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Al Rodbell

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  • in reply to: Legitimate objections to be addressed #1540
    Al Rodbell
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    Mr. Coffey

    First, let me say that the central premise of my posting, that the EUSD is defining how the city uses the property; upon careful inspection of the actual contract, (URL below) is not correct. While early conversation and perhaps the MOU did have a requirement that the city zone this property only for exclusive public use which would have hindered flexibility that I described in response to unexpected events, this has not survived to the contract.

    The contract still contains the clause that the single room schoolhouse shall remain on the property in perpetuity, which while not a deal breaker, should be removed if we were to get into re-negotiation (which we should for reasons of hazardous substances removal below) simply because a future council could choose to move it to the Historical Society Location at Quail Garden Drive to fit the city’s larger plan for a museum area there. This could providing more scope for a conceptual design that could include a revenue producing residence element. There is no reason to contractually preclude this in perpetuity– which is a long long time!

    The hazardous material clause (5.1.7 below) allows us to negotiate a reduction of the sales price based on this parsed restatement of the clause:

    To the best of Seller’s actual knowledge: (1) no Hazardous Substances (asbestos and lead pant is included in this term) has been treated on the property which subjects the buyer to liability under Hazardous Substances Law.

    Seller could only have made this statement of ignorance of treatment by asbestos and lead paint by willful ignorance of said materials commonly being used during the period of construction. Therefore the cost of remediation and additional insurance for future claims warrants a demand for reduction in agreed price of property. The refusal of the council majority to seek this is an abrogation of their fiduciary responsibility that should not stand.

    The buy-back clause of the contract is highly restrictive with unexamined unnecessary potential costs First our final expenditure including bond fees is aprox. $10,500,000. The required sell back at the lower nominal price would have been appropriate had the price been discounted based on the expectation of it’s use being a public benefit. But we are paying the market value, and as such should have been treated the same as a private investor, which means to bear any loss and reap any gain. Furthermore the clause, in the unexpected event of a forced sale, would deter serious investors, knowing that the school board has an undefined right to purchase, with the details of conditions of sale undefined. At the very least the clause should be revised to state that upon our notice to the district within the ten year period they must submit an offer with the identical terms of the instant Contract of Sale and Purchase which includes a reasonable non refundable deposit of ten percent of the agreed price. Absent this change, the current wording of this clause, will unnecessarily hinder facilitation of such possible forced sale.

    6.3 Covenant Not to Sell within 10 year period; Exception. Buyer shall not sell the
    Property for ten (10) years from the date of the close of escrow, except as set
    forth herein. If the Buyer decides to sell the Property before said ten (10) year
    period elapses, Buyer must first offer the Property back to the Seller for re-
    purchase for the Purchase Price and, in addition, the reasonable value of any
    improvements made to the Property by Buyer. After said ten (10) year period,
    Buyer may dispose of the Property in any manner it chooses
    .

    Because of this first posting I have done more extensive research. I still believe we can move forward in good faith, which includes correcting the response to discovering hazardous material, and the correct acreage which we had no duty to research before the execution of the purchase and sale contract. The buy-back clause should be either eliminated or revised as my suggestion. The requirement to retain the one room school house in it’s location should be removed. These are all inappropriate, and may have been a good strategy by Mr. Baird when he was playing hard ball, but is no longer now that the City has agreed to a market value price for this property.

    We are now at a stage of this sale where both parties should go beyond an arms length negotiation for maximum economic benefit, to mutual interest in fairness for our common constituents. The issues I raise are based on such fairness, and do not renegotiate the purchase price.

    This group of SavePacificView has succeeded in it’s goal. Now is be time to shift to lobby for removal the residue of the contentious period by refining the contract for the benefit of the people of this city.

    Al Rodbell
    references:
    5.1.7 Hazardous Materials.
    (a)
    To the best of Seller’s
    actual knowledge: (1) no Hazardous Substances
    (as defined herein) have been generated, treated, stored, deposited, disposed of
    or released on the Property, or within any surface or subsurface waters thereof;
    (2) no underground tanks have been located on the Property; and (3) there are
    no substances or conditions in or on the Property which may support a claim,
    cause of action or liability for Seller or Buyer or any third party under any
    Hazardous Substances Laws (as defined herein).

    Full contract of purchase and sale:

    *http://savepacificview.org/wp-content/uploads/2014/05/2014-05-28_Item_10B_-_Consideration_of_Pacific_View_Purchase_Agreement

    • This reply was modified 6 years, 11 months ago by Al Rodbell.
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