HomeMy WebLinkAboutCC Resolution 12989 (Medway/Canal Enhancement Property Purchase)RESOLUTION NO. 12989
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AUTHORIZING EXECUTION OF THE PROPERTY PURCHASE AGREEMENT WITH
THE VIOLA BELLACH COLE FAMILY LIMITED PARTNERSHIP FOR THE
PURCHASE OF A PORTION OF PROPERTY LOCATED AT 777 FRANCISCO
BOULEVARD EAST FOR RIGHT OF WAY PURPOSES IN CONNECTION WITH THE
MEDWAY/CANAL ENHANCEMENT PROJECT, AND ACCEPTANCE OF THE
GRANT DEED FOR SUCH PROPERTY.
WHEREAS, public interest, convenience and welfare require that the
property hereinafter mentioned owned by the Viola Bellach Cole Family Limited
Partnership be purchased and used for the benefit of the public of the City of San Rafael,
California.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of
San Rafael that the Mayor is authorized to execute the Property Purchase Agreement
between the Viola Bellach Cole Family Limited Partnership and the City of San Rafael, a
copy of which is attached hereto, marked as Attachment "I", and incorporated herein by
this reference; and
IT IS FURTHER RESOLVED by the City Council of the City of San
Rafael to accept the Grant Deed from the Viola Bellach Cole Family Limited Partnership
Trust to the City of San Rafael, a copy of which is attached hereto, marked as
Attachment "II" and incorporated herein by this reference.
I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the
Council of said City on the 21" day of June, 2010, by the following vote, to wit:
AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ESTHER C. BEIRNE, City Clerk
CITY OF SAN RAFAEL
PROPERTY PURCHASE AGREEMENT
This Agreement is entered into this2910day of June, 2010, by and between THE
VIOLA BELLACH COLE FAMILY LIMITED PARTNERSHIP ("GRANTOR") and the
CITY OF SAN RAFAEL, a Charter City ("CITY").
WHEREAS, the CITY desires to acquire the real property described and depicted
in Exhibits "A" and "A-1" attached hereto ("Property") in fee title in connection with the
CITY's construction of improvements in the project known as the Medway Canal
Enhancement Project; and
WHEREAS, GRANTOR is willing to convey the Property to the City in fee title in
connection with the aforementioned CITY project; and
WHEREAS, GRANTOR previously granted two Temporary Construction
Easements to CITY described and depicted in Exhibits "B" and "B-1" and "C" and "C-1"
attached hereto in connection with the CITY'S construction of the aforementioned
improvements; and
WHEREAS, GRANTOR previously approved the CITY's relocation as shown on
Exhibit D attached hereto of a palm tree and sign that were located within the Property
covered by the fee conveyance approved herein; and
WHEREAS, as more fully set forth in the Memorandum dated December 21,
2009, attached hereto as Exhibit "E", the CITY's Community Development Department
has determined and represented to GRANTOR that the CITY's acquisition of the
Property hereunder will not affect the legal nonconforming status under the City's
zoning ordinance of (1) the existing 26,650 square -foot structure on the GRANTOR's
parcel since it is an alteration that will not result in any increase in the already existing
discrepancy of floor area ratio (FAR) limits or intensification of use on the parcel, or (2)
the approved 13 parking spaces on the GRANTOR's parcel.
NOW THEREFORE, the parties agree as follows:
Escrow.
Stewart Title of California, with offices at 700 Irwin Street, Suite #203, San
Rafael, is designated to conduct the escrow for the purchase of the Property. CITY
shall pay all escrow, recording and title insurance charges, if any, incurred in this
transaction.
2. CITY Pavment.
CITY shall pay to Stewart Title of California for the account of GRANTOR the
sum of Thirty Two Thousand Five Hundred and NO/100 Dollars ($32,500.00) in full
payment for and consideration of any damages to GRANTOR's property in connection
with the aforementioned project, the CITY's occupancy and use of the Property through
close of escrow, the Temporary Construction Easements described hereafter, and the
conveyance of fee title interest in the Property, conditioned upon the Property vesting in
the CITY free and clear of all liens, leases, encumbrances (recorded or unrecorded),
assessments and taxes except any exceptions to title which are acceptable to CITY as
said exceptions are identified in the title report relating to the Property issued by Stewart
Title of California dated February 12, 2009, and any updates thereof. Clearing of any
title exceptions not acceptable to CITY is the responsibility of GRANTOR.
3. Temporary Construction Easements.
GRANTOR agrees that the consideration paid herein includes payment for the
Temporary Construction Easements shown on Exhibit B and B-1, which allowed the
City, its agents and/or contractors, to enter upon GRANTOR's property on a temporary
basis for construction purposes. GRANTOR acknowledges that CITY has satisfactorily
restored and repaired any damages to the Temporary Construction Easement areas or
other portions of GRANTOR'S property in connection with CITY's work on this project,
and there are no claims for damages in connection with same.
4. Relocation of Sian and Palm Tree.
GRANTOR acknowledges that CITY relocated with GRANTOR's permission the
palm tree and sign previously located within the area of the Property covered by the fee
to be conveyed to CITY as provided herein, such relocation as depicted as shown on
Exhibit D. GRANTOR agrees that such relocation did not adversely affect or otherwise
cause any damage to GRANTOR's property.
5. Grant Deed.
GRANTOR shall deposit into escrow a Grant Deed in a form satisfactory to CITY
conveying fee title interest in the Property to CITY, within ten (10) calendar days after
CITY has deposited into escrow a copy of the executed Agreement and a check for the
amount specified in Paragraph 2.
6. Deductions to Satisfv Liens and Other Obliaations: Reconvevances and
Subordinations.
CITY may authorize Stewart Title of California to deduct and pay from the
amount shown in Paragraph 2 above any amount necessary to satisfy any liens, bond
demands, delinquent taxes or tax payment obligations due in any year except the year
in which this escrow closes, together with penalties and interest thereon, and/or
delinquent and unpaid non delinquent assessments, which may have become a lien at
the close of escrow on the Property. This deduction shall not include any amount with
respect to the tax payment that GRANTOR is obliged to pay under the GRANTOR's
payment plan with the County of Marin, provided that GRANTOR agrees to indemnify
and hold harmless CITY against any liability that the CITY may incur with respect to any
obligation to pay such taxes from the Property acquisition proceeds under Revenue and
Tax Code Sections 5083 and 5084. Current taxes, if unpaid, shall be segregated and
prorated as of the close of escrow and paid from the amount shown in Paragraph 2
above. Close of escrow for this transaction shall be contingent upon Stewart Title of
California receiving deeds of partial reconveyance and/or Subordination Agreements
from any deed of trust or mortgage holder trustees and beneficiaries as well as
Quitclaim Deeds from any lessees in possession. GRANTOR agrees to cooperate and
reasonably assist CITY in the securing of any partial reconveyances, Subordination
Agreements or Quitclaim Deeds.
7. Mortaaae and Deed of Deed of Trust Pavments.
If this Property is secured by a mortgage(s) or deed(s) of trust, GRANTOR is
responsible for payment of any demand under authority of said mortgage or deed of
trust out of GRANTOR's proceeds necessary to obtain a partial reconveyance of said
mortgage or deed of trust. Such amounts may include, but not be limited to, payments
of unpaid principal and interest.
8. Escrow Instructions.
GRANTOR hereby authorizes CITY to prepare and file escrow instructions in
accordance with this Agreement on behalf of both parties. GRANTOR will be provided
with a copy of CITY's escrow instructions by Stewart Title of California prior to close of
escrow.
9. Hazardous Wastes.
GRANTOR hereby represents and warrants that during the period of
GRANTOR's ownership of the property, GRANTOR has no knowledge of any disposals,
releases or threatened releases, hazardous substances or hazardous wastes on, from,
or under the Property. GRANTOR further represents and warrants that GRANTOR has
no knowledge of any disposal release, or threatened release of hazardous substances
or hazardous wastes, on, from, or under the Property which may have occurred prior to
GRANTOR taking title to the Property.
The acquisition price of the Property reflects the fair market value of the Property
without the presence of contamination. If the Property being acquired is found to be
contaminated by the presence of hazardous waste which requires mitigation under
Federal, State or local law or ordinance, CITY may elect to recover its cleanup cost from
those who caused or contributed to the contamination.
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10. Riaht of Possession.
It is agreed and confirmed by the parties hereto that, notwithstanding the other
provisions in this Agreement, the right of possession and use of the Property by the
CITY, including the right to remove and dispose of improvements, shall be deemed to
have commenced on September 1, 2007 and that the amount shown in Paragraph 2
herein includes, but is not limited to, full payment for such possession and use,
including interest and damages if any, from said date.
11. Bindina on Successors and Assians:
This Agreement shall be binding on and inure to the benefit of the respective
heirs, successors and assigns of the parties to this Agreement.
12. Lease Warrantv and Quitclaim Deeds.
GRANTOR warrants that there are no oral or written leases or subleases on all
or any portion of the Property identified and depicted in Exhibits "A" and "B" exceeding a
period of one (1) month at the time of signature of this Agreement and GRANTOR
further agrees to hold the CITY harmless and reimburse CITY for any and all of the
losses and expenses occasioned by reason of any lease or sublease of said Property
held by any tenant of GRANTOR.
13. Approval of CITY.
GRANTOR understands that following execution of this Agreement by
GRANTOR, the Agreement is subject to the approval by the City Council of the City of
San Rafael.
14. Authoritv to Sian.
The signatories to this Agreement represent and warrant that they are authorized
to enter into this Agreement, and that no other authorizations are required to implement
this Agreement on behalf of GRANTOR.
15. Entire Agreement.
The parties have herein set forth the whole of their agreement. The performance
of this Agreement constitutes the entire consideration for the Grant Deed and
Temporary Construction Easements, and shall relieve the CITY of all further obligations
or claims on this account or on account of the location, grade, construction or operation
of the CITY improvements in connection with the project known as the Medway Canal
Enhancement Project.
4
16. Counterpart Siqnatures.
This Agreement may be executed in counterparts, each of which shall be an
original, but all counterparts' signatures shall constitute one (1) agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first written herein below.
CITY OF SAN RAFAEL
BY:
ALBEYT/J. BORO�AYOR
ATTEST:
[2
ESTHER C. BEIRNE, CITY CLERK
ROBERT F. EPSTEIN, City Attorney
THE VIOLA BELLACH COLE
FAMILY LIMITED PARTNERSHIP
BY:
GENERAL PART EW -S PRINTED3 NAME
Date: February 23, 2010
File: 4.1069.02
EXHIBIT 4A'
LEGAL DESCRIPTION
All that real property, situate in the City of San Rafael, County of Marin, State of California,
being a portion of Lot 12, Block 9, as shown on that certain map entitled "Map of East San
Rafael, Marin County, California" recorded in Book 2 of Maps, at Page 109, Marin County
Records, described as follows:
BEGINNING at a point on the easterly line of said Lot 12, said point also being the most
easterly comer of that parcel conveyed to The State of California in document 650 of Official
Records at Page 456, Marin County Records;
thence leaving said easterly line of said Lot 12 and along the northerly line of said State of
California parcel North 54°42'00" West, a distance of 12.00 feet;
thence leaving said northerly line of said State of California parcel North 68°5924" East, a
distance of 21.63 feet to a point on the easterly line of said Lot 12;
thence along said easterly line of Lot 12 South 35°18'00" West, a distance of 18.00 feet to the
Point of Beginning.
Containing 108 square feet, more or less.
See Exhibit 'A-1' attached hereto and made a part thereof.
Prepared by
CSW/STUBER-STROEH ENGINEERING GROUP, INC.
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LEGAL DESCRIPTION
SAN RAFAEL MARIN COUNTY CALIFORNIA
Date: February 23, 2010
File: 4.1069.02
EXHIBIT B'
LEGAL DESCRIPTION
TEMPORARY CONSTRUCTION EASEMENT
All that certain real property situate in the City of San Rafael, County of Marin, State of
California, being an easement for temporary construction purposes, lying over and across a
portion of Lot 24, Block 9, as shown on that certain map entitled "Map of East San Rafael",
recorded in Book 2 of Maps, at Page 109, Marin County Records, said easement being
described as follows:
The southeasterly 10.37 feet of the northeasterly 46.32 feet of Lot 24, Block 9, as shown on
said Map recorded in Book 2 of Maps, at Page 109, Marin County Records.
Said easement containing 480 square feet, more or less.
See Exhibit B-1' attached hereto and trade a part thereof.
Prepared by:
CSW/STUBER-STROEH ENGINEERING GROUP, INC.
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m 2007 SAN RAFAEL MARIN COUNTY CALIFORNIA
Date: February 23, 2010
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EXHIBIT `C'
LEGAL DESCRIPTION
TEMPORARY CONSTRUCTION EASEMENT
All that certain real property situate in the City of San Rafael, County of Marin, State of
California, being an easement for temporary constriction purposes, lying over and across a
portion of Lot 12, Block 9, as shown on that certain map entitled "Map of East San Rafael",
recorded in Book 2 of Maps, at Page 109, Marin County Records, said easement being
described as follows:
COMMENCING at a point on the easterly line of said Lot 12, said point also being the most
easterly comer of that parcel conveyed to the State of California in document 650 of Official
Records at Page 456, Marin County Records;
thence northwesterly along the northeasterly line of said State of California parcel (650 OR
456), North 54°42'00" West, a distance of 12.00 feet to the Point of Beginning of the
easement herein described;
thence leaving said Point of Beginning, and continuing along the northeasterly line of said
State of California parcel (650 OR 456), North 54°42'00" West, a distance of 6.01 feet;
thence leaving said northeasterly line of said State of California parcel North 68°59'24" East, a
distance of 32.47 feet to the southeasterly line of said Lot 12;
thence southwesterly along said southeasterly line of said Lot 12, South 35 ° 18'00" West, a
distance of 9.01 feet;
thence leaving said southeasterly line of said Lot 12 South 68°59'24" West, a distance of 21.63
feet to the Point of Beginning.
Said easement containing 135 square feet, more or less.
See Exhibit `C-1' attached hereto and made a part thereof.
Prepared by:
CSW/STUBER-STROEH ENGINEERING GROUP, INC.
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EXHIBIT "E"
Community Dev,.opment Department
�U INTER -DEPARTMENTAL MEMORANDUM
DATE: December 21, 2009
TO: Eric Davis, Deputy City Attorne ,
FROM: Raffi Boloyan, Principal Planner
CC: Nader Mansourian, Assistant PublluWorks Director
SUBJECT: 777 Francisco Blvd — Implications of Reduced Land Area for a Lot with Legal
Non -Conforming Floor Area
The Planning Division has reviewed the potential implications of the Department of Public
Works acquisition of approximately 108 sq ft of land area from the property at 777 Francisco
Blvd (APN 014-204-09), in addition to temporary construction easements of 608 sq ft. The
acquisition is necessary for the completion of a pedestrian and mobility improvement project.
BACKGROUND:
The existing 26,650 square foot site hosts an approximately 19,418 -square -foot building. Staff
has not found any records of the original construction of the building but it is evident that the
building and a subsequent addition at the rear predated the current floor area ratio (FAR) limits
contained in the General Plan and Zoning Ordinance. The existing FAR for the site is 0.73,
which exceeds the current standard of 0.32 for bulk retail or specialty retail uses in this area of
East San Rafael. Given that the building was built prior to the adoption of the current floor area
ratio limits, the structure is considered legal, non -conforming in terms of FAR.
The number of parking spaces approved on this site is 13 parking spaces per the last approved
Environmental and Design Review Permit (ED99-73). Under current regulations, a 19,418 sq ft
bulk retail building would require 49 spaces (based on a 1/400 sq ft rate). The proposed
reduction in land area would not reduce the approved (13) parking spaces on the site.
The current regulations also require 15% of the site to be landscaped. The current site does not
meet this requirement.
ANALYSIS:
Floor Area Ratio:
The proposed acquisition of 108 sq feet (since the construction easements are temporary, they
would not be permanently reduced from this site) would further reduce the land area for this
site, thereby increasing the already legal, non -conforming FAR for the site. The question is
whether the reduction of the land area (and therefore corresponding increase in FAR) would
affect the legal non conforming status of this structure and the development rights attached to
the site, and if so, how.
Section 14.16.270.0 of the Zoning Ordinance addresses the regulations pertaining to non
conforming structures. Subsection 2 states "Alterations and additions may be made to a
nonconforming structure provided that there shall be no increase -in the discrepancy between
Eric Davis: Re: 777 Fd Tisco Blvd
December 21, 2009
Page 2
existing conditions and the standards for the district." After a review of this section, the Planning
Division finds:
• The land area that would be lost from this site would be transferred the public right-
of-way.
• The public right-of-way does not have development potential which would increase
as a result of the additional land area.
• The increase FAR does not change existing size of the structure, nor does it allow
increased development potential on another property.
• The primary purpose of a FAR is to regulate traffic intensity and transferring of the
land area to the public right of way would not transfer the development potential to
another private property.
• Therefore, the change to the FAR by the city acquisition of this land area is found to
be an alteration that would not result in any increase in the already existing
discrepancy of FAR limits or intensification of use, and is therefore allowed.
Consequently, if the structure were damaged in the future by natural disaster, the structure
would be allowed to be rebuilt based on the lot size before the City acquisition and. at the
current FAR of 0.73 before the city acquisition as follows:
Section 14.16.270. C.4 - A nonconforming structure damaged or destroyed to the extent
of seventy -rive percent (7596) or less of the current market value may be repaired or
replaced in its existing location, provided such restoration is started within a period of
one (1) year and is diligently prosecuted to completion.
Section 14.16.270. C.6 - All other nonconforming structures damaged or destroyed to the
extent of more than seventy -rive percent (75%) of the current market value may be
repaired or replaced provided a use permit is obtained for such restoration within a
period of one (1) year, restoration is diligently prosecuted to completion and the
structure is made to conform to all regulations of the district in which it is located, or, to
the original condition provided that a use permit is issued by the planning commission
after finding that:
a. The parking is consistent with Chapter 14.18, Parking Standards, and the design
is compatible with the neighborhood in which it is located.
b. In the commercial, office, mixed-use or industrial districts, no intensification of
use is proposed.
However, the treatment of a legal nonconforming structure is different under the Zoning
Ordinance when it is removed voluntarily. In such a case, any new structure on the site would
have to comply with development regulations in effect at the time of replacement, regardless of
the legal, non -conforming status. Thus, if the property owners here were to voluntarily remove
and replace the building right now, they would be limited to the 0.32 FAR that is the standard for
bulk retail or specialty retails uses, 0.21 FAR is the standard for general retail and service and
0.26 FAR is the standard for office in this area.
The result would be the same after the City's purchase of the 108 sq ft - if the property owners
were to voluntarily remove and rebuild the building on this site, they would be limited to the
0.21-.32 FAR (depending on use). This requirement is not unique to this particular case nor is
it a result of the City acquisition. This is a standard requirement that would be required or
Erie Davis: Re: 777 Frr Isco Blvd
December 21, 2009
Page 3
imposed on any non-residential building in the City that does not comply with current
development standards and is voluntarily removed and then proposed to be built.
In summary, the diminution in lot size as a result of the City's purchase of 108 sq ft will not
change the property owners' rights to rebuild, whether the building is removed involuntarily by
accident or natural disaster, or voluntarily.
Parking:
The City acquisition would not reduce the 13 approved parking spaces. However, a site
inspection reveals that there have been some changes on the site that have increased the
number of parking spaces from 13 to 14 and changed the traffic pattern without city approval.
The legalization of the change will require an Environmental and Design Review Permit.
Landscaping:
There was some reduction in the amount of site landscaping as a result of the city acquisition
and as previously mentioned, the site was already legal, non conforming in the amount of
landscaping. A site inspection demonstrates that the further reduction in landscaping as a result
of the right of way acquisition is negligible and therefore will not effect the legal, non confirming
status of the site landscaping, i.e. no additional landscaping will be required to offset the loss as
a result of the city's acquisition.
SUMMARY
The building on this site is considered legal non -conforming in terms of both FAR and parking.
Given that this is a City acquisition, the purpose of this memo is to identify that in case of
natural disaster to damage to the structure, the property will not lose its legal non conforming
rights and they would continue to be applied as if the 108 sq ft acquisition did not occur.