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HomeMy WebLinkAboutAgenda Report - March 2, 1988 (41)C0„NC I L COMM_UNLCAT I ON TO: THE CITY COUNCIL COUNCIL N E TNG DATE FROM: THE QTY NIANAGERS OFFICE March 2, 1988 SUBJECT : APPROVE AGREEMENT FOR REDESIGN OF C BASIN, AND DISCUSS ADDITIONAL PROPERTY ACQUISITION AT THAT SITE. PREPARED BY City Attorney RECOMMENDED ACTION: The City go forward with the property acquisition of the 12 acres from the Kettelman family, and ccntinue negotiations with Daryl Geweke regarding the City's concerns as it relates to the Agreement for the redesign of the "C" Basin. BACKGROUND INFORMATION: It is my understacding that the City Council had concerns regarding the attached C -Basin Agreement when i t was discussed at the City Council meeting of February 17, 1988. This concern was specifically regarding the increased cost of land acquisition and the increased cost of construction. I understand that the Council was requesting that MC Geweke agree to pay any of these increased costs . In speaking with Mr. Geweke's representative, attorney Gerry Sperry, he has asked for an opportunity to address the Council on those issues. Mr. Sperry and I have talked over a period of time regarding those exact concerns, and NIC Sperry suggested that his client was uncomfortable with agreeing to pay additional costs at this time, but that if at the time the Council decides to go through with the redesign, if his client refuses at that time to pay for the additional costs, then this Council would be under no obligation to construct the redesign. Mr. Sperry wi 11 be i n attendance a t the March 2, 1988 Council meeting to discuss this matter with Council - Further, it i s n3' understanding that Council was concerned about the agreement with the Kettelmans to purchase the property from the Kettelmans. To date, vie actually have no written agreement, but an offer to purchase the property at the present $26,500 per acre. What this Council must be aware of is that in the Agreement of Purchase and Sale and Escrow Instructions between the Kettelmans and N& Geweke, NIC Geweke is t c buy the acreage which is left over after the City of Lodi purchases 10 (or 12) acres from Parcel #30. On February 24, (copy attached) put the City on acres; otherwise to the City. RMS:vc CMN/2XM. O1V 1988, Glen Robison, Assistant City Engineer, received a letter from Robert Elliott, attorney for the Kettelmans, which letter notice that it had 30 days to either purchase the 10 (or 12) the Kettelmans will withdraw their offer to sell the property YALD uIJ s tted, X. STEIN City Attorney sa- `^sV.>i' i LAW OFFICES RiNN & ELLIOTT ROBERT N. ELLIOTT Z28 WEST PINE STREET LoDI, CALIFORNIA 95240 (209) 369-2781 February 24, 1988 G E Robison Assistant City Engineer City of Lodi City Hail Lodi CA 95240 (C(DPY Re = Estate of GERTRUDE M KETTELMAN, Deceased Froperty Acquisition Corc-1 Basin Dear Mr Robison: OF COUNSEL ROBERT H. RINK I would refer you to your letter of September 2, 1987 addressed to the undersigned concerning discussions had earlier with certain city officials regarding the acquisition of land to add to the existing park/basin at Beckman Road and Vine Street. Your said letter confirmed that the city was offering to purchase ten acres (Option A) for $262,500 or twelve acres (Option B) for $315,000. At that time I indicated that the Executors of the Estate of Gertrude M Kettelman and Orrin D Kettelman, in whom this property was vested were agreeable to selling to the city either parcel at $26,260 per acre. Since that time my clients have been waiting with some degree of patience for the city and Daryl Geweke to negotiate a possible change in area and design, Mr Geweke having certain rights of purchase in the property from my clients contingent upon a satisfactory redesign of the proposed park/basin. Subsequently, and by letter of October 16, 1487, you put my clients on notice that the city had set a hearing for November 4, 1987, that the Council of the city intended to adopt a Resolution of Necessity regarding Eminent Domain, for acquisition of property owned by my clients based on a description of Option A. Nearly four months have elapsed since the hearing of November 4, at which hearing the Resolution of Necessity was not adopted, without any further word from the city tomy clients. This delay is causing my clients substantial harm which is increasing with passing time. I wish to advise you that unless the city acts to adopt a Resolution of Necessity regarding Eminent Domain for either Option A, Option B, or an alternate 10 -acre option mutually agreeable to the city and to Daryl Geweke, within thirty (30) days from today's date (and proceeds promptly thereafter to complete and pay for such G E Robison Assistant City Engineer City of Lodi February 24, 1988 Page Two acquisition), my clients Jill withdraw their offer to sell the property to the city for the terms and price above mentioned. VFX have reason to believe that the value of the property has been increasing and we-ni.itd intend thereafter to obtain a new appraisal. We also would be free to proceed with the consummation of the sale to Daryl Geweke of the entire property. In tho event Mr Geweke no longer desires to proceed then my clients would feel free to negotiate with other parties who have contacted my clients evidencing an interest to acquire th•�t property in question. Since the property has been under threat of condemnation for many months now, my clients have been deprived of their opportunity to maximize the economic potential of the property. Accordingly and in order to minimize my client's damages, if the city does not desire to proceed as indicated above, a written notice from you of the city's refusal to condemn any portion of the property will be imperative i n order to terminate this temporary taking and the damages arising therefrom. I would refer your city attorney to the doctrine established in somewhat recent United State SupremeCoi:rt cases on the subject of the liability of public agencies in connection with a temporary taking of property from private citizens for unreasonable periods of time. For your information, and assuming that you do wish to proceed in a timely manner to acquire a portion of my client's property, I wish to advise you that the Estate of Gertrude M Kettelman, Deceased was distributed by order of the Superior Court of this County on February 3, 1988 and an undivided one- half interest in the property in question has been distributed to a Trustee, namely Theron R Kettelman, whom I also represent. Yours very truly, RINN &.ELLIOTTI Ey L 6,42cil, Rober Ellio t RKE/ae cc: Ronald M Stein, City Attorney Theron R Kettelman Gerald A Sperry i ,Yr+� 9,GREE'MENI FGR THE REDESIGN OF C -BASIN THIS AGREEMENT, made and entered into this day of , 19 , by and between Daryl Geweke, hereinafter called Developer, and the CITY OF LODI, a municipal corporation of the State of California, hereinafter called City. WITNESSETH: 1. On October 15, 1986, the Lodi City Council approved the master plan for the ultimate development of "C" Basin at the southeast corner of Vine Street and Beckman Road. Subsequent thereto, the City entered into negotiations with Orrin D. Kettelman and Estate of Gertrude M. Kettelman, hereinafter called Seller, for the purchase of certain real property, being a portion of Parcel 30, to be used for addition to C -Basin. A copy of the legal description of the proposed acquisition of a portion of said Parcel 30 of said Kettelman property is attached hereto as Exhibit A and incorporated herein by reference. 2. On or about June 22, 1987, Daryl Geweke entered into a purchase agreement with Orrin D. Kettelman and the Estate of Gertrude M. Kettelman, copy attached hereto as Exhibit B and incorporated herein by reference, for the purchase of three adjacent parcels of real property, Parcels #28, 7#29 and 1#30 lying to the north of Kettl eman -1- '- Lane, ea -t of Highway 99 and adjacent to Lodi City limits, which contract of sale recites on Page 1, paragraph 3 that "the City of Lodi is Contemplating condemning approximately 10 acres of said Parcel 930". 3. One of the conditions set forth in said June 22, 1987 agreement between Seller and Developer cited on Pages 1 and 2, paragraphs 1.1 and 1.2 was that the Developer was willing to purchase and Seller willing to sell all of said parcels, including the remaining portion of Parcel f30 which would remain if the City's condemnation took place, contingent upon the City's agreeing to a reconfiguration of the "C" Basin, and Paragraph 1.1 reads to wit: "I.I Buyer agrees to purchase and Seller agrees to sell all of said parcels including such portion of Parcel #30 which remains either after the condemnation by the City of todi or the City of Lodi's failure to condemn such real property within 2 years of the date of this agreement providing and on condition that the remainder of Parcel '30 is of rectangular shape and has a minimum curb frontage of 625 feet and a minimum depth of 600 feet." 4. At an adjourned regular City Council meeting held November 11, 1987, Gerald A. Sperry, attorney representative of Daryl Geweke, signatory herein, appeared before the Lodi City Council and asked the Council whether they would agree to change the configuration of the "C" Basin in order to permit Mc Geweke to have a 600 foot property depth measured from Beckman Road. The City Council at that time and place approved the retaining, at Me Geweke's cost, of Consultant Richard A. Bigler to redesign the "C" Basin, in order to determine whether it would be possible to accommodate the above referred to desire of Mr. IPAS .r. 'Y$e. P— Geweke, ;:hi ie at the same time, to continue to have the structures and facilities that were originally designed, to be constructed in the "C" Basin pursuant to the adopted Masterplan. A copy of the minutes of said November 11, 1987 meeting is attached hereto as Exhibit "C" and incorporated herein by reference. 5. Nk Richard A. Bigler has submitted to City a proposal for the redesign of C -Basin which includes a schedule of fees. A copy of said proposal is attached hereto, marked Exhibit "D" and incorporated herein by reference. NOW, THEREFORE, IN C01%�A1ION of these premises, the parties hereto agree as follows: 1. Developer shall reimburse City on a time and material basis for the costs of the redesign by Richard A. Bigler, of "C" Basin, consistent with the fees set forth in Exhibit "D" . 2. Developer shall pay for all staff time that is necessary in the redesign of "C" Basin, including but not limited to staff time in working with Richard A. Bigler and Daryl Geweke, as well as any additional staff time in preparing for and attending additional pub? is meetings. 3. Developer shall pay for the City's acquisition agent's time for additional work with the Kettelmans, the Kettelman's -3- . '..•w.=�y.nar,b.. _ attorney and/or new property owners if a new property owner should become involved during the redesigning phase of the "C" Basin. 4. Developer shall reimburse City for additional title reports and property appraisals as reasonably necessary in the redesign of "C" Basin. 5. Developer and City both agree that the City Council is under no legal obligation to actually accept and/or develop and/or construct a redesign of the "C" Basin. - 6. Developer shall, within ten (10) days of the execution of this agreement, deposit with City the sum of SEVEN THOUSAND ($7,000.00) DOLLARS. If Developer fails to deposit said sum, City shall be under no obligation to proceed with the redesign of C -Basin. 7. City shall provide a monthly accounting of all costs associated with the redesign of "C" Basin. Developer shall, within ten (10) days, approve said accounting which shall then become a charge upon and shall be deducted from the $7,000.00 deposit. In the event said costs exceed the amount of deposit, Developer shall , upon written notification from -City, deposit such additional sums, not to exceed FIVE THOUSAND ($5,000.00) DOLLARS as may be reasonably necessary to complete the redesign of "C" Basin, including all costs included under this -4- 20 r°y agreement. In the event said costs exceeds the additional $5,000.00, Developer shall, upon written notification from City, deposit such additional sums, not to exceed $5,000.00 as nuy be reasonably necessary to complete the redesign of "C" Basin. 8. This agreement shall be binding upon the heirs, devisees, legattees, executors and administrators and assigns of the parties hereto. 9. Any and a71 amendments to this agreement must be in writing . IN WITNESS WHEREOF, the parties hereto have set their hands and entered into this Agreement the day and year hereinabove first written. CITY OF LCDT, a municipal corporation CITY THOMAS A. PETERS i City Manager ATTEST: ALICE M. REIMCHE City Clerk AGRGEWEK/TXTA.OIV DEVELOPER DARYL GEWE&E -5- Approved as to Form: RONALD M. STEIN City Attorney AWN EXHIBIT A LEGAL DESCRIPTION ?OPERTY LOCATED SOUTH OF 'ZINE STREET �lD EAST OF 6ECKIIAN ROAD 'r:ITL SAit JO QUI;t COUiiTY Being a portion of the south one -hall' of the north cne-half of the southwest one-quarter of Section 7, Township 3 North, Range 7 East, h'ount Diablo Ease and Meridian, described as follows: Commencing at the center of Section 7, Township 3 North, Range 7 East, ttount Diablo Base and Meridian, thence South 1-04' East, 668.4 feet along the east line of the southwest one-quarter section to the northeast corner of that Kettleman parcel shown in Volume 6, Page 284, Record of Surveys, San Joaquin County Records, and the True Poir•t of Beginning, thence North 87-41' blest, 1038.0 feet along the north line of the south one-half of the north one-half of said southwest one-quarter section, thence South 1-04' East, 420.0 feet, parallel with said east line, thence South 87-41' East, 103008.0 feet, parallel with said north line of said south one-half to said east line, thence North..: 1-04` West, 420.0 feet, along said east line to the True Point of Beginning. RE5EMD03/TXTA.0IV E::t:_nTT B - We have reviewed the easter Plan of Park Base "C" adopted by the City Council on October 15, 1986. and discussed the proposed acquisition of the portico of parcel =30 specifically, timing, configuration. use and damages. Mr. Gr.aeke has instructed us to atterot to minimize the adverse impacts :he presently proposed acquisition would have on Parcel i30 while attempting to equitably acco,rmodate the needs of the City of Lodi. W subsequently contacted Mr. Ronald Stein, City Attorney, and inquired as to how soon the city needed the property, what methods were available to mitigate ..r. Geweke's damages and how could we work with the City of Lodi in the equitable resolution of these problems. Mr. Stein advised that the City's department of Public Works wanted to proceed immediately with the acquisition of the property and the construction or :he project; that as the plan had been adopted by the City Council, it could only be modified by the City Council; that we would therefore have to direct our concerns and proposals for mitigation to the City Council. Will you please schedule this matter for discussion by the City Council as soon as mutually convenient. As resolution of these problems need to be explored through open I ..... :.... -Y COL'::CIL, CIT. OF LION C: -Y L CGil:;C1' .30 P..,. The=d;curne'_ ., '. ar of the Lodi City •.,,.moil was called to order by ayor ..... ._ . ,... .. .. 311 ^.m City Clerk Retcche recorded the roll as foilows: ROLL CnLL Present: Council Members - Hinchman, Pinkerton, Reid, Snider and Olson (.'ayor) Absent: Courcii ;'embers - None Also Present: City *-anager Petersen, Public Works Director P.onsko, City Attorney Stein, ard.City Clerk Reirche REVIEW OF C-"oASi:t City Manacer Petersen reminded the Council that the matter ^-efore z,;.e Council for discussion was the review of CC -27(a) C -Basin. The following letter which, had been received CC -27(c) `rc:a the Law 0`t`ices of Fr•ea-an and 3rmin who represent Daryle Sewe;,e was oreserteo for Council review: "Re: Park 2asrn "C" Acquisition of Property 10 Acre Parcel Dear Mayor and Council ?embers: This office represents Mr. Daryle Geweke who is the purchaser, pursuant to a land sales conrrac;. of three adjacent parcels of real property, Parcels =23, =29 ano =30 lying to the north of Kettleman Lane, east of Hichway 99 ® and adjacent to Lodi City linits belonging to Orrind D. Y,ettleman. Said contract of sale recites that "the city of Lodi is contemplating condemning approximately 10 acres of said parcel R30". We have reviewed the easter Plan of Park Base "C" adopted by the City Council on October 15, 1986. and discussed the proposed acquisition of the portico of parcel =30 specifically, timing, configuration. use and damages. Mr. Gr.aeke has instructed us to atterot to minimize the adverse impacts :he presently proposed acquisition would have on Parcel i30 while attempting to equitably acco,rmodate the needs of the City of Lodi. W subsequently contacted Mr. Ronald Stein, City Attorney, and inquired as to how soon the city needed the property, what methods were available to mitigate ..r. Geweke's damages and how could we work with the City of Lodi in the equitable resolution of these problems. Mr. Stein advised that the City's department of Public Works wanted to proceed immediately with the acquisition of the property and the construction or :he project; that as the plan had been adopted by the City Council, it could only be modified by the City Council; that we would therefore have to direct our concerns and proposals for mitigation to the City Council. Will you please schedule this matter for discussion by the City Council as soon as mutually convenient. As resolution of these problems need to be explored through open I ..... :.... K C I ANOURNIMIENT ;1, The CC,,IfICiJ (Ices no: necessarily -,,ant to c!iare-3 -hs! =rest. ,icil;tles ccnricurazz-icn of the r!;,.ri t U t is ',riilirg to rev i ew an alternate pIan .5 Ccrs u I ta n t. Richard B i ea I er is to provide the C -*. ty tt a tiTr�, :,.nd cost proposal for the redesign. C) The City and i -:r. Geweke will review and approve V.r. BiCaley"S proposal. Mr. Siegler will be retained by the City for the redesign and Mr. Geweke is to be responsible for all the involved costs. 01 Xr. Siegler is to work on a time and material basis, not to exceed the amount of the proposal. E) City staff time involved in the redesign will te monitored and accounted for. Mr. Geweke is to reimburse the City for these costs. The rotion carried by the following vote: Ayes: Council Vlembers - Pinkerton, Reid, Snider, and Olson (Mayor) Noes: Council Members --Hinchman Absent: Council Members - lone Council 1-Iember Hinchman indicated that he is concerned about a park facility being located behind a coanercial facility and that he feels it is ' in the City's best interest to work with the original plan. City Attorney Stein gave a status report on negotiations with the Kettleman family regarding property acquisition in the subject area. There being no further business to come before the Council, Mayor Olson adjourned the meeting at approximately 8:20 p.m. ATTEST: Alice M. Reimche City Clerk 3 AGREDI._.NT OF PURCHASE AND SALE ,J r-. A.X0 ESCROW IHSTRUCTIOtiS _1V:'TBI-P C :-A THIS AG=--�`-:`-. made tris 1 -: day of June, 1987, by and between ORR!N D• KETTLEMAN and ESTATE Or GEHTRUDE M. .�'IL EMAN Deceased, individually and as Trustees, hereinafter called „Beller", and DARYL GEWEKE or his nominees, hereinafter called "Buyer", W 1 T H E S S E T H: WHEREAS, Seller is the owner of four parcels of real improvements thereon, located in the Lod property, toge�~er with area, San Jcaquia County, California, designated as "Parcels E26 (16.77 acres), Z28 (1.62 acres), =;29 (18.81 acres) and -30 (20.0 acres) in County Assessor's Map Book, Page 049-07 and more particularly described in Exhibit "A" attached hereto and made a WHEREAS, the City of Lodi is contemplating condemning approximately 10 acres of said Parcel '30. WHEREAS, Buyer is desirous of purchasing all of parcel F26, 428, 429 and the entire Parcel 730 or such portion of parcel 730 remaining, depe::ding on its size and location, after the City of Lodi condemns same, and seliez is desirous of selling all such real property to Buyer. NOW.�{�REFORE, in consideration of the mutual promises hereinafter contained, it is agreed by. and between the parties hereto as follows: 1. City of Lod i s Condemnation. A t the present t i m e t h e City of Lodi is contemplating condemning by eminent domain -1- pr,roxi,,,ately ten (. I acres of said Parcel #30. riuyer agrees to a purchase and Seller agrees to sell all of said parcels including the Westerly ten (-,R) acre portion of Parcel R30 which will �r remn-in after the to=- by the City of Lodi providing and on th ; oort;on of Parcel Rao is of the con J o:, what e _e^:a r,: ,g _ cc.. _ minimum size an shape as provided hereafter in paragraph I.I. 1.1 Suye- agrees to purchase and Seller agrees to sell all of said parcels _ncluding such portion of Parcel X30 which remains either after the condemnation by the City of Lodi or the City of Lodi's failure 10 condemn such real property within 2 years of the date of this agreement providing and on condition that the remainder of Parcel r30 is of rectangular shape and has .a minimum curb frontage of. 625 feet and a minimum depth of 600 feet 1.2 It is understood and agreed that the commencement date of-this�agreement;,depends entirely upon when the City of Lodi completes or withdraws its condemnation of a portion of Parcel R30. Until such time, it cannot be determined the extent of the property being purchased herein by Buyer or whether the condition set forth above in this paragraph has , been satisfied. 2. The Real Property, The parcels of real property (426, n2g, u29 and R30) the subject of this purchase and sale are more particularly described on Exhibit "A", attached hereto and made a part hereof. 3. Purchase Price. Buyer agrees to pay to Seller the total sum of TWENTY—SIX THOUSAND TWO HUNDRED SIXTY AND NO/100 DOLLARS (526,260.00) an acre for the purchase price for said parcels of —2— escrow. 3.4 The remaining balance of the purchase price shall be evidenced by a secured ''romissory Note, in the form attached hereto as Exhibit "B". The Promissory Note shall bear interest at the rate of Nine and 3/4 (9 3/4%) percent per annum until the end of 1987 and thereafter the interest rate shall be one and One-half (1 1/2%) percent over the prime rate charged by Bank of Aiierica. The interest rate shall be determined on December 30 of each year for the following year. The interest rate shall never exceed Twelve and Three -Quarters (12 3/4k) percent or be lower than Six and three7Quarters (6 3/4%) percent. The promissory note shall be due and payable as follows: a. The entire unpaid balance of principal shall be paid in ten (10) equal annual installments commencing with the first installment payable on December 30, 1988. b, Annual interest payments are to commence on December 30, 1988 and are to continue thereafter -3- real property. Th' t►urchase price shall, be p?`d in installments as -fol-lows: r, • _ � hG' RL9O.Ot� 3.1 -:tet? cash to be deposited by Buyer in escrow with rounder's Title Co. immediately upon the e>:ecut on of this Agreement, 3.2 The cash sum equal to ten (10%) percent of the purchase price through and prior to close of escrow. 3.3 The sash sum. equal to ten (10%) percent of the purchase price, plus interest, six (6) months after close of escrow. 3.4 The remaining balance of the purchase price shall be evidenced by a secured ''romissory Note, in the form attached hereto as Exhibit "B". The Promissory Note shall bear interest at the rate of Nine and 3/4 (9 3/4%) percent per annum until the end of 1987 and thereafter the interest rate shall be one and One-half (1 1/2%) percent over the prime rate charged by Bank of Aiierica. The interest rate shall be determined on December 30 of each year for the following year. The interest rate shall never exceed Twelve and Three -Quarters (12 3/4k) percent or be lower than Six and three7Quarters (6 3/4%) percent. The promissory note shall be due and payable as follows: a. The entire unpaid balance of principal shall be paid in ten (10) equal annual installments commencing with the first installment payable on December 30, 1988. b, Annual interest payments are to commence on December 30, 1988 and are to continue thereafter -3- 3.5-7`0. ?rcmissory Note shall be :used by a First Deed of Trust encurnbaring the subject parcels of real roperty.The = first Deed of Trust shall be substantially in irCn the worm, attached and marL;ed as Exhibit ' and the terms of same are made a part hereof. 4. Ccndit_cn .of Sal_ property. Buyer is entirely familiar :rith the subject 7Darce1s o: real property and all improvements thereon, as well as the zoning and physical condition thereof. except as otherwise provided herein, Buyer shall., and does agree. to take all of the subject parcels of real property as presently zoned and in their present physical condition at the tine cf the execution of this Agreement. 5. Escrow. This sale shall be consumr:ated through an escrow established with Founders Title Company. Escrow shall open i-amediately after the execution of this Agreement, and in 'no event. later than 30 days from the date of signing this agreement. An executed counterpart of this document constitutes the joint escrow instructions of Seller and Buyer. Supplemental form instructions for the benefit of escrow holder in form customarily supplied by escrow holder shall be executed by Seller and Buyer as the escrow holder shall require. Escrow shall close within. thirty (30) days from the receipt of the written refusal of the city of Lodi to conde;Tn any portion o: the subject property or from the recordation of the transfer to the City of Dodi pursuant to its condemnation. 5.1 As soon as -it has been determined what action the City of Lodi shall take and the completion thereof, each -4- ,._._-,...-�...»,-. Party shah f�,thwi�h thereafter execute nd deliver to the escrow holder _mss written instructions consistent with the terms of this A=eement and shall provide the escrow holder s With such oche_ information, documents, and ir.sI-UMents as the escrow holder may -reasonably require to enable it to close the transection on the closing date. 5.27i -me is of the_ essence of this agreement and failure to co,.;ply with this provision shall be a material breach of this Agreement. If escrow fails to close as provided above, Buyer or Seller may at any time thereafter, give written notice to the escrow holder to cancel the escrow and, except as nay otherwise be provided herein, return all money anal d3cuments in escrow to their respective depositors. The escrow holder shall comply with the notice without further consent fr,)m any other party to the escrow or from the broker. Cancellation of escrow as provided here shall be without prejudice to whatever legal rights Buyer and Seller may have against each other. 5.3 The following expenses shall be shared equally by Seller and Euyer, Seller's portion to be deducted from the cash portion of the purchase price, Buyer's portion to be paid by Buyer into escrow upon notice from the escrow holder when the escrow is otherwise in a condition to be closed: a. The expense of the title company to provide a CLIA Standard Policy of Title Insurance insuring the interest of Buyer vested in title and the first lien position of the First Deed of Trust as -5- ' rte. ;. describt herein; ,,. Expense of the fee of , a escrow holder to act as such in this transaction; 5.4 The follow4ng expense shall be those of Seller alone to be deducted the cash portion of the purchasE ^rice: a. Coss to record the First'. Deed of Trust to Seller; b. San Joaquin County docu„,entary stamps necessary to record the deed; 5.5 City, county and District Taxes for the 1987- 1903 fiscal year shall be prorated as of close of escrow. 5.6 Buyer shall pay costs to reco_d Seller's Deed, n,cr..ro, , mc- m..,., ca o es or use tax that may be assessed a s a result of this sale. r 6. Title tm Property. Except as may otherwise be provided herein. title to said real Property to be conveyed pursuant to this Agreement shall be a fee simple interest, free and clear of all title defects, liens, encumbrances, deeds of trust, and mortgages except for current general and special taxes which are then a lien and except for covenants, conditions, restrictions, and public utility easements of record, if any, provided the same do not adversely affect the continued use of the property for the purposes for which it is presently being used, unless reasonably disapproved by Buyer in writing within fifteen (15) days of receipt of a current preliminary title report. 7. Failure of ritle. If Seller is unable for any reason to deliver title as herein provided, Buyer's remedy shall be limited —6— to either (i) te: nate this Agreement of P, -hase and Sale and this escrow and having returned to it the deposit set forth in ?aragraDh 4, or such additional sum as may be deposited in escrow as required by this Agreement, in which case Buyer and Seller shall be role -ase from further liability or obligation under this contract and escrow instructions, or (ii) without adjustment in purchasc fir_ _, c.._ without hav_ng any right or cl�_m �or dar pups thereof, accepting and. taking such title to property as Seller has and can convey. 6. Vest_nc o Title. On close of escrow, title shall vest in DARYL GE_W_.-E or his nominee. The precise vesting of title shall be defined through escrow. 9. Possession of Prooerty. Buyer shall be entitled to the possession of the property on close of escrow, but during the period between the execution of this Agreement and the close of escrow, Buyer's agents and independent contractors shall be entitled to enter upon the property to the extent necessary for the purpose of planning Buyer's development of the property. 10. Proration of Taxes, Insurance and Interest. Real property taxes, interest on any assessments assumed by Buyer, rents, and insurance premiums on any hazard insurance assigned to Buyer shall be prorated as of the close of escrow on the basis of a thirty (30) day month. Any bond or assessment which is a lien shall be paid by Seller. 11. Basis of Purchase Price. The purchase price of the subject real property is based upon a per acre price,of $26,260.00. Such purchase price is contingent on Buyer's approval of a survey that determines total acres purchased equal —7— 97; of that sho• on the ;,ssessor's Map. :vey to be at Buyer's f expense. Should the acreage of the subject real property be less .F. an 97% of the designated ac-?s, the purchase price thereof shall be reduced by S25,250_:00 per acre. The purchase price e-.,c ).cr, nn ns:;-r- acre if the ac -Fars i c greater than 1-03% of the designated acres. . _ Col T ar ArTr;:,GS t'n ci r -In cIIrh documents necessary should Buyer desire to obtain rezoning or a parcel map. Such shall be at no cost or expenses to Seller. 23. Notices. All notices and demands shall be given in writing either by personal service or by registered or certified mail, postage prepaid, and return receipt requested. Notices shall be considered given when mailed. Notices shall be addressed as appears below for each party provided that if any party gives notice of a change of address, notices to the giver of that notice shall thereafter be given as demanded in that notice. To Seller: ORRIN & The Estate of GERTRUDE M. KETTLEMAN, deceased 1170 Green Oaks Lodi, CA 95240 To Buyer : DARYL GEWEKE p.O.BOX 1210 Lodi, CA, 95241 14. Broker's Commission. Buyer and Seller hereby acknowledge that there are no broker's commissions or finder's fee payable with regard to this transaction. Buyer and Seller each agree to indemnify and hold the other harmless from and against all liability, claims, demands, damages or costs of any _ kind arising from indemnitor's conduct with respect to any claim Of a broker's commission- -S- ADDEtiJOM TO REAL ESTATE PURCHASE VT_RACT AND RECEIPT FOR DEPOSIT DATED JUNE 1 1987 ©E-*Tn_ .4 DARYL GEWEAE AND TBE EXE UTORS OF TSE ESTATE OF GERTRODE M KETTELMAH, DECEASED AND ORRIH DAVID X-r—Ir=WNH, SR FOR THE SALE OP 35.58 ACRES (MORE OR LESS) COMPRISING ALL OF PARCELS 26 AhD 29 OP COUNTY'S ASSESSOR'S MAP, BOOK 049, PAGE 070 The First Deed of Trust securing payment of the balance of the purchase price snail contain an Exhibit in essentially the. following words: The :ollowine amendments are hereby made to that certain Short Form Deed of Trust and Assignment of Rents (hereinafter ..eed of _rust`) dated So long as Trustor shall not be default concerning any of she the covenants or provisions contained in this deed of trust or in the promissory note secured hereby, partial reconvevances cav be had and will be given from the lien or charge hereof of any dne or more of the parcels hereinafter described upon pay-ent of an amoe:nt, to apply on the principal of the note for each of said parcels so reconvened to be determined as follows: . As concerns the north half of San Joaquin County Assessor's Parcel NO. 049-070-29, containing 9.40 acres more or less, the sum of $246,84.. 15. Inter; it--a-ulon, This Agreement s ill be construed as a ,,;hole and in accordance With the fair meaning of its language, and shall not be construed for or against either ;arty, Captions are for convenience and sh:�li not be used in construing meaning. 15. Tnureme-t , ,his kgreement and its terms shall inure zo the benefit of and be binding upon the parties, their respective heirs, perscnal reoreser,tatives, assigns, and other successors in interest. 17. --n+-i-e Icreement. This Agreement supersedes any prior agreement and contains the entire agreement of the parties on the matters covered, Na other agreenent, statement or promise made by any party to any employee, officer or agent of a party to this Agreement, or any other person, that is not in writing and signed by all the parties to this Agreement shall be binding upon them, 18. Waiver of Covenants, Condition Remedy The waiver by one party of the performance of any covenant, condition, or promise shall not invalidate this Agreement, nor shall it be considered a waiver by him of any other covenant, condition, or promise. The waiver by either or both parties of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in this Agreement shall hot be a waiver of any consistent remedy provided by law, and the provision in this Agreement for any ,remedyshall not exclude other consistent remedies unless they are Expressly excluded. 19. The Applicable Law. The validity, interpretation, effect, legal requirements, and legal consequences of this Agreement or arising out of or in connection with the subject iiia t-.-er thereo* , O- cal-10,ZMia. z? ba detwr inpd by tha gal law of the St to 20• =ees. Tf either party files any action or brings any Proceeding agai:ist the other arising out of this agreem,wnt, or is -ade a party to any action or aroce Wing browght by the escr w ho'oe_, Lhpn zs between Bwya r and Seller, the prevailing party shall be entitled to recover as an wlament of its costs of suit, anM no as uamagps reasooQble �ttorno-s' zees to be fixed by the Court. Thp "prevailing parte shall ba the party who is entitled to recover its costs of rtuit, whether or not suit proceeds to final judgment. A party not entitled to recover its costs shall not We cowntaM in calcwlating tha amount of a judgment for purposes of determining whethar Q party is entit lew to its costs o, attorneys' fads. Vanua in Qn7 swch acticn would ba t,e Cownttr of San Joaquin, State of California.. 1 Martial Rel easeof Acreaoe That att-ch W hereto marked Exhibit "D" and mawa Q part Nareof is a ;Y.1Qn fox the partial release of acrp,Qge from the secwrity of the awed of Trust upon sp a c i f is d ;y.aymen is by Buyer to Sa l l er 21.1 Tha Dead of Trust to be given by auya r to Seller as provided herein shall contain provisions regarding -the partial release of land which are consistent with all of the terms and conditions of this Agreement. 22. Existina Lease. Buyer assumes Seller's fifty (50%) percent iotarest io all farm income and loss wndar the akisting one ya ar ovral lease for the 1987 grapy crops . Bwxa r to ra imbwrsa Seller for actwal farming expense, if Qoy. of Sellar to Mate It _10- is understood that Buyer assumes no other lease without first giving his a p oval . 23. Co:�.CC7,firmation. It is understood and agreed that 'his sale shall he co-,n eted without the necessity of confirmation tv co-,rt- 24 o....t24 • Irv_ ) Mer-- ra ldu-M of ID13-c as Ck" ea)-ts- simultanecusiv. with the execution of this Agreement, the parties hereto will __,-ewise execute a Memorandum of Purchase and sale which may therea'ter be recorded by either party. 25. G2c'_cg cal i.nsUection. Within 30 calendar days after Seller's acce=Cance, Buyer shall have the right at Buyer's expense, to select a qualified professional to make tests, surveys, or ocher studies of the subject property. Buyer shall keep the subject property free and clear of any liens, indemnify and hold Seller harmless from all liability, claims demands, damages or costs, and repair all damages to the property arising from the tests, surveys, or studies. A11 claimed defects concerning the condition of the property that adversely affect the continued use of the property for the purposes for which it is presently being used shall be in writing, supported by written reports, if any, and delivered to Seller within 30 calendar days after Seller's acceptance. Buyer shall furnish Seller copies, at no cost, of all. reports concerning the property obtained by Buyer. when such reports disclose conditions or information unsatisfactory to the Euyer, which the Seller is unwilling or unable to correct, Euyer may cancel this agreement. Seller shall make the premises available for all inspections. BUYER'S FAILURE TO NOTIFY SEMM SHALL CONCLUSIVELY BE CONSIDERED APPROVAL. -zl- -11- 26. Under,, ound Storaoe Tanks. Sell,-_ represents that to ,--.� the best os their knowledge, there are no, nor have there ever been, underground storage tanks of fuel or other pollutants or hazardous substances on the subject property. The parties hereto have executed this Agreement of Purchase and Sale on the day .and year first above written. ORR I N D. KEETTLEMEN GE4,�EKE ' —Buyer— ESTATE OF GERTRUDE M. yKE�TTLEMEN, Deceased B 1V (/h P.7 c__" P. 'eo Consented to: JE -Y K STICKLER / —12— EYFIIBIT D CC7tV-T-P�AC:-F AGiF�2F=EMF_,N-l- THIS AGREEMENT ENTERED INTO THIS DAY OF ........ 1986, BY AND BETWEEN THE CITY D- LODI, A MUNICIPAL CORPORATION, HEREINAFTER REFERRED TO AS "CITY" AND RICHARD BIGLER ASSOCIATES, LANDSCAPE ARCHITECT, HEREINAFTER REFERRED TO AS "CONSULTANT, HEREBY AGREE AS FOLLOWS: 1. CITY DOES HERESY ENGAGE CONSULTANT TO PERFORM FOR THE CITY UNDER THE TERMS AND CONDITIONS I N T H I S AGREEMENT, SERVICES AS SET FORTH HEREIN FOR THE DEVELOPMENT OF THE LANDSCAPING PLANS AND DESIGN OF THE C BASIN PARK SITE. THE FOLLOWING ARE THE BASIC SERVICES TO BE PROVIDED BY THE CONSULTANT W14EN AUTHORIZED IN WRITING BY THE CITY. BASIC SERVICES TASK !, DESIGN PHASE: THE CONSULTANT SHALL COOPERCITE WITH TtIE CITY IN DEVELOPING TIIE SCOPE AND RE -DESIGN OF THE LANDSCAPING AND SITE DEVELOPMENT t WITHIN THE PROJECT AREA. WORK SHALL INCLUDE THE FOLLOWING. A . DESIGN OF LANDSCAPING AND SITE DEVELOPMENT DRAWN AT A SUITABLE SCALE FOR PRESENTATION TO PUBLIC GROUPS FOR REVIEW AN5 AND TO INCLUDE A COLOR RENDERING. B. ATTEND MEETINGS AT THE CITY WITH STAFF AND INTERESTED PARTIES DEVELOPMENT OF THE DESIGN. C. MAKE PRESENTATIONS AND ATTEND MEETINGS IN THE CITY AS NECESSARY. D. PREPARE COST ESTIMATES BASED ON MASTERPLAN DESIGN CONCEPT. ;�3H�tW�'c'...........,.,s�.,.,..,..,...,,.:.:wu.wnFs.��,mw�,ware•!+- ,v;:;.:.:.�:..,..?.�.is.?�.a57;w..f�.,,iC�n.+,o,.F..irn�.%etr�fxs`.Stth.`iw.:xac+wi..^'."�."`"� `' 7. E. PREPARE GRADING PLAN AT SUITABLE SCALE TO 1'-0" CONTOUR INTERVALS. F. REDUCE ALL DRAWINGS TO FIT INTO A 8 1/2 X 11 FORMAT WITH COSTS, PHASING PROFILE AND OTI4ER PENT I NEN f DATA TO T14E DESIGN THAT CAN BE PUBLISHED OR USED IN FUNDING PROPOSALS. FHE CITY WILL PROVIDE ENGINEERING FOR PROVIDING OF BASE MAPS, LOCATION OF UNDERGROUND UTILITIES, OR STRUCTURE. CITY SHALL PAY FOR ANY BORING AND TESTING REQUIRED. CONSULTANT FEES: FOR THE PERFORMANCE OF THE BASIC SERVICES SET FORTH HEREIN, T f IE CITY IS PREPARED TO PAY T14E CONSULTANT ON A BASIS OF LABOR AND MATERIAL AS FOLLOWS: FEE NOT TO EXCEED.............................79000.00 PRINCIPAL LANDSCAPE ARCHITECT AT. .50.00-00 PER HOUR STAFF LANDSCAPE ARCHITECT AT ...... 40.00.00 PEE HOUR STAFF DRAFTSMAN ...................25.00.00 PER HOUR REIMBURSEMENT OF EXPENSES AS RELATED TO THE PROJECT. PAYABLE MONTHLY AS TO THE CITY APPROVEL SCHEDULE OF COMPLETED WORK ITEMS. THE OWNER AGREES TO LIMIT THE DESIGN PROFESSIONAL'S LIABILITY TO THE OWNER AND TO ALL CONSTRUCTION CONTRACTORS AND SUBCONTRACTORS ON THE PROJECT, DUE TO THE DESIGN PROFESSIONAL'S NEGLIGENT ACTS, ERRORS, OR OMISSIONS, SUCI4 THAT THE TOTAL AGGREGATE LIABILITY OF THE DESIGN PROFESSIONAL TO ALL THOSE NAMED SHALL NOT EXCEED 50,000.00 OR THE DESIGN PROFESSIONAL'S TOTAL FEE. FOR SERVICES RENDERED ON THIS PROJECT, WHICHEVER IS GREATER. Mrv+.w+:.::+rw<r..n:w+....w-�.w-.+..+o.•..,�....�., �....... .......w..nw.�aW:.... s.. eY: .... s. F :i :»4 n. -.✓as .�.< .%c,,:ii: '- ,..+....... ;fix o �� .. *. _ _ _ TERM (NATION OF AGREEMENT _ THIS AGREEMENT MAY BE TERMINATED BY EITHER PARTY UPON WRITTF-N NOTICE SHOULD THE OTHER PARTY FAIL SUBSTANTIALLY TO PERFORM IN ACCORDANCE WITH ITS TERMS THROUGH NO FAULT OF THE OTHER. ON TERMINATION, THE CITY SHALL PAY THE CONSULTANT FOR WORK PERFORMED TO THAT DATE. APPROVED: CITY OF LO DI BY------- MAYOR OF THE CITY OF L O D I ATTEST: ------------------------- CITY CLERK APPROVED AS TO FORM AND LEGALITY ------------------------- CITY ATTORNEY APPROVED RXCHARD BXGLER ASSOCIATES BY RICHARD A. BIGLER LANDSCAPE ARCHITECT 1168