker's receipt of the same. The Maker shall
have no obligation to make any payments to Seller hereunder, unless and until the Maker receives
funds from the developers of Parcel 1 and Parcel 2.
(b) If all amounts otherwise payable hereunder are not paid in full within sixty-five
(65) years from the date first set forth above, all principal shall be due and payable.
(c) This Note shall be payable in full upon acceleration of this Note pursuant to the
provisions of Paragraph 4 of this Note.
(d) This Note shall be payable in full upon the conveyance of all or any part of the fee
interest in Parcel 1 or Parcel 2.
(e) This Note may be prepaid in whole or in part at any time and, from time to time,
without notice or penalty. Any prepayment shall be allocated first to unpaid interest, if any, and
then to principal.
3. Unsecured Note. This Note shall be unsecured.
1
Attachment No. 3
4. Acceleration Upon Default. Notwithstanding Section 2, above, or anything contained
herein to the contrary, in the event of: (i) any default in the performance of any of the terms,
covenants and conditions contained in this Note or the Agreement, in each case after the expiration
of applicable cure periods, or (ii) in the event of the filing of a bankruptcy proceeding by or against
Maker which is not dismissed within ninety (90) days thereafter, then all sums owing by Maker to
the Seller shall at the option of the Seller immediately become due and payable. These remedies
shall be in addition to any and all other rights and remedies available to the Seller, either at law or
in equity.
5. Costs Paid by Maker. Maker agrees to pay the following costs and expenses incurred by
the holder of this Note, or adjudged by a court: (a) reasonable costs, expenses and attorneys' fees
paid or incurred in connection with the collection or enforcement of this Note, whether or not suit
is filed; and (b) costs of suit and such sum as the court may adjudge as attorneys' fees in any action
to enforce payment of this N ote or any part of it.
6. Payment and Interest Calculation. Payments shall be applied to interest first, if any, and
then to any unpaid principal balance.
7. Recourse Note. In any action brought to enforce the obligations of Maker under this Note,
the judgment or decree shall be enforceable against Maker.
8. Late Charge. If any installment due hereunder is not paid within fifteen (15) days from the
date due, Maker promises to pay a "late charge" of $100.00 to defray the expense incident to
handling any such delinquent payment or payments.
9. Severability. If any provision of this Note is determined to be void by court of competent
jurisdiction, such determination shall not affect any other provisions of this Note, and such other
provisions shall remain in full force and effect.
10. Non -Waiver. No delay in demanding or failure to demand performance hereunder shall
constitute a waiver by the holder of its right to subsequently demand such performance or to
exercise any remedies for any default hereunder. Further, in order to be effective, any waiver of
any of the Seller's rights and remedies hereunder must be in a writing signed by the Seller. Further
waiver by the Seller of any right hereunder shall not constitute a waiver of any other right,
including but not limited to the right to exercise any and all remedies for a different or subsequent
event of default.
Maker:
Community Development Commission -Housing Authority of the City of National City
By:
Print Name:
Its:
2
Attachment No. 3
Recording Requested By And When
Recorded Mail To And Mail Tax
Statements To:
City of National City
1243 National City Boulevard
National City, CA 91950
This document is exempt from payment of a recording fee
pursuant to Government Code Section 6103.
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
City of National City
hereby grant to
Community Development Commission -Housing Authority of the City of National
City
the real property in the County of San Diego, State of California, described on Exhibit "A"
attached hereto and incorporated herein. This grant deed is recorded to pursuant to the authority
granted by the City of National City, as referenced within City of National City board report
, and City of National City Resolution No. , adopted on
August 20, 2013.
City of National City
By: Dated: August , 2013
Ron Morrison, Mayor
Approved as to Form:
By:
Claudia Gacitua Silva
City Attorney
1
ACKNOWLEDGMENT
State of California
County of San Diego
Attachment No. 3
On , 2013, before me, , notary public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity on behalf of which the person acted,
executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
2
Attachment No. 3
ACCEPTANCE
This is to certify that the interest(s) in real property conveyed by this instrument to the
Community Development Commission -Housing Authority of the City of National City are
hereby accepted by the undersigned officer on behalf of the Community Development
Commission -Housing Authority of the City of National City, pursuant to the authority conferred
by City of National City Resolution No. on August 20, 2013, and the grantee
consents to recordation thereof by its duly authorized officer.
Community Development Commission -Housing Authority of the City of National City
By: Dated: August , 2013
Leslie Deese, Executive Director
Approved as to Form:
By:
Claudia Gacitua Silva
General Counsel
ACKNOWLEDGMENT
State of California
County of San Diego
On , 2013, before me, , notary public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person, or the entity on behalf of which the person acted,
executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
3
Attachment No. 3
EXHIBIT "A"
The land referred to herein is situated in the State of California, County of San Diego, City of
National City and described as follows:
PARCEL 1:
THAT CERTAIN PARCEL OF LAND SITUATE IN THE CITY OF NATIONAL CITY, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, BEING A PORTION OF LOTS 1 TO 10, INCLUSIVE, IN
BLOCK 175 OF NATIONAL CITY ACCORDING TO MAP THEREOF NO, 348 FILED OCTOBER 2,
1882, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AND A
PORTION OF THE SOUTHEASTERLY HALF OF THE CLOSED PORTION OF 17TH STREET
ABUTTING UPON SAID LOT 1, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 10 IN BLOCK 175, SAID
CORNER BEING IN THE NORTHWESTERLY LINE OF 18TH STREET AS SHOWN ON SAID
MAP; THENCE SOUTHWESTERLY ALONG THE SOUTHEASTERLY LINE OF SAID LOT 10, A
DISTANCE OF 42.00 FEET TO A LINE PARALLEL WITH AND DISTANT 17.00 FEET
NORTHEASTERLY, MEASURED AT RIGHT ANGLES, FROM THE CENTER LINE OF SAN
DIEGO & ARIZONA EASTERN RAILWAY COMPANY'S MAIN TRACT (SAN DIEGO-SAN
YSIDRO); THENCE NORTHWESTERLY ALONG SAID PARALLEL LINE. 290.00 FEET TO THE
CENTER LINE OF SAID 17TH STREET; THENCE NORTHEASTERLY ALONG SAID CENTER
LINE, 48.00 FEET TO THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY
LINE OF SAID LOT 1 IN BLOCK 175; THENCE SOUTHEASTERLY ALONG SAID
PROLONGATION AND THE NORTHEASTERLY LINE OF SAID LOTS 1 TO 10, A DISTANCE OF
290.00 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH THAT PORTION OF THE SOUTHWESTERLY 1/2 OF THE ALLEY
ADJOINING SAID LOTS 6 THROUGH 10 ON THE NORTHEAST AS VACATED AND CLOSED
TO PUBLIC USE.
EXCEPT THAT PORTION OF SAID LAND LYING BELOW A DEPTH OF 500.00 FEET,
MEASURED VERTICALLY, FROM THE CONTOUR OF THE SURFACE OF SAID PROPERTY;
HOWEVER, GRANTOR. OR ITS SUCCESSORS AND ASSIGNS, SHALL NOT HAVE THE RIGHT
FOR ANY PURPOSE WHATSOEVER TO ENTER UPON, INTO OR THROUGH THE SURFACE OF
SAID PROPERTY OR ANY PART THEREOF LYING BETWEEN SAID SURFACE AND 500.00
FEET BELOW SAID SURFACE, AS EXCEPTED IN THE DEED RECORDED FEBRUARY 7, 1980.
AS FILE NO. 80-044143.
PARCEL 2:
LOTS 13, 14, 15, 16 AND 17 IN BLOCK 115 OF NATIONAL CITY, IN THE CITY OF NATIONAL
CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO. 348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
OCTOBER 2, 1882.
EXCEPTING FROM SAID LOT 13, THE SOUTHERLY 20 FEET THEREOF, TOGETHER WITH
THAT PORTION OF THE NORTHEASTERLY 1/2 OF THE ALLEY ADJOINING SAID LOTS 14
THROUGH 17 AND THE REMAINDER PORTION OF LOT 13 ON THE SOUTHWEST AS
VACATED AND CLOSED TO PUBLIC USE.
4
Attachment No. 3
PARCEL 3:
LOTS 18 AND 19 IN BLOCK 175 OF NATIONAL CITY, IN THE CITY OF NATIONAL CITY,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO.
348, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY.
APN: 559-086-13-00, 559-086-12-00, 559-086-05-00, and 559-086-03-00
5
Attachment No. 4
MONTH -TO -MONTH LEASE
(Public Works Yard-Westside TOD Affordable Site, National City, 91950)
THIS MONTH -TO -MONTH LEASE ("Lease") is dated as of the 30th day of August, 2013,
by and between the Community Development Commission -Housing Authority of the City of
National City ("Landlord"), and the City of National City ("Tenant").
1. Definitions.
"Commencement Date" means August 30, 2013.
"Landlord" means the Community Development Commission -Housing Authority of the
City of National City.
"Premises" means the approximately 6.29 acres of real property in the City of National
City, bounded by 19th Street, Harding Avenue, 22nd Street and Hoover Avenue.
"Rent Commencement Date" means August 30, 2013.
"Tenant" means the City of National City.
"Term" shall have that meaning ascribed to it in Section 3 of this Lease.
2. Lease of the Premises; "As -Is" Condition. Landlord leases to Tenant and Tenant leases
from Landlord the Premises on a triple net basis. Tenant hereby agrees and acknowledges that
Tenant is leasing the Premises "As -Is" from Landlord, without relying on any communications not
set forth herein that may have been made by Landlord, or any of Landlord's agents or employees,
with respect to the Premises or Tenant's intended use thereof. Without limiting the generality of
the foregoing, Tenant shall be solely responsible for determining the condition of the Premises.
Landlord shall have no obligation to improve the Premises.
3. Month -to -Month Lease. This Lease shall commence on the Commencement Date and shall
continue on a month -to -month basis and shall terminate on the earlier of: (i) thirty (30) days written
notice from Landlord to Tenant; (ii) thirty (30) days written notice from Tenant to Landlord; or
(iii) a date mutually agreed upon by Landlord and Tenant ("Term").
4. Rent.
(a) Monthly Rent. Tenant agrees to pay Landlord rent in the amount of $1.00 per
month each and every month during the Term commencing upon the Rent Commencement Date.
(b) Utilities: Maintenance Costs. This Lease is a triple net lease. Tenant shall be
responsible for the payment of all utilities, taxes, assessments, maintenance costs, trash collection
and all other costs of any kind whatsoever with respect to, arising out of or otherwise associated
with the Premises.
Attachment No. 4
5. Alterations. Neither the Landlord, nor Tenant shall make alterations or other changes to
the Premises.
6. Use.
(a) Continued Use. The Landlord purchased the Premises from the Tenant. The Tenant
may continue to use the Premises in the manner used by the Tenant immediately prior to the sale
of the Premises to the Landlord. Tenant shall keep the Premises in a neat, clean and orderly
condition at all times during the Tenn, and shall not permit rubbish, waste or garbage, to
accumulate at any time. Tenant shall not commit or permit any waste of the Premises or any acts
to be done in violation of any laws or ordinances. Tenant shall not use or permit the use of the
Premises for any illegal purposes.
(b) Inspection of Premises. Landlord shall have the right to enter upon the Premises at
all reasonable times without abatement of rent. Tenant hereby waives any claim for damages for
any injury or inconvenience to or interference with Tenant's business, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby. Any entry to the Premises
or portions thereof by Landlord shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an eviction, actual or constructive,
of Tenant from the Premises, or any portion thereof. Any such entries upon the Premises by the
Landlord shall be performed with as little disturbance and inconvenience to Tenant as reasonably
possible.
7. Waiver of Subrogation. If either party sustains loss or damage to the Premises or the
fixtures, goods, wares, merchandise or any other property located thereon, from which it is
protected by an insurance policy, then, to the extent that such party is so protected, it waives any
right of recovery from the other party.
8. Assignment and Sublease. Tenant shall not directly or indirectly, voluntarily or by
operation of law, sublease, sell, assign, encumber, pledge or otherwise transfer or hypothecate all
or any part of the Premises or this Lease, without the written consent of Landlord, which may be
withheld by Landlord in its sole and absolute discretion.
9. Attorneys' Fees. If any action shall be instituted by either Landlord or Tenant for the
enforcement or interpretation of any of its rights or remedies in or under this Lease, the prevailing
party shall be entitled to recover from the losing party all costs incurred by the prevailing party in
said action and any appeal therefrom, including reasonable attorneys' fees and court costs to be
fixed by the court therein.
10. Default.
(a) Tenant's Default. The occurrence of any one or more of the following shall
constitute a default hereunder by Tenant:
(1) Tenant abandons the Premises or vacates the Premises for a period of ten
(10) or more consecutive days;
Attachment No. 4
(2) Tenant fails to pay any rent or other charges required to be paid by Tenant
under this Lease and such failure continues for five (5) days after it is due;
(3) Tenant fails to promptly and fully perform any other covenant, condition or
agreement contained in this Lease and such failure continues for ten (10) days (or such shorter
time provided herein) after written notice thereof from Landlord. Such ten (10) day notice shall
be in lieu of and not in addition to any notice required under California Code of Civil Procedure
Section 1161;
(4) A trustee, disbursing agent or receiver is appointed to take possession of all
or substantially all of Tenant's assets or of Tenant's interest in this Lease and Tenant does not
regain possession within ten (10) days after such appointment; Tenant makes an assignment for
the benefit of creditors; or all or substantially all of Tenant's assets in, on or about the Premises or
Tenant's interest in this Lease are attached or levied upon under execution (and Tenant does not
discharge the same within ten (10) days thereafter);
(5) A petition in bankruptcy, insolvency or for reorganization or arrangement
is filed by or against Tenant pursuant to any federal or state statute and, with respect to any such
petition filed against it, Tenant fails to secure a stay or discharge thereof within ten (10) days after
the filing of the same;
(6) Immediately, in the event of any assignment, subletting or other transfer for
which the prior written consent of the Landlord has not been obtained;
(7) Immediately, in the event Tenant admits in writing its inability to pay its
debts as they mature; or
(8) Immediately, upon the suspension of Tenant's right to conduct its business,
caused by the order, judgment, decree, decision or other act of any court or governmental agency.
(b) Landlord's Remedies. Upon the occurrence of a default by Tenant that is not cured
by Tenant within any applicable grace period, Landlord shall have the following rights and
remedies in addition to all other rights and remedies available to Landlord at law or in equity:
(11)
with applicable law;
The right to terminate this Lease by giving notice to Tenant in accordance
(2) The right and power to enter the Premises and remove therefrom all persons
and property, to store such property in a public warehouse or elsewhere at the cost of and for the
account of Tenant. Before retaking of any such property from storage, Tenant shall pay to
Landlord, upon demand, all expenses incurred in such removal and all storage charges against such
property. Any such property of Tenant not so retaken from storage by Tenant within thirty (30)
days after such property is removed from the Premises shall be deemed abandoned and may be
either disposed of by Landlord pursuant to Section 1988 of the California Civil Code or retained
by Landlord as its own property;
Attachment No. 4
(3) The right to have a receiver appointed for Tenant, upon application by
Landlord, to take possession of the Premises and to apply any rental collected from the Premises
and to exercise all other rights and remedies granted to Landlord for Tenant pursuant to this Section
10; and
(4) The rights and remedies provided by California Civil Code Section 1951.2
to recover from Tenant upon termination of this Lease;
11. Ouiet Enjoyment. Upon payment by Tenant of the rents herein provided, and upon the
observance and performance of all the covenants, terms and conditions on Tenant's part to be
observed and performed, Tenant shall peaceably and quietly hold and enjoy the Premises for the
term hereby demised without hindrance or interruption by Landlord or any other person or persons
lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms
and conditions of this Lease.
12. Notices. Any notices required or permitted hereunder shall be in writing and delivered in
person to the other party or by a nationally recognized overnight courier such as FedEx, or United
States Certified Mail, Return Receipt Requested, postage fully prepaid, to the addresses set forth
below or to such other address as either party may designate in writing and deliver as provided in
this Section.
Landlord:
Community Development Commission -Housing Authority
of the City of National City
Attn: Alfredo Ybarra
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: alfredoy@nationalcityca.gov
Tenant: City of National City
Attn: Brad Raulston
1243 National City Boulevard
National City, CA 91950
Facsimile No. (619) 336-4286
Email: braulstonAnationalcitvca.gov
13. Brokers. Landlord and Tenant covenant, warrant and represent that no broker has been
involved in the negotiation or consummation of this Lease. Tenant and Landlord each agree to
indemnify, defend (with an attorney of the indemnitee's choice) and hold the other harmless from
and against all claims, demands, causes of action and liabilities, including (without limitation)
attorneys' fees and costs, arising out of a claim for a commission by any broker purporting to have
acted on behalf of the indemnifying party.
14. Force Majeure. Neither party shall be required to perform any term, covenant or condition
of this Lease so long as such performance is delayed or prevented by force majeure, which shall
Attachment No. 4
mean any acts of God, material restriction by any governmental authority, civil riot, and any other
cause not reasonably within the control of such party and which by the exercise of due diligence
such party is unable, wholly or in part, to prevent or overcome.
15. General Conditions.
(a) Counterparts. This Lease may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
(b) Captions. The captions in this Lease are inserted for convenience of reference and
in no way define, describe or limit the scope or intent of this Lease or any of the provisions of this
Lease.
(c) Partial Invalidity. Any provision of this Lease which is unenforceable, invalid, or
the inclusion of which would adversely affect the validity, legality, or enforcement of this Lease
shall have no effect, but all the remaining provisions of this Lease shall remain in full effect.
(d) No Third -Party Rights. Nothing in this Lease, express or implied, is intended to
confer upon any person, other than the parties to this Lease and their respective successors and
assigns, any rights or remedies.
(e) Time Of Essence. Time is of the essence in this Lease.
(f) Relationship. Nothing contained in this Lease shall be deemed or construed by the
parties or by any third person to create a relationship of principal and agent or partnership or a
joint venture between Landlord and Tenant or between either or both of them and any third party.
(g) Approval. Where this Lease refers to an action or approval of the Landlord, it shall
mean the approval of the Executive Director of the Community Development Commission -
Housing Authority of the City of National City, or designee, unless otherwise provided. Where
this Lease refers to an action or approval of the Tenant, it shall mean the approval of the City
Manager of the City of National City, or designee, unless otherwise provided.
(h) Further Assurances. Landlord and Tenant agree to execute all such instruments and
documents and to take all actions which are reasonably necessary to carry out this Lease or
accomplish its intent.
(i) Incorporation of Prior Agreements. This Lease contains all agreements of Landlord
and Tenant with respect to any matter mentioned, or dealt with, herein. No prior agreement or
understanding pertaining to any such matter shall be binding upon Landlord or Tenant.
(j) Amendment. This Lease may only be amended by written agreement signed by
Landlord and by Tenant.
Attachment No. 4
(k) No Waiver. No waiver by either party of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach of the same or any other
provision. Landlord's consent to or approval of any act shall not be deemed to render unnecessary
obtaining such Landlord's consent to or approval of any subsequent act. No waiver by either party
shall be effective unless it is in writing, executed on behalf of such party.
(1)
given.
Consents. All consents to be given by either party shall be reasonably and timely
(m) No Leasehold Mortgages. Tenant shall not encumber its leasehold interest in the
Premises, without the prior written approval of the Landlord.
(n) Nondiscrimination. There shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed, religion, sex, sexual orientation,
marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use,
occupancy, tenure or enjoyment of the Premises, nor shall Tenant itself, or any person claiming
under or through it, establish or permit such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees,
subtenants or vendees in the Premises.
(o) Signature Authority. All individuals signing this Lease for a party which is a
corporation, limited liability company, partnership or other legal entity, or signing under a power
of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the
each other party hereto that they have the necessary capacity and authority to act for, sign and bind
the respective entity or principal on whose behalf they are signing.
IN WITNESS WHEREOF, the parties have executed this Lease.
TENANT:
City of National City
By:
Ron Morrison, Mayor
Approved as to Form:
By:
Claudia Gacitua Silva
City Attorney
LANDLORD:
Community Development Commission -Housing Authority of the City of National City
Attachment No. 4
By:
Leslie Deese, Executive Director
Approved as to Form:
By:
Claudia Gacitua Silva
General Counsel
RESOLUTION NO. 2013-
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION -HOUSING
AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO
EXECUTE A PURCHASE AND SALE AGREEMENT WITH THE CITY OF NATIONAL CITY
FOR THE PURCHASE OF TWO PARCELS TOTALING 6.299 ACRES, GENERALLY
BOUNDED BY 19TH STREET, HARDING AVENUE, 22ND STREET, AND HOOVER AVENUE,
IN THE CITY OF NATIONAL CITY FOR THE DEVELOPMENT OF 201 AFFORDABLE
HOUSING UNITS AS PHASE I AND II OF THE WESTSIDE INFILL TRANSIT ORIENTED
DEVELOPMENT PROJECT, ACCEPTING A HOME ALLOCATION OF $2,095,492 FROM
THE CITY OF NATIONAL CITY, AUTHORIZING THE USE OF THE HOME ALLOCATION FOR
THE PARTIAL PAYMENT OF THE PROPERTY PURCHASE, AUTHORIZING THE
EXECUTIVE DIRECTOR OR DESIGNEE TO EXECUTE A PROMISSORY NOTE FOR
$4,941,000 PAYABLE TO THE CITY OF NATIONAL CITY TO COMPLETE SAID PURCHASE,
AND APPROVING A MONTH -TO -MONTH LEASEBACK TO THE CITY OF NATIONAL CITY
OF SAID PROPERTY
WHEREAS, the City is the owner of that certain real property (the "Property") in the City of
National City, State of California consisting of two legal parcels ("Parcel 1 and Parcel 2") totaling 6.299
acres, generally bounded by 19th Street, Harding Avenue, 22nd Street, and Hoover Avenue; and
WHEREAS, the Successor Agency to the Community Development Commission as the
National City Redevelopment Agency (Successor Agency) is subject to the enforceable obligation
commonly referred to as the Westside Infill Transit Oriented Development (WI-TOD) Development and
Disposition Agreement (DDA), entered into June 21, 2011 with Paradise Creek Housing Partners, LP
(Developer); and
WHEREAS, the DDA requires the Property to be acquired for and developed into a 201
unit affordable housing project (the Project), as described in the DDA; and
WHEREAS, the purchase of Parcel 1 and Parcel 2 is being undertaken pursuant to the
requirements of the DDA, as an enforceable obligation of the SA; and
WHEREAS, in accordance with Califomia Health and Safety Code section 34176, the
CDC -HA has accepted the affordable housing functions of the former redevelopment agency pursuant to
resolution number2012-01; and
WHEREAS, the value of the consideration for the Property, pursuant to proposed
Purchase and Sale Agreement (Agreement) will not be less than the appraised value; and
WHEREAS, appraisals completed within the last 60 days indicate a value of $3,815
million for Parcel I and $3.22 million for Parcel 2, for a total appraised value of the Property of $7,035,000;
and
WHEREAS, the CDC -HA will use $2,095,492 in HOME funds to acquire Parcel I and
the CDC -HA has requested a loan in the amount of $4,941,000 from the City in order to provide full
consideration for the remaining balance of the appraised value of Parcel 1 in the amount of $3,815,000 and
the full appraised value of Parcel 2 in the amount of $3,220,000; and
WHEREAS, the CDC -HA would repay the loan with ground lease income and loan
repayments made by the developer of the Project; and
Resolution No. 2013 —
Page Two
WHEREAS, the Property will continue to be temporarily occupied by City Public Works and
the CDC -HA will provide a month -to -month lease agreement for $1.00 per month until the operation is
relocated to another site; and
WHEREAS, the sale of the Property pursuant to the proposed Agreement will improve
the quality of life of the residents of National City and its visitors through the elimination of blight and the
development of a quality Project in the area by providing for the reuse and redevelopment of a
brownfield site; and
WHEREAS, all actions required by all applicable law with respect to the proposed
Agreement have been taken in an appropriate and timely manner; and
WHEREAS, the CDC -HA has duly considered all terms and conditions of the proposed
Agreement and believes that the purchase of the Property, the allocation and expenditure HOME funds,
the loan, and the month to month lease, are all in the best interests of the CDC -HA and the health,
safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable
state and local law requirements.
NOW, THEREFORE, BE IT RESOLVED that the CDC -HA accepts a HOME Grant
from the City of National City to be used for the acquisition and development of Parcel 1 of the Property and
authorizes the Executive Director or her designee to execute any grant related documents.
BE IT FURTHER RESOLVED that the CDC -HA authorizes the Chairman to execute the
Purchase and Sale Agreement between the City of National City and the Community Development
Commission -Housing Authority of the City of National City for the purchase of 6.299 acres of land for a total
purchase price of $7,035,000. Said Purchase and Sale Agreement is on file with the City Clerk.
BE IT FURTHER RESOLVED that the CDC -HA authorizes the partial payment of the
purchase price from the use of HOME Grant funds in the amount of $2,095,492.
BE IT FURTHER RESOLVED that the CDC -HA authorizes its Executive Director or her
designee to execute any and all loan documents, including a promissory note, necessary for an unsecured
loan of $4,941,000 to the CDC -HA for consideration of value owed ion the purchase price, and as
necessary to fulfill the terms of the Purchase and Sale Agreement, including escrow documents. Said loan
documents, including a promissory note, is on file in the Office of the City Clerk.
BE IT FURTHER RESOLVED that the CDC -HA authorizes the Chairman to execute a
Month -to -Month Lease Agreement for the Property until City Public Works operations are relocated. Said
Lease Agreement is on file in the Office of the City Clerk.
BE IT FURTHER RESOLVED that the CDC -HA determines that the WI-TOD project
was previously addressed in the Final Environmental Impact Report for the Westside Specific Plan (State
Clearinghouse No. 2008071092) which was certified by the City Council on March 16, 2010, thus
satisfying CEQA.
Resolution No. 2013 —
Page Three
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Chairman
ATTEST: APPROVED AS TO FORM:
Leslie Deese, Secretary Claudia Gacitua Silva
General Counsel
Agenda Item 25 Revised Resolution
RESOLUTION NO. 2013—
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION -HOUSING
AUTHORITY OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO
EXECUTE A PURCHASE AND SALE AGREEMENT WITH THE CITY OF NATIONAL CITY
FOR THE PURCHASE OF TWO PARCELS TOTALING 6.299 ACRES, GENERALLY
BOUNDED BY 19TH STREET, HARDING AVENUE, 22ND STREET, AND HOOVER AVENUE,
IN THE CITY OF NATIONAL CITY FOR THE DEVELOPMENT OF 201 AFFORDABLE
HOUSING UNITS AS PHASE I AND II OF THE WESTSIDE INFILL TRANSIT ORIENTED
DEVELOPMENT PROJECT, ACCEPTING A HOME ALLOCATION OF $2,095,492 FROM THE
CITY OF NATIONAL CITY, AUTHORIZING THE USE OF THE HOME ALLOCATION FOR THE
PARTIAL PAYMENT OF THE PROPERTY PURCHASE, AUTHORIZING THE EXECUTIVE
DIRECTOR OR DESIGNEE TO EXECUTE A PROMISSORY NOTE FOR $4,941,000
PAYABLE TO THE CITY OF NATIONAL CITY TO COMPLETE SAID PURCHASE, AND
APPROVING A MONTH -TO -MONTH LEASEBACK TO THE CITY OF NATIONAL CITY OF
SAID PROPERTY
WHEREAS, the City is the owner of that certain real property (the "Property") in the
City of National City, State of California consisting of two legal parcels ("Parcel 1 and Parcel 2")
totaling 6.299 acres, generally bounded by 19th Street, Harding Avenue, 22nd Street, and Hoover
Avenue; and
WHEREAS, the Successor Agency to the Community Development Commission
as the National City Redevelopment Agency (Successor Agency) is subject to the enforceable
obligation commonly referred to as the Westside Infill Transit Oriented Development (WI-TOD)
Development and Disposition Agreement (DDA), entered into June 21, 2011 with Paradise Creek
Housing Partners, LP (Developer); and
WHEREAS, the DDA requires the Property to be acquired for and developed into a
201 unit affordable housing project (the Project), as described in the DDA; and
WHEREAS, the purchase of Parcel 1 and Parcel 2 is being undertaken pursuant to
the requirements of the DDA, as an enforceable obligation of the SA; and
WHEREAS, in accordance with California Health and Safety Code section 34176,
the CDC -HA has accepted the affordable housing functions of the former redevelopment agency
pursuant to resolution number 2012-01; and
WHEREAS, the value of the consideration for the Property, pursuant to proposed
Purchase and Sale Agreement (Agreement) will not be less than the appraised value; and
WHEREAS, appraisals completed within the last 60 days indicate a value of $3.815
million for Parcel I and $3.22 million for Parcel 2, for a total appraised value of the Property of
$7,035,000; and
WHEREAS, the CDC -HA will use $2,095,492 in HOME funds to acquire Parcel I
and the CDC -HA has requested a loan in the amount of $4,941,000 from the City in order to
provide full consideration for the remaining balance of the appraised value of Parcel 1 in the
amount of $1,721,000 3,815.000 and the full appraised value of Parcel 2 in the amount of
$3,220,000; and
WHEREAS, the CDC -HA would repay the loan with ground lease income and loan
repayments made by the developer of the Project; and
Agenda Item 25 Revised Resolution
Resolution No. 2013 —
Page Two
WHEREAS, the Property will continue to be temporarily occupied by City Public
Works and the CDC -HA will provide a month -to -month lease agreement for $1.00 per month until
the operation is relocated to another site; and
WHEREAS, the sale of the Property pursuant to the proposed Agreement will
improve the quality of life of the residents of National City and its visitors through the elimination
of blight and the development of a quality Project in the area by providing for the reuse and
redevelopment of a brownfield site; and
WHEREAS, all actions required by all applicable law with respect to the
proposed Agreement have been taken in an appropriate and timely manner; and
WHEREAS, the CDC -HA has duly considered all terms and conditions of the
proposed Agreement and believes that the purchase of the Property, the allocation and
expenditure HOME funds, the loan, and the month to month lease, are all in the best interests
of the CDC -HA and the health, safety, and welfare of its residents, and in accord with the public
purposes and provisions of applicable state and local law requirements.
NOW, THEREFORE, BE IT RESOLVED that the CDC -HA accepts a HOME Grant
from the City of National City to be used for the acquisition and development of Parcel 1 of the
Property and authorizes the Executive Director or her designee to execute any grant related
documents.
BE IT FURTHER RESOLVED that the CDC -HA authorizes the Chairman to
execute the Purchase and Sale Agreement between the City of National City and the Community
Development Commission -Housing Authority of the City of National City for the purchase of 6.299
acres of land for a total purchase price of $7,035,000. Said Purchase and Sale Agreement is on
file with the City Clerk.
BE IT FURTHER RESOLVED that the CDC -HA authorizes the partial payment of
the purchase price from the use of HOME Grant funds in the amount of $2,095,492.
BE IT FURTHER RESOLVED that the CDC -HA authorizes its Executive Director or
her designee to execute any and all loan documents, including a promissory note, necessary for
an unsecured loan of $4,941,000 to the CDC -HA for consideration of value owed ion the purchase
price, and as necessary to fulfill the terms of the Purchase and Sale Agreement, including escrow
documents. Said loan documents, including a promissory note, is on file in the Office of the City
Clerk.
BE IT FURTHER RESOLVED that the CDC -HA authorizes the Chairman to
execute a Month -to -Month Lease Agreement for the Property until City Public Works operations
are relocated. Said Lease Agreement is on file in the Office of the City Clerk.
BE IT FURTHER RESOLVED that the CDC -HA determines that the WI-TOD
project was previously addressed in the Final Environmental Impact Report for the Westside
Specific Plan (State Clearinghouse No. 2008071092) which was certified by the City Council on
March 16, 2010, thus satisfying CEQA.
Agenda Item 25 Revised Resolution
Resolution No. 2013 —
Page Three
PASSED and ADOPTED this 20th day of August, 2013.
Ron Morrison, Chairman
ATTEST:
Leslie Deese, Secretary
APPROVED AS TO FORM:
Claudia Gacitua Silva
General Counsel
Mayor
Ron Morrison
Vice -Mayor
Alejandra Sotelo-Solis
Councitmernbers
Luis Natividad
Mona Rios
Jerry Cano
City Manager
Leslie Deese
Department of Public Works
Director
Joe H.A. Smith
Park Supenntendent
Miguel Diaz
Facilities Maintenance
Supervisor
Rick Hernandez
Trash and Recyclables collected from National City's Cleanup event
The City of National City contracts with EDCO Disposal for the collection of
garbage, rubbish and trash removal within our city limits. As part of that contract
EDCO and the City hold Bi-annual Cleanup events that take place each year in
the Spring and Fall. These events are for all National City residents and are held
at EDCO's transfer station located at 3660 Dalbergia Street near Main Street and
Interstate 5, just West of National City in San Diego. At these events residents
are encouraged to bring recyclables, green waste and any bulky item for disposal
such as appliances, furniture and mattresses. However, should a resident fail to
take advantage of the Bi-annual Cleanup events they can call EDCO directly and
schedule for curbside pick-up of bulky items.
The most recent event was held on June 8, 2013 for residents North of Plaza
Blvd and on June 15, 2013 for residents South of Plaza Blvd.
This two day event combine collected,
Vehicle count
Trash collected
Recycles
Concrete & Rock
Green Waste
E-Waste
Steel & Metals
1,144
413.26 tons
14.40 tons
25.6 tons
2.12 tons
16.60 tons
The next Bi-annual Cleanup events is schedule for November 9, 2013.
Attachment: Past press release for June 2013 event
2100 Hoover Avenue: National City, California 91950
Tel.: (619) 336.4580 Fax: (619) 336.4594
ITEM #26
8-20-13
NATIONAL CITY 2013 COMMUNITY CLEAN UP
The National City Spring Clean Up is here! It's time to get the house and backyard prepared for
the upcoming summer BBQ season and EDCO is here to help.
National City residents can conveniently dispose of items that are too large or too heavy to set
out for pick up on their regular waste collection day.
When: June 8, 2013 - For residents North of Plaza Blvd.
June 15, 2013 - For residents South of Plaza Blvd.
Time: 7:00 a.m. — 2:00 p.m.
Where: EDCO Recovery & Transfer, 3660 Dalbergia Street in San Diego.
Proof of National City residency required.
Items you can bring include, but are not limited to:
• Appliances • Water Heaters • Furniture • Mattresses • Tree Branches
• Miscellaneous Household Clutter
Debris from contractors, landscapers or commercial businesses will NOT be accepted. We also
will NOT accept trucks over one ton or trailers longer than 8 ft. in length.
Once again we will have mulch available for self-load/self-haul at the clean-up event at no cost.
Come early and bring a shovel to get your compost while it lasts!
If you plan to haul your compost in an open truck or trailer, please remember to bring a tarp to
cover your material.
Should you have any questions regarding the National City 2013 Community Clean Up event
please call EDCO at 619-287-7555.
EDCO is family owned and locally operated and provides waste and recycling services
throughout National City.
For more information regarding EDCO visit our website at www.edcodisposal.com.
ITEM #27
8-20-13
City of National City - Designation as a "Purple Heart City"
The Purple Heart organization would like to get all cities, counties and state
governments behind this effort. The following information is provided on the
organization and the Purple Heart medal.
The Purple Heart is specifically a combat decoration and it is our nation's
oldest medal. It was first created by General George Washington in 1782 and
was known as the Badge of Military Merit. It was first awarded to three (3)
soldiers at Newburgh, N.Y. The Badge of Military Merit was made of cloth and
it is the predecessor of the Purple Heart medal.
The current Purple Heart medal was developed by General Douglas MacArthur
in 1932. The new design was created by Miss Elisabeth Will, an Army heraldic
specialist in the Office of the Quartermaster General. The revived form is of
metal, instead of perishable cloth, made in the shape of a rich purple heart
bordered with gold, with a bust of Washington in the center and the
Washington coat -of -arms at the top.
The Purple Heart is awarded to members of the armed forces of the U. S. who
are wounded by an instrument of war in the hands of the enemy and
posthumously to the next of kin in the name of those who are killed in action
or die of wounds received in action. The heritage it represents is sacred to
those who understand the price paid to wear it.
Therefore, Chapter 0049 of the Military Order of the Purple Heart is
approaching the city of National City for an acknowledgement, via a resolution
and/or City Proclamation, that it is a supporter. In essence, by declaring
National City a supporter, the city would embrace and honor all those who
have sacrificed to protect our country, including Purple Heart holders. Each
year on August 7th, the nation celebrates Purple Heart Day and this would be
a fitting way for the City to acknowledge and celebrate 2013.
Included are sample resolutions and proclamations used by other cities or
counties and information on the current status of cities and counties in
California that have approved the concept. Note: The state of California has
approved and signed a declaration. To give you a wider view from a national
perspective, please consult the following web site to view cities, counties and
states that have approved the concept. See:
https: //www.google.com/fusiontables/embedviz?viz=MAP&q=select+colt+from
+ 19RN9LbgpidmYwNSTHWD7FfQzbyk470M27kSyA2w&h=false&lat=35.208452
29790033&1ng=-99.07373463906253&z=5&t=1 &1=col l &v=2&tmplt=3
Follow MOPH Chapter 0049 at: http://www.sandiegopurpleheart.com
I f
goijagta QCountp 3oarb of Superbilior0
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Proclamation
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Tja�ta County
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- R. Put* i0eart Countp -
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WHEREAS, the people of the County of Shasta have great admiration and the utmost
)
dr
I.in
gratitude for all the men and women who have selflessly served their country and this community
the Armed Forces; and
I 1
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WHEREAS, veterans have paid the high price of freedom by leaving their families and
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communities and placing themselves in harm's way for the good of all; and
I(
WHEREAS, the contributions and sacrifices of the men and women from Shasta County
who served in the Armed Forces have been vital in maintaining the freedoms and way of life
.
enjoyed by our citizens; and
(
WHEREAS, many men and women in uniform have given their lives while serving in the
)
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Armed Forces; and
I(
WHEREAS, many citizens of our community have earned the Purple Heart Medal as a
Iresult
of being woundedof while engaged in combat with an enemy force, construed as a singularly
`r
meritorious acessential service; and
t
Ie
WHEREAS, September 20, 2011 has officially been designated as the day in
I(
Shasta County to remember and recognize veterans who are recipients of the Purple Heart Medal.
C
NOW, THEREFORE, BE IT RESOLVED that the Shasta County Board of Supervisors
hereby proclaims Shasta County as a Purple Heart County, the first County in the nation so
C
designated, honoring the service and sacrifice of our nation's men and women in uniform
(
wounded or killed by the enemy while serving to protect the freedoms enjoyed by all Americans.
(t,
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is.,,,,1', .., ; 3Ee0 Naugb, Cjairman
rN, is . i `, i, treptember 20, 2011
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PROCLAMATION
WHEREAS, Polk County is located in the heart of Florida and has always supported our
Military Veteran population, now numbering over 50,000; and
WHEREAS, the Purple Heart is the oldest military decoration in use today which evolved from
the Badge of Military Merit created in 1782 by General George Washington for the common
soldier; and
WHEREAS, the Purple Heart is awarded to members of the United States Armed Forces that
have been wounded or killed in combat with a declared enemy of the United States of America;
and
WHEREAS, the mission of the Military Order of the Purple Heart is to foster an environment of
goodwill among the combat wounded veteran and their families, promote patriotism, support
legislative initiatives and most importantly, make sure we never forget; and
WHEREAS, Polk County has a large, highly decorated veteran population including an
estimated 4,000 Purple Heart recipients and three Congressional Medal of Honor recipients,
James H. Mills, James R Hendrix and William R. Charette; and
WHEREAS, Navy Corpsman William R. Charette, recipient of the MOH, had the Charette
Health Care Center, a part of the Naval Medical Center in Portsmouth, Virginia, dedicated in his
honor on the 30th of April, 1999; and
WHEREAS, we appreciate the sacrifices our Purple Heart recipients have made in defending
our freedoms and believe it is important that we acknowledge them for their courage and show
them the support they have earned; and
NOW, THEREFORE, I Michael S. Carter, by virtue of the authority vested in me as Mayor of
the City of Lake Wales, in the State of Florida, do hereby declare that we are a
Purple Heart City
and fully support our county as one of the first "Purple Heart Counties in the Heart of Florida.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the Official Seal of the
City of Lake Wales, Polk County, Florida, to be affixed this 1st day of July 17, 2012.
Mayor/Commissioner
California as of 7-1-13
STATE
LOCATION
DATE
REGION
CONF?
California
Anderson, CA 96007
9/20/2011
VI
RS
California
Arvin, CA 93203
1/17/2012
VI
RS
California
Bakersfield, CA 93301
2/16/2012
VI
RS
California
California, USA 93637
4/6/2012
VI
Yes
California
Carlsbad, CA 92008
4/24/2012
VI
Yes
California
Colusa County, CA 95932
Need date
VI
Yes
California
Encinitas, CA 92024
6/20/2012
VI
Yes
California
Escondido, CA 92025
3/28/2012
VI
RS
California
Garden Grove, CA 92840
11/27/2012
VI
Yes
California
Kern County, CA 93301
2/14/2013
VI
RS
California
Los Angeles, CA 90001
10/16/2012
VI
Yes
California
McFarland, CA 93250
2/14/2012
VI
RS
California
Oceanside, CA 92054
4/11/2012
VI
RS
California
Port Hueneme, CA 93041
5/21/2012
VI
RS
California
Redding, CA 96001
9/20/2011
VI
RS
California
Riverside County, CA 92501
6/19/2012
VI
RS
California
Rohnert Park, CA 94926
6/14/2012
VI
RS
California
San Marcos, CA 92069
3/27/2012
VI
RS
California
Shasta County, CA 96087
9/20/2011
VI
RS
California
Shasta Lake, CA 96019
9/20/2011
VI
RS
California
Simi Valley, CA 93062
9/26/2011
VI
RS
California
Tehachapi, CA 93561
4/26/2012
VI
RS
California
Ventura County, CA 93007
6/19/2012
VI
RS
ITEM # 28
8/20/13
REPORT ON PROJECT INTERCHANGE - BI-PARTISAN
DELEGATION OF SAN DIEGO OFFICIALS'
EDUCATIONAL VISIT TO ISRAEL
COUNCILMEMBER SOTELO-SOLIS
Bi-partisan Delegation of San Diego,
California Officials in Israel
July 22nd, 2013
Bi-partisan Delegation of San Diego, California Officials in Israel
Focus on Desalination, Integration of Immigrants, Cutting -Edge Hi Tech
(Jerusalem, ISRAEL) - A bipartisan delegation of prominent San Diego -area officials is
traveling in Israel for intensive dialogue and briefings. The educational seminar, led by
Project Interchange, an educational institute of AJC, in cooperation with the JCRC
(Jewish Community Relations Council) and the Jewish Federation of San Diego County,
follows a similar seminar for San Diego leaders first conducted in 2009.
The intensive seminar, featuring San Diego -area City Council members, Board of
Education leaders, and an Assembly Member, will focus on providing these policymakers
with a first-hand understanding of Israel, its rich and dynamic society, and often -times
complex realities. The visit, funded by the Jewish Community Relations Council of the
Jewish Federation of San Diego County, and not tax payers, includes meetings with
influential figures across Israel's political and social spectrum, including senior Israeli,
Palestinian and Israeli Arab figures.
In particular, the delegation will focus on sharing best practices on economic
development and technology start-ups, environmental management and renewable
energy, desalination technology (critical for San Diego), absorption and integration of
immigrant communities, education, and city administration. All of these areas are issues
of importance for the communities the San Diego -area officials represent.
Several sessions dealing with Israel's strategic environment, diversity and inter -group
issues and inter -religious cooperation will also be featured during the week-long
educational seminar, including initiatives that foster effective coexistence between Arabs
and Jews.
The delegation will also observe how Israel balances the preservation of its heritage with
modern municipal management, including energy and water management and the
provision of social services, demonstrating the unique challenges and successes of Israeli
cities and towns, and models for possible integration by the San Diego -area leaders.
Meetings and demonstrations of cutting -edge technology will take place with clean -tech
and high-tech companies to foster opportunities for collaboration and economic
partnership, to the benefit of both communities.
Sam Witkin, Executive Director of Project Interchange, noted, "Project Interchange is
tremendously pleased to host this delegation of San Diego -area city council members,
education, and community leaders to Israel. These officials represent a diverse set of
constituencies, but they share a common interest in job creation, high tech innovation,
and the successful absorption and integration of immigrants. As these are key priorities
for Israel as well, we hope participants will return home with a better sense of the
similarities between their communities and those in Israel."
Michael Sonduck, President and CEO of the Jewish Federation of San Diego, in
commenting on the trip said, "Federation is very excited to partner with Project
Interchange through our JCRC in order to bring San Diego County elected officials and
community leaders to Israel together. Over our 75+ years of serving the San Diego
Jewish Community it has been our privilege to work closely with elected officials at all
levels of government. Trips like this only serve to strengthen our relationships by
providing elected officials first-hand experiences of Israel. We want to thank the elected
officials who joined us on this trip."
Linda Feldman, Director of the Jewish Community Relations Council commented that "I
am excited to be travelling to Israel with such a dynamic group of elected officials and
community leaders. The opportunity to learn first-hand about Israel and the San Diego
community's connections to this vibrant, democratic ally of the United States in the
Middle East is an invaluable experience."
Delegation participants include:
Council Member John Aguilera
Council Member John Aguilera was elected to the Vista City Council in November, 2010
and served as the Mayor Pro Tem in 2011.
Board of Education Trustee Richard Barrera
Board of Education Trustee Richard Barrera was first elected to the San Diego Unified
Board of Education in 2008, and again in 2012. Mr. Barrera was recently appointed to a
new position on the San Diego Imperial Counties Labor Council Board.
Board of Education Trustee Kevin Beiser
Mr. Kevin Beiser is currently the Vice President of San Diego Unified Board of
Education and was elected to the School Board in 2010. Mr. Beiser is also a math
teacher in the Sweetwater Union High School District at Granger Junior High School and
was named, "San Diego Math Teacher of the Year" in 2009.
City Council Member George Gastil
Council Member George Gastil has served on the Lemon Grove City Council since
2008. He also serves as Senior Field Representative for California State Assembly
member, Shirley Weber.
City Council Member Tony Kranz
Council Member Kranz was elected to the Encinitas City Council in 2012 and is working
to promote policies to protect our natural resources, improve the quality of life and
address social justice issues.
Council Member Alejandra Sotelo-Solis
In 2008, Alejandra Sotelo-Solis was elected to serve on the National City City Council
and was re-elected in 2012.
Assembly Member Shirley Nash Weber
Assembly Member Shirley Nash Weber was elected in November of 2012 to represent
California's 79th Assembly District, which includes the cities of Bonita, Chula Vista, La
Mesa, Lemon Grove, National City and San Diego.
# # #
Project Interchange, a non-profit educational institute of AJC (American Jewish
Committee), develops and conducts educational seminars in Israel for American and
international leaders. Celebrating its 30th anniversary, Project Interchange has brought
over 6,000 influential figures to Israel from 77 countries, offering them broad exposure
and first-hand understanding of Israel and the region.
www.proj ectinterchange. org