HomeMy WebLinkAboutReso 2014-025 - Turtle Bay r
SUMMARY OF
CITY OF REDDING
RESOLUTION NO. 2014-025
The following is a summary Report of the City of Redding's Resolution No. 2014-025, a
resolution of the City Council of the City of Redding approving the execution, delivery and
performance of a Real Estate Purchase and Sale Agreement between the City of Redding and
The McConnell Foundation and authorizing and directing the Mayor of the City of Redding to
execute same.
The resolution:
1. Finds that Addendum Number 4 to the Mitigated Negative Declaration for Use
Permit UP-20-94 adequately addresses CEQA requirements for this action.
2. Hereby approves that certain Real Estate Purchase and Sale Agreement selling the
leased\fee interest to 14.17 acres of City owned property (see attached) to The
McConnell Foundation for $600,000. The Agreement is on file in the Office of
the City Clerk.
3. Authorizes the Mayor of the City of Redding to execute, deliver and perform the
Real Estate Purchase and Sale Agreement and all other documents and
instruments provided for therein.
4. Directs the City Manager to deposit the proceeds from the sale into a job order
account established for the purpose of utilizing the proceeds for the sole purpose
of costs related to capital improvements and deferred maintenance related to the
Civic Auditorium, after reimbursement to the City of contractual costs directly
related to the sale.
A copy of the full resolution containing details of the above summarized content is
available for inspection at the City of Redding, Office of the City Clerk.
DATED:
Pamela Mize, City Clerk
RESOLUTION NO. 2014-025
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDDING
APPROVING THE EXECUTION, DELIVERY AND PERFORMANCE OF
REAL ESTATE PURCHASE AND SALE AGREEMENT BETWEEN THE
CITY OF REDDING AND THE MCCONNELL FOUNDATION AND
AUTHORIZING AND DIRECTING THE MAYOR OF THE CITY OF
REDDING TO EXECUTE SAME
WHEREAS, prior to existence of Turtle Bay Exploration Park (Turtle Bay), science and
natural history museums were a function of the City of Redding (City) and operated as a City
department; and
WHEREAS, in 1992, the City entered into a Ground Lease with the Alliance of Redding
Museums (subsequently Turtle Bay) to construct and operate a museum complex on
approximately 60 acres of land owned by the City; and
WHEREAS, the City funded Turtle Bay in an amount of $690,000 from 1994 through
1999; and
WHEREAS, the City funded Turtle Bay in an amount of $400,000 from 1999 through
2006; and
WHEREAS, the global recession prompted further reductions in the annual funding and
in 2010, all City funding to Turtle Bay was eliminated; and
WHEREAS, The McConnell Foundation (McConnell) has been providing financial
assistance to Turtle Bay in the absence of City funding; and
WHEREAS, Turtle Bay has been actively working to construct a hotel and restaurant on
its campus with the goal of achieving a steady source of income to support the museum and
reduce financial assistance provided by McConnell, and to remain a viable cultural and economic
asset to the City and its residents; and
WHEREAS, on April 30, 2013, the City of Redding received a letter from The
McConnell Foundation (McConnell) offering to purchase City-owned land currently leased to
Turtle Bay Exploration Park (Turtle Bay); and
WHEREAS, on May 7, 2013, the City Council directed staff to negotiate a Buy, Sell or 1
Trade Agreement with McConnell for 4.99 acres of land leased.to Turtle Bay; andJ
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WHEREAS, on June 14, 2013, the City of Redding received a letter from McConnell
offering to exchange approximately 80 acres of land known as a portion of the Gore Ranch O
property for 14.1 acres of land leased to Turtle Bay; and -fes
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WHEREAS, on June 21, 2013 the City Council authorized the Mayor and staff to
continue to negotiate with McConnell regarding the purchase and sale of 14.17 acres of City-
owned land leased to Turtle Bay, whether for property or for cash, and bring back a
recommendation to the City Council for consideration; and
WHEREAS, on October 23, 2013, the City Board of Administrative Review approved
the Tentative Parcel Map (PM-2013-00871) that defined the properties to be sold, consisting of
14.17 acres of land (as well as others to be retained by the City). The Final Map was recorded on
December 17, 2013. Approval of the Tentative Map included adoption of the "Fourth Addendum
to Mitigated Negative Declaration for Use Permit UP-20-94" prepared for the Parcel Map, a
copy of which is attached hereto and by this reference made a part hereof. That addendum
specifically acknowledges that the City is proposing to sell, and the McConnell Foundation is
proposing to buy the property that is subject to the Purchase and Sale Agreement.
WHEREAS, as described in the Fourth Addendum to Mitigated Negative Declaration,
attached hereto, the City has previously granted approvals for the Turtle Bay project ("Prior
Project Approvals"). The proposed sale is consistent with, and further implements the Prior
Project Approvals and is not a new "project" for CEQA purposes. The City conducted
environmental review ("Previous CEQA Documents") on the Prior Project Approvals, as
described in the Fourth Addendum to Mitigated Negative Declaration, attached hereto.
WHEREAS, in order to arrive at a mutually acceptable purchase price that will meet or
exceed the fair market value of City's leased-fee interest in the subject 14.17 acres of property,
together with certain appurtenant rights and interests, the City and McConnell each
independently retained an appraiser to provide an appraisal following identical instructions. The
City's appraiser estimated the fair market value of the City's leased-fee interest at
$443,000. The McConnell Foundation's appraiser valued the property at $75,000. The City and
McConnell subsequently mutually selected and retained a third appraiser who valued the land at
$175,000; and
WHEREAS, following the appraisals of the property, McConnell made a formal offer to
the City to acquire the City's leased fee interest in the subject 14.17 acres of property and certain
appurtenant rights and interests at an agreed fair market value equal to the average of the three
appraisals (i.e., $231,000) which offer includes the payment of additional funds in the amount of
$369,000, for a total payment from McConnell to the City of$600,000; and
WHEREAS, the City and McConnell have negotiated a Real Estate Purchase and Sale
Agreement regarding the purchase and sale of the subject 14.17 acres of City-owned land leased
to Turtle Bay, and appurtenant rights and interests, a copy of which is attached hereto and by this
reference made a part hereof; and
WHEREAS, a copy of the Real Estate Purchase and Sale Agreement is also on file with
the Redding City Clerk.
NOW, THEREFORE, the City Council of the City of Redding hereby RESOLVES
AND ORDERS as follows:
1. The above recitals are true and correct.
2. The City Council finds that the sale is not a new"project", but is in furtherance of
the Prior Project Approvals, and that the Turtle Bay project has been fully
analyzed in the Previous CEQA Documents. The Previous CEQA Documents are
incorporated by reference herein. The Previous CEQA Documents are on file with
the custodian of CEQA records.
3. None of the circumstances necessitating preparation of any additional CEQA
review as specified in CEQA and the CEQA Guidelines, including without
limitation Public Resources Code Section 21166 and CEQA Guidelines Sections
15162 and 15163, are present in that:
a) there are no substantial changes to the project that would result in new
significant environmental impacts or a substantial increase in the severity of
significant impacts already identified in the Previous CEQA Documents;
b) there are no substantial changes in circumstances that would result in new
significant environmental impacts or a substantial increase in the severity of
significant impacts already identified in the Previous CEQA Documents;
and
C) there is no new information of substantial importance, which was not
known and could not have been known with the exercise of reasonable
diligence at the time the Previous CEQA Documents were adopted, which
is expected to result in (a) new significant environmental effects or a
substantial increase in the severity of significant environmental effects
already identified in the Previous CEQA Documents; or (b) mitigation
measures which were previously determined not to be feasible would in fact
be feasible, or which are considerably different from those included in the
Previous CEQA Documents, and which would substantially reduce
significant effects of the project, but the City declines to adopt.
3. The Real Estate Purchase and Sale Agreement is hereby approved.
4. The Mayor of the City of Redding is hereby authorized to execute, deliver and
perform the Real Estate Purchase and Sale Agreement and all other documents
and instruments provided for therein.
5. The City Manager is hereby directed to deposit the proceeds from the sale, into a
job order account established for the purpose of utilizing the proceeds from the
sale for the sole purpose of costs related to capital improvements and deferred
maintenance related to the Civic Auditorium, after reimbursement to the City of
contractual costs directly related to the sale.
6.- The custodian of CEQA records is the Planning Division of the Development
Services Department.
BE IT FURTHER RESOLVED, this Resolution shall take effect thirty (30) days after
its adoption and the City Clerk shall certify the adoption thereof and cause publication of a
summary of the Resolution in the same manner as an ordinance adopted by the City Council.
I HEREBY CERTIFY that the foregoing resolution was introduced, read and adopted at
a regular meeting of the City Council of the City of Redding on the 4th day of March, 2014, by
the following vote:
AYES: COUNCIL MEMBERS: McArthur, Sullivan, &Bosetti
NOES: COUNCIL MEMBERS: Cadd &Jones
ABSENT: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None
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R CK BOSETTI, Mayor
ATTEST: APPROVED AS TO FORM:
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PAMELA MIZE Ci. Clerk tdt RICHARD . DUVERNAY, City Attorney
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V • DEVELOPMENT SERVICES DEPARTMENT
r5 ,. PLANNING DIVISION
ipCc) 777 Cypress Avenue, Redding,CA 96001-271
P.O. Box 496071, Redding, CA 96049-6071
530.225.4020 FAX 530125.4495
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FOURTHADDENDUM TO A MITIGATED NEGATIVE DECLARATION
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Addendum to Mitigated Negative Declaration
for Use Permit UP-20-94,Amendment 3
Turtle Bay Park and Museum
State Clearinghouse No.94-0930006
SUBJECT
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Purchase and Sale Agreement between the City of Redding and The McConnell Foundation and t
associated Parcel Map PM-2013-00871 to further implementation of the Turtle Bay Exploration Park
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Lease and Use Permit UP-20-94,Amendment 3.
TURTLE BAY PROJECT AND ENVIRONMENTAL REVIEW HISTORY
Turtle Bay Exploration Park,formerly known as the Alliance of Redding Museums,has constructed
the TBEP complex on City of Redding-owned property located east of Sundial Bridge Drive,
formerly named Auditorium Drive,and north of State Route 44(SR 44),formerly named State Route
299. The property is zoned"PF-SP-FP"Public Facilities District with Specific Plan and Floodplain
Overlay Districts and"OS-SP-FP"Open Space District with Specific Plan and Floodplain Overlay
Districts. The project was facilitated by the City conveyance of a leasehold to Turtle Bay
Exploration Park(TBEP),entered into on January 7, 1991. The Lease is for a term of 55 years and
is renewable for another 55 years at the option of TBEP. There is presently approximately 88 years
remaining on the lease. The project received its initial use permit approval from the City of Redding
in 1995. That approval was amended at the request of the applicant in 2000 (hereafter referred to
as Amendment 1). An additional amendment was requested in 2003 (Amendment 2). In 2010, a
third amendment was approved to facilitate construction of a 130-room hotel and associated
restaurant and parking facilities(UP-20-94,Amendment 3).
The original Mitigated Negative Declaration(MND)and Initial Study/Environmental Assessment
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prepared for the TBEP project was adopted by the City of Redding Planning Commission on
April l 1,1995. The MND and its supporting documents addressed the entire TBEP project proposed
in 1995, which was much larger in scope than what was subsequently approved and constructed.
The MND addressed impacts of construction of a 50,000-square-foot main museum building with
an additional 15,000 square feet of landscape and hardscape. A future expansion of the main
museum building with 31,000 square feet of enclosed space was also evaluated. The main museum
building was proposed to be located within the Federal Emergency.Management Agency-identified €.
100-year floodplain ofthe Sacramento River. In addition,a 5,000-square-foot retail/service building
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was proposed immediately to the west of the main museum building,also in the 100-year floodplain
of the Sacramento River. Other features evaluated with the 1995 Mitigated Negative Declaration
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included a log-mill exhibit building of 2,100 square feet(the Paul Bunyan Forest Camp building), j
a 162-space parking lot, outdoor exhibits, trails, an easterly gravel access road, a westerly service
access road, improvements to the "Monolith," a boardwalk, a river terrace, and an arrival terrace
area. Overall, the complex was designed to accommodate an ultimate peak attendance of
800,000 annual visitors,with an anticipated opening-year projection of 600,000 visitors.
The physical construction envelope evaluated under the 1995 Mitigated Negative Declaration was }
23.1 acres,of which 6.1 acres would be used for buildings, exhibits,hardscape, and access roads.
The remaining 17 acres would have been temporarily disturbed during construction.
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The original environmental document addressed the air quality impacts associated with development
of the museum complex. Based on the output of the URBEMIS (Urban Emissions) air quality
computer model,it was determined that the project would be under the thresholds established by the
Air Quality Element of the General Plan and that no mitigation measures related to air quality were
required.
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A. REVISIONS TO THE MITIGATED NEGATIVE DECLARATION PROJECT
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DESCRIPTION(Amendment 1,2000)
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An Addendum to the Mitigated Negative Declaration was adopted in 2000 forproposed amendments f
to Use Permit UP-20-94. The impacts evaluated in the 1995 MND were reduced based on the
following changes to the project: `
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1. The size of the ultimate main museum building was reduced from 81,000 square feet to
35,000 square feet(a reduction of 46,000 square feet). The 5,000-square-foot retail/service l
building west of the main museum building was moved out of the 100-year floodplain of the
Sacramento River and became the 7,700-square-foot South Gateway Visitor Center. The Paul
Bunyan Forest Camp building would increase from 2,100 square feet to 3,200 square feet. '
Overall, with the entire complex, the building square footage was reduced from a potential
88,100 square feet to 45,900 square feet(a reduction of 42,200 square feet).
2. The estimate for ultimate peak attendance was reduced from 800,000 to 350,000 annual
visitors (a 56 percent reduction). The opening-year projection was reduced from 600,000 to
205,000 visitors.
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3. The physical construction envelope of 23.1 acres remained unchanged. The permanent
disturbance for buildings,exhibits,hardscape,and access roads was reduced by 0.2 acre(from
6.0 acres to 5.8 acres of permanent disturbance). The temporary disturbance of the remaining
17 acres remained unchanged.
B. USE PERMIT AMENDMENT PROJECT DESCRIPTION(Amendment 2,2003)
In April 2003,the use permit was amended(Amendment 2)to grant approval of construction of a
644-square-foot raptor-cage building and two accessory buildings totaling 300 square feet behind
the South Gateway Visitor Center.
Fourth Addendum to Mitigated Negative Declaration for Use Permit UP-20-99,Amendment 3 Page 2
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C. USE PERMIT AMENDMENT PROJECT DESCRIPTION(Amendment 3,2010)
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Amendment 3 is comprised of the following additions/revisions to the original use permit approval
as amended in 2000 and 2003:
1. Construction of a 130-room,70,000-square-foot,three-story hotel(including 4,000 square feet
of meeting space)to be located on the west side of the Paul Bunyan Forest Camp. The hotel j
would be constructed within existing parking and pedestrian areas.
2. Conversion of the existing South Gateway Visitor Center to a hotel lobby and 80-seat
restaurant.
3. Construction/relocation ofthe visitor center to the north side ofthe museum building,generally
adjacent to the existing cafe. This will become the new museum entry and store. The addition
represents 2,400 square feet of floor area and will be located in an area that currently contains
walkways and landscape.
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4. Reconfiguration of the existing parking lot located adjacent to the Paul Bunyan Forest Camp
and construction of 59 new parking spaces. Attachment"A" includes a site plan illustrating
the proposed hotel and parking-lot reconfiguration/addition.
PROJECT DESCRIPTION-FOURTH ADDENDUM
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The City and The McConnell Foundation desire to further implementation of the TBEP Leasehold
with commercial support uses allowable under TBEP Lease and Use Permit UP-20-94, {
Amendment 3. To facilitate that goal,the City is proposing to sell,and The McConnelI Foundation r
is proposing to buy(at fair market value), a five-acre area of Turtle Bay's leasehold area owned by
the City and currently fully entitled for construction of a 130-room hotel and associated restaurant
and parking facilities(UP-20-94,Amendment 3).
In addition, the City and The McConnell Foundation desire to convey in a similar manner an
additional approximately 9-acre area of the Turtle Bay Leasehold area owned by the City and
anticipated for future development of commercial uses to support TBEP. Beyond what is allowable
pursuant to the TBEP Lease, that project is presently unknown and is to be determined with F
specificity in the unforeseeable future.
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Finally, consistent with prior approvals for the use of land and so as to implement the sale and
transfer of the five-acre and nine-acre areas,the City of Redding proposes with PM-2013-00871 to
merge a number of existing City-owned parcels in the immediate area, totaling approximately g
187 acres, and resubdivide the property into four parcels. This action would remove antiquated E
parcel lines put in place when the City acquired land in the area,long before approval of the TBEP
project. This action is administrative in character and does not change the development potential
for the TBEP Lease or its associated use permit, UP-20-94, Amendment 3. Parcel 3 would be
approximately five acres and conforms exactly to the area entitled for improvement of the Hotel.
Parcel 4 consists of the approximate nine-acre area contemplated for conveyance and development
in the unforeseeable future,with commercial support uses within the TBEP Leasehold. As Parcel 1
and Parcel 2 would remain in City ownership, no development or changes to established uses
are contemplated.
Fourth Addendum to Mitigated Negative Declaration for Use Permit UP-20-94,Amendment 3 Page 3
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DETERMINATION
Based upon a review of the proposed land conveyance transaction and associated Parcel Map
PM-2013-00871, it has been determined that an Addendum is appropriate because none of the
following conditions(pursuant to CEQA Section 15162)have occurred:
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1. Substantial changes are proposed for the project that will require major revision of the previous
Mitigated Negative Declaration due to new,significant environmental effects or a substantial
increase in the severity of previously identified effects. No changes are being proposed for
the TBSP project. The sale and subdivision of the land will have no effect upon TBEP Lease
or Use Permit UP-20-94,Amendment 3, and are simply implementing actions associated with
prior approval of the TBSP Lease and the Hotel Project. CEQA review is not required or
retriggered on each subsequent date that a public agency takes some action toward
implementing previously approved projects. Van de Camp Coalition v. Board of Trustees of
Los Angeles Community College District, 206 Cal.App.4th 1036(2012). €
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2. Substantial changes occur with respect to the circumstances under which the project is I
undertaken that involve new,significant environmental effects or a substantial increase in the
severity of previously identified effects. There are no changes to the circumstances under E
which the project will be undertaken. The sale and subdivision of the land will not create any j
new significant effects or any increase in severity ofpreviously identified effects. With respect (�
to the nine-acreparcel proposed for conveyance,property disposal alone is not a project if too
little is known about environmental impacts to which it might lead(i.e.,future development)
to allow those impacts to be meaningfully analyzed. Friends of Sierra R.R. v. Tuolumne Park j
and Recreation Dist., 147 Cal.AppAth 643 (2007). No future development plans for the
nine-acre parcel have been identified.
3. New information of substantial importance indicates that:
a. The project will have one or more significant effects not discussed in the previous
Mitigated Negative Declaration. A11 the significant effects are adequately discussed and
evaluated in the 1995 Mitigated Negative Declaration, 2000 Addendum, 2003 Second
Addendum, and 2010 Third Addendum and their supporting documents.
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b. Significant effects previously examined will be substantially more severe than shown in €
the previous Mitigated Negative Declaration All the significant effects previously s
identified have been mitigated in accordance with prior approved Mitigation Monitoring
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Program. �
C. Mitigation measures previously found not to be feasible would,in fact,be feasible and
would substantially reduce one or more significant effects of the project,but the project
proponents decline to adopt them. The Mitigation Monitoring Program adopted with the
MND has been implemented. None of the mitigation measures were determined to be
infeasible. E
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Fourth Addendum to Mitigated Negative Decdaration for Use Permit UP-20-94,Amendment 3 Page 4
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d. Mitigation measures that are considerably different from those analyzed in the previous
Mitigated Negative Declaration would substantially reduce one or more significant
effects,but the project proponents decline to adopt them. No additional or considerably
different mitigation measures are proposed or necessary for the sale and subdivision of
the land.
FINDINGS
1. The City of Redding has determined that an Addendum is warranted,finding that none
of the above conditions are in evidence and that there is no substantial evidence that the
this project will have a significant effect on the environment.
2. The Addendum to the Mitigated Negative Declaration and its supporting documentation
reflect the independent judgment and analysis of the City of Redding.
PUBLIC REVIEW DISTRIBUTION
Pursuant to Section 15164(c)of the CEQA Guidelines, an Addendum does not require circulation
for public review. The original adopted Mitigated Negative Declaration and Initial
Study/Environmental Assessment are attached.
Copies of the Addendum, the 1995 Mitigated Negative Declaration, 1995 Initial
Study/Environmental Assessment, and 2000 Addendum may be obtained at the Planning
Division of the Development Services Department, City of Redding, 777 Cypress Avenue,
Redding, CA 96001. Contact Senior Planner Kent Manuel at(530)225-4020.
JMj,"A,a & IOL13(f
Douglas DeMallie Date
Planning Manager
ATTACHMENTS
A. Location Map
B. Site Plan
KM:amf
Envirdccl3\MND-adndm4-TurtleBay-COR.wpd
c: Mike Warren
Lee Salter
Fourth Addendum to Mitigated Negative Declaration for Use Permit UP-20-94,Amendment 3 Page 5
REAL ESTATE PURCHASE AND SALE AGREEMENT
This Real Estate Purchase and Sale Agreement ("Agreement"), dated for reference
purposes only as of February 20, 2014, is made by and between the City of Redding, a municipal
corporation ("Seller") and The McConnell Foundation, a California non-profit corporation
('Buyer"). The date this Agreement is mutually executed and delivered by both parties is
hereinafter sometimes referred to as the "Effective Date."
RECITALS
A. Seller is the owner of approximately 14.17 acres of land in the City of Redding,
County of Shasta, State of California, legally described as Parcel 3 and Parcel 4 as shown on
Parcel Map No. 2013-00871, Being a Portion of Sections 11 and 13 of the P.B. Reading Grant in
the City of Redding, Shasta County, California, filed for record in the office of the County
Recorder on December 17, 2013, in Book 38 of Parcel Maps, at Page 100, Shasta County
Records (the "Property"). The Property, together with certain other land owned by the Seller, is
leased to Turtle Bay Exploration Park ("Turtle Bay") pursuant to that certain Ground Lease,
dated January 7, 1992, between the City and Turtle Bay, successor-in-interest to Alliance of
Redding Museums, as amended (collectively,the "Ground Lease").
B. Buyer desires to purchase the Property subject to all of the terms and conditions
of the Ground Lease, and Seller desires to sell such property to Buyer, on the terms and
conditions set forth herein.
NOW, THEREFORE, Seller and Buyer agree as follows:
1. Property Purchased and Sold. Seller agrees to sell the Property to Buyer, and
Buyer agrees to purchase the Property from Seller, on the terms and conditions set forth herein.
Such purchase and sale shall include all rights, privileges and easements appurtenant to the
Property, including but not limited to, all mineral, air and water rights, all of Seller's rights and
obligations under the Ground Lease (insofar as they relate to the Property), all of Seller's interest
in all licenses, permits, approvals, entitlements, and development rights relating to the Property,
and the Additional Appurtenant Easements provided for below (collectively, the "Appurtenant
Rights and Interests").
2. Assignment and Assumption of Lessor's Interest Under Ground Lease. The
Property, including all Appurtenant Rights and Interests, shall be conveyed to Buyer subject to
all applicable terms and conditions of the Ground Lease. At the Closing, Seller shall assign to
Buyer, and Buyer shall assume from Seller, all of the Landlord's rights and obligations under the
Ground Lease insofar as they relate to the Property. Such assignment and assumption shall be
accomplished by way of an assignment and assumption agreement in form and substance
reasonably acceptable to Buyer and Seller (the "Assignment and Assumption of Lessor's Interest
in Ground Lease"). From the date of the Closing and thereafter, Seller shall retain all of the
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Landlord's rights and obligations under the Ground Lease to the extent they apply to the portions
of Seller's real property other than the Property.
3. Buyer's Pam.
3.1. At the Close of Escrow, Buyer shall pay to Seller the total sum of SIX
HUNDRED THOUSAND AND 00/100 DOLLARS ($600,000.00) in immediately available
funds ('Buyer's Payment").
3.2. The parties have obtained three separate independent appraisals of the fair
market value of Seller's leased fee interest in the Property and the Appurtenant Rights and
Interests. The fair market values determined by such appraisals are as follows: (a) FMV
Opinions, Inc. - $75,000.00; (b) Duff& Phelps, LLC - $175,000.00; and (c) Shaw&Associates,
Inc. - $443,000.00. Seller and Buyer acknowledge that appraisal opinions typically vary, and.
agree that, when three appraisals are obtained for purposes of determining the fair market value
and purchase price of real property, it is accepted practice to average the values determined by
the appraisals (either all three of the values or the closest two), or to select the middle of the three
appraised values. Seller and Buyer hereby agree that the fair market value of Seller's leased fee
interest in the Property and the Appurtenant Rights and Interests is the sum of TWO HUNDRED
THIRTY-ONE THOUSAND AND 00/100 DOLLARS ($231,000.00), which is the average of
the three fair market values determined by the appraisals referred to above (the "Agreed Fair
Market Value of the Property"). Seller and Buyer agree that the purchase price for the Seller's
leased fee interest in the Property and the Appurtenant Rights and Interests shall be the Agreed
Fair Market Value of the Property (subject, however, to possible adjustment as provided in this
Section 3, below).
3.3. Buyer has elected to pay Seller THREE HUNDRED . SIXTY-NINE
THOUSAND AND 00/100 DOLLARS ($369,000.00) more than the Agreed Fair Market Value
of the Property in light of potential claims by third parties that any future construction on the
Property will be subject to the payment of prevailing wages pursuant to the California Prevailing
Wage Law(California Labor Code §§ 1720 et seq.) ("Prevailing Wage Law").
3.4. For purposes of this Agreement, the term "Excess Payment" means the
portion of Buyer's Payment that exceeds the Agreed Fair Market Value of the Property, and the
term "Construction Project" means any construction, alteration, demolition, installation or repair
work on the Property. The Excess Payment shall be deemed to be paid by Buyer and accepted
by Seller as (a) a reimbursement of all costs and expenses, if any, incurred by Seller in
connection with this transaction that exceed (i) the costs and expenses normally and customarily
incurred and borne by Sellers of real property in Shasta County, California, and (ii) the costs and
expenses paid or reimbursed by Buyer outside of Escrow or pursuant to other provisions of this
Agreement, and (b) consideration for the elimination of any public subsidy, payment or gift of
public funds to or for the benefit of Turtle Bay, Buyer, and/or any Construction Project for
purposes of the Prevailing Wage Law relating to the Ground Lease, any amendments or addenda
to the Ground Lease, the rescission of any amendments or addenda to the Ground Lease, the
Agreed Fair Market Value of the Property, and/or the transaction provided for herein. To the
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extent the Excess Payment is not necessary for any of the purposes described in clauses (a) and
(b) of this subsection 3.4, above, it shall be deemed to be a gift from Buyer to Seller.
4. Payment. Buyer's Payment shall be paid through the Escrow as follows:
4.1. Within five (5) days after the Effective Date, Buyer shall deliver to the
Escrow Agent the sum of Ten Thousand Dollars ($10,000.00) by wire transfer or check. Said
amount shall represent Buyer's deposit on account of the Buyer's Payment (the "Deposit"). The
Deposit shall be held in an FDIC insured interest bearing account having no penalty for early
withdrawal. The Deposit and all accrued interest thereon shall be applied and credited against
the Buyer's Payment or otherwise applied, credited or disbursed as hereinafter provided:
4.2. At least one (1) business day prior to the Close of Escrow, Buyer shall
deliver to the Escrow Agent cash or other immediately available fun_ds in an amount equal to the
Buyer's Payment, less the Deposit and all accrued interest thereon (the "Balance of the Buyer's
Payment").
4.3. The Buyer's Payment, less all charges to Seller's account provided for
herein, will be distributed to Seller from the Escrow upon the Close of Escrow.
5. Independent Contract Consideration. Buyer shall deposit into Escrow,
concurrently with and in addition to the Deposit, the amount of One Thousand Dollars
($1,000.00) (the "Independent Contract Consideration"). The Independent Contract
Consideration shall be nonrefundable to Buyer as independent consideration for the rights
extended to Buyer hereunder, including, without limitation, the right to terminate this Agreement
as provided herein. The Independent Contract Consideration shall be disbursed to Seller
immediately following Buyer's deposit thereof into Escrow. In all instances in which this
Agreement is terminated and the Deposit is returned to Buyer, Seller shall be entitled to retain
the Independent Contract Consideration. The Independent Contract Consideration shall not be
applicable to the Buyer's Payment or treated as consideration given by Buyer for any purpose
other than as provided herein.
6. Escrow. Buyer and Seller shall promptly open an escrow ("Escrow") with
Fidelity National Title Insurance Company, .2070 Churn Creek Road, Suite C, Redding,
California 96002 (the "Escrow Agent"). Buyer and Seller shall each execute and deliver to the
Escrow Agent such escrow instructions as the Escrow Agent may reasonably require in order to
consummate the purchase and sale of the Property in accordance with the terms of this
Agreement. The escrow instructions shall not modify or amend the provisions of this
Agreement, and in the event of any conflict between any escrow instructions and this Agreement,
this Agreement will control.
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7. Close of Escrow.
7.1. The purchase and sale of the Property will be accomplished through the
Escrow. "Close of Escrow" or "Closing" is defined to be the date the grant deed from Seller to
Buyer, on the Title Company's standard form (the "Grant Deed"), is recorded in the Official
Records of Shasta County, California (the "Official Records"). The Grant Deed shall be
recorded and the Escrow shall close on or before thirty (30) days following the Effective Date
(the "Closing Date"); provided, however, that either parry shall have the right to extend the
Closing Date for a single period of up to thirty (30) days if it requires additional time to perform
any of its obligations hereunder and/or to satisfy any conditions to its obligation to sell or buy the
Property, as the case may be. In the event either party extends the Closing Date pursuant to the
foregoing, the other parry shall not thereafter have the right to further extend the Closing Date.
Seller or Buyer shall exercise its extension right hereunder, if at all, by delivering written notice
thereof to the other parry and the Escrow Agent no later than ten(10) days prior to the originally
scheduled Closing Date.
7.2. Concurrently with the execution and delivery of this Agreement, Seller
has delivered to Buyer and the Escrow Agent copies of one or more resolutions adopted by the
Redding City Council (the "Council Resolutions") and the Redding Joint Powers Financing
Authority (the "JPA") (the "JPA Resolutions"), certified to be true and correct by the Redding
City Clerk: (a) in the case of the Council Resolutions (i) approving the execution, delivery and
performance of this Agreement, and all other documents and instruments provided for herein, by
Seller, and(ii) authorizing and directing the Mayor of the City of Redding to execute, deliver and
perform this Agreement, and all other documents and instruments provided for herein, on behalf
of the Seller; and(b) in the case of the JPA Resolutions (i) approving the Additional Appurtenant
Easement to be granted to Buyer by JPA, and the Additional Appurtenant Easement Documents
relating thereto, as provided in Section 12 below, and (ii) authorizing and directing the President,
Chairman or other authorized representative of the JPA to execute and deliver such Additional
Appurtenant Easement Documents on behalf of the JPA. Seller shall deposit the following items
with the Escrow Agent at least two (2) days prior to the Close of Escrow, and shall cause such
items to be recorded and/or delivered to Buyer at the Close of Escrow:
7.2.1 The Grant Deed, duly executed and acknowledged by the Seller,
conveying fee title to the Property to Buyer, subject only to the Permitted Exceptions (as defined
in subsection 8.6,below);
7.2.2. A counterpart of the Assignment and Assumption of Lessor's
Interest in Ground Lease, duly executed and acknowledged by Seller;
7.2.3. Original counterparts of the Additional Appurtenant Easement
Documents (as defined below), duly executed and acknowledged by Seller and/or the JPA as the
case may be;
7.2.4. Such other assignments, bills of sale, certificates of title and other
instruments of transfer, all in form reasonably satisfactory to Seller and Buyer, duly executed and
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acknowledged by Seller, as are necessary to convey fully and effectively to Buyer the Property
and the Appurtenant Rights and Interests in accordance with the terms hereof; and
7.2.5. Such other certificates, assurances, consents and documents as are
usual and customary in Shasta County, California and may reasonably be required by the Buyer,
Escrow Agent, or Title Company in connection with the consummation of the transactions
contemplated hereby, including, but not limited to, any affidavits or other instruments required
by the Title Company to enable it to issue the Title Policy to Buyer.
7.3. Buyer shall deposit the following items with the Escrow Agent at least two
(2) days prior to the Close of Escrow, and shall, except for the funds provided for in subsection
7.3.2 and any fees or costs payable by Seller hereunder, cause such items to be delivered to
Seller at the Close of Escrow:
7.3.1. The Balance of the Buyer's Payment in immediately available
funds;
7.3.2. Immediately available funds in an amount sufficient to pay the fees
and costs payable by Buyer under this Agreement;
7.3.3. A counterpart of the Assignment and Assumption of Lessor's
Interest in Ground Lease, duly executed and acknowledged by Buyer; and
7.3.4. Such other and further certificates, assurances, consents and
documents as are usual and customary in Shasta County, California and may reasonably be
required by Seller, the Escrow Agent, or Title Company in connection with the consummation of
the transaction contemplated hereby.
8. Preliminary Report, Title Insurance.
8.1. Seller has caused Fidelity National Title Insurance Company (the "Title
Company") to deliver to Buyer that certain Preliminary Report, Order No. 13-152751-PM, with
an Effective Date as of September 25, 2013, covering the Property and contemplating the
issuance of an ALTA Standard Coverage Owner's Policy of Title Insurance (6-17-2006) (the
"Preliminary Report"), together with copies of all items listed on the schedule of exceptions to
title insurance coverage therein.
8.2. For purposes of this Agreement, the following terms have the following
meanings: (i) "Monetary Encumbrances" means all mortgages, deeds of trust, judgment liens,
mechanic's liens, tax liens, bonds, assessments, security interests, and other monetary liens or
encumbrances, and all related documents and instruments, whether recorded or unrecorded,
against or relating to (A) the Property or any Appurtenant Rights or Interests, or (B) any lease of
or affecting the Property (other than the taxes, assessments, and liens referred to in Exception
Nos. 1, 7 and 8 of the Preliminary Report); (ii) "Purchase Options" means all options to
purchase, rights of first refusal, and other rights to purchase the Property, or any Appurtenant
Rights or Interests, or any portion thereof or interest therein, whether recorded or unrecorded;
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(iii)"Restrictions on Alienation"means all restrictions on the ability of the owner of the Property
to lease, sell, or otherwise convey the Property, whether recorded or unrecorded, and whether or
not contingent upon the approval of any third party; (iv) "Ground Lease" has the meaning given
to it in Recital A, above; and (v) "Other Encumbrances" means all special exceptions to title
insurance coverage disclosed in the Preliminary Report or any amendment or supplement thereto
other than Monetary Encumbrances, Purchase Options, Restrictions on Alienation, the Ground
Lease, the Reserved Easements (as defined below), and Exception Nos. 1 through 8 of the
Preliminaty Report.
8.3. Buyer hereby disapproves of all Monetary Encumbrances, Purchase
Options, and Restrictions on Alienation. No other disapproval notice is required with respect to
any Monetary Encumbrances, Purchase Options, or Restrictions on Alienation. On or before the
Closing, Seller shall cause all Monetary Encumbrances, Purchase Options, and Restrictions on
Alienation, if any, to be terminated, released, reconveyed, and eliminated of record.
Notwithstanding the foregoing,'Buyer does not disapprove and Seller shall have no obligation to
cause the right of first refusal contained in the Ground Lease to be terminated, released, and
eliminated of record. The parties confirm and agree that Turtle Bay has delivered to Seller and
Buyer a written waiver of such right of first refusal as to the transaction provided for herein. The
Close of Escrow and Buyer's obligation to purchase the Property shall be contingent upon
Buyer's receipt of an endorsement to the Title Policy insuring against loss arising out of the
exercise of such right of first refusal in connection with the transaction provided for herein.
8.4. On or before twenty (20) days prior to the Closing Date (as the same may
be extended), Buyer shall notify Seller, in writing, of any Other Encumbrances Buyer objects to
and is unwilling to accept at the Closing (each a "Disapproved Exception") ("Buyer's Title
Notice"). If Buyer fails to deliver Buyer's Title Notice within such time period, Buyer shall be
conclusively deemed to have approved of the Other Encumbrances shown in the Preliminary
Report. Within ten (10) days following delivery of a Buyer's Title Notice, Seller shall notify
Buyer, in writing, with respect to each Disapproved Exception, of Seller's election to either (a)
remove the Disapproved Exception prior to the Closing (in which event Seller shall thereafter
remove such Disapproved Exception prior to the Closing); or (b) decline to remove any such
Disapproved Exception ("Seller's Title Response"). If Seller fails to deliver Seller's Title
Response within said ten (10) day period, Seller shall be deemed to have declined to remove the
Disapproved Exception(s). If Seller declines or is deemed to have declined to remove one or
more of the Disapproved Exceptions, Buyer may elect to either terminate this Agreement and the
Escrow or to accept title to the Property subject to the Disapproved Exception(s). Buyer shall
exercise such right by delivering written notice to Seller within five (5) days following the date
' Seller declines or is deemed to have declined to remove any Disapproved Exception(s). If Buyer
fails to deliver a written notice to Seller within said five (5) day period wherein Buyer elects to
accept title to the Property subject to the Disapproved Exception(s), Buyer shall be deemed to
have elected to terminate this Agreement and the Escrow. If Buyer elects or is deemed to have
elected to terminate this Agreement and the Escrow pursuant to this subsection, the Deposit and
all accrued interest thereon shall be returned to the Buyer, and neither party shall have any
further liability or obligations under this Agreement, except as otherwise provided herein.
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. � 0 •
8.5. Upon the issuance of any amendment or supplement to the Preliminary
Report which adds additional Other Encumbrances, the foregoing right of review and approval
shall also apply to said amendment or supplement, provided however, that Buyer's initial period
of review and approval or disapproval of any such additional exceptions shall expire on the later
of five (5) days following receipt of written notice of such additional exceptions together with
full and complete copies thereof, or twenty (20) days prior to the Closing Date (as the same may
be extended).
8.6. At the Closing, and as a condition thereto and Buyer's obligation to
purchase the Property, Seller shall cause the Escrow Agent to deliver to Buyer an ALTA
Standard Coverage Owner's Policy of Title Insurance (6-17-2006) issued by the.Title Company.
Such policy of title insurance shall have a liability in the amount of the Agreed Fair Market
Value of the Property, and show title to the Property and the Appurtenant Rights and Interests
(including the Additional Appurtenant Easements) vested in Buyer, subject only to (a) Exception
Nos. 1 through 8 of the Preliminary Report, (b) the Ground Lease, (c) any matters shown on
Parcel Map No. 2013-00871 as referred to in Recital A, above (the "Parcel Map"), (d) the
Reserved Easements (as defined below), and (e) any Other Encumbrances which are approved or
deemed approved of by Buyer as provided above (collectively, the "Permitted Exceptions"). The
parties confirm and agree that the title insurance policy issued to Buyer at the Closing may not
include any exceptions to coverage relating to Monetary Encumbrances (except to the extent
provided for in Exception Nos. 1 through 8 of the Preliminary Report), Purchase Options (except
as set forth in the Ground Lease), or Restrictions on Alienation (including but not limited to,
Exception Nos. 22, 23, 24, and 27 in the Preliminary Report, all of which must be removed prior
to the Closing). Such policy of title insurance shall also include a Form 116.7 Subdivision Map
Act endorsement for each of Parcel 3 and Parcel 4 as described in Recital A, above, the
endorsement relating to the Turtle Bay right of first refusal referred to above, and such other
endorsements as Buyer deems advisable in Buyer's reasonable discretion. Buyer shall have the
right to obtain an extended coverage policy of title insurance in lieu of a standard coverage
policy of title insurance provided that (i) the Closing.Date shall not be extended as a result of or
in order to accommodate the issuance of any such policy (except as may otherwise be allowed by
subsection 7.1, above); (ii) Buyer shall, prior to the Closing Date and at Buyer's sole cost and
expense, satisfy all survey and other requirements, if any, imposed by the Title Company as a
condition to.the issuance of such extended coverage policy; and (iii) Buyer shall pay all portions
of the premium for such extended coverage policy. In the event such requirements are met, the
title insurance policy issued to Buyer at the Close of Escrow shall not include Exception Nos. 1
through 6 of the Preliminary Report (either as general or special exceptions to coverage). The
policy of title insurance and endorsements provided for in this subsection shall be referred to
herein collectively as the "Title Policy."
9. Seller's Property Documents. Prior to the Effective Date, Seller has delivered the
following to Buyer: (a) a Natural Hazard Disclosure Report prepared by DisclosureSource, Inc.
(or other reputable vendor)with respect to the Property; and(b) true, correct and complete copies
of all environmental impact studies and reports, surveys, and geological, archeological, and
biological studies and reports relating to the Property, all "Phase I", "Phase II" and other studies,
assessments, or reports relating to the environmental condition of the Property, and all
architectural, engineering, grading and other plans and similar data relating to the Property,
7
which are in Seller's possession or are reasonably available to Seller (collectively, "Seller's
Property Documents"). In the event Seller prepares or acquires any of the foregoing or similar
items after the Effective Date, Seller shall promptly deliver copies thereof to Buyer.
10. Entry, Inspection and Approval Rights.
10.1. Prior to the Close of Escrow, Buyer and Buyer's employees, agents,
consultants, independent contractors and lenders shall have the non-exclusive right to enter upon
the Property to conduct all inspections and investigations of the Property as Buyer deems
necessary or advisable in its sole discretion. Any such inspection or investigation may only be
conducted after providing reasonable notice to Seller's tenant and shall not adversely affect the
tenant's activities on the premises. Such inspections and investigations may include, but shall
not be limited to, Phase 1, Phase 2 and other environmental site assessments. All costs
associated with such inspections and investigations shall be borne by Buyer.
10.2. Buyer's obligation to purchase the Property is expressly conditioned upon
Buyer's approval, in its reasonable discretion, of any and all matters disclosed by Seller's
Property Documents and/or any inspections and investigations of the Property Buyer elects to
undertake. In the event Buyer disapproves of any such items, Buyer shall deliver written notice
thereof to Seller and the Escrow Agent on or before the Closing Date (as the same may be
extended). If Buyer fails to deliver a written notice of disapproval to Seller and the Escrow
Agent within such time period, Buyer shall be deemed to have approved of all of the Seller's
Property Documents delivered to Buyer and Buyer's inspections and investigations of the
Property, and this transaction shall proceed. If Buyer delivers a written notice of disapproval to
Seller within such time period, then this Agreement shall terminate, the Deposit and all accrued
interest thereon shall be returned to Buyer, and neither party shall have any further liability or
obligation under this Agreement except as otherwise provided herein.
10.3. Buyer agrees to indemnify, defend,protect and hold Seller, Seller's tenant,
and the Property harmless from and against all liability, loss, damage, expense or claims,
including reasonable attorneys' fees, to the extent caused by the negligent acts or willful
misconduct of Buyer, its agents, employees, lenders, independent contractors or assigns in
connection with any entry onto the Property pursuant to the license granted under this Section
10. Buyer's obligations under this subsection 10.3 shall survive the Close of Escrow or any
earlier cancellation or termination of this Agreement.
11. Seller's Representations and Warranties. Seller hereby represents and warrants to
Buyer that the following are true and correct as of the date hereof and, except as otherwise
required or permitted elsewhere herein, shall be true and correct as of the Close of Escrow:
11.1. Seller has the legal power, right and authority to enter into this Agreement
and the instruments referenced herein, and to consummate the transactions contemplated hereby,
and all requisite action (municipal or otherwise) has been taken by Seller in connection with the
entering into of this Agreement, the instruments referenced herein, and the consummation of the
transactions contemplated hereby. No consent of any council, board, management or other
committee, beneficiary, creditor, judicial or administrative body, authority or other party is
8
required (except to the extent a quitclaim deed or other document sufficient to terminate and
remove Exception No. 27 of the Preliminary Report is required from the Natural Resources
Agency). Seller's execution and delivery of this Agreement, and the performance of its
obligations hereunder, will not (a) conflict with or violate any statute, law, municipal code, rule,
regulation, or policy applicable to Seller or the Property, or (b) violate or result in the breach or
the termination of, or otherwise give any contracting party the right to terminate or declare a
default under the terms of, any written agreement relating to the Property to which Seller is a
party or by which the Property may be bound. This Agreement and all documents required
hereby to be executed by Seller are and shall be valid, legally binding obligations of and
enforceable against Seller in accordance with their terms, subject only to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles affecting or
limiting the rights of contracting parties generally.
11.2. ' To the best of Seller's knowledge and belief, Seller has and will convey to
Buyer at the Closing good and marketable fee title to the Property and Appurtenant Rights and
Interests, free and clear of all liens, claims, encumbrances, covenants, conditions, restrictions,
reservations, easements, encroachments, rights or rights-of-way of any nature whatsoever,
whether recorded or unrecorded, except for real property taxes not yet delinquent, the Ground
Lease, and the Other Encumbrances disclosed in the Preliminary Report.
11.3. To the best of Seller's knowledge and belief, there are no recorded or
unrecorded contracts or agreements relating to the ownership; occupancy, use, operation,
maintenance or performance of services on or with respect to the Property or any Appurtenant
Rights or Interests, except for the Ground Lease, and the Other Encumbrances disclosed in the
Preliminary Report.
11.4. No person or entity has any right to possess and/or occupy all or any part
of the Property, except for Turtle Bay and its sublessees, if any, pursuant to the Ground Lease.
11.5. Except for the right of first refusal provided for in the Ground Lease,there
are no Purchase Options applicable to the Property.
11.6. Except as disclosed by Exception No. 27 of the Preliminary Report, there
are no Restraints on Alienation applicable to the Property.
11.7. To the best of Seller's knowledge and belief, Seller's Property Documents
are and shall be true, correct, and complete in all material respects.
11.8. To the best of Seller's knowledge and belief: (a) there has been no
storage, treatment, use, disposal or release on or under the Property of any Hazardous Substances
by Seller or any tenant or previous owner or tenant of the Property; (b) there are no Hazardous
Substances present in the soil and/or groundwater on or under the Property; (c) there are no
pending or threatened lawsuits, governmental investigations or other proceedings relating in any
way to the presence, storage, treatment, disposal or release'of any Hazardous Substances on or
under the Property or any adjoining real property; and (d)there have been no communications or
agreements with any federal, state or local governmental agency or any private person or entity
9
(including, without limitation, any prior owner of the Property or any adjoining real property and
any present or former occupant of the Property or any adjoining real property) relating in any
way to the presence, storage, treatment, disposal or release of any Hazardous Substances on or
under the Property or any adjoining real property. For purposes of this Agreement, (a) the term
"Hazardous Substances" means any material, substance or waste designated as hazardous,toxic,
radioactive, injurious or potentially injurious to human health or the environment, or as a
pollutant or contaminant, or words of similar import, under any Environmental Law, including,
but not limited to, petroleum and petroleum products, asbestos, mold, lead, polychlorinated
biphenyls, urea formaldehyde, radon gas, radioactive matter, medical waste, and chemicals
which may cause cancer or reproductive toxicity, and (b) the term "Environmental Laws" means
any federal, state or local law, statute, regulation or ordinance now or hereafter in force
pertaining to materials, substances or wastes which are injurious or potentially injurious to
human health or the environment or the release, disposal or transportation of which is otherwise
regulated by any agency of the federal, state or any local government with jurisdiction over the
Property or any such material, substance or waste removed therefrom, or in any way pertaining
to pollution or contamination of the air, soil, surface water or groundwater.
11.9. To the best of Seller's knowledge and belief, Seller and the Property are in
full and complete compliance with.all federal, state and local laws, ordinances, rules and
regulations applicable to the Property, including, without limitation, the California Subdivision
Map Act(Cal. Govt. Code §§(6410, et seq.) and all Environmental Laws.
11.10 There are no actions, suits,proceedings or investigations pending or,to the
best of Seller's knowledge and belief, threatened against or affecting the Property and/or
Appurtenant Rights or Interests in any court or before or by any governmental department,
board, agency, or instrumentality, or any arbitrator.
11.11. To the best of Seller's knowledge and belief, there are no prohibitions of
or impediments to the transfer or assignment of the Property, the Appurtenant Rights and
Interests, or the Additional Appurtenant Easements, or any portion thereof, and the Property;
Appurtenant Rights and Interests, and Additional Appurtenant Easements are otherwise fully
transferable and assignable.
11.12. Seller has complied, or shall comply prior to the Closing, with all statutes,
laws, ordinances, rules, and regulations applicable to Seller and/or the sale of the Property by
Seller to Buyer hereunder, and has satisfied, or shall satisfy prior to the Closing, all conditions
precedent to such sale of the Property required by law.
The foregoing representations and warranties of Seller shall survive the Close of Escrow
and the recording of the Grant Deed in the Official Records.
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12. Additional Easements.
12.1. At the Closing, Seller shall reserve the perpetual, non-exclusive easements
described and shown as Easements "A" "B" "C" "D" "E" "F" and "G" on Sheets 1 8 9 and
10 of the Parcel Map (the `.`Reserved Easements").
12.2. At the Closing, Seller shall grant to Buyer, and shall, at Seller's expense,
cause the JPA to grant to Buyer, certain perpetual, non-exclusive easements in, on, across and
under real property that adjoins the Property. Such easements will be appurtenant to the Property
and are shown and further described in the figure entitled "Appurtenant Easements to be Granted
at the Time of Transfer of Ownership" attached hereto as Exhibit "A" (collectively, the
"Additional Appurtenant Easements"). The parties acknowledge that one of the Additional
Appurtenant Easements will burden property that is owned by the JPA and leased to Seller. At
the Closing, Seller shall subordinate its rights under the lease between Seller and the JPA to such
Additional Appurtenant Easement. The parties acknowledge that all of the Additional
Appurtenant Easements will burden property that is leased to Turtle Bay pursuant to the Ground
Lease. The parties agree to use their best efforts to cause Turtle Bay to subordinate its rights
under the Ground Lease to the Additional Appurtenant Easements at the Closing. The terms and
conditions of the documents and instruments creating such Additional Appurtenant Easements
and any required subordinations by the Seller and/or Turtle Bay (collectively, the "Additional
Appurtenant Easement Documents") shall be subject to approval 'of the parties in their
reasonable discretion.
12.3. Buyer and Seller confirm and agree that the fair market value of Seller's
leased fee interest in the Property and the Appurtenant Rights and Interests, and the Buyer's
Payment, have been determined taking into account the Reserved Easements and the Additional
Appurtenant Easements provided for herein, and that neither party shall be obligated to pay any
additional consideration to the other in connection therewith.
13. Additional Covenants of Seller Pending the Closing. Prior to the Close of
Escrow, Seller will not, without the prior written consent of Buyer: (a) enter into any leases,
licenses, or other obligations or agreements affecting or involving the Property; (b) convey any
interest in the Property and/or subject the Property to any additional liens, encumbrances,
covenants, conditions, easements, rights of way or similar matters; or(c) construct or modify any
improvement on the Property.
14. Conditions to Buyer's Obligations. The following are conditions to the Close of
Escrow and the obligation of Buyer to purchase the Property:
14.1. Buyer shall have approved or be deemed to have approved of all Other
Encumbrances (except for those Seller has agreed to remove) pursuant to Section 8, above;
14.2. On or before the Closing, Buyer shall have approved or be deemed to have
approved of Seller's Property Documents and Buyer's inspections and investigations of the
Property pursuant to Section 10, above;
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14.3. Buyer and Seller.shall have mutually agreed to the terms and conditions of
the documents and instruments necessary to create the Reserved Easements and the Additional
Appurtenant Easement Documents pursuant to Section 12, above, and all such documents and
instruments shall have been duly recorded in the Official Records on or before the Close of
Escrow;
14.4. Seller and Turtle Bay shall have executed, acknowledged, and delivered
such documents and instruments as may be necessary to subordinate their leasehold rights to the
Additional Appurtenant Easements as provided for and referred to in Section 12, above, and all
such documents and instruments shall have been duly recorded in the Official Records on or
before the Close of Escrow;
14.5. The Title Company shall have issued the Title Policy to the Buyer as of
the Close of Escrow;
14.6. There shall have been no material adverse change in the condition of or
title to the Property prior to the Close of Escrow; and
14.7. On or before the Closing, Seller shall have performed all of its obligations
under this Agreement required to be performed on or before the Close of Escrow, and, except as
otherwise provided herein, the Seller's representations and warranties hereunder shall be true at
and as of the Close of Escrow as if made as of such time.
Except as provided in Section 15, below, the foregoing conditions are created for the
benefit of the Buyer only. Such conditions may be waived by the Buyer in writing to Seller and
the Escrow Agent.
15. Conditions to Seller's Obligations. The following are conditions to the Close of
Escrow and the obligation of Seller to sell the Property:
15.1. Buyer and Seller shall have mutually agreed to the terms and conditions of
the documents and instruments necessary to create the Reserved Easements and the Additional
Appurtenant Easement Documents pursuant to Section 12, above, and all such documents and
instruments shall have been duly recorded in the Official Records on or before the Close of
Escrow; and
15.2. On or before the Closing, Buyer shall have performed all of its obligations
under this Agreement required to be performed on or before the Close of Escrow.
Except as provided in Section 14, above, the foregoing conditions are created for the
benefit of the Seller only. Such conditions may be waived by the Seller in writing to Buyer and
the Escrow Agent.
16. Failure of Conditions. If any condition specified in Section 14 or 15, above, is not
satisfied or waived within the applicable time limit provided, then Buyer, if Buyer is not then in
default of any of its obligations under this Agreement, or Seller, if Seller is not then in default of
12
any of its obligations under this Agreement, may thereafter terminate the Escrow and this
Agreement by giving written notice to the Escrow Agent and the other party. Upon any such
termination, the Deposit and all accrued interest thereon shall be returned to Buyer, and neither
party shall have any further liability or obligation hereunder except as otherwise provided herein.
Notwithstanding the foregoing, if any condition set forth in Section 14 or 15, above,has failed as
a result of a breach or default by Seller or Buyer, the other party shall have the rights and
remedies set forth in Section 19 or 20, below, as the case may be.
17. Property Taxes. The parties acknowledge that Turtle Bay is responsible for all
real property taxes relating to the Property pursuant to the Ground Lease. Accordingly, there
will be no pro-ration of real property taxes or assessments at the Close of Escrow.
18. Closing Costs. Buyer shall pay one hundred percent (100%)_ of the following
costs incurred in connection with this transaction: (a) the cost of recording the Grant Deed and
the Additional Appurtenant Easement Documents; (b)the documentary transfer tax, if any,
imposed in connection with the recording of the Grant Deed and/or Additional Appurtenant
Easement Documents; (c) the escrow fees charged by the Escrow Agent for its services in
connection with the Escrow; and (d) the premiums for the Title Policy. Seller shall pay one
hundred percent (100%) of the cost of recording any documents or instruments necessary to
eliminate any Monetary Encumbrances, Purchase Options, and/or Restrictions on Alienation.
The costs payable by Seller pursuant to this Section 18 shall be charged against the Buyer's
Payment payable to Seller at the Close of Escrow.
19. LIQUIDATED DAMAGES ON BUYER'S DEFAULT. BUYER AND
SELLER HEREBY ACKNOWLEDGE AND AGREE THAT, IF BUYER FAILS TO
COMPLETE THE PURCHASE OF THE PROPERTY AS A RESULT OF A DEFAULT
BY BUYER ("BUYER DEFAULT"), SELLER WILL SUFFER DAMAGES IN AN
AMOUNT WHICH WILL,DUE TO THE SPECIAL NATURE OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND THE SPECIAL NATURE OF THE
NEGOTIATIONS WHICH PRECEDED THIS AGREEMENT, BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO ASCERTAIN. IN ADDITION, BUYER WISHES TO
HAVE A LIMITATION PLACED UPON THE POTENTIAL LIABILITY OF BUYER
TO SELLER IN THE EVENT OF A BUYER DEFAULT, AND WISHES TO INDUCE
SELLER TO WAIVE OTHER REMEDIES WHICH SELLER MAY HAVE IN THE
EVENT OF SUCH A BUYER DEFAULT. BUYER AND SELLER, AFTER DUE
NEGOTIATION AND GIVING DUE CONSIDERATION TO THE ACTUAL DAMAGES
SELLER COULD SUFFER IN THE EVENT OF A BUYER DEFAULT, HEREBY
ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF SEVENTY-FIVE
THOUSAND AND 00/100 DOLLARS ($75,000.00) REPRESENTS A REASONABLE
ESTIMATE OF THE DAMAGES SELLER WILL SUSTAIN IN THE EVENT OF A
BUYER DEFAULT.
BUYER AND SELLER HEREBY AGREE THAT IF BUYER FAILS TO
PURCHASE THE PROPERTY AS A RESULT OF A BUYER DEFAULT, SELLER
SHALL BE ENTITLED TO TERMINATE THE AGREEMENT UPON WRITTEN
NOTICE TO BUYER AND THE ESCROW AGENT, AND TO RECEIVE FROM THE
13
BUYER THE SUM OF SEVENTY-FIVE THOUSAND AND 00/100 DOLLARS
($75,000.00) AS LIQUIDATED DAMAGES. SUCH PAYMENT OF SEVENTY-FIVE
THOUSAND AND 00/100 DOLLARS ($75,000.00) BY BUYER TO SELLER IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT
TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND
SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY
WITHIN THE MEANING OF SECTION 3275 OR SECTION 3369 OF THE
CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISIONS. THE LIQUIDATED
DAMAGES PROVIDED FOR HEREUNDER SHALL BE SELLER'S SOLE AND
EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY) IN THE EVENT
BUYER FAILS TO PURCHASE THE PROPERTY AS A RESULT OF A BUYER
DEFAULT, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING
HEREIN EXPRESSLY WAIVED BY SELLER. FOLLOWING TERMINATION OF
THIS AGREEMENT, CANCELLATION OF THE ESCROW AND PAYMENT BY
BUYER TO SELLER OF THE SUM OF SEVENTY-FIVE THOUSAND AND 00/100
DOLLARS ($75,000.000) AS LIQUIDATED DAMAGES PURSUANT TO THIS
SECTION, ALL OF THE RIGHTS AND OBLIGATIONS OF BUYER AND SELLER
UNDER THIS AGREEMENT SHALL BE TERMINATED.
BUYER AND SELLER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY THEIR INITIALS
IMMEDIATELY BELOW,AGREE TO BE BOUND BY ITS TERMS.
"Seller": "Buyer":
20. Default by Seller. In the event of a breach or default by Seller of any of its
representations, warranties, covenants or agreements herein, Buyer shall have, at its option, all
rights and remedies available to Buyer at law or in equity, including, but not limited to: (a) the
right to pursue specific performance of this Agreement; and/or the (b) the right to recover
damages from Seller.
21. Indemnification buyer. If, but only if, the Closing and the sale of the Property
to Buyer is consummated pursuant to this Agreement, and except as provided in this Section 21,
below, Buyer shall indemnify, defend,protect and hold Seller harmless from and against any and
all liability, damages, claims, suits, actions, proceedings, loss, cost or expense (including but not
limited to, attorney's fees and court costs) arising out of the purchase and sale transaction
provided for herein and/or the failure of Turtle Bay or its general contractor to pay prevailing
wages if required by law in connection with the construction of the proposed hotel project on
Parcel 3 (should that occur). It is understood and agreed that Buyer's indemnity, defense and
other obligations under this Section 21 shall not apply to any liability, damages, claims, suits,
actions, proceedings, loss, cost or expense (including but not limited to, attorney's fees or court
costs) arising out of or relating to any inaccuracy in or breach by Seller of any of its
14
representations, warranties, covenants or agreements in this Agreement or in any document or
instrument executed and delivered pursuant thereto. Buyer's indemnity, defense, and other
obligations under this Section 21 shall survive the Close of Escrow.
22. Possession.. Possession of the Property shall be delivered to Buyer at the Closing,
subject to Turtle Bay's rights and occupancy under the Ground Lease, unless otherwise agreed
upon in writing between Buyer and Seller.
23. No Broker's Fees. Seller and Buyer represent and warrant to each other that they
have dealt with no broker or finder in connection with any transaction contemplated by this
Agreement. Seller and Buyer each agree to indemnify, defend, and hold harmless one another
against any loss, liability, damage, cost, claim, or expense incurred by reason of any brokerage,
commission, or finder's fee alleged to be payable because of any act, omission, or statement of
the indemnifying party. The parties' obligations hereunder shall survive the Close of Escrow
and recording of the Grant Deed in the Official Records, or any earlier cancellation or
termination of this Agreement.
24. No Party Deemed Drafter. In the event of a dispute between any of the parties
hereto over the meaning of this Agreement, no party shall be deemed to have been the drafter
hereof, and the principle of law that contracts are construed against the drafter shall not apply.
25. Further Assurances. Seller and Buyer agree that, from time to time;at or after the
Close of Escrow, each of them will execute and deliver such further documents and instruments
of conveyance and transfer, and take such other action as may be reasonably necessary to carry
out the purpose and intent of this Agreement.
26. Notices. Any notice, request, waiver, consent, approval or other communication
which is required or permitted hereunder shall be in writing and shall be deemed given only if
delivered personally or sent by registered or certified mail, postage prepaid, return receipt
-requested, as follows: (a) if to Seller, to City of Redding, Attn: Kurt Starman, City Manager, 777
Cypress Avenue, Redding, CA 96001, with a required copy to Richard A. Duvemay, City
Attorney, City of Redding, 777 Cypress Avenue, Redding, CA 96001; (b) if to Buyer, to The
McConnell Foundation, Attn: John A. Mancasola, Executive Vice President, 800 Shasta View
Drive, Redding, CA 96003, with a required copy to Michael P. Ashby, Carr, Kennedy, Peterson
& Frost, 420 Redcliff Drive, Redding, CA 96002; or (c) to such other address as the addressee
may have specified in a notice duly given to the sender as provided herein. Such notice, request,
demand, waiver, consent, approval or other communication will be deemed to have been given
as of the date so personally delivered, or two (2)days after it is deposited in the mail.
27. Assignment. Buyer may assign its rights and interest under this Agreement
without the prior written consent of Seller. However, Buyer shall not be relieved of any of its
obligations under this Agreement as a result of any such assignment.
28. Attorney's Fees. In the event of any legal action, arbitration or other proceeding
arising out of this Agreement, the prevailing party shall be entitled to its reasonable attorney's
fees and costs in addition to any other relief to which it may be entitled.
15
29. Risk of Loss. The parties agree that the Uniform Vendor and Purchaser Risk Act,
set forth in California Civil Code Section 1662, and its provisions governing the allocation of
risk of loss, shall govern the transaction provided for herein.
30. Entire Agreement. This Agreement, and all documents and instruments referred
to herein, contain the entire agreement of the parties hereto with respect to the matters covered
hereby and supersede all prior arrangements and understandings between the parties, and no
other agreement, statement or promise made by either party hereto with respect to such matters
which is not contained herein shall be binding or valid. No amendment, alteration or
modification of this Agreement shall be valid unless in each instance such amendment, alteration
or modification is expressed in a written instrument duly executed by the parties.
31. Successors and Assigns. The terms and conditions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their personal and legal
representatives, beneficiaries,heirs, successors in interest and assigns.
32. Partial Invalidity. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each such term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
33. Waivers. No waiver of any breach of any covenant or provision herein contained
shall be valid unless in writing or shall be deemed a waiver of any preceding or succeeding
breach thereof, or of any other covenant or provision herein contained. No extension of time for
performance of any obligation or act shall be deemed an extension of the time for performance of
any other obligation or act except those of the waiving party, which shall be extended by a period
of time equal to the period of the delay.
34. Relationship of Parties. This Agreement is a purchase and sale agreement only.
The parties hereto, each of whom is represented by separate legal counsel, do not intend by this
Agreement to create any partnership, joint venture, or principal and agent relationship (and
nothing herein shall be construed to create any such relationship).
35. Third-Parly Rights. Nothing in this Agreement, express or implied, is intended to
confer on any person, other than the parties and their respective successors and assigns, any
rights or remedies under or by reason of this Agreement.
36. No Obligation to Cause Construction of Hotel. It is understood and agreed that
Buyer has and shall have no obligation to provide Turtle Bay with construction or other
financing, or to otherwise cause Turtle Bay to construct all or any part of the proposed Sheraton
Hotel project on Parcel 3, or any other improvements on any portion of the Property, following
the Close of Escrow, or, if constructed, to cause Turtle Bay to continue operating such Hotel or
other improvements. Neither Seller's obligation to sell the Property to Buyer, nor Buyer's
16
obligation to purchase the Property from Seller, is contingent upon the construction or operation
of any such hotel or other improvements upon the Property.
37. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. The parties agree that the transmission of a signed copy of this Agreement via
facsimile or e-mail shall constitute execution and delivery hereof, and the parties agree to deliver
original ink signed counterparts via overnight courier as soon as reasonably possible thereafter
38. Incorporation by Reference. All recitals, exhibits and schedules to this
Agreement are incorporated herein by this reference.
39. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
40. Time. Time is of the essence with respect to each and every term and condition
of this Agreement.
41. Days and Holidays. All references in this Agreement to the word "days," whether
for notices, schedules, performance, or other miscellaneous time limits, shall at all times mean
calendar days, unless specifically referenced as "business" days. Business days are Monday
through Friday, except legal holidays and official City of Redding furlough days. In the event
any date for performance of any obligation or the giving of any notice pursuant to this
Agreement occurs on a California state or federal holiday or on a Saturday, Sunday, or official
City of Redding furlough day, then the next business day shall be deemed the applicable date for
performance or notice.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Real
Estate Purchase and Sale Agreement effective as of the date and year it is signed by the City of
Redding as indicated below.
"SELLER":
CITY OF REDDING,
a municipal corporation
By:
Rick Bosetti, Mayor
Dated: 12014
APPROVED AS TO FORM:
Richard A. Duvemay, City Attorney
17
n
ATTEST:
Pamela Mize, City Clerk
"BUYER":
THE M ONNELL FOUNDATION
a Californ*a non-p f orpo atio
By:
Lee W. Salter, President
18
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