HomeMy WebLinkAbout06-26-2014 Council Agenda Item 10:00 AM #2-B Supplement RECEIVED
ZIJI� JUN Zvi AM $ 3� Agenda Item: 10:00 A.M.#2 -B
Date: 6/26/14
CITY CLERK. FRES SNO CITY COUNCIL
City or
Supplemental Information Packet
Agenda Related Items — 10:00 A.M. #2 - B
Supplemental Packet Date: June 24, 2014
Items
Successor Agency to the Redevelopment Agency consider adopting and approving:
1. Adopt finding of Categorical Exemption pursuant to Section 15301/Class 1 of the
CEQA Guidelines (no change in existing use) (Successor Agency and FRC action)
2. Purchase and sale agreement between the Successor Agency to the
Redevelopment Agency of the City of Fresno and Bitwise Industries LLC for the
sale of a certain former Redevelopment Agency parcel located at 730 & 738 Van
Ness (APN's 468-253-11T & -15T) within the City of Fresno (Successor
Agency and FRC action)
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city of
MEETING: 06/26/14
REPORT TO THE SUCCESSOR AGENDA ITEM:
AGENCY TO THE REDEVELOPMENT APPROVEDBY
AGENCY OF THE CITY OF FRESNO
AND THE FRESNO ex CUTIVEDIRECTOR
REVITALIZATION CORPORATION
DATE: June 26, 2014
FROM: MARLENE MURPHEY, Executive Director
BY: Enrique Mendez, Project Manager
SUBJECT: Successor Agency to the Redevelopment Agency consider adopting and approving:
1. Adopt finding of Categorical Exemption pursuant to Section 15301/Class 1 of the
CEQA Guidelines (no change in existing use) (Successor Agency Action)
2. PURCHASE AND SALE AGREEMENT between the Successor Agency to the
Redevelopment Agency of the City of Fresno and Bitwise Industries LLC for the
Sale of a Certain Former Redevelopment Agency Parcel located at 730 & 738
Van Ness (apns 468-253-11T & -15T) within the City of Fresno (Successor
Agency Action)
EXECUTIVE SUMMARY
The Agency staff recommends approval of a purchase and sale agreement with Bitwise
Industries for the sale of two (2) parcels consisting of approximately 0.51 acres on Van Ness
Avenue between Inyo and Mono Streets located at 730 & 738 Van Ness (apns 468-253-11T & -
15T).
BACKGROUND
The Successor Agency issued a Request For Proposals to buy Agency-owned parcels apns
468-253-11T & 468-253-.15T. Together these adjoining parcels form a rectangular, non-corner
property totaling approximately 0.51 acres. It is improved with a parking lot and striped for
approximately 58 parking spaces. Prior to the RFP deadline, the Agency received one (1)
proposal to purchase from Bitwise Industries LLC.
Bitwise Industries LLC, a technology and education company was founded in 2007 and is
headquartered at San Joaquin and L Street in downtown Fresno. To support the demand for
expansion Bitwise has purchased property at 700 Van Ness Avenue directly adjacent to the
Agency's property. Once open, this new location is anticipated to bring 200 new jobs to
downtown Fresno and generate $100 million in annual revenue.
A third party certified MAI appraiser valued the Agency's 22,500 sq ft property at $8.00/sq ft. or
$180,000.00. Bitwise has offered to pay the full appraised value. The Agency will incur its legal
fees, and the customary closing costs and escrow fees. The Purchase and Sale Agreement
REPORT TO THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF FRESNO
AND THE FRESNO REVITALIZATION CORPORATION
Purchase and Sale Agreement with Bitwise Industries LLC.
June 26, 2014
Page 2
(PSA) is subject to California Health and Safety Code section(s) relating to redevelopment and
property disposition.
ENVIRONMENTAL FINDING
The Project has been environmentally assessed and has been determined to be eligible for a
Categorical Exemption under Section 15301 Class 1 of the California Environmental Quality Act
(CEQA) because there will be no change in the existing use of the property. Further, none of the
exceptions to categorical exemptions set forth in CEQA Guidelines section 15300.2 apply to this
project.
Attachments:
Purchase and Sales Agreement
REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF
FRESNO, a public body, corporate and politic ("Seller" or "Successor Agency"), and Bitwise
Industries LLC, a California Limited Liability Company, ("Buyer"), enter into this Real Property
Purchase and Sale Agreement and Joint Escrow Instructions (the "Agreement"), effective as of
the date that the Buyer has executed it and the Agency Board has approved it.
RECITALS
A. The former Redevelopment Agency was responsible for implementing the redevelopment
plan (the "Plan") governing the land area identified as the Convention Center
Redevelopment Plan Area (the "Project Area"), in accordance with the California
Community Redevelopment Law (Health and Safety Code Sections 33000, et. seq.;
hereafter the "CRL"). The Plan and the CRL authorize the Agency to purchase property
for redevelopment purposes.
B. On January 26, 2012, the City Council adopted Resolution No. 2012-12 electing to serve
as the Successor Agency to the Redevelopment Agency of the City of Fresno ("Successor
Agency"). Pursuant to Health & Safety Code Section 34181(a) the Oversight Board
("Oversight Board") shall direct the Successor Agency to dispose of certain Property
purchased by the former redevelopment agency with tax increment funds expeditiously
and in a manner aimed at maximizing value.
C. The Seller owns certain real property within the Project Area, and the City of Fresno
commonly known as 730 & 738 Van Ness Avenue, APNs 468-253-11T & 468-253-15T,
Fresno, California, and more particularly described in Exhibit A, attached, (the
"Property").
D. Buyer operates an adjacent business in need of parking. The Property will provide the
business with desired parking. The Buyer has agreed to purchase the property for fair
market value at the purchase price set forth herein.
E. The sale of the Property is contingent upon the approval of the Property Management
Plan by the Successor Agency, Oversight Board and Department of Finance.
F. The Buyer desires to purchase the Property on the terms and conditions set forth in this
Agreement.
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AGREEMENT
1 Purchase and Sale. Seller will sell the Property to Buyer, and Buyer will purchase the
Property from Seller on the terms and conditions set forth in this Agreement. Sale of
these Property is subject to compliance with Community Redevelopment Law of the
State (California Health and Safety code Sections 33000 et seq),
2 Conditions Precedent. Closing shall be conditioned upon performance of all of
obligations in this Agreement and satisfaction of the conditions listed in Sections 2.1,2.2,
and 2.3, provided that Seller may, in Seller's sole discretion, elect to waive any such
condition of Closing.
2.1 Compliance with CEQA. The applicable lead agency shall have complied with
the California Environmental Quality Act with respect to this Agreement, as
applicable. The Project has been environmentally assessed and has been
determined to be eligible for a Categorical Exemption under Section 15332 Class
32 of the California Environmental Quality Act(CEQA).
2.2 Environmental Assessment. The Property is being sold in an "As is" condition.
The Buyer may perform a Phase 1 Environmental Site Assessment at Buyer's
cost. Seller shall provide Buyer with any copies of environmental reports
pertaining to the Property in Seller's possession without any warranty as to their
accuracy.
2.3 Approval of this Agreement and the Property Management Plan by Successor
Agency, Oversight Board, and Department of Finance.
.3. Purchase Price. The purchase price for the Property is ONE HUNDRED AND
EIGHTY THOUSAND DOLLARS ($180,000.00) ("Purchase Price"). The Purchase
Price, subject to adjustments provided in this Agreement (if any), will be paid by Buyer
in cash or by wire transfer of immediately available funds at the Closing.
4. Seller's Warranties. Seller represents and warrants that: (a) Seller owns the Property,
free and clear of all liens, licenses, claims, encumbrances, easements, leases,
encroachments on the Property from adjacent Property, encroachments from the Property
onto adjacent Property, and any rights of way, other than those disclosed by the public
record; (b) Seller has no knowledge of any pending litigation involving the Property; (c)
Seller has no knowledge of any violations of, or notices concerning defects or
noncompliance with any code, statute, regulation, ordinance, judicial order, judicial
holding, or other applicable law concerning the Property; (d) Seller has no knowledge of
any hazardous materials or substances (as now or hereafter defined in any law,
regulation, or rule) stored, discharged, or otherwise present in, on, or affecting the
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Property; (e) Seller has no knowledge of any material defects in the Property; (f) the
Property is currently vacant.
Seller's authority to sell the property may be subject to approval of the Oversight Board
of the Successor Agency and/or the California State Department of Finance and subject
to the timelines set forth in California Health and Safety Code section(s) 34170-34191.
The continued accuracy in all respects of Seller's representations and warranties shall be a
condition precedent to Buyer's obligation to close. All representations and warranties
contained in this Agreement shall be deemed remade as of the date of Closing and shall
survive the Closing. If any of the representations and warranties are not correct at the
time made or as of the Closing, Buyer may terminate this Agreement and there shall be
no further liability on the part of Buyer to Seller.
5. Opening Escrow/Escrow Deposit. Within ten (10) business days after the execution of
this Agreement by both parties, the parties will open an escrow ("Escrow") with Fidelity
National Title Company at 8050 N. Palm Avenue Suite 110, Fresno California ("Title
Company"), Attention: Bernadette Watson, and Buyer shall deposit into Escrow the sum
of EIGHTEEN THOUSAND DOLLARS ($18,000.00) ("Deposit") to be placed in an
interest bearing account.
5.1 Agreement as Joint Escrow Instructions. This Agreement, when signed by
Buyer and Seller and deposited into escrow with the Title Company, will be the
parties'joint escrow instructions. Buyer and Seller will sign and deliver any other
form instructions the Title Company may require that are consistent with this
Agreement.
5.2 Deposits into Escrow. Buyer and Seller will deposit all instruments, documents,
money, and other items into escrow with the Title Company that (i) this
Agreement identifies or (ii) the Title Company may require that are consistent
with the terms and purposes of this Agreement, and necessary to Closing. Within
thirty (30) days after the Oversight Board and the Successor Agency Board
approve this Agreement, Seller will deposit into the escrow with Title Company,
or will conditionally deliver to Buyer, a recordable grant deed duly executed and
acknowledged before a notary public, and accompanied by documentation
reasonably necessary to establish the authority of any signatory executing such
deed on behalf of Seller.
5.3 Title. Seller will convey title of the Property to Buyer free and clear of all title
defects, liens, encumbrances, conditions, covenants, restrictions, leases or
agreements, except those agreed to in writing by Buyer.
5.4 Title and Closing Costs. Seller will pay any costs of clearing and conveying title
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in the condition described in Section 5.3. Buyer will pay the cost of a CLTA or
ALTA owner's title policy insuring Buyer's title in the condition described in
Section 5.3. Escrow fees, costs to record the grant deed, etc., shall be split equally
between Buyer and Seller.
5.5 Closing. The escrow will be considered closed ("Closing" or "Close" or the
"Closing Date") on the date that the Title Company records the grant deed. The
escrow will be in condition to Close when all conditions to Close are satisfied or
waived, the Title Company is prepared to issue the title policy described herein,
and the Title Company is otherwise able to record the grant deed. Unless
extended by the mutual consent of the parties, the escrow and this Agreement
shall terminate if Closing does not occur within one hundred and eighty (180)
days following final execution of this Agreement (including attestation by the
Clerk) (the "Outside Closing Date"). Seller's Executive Director is authorized to
agree to administratively extend this Agreement as necessary to accommodate
satisfaction of conditions precedent. Upon termination of the escrow, the Title
Company will return all funds, including the Deposit, and documents to the
respective depositor, less any termination fee if applicable, and this Agreement
will be of no further effect except as herein provided. Notwithstanding the
foregoing, Buyer shall have the right to extend the Outside Closing Date for up to
two (2) extension periods of forty-five days each by providing written notice to
the Seller along with making an additional deposit of $2,500.00 for each
extension, such additional deposits to be applicable to the Purchase Price but
refundable only in the event of a Seller Default.
5.6 Recordation. At Closing, Title Company shall date the grant deed, and all other
undated documents in escrow, with the date of Closing, and the Title Company
shall record the grant deed, performance deed of trust and all other documents
necessary to the Closing.
5.7 Disbursements. At Closing, Title Company shall disburse the Purchase Price,
less Seller's costs to clear title (placing it in the condition set forth in Section 5.3),
prorations, and other costs, if any, to Seller, when Title Company is committed to
issue a standard CLTA or ALTA owner's title insurance policy to Buyer insuring
its fee title in the condition set forth in Section 5.3, above, for the Purchase Price
or such lesser amount as Buyer may designate.
5.8 Risk of loss. Any loss or damage, to the Property or any improvements on it,
before Closing is at Seller's risk.
5.9 Broker. Neither party engaged a broker for this transaction.
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6 Delivery of Possession. Seller shall deliver exclusive possession of the Property at
Closing.
7 Buyer's Right to Enter and Inspect the Property. Buyer shall have the right to enter,
inspect, and conduct any due diligence tests on the property that Buyer deems advisable.
Seller grants Buyer, and/or Buyer's agents, the right, upon 24 hours notice, to enter onto
the Property to conduct tests and investigations, if all the following occur: (a) Buyer
conducts tests and investigations at its sole cost and expense; (b) the tests and
investigations do not unreasonably interfere with Seller's possession.
8 Damage, Destruction, Condemnation. If the improvements on the Property are
destroyed or materially damaged or if condemnation proceedings are commenced against
the Property between the date of this Agreement and the Closing, Buyer may terminate
this Agreement. If Buyer, however, elects to accept the Property, all proceeds of
insurance or condemnation awards payable to Seller by reason of the destruction,
damage, or condemnation shall be paid or assigned to Buyer; Seller shall also pay to
Buyer the amount of any deductible and coinsurance under any policy. In the event of
nonmaterial damage to the Property, which damage Seller is unwilling to repair prior to
Closing, Buyer shall have the right either to terminate this Agreement or accept the
Property in its then existing condition, in which case Buyer shall be entitled to a
reduction in the Purchase Price to the extent of the cost of repairing the damage. If Buyer
elects to terminate this Agreement pursuant to this Section, escrow shall terminate and
neither party shall have any further duties or responsibilities under this Agreement.
9 Miscellaneous Provisions.
9.1 Further Assurances. Each party will sign and deliver further documents, or take
any further actions required to complete the purchase and sale described herein.
9.2 Notices. All notices and other communications required or permitted under this
Agreement shall be in writing and shall be deemed delivered: (a) on the date of
service if served personally on the person to receive the notice, (b) on the date
deposited in the U.S. mail, if delivered by depositing the notice or communication
in the U. S. mail, postage prepaid, and addressed to the relevant party at the
address set forth below, (c) on the date of transmission if delivered by facsimile,
to the number provided below, that provides a transmission confirmation showing
the date and time transmitted, or (d) on the date of transmission if delivered
electronically via email and showing the date and time transmitted.
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To Seller:
SUCCESSOR AGENCY TO THE REDEVELOPMENT
AGENCY OF THE CITY OF FRESNO, a public body
corporate and politic
Attention: Executive Director
2344 Tulare Street, Suite 200
Fresno, CA 93721
Phone No.: 559.621-7600
Fax No.: 559.498.1870
To Buyer:
Bitwise Industries LLC
Attn: Jake A. Soberal, CEO
2210 San Joaquin Street
Fresno, CA 93721
Phone No.:559.618.1279
9.3 Entire Agreement. Each Exhibit referred to in this Agreement is by that
reference incorporated into and made a part of this Agreement. This Agreement
is the entire agreement between the parties regarding the purchase and sale of the
Property, and supersedes all prior discussions, negotiations, commitments or
understanding, written or oral.
9.4 Amendment or Cancellation. Buyer and Seller may amend or cancel this
Agreement only by mutual written consent of the parties, unless otherwise
expressly provided herein.
9.5 Successors and Assigns. This Agreement is binding upon and shall inure to the
benefit of each party, and each party's heirs, successors, assigns, transferees,
agents, employees or representatives. The Buyer may assign this agreement and
its rights hereunder without the consent of Seller.
9.6 Time of the Essence. Time is of the essence of each term in this Agreement.
9.7 Attorneys' Fees. If any party to this Agreement or the Title Company begins any
action, proceeding, or arbitration arising out of this Agreement, then as between
Buyer and Seller, the prevailing party shall be entitled to receive from the other
party, besides any other relief that may be granted, its reasonable attorneys' fees,
costs, and expenses incurred in the action, proceeding, or arbitration.
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9.8 Governing Law. This Agreement and the legal relations between the parties
shall be governed by and construed according to California law. Venue for the
filing of any action to enforce or interpret this Agreement or any rights and duties
hereunder shall be in Fresno, California.
9.9 Headings. The section headings in this Agreement are for convenience only. The
headings are not part of this Agreement and shall not be used to construe it.
9.10 Waiver. If Buyer or Seller waives a breach of any provision herein, the waiver
will not be a continuing waiver. The waiver will not constitute a waiver of any
subsequent breach, or a waiver of a breach of any other provision hereof.
9.11 Severability. The provisions of this Agreement are severable. The invalidity or
unenforceability of any provision in this Agreement will not affect the other
provisions.
9.12 Interpretation. This Agreement is the result of the combined efforts of the
parties. If any provision of this Agreement is found ambiguous, the ambiguity
will not be resolved by construing this Agreement in favor or against any party,
but by construing the terms according to their generally accepted meaning.
9.13 Precedence of documents. If any conflict exists between the body of this
Agreement and any Exhibit or Attachment to it, the provisions of the body of this
Agreement will control and take precedence over the Exhibit or Attachment.
9.14 Counterparts. This Agreement may be executed in counterparts, each of which
when executed and delivered will be deemed an original, and all of which
together will constitute one instrument. Facsimile or electronic copy signatures
shall be deemed as valid and binding as original signatures.
9.15 Survival. All representations and warranties, indemnifications, and other
provisions which, by their nature are intended to continue, shall survive Closing
and delivery of the grant deed.
9.16 Seller's Default and Buyer's Remedies. If the sale of the Property is not
consummated due to Seller's material default hereunder that is not cured within
five (5) business days of Notice from Buyer of Default, then Buyer shall have the
right, to elect, as its sole and exclusive remedy, to either (a) terminate this
Agreement by written notice to Seller, promptly after which the Deposit shall be
returned to Buyer, (b) waive the default and proceed to close the transaction
contemplated herein. Notwithstanding anything to the contrary contained herein,
Seller shall not be deemed in default unless and until Buyer provides Seller with
written notice of such default and Seller fails to cure such default within five (5)
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business days of its receipt of such written notice.
IN WITNESS WHEREOF the Seller and Buyer have signed this Agreement on the dates
set forth below.
BUYER: SELLER:
Bitwise Industries LLC, a California SUCCESSOR AGENCY TO THE
Limited Liability Company REDEVELOPMENT AGENCY OF THE CITY
OF FRESNO, a public body corporate and politic
By:
Jake A. Soberal, CEO By:
Marlene Murphey, Executive Director
Dated: , 2014
Dated: , 2014
The Successor Agency to the Redevelopment Agency of the City of Fresno has signed this
Agreement pursuant to authority granted on , 2014
ATTEST: APPROVED AS TO FORM:
YVONNE SPENCE, CMC DOUGLAS T. SLOAN
Ex-officio Clerk Ex-officio Attorney
By By
Deputy Deputy
Dated: ,2014 Dated: , 2014
Attachments:
Exhibit A: Legal Description
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EXHIBIT "A"
LEGAL DESCRIPTION