HomeMy WebLinkAbout6550-6560RESOLUTION NO. 6560 (1988 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
GRANTING APPROVAL OF TENTATIVE TRACT NO. 1439
LOCATED AT 1901 ROYAL WAY
BE IT RESOLVED by the Council of the City of San Luis Obispo as follows:
SECTION 1. Findings. That this council, after consideration of the tentative
map of Tract 1439 and the Planning Commission's recommendations, staff recommendations
and reports thereon, makes the following findings:
The proposed use will not adversely affect the health, safety and welfare of persons
living or working on the site or in the vicinity.
2. The use is appropriate at the proposed location and will be compatible with
surrounding land uses.
3. The design of the subdivision, as conditioned, and proposed improvements are
consistent with the general plan.
4. The site is physically suited for the type and density of development allowed in an
R -1 -S zone.
5. The design of the subdivision and the proposed improvements are not likely to cause
serious health problems, substantial environmental damage or substantially and
unavoidably injure fish or wildlife or their habitat.
6. The design of the subdivision or the type of improvement will not conflict with
easement for access through (or use of property within) the proposed subdivision.
7. The Community Development Director has determined that the proposed subdivision will
not have a significant effect on the environment and has granted a negative
declaration.
SECTION 2. Conditions. That the approval of the tentative map for Tract 1439 be
subject to the following conditions:
Creek improvements shall be limited to those shown on a creek plan submitted to the
approval of the Public Works Department and the Community Development Director, and
in accordance with permits obtained from the Department of Fish and Game. Such creek
plan shall show the extent of grading, proposed erosion and siltation control and
revegetation techniques, and fencing, plus any other related work required by the
Community Development Director and City Engineer.
6560
Resolution No. 6560 (1988 Series)
Tract 1439
Page 2
2. The subdivider shall offer for dedication to the city an area extending from the
centerline of Prefumo Creek to a line averaging. 20' beyond the top of bank, for park
purposes. Prior to approval of the final map, the applicant shall stake the area to
be dedicated. The staked area shall be reviewed by the Community Development
Director to assure adequate area. for passage and to protect trees and other riparian
vegetation. The precise boundary of the area to be dedicated shall be approved by
the City Council with the recommendation of the Community Development Director, at
the time of approval of the final map. If necessary to accomodate the creek
dedication, some lots are hereby granted exceptions in area, width, or length. The
Community Development Department. staff shall determine the exact exceptions required;
if any. This area shall be counted as meeting the subdivision's park dedication
requirements.
The subdivider shall also provide a public access easement from Rubio Lane to the
creek, to the approval of the Community Development Director, and shall provide an
easement for maintenance purposes only, extending from Fairway Drive to the golf
course, to the approval of the Public Works Department.
3. Subdivider must provide a hydraulic analysis illustrating the effects of this project
during a 100 -year storm on projects downstream. It the analysis indicates additional
work to prevent further erosion of the Prefumo Creek banks must be done, such work
must be approved as part of the creek plan, and is subject to approval by the Army
Corps of Engineers and the Department of Fish and Game. Said work shall be installed
by the subdivider.
4. No trees may be removed, except with the approval of the city arborist and the
Community Development Director. The subdivider shall develop a tree protection plan
and post a bond to assure the safety of the existing trees during construction of
tract improvements, to the satisfaction of the city arborist and Community
Development Director.
5. One -inch minimum water services must be installed to accommodate possible future fire
sprinklers. Rubio Lane shall meet Fire Department requirements or fire sprinklers
will be required for homes built on lots 4 through 9.! On- street parking shall be
provided in the cul -de -sac.
6. The subdivider must install a 4 -foot integral sidewalk, street pavement; street
lighting, fire hydrants, drainage facilities, and utilities along both public streets
to city standards and to the satisfaction of the City Engineer and Utilities
Engineer. Six -foot public utility easements and ten -foot street tree easements are
required along all street frontages.
7. An updated soils report shall be prepared after grading of the site is completed.
Such soils report shall make specific foundation recommendations for each lot. The
final map or other recorded documentation of the tract shall refer to the updated
soils report.
8. Lot #2 shall be increased in length if necessary to accomodate building of a home on
this lot without harming the existing 48 "- diameter oak tree.
� r
Resolution No. 6560 (1988 Series)
Tract 1439
Page 3
9. All homes built on lots 1 and 3 through 7 shall be set. back a minimum of ten feet
from the rear property line.
10. The subdivider shall inform future lot buyers of the possibility of building permit
delay based on the city's water supply and usage. Such notification shall be made a
part of the recorded documentation for each lot.
On motion of Councilwoman Rappa . seconded
by Councilman Reiss and on the following roll call vote:
AYES: Councilmembers Rappa, Reiss, Pinard and Mayor Dunin
NOES: None
ABSENT: Councilman Settle
the foregoing resolution was passed and adopted this20th "day of December 1988
® I
yor
A ST:
L- " U!, 1-1--�
Ci Clerk
APPROVED:
Community Development Director
�l
i
c
Resolution No. 6559 (Series 198 8)
city Of san Luis OBISAP0
Resotution
of appreciation
EXPRESSING THE CITY'S GRATITUDE AND APPRECIATION
TO PHIL LEO FOR HIS LONG AND DEDICATED
SERVICE TO THE CITY AND ITS CITIZENS.
WHEREAS, Phil Leo has had a distinguished career with the City of San Luis
Obispo, spanning more than 19 years,• and,
WHEREAS, Since his appointment in September 1969, Phil has performed with
distinction at a number of building maintenance positions; and;
WHEREAS, Phil is now Building Maintenance Supervisor, in charge of building
maintenance of 14 city buildings and facilities; and,
WHEREAS, Phil's responsibilities now include coordination of many construction
contracts, maintenance of a heavily used community pool, and management of energy
conserving operations; and,
WHEREAS, During Phil's tenure, City Nall has experienced two major remodels
and unending minor remodels; and,
WHEREAS, Phil has struggled manfully to keep all city facilities functioning
during major floods, heavy rains, power outages, utility upgrades, remodels,
and innumerable minor improvement projects; and,
WHEREAS, Through all the difficult times and projects, Phil has managed to
maintain his own special brand of humor; and,
WHEREAS, Phil's special knowledge, abilities and humor will be sorely
missed by City Hall,
NOW, THEREFORE, BE IT RESOLVED that this City Council wishes to express its
gratitude and appreciation to Phil Leo for the long and dedicated service he
has performed for the city and its citizens.
On motion of Vice -Mayor Peg Pinard, seconded by Councilwoman Penny Rappa ,
and on the following roll call. vote:
AYES: Vice -Mayor Pinard, Councilmembers Rappa, Reiss, and Mayor Dunin
NOES: None
ABSENT: Councilman Settle
the foregoing Resolution was passed and adopted this 20th day of December ,
1988.
152
\ 6559
15
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS
OBISPO APPROVING AN AGIUMP= BETWEEN THE CITY AND
CLINIC PROPERTIES FOR REDEVELOPMERr OF A PARKING WT
AND A02UISITICN OF REAL PROPEKPY
BE IT RESOLVED by the Council of the City of San Luis Obispo as
follows:
SECTION 1. That certain agreement, attached hereto marked
Exhibit "A" and incorporated herein by reference, between the City
of San Luis Obispo and Clinic Properties, for redevelopment of a
parking lot and acquisition of real property is hereby approved and
the Mayor is authorized to execute the same.
SECTION 2. The City clerk shall furnish a copy of this
resolution and a copy of the executed agreement approved by it to:
Clinic Properties and City Parking Program Coordinator as set forth
in the agreement.
On motion of Councilwoman Rappa , seconded by Councilwoman Pinar
and on the following roll call vote:
AYES: Councilwomen Pinard and Rappa, and Mayor Dunin
NOES: Councilman Jerry Reiss
ABSENT: Councilman Settle
the foregoing Resolution was passed and adopted this 20th day of
December , 1988.
ATTES
V GES,. CITY C -RK
Y-
r Yep e �.0
YOR RON DUNIN
RECEIVED
A7, 41989
CITY CLERK
R 6558
VOL 3290 PAGE 756
Doc. No. 19043
OFFICIAL RECORDS
~J
SAN LUIS OBISPO CO., CA
MAR 3 01989
FRANCIS M. COONEY
County Cterk- Recorder
TIME g; 20 AM
RECORDING REQUESTED BY:
and when recorded return
to:
City Clerk
City of San Luis
Obispo,
P.O. Box 8100
San Luis Obispo,
CA RESOLUTION NO. 6558 (1988
Series)
93403
15
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS
OBISPO APPROVING AN AGIUMP= BETWEEN THE CITY AND
CLINIC PROPERTIES FOR REDEVELOPMERr OF A PARKING WT
AND A02UISITICN OF REAL PROPEKPY
BE IT RESOLVED by the Council of the City of San Luis Obispo as
follows:
SECTION 1. That certain agreement, attached hereto marked
Exhibit "A" and incorporated herein by reference, between the City
of San Luis Obispo and Clinic Properties, for redevelopment of a
parking lot and acquisition of real property is hereby approved and
the Mayor is authorized to execute the same.
SECTION 2. The City clerk shall furnish a copy of this
resolution and a copy of the executed agreement approved by it to:
Clinic Properties and City Parking Program Coordinator as set forth
in the agreement.
On motion of Councilwoman Rappa , seconded by Councilwoman Pinar
and on the following roll call vote:
AYES: Councilwomen Pinard and Rappa, and Mayor Dunin
NOES: Councilman Jerry Reiss
ABSENT: Councilman Settle
the foregoing Resolution was passed and adopted this 20th day of
December , 1988.
ATTES
V GES,. CITY C -RK
Y-
r Yep e �.0
YOR RON DUNIN
RECEIVED
A7, 41989
CITY CLERK
R 6558
VOL 3290 PAGE 756
Resolution No. 6558 *88 Series)
Page Two
City Atto
CH/resolu4
.VOL 3290 PAc '757
� (Z) (
TICOR TITLE INSUR[ ^ 'CE r
�,\�lcCe.iifED - --
MAR 2 71989
MARCH 27, 1989 OFFICE OF
CITY ATTORNEY
CITY OF SAN LUIS OBISPO
ATTN: VICKI FINUCANE - CITY ATTORNEY'S OFFICE
990 PALM STREET
SAN LUIS OBISPO, CA. 93401
Re: Escrow No.: 1670011M
Your Reference: CLINIC PROPERTIES TO CITY OF SLO: (870 PACIFIC ST.)/
We have checked certain matters below which require your attention for the
efficient handling of your escrow.
Please SIGN AND RETURN the following, if satisfactory; copies enclosed to
retain for your file:
(4-Escrow Instructions
Please FILL OUT, SIGN AND RETURN:
(x) Preliminary change of ownership report
PLEASE NOTE: A COPY OF THE PRELIMINARY TITLE REPORT DATED FEB. 60, 1989 IS
ALSO ENCLOSED. PLEASE REVIEW IN PARTICULAR ITEMS #2, 5, 6 & 7 - THESE ITEMS
WILL SHOW IN YOUR TITLE POLICY WITHOUT APPROPRIATE ACTION To PARTIALLY .
RECONVEY OR RELEASE THEM. PLEASE CONTACT US AS TO YOUR REQUIREMENTS IN, TH.
REGARD. ��U1�2v�z
h'�.vs U� Opi
Your prompt delivery to us of the necessary documents will be appreciated. Tcx - /TCi
Any papers enclosed we believe to be self - explanatory. Should you wish
further information, please call on us.
Thank you for the opportunity to be of service.
Sincerely,
TICOR TIT URANCE CO F CALIFORNIA
By: it
CROW OFFICER - RUSSELL J. WHITE, C.E.O.
Ticor Title Insurance Company of California
1212 Marsh Street, P.O. Box 810. San Luis Obispo, California 93406 (805) 543 -2900
'291 TICOR TITLE INSURANCE
TO: TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
1212. MARSH STREET, POST OFFICE BOX 810
SAN LUIS OBISPO, CALIFORNIA 93406
(805) 543 2900
;'D
DATE: MARCH 24, 1989
ESCROW NO: 167001RW
ESCROW OFFICER: RUSSELL J. WHITE
CONTRACT AGREEMENT ESCROW INSTRUCTIONS
SECTION I
The attached PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS by and between CLINIC
PROPERTIES PARTNERSHIP, A CALIFORNIA GENERAL PARTNERSHIP, and CITY OF SAN LUIS OBISPO,
A MUNICIPAL CORPORATION, dated DECEMBER 20, 1988, is to be construed as your escrow
instructions, and you are authorized to act thereunder insofar as closing your escrow
is concerned. However, you are only to be concerned with paragraphs numbered 1, 3, 41
51 6, 7, 81 11 contained in the above mentioned contract. All other items of said
contract are matters between the parties. The Gene 1 Provisions attached hereto are
hereby incorporated and made a part hereof.
S�N II
You are authorized to deliver and/or record all documents and disburse all funds when
you will issue your current form of CLTA OWNERS policy of title insurance
with liability in the amount of $4,655.00 on the real property described as:
THAT PORTION OF LOT 9, BLOCK. 100 OF MISSION VINEYARD TRACT, IN THE CITY OF SAN LUIS
OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA,.AS PER MAP THEREOF RECORDED IN
BOOK At PAGE 143 OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT; THENCE NORTH 53007' EAST ALONG THE
NORTHERLY LINE OF SAID LOT A DISTANCE OF 10.00 FEET TO A POINT; THENCE SOUTH 360
53'EAST PARALLEL TO THE WESTERLY LINE OF SAID LOT A DISTANCE OF 9.11 FEET TO A POINT;
THENCE SOUTH 13 097'00" WEST A DISTANCE OF 13.05 FEET, MORE OR LESS, TO THE WESTERLY
IINE OF SAID LOT; THENCE NORTH 36 °53' WEST A DISTANCE OF 17.50 FEET, MORE OR LESS, To
THE POINT OF BEGINNING.
.. SHOWING TITLE VESTED IN
CITY OF SAN LUIS OBISPO,
A MUNICIPAL CORPORATION!,
SUBJECT TO:
( 1) Real property general and special taxes fo :the ENTIRE fiscal year 1989 -90 and
subsequent years, including reassessments if any';and including any special district
levies or personal property taxes, payment for which are included therein and collected
therewith, and improvement bond assessments,.when applicable.
(la) The lien of supplemental taxes, if any, assessed pursuant to the provisions of
Chapter 3.5 (commencing with Section 75) of the. Revenue and Taxation Code. of the State
of California.
( 2) Covenants, conditions, restrictions, rights`of sway, easements and reservations of
record.
1. PRORATE or adjust
(X) Parties to advise
proration, if any.
SECTION III
the following items as indicated to
Escrow in writing prior to close of
the close of escrow:.
escrow as to manner of tax
Con FOiL�C;i)it litiCCItL35
o
TICOR TITIFE INSURANCIE
PAGE TWO
2. HAZARD/FIRE INSURANCE:
(X) No hazard, peril or liability insurance policy is to be obtained or transferred
through this escrow, and escrow holder is not to beheld responsible or liable in
connection herewith.
SECTION IV
1. Buyer will hand you the following:
(a) CERTIFICATE OF COMPLIANCE covering the within described property; Q
(b) CERTIFICATE OF ACCEPTANCE to be attached to the deed to be recorded at the
close of escrow.
2. The buyer and seller herein are aware that the legal description covered in the
Preliminary Report to be issued in connection with this escrow will cover the "Parent
Property ", currently owned by seller.
The property to be conveyed in this escrow, however, will be. described as set forth in
these instructions, which is the description set forth as Exhibit "1" of the Purchase
Agreement and Escrow Instructions dated December 20, 1988, and will be described in the
Certificate of Compliance. to be deposited with escrow holder prior to close of escrow.
3. This escrow and the - buyer's and seller's obligations herein are contingent upon the
buyer's approval to escrow of the items in the preliminary report of title to which the
buyer's title will be subject within TWELVE calendar days of the mailing thereof by
escrow holder to a buyer at his/her address hereinafter set forth. If written
disapproval of any matter is not delivered to escrow holder within the time specified
above, then all such matters shall be deemed approved and this contingency satisfied.
4. These escrow instructions shall not amend, cancel or supersede that certain PURCHASE
AGREEMENT AND ESCROW INSTRUCTIONS dated. December 20, 1988 between the buyer and seller.
Escrow holder's only obligation, however, is to follow these escrow instructions or
amendments thereto and escrow is not responsible or liable for provisions in any other
agreement.
5. You are authorized to obtain demand(s) and reconveyance(s) of existing encutnbrance(s)
not to remain of record and to pay said denand(s) on seller's approval at close of
escrow.
6. Upon close of escrow you are authorized to charge our respective account the costs
attributable to each, including but not limited:to the following as indicated below or
in accordance with our respective estimated statements attached hereto and made a part
hereof .
SELLER BUYER
Owners Title Insurance Premium ............... 250.00
Escrow Fee .... .......................9.....e. 200.00
Recording Fees ...............................
Document Preparation ......................... 20.00
Documentary Transfer Tax as required..........
Insurance Preniu m ..............
Commission per separate instruction...........
7. SHOULD THE PARTIES HAVE ANY QUESTIONS CONCERNING THE SIGNING OF DOCUMENTS OR THE
INTERPRETATION OF THESE INSTRUCTIONS THEY ARE, - ADVISED TO CONSULT-THEIR ATTORNEY, .
8. The following are matters between the buyer'JM "seller with which escrow holder is
not concerned, liable or responsible and are not a condition of the escrow.
a. Buyer agrees to perform as instructed in Item #2 a,b & c of the Purchase Agreement
and Escrow Instructions, prior to the close of escrow.
* *GENERAL PROVISIONS CONTINUED ON NEXT PAGE **
Ticor Title Insurance Company of California
CAT. NO. FF00111 \.� ESCROW INSTRUCTIONS
ES'364..-; CA. (9 -87)
(continued) ;
TO:.TICOR TITLE INSURANCE COMPANY OF CALIFORNIA
GENERAL PROVISIONS
1. All funds received in this escrow shall be deposited with other
escrow funds in a general escrow account or accounts of
Ticor Title Insurance Company of California, with any state
or national bank, and may be transferred to any other such
general escrow account or accounts. All disbursements
shall be made by check of Ticor Title Insurance Company
of California. Ticor Title shall not be responsible for any
delay in closing if funds received by escrow are not available
for immediate withdrawal.
2. All proration and adjustments called for in this escrow are
to be made on the basis of a 30 day month unless otherwise
instructed in writing. You are not responsible for any pay-
ment, adjustment or proration of a Homeowners Association
(or similar) charge, fee or unrecorded lien unless set forth in
the escrow instructions.
3. The phrase "close of escrow" (or COE or CE) as used in this
escrow means the date on which documents are recorded,
unless otherwise specified.
4. Recordation of any instruments delivered through this
escrow, if necessary or proper for the issuance of the policy
of title insurance called for, is authorized.
5. You are authorized to furnish copies of escrow instructions,
supplements, amendments or notices of cancellation and
dosing statements in this escrow to the real estate broker(s)
and lender(s) referred to in this escrow.
6. You are authorized to execute on behalf of the principals
hereto, form assignments of interest in any insurance policy
(other than title insurance) called for in this escrow; forward
assignment and policy to the agent requesting that insurer
consent to such assignment and attach a loss payable clause
or such other endorsements as may be required, and to
forward such policy to the lenders and principals entitled
thereto.
7. If a demand to cancel is submitted after the time limit date,
any principal so requesting you to cancel this escrow shall
file notice, of demand to cancel in your office in writing.
You shall within three (3) working days thereafter mail by
certified mail one copy of such notice to each of the other
principals at the addresses stated in this escrow. Unless
written objection thereto is filed in your office by a prin-
cipal within fifteen (15) calendar days after date of such
mailing, you are authorized to cancel this escrow. If written
objection is filed with you, you are authorized to hold all
money and documents in this escrow and take no further
action until otherwise directed, either by the principals'
mutual written instructions or by final order of a court of
competent jurisdiction. If this is a sale escrow, you may
return lender's papers and /or funds upon lender's demand..
S. No examination or insurance as to the amount or payment
of, personal property taxes is required unless specifically
requested in writing.
9. Delivery to escrow of all notices, communications and
documents are required to be made timely at the office of
Ticor Title Insurance Company of California set forth on
page 1 of these instructions.
10. The principals hereto expressly agree that you, as escrow
holder, have the absolute right at your election to file an
action in interpleader in a court of competent jurisdiction
requiring the principals to answer and litigate their several
claims and rights among themselves and you are authorized
to deposit with the clerk of the court all documents and funds
held in this escrow. In the event such action is filed, the
DATE: MARCH 24, 1989
ESCROW NO.: 1670011M
PAGE NO.: THREE
principals jointly and severally agree to pay your cancellation
charges and costs, expenses and reasonable attorney's fees
which .you are required to expend or incur in such inter
Pleader action, the amount thereof to be fixed and judgment
to be rendered by the court. Upon the filing of such action,
you shall thereupon be fully released and discharged from all
obligations to further perform any duties or obligatioru
otherwise imposed by the terms of this escrow.
11. In the event of cancellation of this escrow, the fees anc
charges due Ticor Title Insurance Company of California
including expenditures incurred or authorized shall b(
borne equally by the parties hereto unless otherwise spe
eifieally agreed to or determined by a court of competen,
jurisdiction.
12. In the event of cancellation of this escrow, you are authorizec
to demand payment of your charges and, on payment
thereof, return documents and monies to the respective
parties .depositing same or for whose benefit an uncondi
tional deposit was made; and to void executed instruments
13. If there is no written activity by a principal delivered tc
this escrow within any six -month period after the tim(
limit date as set forth in the escrow instructions or writter
extension thereof, your agency obligation shall terminate a
your option and all documents, monies or other items helc
by you shall be returned to the respective parties entitlec
thereto, less fees and charges herein provided.
14. Upon receipt of any conflicting instructions, other thar
cancellation instructions described in paragraph 7 above
you are no longer obligated to take any further action it
connection with this escrow until further concurring in
structions are received from the principals to this escrow
15. You are not to be concerned with any question of usury it
any loan or encumbrance involved in the processing of this
escrow and you are hereby released from any responsibility
or liability therefor.
16. You are to be concerned only with the directives specifically
set forth in the escrow instructions and amendments thereto
and are not to be concerned or liable for items designated a
°memoranda" in the within escrow instructions nor Witt
any other agreement or contract between the parties.
17. You are not required to submit any title report issued it
connection with this escrow to any party or agent unless
directed to do so by written mutual instructions. You may
however, do so without incurring liability to any party foi
such submission. You are hereby authorized to submii
such reports to any proposed lender.
18. You are authorized to destroy or otherwise dispose of any
and all documents, papers, instructions, correspondence anc
other 'material pertaining to this escrow at the expiration of
seven years from the close of escrow or cancellation thereof
without liability and without further notice to parties tc
the transaction.
19.. You are released from and shall have no liability, obligatior
or responsibility with respect to (a)' withholding of fund;
pursuant to Section 1445 of the Internal Revenue Code of
.1954 as amended, (b) advising the parties as to the require
relents of such Section, (c) determining whether the transferoi
is a foreign person under such Section, nor (d) obtaining a
rion foreign affidavit or other exemption from withholding
under, such Section nor otherwise making any inquiry can
'cerning compliance with such Section by any party to th(
transaction.
Time is of the essence of these instructions. If this escrow is not in condition to close by the TIME LIMIT DATE of
, 19_3$and written demand for cancellation is received by you from any principal to this escrow
a e said JIM date, you - shall-act in accordance with Paragraph 7 of said General Provisions. In the event one or more of the above General
Provisions is held to be invalid in judicial proceedings, the remaining respective General Provisions will continue to be operative. Any
amendments of or supplements to any instructions affecting this escrow must be in writing. Signatures on any documents and instruc-
tions pertaining to this escrow indicate the signer's unconditional approval thereof. Principals will hand you any funds and instruments
required from each respectively to complete this escrow.
If no demand for cancellation is made, you will proceed to close this escrow when the principals have complied with the escrow in-
structions. These instructions may be executed in counterparts, each of which shall be deemed an original regardless of date of execution
or delivery, and together shall constitute one and the same document. If these instructions relate to a sale, buyer agrees to buy and
seller agrees to sell upon the terms and conditions hereof. All documents, balances and statements due the undersigned are to be mailed
to the respective addresses shown below, unless otherwise directed. In these instructions, whenever the context so requires, the mascu-
line gender includes the feminine and /or neuter, and the singular number includes the plural.
If any check submitted to escrow is dishonored upon presentment for payment, you are authorized to notify all principals and /or
their respective agents of such nonpayment.
CLINIC PROPERTIES PARTNERSHIP
Signature BY:
BY:
Address 1235 OSOS ST.
SAN LUIS OBISPO, CA. 93401
Signature CITY OF SAN LUIS OBISPO
BY:
••• ••5 u y ar
Telephone Telephone 549 -7140
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
To: Ticor Title Insurance Company
1212 Marsh Street
San Luis Obispo, CA 93401
Attention: Rod Zivkovich, Escrow Officer
Re: Escrow No.
THIS PURCHASE AGREEMENT ( "Agreement ") is made and entered into
this 20th day of De mher- , 1988, by and between Clinic
Properties ( "Sellers ") and CITY OF SAN LUIS OBISPO, a chartered
municipal corporation of the State of California ( "Buyer ") , jointly
referred to hereinafter as the "parties ", who, as part of their
agreement, direct the following escrow instructions to Ticor Title
Insurance_ Company, hereinafter referred to as "Escrow Holder ",
which, by its acceptance. hereof, agrees to be bound by the terms
and conditions set forth herein.
RECITALS
WHEREAS, Sellers are the owners of that certain parcel of real
property situated in the City of San Luis Obispo, County of San
Luis Obispo, State of California, Assessor's Parcel No. 03- 527 =71
consisting of a portion of Lot 9, Block 100 of Mission Vineyard
Tract, commonly known as 870 Pacific Street, San Luis Obispo, CA,
and more fully described in Exhibit "1" attached hereto, and
incorporated herein by this reference (the "Parent Property ") ; and
WHEREAS, Buyer desires to acquire a portion of the
northwesterly corner of the Parent Property consisting of
approximately 133 plus or minus square feet bordering on property
at 871 Marsh Street, plus improvements thereon, in the City of San
Luis Obispo, as shown on that certain improvement plan and legal
description attached hereto as Exhibit "1" and 11211, and
n
incorporated herein by this reference (the "Property "), for
purposes of improving access to the Marsh Street Parking Structure
at 87.1 Marsh Street.
WHEREAS, Buyer desires to compensate Sellers for the Property
and for any damage to their remaining property or improvements
thereon as a.result of such acquisition or improved access to the
structure; and
WHEREAS, Buyer and Sellers prefer to avoid the expense and
delay of eminent domain proceedings and.to provide for the transfer
of Sellers' right, title and interest in the Property and
improvements thereon to Buyer for and on the conditions set forth
in this Agreement; and
WHEREAS, Buyer and Sellers have agreed that Sellers, and
Sellers' lessees, agents, servants, employees, contractors, and
invitees shall have the exclusive right to use the Parent Property
for ingress and egress to the surface parking lot at.870 Pacific
except when the lot is being resurfaced and restriped.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual respective
covenants, conditions, and promises set forth herein, and subject
to all the terms and conditions hereof, the parties agree as
follows:
1. Purchase and Sale. Sellers agree to sell to Buyer, and
Buyer agrees to purchase from Sellers, the Property upon the terms
and conditions herein set forth.
2. Terms of Sale. In exchange for ownership of the Property,
the Buyer agrees to do the following:
a. Resurface the existing parking lot at 870 Pacific
Street with a one -inch layer of asphalt, restripe the lot for 24
parking stalls and relocate curb stops as shown on Exhibit 2 to the
approval of the City Engineer.
b•. Plant drought - resistent groundcover and one street tree
in landscape planters adjacent to 870 Pacific Street and install
fence and low maintenance vines between the trees on northwesterly
property line adjacent to city surface parking lot shown on
Exhibit 2.to the approval.of the City Arborist. Newly planted
areas shall be watered and maintained in good health by the Buyer
for six months after planting. Thereafter, Sellers shall be
responsible for landscape maintenance: Buyers shall be responsible
for maintaining fence. Areas immediately adjacent to existing
native trees (shaded areas by trees on Exhibit 2) shall remain
unpaved to permit root growth of trees.
c. Buyer shall relocate driveway ramp to Pacific Street
and power pole as shown on Exhibit 2.
3. Satisfaction of Buyer's obligations. Prior to "Close of
Escrow" as defined below, Buyer shall comply with the Terms of Sale
of the Property by completing the improvements indicated in
conditions 2a, 2b, and 2c.
4. Conditions of Title. Sellers shall convey fee simple
absolute title to the Property to Buyer by grant deed which grant
deed shall be fully executed and acknowledged and deposited by
Sellers into escrow prior to the close thereof, without
reservations and subject only to the following conditions of title
( "Conditions of Title "):
I
a. A lien to secure payment of real estate taxes, not
delinquent;
b. Matters affecting the Conditions of Title created by,
or with the written consent of Buyer;
With respect to any encumbrances securing obligations relative
to the Property, including, but not limited to, deeds of trust,
Sellers covenant that they will cause the removal of all said
encumbrances by the Close of Escrow (as defined below).
5. Sellers shall cause Escrow Holder to prepare and deliver to
Buyer within ten (10) days after the opening of escrow hereof a
preliminary title report pertaining to the Property accompanied by
copies of all recorded documents relating to any "exceptions to
title" reflected therein. Buyer shall have ten (10) days after its
receipt of the preliminary title report and related documents to
deliver to Sellers in writing any reasonable objections to the
Condition of Title as set forth therein.
a. In the event Buyer notifies Sellers of any such
objections, Sellers shall have fifteen (151) days after such
notification to satisfy Buyer's objections.
b. In the event Buyer does not notify Sellers of any such
objections, Buyer shall be deemed to have approved the Condition of
Title as set forth in the Preliminary Title Report.
Title shall be evidenced by the willingness of the Escrow
Holder at Close of Escrow to issue its C.L.T.A. owners form policy
of title insurance for the appraised value of Property as of
August 11 1988 showing title to the Property vested in Buyer,
subject only to the Conditions of Title. If Escrow Holder (as
defined below) is unwilling to issue such insurance policy, or if
Sellers have not removed any exceptions disapproved by Buyer prior
to the Close of Escrow (as defined below), at Buyer's option and in
addition to any other remedies available to Buyer, the escrow shall
terminate, the Escrow Holder shall return to Buyer any sums which
have been deposited into Escrow by Buyer, and Sellers shall bear
the costs of escrow.
6. Escrow..
a. opening of Escrow. Within 10 days of execution of this
Agreement, the parties shall open an escrow account with Ticor
Title Insurance ( "Escrow Holder "), or other title insurance company
mutually agreed to.by the parties in writing, at an office in -the
City of San Luis Obispo, California, for the consummation of this
transaction.
b. Close of Escrow. For the purposes of..this Agreement,
the "Close of Escrow" shall be defined as the date that the Grant
Deed conveying the Property to Buyer is recorded in the official
records of the County of San Luis Obispo. The parties agree to use
their best efforts to effect the Close of Escrow. The parties
shall be in a position to close prior to the completion of
construction of the Marsh Street Parking Structure or June 1990,
whichever comes first. In the event that this escrow fails to
close by the Closing Date (or as extended by the mutual written
agreement of the parties delivered to Escrow Holder prior to the
Closing Date) by reason of any defaults hereunder, the defaulting
party shall bear all costs and expenses of escrow. Time is of the
essence in this agreement.
� I
7. Costs and Expenses. The cost and expense of the title
insurance policy to be issued in favor of the Buyer pursuant to
paragraph 5 hereof, shall be paid by Buyer. Except as otherwise
specifically provided herein, the escrow fee of Escrow Holder shall
be paid by Buyer. Buyer shall pay all documentary transfer taxes
payable in the recordation of the Grant Deed and any other
documents which the parties may mutually direct to be recorded in
the official records. Buyer shall pay the Escrow Holder's
customary charges to Buyer and Sellers for document drafting,
recording, and miscellaneous charges. Real property taxes and
rents, if any, for the Property shall be prorated as of the Close
of Escrow.
8. Disbursements and other actions by Escrow Holder. Upon the
Close of Escrow, the Escrow Holder shall promptly cause the Grant
Deed and any other documents, which the parties hereto may mutually
direct, to be recorded in the official records.
9. Waiver of Relocation Expenses. Sellers are aware that if
they are occupying the Property at the Close of Escrow, they may be
entitled to recover from Buyer, Sellers' expenses incurred in
relocating their business and personal property to a new location.
Sellers hereby represent that they will not be relocating any
business or personal property as a result of this transaction.
Sellers hereby waive any and all rights they now have or may have
in the future, to relocation expenses or benefits to which they may
be entitled as a result of moving from the property as a result of
this transaction. Sellers hereby waive any and all rights they now
have or may have in the future, to relocation expenses or benefits
to which they may be entitled as a result of moving from the
property as a result of this transaction.
�o
Notice shall be deemed given as of the time of personal delivery or
forty -eight (48) hours following deposit in the United States
mail. Notice of change of address shall be given by written notice
in the manner detailed in this paragraph.
12. Brokers. Sellers represent and warrant to Buyer, and Buyer
represents and warrants to Sellers, that no broker or finder has
been engaged by them or.it, respectively, in connection with any of
the transactions contemplated by this Agreement, or- to their
knowledge is in any way connected with any of such transactions.
In the event of any such additional claims for brokers' or finders'
fees for consummation of this Agreement, then. Buyer shall
indemnify, save harmless and defend Sellers from and against such
claims if they shall be based upon any statement or representation
or agreement by Buyer, or its agents, servants, or employees, and
Sellers shall indemnify, save harmless and defend Buyer if such
claims shall be based upon any statement, representation, or
agreement made by Sellers, their agents, servants or employees.
13. Sellers! - Representations and warranties.
a. In addition to any express agreements of Sellers
contained herein, the following constitute representations and
warranties of Sellers which shall be true and correct as of the
Close of Escrow (and the truth and accuracy of which shall
constitute a condition to'the Close of Escrow):
(1) Sellers have the full right, power, and authority
to enter into this Agreement;
(2) There are no actions, suits, materials, claims,
legal proceedings or any other proceedings affecting the Property
or any portion thereof at law or in equity before any Court or
governmental agency, domestic or foreign;
(3) Sellers have not received any notices from
governmental authorities pertaining to violations of law or
governmental regulations with respect to the Property, and does not
know of any which may have been received by their predecessors in
interest;
(4) Sellers have no knowledge of any pending or
threatened proceeding in eminent domain or otherwise by any public
entity other than Buyer, which would affect the Property, or any
portion thereof, nor do Sellers know the existence of any facts
which might give rise to such action or proceedings;
(5) There are no leases., occupancies, or tenancies in i
effect pertaining to the Property that will continue beyond the `/�
close of escrow.
(6) There are no liens or encumbrances on or claims to,
or covenants, conditions and restrictions, easements, right of way,
rights of first refusal, options to purchase, or other matters
affecting the Property except the Conditions of Title and any
rights conferred to Buyer by this Agreement;
(7) sellers are not aware of any material adverse fact
or condition relating to the Property, or any portion thereof,
which has not been specifically disclosed in writing by Sellers to
Buyer;
i^
(8) Sellers have the legal power, right and authority to
enter into this Agreement, and to consummate the transaction
contemplated hereby;
(9) There are no fixtures on the Property in which
anyone other than Sellers has any claim, rights, or security or
other interest;
(10) There are no service or maintenance contracts,
management agreements or any other agreements which will affect
Buyer or the Property subsequent to the Close of Escrow;
(11) There are no encroachments onto the Property of
improvements located on any adjoining property nor do any
improvements located on the Property.encroach onto any other
adjoining property;
(12) There are no prescriptive or other easements
affecting the Property;
(13) There have been no underground storage tanks
installed on the Property after November 12, 1958, the date
Property was acquired by Sellers, and Sellers have no knowledge of
any earlier installation of any such tanks;
(14) In the event contamination or hazardous waste is
discovered on the property, Buyer shall recover from Sellers an
amount equal to the reduction in value of the property reflected by
such condition(s).
b. In the event that, during the period between the
execution of this Agreement, and the Close of Escrow, Sellers have
actual knowledge of, learn of, or have a reason to believe that any
of the above representations or warranties may cease to be true,
Sellers hereby covenant to immediately give notice to Buyer of the
change in circumstances. Upon Sellers notifying Buyer of the
change in circumstances, Buyer may, at its sole option, terminate
this Agreement and herewith shall be immediately returned.
Further,.in the event Buyer so elects to terminate, Buyer shall pay
all Escrow costs, if any, incurred by both parties herein under
this Agreement without further obligation to Buyer or Sellers.
14. Buyer's Right to Enter Prior to Close of-Escrow. Sellers
agree that Buyer and its officers, agents, employees and
contractors shall have the right to enter into and upon the.
Property prior to the Close of Escrow for the purpose- of-tAking-.
inspections, surveys, engineering, soils and geological tests,
including test borings and soundings, and other studies as Buyer
deems necessary or desirable for the improvement of the entry to
the Marsh Street Parking Structure, except that Buyer- shall not,
totally obstruct the ingress and egress of Sellers, their lessees,
servants, employees, and invitees thereof except as required to
perform work indicated in Sections 2 and 3.
15. Sellers' Right to Cross After Close of Escrow. Subsequent
to Close of Escrow Buyer agrees to allow Sellers the non- exclusive
use of the Property as would be permitted to the general public.
Buyer agrees to maintain a driveway ramp adjacent to Property at
883 Marsh Street and to allow Sellers to use this and the paved
entry to the Marsh Street Parking Structure to access the Parent
Property provided owners of Property at 883 Marsh Street also agree
to permit such access. This permission is granted as long as the
adjacent property at 871 Marsh Street is needed as the entry to the
Marsh Street Parking Structure. If this condition changes,
permission is revocable upon 90 days written notice.
16. Attorney's Fees. Should either of the parties to this
Agreement.bring any action or proceeding to construe or enforce the
terms, conditions or covenants contained in this Agreement, or the
validity thereof, then the party prevailing in such action or
proceeding shall.be entitled to recover all court costs and
reasonable attorney's fees, to be fixed by the court and taxed as
part of the judgment therein.
g
17. Successors and Assigns. This Agreement shall be:bindin
upon, and shall inure to the benefit of, the successors, heirs, and
assigns of the parties hereto.
18. Required Action of Buyer and Sellers. Buyer and Sellers
agree to execute all such instruments and documents and to take all
actions pursuant to the provisions hereof in order to consummate
the purchase and sale herein contemplated and shall use their best
efforts to accomplish the time Close of Escrow in accordance with
the provisions hereof.
19. Entire Agreement. This Agreement contains the entire
agreement between the parties hereto relating to the Property, and
may not be modified except by an instrument in writing signed by
the parties hereto.
20. California Law. This Agreement has been entered into and,
is to be performed in the State of California and shall be
construed and interpreted in accordance with the laws of the State
of` California.
21. Waivers. No waiver by either party of any provision hereof
shall be deemed a waiver of any other provision hereof or of any
subsequent breach by either party of the same or any other
provision.
22. Caption. The captions, paragraph and subparagraph numbers
appearing in this Agreement are inserted only as a matter of
convenience.and in no way define, limit, construe, or describe the
scope of intent of such paragraph of this Agreement, nor in any way
affect this Agreement.
23. Representation by Counsel.
an attorney in this transaction.
Both parties are represented by
The parties agree that each party
and counsel have reviewed this Agreement and that any rule of
construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in the interpretation of
this Agreement or any amendments or exhibits thereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
Seller_ s: :�� -t�_fin
Managing Partner Date
Clinic Properties Partnership
BUYER: CITY OF SAN LUIS OBISPO
YOR Date
ATTEST:
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10. Default. Sellers agree that if the within sale is not
completed as herein provided through no fault of Buyer, Buyer, at
its option shall be entitled, in addition to any other remedy now
or hereafter available to Buyer under the laws or judicial
decisions of the State of California, to compel Sellers to perform
their obligations under this Agreement by means of a specific
performance proceeding or Buyer may terminate this Agreement and
shall be entitled to recover from Sellers any amounts which Buyer
incurred or became liable for in connection with this transaction
including costs and expenses of Escrow otherwise to be paid by
Buyer.
11. Notices. All notices or other communication recuired or
permitted hereunder shall be in writing, and shall be personally
delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, at the following addresses:
Sellers:
Buyer:
Clinic Properties
1235 Osos Street
San Luis Obispo, CA 93401
City Attorney
City of San Luis Obispo
990 Palm Street.
P. O. Box 8100
San Luis Obispo, CA 93403 -8100
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1 _
RESOLUTION NO. 6557 (1988 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS
OBISPO APPROVING AN AGREEMENT BETWEEN THE CITY AND
THE MASONIC HALL ASSOCIATION FOR ACCESS TO CITY PROPERTY AT 871
MARSH STREET AND RELOCATION OF A FIRE ESCAPE AT 859 MARSH STREET
BE IT RESOLVED by the Council of the City of San Luis Obispo as
follows:
SECTION 1. That certain agreement, attached hereto marked-
Exhibit "A" and incorporated herein by reference, between the City
of San Luis Obispo and the Masonic Hall Association for relocation
of a fire escape on the outside of the Masonic Temple at 859 Marsh
Street and for city use of a strip of land on the same property for
access to city property at 87i Marsh Street, is hereby approved and
the Mayor is authorized to execute the same.
SECTION 2. The City Clerk shall furnish a copy of this
resolution and a copy of the excecuted agreement approved by it
to: the Masonic Hall Association and the City Par -king Program
Coordinator as set forth in the agreement.
On motion- of Councilwoman Rappa seconded by Councilwoman Pinard
and on the following roll call vote:
AYES: Councilmembers Pinard and Rappa, and Mayor Dunin
NOES: Councilman Reiss
ABSENT: Councilman Settle
the foregoing Resolution was passed and adopted this 20thday
of December 1988.
yy
®' 'SIT �
.!.,;,.PAM.!:V GEy •CITY ERK
,.., S,
OR RON DUNIN
R 6557
VOL 3210 PAGE 294
Resoljiition
,.Page Two
ty
t-; *IT
No. 6557 "88 Series)
ative Officer
Finance Director
CH/resolu3
bw
F PND OF DOCUMEW VOL 32'10 PAGE 295
n,
Recording Requested by:
and when recorded mail to:
City Clerk's Office
P.O. Box 8100
San Luis Obispo, CA 93403
Q
J
DOC. No. 9597
OFFICIAL RECORDS
SAN LUIS OBISPO CO., CA
FEB 1 6 1989
FRANCIS M. COONEY
County Clerk- Recorder
TIME 2 ; 10 Phol
AGREEMENT AFFECTING REAL PROPERTY
603
This AGREEMENT entered into on OCTOBER 11, , 1988
is between Masonic Hall Association, a California Corporation,
herein referred to as the "owner" and the CITY OF SAN LUIS OBISPO,
a Municipal corportation, herein referred to as the "City"
RECITALS
A. The owner owns a parcel of land located at 859 Marsh Street
and which is identified as parcel number 03- 527 -19 on the official
records of the County of San Luis Obispo Tax Collector, said
property is described as:
Lot 8 and a portion of lots 7, 12,and 13 in Block 100 of the
Mission Vineyard Tract in the City of San Luis Obispo, County
of San Luis Obispo, State of California as recorded in Book A
at page 143 in the office of the County Recorder of the above
named County more particularly described as follows:
All of lot 7 and lot 8 except for the southeasterly 15 feet of
lot 7 and all of lots 12 and 13 except for the southwesterly
100 feet of lots 12 and 13.
B. The City owns a parcel of land located at 871 Marsh Street
and is identified as parcel number 03- 527 -05 on the official
records of the County of San Luis Obispo Tax Collector, said
property is described as:
.O L,. ..
VOL 3270 PAGE 2S8
Lots 10,11,15 and 16 and portions of lots 6, 7,. and 14 in Block
100 of the Mission Vineyard Tract in the City of San Luis
Obispo, County of San Luis Obispo, State of'California as
recorded in Book A at page 143 in the office of the county
recorder of the above named County more particularly described
as follows:
All of lots 10, 11, 14, 15 and 16, the southwesterly 10 feet of
lot 6 and the northwesterly 15 feet of lot 7..
C. The City wishes to construct a Parking Structure upon
property that it owns as described above.
D. Owner has a multi -level building upon its property. The
building's fire escape currently extends across the.rear property
line and over the property of the City. The fire escape needs to
be relocated to allow the City to build upon its property.
NOW THEREFORE, the City and Owner agree as follows;
1. City will relocate the fire escape to the rear of the
owner's property to the mutual satisfaction of the parties.
2. Owner shall use the relocated fire escape only for emergency
exiting from the building.
3. Owner shall maintain the relocated fire escape at its sole
cost.
4. Owner shall hold harmless the City from any claims, suits or
losses of any kind alleged to have arisen out of the maintenance or
placement of the fire escape and to indemnify the City for any and
all costs or judgments relating to said claims, suits or losses,
including attorney's fees.
5. City agrees to allow vehicles to be driven across its
property to the property of the owner in a manner similar to that
allowed to the public for access to the parking facility:
VOL 3 270 PAGE 2S'9
6. Owner shall prohibit vehicles under its control or belonging
to persons visiting or using owner's building from parking on the
City's property except in the same manner, locations, and terms as
that allowed to the general public.
7. City shall provide lighting adequate to illuminate the
approximate 10 foot space between its building and the
southwesterly side of the building of the owner.
8. Owner shall allow the City to access and use the
approximately 10 foot area between the southwest wall of the
owner's building and their southwest property line as needed during
construction and for maintenance of the City's building after
construction.
9. City agrees to repair any damage caused to the owners
property as a result of the use of this 10 -foot strip by the City
or its agents to its condition prior to construction of the Parking
Structure.
10. City and Owner agree that the term of this agreement shall
be 5 years from the date of recording and shall be automatically
renewable for 5 year terms unless either of the parties give the
other written notice at least 12 months prior to the renewal date
that the agreement will not be renewed.
VOL 32-10 PAGE 290
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VO132 io PAGE 292
Executed on � day of , 1988 at San Luis Obispo,.
California by:
CITY
Mayor Ron Dunin
ATTEST:
2,,� urie�
City erk Pam _V0 es
............
O
` 14sr<i Hail
By.
By:
CAT.. NO.. N NO0737
TO 1945 CA.(7 -82)
(Corporation)
Association
President
Treasurer
�� T1TLIE INSURANCE
AND TRUST
STATE OF CALIFORNIA
COUNTY OF San Luis Obispo I SS.
On October 18, 1988 before me, the undersigned, a Notary Public in and for
said State, personally appeared George R. Wiech and William J. Edwards — — — —
personally known to me or proved to me on the basis
of satisfactory evidence to be the person who executed
the within instrument as the
President, and
personally known to me or
proved to me on the basis of satisfactory evidence to be OFFICIAL SEAL
the person who executed the within instrument as the _ r MARILYN PERRY
Secretary of the Corporation Notary Public - California
that executed the within instrument and acknowledged = �� r. Principal Office in
to me that such corporation executed the within instru- n San Luis Obispo County
ment pursuant to its by-laws or a resolution of its My Comm. Expires on Aug. 19, 1991
board of directors
WITNESS my hand and official seal.
Signature //, (This area for officia.Lnomfial seall VOL 32 iO PAGE 293
RESOLUTION NO. 6556 (1988 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS
OBISPO APPROVING AN AGREEMENT BETWEEN THE CITY AND CHARLES FORD
CCHPANY FOR TEEM OF LEASE OF CCM1ERCIAL RETAIL SPACE IN MARSH
STREET PARKING STRUCTURE AT 871 MARSH STREET
BE IT RESOLVED by the Council of the City of San Luis Obispo as
follows:
SECTION 1. That certain agreement, attached hereto marked
Exhibit "A" and incorporated herein by reference, between the City
of San Luis Obispo and the Charles Ford Company for lease of
approximately 14,000 square feet of commercial retail space in the
Marsh Street Parking Structure at 871 Marsh Street, is hereby
approved and the Mayor is authorized to execute the same.
SECTION 2. The City -Clerk shall furnish a copy of this
resolution and a copy of the executed agreement approved by it to:
The Charles Ford Company and the City Parking Program Coordinator
as set forth in the agreement.
On motion of Councilwoman Rappa seconded by Councilwoman Pinard,
and on the following roll call vote:
AYES: Councilwomen Pinard and Rappa, and Mayor Dunin
NOES: Councilman Reiss
- ABSENT: Councilman Settle
the foregoing Resolution was passed and adopted this 20th day
of December , 1988.
qTMR RON DUNIN
ATTE T•
PAM GES, CITY ERK
6556
Resolution No. 6556(x1988 Series)
Page Two
ty Adpinistrative Officer
City At
Public
Finance
CH/resolu2
0
Recording Requested By
When Recorded Return To:
Richard N. Racouillat
a Professional Law Corporation
1301 Chorro Street
San Luis Obispo, CA 9.3401
0
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement is made this April 3, 1989 by
and between the CITY OF SAN LUIS OBISPO, a chartered municipal
corporation of the State of California ( "City "); L & H
INVESTMENT CO., a general partnership ( "L &H "); and CHARLES FORD
COMPANY, a California corporation doing business as Riley's
Department Store ( "Charles Ford Company ").
This Memorandum of Agreement is made with reference to the
PURCHASE AND SALE AGREEMENT (Portion of Mission Vineyard Tract)
dated April 3, 1989( "Purchase Agreement ") by and between City and
L &H with respect to the following described real property
( "Property "):
The southwesterly 100 feet of Lots 12, 13 and 14 in
Block 100 of.the Mission Vineyard Tract, except as
previously conveyed to the City of San Luis Obispo, in
the City of San Luis Obispo, County of San Luis Obispo,
California, according to map recorded March 8, 1873 in
Book A, Page 143, commonly known as Riley's parking
lot, Marsh and Chorro Streets, San Luis Obispo,
California.
This Memorandum of Agreement also is made with reference to
the BUILDING AGREEMENT AND LEASE dated April 3, 1989 ( "Lease ") by
and between City and Charles Ford Company with respect to the
Property.
Memorandum of Agreement
EXHIBIT
Page 1
1
Pursuant to the terms of the Purchase Agreement, L &H has
agreed to sell the Property to City on certain terms and
conditions stated in the Purchase Agreement. Among the pro-
visions of the Purchase Agreement, L &H has the right to
repurchase the Property if City has not commenced physical
construction of a parking structure or facility with approx-
imately 14,000 square feet of retail space available to L &H (or
its assignee) under the Lease within five (5) years of the close
of escrow of the Property to City. L &H has assigned its rights
to repurchase the Property under the Purchase Agreement to
Charles Ford Company.
Pursuant to the terms of the Lease, City has agreed to
construct and lease to Charles Ford Company approximately 15,000
square feet of commercial retail space in the parking structure
to be constructed on the Property. The term of the lease is for
a period of 19 years terminating on January 31, 2008, subject to
the right of Charles Ford Company to extend the term for two
additional ten -year periods.
Executed in San Luis Obispo, California, on the date and
year first above.written.
CITY OF SAN LUIS OBISPO
By
Mayor
ATTEST:
CITY CLERK
Memorandum of Agreement Page 2
CHARLES FORD COMPANY
a California corporation
By
By
L & H INVESTMENT COMPANY
a general partnership
By
By
Memorandum of Agreement Page 3
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN LUIS OBISPO )
On , 1989 before me, the undersigned, a
Notary Public in and for said State, personally appeared
known to me to be Mayor of the City
of San Luis Obispo and known to me to be the person who executed
the within instrument on behalf of said corporation, agency, or
political subdivision, and acknowledged to me that the City of
San Luis Obispo executed the same.
WITNESS my hand and official seal.
Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN LUIS OBISPO )
On , 1989 before me, the undersigned, a
Notary Public in and for said State, personally appeared
, known to me to be Clerk of the
City of San Luis Obispo and known to me to be the person who
executed the within instrument on behalf of said corporation,
agency, or political subdivision, and acknowledged to me that the
City of San Luis Obispo executed the same.
WITNESS my hand and official seal.
Notary Public
Memorandum of Agreement Page 4
STATE OF CALIFORNIA )
ss.
COUNTY OF SANTA CRUZ )
On before me, a Notary Public in and
for said State, duly commissioned and sworn, personally appeared
, personally known to me, or proved to me on
the basis of satisfactory evidence, to be the of
CHARLES FORD COMPANY, a California corporation, and acknowledged
to me that such corporation executed the within instrument
pursuant to its bylaws or a resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal on the date in this certificate first
written above.
Notary Public
STATE OF CALIFORNIA
ss.
COUNTY OF SANTA CRUZ
On , before me, a Notary Public in and
for said State, duly commissioned and sworn, personally appeared
, personally known to me, or proved to me on
the basis of satisfactory evidence, to be the of
CHARLES FORD COMPANY, a California corporation, and acknowledged
to me that such corporation executed the within instrument
pursuant to its bylaws or a resolution of its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal on the date in this certificate first
written above.
Notary Public
Memorandum of Agreement Page 5
STATE OF CALIFORNIA
ss.
COUNTY OF SAN LUIS OBISPO
On , 1989, before me, the undersigned, a
Notary Public in and for said State, duly commissioned.and sworn,
personally appeared ROSS J. HUMPHREY, personally known to me, or
proved to me on the basis of satisfactory evidence, to be one of
the partners of L & H INVESTMENT COMPANY, a general partnership,
and executed the within instrument on behalf of said general
partnership, and acknowledged to me that such general partnership
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal on the date in this certificate first
above written.
Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN LUIS OBISPO )
On , 1989, before me, the undersigned,
a Notary Public in and for said State, duly commissioned and
sworn, personally appeared ROBERT A. HUMPHREY, personally known
to me, or proved to on the basis of satisfactory evidence, to
be the one of the partners of L & H INVESTMENT COMPANY, a general
partnership, and executed the within instrument on behalf of said
general partnership, and acknowledged to me that such general
partnership executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal on the date in this certificate first
above written.
Notary Public
Memorandum of Agreement Page 6
BUILDING AGREEMENT AND LEASE
THIS BUILDING AGREEMENT AND LEASE ( "Lease ") is made.and entered into this
VW \S day of rnti.t , 1989, by and between THE CITY OF SAN LUIS OBISPO
( "City" or "Landlord ") and CHARLES FORD COMPANY, INC., a corporation organized
and existing under the laws of the State of California and doing business as
Riley's Department Store ( "Ri- ley's" or "Tenant ").
WITNESSETH:
A. The City of San Luis Obispo is the owner of land ( "Property ") located
at or near the corner of Marsh and Chorro Streets in the City and County of
San Luis Obispo, State of California, the legal description of which is
attached as Exhibit "A" hereto and made a part hereof; and
B. City proposes to erect a parking structure thereon; and
C. City and Riley's have agreed that if City builds said parking
structure City shall construct a 15,000 square foot retail space to be used by
Riley's for commercial retail purposes.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Term
1 Landlord leases to Tenant and Tenant leases from Landlord that
portion of "the Property which is designed and intended for use as "commercial
retail" on Exhibit "B" attached hereto and made a part hereof. Said Exhibit
"B" shall describe the Property and the approximately 15,000 square foot
portion of garage structure containing commercial retail space to be erected
thereon by Landlord in accordance with this Agreement. The commercial retail
area outlined on Exhibit "B" above, shall be hereinafter be referred to as the
"premises ".
Building Agreement, and Lease Page 1
December 20, 1988
2. TO HAVE AND TO HOLD said premises with all the rights, privileges,
appurtenances thereunto belonging and attaching, unto the Tenant, its
successors and assigns for the term of approximately nineteen (19) years
commencing as set forth below and terminating on January 31, 2008. Said
initial term shall be followed by two ten (10) year option terms as set forth
herein:
(a) Sixty (60) days following the date wherein the erection and
construction of said premises shall be completed in accordance with
plans and specifications referred to in Paragraph 1 of Article III,
below, free and unobstructed and all scaffolding and the building
materials and obstructions of any kind removed so that the said area
may be operated by Tenant, all without hindrances or disturbances
insofar as building operations are concerned, and so constructed
that the Tenant shall be entitled to operate in the premises, all as
established as provided in Paragraph 3 of this Article I, or
(b) Upon the date Tenant opens the premises to the public for business,
whichever first occurs.
3. For purposes of this Article I, the date of satisfaction of the
conditions set forth in Paragraph 2(a) of this Article I shall be determined
by mutual agreement of Landlord and Tenant with a written certificate to such
date and which said date so determined by them shall be final between the
parties hereto. The certificate shall not be issued before the issuance of a
Certificate of Occupancy or equivalent (which is not dependent upon completion
of installation of Tenant's fixtures, furnishing and equipment), by the
governmental authority having jurisdiction, if one is so required for.the
parking structure or premises. Tenant shall be allowed access to the premises
to construct tenant improvements. The parties recognize that coordination of
construction of both the parking structure and the premises will require
cooperation and mutual understanding of each party's business and operating
needs. Tenant agrees that Landlord may withhold agreement as set forth in
Paragraph 2(a) of this Article I until such time that the progress and
Building Agreement and Lease Page 2
December 20, 1988
completion of the parking structure, related street improvements (curb cuts,
etc.) and other considerations are deemed satisfactory.
4. Any holding over after the expiration of the term herein.shall be
construed to be a tenancy from month to month at the rent last applicable
herein. The preceding sentence shall not imply any consent on the part of
Landlord for Tenant to hold over.
ARTICLE II
Parking
Tenant shall satisfy all relevant parking requirements established by
local regulation at all times and shall keep landlord informed of any changes
of uses or subtenants which may affect the parking requirements. Attached
hereto as Exhibit "Cu is a schedule or listing of the parking requirements in
effect as of the date of this Lease.
ARTICLE III
Construction of Parking.Structure and Commercial Space
1. Landlord will construct at its sole cost and expense the parking
structure including the retail space described above pursuant to plans and
specifications to be prepared by Landlord's architect and the relevant
portions thereof to be attached hereto as Exhibit "D" as approved pursuant to
this section. The exact location and placement of the premises shall be
specified on said plans. Exhibit "D" shall be approved by all the parties as
to their respective needs and requirements, and when so approved, shall be
identified by the parties by their signatures and attached hereto. Each party
hereto agrees not to unreasonably withhold or delay its approval. Tenant's
approval shall not imply approval of structural or engineering design or the
quality or fitness of any material or device used in any portion of the
Property or premises. If Tenant unreasonably withholds approval, Tenant shall
reimburse Landlord for one -half of the costs of preparation of the plans and
specifications attributable to design of the commercial retail shell.
Landlord shall furnish to Tenant working drawings and specifications for the
Building Agreement.and Lease Page 3
December 20, 1988
I\ d�
commercial retail shell no later than the date set for bid opening for
construct -ion of the parking structure..
2. Landlord shall at Its sole cost and expense, perform all work
required to be performed "pursuant to Exhibit "D" ( "Landlord's work" herein)
which shall include without limitation construction.of the commercial retail
shell in conformance with.industry "custom and practice
3. Parking Structure Project. If Landlord (1) is unable to obtain
financing for parking structure project construction, or (2) receives
projected construction costs in excess of the financing capability of
Landlord, or (3) experiences construction delays in the commencment of
physical construction, however caused, which, as determined by Landlord, will
be in excess of 24 months and will result in an inability to complete said
project with available financing, then Landlord may terminate this agreement
in writing, giving its reasons therefor, and in that event, Tenant may
exercise its right to repurchase the premises as set forth in Paragraph 14 of
the Purchase and Sale Agreement dated M fx 15 1989 between Landlord and
L &H Investment. Co.
4. When completed, the premises shall be free from liens of materialmen,
contractors, subcontractors, :laborers and other liens, except any claims,
obligations or liens arising out of the construction and financing of the
parking structure.
5. No substantial deviations or changes shall be made or permitted in
connection with the approved and identified plans and specifications for the
premises without the prior written consent of both Landlord and Tenant, which
consent parties agree not to unreasonably withhold.
6. Landlord agrees that the premises shall be designed, erected,
constructed and completed, operated and maintained.each in accordance with all
applicable laws, rules and regulations of the United States of America, the
State of California, and City of San Luis Obispo.
Building Agreement and Lease Page 4
December 20, 1988
I
C�
7. Notice of Completion of the construction of the premises shall be
given by Landlord to Tenant in writing promptly upon completion of
construction.
8. Tenant or its representative may enter upon the premises during the
construction at Tenant's sole risk to inspect the progress thereof and to
determine if the work is being performed in accordance with this Article III.
Tenant shall inform Landlord within seventy -two (72) hours of the discovery of
any objectionable work, provided, Tenant shall not be precluded from later
reporting objectionable work not discovered during construction.
9. After written notice from Tenant, Landlord shall repair or replace
all defective wiring, pipes, conduits, water, sewer and utility lines which
serve the premises, except defects that are the obligation of the utility
companies, or are necessitated due to Tenant's or Tenant's employees or
customers fault or misuse, or which were not originally installed by Landlord
or Landlord's contractors or subcontractors.
ARTICLE IV
Tenant's Furnishings
Fixtures and Equipment
1. Tenant shall, at its sole cost and expense, install in the premises
any and all furnishings, fixtures and equipment which the Tenant may deem
advisable for its use in the operation of commercial retail space.
ARTICLE V
Rent
1. Rental Rate shall be as follows:
Period of Term
A. Beginning to January 31, 1992
Building Agreement. and Lease
December 20, 1988
Rate
$7,500 a month or 4.5% of
annual gross sales
Page 5
Period of Term Rate
B. February 1, 1992 to January 31, $8,200 a month or 4.757 of
1997 annual gross sales
C. February 1, 1997 to January 31, $8,900 a month or 4.857 of
2002 annual gross sales
D. February 1, 2002 to January 31, $9,600 a month or 4.907 of
2008 annual gross sales
First ten (10) year option
E. February 1, 2008 to June 30, $10,300 a month or 4.957 of
2010 annual gross sales
F. July 1, 2010 to January 31, $10,500 a month or 5.007 of
2013 annual gross sales
G. February 1, 2013 to January 31, $11,000 a month or 5.007 of
2018 annual gross sales
The rate shown in the above schedule shall be the greater of the flat
monthly rent ( "Minimum Rent ") or the percentage of annual gross sales. Annual
gross sales as defined below.
2. The rent.rate for the second ten ('10) year option period shall be at
market rate as mutually agreed upon by the parties.
3. (A) The term "gross sales" as used in this Lease shall include the
entire gross receipts of every kind and nature from sales and services made
in, upon, or from the premises, whether upon credit or for cash, in every
department operating in the premises, whether operated by Tenant or by a
subtenant or subtenants, or by a concessionare or concessionaires. Gross
sales shall not include, or if included there shall be deducted (to the extent
Building Agreement.and Lease Page 6
December 20, 1988
included) the following:
(1) The selling price of all merchandise returned by customers
and accepted for full credit, or the amount of discounts, refunds,
and allowances made on such merchandise.
(2) Merchandise returned to sources or transferred to another
store or warehouse owned by or affiliated with Tenant.
(3) Sums and credits received in the settlement of claims for
loss or damage to merchandise.
(4) The price allowed on all merchandise traded in by
customers for credit or the amount of credit for discounts and
allowances made instead of acceptance of merchandise.
(S) Any sums paid to unrelated third parties for the use or
rental of pay telephones, stamp machines, music machines, vending
machines, amusement machines, or public toilet locks.
(6) Gift certificates, or similar vouchers, until such time as
they shall have been converted into a sale by redemption.
(7) Sales and use taxes, so- called luxury taxes, consumers'
excise taxes, gross receipts taxes, and other similar taxes now or
in the future imposed on the sale of merchandise or services, but
only if such taxes are added to the selling price, separately
stated, collected separately from the selling price of merchandise
or services, and collected from the customers.
(8) Sales of fixtures, trade fixtures, or personal property
that are not merchandise as allowed in this lease.
Sales upon credit shall be deemed cash sales and shall be
included in the gross sales for the period which the merchandise is delivered
to the customer, whether or not title to the merchandise passes with delivery.
Sales from catalog or similar orders shall be deemed to have occurred on the
premises if goods or products involved are normally sold on the premises.
Annual gross sales shall be gross sales for one (1) fiscal year, which ends on
Tenant's year -end of January 31 ( "fiscal year ").
(B) Within thirty (30) days after the end of each fiscal quarter
following the commencement of rents, Tenant shall furnish to Landlord a
Building Agreement and Lease Page 7
December 20, 1988
statement in writing, certified by Tenant to be correct, showing the total
gross sales made in, upon, or from the premises during the preceding fiscal
quarter. Within thirty (30) days after the end of each fiscal year of the
term hereof, Tenant shall furnish to Landlord a statement in writing certified
to be correct, showing the total gross sales by quarter made in, upon, or from
the premises during the preceding fiscal year. If annual percentage rent
exceeds the Minimum Rent for the fiscal year, Tenant shall pay the excess due
at the same time the annual statement is furnished to Landlord.
(C) The Tenant shall keep full, complete and proper books, records
and accounts of its daily gross sales, both for cash and on credit, of each
separate department (or portion thereof) operated at any time in the premises,
and shall marshall gross sales figures of subtenants and concessionaires to be
provided to Landlord. The Landlord and its agents and employees shall have
the right at any and all times, during the regular business hours, to examine
and inspect all of the books and records of Tenant, including any sales tax
reports retaining to the business of the Tenant conducted-in, upon or from the
premises, for the purpose of investigating and verifying the accuracy of any
statement of gross sales. The Landlord may once in any fiscal year cause an
audit of Tenant's gross sales on the premises to be made by an accountant of
Landlord's selection and if the audit shows a deficiency in the statement of
gross sales previously made to Landlord, using Tenant's method of account -ing
(which shall conform to generally accepted standards), the deficiency shall be
immediately due and payable. Tenant shall keep all said records for three (3)
years. If said audit shall disclose an underpayment to Landlord of greater
than two percent (2 %) of annual rent received by Landlord for the audit
period, Tenant shall immediately pay to Landlord the cost of such audit;
otherwise, the cost of such audit shall be paid by Landlord. If such audit
shall disclose any intentionally fraudulent inaccuracies committed by Tenant,
this Lease may thereupon be cancelled and terminated, at the option of
Landlord.
(D) Tenant intends to install its Men's Department and Children's Wear
on the commencement of this lease, and may substitute other departments from
Building Agreement and Lease Page 8
December 20, 1988
C
3
time to time, provided that Tenant notifies Landlord 30 days prior to any
substitution of a department.
4. The rent rates established by the Article shall apply only so long as
Tenant occupies greater than 50% of the premises (for the purposes of this
provision, premises shall include the gross square footage less any storage,
utility or other non - retail space used or controlled by .Tenant). Upon such
time that Tenant no longer occupies greater than 50% of the premises the rents
shall be adjusted to current market rate as determined by Landlord.
5. Failure to pay rent, and any failure to cure as provided by law,
shall constitute a material breach of this Agreement by Tenant. Upon said
breach, Landlord may elect to exercise any rights it may have under this
Agreement and lease or law.
6. Tenant shall pay Landlord, during each lease year or partial of the
term of this Lease, all real estate taxes and assessments levied and assessed
for any such year upon the leased,premises. For any partial lease year of the
term hereof such amount shall be prorated on a time basis. Payment shall be
made by Tenant within thirty (30) days after receipt of a written statement
from Landlord setting forth the amount of such tax showing in reasonable
detail the manner in which it has been computed.
ARTICLE VI
Water, Electric Light, etc.
Tenant shall bear, at its sole cost and expense, any and all charges for
fuel, heat, water, sewer, trash removal, gas, telephone, electric light and
power used in or on the premises. Landlord shall not be liable for any
interruptions in utility services unless such interruption is caused by the
negligence of Landlord or its representatives.
Building Agreement and Lease Page 9
December 20, 1988
ARTICLE VII
Maintenance and Repairs
1. Except as otherwise herein provided, Tenant shall, at its cost and
expense, maintain and repair the premises and every part hereof, other than
the foundation, the roof, floor, outer walls and all interior weight bearing
walls of the demised premises (as originally installed by Landlord pursuant to
its obligations set forth in Exhibit "D" to this Lease) but including without
limitation, the exterior and interior portion of all doors, door checks,
windows, plate glass, all plumbing and sewage facilities within the premises,
fixtures, heating, air conditioning, and electrical wiring and equipment,
interior walls, floors and ceilings, and including replacement of parts and
equipment, if necessary. Landlord shall, at its cost and expense, maintain
and repair the foundation, the roof, the floor, the exterior walls and all
interior weight bearing walls, and all other items to be repaired and
maintained that are not Tenant's obligations hereunder. Tenant is responsible
for maintenance and repair of all wiring, pipes, conduits, water, sewer and
utility lines which were installed by Landlord but are within the premises.
2. If Tenant refuses or neglects to commence to complete repairs
promptly and adequately, Landlord may, after thirty (30) days prior written
notice to Tenant, at its option, but without obligation to do so, make such
repairs and Tenant shall pay Landlord the reasonable cost thereof. If any
repairs required to be made by Landlord hereunder are not made or commenced
within thirty (30) days after written notice delivered to Landlord by Tenant,
Tenant may at its option, but shall not be obligated to, make such repairs and
Landlord shall pay Tenant the reasonable costs thereof.
3. Tenant shall, at its cost and expense, keep the premises in a clean
and sanitary condition in accordance with the laws of the State of California
and in accordance with all directions, rules and regulations of the health
officer, building inspector or other proper officials of the governmental
agencies having jurisdiction.
Building Agreement. and Lease Page 10
December 20, 1988
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4. Landlord may enter upon the premises at any reasonable time during
business hours for the purpose of inspecting the same, or of making repairs to
the premises, or of making repairs, alterations or additions to the adjacent
premises, or of showing the premises to prospective purchasers, or lenders;
provided, however, no such entry shall interfere with the conduct of Tenant's
business in the premises.
5. In addition to the foregoing, Landlord shall maintain, keep, repair,
paint, sweep and light the parking structure in a first class condition during
the term of this lease.
ARTICLE VIII
Alterations and Improvements
Tenant may, during the term of this Lease, at its cost, and consistent
with all applicable laws, codes, and regulations and ordinances make such
alterations, improvements or changes in the premises as it shall deem
necessary or beneficial, provided, however, Tenant shall submit to Landlord
plans and specifications relating to any exterior or structural change prior
to commencing same and obtain the approval of Landlord for such exterior or
structural changes (which approval will not be unreasonably withheld), and
Tenant shall fully and completely indemnify Landlord against any mechanics or
other liens or claims in connection with the making of any such alterations,
improvements or change.
ARTICLE IX
Trade Name
Any trade name at any time used or placed on the premises by Tenant in
connection with the demised premises or the business of the Tenant conducted
therein, with the exception of a name similar in import to that of the name of
the Property itself shall be the exclusive property of the Tenant, and such
name will not in any case be deemed to be the name of the building of the
Landlord (unless it is a name similar in import to the name of the Property
itself), and the Landlord shall not have the right to use such name.
Building Agreement and Lease Page 11
December 20, 1988
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ARTICLE X
Mortgages
Tenant accepts this Lease subject and subordinate to any mortgage, deed
of trust or other lien presently existing upon or to be placed upon the
premises of the property as a whole, and to any renewals and extensions
thereof and any such mortgage.may at any time subordinate such mortgage, deed
of trust or other lien to this Lease. Landlord may subordinate this Lease to
any mortgage, deed of trust or other financing vehicle or lien hereinafter
placed upon the premises or the Property as a whole provided that any such
subordination shall be upon the express condition that this Lease shall be
recognized by the mortgagee, trustee, beneficiary and /or lienholder,. and that
the rights hereunder of Tenant shall remain in full force and effect during
the term of this Lease so long as Tenant shall continue to pay all sums
required to be paid pursuant to the provisions of this Lease. Tenant shall
upon written demand execute such further instruments subordinating this lease
as Landlord may reasonably request not inconsistent with the foregoing.
ARTICLE XI
Use of Premises
1. Tenant may use the premises during the term hereby created for any
legitimate purpose and consistent with all local laws, including zoning
regulations, provided that the premises is used for retail sales and uses
incidental to retail sales or the Tenant has first secured Landlord's approval
for any use other than retail sales. Tenant shall not, without Landlord's
prior consent, keep anything within the premises for any purpose which
invalidates any insurance policy carried on the premises or other part of the
Property: All property kept, stored or maintained within the premises by
Tenant shall be at Tenant's sole risk.
2. In no event shall the premises be used for religious or political
purposes.
Building Agreement. and Lease Page 12
December 20, 1988
ARTICLE XII
Insurance and Damage Clauses
1. Tenant shall, upon taking.possession of the premises from Landlord,
carry, maintain, and pay the premium for the following types of insurance in
the amounts specified:
(a) FIRE INSURANCE: Fire insurance with extended coverage endorsement
in an amount satisfactory to Landlord with loss payable therein to
Landlord and Tenant and to any authorized encumbrancer of Landlord,
as their respective interests may appear. In the alternative,
Tenant may choose to pay Landlord the cost to Landlord to so insure
the premises as part of the larger parking structure.
(b) PUBLIC INABILITY AND PROPERTY DAMAGE: Combined single limit of
liability insurance of not less than Ten Million Dollars
($10,000,000.00) aggregate and One Million Dollars ($1,000,000.00)
per occurrence insuring against any and all liability of the insured
with respect to said premises or arising out of the maintenance, use
or occupancy thereof. The amount of such insurance may be increased
by landlord at the end of the initial term and at the end of the
first option period upon a bonafide determination by an independent
insurance expert of the desirability and need for such increase.
(c) PLATE GLASS: Tenant shall be responsible for the maintenance of any
plate glass on the premises but may either insure such risk or
self- insure therefor.
2. Landlord shall ensure that the parking structure is included in its
comprehensive self- insurance program, including applicable excess insurance
and property (premises) policies, and shall treat said structure in the same
Building Agreement and Lease Page 13
December 20, 1988
• •
manner and practice as all other similar public property. Landlord agrees to
implement, after periodic review upon the request of either party, such
insurance protection and /or assurances as are reasonably required to cover
landlord's obligations under this lease. If the parties are unable to agree,
An independent insurance expert shall be consulted and his recommendations
shall be accepted by the parties.
3. All policies of ratable insurance to be provided by Tenant and
Landlord hereunder shall be issued by responsible insurance companies with
Best rating of B+ that are qualified to do business in the State of California
and shall be issued in the names of Landlord and Tenant, which policies shall
be for their respective mutual and joint benefit and protection, and executed
copies of such policies or insurance or certificates thereof shall be
delivered to Landlord and Tenant within thirty (30) days after delivery of
possession of the premises to Tenant. All insurance required to be carried by
this Agreement shall be endorsed as primary to Landlord's, or any other
coverage. New certificates shall be delivered promptly- whenever policies are
renewed or new policies are written. All public liability and property damage
policies shall contain a provision that Landlord, although named as an
insured, shall nevertheless be entitled to recovery under said policies for
any loss occasioned by it, its servants, agents and employees by reason of the
negligence of. Tenant. All public liability and property damage policies shall .
contain a provision that Tenant, although named as an insured, shall
nevertheless be entitled to recovery under said policies for any loss
occasioned by it; its servants, agents and employees by reason of the
negligence of Landlord. As often as any such policy shall expire or terminate,
renewal or additional policies shall be procured and maintained by Tenant or
Landlord in like manner and to like extent. All policies or insurance
delivered to Tenant or Landlord must contain a provision that the company
writing said policy will give to the other party thirty (30) days notice in
writing in advance of any cancellation or lapse of the effective date of any
reduction in the amount of insurance. Landlord and Tenant hereby waive any
rights but only and including to the limits of basic coverage (fire and
extended coverage) and special form coverage insurance carried hereunder,, each
have against the other for any loss or damage occasioned to Landlord or
Building Agreement and Lease Page 14
December 20, 1988
• •
Tenant, as the case may be, their respective property, the premises, or its
contents or to other portions of the Property arising from any risk generally
covered by fire and extended coverage insurance policies then in use in the
State where the Property is situated; and the parties each, on behalf of their
respective insurance companies insuring the property of either Landlord or
Tenant against any such.loss, waive any right of subrogation that such
companies may have against Landlord or Tenant as the case may be. Landlord
and Tenant covenant with each other that to the extent such insurance
endorsement is available, they will each obtain for the benefit of the other a
waiver of any right of subrogation from their respective insurance companies.
4. Tenant's or Landlord's obligations to carry the insurance provided
for in this Article XII may be brought within the coverage of a so- called
blanket policy or policies of insurance carried and maintained by Landlord or
Tenant; provided, however, that Landlord shall be named as an additional
insured thereunder as Landlord's interest may appear and that the coverage
afforded Landlord or Tenant shall not be reduced or diminished by reason of
the use of such blanket policy or insurance, and provided further that the
requirements set forth herein are otherwise satisfied.
5. Anything in this Lease to the contrary notwithstanding, if the
premises shall be damaged or destroyed by fire, casualty, or other causes,
they shall be promptly restored by Landlord, and until restored, there shall
be an abatement or a proportionate reduction of the rent during the time.
Tenant's business is interrupted; and, if the premises shall be condemned by
lawful authority as unsafe or unfit for use, or if they shall become partially
or wholly destroyed by fire or other causes, so.as to render them untenantable
for a period in excess of two hundred fifty (250) days, and Landlord shall
give written notice of such fact to Tenant and Tenant shall have sixty (60)
days after receipt thereof to elect whether or not to enter into a new lease
thereon commencing upon the completion of such restoration for a term equal to
the balance of the term remaining under this Lease at the time the premises
become untenantable. In any such event, all conditions of such new lease,
except for the new extended term thereof, shall be the same as are contained ,
Building Agreement and Lease Page 15
December 20, 1988
in this lease. Any rental paid in advance and at the time of any such
termination or abatement unearned shall be refunded.
ARTICLE XIII
Eminent Domain
1. If the entire commercial retail portion of the premises shall be
appropriated or taken under the power of eminent domain, or under any similar
power, by any public or quasi - public authority, this Lease shall abate as of
the date of such appropriation or taking, and the unearned portion of the rent
theretofore paid shall forthwith be returned to Tenant.
2. If a portion of the premises shall be appropriated or taken under
power of eminent domain, or under any similar power, by any public or
quasi - public authority, the unearned portion of the rent theretofore paid with
respect to such taken portion shall forthwith be returned to Tenant, and if,
in Tenant's and Landlord's reasonable judgment, the remaining portion of the
premises can be used by Tenant in the operation of its business, then Tenant
shall so use said remaining portion and there shall be an abatement of minimum
rent based upon the area.of the demised premises so appropriated or taken, and
all cost and expense necessary to repair and /or restore the premises shall be
paid by Landlord. If, on the other hand, in Tenant's reasonable judgment, the
remaining portion of the premises cannot be used by Tenant in the operation of
its business, then this.Lease shall be terminated as of the date of such
appropriation or taking, and the unearned portion of the rent theretofore paid
shall forthwith be returned to Tenant.
3. If the premises or any portion thereof be taken or appropriated for
public use under the right of eminent domain, Landlord and Tenant shall be
entitled to share the proceeds paid by the condemning entity as follows:
The Landlord shall receive all amounts awarded for repair or recon-
struction of the building, the taking of the land, and the taking or
damage to the buildings or other improvements owned by Landlord,
after deducting therefrom the following amounts which shall be
Building Agreement and Lease Page 16
December 20, 1988
allocated to the Tenant: (1) A sum attributable to Tenant's
improvements or alterations made to the premises which Tenant elects
not to remove; (2) A sum for removal and relocation of improvements
and alterations that Tenant elects to remove; (3) A sum
Attributable to any excess of the market value of the leasehold,
exclusive of Tenant's improvements or alterations compensated for,
for the remainder of the term, over the present value at the date of
taking of the minimum monthly rent payable for the remainder of the
term and extended term; (4) a sum paid to Tenant from the condemnor
for loss of goodwill; and (5) such other sums allowed to Tenant by
law.
4. A voluntary sale to any public body or agency having the power of
eminent domain, either under threat of condemnation or while proceedings are
pending, shall be deemed to be a taking under the power of eminent domain for
the purposes of this Lease.
ARTICLE XIV
Default
1. A default shall be deemed to occur:
(a) If Tenant shall fail to make a payment required under Article V for
ten (10) days after written notice specifying the default, or
(b) If Tenant shall fail to make any other payment required hereunder
for thirty (30) days after written notice specifying the default, or
(c) If Tenant shall fail to perform any other obligation under this
Lease for .thirty (30) days after written notice specifying the
default (or within such period Tenant has not commenced diligently
to correct such default so specified or has not hereunder diligently
pursued such correction to completion), or
Building Agreement and Lease Page 17
December 20, 1988
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•
(d) If Tenant shall abandon or surrender or attempt to abandon or
surrender the demised premises, or
(e) If Tenant's leasehold interest is taken on execution or other
process of law and said execution is not satisfied, vacated or
stayed within fifteen (15) days thereafter, or
(f) If Tenant shall be declared bankrupt according to laws, then in any
of such cases, this Lease and the terms hereof shall, at the option
of Landlord, upon the date specified in.a notice by certified or
registered mail,, which date shall be not less than ten (10) days
after the date of mailing of such notice by Landlord to Tenant, be
annulled and Landlord shall have, in addition to any other right_ to
thereupon re -enter and taken possession of the said premises in
accordance with applicable law.
2. Section 1251.1, 1951.3 and 1951.4 of the California Civil Code shall
apply to this Lease.
ARTICLE XV
Surrender of Premises-Upon Termination of Lease
Tenant shall, upon termination of this Lease by lapse of time or
otherwise, surrender and deliver the premises in broom -clean condition,
subject to the effects of ordinary wear, tear and depreciation, arising from
use and /or lapse of time and to damage by fire or other casualty and damage by
the elements. Upon the termination of this Lease by lapse of time, Tenant
shall have no further interest in the leased premises. Tenant shall repair
any damage caused by removal by Tenant of Tenant's fixtures.
ARTICLE XVI
Quiet Enjoyment and Marketable Title
1. Landlord represents and warrants that:
Building Agreement.and Lease Page 18
December 20, 1988
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(a) It is or will be.prior to commencement of construction, the fee
title holder and owner of the land described in Exhibit "A ", and
will submit to Tenant a policy of title insurance certifying such
fact„
(b) It has good and lawful right and authority to make this Lease, and
(c) That as of the date hereof, there are no leases, agreements,
restrictive covenants, zoning or other ordinances or regulations
that will prevent or restrict Tenant from conducting on the demised
premises the business permitted by this Lease.
2. Landlord covenants that Tenant, on paying the rents reserved herein
and performing the covenants and agreements hereof, shall peaceably and
quietly have, hold and enjoy the demised premises and all rights, easements,
appurtenances and privileges thereunto belonging or in anywise appertaining,
during the full term of this Lease, and any extension or renewals., without
hindrance from Landlord..
ARTICLE XVII
Rent Payments and.Notice
All rent payments, notices, requests and other communications hereunder
shall be in writing and shall be deemed to be duly given if delivered, or
deposited in the United States mail, first -class postage, prepaid, certified,
return receipt requested, to Landlord as follows:
Director of Finance (rent payments) City Clerk (all other)
City of San Luis Obispo City of San Luis Obispo
P. 0. Box 8100 P. 0. Box 8100
San Luis Obispo, CA 93403 -8100 San Luis Obispo, CA 93403 -8100
and to Tenant as follows: Charles Ford Company, Inc.
407 Main Street
Watsonville, CA 95076
Building Agreement and Lease Page 19
December 20, 1988
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Copy to: Bruce A. Richardson, Esq.
Wyckoff, Richardson, Sanson,
Allen & Locke - Paddon
P.O. Box 960
Watsonville, CA 95077 -0960
Each party may, from time to time, designate a different address by
notice given in conformity with this paragraph. The date of receipt as
indicated on the United States postal return receipt shall be the commencement
date for calculating any time periods associated with the giving of notice
hereunder.
ARTICLE XVIII
Taxes on Personal Property
Tenant shall be liable for all taxes levied against the personal
property, trade fixtures and other improvements placed by Tenant in the
premises. Tenant shall also be responsible for any possessory interest tax_
that may be assessed. If any such taxes are levied against Landlord's
property and if Landlord elects to pay the same and if the assessed value of
Landlord's property is increased by inclusion of personal property and trade
fixtures placed by Tenant in the. premises and Landlord elects to pay the taxes
based on such increase, Tenant shall pay to Landlord upon demand, the part of
such taxes for which Tenant is primarily liable hereunder.
ARTICLE XIX
Indemnity
1. Tenant shall indemnify, defend, and hold harmless Landlord from and
Against all claims, cost expenses and liabilities incurred in connection with
any claim arising by reason of use, occupancy and enjoyment of the premises by
Tenant or any person thereon or holding under Tenant, but Tenant shall not be
liable for damage or injury occasioned by reasons of active negligence or
omission of Landlord, its agents, servants or employees.
Building Agreement and Lease Page 20
December 20, 1988
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2. Landlord shall indemnify and hold harmless Tenant from and against
all claims and all costs, expenses, and liabilities incurred in connection
with all claims, including any action or proceeding brought thereon, arising
from or as a result of:
(a) Any accident, injury, loss or damage whatsoever caused to any person
or to the property of any person as shall occur in or about the
premises or the Property prior to the commencement of the terms of
this Lease except as may be caused by the active negligence or
omission of the Tenant, or
(b) Any act of omission whatsoever or negligence of Landlord or the
agents, contractors, servants or employees of Landlord, in any way
related to or affecting the premises or the Property, or otherwise,
but Landlord shall not be liable for damage or injury occasioned by
reason of the active omission or negligence of Tenant, its agents,
servants, subtenants or employees.
ARTICLE XX
Options to Renew
Tenant shall be entitled to two (2) separate options to extend the term
hereof for periods of ten (10) years each upon the same terms and conditions
as herein set forth, except as to term and renewal. Unless Tenant shall
notify Landlord not less than six (6) months or more than one (1) year prior
to the expiration of the original term, or extended term hereof, of its intent
not to exercise an option hereunder,.it shall be deemed to have exercised its
option to extend this Lease for the next ensuing term. Any notice to renew
given hereunder shall not be effective if given when Tenant is in default for
non - payment of monetary obligations hereunder.
ARTICLE XXI
Force Majeure
Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials, or reasonable
Building Agreement and Lease Page 21
December 20, 1988
substitute therefor, governmental controls,. judicial orders, enemy or hostile
governmental actions, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of the party obligated to perform, shall
excuse the performance by such party for a period equal to any such
prevention, delay or stoppage.
ARTICLE XXII
Miscellaneous
1. The captions of the articles of this Lease are for convenience and
reference only and shall not in any way limit or be deemed to construe or
interpret the terms and provisions thereof.
2. Time is of the essence of this Lease and of all provisions hereof.
3. In this Lease, the neuter gender includes the masculine and feminine,
the singular number includes the plural, and the word "person" or "party"
includes corporations, partnerships, firms or associations whenever the
context so requires.
4. This Lease may be modified only by a written modification signed by
both parties.
5. This Lease contains the entire agreement of the parties with respect
to the matters covered by this Lease, and no other agreement, statement or
promise may by any party, or to any employee, officer or agent of any party,
which is not contained in this Lease shall be binding or valid.
6. All the covenants, agreements and conditions in this Lease shall
extend to, and be binding upon the legal representatives, successors and
assigns of the respective parties hereto, the same as if they were in every
case named and expressed, and the same shall be construed as covenants running
with the land, and whenever in this Lease reference is made to either of the
parties hereto., it shall be held to include and apply to the legal representa-
tives, successors and assigns of such party, the same as if in each and every
Building Agreement.and Lease Page 22
December 20, 1988
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case to expressed, provided however, this Lease.shall not be assigned unless
Tenant remains liable for performance of all obligations of Tenant to be
performed pursuant to this Lease.
7. If any term, covenant, condition or provision of this Lease is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
8. Both Landlord and Tenant warrant that neither had any dealings with
any broker or agent (except for attorneys) in connection with the negotiation
or execution of the lease.
9. This Lease will be interpreted in a fair and equitable manner, in
accordance with its terms, neither for nor against either party hereto.
10. All reference to the "date of this Lease" or the "date hereof" or
"the date upon which this Lease is fully executed" shall be deemed to be that
date on which all parties hereto have executed this lease.
11. A memorandum of the terms and conditions of this Lease in the form
of Exhibit E hereto shall be recorded by either party at any time.
12. Exhibits
A Property Description
B Space Diagram
C Parking Requirements
D Plans & Specifications
E Memorandum of Lease
Building Agreement.and Lease Page 23
December 20, 1988
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IN WITNESS WHEREOF, the Landlord and Tenant respectively have sealed and
executed these presents.
CHARLES FORD COMPANY; INC.
a California corporation
By:
By: X41' &:Ge .
CITY OF SAN LUIS OBISPO
r
By:.!r%
ATTEST:
City Clerk
Building Agreement and Lease Page 24
December 20, 1988
i •
EXHIBIT A
Real Property
The southwesterly 100 feet of Lots 12, 1.3 and 14 in Block
100 of the Mission Vineyard Tract, except as previously conveyed
to the City of San Luis Obispo, in the City of San Luis Obispo,
County of San Luis Obispo, California, according to map recorded
March 8, 1873 in Book A, Page 143 of Maps.
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city o s ,s oBispo
990 Palm Street /Post Office Box 8100 • San Luis Obispo; CA 93403.8100
April 11, 1989
TO: Roger Picquet
FROM: Michael Multari, Community Development Director
SUBJECT: Parking kequirement for Retail Lease Space in New Parking Structure
As provided in Section 17.42.020.(E)(3) of the City of San Luis Obispo Municipal code,
the parking requirement for retail use of the first floor of the parking structure
contemplated at the northeast corner of Marsh and Chorro is one space per 500 squre feet.
of gross floor area.
EXHIBIT 116VI
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PAC /F /C ST.
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RESOrrrrrON No. 6555 (1988'_Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN WIS OBISPO
APPROVING AN AGREEMENT BETWEEN THE CITY AND L & H INVESTMEtITS FOR
PUR01AM OF REAL PROPERTY AT 871 MARSH STREET IN SAN LUIS OBISPO
BE IT.RESOLVED by the Council of the City of San Luis Obispo as
follows:
SECTION 1. That certain agreement, attached hereto marked.
Exhibit "A" and incorporated herein by reference, between the City
of San Luis Obispo and L & H Investments, for purchase of real
property at 871 Marsh Street for purposes of building a parking
structure is hereby approved and the Mayor is authorized to execute
the same.
SECTION 2. The City Clerk shall furnish a copy of this
resolution and a copy of the executed agreement approved by it to:
L & H Investments and City Parking Program Coordinator as set forth
in the agreement.
On motion of Councilwoman Rappa , seconded by Councilwoman Pinard,
and on the following roll call vote:
AYES: Councilwoman Pinard and Rappa, and Mayor Dunin
NOES: Councilman Reiss
ABSENT: Councilman Settle
the foregoing Resolution was passed and adopted this 20th day
of December , 1988.
ATTEST:
Qn,� Urr A,,��
PAM Vol ES, CITY C
a— OIL-
ON DUNIN
R 6555
Resolution No. 6555(1988 Series)
Page Two
Ck
Ci inistrative officer
City Attorn
Public Works Dire r
Finance Director
PURCHASE AND SALE AGREEMENT
(Portion of Mission Vineyard Tract)
THIS PURCHASE AND SALE AGREEMENT ( "Agreement ") is dated for reference
purposes only as of M A-4- \S , 1989, and constitutes an agreement
by which L & H INVESTMENT CO., a general partnership ( "Seller "), agrees to
sell, and CITY OF SAN LUIS OBISPO, a chartered municipal corporation of the
State of California ( "Buyer "), agrees to purchase that certain real property
( "Property ") legally described as:
the southwesterly 100 feet of Lots 12, 13 and 14 in
Block 100 of the Mission Vineyard Tract, except as
previously conveyed to the City of San Luis Obispo, in
the City of San Luis Obispo, County of San Luis Obispo,
California, as shown in the attached Exhibit "1 ",
incorporated herein by this reference, commonly known
as Riley's parking lot, Marsh and Chorro Streets, San
Luis Obispo, California.
The terms and conditions of this Agreement, are as follows:
1. Purchase and Sale. Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, the Property upon the terms and conditions herein set
forth.
2. Purchase Price. The Purchase Price of the Property shall be Four
Hundred Fifty -Nine Thousand Dollars ($459,000) cash.
3. Payment of Purchase Price. Prior to "Close of Escrow" as defined
below, Buyer shall pay the Purchase Price for the Property by delivering to
Purchase and Sale Agreement
December 20, 1988
Page 1
0 0
the Escrow Holder (as defined below) for disbursement to the Seller, as
provided for in this Agreement, cash or check, or warrant of the City of San
Luis Obispo, made payable to Escrow Holder in the amount equal to the Purchase
Price. Any sums delivered to the Escrow Holder pursuant to this paragraph 3
shall be deposited in an interest bearing account with all interest accruing
in Buyer's favor.
4. Conditions of Title. Fee simple absolute title to the Property
shall be conveyed by Seller to Buyer by grant deed (which grant deed shall be
fully executed and acknowledged and deposited by Seller into escrow prior to
the close thereof, subject to no reservations and subject only to the
following conditions of title ( "Conditions of Title ")):
a. A lien to secure payment of real estate taxes, not delinquent;
b. Matters affecting the Conditions of .Title created by, or with
the written consent of, Buyer.
With respect to any encumbrances securing obligations relative to
the Property, including, but not limited to, deeds of trust, Seller covenants
that it will cause the removal of all said encumbrances by the Close of Escrow
(as defined below).
Title shall be evidenced by the willingness of the Escrow Holder to
issue the title company's C.L.T.A. owners form policy of title insurance in
the amount of the Purchase Price showing title to the Property vested in
Buyer, subject only to the Conditions of Title (at Buyer's option, an A.L.T.A.
policy of title insurance may be substituted). If Escrow Holder (as defined
below) is unwilling to issue such insurance policy, or if Seller has not
removed any exceptions disapproved by Buyer prior to the Close of Escrow (as
Purchase and Sale Agreement Page 2
December 20, 1988
•
defined below), at Buyer's option and in addition to any other remedies
available to Buyer, all Escrow Holder's obligations to the parties hereunder
shall terminate, the Escrow Holder shall return to Buyer any sums which have
been deposited into Escrow by Buyer. Seller shall bear the costs of escrow.
5. Escrow.
a. Opening of Escrow. Upon execution of this Agreement, escrow
accounts shall be opened expeditiously in a manner mutually acceptable with
Escrow Services of the Central Coast, Inc. ( "Escrow Holder "), and concurrently
with Cuesta Title Insurance Company at its office in San Luis Obispo,
California, to issue title insurance, for the consummation of this
transaction..
b. Close of Escrow. For the purposes of this Agreement, the "Close
of Escrow" shall be defined as the date that the Grant Deed conveying the
Property to Buyer is recorded in the official records of the County of San
Luis Obispo. The parties agree to use their best efforts to effect the Close
of Escrow, and the parties shall be in a position to close no later than sixty
(60) days after escrow is opened (the "Closing Date "). In the event that this
escrow fails to close by the Closing Date (or as extended by the mutual
written agreement of the parties delivered to Escrow Holder prior to the
Closing Date) by reason of any defaults hereunder, the non - defaulting party
may cancel the escrow, and the defaulting party shall bear all costs and
expenses of escrow.
6. Costs and Expenses. The cost and expense of the title insurance
policy to be issued in favor of the Buyer pursuant to paragraph 4 hereof,
Purchase and Sale Agreement Page 3
December 20, 1988
0
0
shall be paid by Buyer. Buyer shall pay all documentary transfer taxes
payable in the recordation of the Grant Deed and any other documents which the
parties may mutually direct to be recorded in the official records. The
escrow fees of Escrow Holder shall be split equally between Buyer and Seller.
Escrow fees shall include, but not be limited to, Escrow Holder's customary
charges to either party for document drafting, recording, and miscellaneous
charges. Real property taxes and rents (if any) for the Property shall be
prorated as of the Close of Escrow.
7. Disbursements and other actions by Escrow Holder. Upon the Close of
Escrow, the Escrow Holder shall promptly undertake all of the following in the
manner hereinbelow indicated:
a. Disburse all funds deposited with Escrow Holder by Buyer in
payment of the Purchase Price for the Property as follows:
(1) Deduct therefrom all items chargeable to account of Seller
pursuant hereto and for the account of any lenders of record,
pursuant to separate instructions by Seller.
(2) The remaining balance of the funds so deposited by Buyer
shall be disbursed to Seller promptly upon the Close of Escrow.
b. Cause the Grant Deed, Memorandum of Lease, and any other
documents which the parties hereto may mutually direct to be recorded in
the official records.
8. Waiver of Relocation Expenses. Seller is aware that if it is
occupying or using the Property at the Close of Escrow, it will be, or may be,
entitled to recover from Buyer, Seller's expenses incurred in relocating its
Purchase and Sale Agreement Page 4
December 20, 1988
9
0
business and personal property to a new location. Seller hereby knowingly,
deliberately, and intentionally waives any and all rights it now has, or may
have in the future, to relocation expenses or benefits to which it may be
entitled as a result of moving from the property. Seller agrees to hold
harmless and indemnify the Buyer from any and all suits, claims, proceedings
or actions from any party regarding alleged relocation expense obligations.
9. Default. Seller agrees that if the within sale is not completed as
herein provided by fault of Seller, Buyer, at its option shall be entitled, in
addition to any other remedy now or hereafter available to Buyer under the
laws or judicial decisions of the State of California, to compel Seller to
perform its obligations under this Agreement by means of a specific perfor-
mance proceeding. The parties acknowledge that Buyer is buying the property
for the purpose of constructing a parking structure that incorporates
commercial retail and office space thereon and that Buyer has expended, and
will continue to expend significant sums of money in anticipation of
commencement of construction as soon as possible.
10. Notices. All notices or other communication required or permitted
hereunder shall be in writing, and shall be personally delivered or sent by
registered or certified mail, postage prepaid, return receipt requested, at
the following addresses:
Seller: Ross Humphrey, Partner
L & H Investment Co.
c/o Richard N. Racouillat
1301 Chorro Street
San Luis Obispo, CA 93401
Purchase and Sale Agreement Page 5
December 20, 1988
• •
Buyer: City Attorney
City of San Luis Obispo
P. 0. Box 8100
San Luis Obispo, CA 93403 -8100
Notice shall be deemed given as of the time of personal delivery or
forty -eight (48) hours following deposit in the United States mail. Notice of
change of address shall be given by written notice in the manner detailed in
this paragraph.
11. Building Agreement and Lease. If Buyer builds the parking structure
it proposes to build on the Property, Buyer is obligated to build a commercial
retail space as part of the same. Buyer and Seller, or its assignee, shall
execute the Building Agreement and Lease attached hereto as Exhibit 2 prior to
the Close of Escrow, to govern the signing parties' rights and
responsibilities in the event of construction of the parking structure and
commercial retail space.
12. Use of Property by Seller. Seller, or its assignee, may use the
property after Close of Escrow and title to property has been transferred to
Buyer subject to the following conditions:
a. Seller shall use the Property only as a parking lot.
b. Seller shall hold harmless and indemnify Buyer from any and all
claims, suits, actions or proceedings of any kind or nature arising out
of Seller's said use.
c. 'Seller's right 'to use the property shall be terminated upon two
(2) days written notice from Buyer that the property is required for
construction purposes. Seller shall enter into a lease and /or use
agreement reflecting this paragraph if so requested by Buyer.
Purchase and Sale Agreement Page 6
December 20, 1988
• •
13. Parking Agreement. Seller and Buyer acknowledge that upon Close of
Escrow and transfer of title to Buyer that Seller's business, "Riley's
Department Store ", located at or near the Property will no longer have enough
parking to meet its requirements therefor under the Municipal Code. Parties
hereto agree to enter into an agreement entitled "Acknowledgment of
Nonconforming Parking ", a copy of which is attached hereto as Exhibit "3" and
incorporated by reference, prior to Close of Escrow. Said agreement shall
expire and have no force or effect should Seller not exercise its right of
first refusal under paragraph (14) below. Whether or not Seller or its
assignee, CHARLES FORD COMPANY, INC., shall acquire or continue to lease the
property hereafter, the continued use of the nearby "Riley's Department Store"
shall not be deemed in violation of the parking requirements of the Municial
Code. Nothing in this agreement is intended to permit the seller, or its
assignee, to construct or occupy additional retail space without complying
with the then applicable parking requirements for that space.
14. Right to Repurchase Property. Seller shall have the right to
repurchase the property from Buyer at the Purchase Price set forth in para-
graph (2) above if Buyer has not commenced physical construction of a parking
structure or facility with approximately 14,000 square feet of retail space
available to Seller under the-Building and Lease Agreement within five (5)
years of Close of Escrow. Seller shall exercise its right to repurchase the
Property by written notice given to Buyer within 90 -days of the expiration of
such five year period, and in such event, the parties shall enter into an
escrow on the same terms as provided herein mutatis mutandis, except as
otherwise provided in this paragraph 14.
Purchase and Sale Agreement Page 7
December 20, 1988
• •
The purchase price for the Property shall be $459,000 increased by
the percentage increase in the Consumer Price Index for All Urban Consumers
(U.S. City Average) as published by the U.S. Department of Labor comparing the
month of the Close of Escrow to the month in which Seller exercises the option
to repurchase the Property; provided that the percentage increase shall not
exceed 7% in any one year. The Purchase Price shall be evidenced by Seller's
promissory note in the amount of the purchase price, payable with interest at
the rate of 8}% per annum in equal monthly installments of principal and
interest over a period of 20 years, and shall be secured by a deed of trust
encumbering the Property.
Seller has sold its department store business to CHARLES FORD
COMPANY, INC., a California corporation, and hereby assigns its rights under
this paragraph 14 to CHARLES FORD COMPANY, INC. Otherwise, all such rights
under this Agreement are reserved to Seller.
15. Tax Deferral. Buyer agrees to cooperate insofar as is legal,
practical and reasonable to qualify this particular transaction for Internal
Revenue Code Sections 1031 or 1033 tax deferral.
16. Economic Value. The parties hereto expressly recognize and
acknowledge that the terms of this Agreement fully and fairly reflect the true
and full economic value of the Property.
17. Seller's Representations and Warranties.
a. In addition to any express agreements of Seller contained
herein, the following constitute representations and warranties of Seller
Purchase and Sale Agreement Page 8
December 20, 1988
• •
which shall be true and correct as of the Close of Escrow (and the truth
and accuracy of which shall constitute a condition to the Close of
Escrow):
(1) There are no actions, suits, materials, claims, legal
proceedings or any other proceedings affecting the Property or any
portion thereof at law or in equity before any Court or governmental
agency, domestic or foreign.
(2) Seller has not received any notices from governmental
authorities pertaining to violations of law or governmental
regulations with respect to the Property, and does not know of any
which may have been received by their predecessors in interest.
(3) Seller has no knowledge of any pending or threatened
proceeding in eminent domain or otherwise by any public entity which
would affect the Property, or any portion thereof, nor does Seller
know the existence of any facts which might give rise to such action
or proceedings.
(4) There are no leases, subleases, occupancies, or tenancies
in effect pertaining to the Property except as described herein.
(5) There are no liens or encumbrances on or claims to, or
covenants, conditions and restrictions, easements, right of way,
rights of first refusal, options to purchase, or other matters
affecting the Property except the Conditions of Title and any rights
conferred to Buyer by this Agreement.
(6) Other than the underground streambed traversing the
Property, there is no material adverse fact or condition relating to
the Property, or any portion thereof (including the existence of any
Purchase and Sale Agreement Page 9
December 20, 1988
• •
underground tanks or pipelines), which has not been specifically
disclosed in writing by Seller to Buyer.
(7) Seller has the legal power, right and authority to enter
into this Agreement, and to consummate the transaction contemplated
hereby.
(8) There are no fixtures on the property in which anyone
other than Seller has any claim, rights, or security or other
interest.
(9) There are no service or maintenance contracts, management
agreements or any other agreements which will affect Buyer or the
Property subsequent to the Close of Escrow.
(10) There are no encroachments onto the Property of
improvements located on any adjoining property nor do any
improvements located on the Property encroach onto any other
adjoining property.
(11) Seller warrants and represents that there are no
prescriptive or other easements affecting the Property.
b. In the event that, during the period between the execution of
this Agreement, and the Close of Escrow, Seller has actual knowledge of,
learns of, or has a reason to believe that any of the above representa-
tions or warranties may cease to be true, Seller hereby covenants to
immediately give notice to Buyer of the change in circumstances. Upon
Seller notifying Buyer of the change in circumstances, Buyer may, at its
sole option, terminate this Agreement and all funds deposited into Escrow
or delivered to Seller in connection herewith shall be immediately
returned. Further, in the event Buyer so elects to terminate, Seller
Purchase and Sale Agreement Page 10
December 20, 1988
shall pay all Escrow costs, if any, incurred by both parties herein under
this Agreement.
18. Survival of Conditions. The covenants, agreements, representations
and warranties made in this Agreement shall survive the Close of Escrow and
the recordation and delivery of the Grant Deed conveying the Property to Buyer
and any investigations by the parties.
19. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the successors, heirs, and assigns of the
parties hereto. Other a transfer incident to the dissolution of Seller, City
approval must first be obtained prior to any assignment, which City agrees not
to unreasonably withhold.
20. Required Action of Buyer and Seller. Buyer and Seller agree to
execute all such instruments and documents and to take all actions pursuant to
the provisions hereof in order to consummate the purchase and sale herein
contemplated and shall use their best efforts to accomplish the timely Close
of Escrow in accordance with the provisions hereof.
21. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto relating to the Property, and may not be modified
except by an instrument in writing signed by the parties hereto.
22. California Law. This Agreement has been entered into and is to be
performed in the State of California and shall be construed and interpreted in
accordance with the laws of the State of California.
Purchase and Sale Agreement Page 11
December 20, 1988
0 0
23. Waivers. No waiver by either party of any provision hereof shall be
deemed a waiver of any other provision hereof or of any subsequent breach by
either party of the same or any other provision.
24. Caption. The captions, paragraph and subparagraph numbers appearing
in this Agreement are inserted only as a matter of convenience and in no way
define, limit, construe, or describe the scope of intent of such paragraph or
this Agreement, nor in any way affect this Agreement.
25. Representation by Counsel. The parties acknowledge that each is
represented by an attorney in this transaction.
26. Construction of Agreement. The parties agree that each party and
counsel have reviewed the Agreement and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall
not apply in the interpretation of this Agreement or any amendments or
exhibits thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
L 5 H INVESTMENT COMPANY
a g
By:
By:
Purchase and Sale Agreement
December 20, 1988
CITY OF SAN LUIS OBISPO
-
Mayor
ATTEST:
Cl94�u�u
CLERK
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EXHIBIT I
0
THIS BUILDING AGREEMENT AND LEASE ( "Lease ") is made and entered into this
day of , 1989, by and between THE CITY OF SAN LUIS OBISPO
( "City" or "Landlord") and CHARLES FORD COMPANY, INC., a corporation organized
and existing under the laws of the State of California and doing business as
Riley's Department Store ( "Riley's" or "Tenant ").
WITNFSSEI'H:
A. The City of San Luis Obispo is the owner of land ( "Property ") located
at or near the corner of Marsh and Chorro Streets in the City and County of
San Luis Obispo, State of California, the legal description of which is
attached as Exhibit "A" hereto and made a part hereof; and
B. City proposes to erect a parking structure thereon; and
C. City and Riley's have agreed that if City builds said parking
structure City shall construct a 15,000 square foot retail space to be used by
Riley's for commercial retail purposes.
NOW, AFORE, the parties hereto agree as follows:
ARTICLE I
Term
1. Landlord leases to Tenant and Tenant leases from Landlord that
portion of the Property which is designed and intended for use as "commercial
retail" on Exhibit "B" attached hereto and made a part hereof.. Said Exhibit
"B" shall describe the Property and the approximately 15,000 square foot
portion of garage structure containing commercial retail space to be erected
thereon by Landlord in accordance with this Agreement. The commercial retail
area outlined on Exhibit "B" above, shall be hereinafter be referred to as the
"premises ".
EXHIBIT 2
Building Agreement and Lease Page 1
nl mi n, )n 1 Opp
• 0
2. TO HAVE AND TO HOLD said premises with all the rights, privileges,
appurtenances thereunto belonging and attaching, unto the Tenant, its
successors and assigns for the term of approximately nineteen (19) years
commencing as set forth below and terminating on January 31, 2008. Said
initial term shall be foilowed..by two ten (10) year option teYms as set forth
herein:
(a) Sixty (60) days following the date wherein the erection and
construction of said premises shall be completed in accordance with
plans and specifications referred to in Paragraph 1 of Article III,
below, free and unobstructed and all scaffolding and the building
materials and obstructions of any kind removed so that the said area
may be operated by Tenant, all without hindrances or disturbances
insofar as building operations are concerned, and so constructed
that the Tenant shall be entitled to operate in the premises, all as
established as provided in Paragraph 3 of this Article I, or
(b) Upon the date Tenant opens the premises to the public for business,
whichever first occurs.
3. For purposes of this Article I, the date of satisfaction of the
conditions set forth in Paragraph 2(a) of this Article I shall-be determined .
by mutual agreement of Landlord and Tenant with a written certificate to such
date and which said date so determined.by them shall be final between the
parties hereto.. The certificate shall not be issued before the issuance of a
Certificate of Occupancy or equivalent (which is not dependent-upon conplet on
of installation of Tenant's fixtures, furnishing and equipment), by the
governmental authority having jurisdiction, if one is so required fo"r the
parking structure or premises. Tenant shall be allowed access to the premises
to construct tenant improvements. The parties recognize that coordination of
construction of both the parking structure and the premises will require
cooperation and mutual understanding of each party's business and operating.
needs. Tenant agrees that Landlord may withhold agreement as set forth in
Paragraph 2(a) of this Article I until such time that the progress and
Building Agreement and Lease Page 2
completion of the parking structure, related street improvements (curb cuts,
etc.) and other considerations are deemed satisfactory.
4. Any holding over after the expiration of the term herein shall be
construed to be a tenancy from month to month at the rent last applicable
herein. The preceding sentence shall not imply any consent on the part of
Landlord for Tenant to hold over.
ARTICLE II
Parking
Tenant shall satisfy all relevant parking requirements established by
local regulation at all times and shall keep landlord informed of any changes
of uses or subtenants which may affect the parking requirements. Attached
hereto as Exhibit "C" is a schedule or listing of the parking requirements in
effect as of the date of this Lease.
ARTICLE III
Construction of Parking Structure and Commercial Space
1. Landlord will construct at its sole cost and expense the parking
structure including the retail space described above pursuant to plans and
specifications to be prepared by Landlord's architect and the relevant
portions thereof to be attached hereto as Exhibit "D" as approved pursuant to
this section_ The exact location and placement of the premises shall be
specified on said plans. Exhibit "D" shall be approved by all the parties as
to their respective needs and requirements, and when so approved, shall be
identified by the parties by their signatures and attached hereto. Each party
hereto agrees not to unreasonably withhold or delay its approval. Tenant's
approval shall not imply approval of structural or engineering design or the
quality or fitness of any material or device used in any portion of the
Property or premises. If Tenant unreasonably withholds approval, Tenant shall
reimburse Landlord for one -half of the costs of preparation of the plans and
specifications attributable to design of the commercial retail shell.
Landlord shall furnish to Tenant working drawings and specifications for the
Building Agreement and Lease Page 3 .
0
commercial retail shell no later than the date set for bid opening for
construction of the parking structure.
2. Landlord shall at its sole cost and expense, perform all work
required to be performed pursuant to Exhibit "D ( "Landlord's work" herein)
which shall include without limitation construction of the commercial retail
shell in conformance with industry custom and practice.
3. Parking Structure Project. If Landlord (1) is unable to obtain
financing for parking structure project construction, or (2) receives
projected construction costs in excess of the financing capability of
Landlord, or (3) experiences construction delays in the ccatmncment of
physical construction, however caused, which, as determined by Landlord, will
be in excess of 24 months and will result in an inability to complete said
project with available financing, then Landlord may terminate this agreement
in writing, giving its reasons therefor; and in that event, Tenant may
exercise its right to repurchase the premises as set forth in Paragraph 14 of
the Purchase and Sale Agreement dated , 1989 between Landlord and
L&H Investment Co.
4. When completed, the premises shall be free from liens of materialmen,
contractors, subcontractors, laborers and other liens, except any claims,
obligations or liens arising out of the construction and financing of the
parking structure.
5. No substantial deviations or changes shall be made or permitted in
connection with the approved and identified plans and specifications for the
premises without the prior written consent of both Landlord and Tenant, which
consent parties agree not to unreasonably withhold.
6. Landlord agrees that the premises shall be designed, erected,
constructed and completed, operated and maintained each in accordance with all
applicable laws, rules and regulations of the United States of America, the
State of California, and City of San Luis Obispo.
Building Agreement and Lease Page 4
r.,....- ....ti.,,..
In i n o o
0
7. Notice of Completion of the construction of the premises shall be
given by Landlord to Tenant in writing promptly upon completion of
construction.
8. Tenant or its representative may enter upon the premises during the
construction at Tenant's sole risk to inspect the progress thereof and to
determine if the work is being performed in accordance with this Article III.
Tenant shall inform Landlord within seventy -two (72) hours of the discovery of
any objectionable work, provided, Tenant shall not be precluded from later
reporting objectionable work not discovered during construction.
9. After written notice from Tenant, Landlord shall repair or replace
all defective wiring, pipes, conduits, water, sewer and utility lines which
serve the premises, except defects that are the obligation of the utility
companies, or are necessitated due to Tenant's or Tenant's employees or
customers fault or misuse, or which were not originally installed by Landlord
or Landlord's contractors or subcontractors.
ARTICLE IV
Tenant's Furnishings
Fixtures and Equipment
1. Tenant shall, at its sole cost and expense, install in the premises
any and all furnishings, fixtures and equipment which the Tenant may deem
advisable for its use in the operation of commercial retail space.
ARTICLE V
Rent
1. Rental Rate shall be as follows:
Period of Term
A. Beginning to January 31, 1992
Building Agreement and Lease.
Rate
$7,500 a month or 4.5% of
annual gross sales
Page 5
• •
Period of Tenn Rate
B. February 1, 1992 to January 31, $8,200 a month or 4.75% of
1997 annual gross sales
C. February 1, 1997 to January 31, $8,900 a month or 4.85% of
2002 annual gross sales
D. February 1, 2002 to January 31, $9,600 a month or 4.90% of
2008 annual gross sales
First ten (10) year option
E. February 1, 2008 to June 30, $10,300 a month or 4.95% of
2010 annual gross sales
F. July 1, 2010 to January 31, $10,500 a month or 5.00% of
2013 annual gross sales
G. February 1, 2013 to January 31, $11,000 a month or 5.00% of
2018 annual gross sales
The rate shown in the above schedule shall be the greater of the flat
monthly rent ("Minimum Rent ") or the percentage of annual gross sales. Annual
gross sales as defined below.
2. The rent rate for the second ten (10) year option period shall be at
market rate as mutually agreed upon by the parties.
3. (A) The term "gross sales" as used in this Lease shall include the
entire gross receipts of every kind and nature from sales and services made
in, upon, or from the premises, whether upon credit or for cash, in every
department operating in the premises, whether operated by Tenant or by a
subtenant or subtenants, or by a concessionare or concessionaires. Gross
sales shall not include, or if included there shall be deducted (to the extent
Building Agreement and lease Page 6
• •
included) the following:
(1) The selling price of all merchandise returned by custcaners
and accepted for full credit, or the amount of discounts, refunds,
and allowances made on such merchandise.
(2) Merchandise returned to sources or transferred to another,
store or warehouse owned by or affiliated with Tenant.
(3) Sums and credits received in the settlement of claims for
loss or damage to merchandise.
(4) The price allowed on all merchandise traded in by
customers for credit or the amount of credit for discounts and
allowances made instead of acceptance of merchandise.
(5) Any sums paid to unrelated third parties for the use or
rental of pay telephones, stamp machines, music machines, vending
machines, amusement machines, or. public toilet locks.
(6) Gift certificates, or similar vouchers, until such time as
they shall have been converted into a sale by redemption.
(7) Sales and use taxes, so- called luxury taxes, consumers'
excise taxes, gross receipts taxes, and other similar taxes now or
in the future imposed on the sale of merchandise or services, but
only if such taxes are added to the selling price, separately
stated, collected separately from the selling price of merchandise
or services, and collected from the customers.
(8) Sales of fixtures, trade fixtures, or personal property
that are not merchandise as allowed in this lease..
Sales upon credit shall be deemed cash sales and shall be
included in the gross sales for the period which the merchandise is delivered
to the customer, whether or not title to the merchandise passes with delivery.
Sales from catalog or similar orders shall be deemed to have occurred on the
premises if goods or products involved are normally sold on the premises.
Annual gross sales shall be gross sales for one (1) fiscal year, which ends on
Tenant's year -end of January 31 ( "fiscal year ").
(B) Within thirty (30) days after the end of each fiscal quarter
following the commencement of rents, Tenant shall furnish to Landlord a
Building Agreement and Lease Page 7
• •
statement in writing, certified by Tenant to be correct, showing the total
gross sales made in, upon, or from the premises during the preceding fiscal
quarter. Within thirty (30) days after the end of each fiscal year of the
tern hereof, Tenant shall furnish to Landlord a statement in writing certified
to be correct, showing the total gross sales by quarter made in, upon, or from
the premises during the preceding fiscal year. If annual percentage rent
exceeds the Minimum Rent for the fiscal year, Tenant shall pay the excess due
at the same time the annual statement is furnished to Landlord.
(C) The Tenant shall keep full, complete and proper books, records
and accounts of its daily gross sales, both for cash and on credit, of each
separate department (or portion thereof) operated at any time in the premises,
and shall marshall gross sales figures of subtenants and concessionaires to be
provided to Landlord. The Landlord and its agents and employees shall have
the right at any and all times, during the regular business hours, to examine
and inspect all of the books and records of Tenant, including any sales tax
reports retaining to the business of the Tenant conducted in, upon or fron the
premises, for the purpose of investigating and verifying the accuracy of any
statement of gross sales. The Landlord may once in any fiscal year cause an
audit of Tenant's gross sales on the premises to be made by an accountant of
Landlord's selection and if the audit shows a deficiency in the statement of
gross sales previously made to Landlord, using Tenant's method of accounting
(which shall conform to generally accepted standards), the deficiency shall be
immediately due and payable. Tenant shall keep all said records for three (3)
years. If said audit shall disclose an underpayment to Landlord of greater
than two percent (2 %) of annual rent received by Landlord for the audit
period, Tenant shall immediately pay to Landlord the cost of such audit;
otherwise, the cost of such audit shall be paid by Landlord. If such audit
shall disclose any intentionally fraudulent inaccuracies committed by Tenant,
this Lease may thereupon be cancelled and terminated, at the option of
Landlord.
(D) Tenant intends to install its Men's Department and Children's Wear
on the commencement of this lease, and may substitute other departments from
Building Agreement and Lease Page 8
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time to time, provided that Tenant notifies Landlord 30 days prior to any
substitution of a department.
4. The rent rates established by the Article shall apply only so long as
Tenant occupies greater than 50% of the premises (for'the purposes of this
provision, premises shall include the gross square footage less any storage,
utility or other non - retail space used or controlled by Tenant). Upon such
tine that Tenant no longer occupies greater than 50% of the premises the rents
shall be adjusted to current market rate as determined by Landlord.
5. Failure to pay rent, and any failure to cure as provided by law,
shall constitute a material breach of this Agreement by Tenant. Upon said
breach, Landlord nay elect to exercise any rights it nay have under this
Agreement and lease or law.
6. Tenant shall pay Landlord, during each lease year or partial of the
term of this Lease, all real estate taxes and assessments levied and assessed
for any such year upon the leased premises. For any partial lease year of the
term hereof such amount shall be prorated on a time basis. Payment shall be
made by Tenant within thirty (30) days after receipt of a written statement
from Landlord setting forth the amount of such tax showing in reasonable
detail the manner in which it has been ccmputed..
a
46 J
Water, Electric Light, etc.
Tenant shall bear, at its sole cost and expense, any and all charges for
fuel, heat, water, sewer, trash removal, gas, telephone, electric light and
power used in or on the premises. Landlord shall not be liable for any
interruptions in utility services unless such.interruption is caused by the
negligence of Landlord or its representatives.
Building Agreement and Lease Page 9
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ARTICLE VII
Maintenance and Repairs
1. Except as otherwise herein provided, Tenant shall, at its cost and
expense, maintain and repair the premises and every part hereof, other than
the foundation, the roof, floor, outer walls and all interior weight bearing
walls of the demised premises (as originally installed by Landlord pursuant to
its obligations set forth in Exhibit "D" to this Lease) but including without
limitation, the exterior and interior portion of all doors, door checks,
windows, plate glass, all plumbing and sewage facilities within the premises,
fixtures, heating, air conditioning, and electrical wiring and equipment,
interior walls, floors and ceilings, and including replacement of parts and
equipment, if necessary. Landlord shall, at its cost and expense, maintain
and repair the foundation, the roof,.the floor, the exterior walls and all
interior weight bearing walls, and all other items to be repaired and
maintained that are not Tenant's obligations hereunder. Tenant is responsible
for maintenance and repair of all wiring, pipes, conduits, water, sewer and
utility lines which were installed by Landlord but are within the premises.
2. If Tenant refuses or neglects to commence to complete repairs
promptly and adequately, Landlord may, after thirty (30) days prior written
notice to Tenant, at its option, but without obligation to do so, make such
repairs and Tenant shall pay Landlord the reasonable cost thereof. If any
repairs required to be made by Landlord hereunder are not made or commenced
within thirty (30) days after written notice delivered to Landlord by Tenant,
Tenant may at its option, but shall not be obligated to, make such repairs and
Landlord shall pay Tenant the reasonable costs thereof.
3. Tenant shall, at its cost and expense, keep the premises in a clean
and sanitary condition in accordance with the laws of the State of California
and in accordance with all directions, rules and regulations of the health
officer, building inspector or other proper officials of the governmental
agencies having jurisdiction.
Building Agreement and Lease Page 10
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4. Landlord may enter upon the premises at any reasonable time during
business hours for the purpose of inspecting the same, or of making repairs to
the premises, or of making repairs, alterations or additions to the adjacent
premises, or of showing the premises to prospective purchasers, or lenders;
provided, however, no such entry shall interfere with the conduct of Tenant's
business in the premises.
5. In addition to the foregoing, Landlord shall maintain, keep, repair,
paint, sweep and light the parking structure in a first class condition during
the term of this lease.
ARTICLE VIII
Alterations and Improvements
Tenant may, during the term of this Lease, at its cost, and consistent
with all applicable laws, codes, and regulations and ordinances make such
alterations, improvements or changes in the premises as it shall deem
necessary or beneficial, provided, however, Tenant shall submit to Landlord
plans and specifications relating to any exterior or structural change prior
to commencing same and obtain the approval of Landlord for such exterior or
structural changes (which approval will not be unreasonably withheld), and
Tenant shall fully and completely indemnify Landlord against any mechanics or
other liens or claims in connection with the making of any such alterations,
improvements or change.
ARTICLE IX
Trade Nam
Any trade name at any time used or placed on the premises by Tenant in
connection with the demised premises or the business of the Tenant conducted
therein, with the exception of a name similar in import to that of the name of
the Property itself shall be the exclusive property of the Tenant, and such
name will not in any case be deemed to be the name of the building of the
Landlord (unless it is a name similar in import to the name of the Property
itself), and the Landlord shall not have the right to use such name.
Building Agreement and Lease Page 11
r+� a )n 1000
ARTICLE x
Mortgages
Tenant accepts this Lease subject and subordinate to any mortgage, deed
of trust or other lien presently existing upon or to be placed upon the
premises of the property as a whole, and to any renewals and extensions
thereof and any such mortgage may at any time subordinate such mortgage, deed
of trust or other lien to this Lease. Landlord may subordinate this Lease to
any mortgage, deed of trust or other financing vehicle or lien hereinafter
placed upon the premises or the Property as a whole provided that any such
subordination shall be upon the express condition that this Lease shall be
recognized by the mortgagee, trustee, beneficiary and /or lienholder, and that
the rights hereunder of Tenant shall remain in full force and effect during
the term of this Lease so long as Tenant shall continue to pay all sums
required to be paid pursuant to the provisions of this Lease. Tenant shall
upon written demand execute such further instruments subordinating this lease
as Landlord may reasonably request not inconsistent with the foregoing.
ARTICLE XI
Use of Premises
1. Tenant may use the premises during the term hereby created for any
legitimate purpose and consistent with all local laws, including zoning
regulations, provided that the premises is used for retail sales and uses
incidental to retail sales or the Tenant has first secured Landlord's approval
for any use other than.retail sales. Tenant shall not, without Landlord's
prior consent, keep anything within the premises for any purpose which
invalidates any insurance policy carried on the premises or other part of the
Property. All property kept, stored or maintained within the premises by
Tenant shall be at Tenant's sole risk.
2. In no event shall the premises be used for religious or political
purposes. ,
Building Agreement and Lease Page 12
n a 'n 1000
ARTICLE XII
Insurance and Damage Clauses
1. Tenant shall, upon taking possession of the premises. from Landlord,
carry, maintain, and pay the premium for the following types of insurance in
the amounts specified:
(a) FIRE INSURANCE: Fire insurance with extended coverage endorsement
in an amount satisfactory to Landlord with loss payable therein to
Landlord and Tenant and to any authorized encumbrancer. of Landlord,
as their respective interests may appear. In the alternative,
Tenant may choose to pay Landlord the cost to Landlord to so insure
the premises as part of the larger parking structure.
(b) PUBLIC LIABILITY AND PROPERTY DAMAGE: Combined single limit of
liability insurance of not less than Ten Million Dollars
($10,000,000.00) aggregate and One Million Dollars ($1,000,000.00)
per occurrence insuring against any and all liability of the insured
with respect to said premises or arising out of the maintenance, use
or occupancy thereof. The amount of such insurance may be increased
by landlord at the end of the initial term and at the end of the
first option period upon a bonafide determination by an independent
insurance expert of the desirability and need for such increase.
(c) PLATE GLASS: Tenant shall be responsible for the maintenance of any
plate glass on the premises but may either insure such risk or
self- insure therefor.
2. Landlord shall.ensure that the parking structure is included in its
comprehensive self- insurance program, including applicable excess insurance
and property (premises) policies, and shall treat said structure in the same
Building Agreement and Lease Page 13
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manner and practice as all other similar public property. Landlord agrees to
implement, after periodic review upon the request of either party, such
insurance protection and /or assurances as are reasonably required to cover
landlord's obligations under this lease. If the parties are unable to agree,
an independent insurance expert shall be consulted and his recommendations
shall be accepted by the parties.
3. All policies of ratable insurance to be provided by Tenant and
Landlord hereunder shall be issued by responsible insurance companies with
Best rating of B+ that are qualified to do business in the State of California
and shall be issued in the names of Landlord and Tenant, which policies shall
be for their respective mutual and joint benefit and protection, and-executed
copies of such policies or insurance or certificates thereof shall be
delivered to Landlord and Tenant within thirty (30) days after delivery of
possession of the premises to Tenant. All insurance required to be carried by
this Agreement shall be endorsed as primary to Landlord's, or any other
coverage. New certificates shall be delivered promptly whenever policies are
renewed or new policies are written. All public liability and property damage
policies shall contain a provision that Landlord, although named as an
insured, shall nevertheless be entitled to recovery under said policies for
any loss occasioned by it, its servants, agents and employees by reason of the
negligence of Tenant. All public liability and property damage policies shall
contain a provision that Tenant, although named as an insured, shall
nevertheless be entitled to recovery under said policies for any loss
occasioned by it, its servants, agents and employees by reason of the
negligence of Landlord. As often as any such policy shall expire or terminate,
renewal or additional policies shall be procured and maintained by Tenant or
Landlord in like manner and to like extent. All policies or insurance
delivered to Tenant or Landlord must contain a provision that the company
writing said policy will give to the other party thirty (30) days notice in
writing in advance of any cancellation or lapse of the effective date of any
reduction in the amount of insurance. Landlord and Tenant hereby waive any
rights but only and including to the.limits of basic coverage (fire and
extended coverage) and special form coverage insurance carried hereunder, each
have against the other for any loss or damage occasioned to Landlord or
Building Agreement and Lease Page 14
n---- i...._,_ -n I nnn
Tenant, as the case may be, their respective property, the premises, or its
contents or to other portions of the Property arising fran any risk generally
covered by fire and extended coverage insurance policies then in use.in, the
State where the Property is situated; and the parties each, on behalf of their
respective insurance campanies insuring the property of either Landlord or
Tenant against any such loss, waive any right of subrogation that such
companies may have against Landlord or Tenant as the case may be. Landlord
and Tenant covenant with each other that to the extent such insurance
endorsement is available, they will each obtain for the benefit of the other a
waiver of any right of .subrogation fran their respective insurance campanies.
4. Tenant's or Landlord's obligations to carry the insurance provided
for in this Article XII may be brought within the coverage of a so- called
blanket policy or policies of insurance carried and maintained by Landlord or
Tenant; provided, however, that Landlord shall be named as an additional
insured thereunder as Landlord's interest may appear and that the coverage
afforded Landlord or Tenant shall not be reduced or diminished by reason of
the use of such blanket policy or insurance, and provided further that the
requirements set forth herein are otherwise satisfied.
5. Anything in this Lease to the contrary notwithstanding, if the
premises shall be damaged or destroyed by fire, casualty, or other causes,
they shall be promptly restored-by Landlord, and until restored, there shall
be an abatement or a proportionate reduction of the rent during the time
Tenant's business is interrupted; and, if the premises shall be condemned by
lawful authority as unsafe or unfit for use, or if they shall become partially
or wholly destroyed by fire or other causes, so as to render them untenantable
for a period in excess of two hundred fifty (250) days, and Landlord shall
give written notice of such fact to Tenant and Tenant shall have sixty (60)
days after receipt thereof to elect whether or not to enter into a new lease
thereon camnencing upon the campletion of such restoration for a term equal to
the balance of the term remaining under this Lease at the time the premises
become untenantable. In any such event, all conditions of such new lease,
except for the new extended term thereof, shall be the same as are contained
Building Agreement and Lease Page 15
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in this lease. Any "rental paid in advance and at the time of any such
termination or abatement unearned shall be refunded.
ARTICLE XIII
Eminent Domain
1. If the entire commercial retail portion of the premises shall be
appropriated or taken under the power of eminent domain, or under any similar
power, by any public or quasi - public authority, this Lease shall abate as of
the date of such appropriation or taking, and the unearned portion of the rent
theretofore paid shall forthwith be returned to Tenant..
2. If a portion of the premises shall be appropriated or taken under
power of eminent domain, or under any similar power, by any public or
quasi - public authority, the unearned portion of the rent theretofore paid with
respect to such taken portion shall forthwith be returned to Tenant, and if,
in Tenant's and Landlord's reasonable judgment, the remaining portion of the
premises can be used by Tenant in the operation of its business, then Tenant
shall so use said remaining portion and there shall be an abatement of minimum
rent based upon the area of the demised premises so appropriated or taken, and
all cost and expense necessary to repair and /or restore the premises shall be
paid by Landlord. If, on the other hand, in Tenant's reasonable judgment, the
remaining portion of the premises cannot be used by Tenant in the operation of
its business, then this Lease shall be terminated as of the date of such
appropriation or taking, and the unearned portion of the rent theretofore paid
shall forthwith be returned to Tenant.
3. If the premises or any portion thereof be taken or appropriated for
public use under the right of eminent domain, Landlord and Tenant shall be
entitled to share the proceeds paid by the condemning entity as follows:
The Landlord shall receive all amounts awarded for repair or recon-
struction of the building, the taking of the land, and the taking or
damage to the buildings or other improvements owned by Landlord,
after deducting therefrom the following amounts which shall be
Building Agreement and Lease Page 16
CJ
allocated to the Tenant: (1) A sum attributable to Tenant's
improvements or alterations made to the premises which Tenant elects
not to remove; (2) A sum for removal and relocation of improvements
and alterations that Tenant elects to remove; (3) A sum
attributable to any excess of the market value of the leasehold,
exclusive of Tenant's improvements or alterations compensated for,
for the remainder of the term, over the present value at the date of
taking of the minimum monthly rent payable for the remainder of the
term and extended term; (4) a sum paid to Tenant from the condemnor
for loss of goodwill; and (5) such other sums allowed to Tenant by
law.
4. A voluntary sale to any public body or agency having the power of
eminent domain, either under threat of condemnation or while proceedings are
pending, shall be deemed to be a taking under the power of eminent domain for
the purposes of this Lease.
ARTICLE XIV
Default
1. A default shall be deemed to occur:
(a) If Tenant shall fail to make a payment required under Article V for
ten (10) days after written notice specifying the default, or
(b) If Tenant shall fail to make any other payment required hereunder
for thirty (30) days after written notice specifying the default, or
(c) If Tenant shall fail to perform any other obligation under this
Lease for thirty (30) days after written notice specifying the
default (or within such period Tenant has not commenced diligently
to correct such default so specified or has not hereunder diligently
pursued such correction to completion), or
Building Agreement and Lease Page 17
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(d) If Tenant shall abandon or surrender or attempt to abandon or
surrender the demised premises, or
(e) If Tenant's leasehold interest is taken on execution or other
process of law and said execution is not satisfied, vacated or
stayed within fifteen (15) days thereafter, or
(f) If Tenant shall be declared bankrupt according to laws, then in any
of such cases, this Lease and the terms hereof shall, at the option
of Landlord, upon the date specified in a notice by certified or
registered mail, which date shall be not less than ten (10) days
after the date of mailing of such notice by Landlord to Tenant, be
annulled and Landlord shall have, in addition to any other right to
thereupon re -enter and taken possession of the said premises in
accordance with applicable law..
2. Section 1251.1, 1951.3 and 1951.4 of the California Civil Code shall
apply to this Lease.
ARTICLE XV
Surrender of Premises Upon Termination of Lease
Tenant shall, upon termination of this Lease by lapse of time or
otherwise, surrender and deliver the premises in broom -clean condition,
subject to the effects of ordinary wear, tear and depreciation, arising from
use and /or lapse of time and to damage by fire or other casualty and damage by
the elements. Upon the termination of this Lease by lapse of time, Tenant
shall have no further interest in the leased premises.. Tenant shall repair
any damage caused by removal by Tenant of Tenant's fixtures.
ARTICLE XVI,
Quiet Enjoyment and Marketable Title
1. Landlord represents and warrants that:
Building Agreement and Lease Page 18
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(a) It is or will be prior to ccomencement of construction, the fee
title holder and owner of the land described in Exhibit "A ", and
will submit to Tenant a policy of title insurance certifying such
fact,
(b) It has good and lawful right and authority to make this Lease, and
(c) That as of the date hereof, there are no leases, agreements,
restrictive covenants, zoning or other ordinances or regulations
that will prevent or restrict Tenant from conducting on the demised
premises the business permitted by this Lease.
2. Landlord covenants that Tenant, on paying the rents reserved herein
and performing the covenants and agreements hereof, shall peaceably and
quietly have, hold and enjoy the demised premises and all rights, easements,
appurtenances and privileges thereunto belonging or in anywise appertaining,
during the full teen of this Lease, and any extension or renewals, without
hindrance from Landlord.
ARTICLE XVII
Rent Payments and Notice
All rent payments, notices, requests and other communications hereunder
shall be in writing and shall be deemed to be duly given if delivered, or
deposited in the United States mail, first -class postage, prepaid, certified,
return receipt requested, to Landlord as follows:
Director of Finance (rent payments) City Clerk (all other)
City of San Luis Obispo City of San Luis Obispo
P. O. Box 8100 P. 0. Box 8100
San Luis Obispo, CA 93403 -8100 San Luis Obispo, CA 93403 -8100
and to Tenant as follows: Charles Ford Company, Inc.
407 Main Street
Watsonville, CA 95076
7
Building Agreerient and Lease Page 19
0
Copy to: Bruce A. Richardson, Esq.
Wyckoff, Richardson, Sanson,
Allen & Locke - Paddon
P.O. Box 960
Watsonville, CA 95077 -0960
Each party may, from time to time, designate a different address by
notice given in conformity with this paragraph. The date of receipt as
indicated on the United States postal return receipt shall be the commencement
date for calculating any time periods associated with the giving of notice
hereunder.
Taxes on Personal Property
Tenant shall be liable for all taxes levied against the personal
property, trade fixtures and other improvements placed by Tenant in the
premises. Tenant shall also be responsible for any possessory interest tax
that may be assessed. If any such taxes are levied against Landlord's
property and if Landlord elects to pay the same and if the assessed value of
Landlord's property is increased by inclusion of personal property and trade
fixtures placed by Tenant in the premises and Landlord elects to pay the taxes
based on such increase, Tenant shall pay to Landlord upon demand, the part of
such taxes for which Tenant is primarily liable hereunder.
ARTICLE XIX
Indemnity
1. Tenant shall indemnify, defend, and hold harmless Landlord from and
against all claims, cost expenses and liabilities incurred in connection with
any claim arising by reason.of use, occupancy and enjoyment of the premises by
Tenant or any person thereon or holding under Tenant, but Tenant shall not be
liable for damage or injury occasioned by reasons of active negligence or
canission of Landlord, its agents, servants or employees.
Building Agreement and Lease Page 20
2. Landlord shall indemnify and hold harmless Tenant from and against
all claims and all costs, expenses, and liabilities incurred in connection
with all claims, including any action or proceeding brought thereon, arising
from or as a result of:
(a) Any accident, injury, loss or damage whatsoever caused to any person
or to the property of any person as shall occur in or about the
premises or the Property prior to the commencement of the terms of
this Lease except as may be caused by the active negligence or
omission of the Tenant, or
(b) Any act of omission whatsoever or negligence of Landlord or the
agents, contractors, servants or employees of Landlord, in any way
related to or affecting the premises or the Property, or otherwise,
but Landlord shall not be liable for damage or injury occasioned by
reason of the active omission or negligence of Tenant, its agents,
servants, subtenants or employees.
ARTICLE XX
Options to Renew
Tenant shall be entitled to two (2) separate options to extend the term
hereof for periods of ten (10) years each upon the same terms and conditions
as herein set forth, except as to term and renewal. Unless Tenant shall
notify Landlord not less than six (6) months or more than one (1) year prior
to the expiration of the original term, or extended term hereof, of its intent
not to exercise an option hereunder, it shall be deemed to have exercised its
option to extend this Lease for the next ensuing term. Any notice to renew
given hereunder shall not be effective if given when Tenant is in default for
non- payment of monetary obligations hereunder.
ARTICLE XXI
Force Majeure
Any prevention, delay or stoppage due to strikes, lockouts, labor
disputes, acts of God, inability to obtain labor or materials, or reasonable
Building Agreement and Lease Page 21
December 20, 1988
substitute therefor, governmental controls, judicial orders, enemy or hostile
governmental actions, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of the party obligated to perform, shall
excuse the performance by such party for a period equal to any such
prevention, delay or stoppage.
ARTICLE XXII
Miscellaneous
1. The captions of the articles of this Lease are for convenience and
reference only and shall not in any way limit or be deemed to construe or
interpret the terms and provisions thereof.
2. Time is of the essence of this Lease and of all provisions hereof.
3. In this Lease, the neuter gender includes the masculine and feminine,
the singular number includes the plural, and the word "person" or "party"
includes corporations, partnerships, firms or associations whenever the
context so requires.
4. This Lease may be modified only by a written modification signed by
both parties.
5. This Lease contains the entire agreement of the parties with respect
to the matters covered by this Lease, and no other agreement, statement or
promise may by any party, or to any employee, officer or agent of any party,
which is not contained in this Lease shall be binding or valid.
6. All the covenants, agreements and conditions in this Lease shall
extend to, and be binding upon the legal representatives, successors and
assigns of the respective parties hereto, the same as if they were in every
case named and expressed, and the same shall be construed as covenants running
with the land, and whenever in this Lease reference is made to either of the
parties hereto, it shall be held to include and apply to the legal representa-
tives, successors-and assigns of such party, the same as if in each and every
Building Agreement and Lease Page 22
case to expressed, provided however, tIds Lease shall not be assigned unless
Tenant remains liable for performance of all obligations of Tenant to be
performed pursuant to this Lease.
7. If any tern, covenant, condition or provision of this Lease is held
by a court of competent jurisdiction to be - invalid, void or unenforceable, the
remainder of the provisions "shall remain in.full force and effect and shall.in
no way be affected, impaired or Invalidated.
8. Both Landlord and Tenant warrant that neither had any dealings with
any broker or agent (except for attorneys) in connection with the negotiation
or execution of the lease.
9. This Lease will be interpreted in a fair and equitable manner, in
accordance with its terms, neither for nor against either party hereto.
10. All reference to the "date of this Lease" or the "date hereof" or
"the date upon which this Lease is fully executed" shall be deemed to be that
date on which all parties hereto have executed this lease.
11. A memorandum of the terms and conditions of this Lease in.the form
of Exhibit E hereto shall be recorded by either party at any tune.
12. Exhibits
A
Property Description
B
Space Diagram
C
Parking Requirements
D
Plans & Specifications
E
Memorandum of Lease
Building Agreement and Lease Page 23
• •
IN WITNESS WHEREOF, the Landlord and Tenant respectively have sealed and
executed these presents.
CHARLES FORD COMPANY, INC.
a California corporation
By:
CITY OF SAN LUIS OBISPO
L-M
ATTEST:
City Clerk
Mayor
Building Agreement and Lease Page 24
December 20, 1988
RECORD:, _ ._;, ,_c- -?
CIIN' Of
g A!= San LUIS OBISPO
WHEN RECORDEC MA!L 70
COMMUNITY DEVELOPMENT DEPARTMENT
CITY OF SAN i_iJ[S OB!SPO
P.O. 30. 3100
1103 -8100
SPACE ABOVE THIS LINE FOP RECORDER'S USE
ACKNOWLEDGEMENT OF NONCONFORMING PARKING
This agreement, made and entered into this day of 1989 by
Ross Humphrey, Robert Humphrey,
and the CITY OF SAN LUIS OBISPO,
(hereinafter referred to as "City ")
WITNESSETH:
WHEREAS, Riley's Department Store occupies 37,000 square feet of
building space located at 853 Higuera Street, 1112 Chorro Street and 1144
Chorro Street in San Luis Obispo as shown on Exhibit "A "; and
WHEREAS, this space is used for retail sales of general merchandise;
and
WHEREAS, a total of 74 parking spaces are required by current Zoning
Regulations for this use; and
WHEREAS, a total of 40 parking spaces are provided for Riley's use
at 821 Marsh Street; and
WHEREAS, this would make 17,000 square feet of the existing floor
area legal, nonconforming; and
WHEREAS, the City intends to construct a parking structure at 821
Marsh Street which will replace the existing 40 parking spaces and provide
additional parking spaces;
NOW, THEREFORE, it is hereby mutually agreed by and between the
parties hereto as follows:
1. No additional parking, either off -site or on -site, is required
for the existing store at 853 Higuera Street, 1112 Chorro Street, and 1144
Chorro Street as shown on Exhibit "A ".
2. Future improvements to the store which increase usable retail
space, at 853 Higuera Street, 1112 Chorro Street or 1144 Chorro Street,
may trigger an increase in parking demand which must be met according to
the Zoning Regulations in effect at the time of expansion, with respect to
such future increases only.
3. This agreement will not be transferable to any other site or any
other party off the site.
IN WITNESS WHEREOF, the parties hereto have executed this rgreement
on the day and year first written above.
Owner Date Owner Date
Owner Date Owner Date
Owner Date Owner Date
Exhibit 3
RESOLUTION NO. 655' _ (1938 _ Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
AUTHORIZING THE COMMUNITY DEVELOPMENT DEPARTMENT TO
EXECUTE A CONTRACT FOR A ASSOCIATE PLANNER
POSITION
WHEREAS, in 1987 the City Council authorized the Community Development Department to
hire a contract planner for a one year period (ending December 1, 1988); and
WHEREAS, continued work on updating the General Plan and on current planning projects
requires continued staff support in the Community Development Department.
NOW THEREFORE BE IT RESOLVED as follows:
SECTION 1. The City Administrative Officer is hereby authorized to execute an
agreement to retain a Contract Associate Planner for the period extending to June 30,
1990.
SECTION 2. The City Council supports the funding of this position for Fiscal Year
1989 -1990 at an estimated cost of $40,000 (salary and benefits).
On motion of Councilperson �a , seconded by Councilperson Pinard
and on the following roll call vote:
AYES: Councilmembers Pinard, Rappa, Reiss and Ilayor Dunin
NOES: None
ABSENT: Councilman Settle
the foregoing Resolution was passed and adopted this 20th day of December, 1988.
AITS ( l
V
Cit Clerk Pam oges
APPROVED
ity A ministrative Officer
Jo nn
Crty A rney
Roger icquet
yor Ron Dunin
FinakcD irec tor
William Statler
�LJ -
Community Development Director
Michael Multari
R G Ss'y
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RESOLUTION N0.6553-(1988 SERIES)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
APPROVING CONTRACT OF EMPLOYMENT BETWEEN THE CITY OF
SAN LUIS OBISPO AND DODIE WILLIAMS, BIA ADMINISTRATOR,
FOR THE PERIOD JANUARY 1, 1989 THROUGH DECEMBER 31, 1989
BE IT- RESOLVED by the Council of the City of San Luis Obispo as
follows:
SECTION 1. That the contract of employment between the City of
San Luis Obispo and Dodie Williams as BIA Administrator for the period
January 1, 1989 through December 31, 1989, attached hereto as Exhibit
"A" and by this reference made a-part hereof, has been reviewed and is
approved and the Mayor is authorized to execute same.
On motion of Councilwoman Rappa seconded by Councilwoman Pinard,
and on the following roll call vote:
AYES: Councilmembers Pinard, Rappa, Reiss and Mayor Dunin
NOES: None
ABSENT: Councilman Settle
the foregoing Resolution was passed and adopted this 20th day of
December 1988.
F
YOR RON DUNIN
CLERK PAMELA
* * * * * * ** **
APPROVED:
%&� yy�. City .
nnel Direct dministrative Officer P
X�
City Uttor Finance Director
0 0
THIS FACT is entered into this 20th day of December, 1988, by and
between the CITY OF SAN IDIS OBISPO, State of California (hereinafter referred
to as "City"), and DODIE WILLIAMS, a contract employee (hereinafter referred to
as "Employee° )
WIZNFSSFS:
WHEREAS,, the City of San Luis Obispo has a need to hire an employee for a
special project for which the continued Hording or need for the project is too
uncertain to create a permanent classification; and
WHEREAS, Employee is qualified to perform such service for City; and
WHEREAS, the services to be contracted for are BIA.Aeimin;strator.
NCW, ARE, the parties do mutually agree as follows:
1. Employment. City hereby engages Employee and Employee hereby agrees to
perform for City the services hereinafter set forth for the compensation
hereinafter set forth, all pursuant to the terms and canditions herein.
2. scope ..of_Services. Pursuant to this Contract, Employee shall provide
to City the following services: for the Downtown Parking and
Business Improvement Association (BIA); specific duties and responsibilities to
be established and modified from time to time by the BIA Advisory Board.
Employee small perform said services under the direct supervision of BIA
Advisory Board.
3. D mloyment Status. Employee shall be a full -tire employee. Employee
understands and agrees that she is not, and will not, be eligible for
membership in any benefits from any City group plan for hospital, life, dental
or medical insurance. Membership in the city PERS retirement program shall be
•
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in accordance with PERS requirements with the Employee's share to be paid by
Employee. Employee shall accrue holiday and sick leave benefits consistent
with other positions in the City and as determined by the Personnel Director.
Employee shall accrue 8.00 hours of vacation per month over the term of this
Agreement which shall be taken in a manner consistent with other City
employees. Employee shall be granted up to 40 hours per year of administrative
leave in lieu of overtime compensation, in recognition of the fact that the
employee is exempt from overtime compensation consideration and that the
employee's schedule may require work beyond 40 hours in a week. The only other
paid benefits are workers' compensation insurance and unemployment insurance.
Employee shall be eligible for reimbursement for mileage at a rate of $0.24 per
mile for use of her private automobile for official business but not including
any mileage attributable to normal Ming by Employee to and from her
office. Employee will also receive a monthly permit for the Palm street
Parking structure.
Employee understands and agrees that she is not entitled to be paid a
prevailing wage, nor is entitled to be paid compensation comparable to a
classified City employee performing similar work, but that the compensation
received herein is a negotiated wage to be paid for the services to be
performed.
Employee understands and agrees that her term of employment is governed
only by this Contract; that no right of tenure is created hereby, and that she
does not hold a position in any department or office of the City.
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•
4. Warranty of Employee. Employee warrants that she is propperly certified
and licensed under the laws and regulations of the State of California to
provide the services herein agreed to.
5. Ccmmensation. City shal l. pay to Employee as compensation in full for
all services performed.by Employee pursuant to this Contract, the sum of $3,000
per month ($36,000 per year) , said compensation to be paid in accordance with
r@T*-P-.o a: -5% oi qoo7e 1 1 M
6. Term of Contract. This Contract shall commence on January 1, 1989
through December 31, 1989, unless terminated earlier as provided herein. The
City Administrative Officer may terminate the contract without the need for
action, approval or ratification by the City Council.
7. Termination of Contract for Convenience. Either party may terminate
this Contract at any time by giving to the other party fifteen (15) days'
written notice of such termination, specifying the effective date of such
termination. Employee shall be paid for all work satisfactorily completed
prior to the effective date of such termination.
Employee agrees that the notice provisions of this paragraph shall
limit the liability of the City in the event that a termination action taken by
City pursuant to paragraph 8 is subsequently found.to be improper.
8. Termination of Contract for Cause. If Employee fails to perform her
duties to the satisfaction of the City, or if employee fails to fulfill in a
timely and professional manner the obligations under this Contract, or if
Employee shall violate any of the terms of provisions of this Contract, or if
Employee has a physical or mental incapacity that precludes Employee from
-3-
LI
0
performing the duties, or if Employee -fails to exercise good behavior in either
during or outside of working hours which is of such a nature that it causes
discredit to the City or impairs her ability to perform these contract duties,
then the City shall have the right to terminate this Contract effective
immediately upon the City's giving written notice thereof to Employee.
Employee shall be paid for all work satisfactorily completed prior to the
effective date of such termination.
9. Entire Agreement and Modification. This Contract constitutes the
entire understanding of the parties hereto. This Contract supersedes all
previous contracts, agreements, negotiations or understandings, whether written
or oral, between the parties. Employee shall be entitled to no other benefits
than those specified herein, and Employee admowledges that no representations,
inducements or promises not contained in this.Contract have been made to
Employee to induce Employee to enter into this, No oranges,
amendments, or alterations hereto shall be effective unless in writing and
signed by both parties. Employee specifically acknowledges that in entering
into and executing this,Contract, Employee relies solely upon the provisions
contained in this Contract and no others.
10. Non - Assignment of Contract. This Contract is intended to secure the
individual services of the Employee and thus Employee shall not assign,
transfer, delegate, or sublet this Contract or any interest therein without the
prior written consent of City, and any such assignment, transfer, delegation,
or sublet without the City's prior written consent shall be considered null and
void.
11. Covenant. This Contract has been executed and delivered in the State
of California, and the validity, enforceability and interpretation of any of
the clauses of this Contract shall be determined and governed by the laws of
the State of California. All duties and obligations of the parties created
-4-
hereunder are performable in the City of San Wic Obispo, and such City shall
be that venue for any action, or proceeding that may be brought, or arise out
of, in
wmlection with or by reason of this Contract.
12. Nondiscrimination. There Shall be m discrimination against any
Person enployed pursuant to this contract in any manner forbidden by law.
13. Conflicts of Interest. die employee shall not participate in any
decision related to this Contract which affects her personal interest or the
interest of any oorporation, partnership, or association in which she is
directly or indirectly interested.
14. Coiyvriaht. Any reports, maps, documents or, other materials produced
in whole or part under this Contract shall be the property of the City and
shall not be subject to an.applicatich for copyright by or on behalf of
Employee, without the prior written approval of the City.
15. Outside Emnlovment. Conduct. and Behavior.
a. Employee may engage in .outside activities such as part-time
teaching, consulting, or in other similar activities unrelated to City business
only with the express prior approval of the City Administrative officer.
b. Employee shall comply with all local and state req rw m is
regarding conflicts -of- interest and shall avoid personal involvement in
situations which are inconsistent or inccmqpatible with the position of BSA.
Aami;,irator Or give rise to the appearance of impropriety.
16. Enforceability. If any terms, covenant, oondition or provision of
this agreement is held by a court of competent jurisdiction to.be invalid, void.
or unenforceable, the remainder of the provisions herein shall remain in full
force and effect and shall in no. way be affected, impaired or invalidated
thereby.
-5
IN WIMFSS WMMF, City and Employee have executed this Contract on the
day and year first hereinabove set forth.
CONCUR:
City
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Finance Director
Pe4� Director
CI'T'Y OF SAN MIS OBISPO
By:
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RESOLUTION NO. 6552 (1988 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
ADOPTING WATER- CONSERVATION LANDSCAPE STANDARDS
WHEREAS, Section 17.89.040 of the Water Allocation Regulations enables the council to
require water- conservation features for projects obtaining water allocations; and
WHEREAS, Chapter 2.48 of the Municipal Code establishes architectural review and
enables the Architectural Review Commission and the council to adopt architectural review
procedures and regulations; and
WHEREAS, the council has determined that adopting these landscape guidelines is not a
project for purposes of environmental review;
NOW, THEREFORE, the council resolves to adopt the water conservation landscape
standards fully contained in the attached Exhibit A, with standards to be applied to each
project requesting architectural approval or a water allocation, as indicated.
On motion of _Councilman Settle . seconded by Councilwoman Rap
and on the following roll call vote:
AYES: Councilmembers Settle, Rappa_ and Reiss
NOES: Mayor Dunin
ABSENT: None
the foregoing resolution was passed and adopted this 6th day of December 1988.
Mayor Ron Dunin
gm4 /Ig -res
R6552
• •
Resolution No. 6552 (1988 Series)
Page 2
APPROVED:
t Adm nistrative Officer
City A t rney
Community Development Director
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990 Palm Street /Post Office Box 8100 • San Luis Obispo, CA 93403 -8100
LANDSCAPE STANDARDS FOR WATER CONSERVATION
PURPOSE
The City of San Luis Obispo requires attractive, water - conserving landscaping in all new
development projects. We live in a semi -arid, mediterranean -type climate which poses
special landscape problems and opportunities. Consequently, developers, landscape .
architects, contractors, designers, homeowners, and others involved with landscape design
need to make efficient use of increasingly limited water supplies through sensible,
carefully planned landscape design, installation and maintenance.
These standards explain the City's expectations for landscape .water conservation in new
development. They are to be used by the public, city staff, and the Architectural Review
Commission in preparing and reviewing public and private landscape plans. While
innovative and varied landscape design is encouraged, applicants and designers will be
required to use landscape water efficiently.
INTENT
Conserving water through sensible landscaping is one of several ways we can help to
better balance water supply and demand. Through these guidelines, the City intends to
reduce the amount of water used for landscaping businesses, houses, apartments, parks,
and public buildings. There is a wide variety of plants, supplies and design techniques
available which can save water while beautifying the landscape. New public and private
development projects, and major remodels need to follow these guidelines, which encourage
use of these water conserving measures.
Site conditions, esthetic tastes, and budgets vary, and not all of the recommended water
- conservation measures are feasible or desirable in every landscape situation. Landscape
plans should, however, clearly show that water conservation measures have been included
where feasible and appropriate; or explain why such measures are infeasible or
inappropriate for the proposed project.
PROCEDURES
There are three categories of landscape standards. All development projects will fall
under one or more of the categories, depending on its size and where it requires
architectural review. For example, basic landscape requirements are listed in category I
and apply to all projects. Larger; more complex projects, where the potential for water
savings is greater, must meet the additional requirements listed under categories II and
III:
I. All Projects This includes all new development projects, including
those which are exempt from architectural review, such as individually
built, single- family houses and duplexes;
i
Landscape Standards
Page 2
•
II. Small- to medium -sized projects These projects require
architectural review, such as new houses on sensitive sites, the
construction of three or more dwellings on a lot, and new commercial
buildings.
III. Large projects - This refers to commercial or industrial projects on
sites of 20,000 sq. ft. or more, and residential projects of 10 or
more units.
Where a project is reviewed by the Architectural Review Commission, the ARC shall
evaluate projects for compliance with these guidelines. For projects which are exempt
from architectural review, the Community Development Director shall review all projects
for conformance with the guidelines during building plancheck. Development projects
shall conform to these guidelines prior to building permit issuance.
Decisions of the Community Development Director are appealable to the Architectural
Review Commission, and decisions of the Architectural Review Commission are appealable to
the City Council, subject to the appeal provisions of Chapter 17.66 of the Municipal
Code.
SUBMITTAL REQUIREMENTS
I. Required. For All Proiects:
Landscape and irrigation plans which show water conserving measures in sufficient
detail and clarity to judge whether the project conforms to the guidelines,
including:
A. Planting Plan - Showing scale, north arrow, property lines, existing and
proposed structures, streets, major natural features such as creeks and rock
outcroppings; location, size, type, and quantity of proposed plants existing
trees to be removed or retained, noted by type,.location, trunk diameter and
height, overall condition and expected lifespan; statistics listing total
paved area, and percentage of total site area devoted to irrigated
turf grass.
B. Irrigation Plan - Showing scale, north arrow, property lines, existing
and proposed structures, streets, and existing trees to remain and major
natural features; below- ground utilities; location, size, and type of
irrigation components. If legible, the irrigation plan can be combined with
the planting plan.
II. Reauired For ARC Projects: (° Denotes items already required for ARC review)
In addition to the information listed above,. the following information should be
provided:
A. Planting Notes - Describing how landscape design meets the esthetic or
functional requirements of the site or of the proposed use, for example
landscape privacy screening, solar access, climate control, erosion control,
and water conservation (').
Landscape Standards
Page 3
SUBMITTAL REQUIREMENTS (continued)
B. Section /Elevation View - Provide a cross- section /elevation through site
showing the relationships between planting design, buildings, site
improvements, design and /or water conservation concepts. (')
C. Irrigation Notes - Include notes or written description explaining
water- conserving measures used in irrigation design.
III. Reauired For Laree -or Complex ARC- Proiects (For Staff Review):
In addition to the information listed above, landscape and irrigation plans for
these projects shall be prepared by a landscape architect or other qualified
professional, and shall include the following:
A. Planting and Irrigation Details - Show planting, irrigation, staking,
and other pertinent details which explain the landscape design and /or
conservation measures. (')
B. Maintenance Program - Describe general maintenance procedures, including
frequency and responsiblities for watering, replanting, pruning, irrigation
equipment repair and programming, weed control, and fertilizing.
LANDSCAPE STANDARDS
I and II. Standards Applying To All New Development Projects:
Irrigated turf areas should not exceed 20 percent of the site's total
area.
Lawn areas typically require more watering than other types of ground covers, trees, and
shrubs. Therefore, although lush, green lawns are traditional in most residential
landscaping, their use for purely decorative purposes is discouraged. The ARC may allow
larger turf areas where special water conservation measures are used, and where their
primary purpose is for recreation rather than esthetics, as in parks, playgrounds, and
private rear yards.
2. Use water - conserving turf varieties or turf substitutes where appropriate.
Warm- season turf varieties like Zoysia, hybrid Bermuda, Tall Fescue, and St. Augustine's
grass require less water to maintain their health and appearance than some other
varieties and are encouraged. Many colorful, flowering ground covers are available which
tolerate drier conditions and should be used instead of turf where little or no foot
traffic is expected.
0
Landscape Guidelines
Page 4
LANDSCAPE STANDARDS (continued)
•
3. Design planter and turf areas for maximum water efficiency and ease of
maintenance.
Turf in unusually shaped, narrow, or sloping areas is difficult to maintain and uses more
water than level, regularly- shaped lawns of comparable size. For example, turf should
generally not be used in narrow planters, foundation plantings, raised beds, and other
relatively small planters where watering and maintenance are likely to pose problems.
Turf planting in these areas, or on slopes over 15% causes excessive irrigation runoff,
and is discouraged.
4. Use decorative paving and alternative ground covers such as pathway bark,
crushed rock, wood chippings, concrete, brick, or wood pavers to
attractively landscape pathways, service areas, or difficult to maintain
areas.
Alternative ground covers can be attractive. They conserve water in difficult -to -plant
areas, and in commercial and industrial projects where conventional planting would be
ineffective or inappropriate. Decorative paving for pathways adds color and texture
variety to the design and reduces watering and maintenance.
5. Select plants carefully to suit growing conditions (ie. sun, soil type,
slope aspect, expected level of maintenance).
Growing conditions may vary significantly on a site. Select plants carefully according
to their soil, sun, and moisture preferences. For example, plants which prefer moisture
conditions will often perform better in low or shady areas, or on north - facing slopes.
Sun loving or drought tolerant species often prefer well- drained, sunny, south - facing
areas.
6. Group plants according to similar horticultural needs.
To simplify watering and maintenance, plants with similar horticultural requirements
should be grouped. Interplanting drought - tolerant plants with moisture- loving ground
covers should be avoided. Planting schemes should rely primarily on deep- rooted trees,
shrubs, and vines rather than shallow- rooted ground- covers. Canopy tree plantings should
be used to create cool, moist microclimates below for shade loving plants.
7. Use water - conserving plants.
Plant selection should clearly emphasize the use of drought tolerant and
water- conserving plants. Many plants native to California, the Mediterranean region,
Australia, and South Africa are highly ornamental and require minimal or no water once
established.
• 0
Landscape Standards
Page 5
LANDSCAPE STANDARDS (continued)
A list of selected water- conserving species for San Luis Obispo is available from the
Community Development Department; however, many other plant lists and references on
drought tolerant- plants for coastal California are available. Local nurseries are
another good source for up -to -date information on water- conserving plants.
8. Design irrigation systems for maximum watering efficiency.
Projects should have an automatic, underground irrigation system. The systems shall be
designed for maximum watering efficiency. Such techniques as low- precipitation heads,
drip irrigation, moisture - sensors, check valves, and other water conserving techniques
should be used where appropriate to reduce the amount of water being applied and to
prevent excess overspray onto unplanted areas. Sprinkler heads should be properly
selected and located to prevent excessively dry or wet areas.
9. Use temporary irrigation for open space or hydroseeded areas.
Areas which are hydroseeded or planted with native vegetation generally need temporary
irrigation until well established. Temporary irrigation systems should be removed after
the establishment period, usually in 12 to 24 months.
10. Use erosion control measures on planted slopes of 3:1 (33%) or steeper.
Where runoff and erosion are likely, planted slopes shall have jute mesh, straw
matting, or comparable biodegradable material to reduce erosion and allow plants to
become established. Special irrigation design should be used to reduce runoff, such as
low precipitation heads or drip irrigation, check valves (to reduce low head drainage),
recessed planting niches or watering basins at base of plants, and proper soil
preparation.
11. Planted areas should generally have a 2" thick layer of mulch at
planting to reduce soil moisture evaporation and discourage weed
growth.
Mulches such as bark chips, wood shavings and leaf mold, and peat moss cover and cool
soil, minimize evaporation, reduce weed growth and slow erosion. Organic matter also
provides beneficial nutrients to the plants. Mulching also improves the soils's ability
to absorb and hold water, and it reduces the frequency of watering if applied properly.
Leaf accumulation under many trees and shrubs can be left as a natural, low- maintenance
mulch and can be an attractive ground cover substitute.-,
Landscape Standards
Page 6
LANDSCAPE STANDARDS (continued)
12. Define planter edges to reduce irrigation runoff.
Curbs, headerboards, pavers, and other decorative materials should be used to define
the edges of planters to reduce irrigation runoff into non - planted areas, and to define
turf areas. Excessive runoff and irrigation overspray onto paved areas wastes water and
is not allowed.
13. Water features should be designed and maintained to use water
efficiently.
Pools, ponds, decorative fountains, and other similar ornamental water features should
use recirculating water. Water features should be of a design, shape, and size that
minimizes water loss through evaporation.
14. Parking lots should be adequately landscaped to prevent large,
uninterrupted expanses of paving. The Community Development Director
may relax these standards for parking lots which are not used or seen
by the public, and where no public purpose would be served by strict
compliance with the standards.
Parking lots often pose special esthetic concerns, including the need for visual
screening, shading and glare control, and beautifying large expanses of paving.
Generally, at least five percent of a parking lot's total area should be landscaped, in
addition to setback areas. Public parking lots should include water conserving plantings
which address these concerns, and enhance a project's overall appearance and use. To
conserve water while maximizing public benefit, the Director may reduce the amount of
landscaping in non - public areas, in return for enhanced or upgraded landscape amenities
in public areas. Non- public areas may include outdoor storage areas, constractor's
yards, and parking lots designated for the exclusive use of employees or tenants.
III. Standards For Laree or Complex Proiects:
Developers shall provide homeowner design /maintenance guidelines for
residential and commercial subdivisions.
Developers shall provide landscape design, irrigation and maintenance guidelines for
homeowners' use in new subdivisions. The guidelines shall be included in a package of
landscape water conservation information provided and distributed by the subdivider to
homeowners, and shall include as a minimum: recommended plant types and sample designs
for water conservation, suggested watering and maintenance schedules, horticultural
measures to reduce landscape water use, and financial and /or other homeowner incentives
to encourage appropriate and timely installation of water - saving landscapes.
Landscape Standards
Page 7
15. Subdividers shall design and install water - conserving demonstration
landscapes for new residential subdivisions.
Subdividers shall landscape at least two units or model homes using water- conserving
landscaping to demonstrate the feasibility and esthetic qualities of this type of
landscaping. The demonstration gardens shall follow the City's Model Home Landscape
Development Criteria, and shall include appropriate signing explaining design techniques
and plant materials for water conservation.
jhl /xeros:12 /22/88
RESOLUTION NO.6551(1988 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
INITIATING A REZONING OF PROPERTY ON HIGUERA BETWEEN MARSH AND
MADONNA TO INCLUDE AN " -S" (SPECIAL CONSIDERATIONS) OVERLAY
WHEREAS, the City Planning Commission and Architectural Review Commission have
recommended that the areas shown on Exhibit "A" should be considered a special
considerations zone to address access, setback and related issues; and
WHEREAS, the City Council is concerned with.the implementation of various
recommendations from those commissions regarding access, setbacks and other related
issues.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo as
follows:
SECTION 1. The City Council hereby initiates the rezoning of property on both sides
of Higuera between Marsh and Madonna to include an " -S" (special considerations) overlay
as shown on Exhibit "A ".
SECTION 2. The Community Development Department is directed to include within the
proposed zoning.ordinance, the recommendations suggested by the Planning and
Architectural Review Commissions regarding access, setbacks and related issues.
On motion of Councilwoman Pinard , seconded by Ca=Lj man Settle -, and- on the
following roll call vote:
AYES: Councilmembers Pinard, Settle, Rappa, Reiss and Mayor Dunin
NOES: None
ABSENT: None
the foregoing resolution was adopted this . 6th day of SDece r. "ti988.
on Dunin
ATTE ( ,
City Clerk Pam Voge
R6551
LI
Resolution No. 6551 (1988 Series)
Page 2
APPROVED:
City Administrative Officer
City Att ney
Community Development Director
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RESOLUTION NO. 6550 (1988 SERIES)
A RESOLUTION OF THE SAN LUIS OBISPO CITY COUNCIL
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF SAN LUIS OBISPO,
CALIFORNIA POLYTECHNIC STATE UNIVERSITY, AND
THE FOUNDATION FOR THE PERFORMING ARTS FOR CONSTRUCTION
OF AN AUDITORIUM ON THE CAL POLY CAMPUS
WHEREAS, the City, Cal Poly and the Foundation for the Performing Arts
recognize the need for an auditorium of about 1500 seats; and
WHEREAS, it is apparent that no single such agency or entity is
capable of financing, constructing or maintaining an auditorium of that
size; and
WHEREAS, discussions, negotiations and analysis of the various options
available to any or all of the three parties have been occurring for quite
some time; and
WHEREAS, representatives from the City, Cal Poly and the Foundation
for the Performing Arts agree on their re "spective roles and
responsibilities in the development of such an auditorium.
NOW THEREFORE, BE IT RESOLVED by the San Luis Obispo City Council as
follows:
SECTION 1. That certain agreement attached hereto, marked Exhibit
"A," and incorporated herein by reference, between the City of San Luis
Obispo, California Polytechnic State University, and the Foundation for
the Performing Arts is hereby approved by the City.
SECTION 2. The City Clerk shall furnish a copy of this resolution and
a copy of the executed agreement approved by it to: Dr. Warren Baker,
President, California Polytechnic State University; and
Warren Sinsheimer, President, Foundation for the Performing Arts.
R6550
Resolution No. 6550 8 Series)
Page 2 IC is
On motion of Mayor Dunin , seconded by Councilman Settle
and on the following roll call vote:
AYES: Councilmembers Mayor Dunin, Settle, Pinard, Rappa and Reiss
NOES: None
ABSENT: None
the foregoing Resolution was passed and adopted this 6th day of December,
1988.
r
'MAYOR DUNIN
ATTEST:
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CI Y CLERK P VOLES
Approved:
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WETING AGENDA
D I T __DEC B`98 MEM #
Development Agreement
Performing Arts Center
'IF-iis agreement is made and entered into this day of
1988, by and between the State of California acting
through the Trustees of The California State. University,
hereinafter referred to as the "Trustees" on behalf of California
Polytechnic State University, San Luis Obispo, hereinafter
referred to as "University," the Citv of San Luis Obispo,
California, hereinafter referred to as "City," and the Foundation
for the Performing Arts Center, a California nonprofit public
benefit corporation, hereinafter referred to as "Foundation."
WHEREAS the University has long established plans to construct an
auditorium on its campus capable of handling an audience of „1200
to 1500 persons, and
WHEREAS the City has determined that the residents of the City
and city businesses would derive significant cultural,
educational, civic and economic benefit from a meeting and
performance hall capable of seating 1200 to 1500 persons, and
WHEREAS it does not appear likely that either the City or the
University can afford to undertake to design, construct and
operate a 1200 to 1500 seat performance hall alone, and
WHEREAS the Foundation consists of people from throughout San
Luis Obispo County and beyond-who desire to see a 1200 to 1500
seat performance hall in San Luis Obispo and who are willing to
raise a substantial share of the cost of constructing and
operating such a facility, and
WHEREAS no single public or private entity appears likely in the
foreseeable future to have the financial resources to construct,
operate and maintain a 1200 to 1500 seat hall. A joint effort
among the City, the University, and the Foundation which
recognizes the unique and mutually supporting characteristics of
each entity and guarantees the respective contributions to a
joint effort appears to be the best solution to the problem of
how to design, build and operate such a hall, and
WHEREAS thoughtful and energetic discussions of the challenges
posed by this project have been ongoing since 1985. Out of these
dialogues have emerged a number of issues. The most.challenging
and most compelling issues deal with the specifics of sharing the
burden of raising funds and sharing the use of the hall, and
WHEREAS the parties believe that a joint effort can create a
Z best suited to the needs of the University and the
community. They can create a performing arts facility with a
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combination of excellent acoustics, sight lines, stage
facilities, storage, lighting, technical equipment, rehearsal
space and backstage accommodations. Such a hall would serve the
needs of community and University performing arts groups, touring
artists, and speakers, and the large assembly needs of the
University and the community. Such a hall is hereafter referred
to in this agreement as the "Performing Arts Center." The
Performing Arts Center will be designed to accommodate a variety
of events: music, dance, drama, public assembly, and special
events. Through the excellence of its design and creative use of
lobby and other interior spaces, the Performing Arts Center will
enhance the visual arts experience of its users. The Performing
Arts Center will represent excellence in architecture and
planning.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions hereafter contained, the Trustees, the City, and the
Foundation do hereby agree as follows:
1. The parties agree to fund and build a Performing Arts Center
capable of seating 1200 to 1500 people on the campus of the
University as more specifically set out in this agreement.
2. The parties agree to develop an operating agreement for the
operation of the Performing Arts Center in accordance with
the principles set forth in Section 7 of this agreement.
3. The design of the Performing Arts Center will be predicated
to a large extent on the February 23, 1987 architectural
report which was prepared at the request of the City. That
report identified the following features as desirable for a
facility to meet the general program requirements set forth
by the City, the Foundation and the University.
a. An auditorium, capacity of 1200 to 1500 with three
levels of seating to allow for variable audience
capacity while retaining a sense of intimacy.
b. A stage house and loft to provide for a full working
stage with access to support spaces and service
entrances.
C. An orchestra pit with hydraulic lift to permit a large
fore stage when the pit is not required.
d. A lobby of sufficient size to permit its use as a
separate space for public assembly, receptions and
similar functions.
e. Appropriate support components for the theater, stage
and related areas plus administrative space for
building management and the corporation.
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f. Critical attention to .sight lines, acoustics, lighting
and sound control are paramount to a successful
facility.
The final project description document will be
developed by the City, the Foundation, and the
University.
Design and Construction
4.01 Construction of the project shall proceed ir.
conformance with the legal requirements under the
California State University Contract Law, Public
Contract Code. Section 10700 et seq., and the building
to be constructed shall be the property of the state.
4.02 Trustees shall make best efforts to proceed with the
design and construction of the project in accordance
with the same procedural requirements as for CSU
state funded projects with the addition of provisions
necessary to reflect the unique arrangement described
herein. As explained at a meeting attended by staff
from the Trustees, University, City, and Foundation
held at the Chancellor's Office on March 23, 1988,
the following general schedule outlines these
requirements:
a. April 1988 Program Planning Guide (PPG) is
submitted to PPD (includes
program description,
.justification, and budget
estimate).
(a.l) May 1988 Board Meeting - Approval
of concept.
b. July 1988 1989 -90 to 1.993 -94 Draft Five
Year Capital Improvement Program
is submitted to Board of
Trustees. Program may include
request for preliminary planning
funds for Performing Arts Center.
C. July 1988 PPG is submitted to Department of
Finance (DOF) and Legislative
Analyst Office (LAO).
d. September 1988 1989 -90 to 1993 -94 Five year
Capital Improvement Program is
approved b_. Board of Trustees.
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e. September 1988 Visit to campus by DOF, LAO, and
consultants to legislative
committees.
f. January 1989 1989 Governor's Budget is
released.
g. February 1989 written analysis of 1989
Governor's Budget by LAO is
released.
h. April -May 1989 Legislative committees evaluate
1989 Governor's Budget.
i. June 1989 1989 Budget is signed by
Governor. Funds for
schematics /preliminary plans may
be available on July 1, 1989.
j. July 1989 . Schematic plans are.stated.
k. August- Mid- schematic plan evaluations
September 1989 by campus and Chancellor's Office
staff occurs.
1. November 1989 Board.of'Trustees approves
Schematic Plans. Preliminary
plans are stated.
m. January 1990 1990 Governor's Budget is
,released (working drawing funds
for the project may be included).
n. February 1990 written analysis of 1990
Governor's Budget by LAO is
released.
o. March 1990 Preliminary plans are completed
and transmitted to the State
Public Works Board for approval.
P. April -May 1990 Legislative committees evaluate
1990 Governor's Budget..
q. June 1990 Governor's Budget signed by
Governor_ Funds for working
drawings may be available on July
1, 1990.
r. July 1991 Working drawings are stated.
s. January 1.991 Working drawings are completed.
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t. January 1991 1991 Governor's Budget is
released (construction funds for
project may be included).
u. February 1991 written analysis of 1991
Governor's Budget by LAO is
released.
v. April -May 1991 Legislative committees evaluate
1991 Governor's Budget.
w. June 1991 1991 budget is signed by
Governor. Funds for construction
may be available on July 1, 1991.
X. July 1991 Bid documents for the project are
released.
y. September 1991 Construction contract is awarded
and construction is started.
z. March 1993 Construction is completed.
4.02.1 It is understood by the parties that the above
schedule represents goals and no breach occurs
if the time schedule must be adjusted.
4.03 It is contemplated under the timetable set forth in
Section 4.03 that the following goals be set:
a. Design phase: Board of Trustees appoint an
architect for the project in May 1989.
b. Schematic phase: Schematics to be presented
to the Board of Trustees in November 1989.
C'. Preliminary plans: Preliminary plans be
developed in March and April 1990.
Submission of plans to Board of Public Works
for approval in July 1990.
1) Funding for working drawings
requested in July 1990.
2) Working drawings completed in June
1991.
d. Construction phase: Trustees request
construction funds in July 1991.
1) If funding request met, Trustees will go
to bid.
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2) Construction phase envisioned to
take 1} to 2 years Anticipated
completion dated of project is
March 1993.
e. It is understood by the parties that the
above times represent goals and no breach
occurs if this timeline must be adjusted.
4.04 Trustees may not award any construction contract
until after City and Foundation have fulfilled their
respective obligations to deposit with Chancellor's
Office Chief Fiscal Officer their share of the
funding of the project in accordance with Sections
5.02 and 5.03.of this agreement.
a. However, after selection of architect and
submission of architectural schematic design for
the project, if City or Foundation disapproves of
the architectural design, either City or
Foundation may elect not to deposit with the
Chancellor's Office Chief Fiscal Officer the
balance of funding committed for construction
specified in Section 5.02 and 5.03 respectively.
Said election wi11 act to terminate this agreement
and excuse all parties from any further acts or
obligations under this agreement. If such
termination occurs, each party shall bear its own
costs up to that time, and shall not receive
reimbursement from the other .parties to this
agreement.
b. It is further agreed among the parties that City
and Foundation will participate with the campus in
the recommendation for the selection of the
architect and in providing further input to the
Trustees' staff in the development of all phases
of the construction plans and specifications.
5. Funding
5.01 The parties estimate the project cost of the
Performing Arts Center will not exceed Twenty Million
Dollars ($20,000, 000.00). The Project Cost shall be
an amount agreed upon by the three parties, and the
three parties agree to work together on the scope of
the Project to stay within the estimate. "Project
Cost" means the sum required to design, construct and
equip the Performing Arts Center. Project cost
includes, but is not limited to:
a. Fees and commissions for design services;
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b. Site surveys and soil investigations;
c. Center construction;
d. Necessary relocation of existing improvements;
e. Upgrade of existing utility services if required;
f. Test and inspections curing construction;
g. Miscellaneous costs associated with project
approval such as: physically handicapped
compliance, State Fire Marshal, contract code
check; and
h. M. ovable.equipment necessary to permit the
operation of the facility as designed.
5.02 City agrees to fund one - sixth of the project cost.
City shall_ deposit its share of the project cost with
the Chief Fiscal Officer of the Trustees at the
following intervals:
a. Deposit an amount equal to one -sixth of the design
funds for each state of plan development
(schematics, preliminary and working drawings)
prior to the authorization to the architect to
proceed with each phase.
b. Deposit the balance of its one -sixth share of the
project cost in cash or letter of credit prior to
the award of construction contracts by Trustees.
5.03 Foundation agrees to fund one -sixth the cost of the
project cost. Foundation shall.deposit its share of
the cost of the project with the Chief Fiscal Officer
of the Trustees at the following.intervals:
a. Deposit an amount equal to one -sixth of the design
funds for each stage of plan development
(schematics, preliminary and working drawings)
prior to the authorization to the architect to
proceed with each phase.
b. Deposit the balance of its one -si }ah of the
project cost in cash or letter of credit prior to
the award of construction contracts by the
Trustees.
c. Foundation further agrees to make "best efforts"
to raise an endowment fund of one million dollars
(si,000,000.00) the income from which to be used
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to defray operating expenses associated with
program development and presentation and to defray
any maintenance costs not covered by the
University for the Performing Arts Center.
Endowment Fund means a fund the net income from
which will be transferred to the "Corporation"
identified in Section 6 of this Agreement for
expenditure by the Corporation's Board while the
Foundation maintains the principal of the fund
intact. The Board, rather than the Foundation,
shall control the expenditure of the net income.
5.04 Trustees agree-to seek funding from the Legislature
in an amount equal to two - thirds of the Project Cost.
Trustees shall commit the amount approved by the
Legislature for the design and construction of the
project. Trustees shall not be bound to proceed with
the design and construction of the project should the
Legislature not allocate sufficient funds for the
project.
5.05 None of the parties shall be obligated to proceed
with the design and construction of the project until
funding for each phase (schematics, preliminary,
working drawings, construction) has been secured by
each of the parties. If the project cannot go
forward because of a lack of adequate funding, any
party may elect to terminate this Agreement, such
election excusing all parties from any further acts
or obligations under this Agreement. if such
termination occurs, each party shall bear its own
costs up to that time, and shall not receive
reimbursement from other parties to the Agreement.
5.06 In addition to Trustees' funding commitment to the
project costs set forth in Section 5.04, Trustees
shall make the following contributions:
a. Trustees shall provide the land for the site of
the Performing Arts Center. The site is presently
identified as that University property on Grand
Avenue adjacent to the existing theater.
b. Upon completion of the project, University will
provide utility services and perform all
maintenance and custodial work on the Performing
Arts Center and its landscaping consistent with
state criteria. The University's maintenance
staff will consult and cooperate with the
Performing Arts Center's operating entity to be
created in accordance with principles set forth
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in Section 6 of this Agreement as to maintenance
needs and scheduling occasioned by the Performing
Art Center's schedule and uses.
5.07 In the event project costs exceed the estimated $20
million, the parties agree to work together to
provide a method to get additional funding, or agree
to reduce the scope of the project to stay within
budget.
6. Parking
6.01 University shall develop a parking management program
providing the public access to campus parking
facilities for events scheduled at the Performing
Arts Center. The University agrees to deliver a
proposed parking management program to the City and
the Foundation not later than March 1, 1989.
6.02 Both the City and Foundation must notify the Trustees
in writing of their approval or disapproval of the
University's parking management plan no later than
May 1, 1989, the date the University must submit its
proposed capital outlay program for fiscal year
1990 -1991. If either the City or the Foundation
timely notifies the Trustees of its disapproval of
the University's parking management plan or fails to
timely file any notification with Trustees, said
notification of disapproval or event of
nonnotification shall act to terminate this
agreement. Said termination shall excuse all parties
from any further acts or obligations under this
agreement, including the City's and Foundation's
obligations to deposit i:ith the Chancellor's Office
chief fiscal officer the balance of funding committed
for construction specified in Sections 5.02 and 5.03
respectively.
7. Operating Agreement
7.01 In consideration for the nonstate funding provided by
the City and Foundation for this project, Trustees
agree that the City and Foundation should join
Trustees in creating a nonprofit public benefit
corporation for the operation of the Performing Arts
Center, including the determination of appropriate
operating policies.
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7.02 The nonprofit corporation to be established will be
the operator of the Performing Arts Center. The
nonprofit corporation will sign an operating
agreement or other appropriate agreement with the
Trustees, to be developed. The operating agreement
or other appropriate agreement to be developed shall
incorporate the principles hereafter set forth in
this Agreement. The term of the operating agreement
or other appropriate agreements shall be not less
than 75 years.
7.03 The operating agreement or other appropriate
agreement and nonprofit corporation shall be in place
before the construction of the facility is completed.
7.04 The operating agreement or other appropriate
agreement shall include, but not be limited to, the
following provisions:
a. The corporation and its board shall not pledge as
collateral the Performing Arts Center building,
fixtures, or land situated upon for any loan, debt
or contract it may enter..
b. The corporation will release and hold harmless the
Trustees from any debts the corporation may incur
including any debts owed to staff hired by the
corporation. Under no circumstances shall state
funds be used to finance any program operating
deficit of the Performing Arts Center. Failure to
finance a deficit may be grounds to terminate the
operating agreement. The Performing Arts Center
:,ill be operated on a "break even basis."
However, in the event of a deficit, the City and
Foundation will make up the deficit. Because the
University has agreed to provide the - Performing
Arts Center with utilities and maintenance
services, the University will not be responsible
for corporation deficits.
c. The corporation shall be responsible for the
hiring, salaries, and benefits, including workers_'
compensation, of any staff.
d. The corporation shall maintain the types and
amounts of insurance set forth in Section 7.09 of
this agreement.
7.05 Two thirds of the events at the Performing Arts
Center shall be activities that should enhance. the
University's educational mission. In addition, the
University shall have priority scheduling for certain
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official University functions. The University shall
present a list of official University functions and
their dates to the board annually on or before
January of each year for events in the subsequent
fiscal (academic) year. In recognition of the value
of utilities and maintenance provided by the
University, the value of those services shall be
credited to defray facility rental costs for official
University functions.
7.06 The Performing Arts Center wi11 not be the exclusive
home for any user group. The corporation will make
every effort to accommodate the needs and schedules
of local performing groups (whether campus based or
community based) including those groups which present
touring performers. However, no group shall have
permanent rights to use the Performing Arts Center;
all use shall be subject to the corporation's
scheduling decisions.
7.07 Events of dissolution of the corporation will be
addressed. In the event of dissolution of the
operating agreement, the operation of the Performing
Arts Center will revert to the University. In the
event of dissolution, Trustees will give recognition
to the City's and Foundation's financial
contributions by guaranteeing community access to the
facility for an agreed upon number of occasions
annually.
7.08 The corporation shall raintain the following types of
amounts of insurance:
a. Liability Insurance. The Corporation shall obtain
and keep in force a policy or policies of public
liability and property damage insurance with a
single combined liability limit of not less than
$5,000,000.00, and property damage limits of not
less than $500,000.00 insuring against all
liability of-the Corporation arising out of and in
connection with use or occupancy of the Performing
Arts Center. The Trustees, the City and the
Foundation shall be named as additional insureds.
The Corporation shall maintain such other policies
of liability as the board determines prudent.
b. Property Insurance -- Premises. The Corporation
shall obtain and keep in force a policy or
policies of insurance covering loss or damage to
the Performing Arts Center, including fixtures,
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equipment, and improvements to the extent of at
least one hundred percent (100%) of full
replacement value, providing protection against
all perils included within the classification of
fire, extended coverage, vandalism, malicious
mischief, special extended perils ( "all risk," as
such term is used in the insurance industry) .
These shall include demolition, increased cost of
construction, and change in building law
endorsements.
c. Policy Form, Content, Insurer. All insurance
required under this Agreement shall be issued by
responsible insurance companies qualified to do
business in California and reasonably acceptable .
to the parties. All such insurance shall be
issued as primary, not blanket, policies. No such
policy shall be cancelable or subject to reduction
of coverage or other modification except after
thirty (30) days prior written notice to the
parties.
7.09 Unresolved issues, such as a definition of repair and a
determination of which entity shall be responsible for
repairs, shall be addressed. Additionally, the parties
agree that the operating agreement or other appropriate
agreement to be developed shall incorporate the
following principles:
a. The Performing Arts Center shall be operated by a
nonprofit public benefit corporation formed by the
parties to be known as the Central Coast
,Performing Arts Center Commission (the
"Corporation "), or some other mutally agreeable
name.
b. The Corporation shall be governed by a board of
directors consisting of seven persons (the
"Board ").
C. Membership. The corporation shall have no
members, as provided in California Corporations
Code Section 5310.
d. Powers and Responsibilities of Corporation. The
Corporation shall be responsible for the operation
of the Performing Arts Center, including the
determination of appropriate operating policies.
The Corporation shall be responsible for the
artistic and financial success of the Performing
Arts Center-, including, the continuous evaluation.
of the business and programming aspects of the
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Center. The Corporation will establish and
maintain a calendar of scheduled events and
available dates.
e. Board of Directors. The Corporation shall be
governed by a board of directors consisting of
seven persons.
f. Selection of Directors. The president of the
University shall appoint three directors and three
alternates. The City shall appoint two directors
and two alternates. The Foundation shall appoint
two directors and two alternates.
g. Compensation of Directors. No director shall be
compensated for services as such, except that
directors may be reimbursed for actual expenses
incurred as permitted by California Corpora ions
Code Section 5231.5, and approved by the Board.
h. Terms of Office. Directors shall be appointed for
a three year term. Initial directors shall be
appointed before the organizational meeting of
directors. At the organizational meeting,
directors shall decide by lot which three among
them shall serve initial three year terms, which
two shall serve initial two vear terms and which
two shall serve initial one year terms. A
Director may be removed at any time i.ithout cause
by the agency which appointed him or her.
i. Board Functions. The Board shall annually approve
and adopt a budget for the forthcoming year. The
Board shall at least annually report to the three
parties to this Agreement concerning the
programming and financial situation of the
Performing Arts Center. The Board will from time
to time establish fee schedules, will have final
authority for all decisions on booking policy and
event programming, and will be advisory to the
University on facility maintenance issues.
j. Staff. The Board shall hire a professionally
qualified general manager, who shall be
responsible to and serve at the pleasure of the
Board, and who shall develop operating procedures
consistent with Corporation policy and operating
necessity. The general manager shall be
responsible for all administrative and •operating
matters as delegated by the Board, including but
not limited to the hiring of other staff.
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k. Quorum. A quorum shall consist of five members of
the Board, including at least one representative
from each of the three parties.
1., Officers. The Board shall select one of its
members as Chairman and one .as Secretary to serve
at the pleasure of the Board.
M. Voting. All actions of the Board will require the
approval of five (5) members.
n. Regular Meetings. The Board shah hold regular
meetings, on a schedule to be agreed upon by the
members; but, in any event, not less than every
three months.
o. Special Meetings.. Special meetings may be called
by the Chairman or.by any two members.
p. Public Meetings. If the corporation seeks and is
granted recognition as a 'recognized auxiliary
organization pursuant to Education Code Section
89900 et seq., its meetings shall be conducted in
accordance with California Government Code Section
11120 et seq. (Bagley -Keene Act) . All meeting-
shall be held in the Performing Arts Center unless
some other meeting place providing convenient
public accessibility is specified in the notice of
meeting.
q. Bylaws. The Board shall, from time to time, adopt
such bylaws, rules and policies not inconsistent
with this statement.of principles as it determines
to be best suited to the internal operation of the
Corporation and the operation and use of the
Performing Arts Center. Proposed bylaws and
proposed bylaw. amendments shall be submitted to
each of the three parties for review and comment,
all in a timely manner.
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8. Due Authorization. Each of the parties represents by
executing this Agreement that he or she has been fully and
completely authorized to do so and that he or she is
empowered to bind the entity on whose behalf the Agreement
is signed.
Date:
Date: 1988
Dater IW•1 /'ll , 1988
Date:
eA19 /Foundation
•::
THE CALIFORNIA STATE UNIVERSITY
By
CALIFORNIA POLYTECHNIC STATE
UNIVERSITY, SAN LUIS OBISPO
By
CITY OF SAN LUIS OBISPO
sw � •
By
FOUNDATION FOR THE
PERFORMING ARTS CENTER
By
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