HomeMy WebLinkAboutSanta Clara County - Property Purchase and Sale AgreementPURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement ") is made and entered
into this I -ftK day of 11y4 , 2014 (the "Effective Date ") by and between the County of Santa
Clara, a political subdivision of the State of California, with its principal offices located at 70 West
Hedding Street, San Jose, California 95113 ( "Seller" or "County ") and City of Gilroy, a municipal
corporation with its principal place of operation located at 7351 Rosanna Street, Gilroy, California
95020 ( "Buyer" or "City "). Seller and Buyer are sometimes collectively referred to herein as the
"Parties" and each of the Parties is sometimes singularly referred to herein as a "Party ".
RECITALS
WHEREAS, Seller is the owner of that certain Property (as hereinafter defined) located
within the City of Gilroy and the County respectively; and,
WHEREAS, the County acquired the Property as contemplated by that certain
"Agreement Between the County of Santa Clara and the City of Gilroy for the Acquisition,
Development, and Operation of the Uvas Creek Park ", executed on March 10, 1980, and amended
on March 16, 1981 with an initial twenty -five (25) year term; and the Property was subsequently
operated pursuant to that certain "Agreement and Lease" relating to the Uvas Carnadero Project
between the County Of Santa Clara And The City Of Gilroy To Provide For Funding, Acquisition,
Development, Operation, And Maintenance Of Property For The Uvas Carnadero Park ", executed
on November 6, 1990 (collectively the "Prior Agreements "), and,
WHEREAS, Buyer wishes to continue to use, operate and manage the Property as a City
park for the benefit and use of all residents of the County of Santa Clara, but wishes to do so as the
owner of the Property rather than as tenant pursuant to the Prior Agreements; and,
WHEREAS, said Property, as used by the City, is a park that is local in character; and,
WHEREAS, Pursuant to Government Code Section 25550.5, by unanimous vote, the
Santa Clara County Board of Supervisors owning any property situated in any city, which real
property has been improved for use as a public park may, upon a finding that the park is local in
character, convey such park to the city for public park purposes without consideration other than
the agreement of the city to maintain such area as a public park for the benefit and use of all
residents of the county; and,
WHEREAS, Buyer desires to purchase and Seller desires to sell fee simple title to the
Property on the terms and subject to the conditions hereinafter set forth herein (the "Purchase ")
WITNESSETH
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION as
provided for herein, the mutual covenants and agreements contained herein and other good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Seller and
Buyer agree to the foregoing and as follows:
FEB 2 5 20141.
1.0 - PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, Seller agrees to sell to Buyer and
Buyer agrees to purchase Seller's fee simple interest in the following real property and
improvements as described below (collectively, the "Property "):
(a) Real Property and Improvements. That certain real property located in the City of
Gilroy, County of Santa Clara, State of California, legally described on Exhibit
"A" attached hereto, which real property consists of approximately 100 acres,
along with all County -owned buildings, structures, parking areas, fixtures and other
improvements located on or under the real property, and all of County's interest in
existing tenements, hereditaments, easements, appurtenances, air and water rights,
oil, minerals, gas and hydrocarbons belonging or in any way pertaining to the real
property, subject to the reservations, restrictions and limitations as provided for in
the Grant Deed (Attachment 1) and the Conservation Easement Agreement
(Attachment 2) both attached hereto and incorporated herein by this reference;
and,
(b) Personal Property. None.
2.0 - CONSIDERATION
In consideration for the transfer of fee simple title to Buyer, the consideration
( "Consideration ") for the Property shall be compliance /performance by Buyer with/of all terms,
conditions, warranties, representations and obligations of this Agreement, the Grant Deed and the
Conservation Easement Agreement, including all of the following:
Buyer warrants, represents and agrees that it will at all times (in perpetuity) use,
manage, operate and control the Property as a City regional park with the long -term
goal of linking the Uvas Parkway Trail system to a countywide system of trails, parks,
and open space (the "Park Purpose ").
In order to protect the County's financial investment and the habitat values of the
property, Buyer accepts, acknowledges and agrees that full title to the Property will
transfer through a grant deed from County to Buyer which will reserve unto the County
a Conservation Easement right, a right of re -entry to inspect the property and ensure
compliance with the Conservation Easement terms, and the right, but not the
obligation, to exercise a reversionary interest to assure the property serves a public park
purpose, and which will be recorded in the Santa Clara County Recorder's Office upon
close of escrow, with the following conditions:
■ The County will retain mitigation rights (if any) and the right for future
enrollment of the Property into the Valley Habitat Plan as that plan exists
now and/or as that plan may be revised in the future ( "VHP "). Except as
otherwise stated herein, Buyer makes no representations whatsoever as to
the suitability of the Property for current or future enrollment in the VHP.
If, at a future date, the County seeks to record any document reasonably
required to establish mitigation or seeks land enrollment under the VHP, the
County and City will meet and confer to establish necessary development
zones for the City's continued provision of a regional trail system and park.
The Property, by Grant Deed, is dedicated for use, control, operation and
management as a City regional park in perpetuity, with a right of re -entry to
inspect the property and ensure compliance with the Conservation
Easement terms, and the right, but not the obligation, to exercise a
reversionary interest remaining with County in the property to assure the
property always serves a public park purpose.
Buyer acknowledges and represents that it accepts title to the Property in its "AS IS ", "WITH ALL
FAULTS" condition, and that County makes no representations or warranties as to the condition of
the Property for its intended use by Buyer or for any other purpose. Buyer acknowledges,
represents and agrees that Buyer (and not County) has been the sole operator and manager of the
Property since its initial acquisition by the County and the Buyer alone has any and all knowledge
and understanding of the condition of the Property upon its transfer to City under the Grant Deed.
3.0 - ESTABLISHMENT OF ESCROW AND SELLER'S DELIVERY OF
PRELIMINARY TITLE REPORT
Within three (3) calendar days from the Effective Date of this Agreement:
(a) Buyer will deposit an executed copy of this Agreement, along with the executed
Conservation Easement, with Escrow Holder.
(b) Preliminary Title Report And Exceptions. Buyer may obtain at Buyer's sole
expense a preliminary title report (the "Preliminary Title Report") for the Real Property prepared
by a Title Insurance Company of Buyer's choosing ( "Title Company ").
4.0 - DUE DILIGENCE PERIOD
Buyer acknowledges and agrees that prior to executing this Agreement, City has had the benefit of
a review and due diligence period to evaluate the condition and suitability of the Property and for
City to physically inspect the condition of the Property and the records and documents related to
the Property. As City has also operated the Property for many years under the Prior Agreements,
this Agreement does not contemplate a customary "Due Diligence Period."
4.01 Investigation of Property.
(a) Physical Inspection. Prior to Closing, Buyer may continue to conduct a physical
inspection of the Property and shall provide the results of such inspection to the County within five
(5) business days of completion of such inspections. More specifically, Buyer's activities on the
Property are subject to the following: (a) Buyer may, at Buyer's sole cost and expense, examine
the Property for the purpose of inspecting the same and making tests, inquiries and examinations
including but not limited to soil tests, engineering studies and environmental studies (collectively
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the "Investigations ") but will not make any borings in the Real Property or other intrusive testing
without Seller's prior written consent, which consent shall not be unreasonably withheld; (b) at the
end of each day that an Investigation is performed, Buyer, at its sole cost and expense, shall restore
and repair the Property to its original condition existing prior to such Investigations; (c) Buyer
shall pay all costs and expenses incurred in connection with the foregoing; (d) Buyer shall provide
Seller with a copy of the results of any test results and/or reports on the Property; (e) Buyer shall
remove all soils and other material extracted from the Real Property; (f) Buyer may perform any
other type of reasonable on -site inspection of the Property for purposes related to the Purchase and
(g) Buyer shall indemnify, defend and hold Seller harmless from, for and against any and all
liabilities, claims, loss, costs, bodily injuries, personal injury, property damage, professional
service liens, deaths, damage and expense, including, without limitation, attorneys' fees and
litigation costs, arising out of or related to, or which may be asserted by reason of the activities on,
under or about the Property or the Investigations of Buyer or its agents, employees, architects,
engineers, contractors or subcontractors ( "Inspection Indemnity "). Notwithstanding anything
contained in this Agreement to the contrary, the terms, provisions, conditions and indemnifications
of this Section 4.01(a) shall survive the termination, expiration or cancellation of this Agreement,
the Closing and the delivery of the Grant Deed.
(b) Property Documentation And Information. Within ten (10) business days after the
Effective Date of this Agreement, City shall provide to County copies of any and all documents
and records (if any) by or through which City has transferred or agreed to transfer now or in the
future any occupancy, operational, management, concession, contractual or usage rights to third
parties, such as, by way of example but not limitation, leases, licenses, concessions, contracts,
development agreements, grant agreements, disposition and development agreements, options;
permits or easements. For a period of three (3) years after the close of escrow, Buyer
acknowledges, agrees and accepts that County shall have the right, but not the obligation, to audit
(through County or through a third party) any and all records within the custody or control of the
Buyer relating to the operation, use or management of the Property, regardless of whether or not
such records were generated by Buyer or by any third party.
(c) Buyer may terminate this Agreement at any time prior to closing. Buyer need not
provide Seller with any justification for such termination. Termination of the Agreement shall
relieve the parties of further obligations hereunder, except as follows: those obligations, liabilities,
rights and responsibilities that by their nature should survive termination, shall so survive
termination of this Agreement, including but not limited to the Inspection Indemnity as provided
for in this Agreement, and any and all other obligations and responsibilities pursuant to any other
written agreements entered into between the parties
4.02 Environmental. Buyer shall satisfy itself as to the environmental, health and safety
conditions of the Property prior to the Close of Escrow. Buyer acknowledges that Seller shall not
be obligated to remediate any environmental, health or safety conditions on, under, adjacent to,
emanating or resulting from or otherwise affecting the Property, including in relation to any and all
Hazardous Materials as defined in this Agreement.
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5.0 - TITLE
5.01 Title. As more fully explained in Section 3.0 above, Buyer may obtain at its sole
election and expense its own Preliminary Title Report for the Property prepared by a Title
Company. Buyer shall have a review period that commences on the Effective Date of this
Agreement and ends on the midnight of the thirtieth (30) day after the Effective Date of this
Agreement ( "Title Review Period ") to satisfy itself as to the condition of title to the Property.
(a) By midnight of the thirtieth (30) day after the Effective Date ( "Title Review
Expiration Date "), Buyer shall give Seller written notice of Buyer's objection to any title matters
( "Buyer's Title Objection ").
(b) If Buyer fails to notify Seller of Buyer's Title Objection prior to expiration of the
Title Review Expiration Date, Buyer will be deemed to have approved the state of title as shown in
the Preliminary Title Report.
(c) If Buyer timely notifies Seller in writing of specific objections to title before the
Title Review Expiration Date, then Seller will have fifteen (15) calendar days after receipt of
Buyer's notification of any objection in which to advise Buyer in writing that:
(i) Seller will remove any objectionable exceptions on or before the Closing
Date; or
(ii) Seller will not cause the exceptions to be removed.
(d) If Seller advises Buyer that it will not cause the exceptions to be removed, Buyer
will have seven (7) calendar days to elect to:
(i) proceed with the purchase and acquire the Property subject to such
exceptions and all other terms and conditions of this Agreement; or
(ii) terminate this Agreement by written notice to Seller, and all rights and
obligations of the parties existing hereunder shall terminate and be of no further force or
effect, except any rights and obligations which are expressly stated to survive the
termination of this Agreement. If Buyer does not give Seller written notice of its intent to
terminate this Agreement within the aforementioned time period, then Seller shall be
deemed to have approved the state of title as shown in the Preliminary Title Report as if no
objections by Buyer have been made..
5.02 Required Title Matters. The foregoing provisions of Section 5.01 notwithstanding,
Seller shall be required to cause the removal, release, or reconveyance of any exception to title
which Seller, by writing, agrees to remove (collectively, the "Required Title Matters "). If any
Required Title Matter has not been removed, released or reconveyed prior to (or through) Closing,
Buyer may elect, as its sole remedy and in its sole discretion to terminate this Agreement. All
exceptions to title not objected to by Buyer and which Seller is not obligated to cause to be
removed in accordance with the terms hereof shall be deemed to be "Permitted Exceptions."
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5.03 Title Exceptions Discovered After Title Review Period. If after the expiration of
the Title Review Period and prior to the Closing, the Title Company reports any additional
material exception or exceptions to title (excluding survey exceptions) not approved by Buyer,
Buyer shall have until the earlier of the Closing date or fifteen (15) business days after delivery to
it of the Title Company's report showing the additional material exception or exceptions to title
(and legible copies of underlying documents) to disapprove any new material exception by
delivering notice of such disapproval to Seller and Escrow Holder on or before expiration of such
time period for disapproval. Any such material exceptions not timely disapproved by Buyer shall
be deemed to be approved, other than Required Title Matters. Seller shall have until the earlier of
the Closing Date or five (5) business days after receipt of Buyer's notice of disapproval in which to
notify Buyer of whether Seller will cause the Title Company to remove any or all of the
disapproved material exceptions as exceptions to title prior to the Close of Escrow. If Seller does
not deliver notice to Buyer of its willingness to remove all of the disapproved material exceptions
prior to the Close of Escrow, then Buyer shall deliver notice of termination of this Agreement to
Seller and Escrow Holder on or before the earlier of the Closing Date or five (5) business days after
expiration of Seller's five (5) business day period, in which case the rights and obligations of the
parties under this Agreement shall terminate, except those which expressly survive termination. If
Buyer fails to deliver such notice to Seller, then Buyer shall be deemed to have approved the
previously disapproved material exceptions, which shall become Permitted Exceptions (other than
Required Title Matters which Seller shall remove at its cost), and this Agreement shall remain in
effect.
5.04 Failure Of Seller To Remove Title Matter. If Seller commits to remove any
Required Title Matters to title as provided for under this Agreement and fails to do so by the
Closing Date, Seller will be in material default under this Agreement and Buyer may, at Buyer's
election, pursue a remedy described in Section 5.0l .d., as its sole remedy, for failure to remove
Required Title Matters. If, due to facts or circumstances beyond the reasonable ability or control of
Seller to remedy or change, Seller is unable to deliver title to the Buyer as required by this
Agreement, this Agreement may be terminated by either party without further notice and without
further obligation or liability.
5.05 Title Insurance. As a condition of the Closing, by the Closing Date, Title Company
may be requested by Buyer (at Buyer's sole cost and expense) to furnish to Buyer a CLTA Owner's
policy of title insurance or irrevocable commitment to issue same ( "Title Policy ") insuring Buyer's
indefeasible fee simple title to the Property, covering the Property in the amount of its fair market
value, subject only to the (i) Permitted Exceptions, (ii) standard printed exceptions and general
exceptions, (iii) general taxes not yet due and payable; (iv) zoning ordinances and building codes,
and (v) matters created by, through, for or under Buyer. The Title Policy may contain any standard
exceptions that have been approved by the Buyer for inclusion in all CLT A policies of title
insurance and contain such endorsements as desired by the Buyer. Seller shall not be required to
pay the premium for CLTA title insurance. Buyer shall pay for the CLTA premium and any
additional cost required to obtain ALTA coverage, as well as for any endorsements, extended
coverage or ALTA title requirements requested by Buyer.
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6.0 - CLOSING
6.01 Seller's Pre - closing Obligations. Seller covenants and agrees with the Buyer that,
from the Effective Date through the Closing Date:
(a) Compliance With Laws. Seller shall comply with all applicable laws and legal
requirements applicable to Seller in relation to the Property.
(b) No New Contracts. After execution of this Agreement, Seller shall not enter into
any new leases, rental agreements, licenses, options to lease or negotiate extensions or
modifications of any existing leases, rental agreements or licenses, or enter any other agreements
with anyone whatsoever providing any rights to the use, possession or ownership of the Property.
(c) No Adverse Action Affecting Title. Seller shall not take any action to affect title to
the Property, other than (if agreed) to satisfy the Buyer's title objections or to meet the
requirements of the Title Company for issuance of the Title Policy consistent with this Agreement.
(d) Sale of the Property. After the Effective Date and prior to the Closing, Seller shall
not solicit any offer from any person for the sale or other transfer of the Property, nor shall Seller
enter into any agreement for the sale, transfer or encumbrance of the Property, or any interest
therein, without Buyer's written consent.
(e) Further Liens and Encumbrances. Seller will not voluntarily subject the Property to
any additional liens, encumbrances, covenants, conditions, easements, rights of way or similar
matters after the date of this Agreement.
6.02 Buyer's Pre - Closing Obligations. Buyer covenants and agrees with the Seller that,
from the Effective Date through the Closing Date:
(a) As the responsible tenant of the Property, Buyer shall maintain the operation of the
Property as a park as it existed on the Effective Date of this Agreement, or better.
(b) Buyer shall have completed its Investigations of the Property pursuant to the terms
of this Agreement and all results of said Investigations shall have been deemed satisfactory;
(c) All necessary approvals, consents and the like to the validity and effectiveness of
the Purchase have been obtained by Buyer;
(d) Buyer has reviewed all materials and documents relating to the Property as
obtained or provided for under the terms of this Agreement and the results of such review are
satisfactory;
(e) All of the representations and warranties of Buyer set forth in this Agreement shall
be true at all times prior to, at and as of, the Closing in all materials respects;
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(f) Buyer shall have delivered, performed, observed and complied with, all of the
items, instruments, documents, covenants, agreements and conditions required by this Agreement
to be delivered, performed, observed and complied with by it prior to, or as of, the Closing;
(g) Buyer shall not be in receivership or dissolution or have made any assignment for
the benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have
been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or answer
seeking reorganization or any arrangement with creditors under the federal bankruptcy law or any
other similar law or statute of the United States or any state and no such petition shall have been
filed against it; and,
(h) Compliance With Laws. Buyer shall comply with all applicable laws and legal
requirements applicable to the Property (inclusive of all environmental laws) and the Purchase by
it and its obligations and representations under this Agreement.
6.03 Closing. As used in this Agreement, the term "Closing" shall mean the
consummation of the purchase and sale contemplated herein, as evidenced by the recordation of
the Grant Deed and the Conservation Easement in the Official Records of the County of Santa
Clara, which shall occur through an escrow with the Escrow Holder (the "Closing Escrow"). The
date of Closing Escrow is the Closing Date. The Closing Date shall not occur before February 1,
2014, but shall occur upon Buyer's satisfaction or waiver of the last of Buyer's Conditions
Precedent and Seller's Conditions Precedent (as said terms are hereinafter defined), but in no event
later than February 28, 2014. The Closing shall be held at the office of Escrow Holder.
7.0 - DELIVERIES AT CLOSING
7.01 Seller Deliveries To Escrow Holder. Seller shall deliver to Escrow Holder the
Seller's escrow instructions. In addition, Escrow Holder shall provide to Seller (or Seller at its
election may provide) any requisite documents and templates to be filled out by Seller, including
the following documents, which upon receipt shall be delivered back to Escrow Holder by Seller
no later than one (1) business day prior to Closing:
(a) Grant Deed from Seller conveying to Buyer the Property, subject to the Permitted
Exceptions (as hereinafter defined) in the form of Attachment 1 (the "Grant Deed ");
(b) The Conservation Easement in the form of Attachment 2;
(c) A Certificate of Non Foreign Status of Seller as required by Section 1445 of the
Internal Revenue Code;
(d) Form 590 -RE;
(e) To the extent in Seller's possession and control, originals of all of the Property
Information (as defined herein);
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(f) Seller's affidavit, if applicable, in duplicate (or such other customary title company
documents necessary to issue the Title Policy as defined herein);
(g) Such proof of Seller's authority and authorization to enter into this Purchase as may
be required by Title Company;
(h) Certificate certifying all of Seller's representations and warranties are true and
correct as of the Closing Date or to the extent which any such representations and
warranties are no longer true and correct; and,
(i) Any other documents customarily required by Title Company to issue the Title
Policy.
7.02 Buyer Deliveries To Escrow Holder. In addition to Buyer's escrow instructions,
Buyer shall, at least one (1) business day prior to Closing, deliver to Escrow Holder the following:
(a) Such proof of Buyer's authority and authorization to enter into this Purchase as may
be required by Title Company;
(b) Certificate certifying all of Buyer's representations and warranties are true and
correct as of the Closing Date;
(c) Such instruments or documents as are necessary, or reasonably required by Seller
or the Title Company, to evidence the status and capacity of Buyer and the authority of the
person or persons who are executing the various documents on behalf of Buyer in
connection with the Purchase;
(d) Such other documents as are reasonably required by Seller to carry out the terms
and provisions of this Agreement;
(e) All necessary approvals, consents, certificates and the like to the validity and
effectiveness of the transaction contemplated hereby, inclusive of a Certificate of
Acceptance.
(f) Title Company affidavits, if applicable, in duplicate (or such other customary title
company documents required by Title Company) in order to issue the Title Policy.
7.03 Joint Buyer - Seller Deliveries At Closing. At Closing, Buyer and Seller shall deliver
the following documents to the Escrow Holder:
(a) To the extent applicable, State, County and Municipal Transfer Tax Declarations;
(b) If applicable, three (3) originals of a mutually agreed upon closing statement setting
forth the expenses, adjustments and pro- rations as set forth herein, in form and substance
reasonably acceptable to the Parties (to be signed by both Parties); and,
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(c) Direction to the Title Company to record the Grant Deed and Conservation
Easement, and to make such pro - rations and pay such charges as are provided for in the
Closing Statement, and such other instructions as reasonably required to effectuate the
intent of this Agreement.
8.0 - ALLOCATION OF CLOSING COSTS AND EXPENSES
Seller shall bear the cost to record any instruments necessary to clear Seller's title. Buyer shall bear
the cost of the premium for a CLTA title insurance policy and the additional premium for an
ALTA title insurance policy, title insurance endorsements, the cost of any transfer taxes, escrow
fees and the recording fee for the Grant Deed and Conservation Easement (if any). If the Closing
does not occur due to a default by Buyer or as a result of Buyer's election not to proceed with the
purchase, any and all the escrow charges, including cancellation costs, shall be borne by Buyer. If
the Closing does not occur due to a default by Seller, any and all escrow charges, including
cancellation costs, shall be borne by Seller. If the Closing does not occur for reasons other than
default of either Party or the election of Buyer not to proceed, then the escrow charges, including
cancellation costs, shall be shared equally by and between Seller and Buyer.
9.0 - PRORATIONS
The following pro - rations, except as specifically provided herein to the contrary, shall be made as
of the Closing Date:
9.01 Real Estate Taxes. Not Applicable.
9.02 Special Assessments. Not Applicable.
10.0 - CONDITIONS PRECEDENT TO CLOSING
10.01 Conditions Precedent To Buyer's Performance. Without limiting any other
provision of this Agreement, the obligation of the Buyer to consummate the Purchase
contemplated hereby is subject to each of the following conditions, which are for the sole benefit
of the Buyer. The Buyer may, but will not be obligated to, waive anyone or more of the following
conditions prior to the Closing:
(a) Title Policy. Where applicable, the Title Company will have issued or have
unconditionally and irrevocably committed to issue the Title Policy to Buyer. (See Section 5.05).
The consummation of this transaction is conditioned on the review and approval by the Buyer of
the Preliminary Title Report, exceptions thereto, and the legal description of the Property.
(b) Compliance With Agreement. Seller shall have performed all of its obligations and
complied with all conditions required by this Agreement to be performed and complied with by
Seller on or prior to the Closing Date.
(c) Condition of Property. The Property shall not have been adversely affected in any
material way as a result of any fire, flood or act of God.
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(d) No Legal Action. The transactions to take place at Closing shall not be restrained or
prohibited by any injunction or order or judgment against Seller rendered by any court or other
governmental agency of competent jurisdiction, and no proceeding shall be pending in which any
creditor of Seller or any other person seeks to restrain such transactions or otherwise to attach any
of the Property.
10.02 Conditions Precedent To Seller's Performance. Without limiting any other
provision of this Agreement, the obligation of the Seller to consummate the sale of the Property
contemplated hereby is subject to each of the following conditions, which are for the sole benefit
of the Seller. The Seller may, but will not be obligated to, waive anyone or more of
the following conditions:
(a) Compliance with Agreement. Buyer shall have performed all of its obligations and
responsibilities and complied with all conditions required by this Agreement to be performed and
complied with by Buyer on or prior to the Closing Date.
(b) Buyer's Deliveries. Buyer shall have duly and timely delivered to Escrow or Seller,
as applicable, all of the items described elsewhere in this Agreement.
11.0 - RISK OF LOSS
Risk Of Loss. The parties understand and agree that, although obtaining certain rights prior
to the Closing, the Buyer IS assuming all risk of loss from possession of the Property prior to the
Closing. From the Effective Date up to and including the Closing Date, the Buyer (as the tenant of
the Property) shall remain responsible for each and all liabilities, costs and expenses associated
with the Property, except as otherwise provided herein.
12.0 - BROKERS
No brokers or finders of any kind have been involved in this transaction. Each party shall be
responsible for any and all commissions, finders and other fees and costs, claimed, payable or
reimbursable by, to, for or on behalf of that party (collectively, the "Broker Fees "), if any. Each
Party hereby agrees to indemnify, defend and hold the other Party harmless from and against any
liability, claim, cost, damage, or expense, including, without limitation, reasonable attorneys' fees
and costs, arising from or related to the Broker Fees arising from that parties acts. Notwithstanding
anything contained in this Agreement to the contrary, the terms, provisions, conditions and
indemnifications of this Section shall survive Closing, the delivery of the Grant Deed, and the
termination, expiration or cancelation of this Agreement.
13.0-DEFAULT
13.01 Seller Default. Prior to Closing, in the event that Seller shall be in material default
of any of its obligations under this Agreement on or prior to the Closing Date, then Buyer shall
have as its sole and exclusive remedy the right to terminate this Agreement in its entirety and to
obtain as damages the reasonable direct out -of- pocket costs and expenses actually incurred_in
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performing or carrying out Buyer's obligations under the terms of this Agreement. THE
PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE
SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES
TO BUYER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671 AND 1677.
BUYER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION
3389. UPON MATERIAL DEFAULT BY SELLER, THIS AGREEMENT SHALL
TERMINATE AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF
BUYER TO COLLECT SUCH LIQUIDATED DAMAGES FROM SELLER AND /OR
ESCROW HOLDER.
13.02 Buyer Default. Prior to Closing, in the event that Buyer shall fail to comply with
any of its obligations, covenants or warranties under this Agreement, Seller shall have as its sole
and exclusive remedy the right to terminate this Agreement in its entirety and to obtain as damages
the reasonable direct out -of- pocket costs and expenses actually incurred in performing or carrying
out Seller's obligations under the terms of this Agreement. THE PAYMENT OF SUCH
AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR
PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR
3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER
PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671 AND 1677. SELLER HEREBY
WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. UPON
DEFAULT BY BUYER, THIS AGREEMENT SHALL TERMINATE AND NEITHER PARTY
SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE
OTHER, EXCEPT FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED
DAMAGES FROM BUYER AND /OR ESCROW HOLDER. FURTHERMORE, NOTHING
PROVIDED FOR HEREIN IS INTENDED TO NOR DOES IT RELEASE CITY FROM ANY
OF ITS OBLIGATIONS, RESIBILITIES OR LIABILITIES AS A TENANT, USER,
OCCUPANT, OPERATO ANAGER OF THE PROPERTY.
BUYER'S INITIALS / SELLER'S INITIALS
14.0 - CLOSING
Seller shall deliver possession of the Premises to Buyer at the Close of Escrow.
15.0 - SUCCESSORS AND ASSIGNS
Buyer shall not assign or transfer its rights or obligations under this Agreement without prior
written consent of Seller, the granting or denial of which consent shall be in the sole discretion of
Seller. No transfer or assignment by Buyer in violation of the provisions hereof shall be valid and
any such transfer or assignment shall be void and without legal effect. Subject to the foregoing,
this Agreement and the terms and provisions, hereof shall inure to the benefit of and be binding
upon the successors and assigns of the parties.
1Fa
16.0 - NOTICES
All notices or other communications required or permitted hereunder shall be in writing, and shall
be personally delivered, sent by facsimile (with a copy sent via U.S. Mail), by electronic mail (with
a copy sent via U.S. Mail) by overnight air express service or by registered or certified mail,
postage prepaid, return receipt requested, addressed to the parties hereto at their respective
addresses set forth below. Such notice or other communication shall be deemed given upon receipt
or upon refusal to accept delivery. In the event of a delivery by facsimile, the party so delivering
such facsimile or electronic notice shall send the original notice within one (1) business day
thereafter by mail, rapid courier or personal delivery to the addressee.
To Seller:
County of Santa Clara
Attn: Robb Courtney, Director
Parks and Recreation Department
298 Garden Hill Drive, Los Gatos, CA. 95032
with a copy to:
County of Santa Clara
Office of County Counsel
70 West Hedding Street, East Wing
San Jose, CA 95110 -1770
Attention: County Counsel
Facsimile: (408) 292 -7240
Telephone: (408) 299 -5900
To Buyer:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Attention: Thomas J. Haglund
Facsimile: (408) 846 -0500
Telephone: (408) 846 -0202
Notice of change of address shall be given by written notice in the manner, detailed in this
Section 16.0.
17.0 - HAZARDOUS MATERIALS
17.01 Seller makes no warranties or representations of any nature or kind as to the
presence of Hazardous Materials or the lack thereof on, in, under, upon, adjacent to, resulting or
13
emanating from the Property. Buyer acknowledges and accepts that it shall perform its own due
diligence as to the presence of Hazardous Materials or the lack thereof on, in, under, upon,
adjacent to, resulting or emanating from the Property.
(a) For purposes of this Agreement "Hazardous Materials" includes but is not limited
to any and all (a) "hazardous substances" or "toxic substances" as those terms are defined by the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
( "CERCLA "), 42 U.S.C. § 9601 et seq., or by the Hazardous Materials Transportation Act, 49
U.S.C. § 1802 et seq., all as now and hereafter amended; (b) "hazardous wastes ", as that term is
defined by the Resource Conservation and Recovery Act of 1976 ( "RCRA "), 42 U.S.C. § 6902 et
seq., as now and hereafter amended; (c) pollutant or contaminant or hazardous, dangerous or toxic
chemicals, materials or substances within the meaning of any other applicable federal, state or
local law, regulation, ordinance or requirement (including consent decrees and administrative
orders) relating to or imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substances or materials, all as now and hereafter amended; (d) petroleum
including crude oil or any fraction or byproduct thereof. (e) any radioactive material, including any
source, special nuclear or by- product material as defined at 42 U.S.C. § 2011 et seq., as now and
hereafter amended; (f) asbestos in any form or condition; (g) polychlorinated biphenyl ( "PCBs ")
or substances or compounds containing PCBs; (h) bio -wastes or bio - substances; and (i) any
substance, organic matter, urea formaldehyde foam insulation, toxin, explosive, condition, fuel,
gasoline, hydrocarbon, lead- containing materials or substances, bloodborne pathogen, pollutant,
release, contaminant, emission, exposure, material, product, waste, device or corrosive,
flammable, infectious, radioactive or carcinogenic substance regulated by, the subject of or
covered by a Hazardous Materials Law.
(i) For purposes of this Agreement, "Hazardous Materials Law" means any
local, state or federal law relating to environmental conditions or industrial hygiene, including,
without limitation, RCRA, CERCLA, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ( "SARA "), the Hazardous Materials Transportation Act, the Federal
Waste Pollution Control Act, the Clean Air Act, the Clean Water Act, the Toxic Substances
Control Act, the Safe Drinking Water Act, and all other federal, state and local environmental,
health or safety statutes, codes, ordinances, regulations, rules, orders, administrative or judicial
action or decrees now or hereafter promulgated thereunder.
18.0 - MISCELLANEOUS
18.01 Entire Agreement. This Agreement contains the entire Agreement by and between
the parties respecting the matters herein set forth and supersedes all prior agreements between the
parties hereto respecting such matters, if any, there being no other oral or written promises,
conditions, representations, understandings, warranties or terms of any kind as conditions or
inducements to the execution hereof and none have been relied upon by either party.
18.02 Time Of The Essence. Time is of the essence of this Agreement.
18.03 Headings. Section headings shall not be used in construing this Agreement.
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18.04 No Waiver. Except as herein expressly provided, no waiver by a party of any
breach of this Agreement by the other party shall be deemed to be a waiver of any other breach by
such other party (whether preceding or succeeding and whether or not of the same or similar
nature), and no acceptance of payment or performance by a parry after any breach by the other
party shall be deemed to be a waiver of any breach of this Agreement or of any representation or
warranty hereunder by such other party whether or not the first party knows of such breach at the
time it accepts such payment or performance.
18.05 Governing Law. This Agreement, and all the rights and duties of the parties
arising from or relating in any way to the subject matter of this Agreement or the Purchase
contemplated by it, shall be governed by, construed and enforced in accordance with the laws of
the State of California (excluding any conflict of laws provisions that would refer to and apply the
substantive laws of another jurisdiction). Any suit or proceeding relating to this Agreement,
including mediation or other alternative dispute resolution proceedings, shall be brought only in
Santa Clara County, California. EACH OF THE PARTIES CONSENT TO THE
EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE
AND FEDERAL, LOCATED IN SANTA CLARA COUNTY, CALIFORNIA.
18.06 Written Modifications. No agreement, amendment, modification, understanding
or waiver of or with respect to this Agreement or any term, provision, covenant or condition
hereof, nor any approval or consent given under or with respect to this Agreement, shall be
effective for any purpose unless agreed to in writing and signed by both Parties to this Agreement.
18.07 Day. Means a calendar day except as otherwise expressly stated.
18.08 Business Days. If the final day of any period or any date of performance under this
Agreement falls on a Saturday, Sunday or legal holiday, then the final day of the period or the date
of such performance shall be extended to the next business day. For purposes of this Agreement, a
"business day" refers to weekdays, exclusive of Federal holidays and Seller holidays.
18.09 Attorneys' Fees And Costs. In the event either party hereto shall commence an
action to enforce any provision of this Agreement, the prevailing party in such action shall be
entitled to receive from the other party, in addition to damages, equitable or other relief, all costs
and expenses incurred, including reasonable attorney's fees and court costs and the fees and costs
of expert witnesses, and fees incurred to enforce any judgment obtained. If the Seller elects to use
its County Counsel's office to pursue any action hereunder, for purposes of determining the
County's attorneys' fees, the billing rates of employees of the County Counsel's office shall be
deemed to be the same as then charged by private business litigation counsel in Santa Clara County
law firms of similar size doing similar work. This provision with respect to attorney's fees incurred
to enforce a judgment shall be severable from all other provisions of this Agreement, shall survive
any judgment, and shall not be deemed merged into the judgment.
18.10 Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of both parties and their successors and assigns.
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18.11 Construction. This Agreement shall not be construed as if it had been prepared by
one of the parties, but rather as if both parties have prepared it.
18.12 Illegality or Unenforceability of Portion of Agreement. If any provision of this
Agreement, or the application of it to any person or circumstances, shall to any extent be invalid,
void or unenforceable, the remainder of this Agreement, or the application of this provision to any
person or circumstances other than those as to which it is invalid, void or unenforceable, shall not
be affected, and each provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law except where such illegal, invalid, void or unenforceable provision is
material to the Agreement in which case this Agreement shall be void.
18.13 Exhibits and Attachments. All exhibits and attachments referred to herein are
incorporated herein by this reference and made a part hereof.
18.14 Conflict of Interest. Buyer represents, warrants and agrees that it shall comply,
and require its employees, agents, representatives, contractors, consultants, sub - consultants and
subcontractors to comply, with all applicable (i) requirements governing avoidance of
impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and
regulations including, without limitation, California Government Code section 1090 et. seq., the
California Political Reform Act (California Government Code section 87100 et. seq.) and the
regulations of the Fair Political Practices Commission concerning disclosure and disqualification
(2 California Code of Regulations section 18700 et. seq.). Failure to do so constitutes a material
breach of this Agreement and is grounds for immediate termination of this Agreement by the
Seller.
18.15 Confidentiality. Except as otherwise provided for herein, Buyer shall keep the
records, information, materials and documents provided to Buyer under this Agreement
confidential and shall not disclose the contents thereof except as otherwise authorized by Seller, in
its sole discretion. Buyer, may, however, disclose said records, information, materials and
documents to its attorneys, accountants, engineers, surveyors, financiers, bankers and other parties
necessary for the consummation of the Purchase provided such other parties keep said records,
information, materials and documents confidential at all times.
18.16 Funding Contingency. This Agreement is contingent upon the appropriation of
sufficient
funding by the Seller for the obligations and responsibilities of Seller covered by this Agreement.
If funding is reduced or deleted by the Seller for the obligations or responsibilities of Seller
covered by this Agreement, then the Seller may terminate this Agreement.
18.17 California Public Records Act. The Seller is a public agency subject to the
disclosure requirements of the California Public Records Act ( "CPRA "). If Buyer's proprietary
information is contained in documents submitted to Seller, and Buyer claims that such information
falls within one or more CPRA exemptions, then Buyer must clearly mark such information
"CONFIDENTIAL AND PROPREIETARY," and identify the specific lines containing the
information. In the event of a request for such information, the Seller will use reasonable efforts to
provide notice to Buyer prior to such disclosure. If Buyer contends that any documents are exempt
16
from the CPRA and wishes to prevent disclosure, it is required to obtain a protective order,
injunctive relief or other appropriate remedy from a court of law in Santa Clara County before the
Seller's deadline for responding to the CPRA request. If Buyer fails to obtain such remedy within
Seller's deadline for responding to the CPRA request, Buyer may disclose the requested
information even if marked "CONFIDENTIAL AND PROPRIETARY".
18.18 Relationship of Parties. The Parties acknowledge and agree that nothing set forth
in this Agreement shall be deemed or construed to render the Parties as joint venturers, partners,
agents, a joint enterprise, employer - employee, lender- borrower or contractor. Buyer shall have no
authority to employ any person as employee or agent on behalf of Seller for any purpose. Neither
Buyer nor any person using or involved in or participating in any actions or inactions relating to
the Proper or this Agreement shall be deemed an employee or agent of Seller, nor shall any such
person or entity represent himself, herself or itself to others as an employee or agent of Seller.
18.19 [Intentionally Omitted].
18.20 No Third Party Rights. The Parties intend not to create rights in, or to grant
remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant,
obligation, or undertaking established herein. This Agreement shall not be construed as nor
deemed to be an agreement for the benefit of any third party or parties, and no third party or parties
shall have any right of action herein for any cause whatsoever.
18.21 Delegation of Authority. Seller hereby delegates authority to the County
Executive, or his designee, to take all actions required of the Seller under this Agreement, subject
to County Counsel's approval as to form and legality, including execution of Closing Documents,
Grant Deed, and rendering consents and extensions subject to Board of Supervisors approval.
18.22 Counterparts. This Agreement may be executed in several counterparts, and all of
such counterparts so executed together shall be deemed to constitute one and the same agreement,
and each such counterpart shall be deemed to be an original. Facsimile or electronic signatures
shall have the same legal effect as original or manual signatures if followed by mailing of a fully
executed original to both Parties.
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18.23 Survival. Those provisions which by their nature should survive termination,
cancellation or expiration of this Agreement, shall so survive.
18.24 Signatories. The undersigned signatories each represent and warrant that they are
authorized to execute this Agreement for the Parties on behalf of which they are signing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date :as provided above.
SELLER:
By:
Mike Wasserman, President
Board of Supervisors
Date: FEB 2 5 2014
ATTEST:
Signed and certified that a copy of the document
has been delivered by electronic or other means
to the President, Board of Supervisors.
REGAD Z,
Clerk of the Board of Supervisors
Date: FEB 2 5 2014
APPROVED AS TO FORM AND LEGALITY:
irley R. dw rds, Deputy County Counsel
Exhibits and Attachments:
Exhibit A — The Property Legal Description
Attachment 1 — The Grant Deed
Attachment 2 — The Conservation Easement
YE
By:
Date: l
18
Exhibit A — The Property Legal Description (as attached)
* OLD
.REPUBLIC TITLE COMPANY
* * * A MEMBER OF THE OLD REPUBLIC TITLE INSURANCE GROUP
8060 Santa Teresa Blvd., Suite 100 • Gilroy CA • 95020 • (408) 847 -1505 • FAX (408) 848 -3507
City of Gilroy, a municipal corporation Date: June 30, 2014
7351 Rosanna Street Escrow No.: 0621005031 -3W
Gilroy, CA 95020 Escrow Officer: Jan Wallace
Closing Date: June 30, 2014
Property: APN: 808 -01 -011 Uvas Park Drive, Gilroy, CA 95020
Buyer's Closing Statement
Item
Debits
Credits
Sales Price
100 000.00
Deposit to Escrow
1,390.00
Deposit by City of Gilroy, a municipal corporation 1,390.00
possession and use of property
100 000.00
Escrow Fees
400.00
Title Charges
CLTA Owner's Policy
550.00
Endorsements
103.7 Land Abuts on a physically open Street
0.00
101.4 M L Insurance - No Notice of Completion
137.50
100.1 For any specific portion of 100.1
165.00
116.7 Subdivision Map Act
137.50
Due To Buyer
0.00
Total
101 390.00
101 390.00
U
J W /jw
Buyer's Closing Statement