HomeMy WebLinkAboutSanta Clara County - Purchase and Sale AgreementPURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement ") is dated for
reference purposes as of November 3, 2014, between County of Santa Clara, a political
subdivision of the State of California ("Seller"), and City of Gilroy, a municipal corporation
"Buyer').
RECITALS
A. Seller owns the fee interest in that certain real property located at 7350 Rosanna
Street, Gilroy California, more particularly described on Exhibit A attached hereto (the "Land ")
and the approximately Four Thousand Three Hundred Seventy One (4,371) gross; square foot
building and other improvements located thereon (collectively, the "Improvements "),, together
with all, privileges, easements and other rights (if any) that are appurtenant to the Land and the
Improvements, including without limitation all mineral and water rights, appurtenant easements,
rights -of way and other appurtenances (if any) used in connection with or relating to the Land
and Improvements (the Land and Improvements, together with all such rights, privileges,
easements and appurtenances (to the extent any such privileges, easements and other rights
appurtenant to the Land and the Improvements exist) being collectively referred to herein as the
"Property').
B. Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, Seller's
full and complete interest in the Property, subject to the terms and conditions of this Agreement.
NOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged,
the parties agree as follows:
1. Purchase and Sale. In consideration of their mutual covenants set forth in this
Agreement, Seller agrees to sell all of Seller's interest in the Property to Buyer; and Buyer agrees
to purchase all of Seller's interest in the Property from Seller, for the Purchase Price (defined in
Section 2 , subject to and on the terms and conditions set forth herein.
2. Purchase Price: Deposit. The purchase price for the Property shall be Four Hundred
Ninety Six Thousan d Dollars ($496,000) (the "Purchase Price "), payable as follows:
(a) Within five (5) business days after the execution of this Agreement by Seller and
Buyer (such date of full execution being the "Effective Date "), Buyer shall deposit immediately
available funds in the amount of Five Hundred Dollars ($500) into an escrow (the "Escrow")
opened with Old Republic Title Company at its offices located at 8060 Santa Teresa Blvd., Suite
100, Gilroy, California 95020, with Jan Wallace as the designated escrow officer (telephone no.:
(408) 847 -1505, facsimile no.: (408) 848 -3507 (the "Escrow Holder") for this transaction as
earnest money (the "Initial Deposit"). If the Initial Deposit has not been deposited into Escrow
by the end of the fifth (5th) business day after the Effective Date, Buyer or Seller shall have the
right to terminate this Agreement by notice given to the other party prior to the Initial Deposit
being delivered into Escrow, and upon such termination the parties shall be relieved of any
further obligation under this Agreement other than the Surviving Obligations (defined below). .
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The Initial Deposit, plus all interest earned thereon while in Escrow, are collectively referred to
in this Agreement as the "Deposit", and shall be applied to the Purchase Price at the Closing.
Buyer may, upon delivery of the Initial . Deposit to Escrow, instruct the Escrow Holder to invest
the Initial Deposit in. an interest- bearing money market or savings account with a national
banking association or federally chartered savings and loan association, which interest shall
accrue to the benefit of Buyer and shall be applied to the Purchase Price at the Closing.' The.
Deposit shall be held by the Escrow Holder in accordance with the provisions of this Agreement.
One Hundred Dollars ($100) of the Initial Deposit ( "Nonrefundable Consideration ") shall
become nonrefundable to Buyer upon deposit into Escrow, except that it shall be refunded to
Buyer if this Agreement terminates due to Seller's default or breach of Seller's representations or
warranties. The balance of the Deposit ( "Deposit Balance") shall become nonrefundable to
Buyer upon expiration of the Due Diligence Period if this Agreement has not been terminated;
except that the Deposit - Balance shall be refundable to Buyer if (i) Escrow fails to close due to
Seller's default or breach of its representations or warranties under this Agreement, (ii) Closing
fails to occur due to the failure of any condition to Closing set forth in this Agreement which is
for the benefit of Buyer; or (iii) this Agreement provides that the Deposit Balance shall be
returned to Buyer. If upon termination of this Agreement Seller is entitled to retain any portion
of the Deposit, then Buyer shall within one (1) business day thereafter instruct Escrow Holder to
immediately release such portion of the Deposit to Seller (which obligation shall survive the
termination of this Agreement). If upon termination of. this Agreement Buyer is entitled to the
return of any portion of the Deposit, then Seller shall within one (1) business. day thereafter
instruct Escrow Holder to immediately release such portion of the Deposit to Buyer (which
obligation shall survive the termination of this Agreement). Upon termination of this
Agreement, the parties shall have no further obligations hereunder except for the Surviving
Obligations. As used in this Agreement, "Surviving Obligations" shall mean all obligations of
Buyer and/or Seller which are expressly stated in this Agreement. to survive Close of Escrow
(defined in Section 3(a)) or termination of this Agreement.
(b) In sufficient time for the Close of Escrow to occur on the Closing Date (defined in
Section 3(a)), Buyer shall deposit into Escrow, in immediately available funds, a sum equal to
the Purchase Price, together with Buyer's share of proration and costs of Escrow as provided in
Sections 11 and 12, less the Deposit (the "Additional Closing Funds ").
3. Closing.
(a) The consummation of the purchase and sale of the Property (the "Closing" or
"Close of Escrow ") shall take place on the Closing Date, through an escrow established with
Escrow Holder ("Escrow'), as evidenced by recordation of the Grant Deed described in Section
2(b) in the Official Records of Santa Clara County, California ( "Official Records "). The
,,Closing Date" shall be January 29, 2013, or such earlier date as the parties may mutually agree
upon (without obligation to so agree).
(b) Prior to Closing, in sufficient time prior thereto to allow Closing to occur on the
Closing Date, Seller shall cause to be delivered into the Escrow:
(1) A Grant Deed executed by Seller, with signatures notarized for recording
in the Official Records, conveying to Buyer the Property, in the form of Exhibit B attached
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hereto ( "Grant Deed "), which Grant Deed shall be recorded in the Official Records at the
Closing;
(2) An affidavit in compliance with the Foreign Investment and Real Property
Tax Act and a California Tax Withholding Form 593 -C, executed by Seller (the "Non- Foreign
Status Certificate" and "Form 593 -C ", respectively), certifying that Seller is not subject to
withholding under federal or state law; and
(3) Such additional instruments or documents reasonably required by Escrow
Holder in order to consummate the purchase and sale of the Property in accordance with the
terms and conditions of this Agreement, to the extent consistent with this Agreement, including
without limitation escrow instructions and an owner's affidavit reasonably required by the Title
Company to enable the Title Company to issue the Title Policy to Buyer at the Closing.
On the Closing Date, Seller shall arrange to have a complete set of all keys (if
duplicate keys exist) to the Property delivered to Buyer.
(c) Prior to Closing, in sufficient time prior thereto to allow Closing to occur on the
Closing Date, Buyer shall cause to be delivered into the Escrow the following:
(1) The Additional Closing Funds; and
(2) Such additional instruments or documents reasonably required by Escrow
Holder in order to consummate the purchase and sale of the Property in accordance with the
terms and conditions of this Agreement, to the extent consistent with this Agreement, including
without limitation escrow instructions.
(d) If the Closing does not occur by the Closing Date, then either party not then in
default may elect to terminate this Agreement and cancel Escrow by giving written notice of
such termination and cancellation to the other party. If neither party is in default, then the cost of
cancellation of the Escrow shall be shared equally between Buyer and Seller, unless otherwise
expressly provided in the Agreement. If only one of the parties hereto is in default, then such
defaulting party shall pay for the entire cost of cancellation of the Escrow. The termination of
this Agreement and cancellation of the Escrow, as provided herein, shall be without prejudice to
whatever legal rights, as said rights may be limited by the terms contained in this Agreement,
that Buyer or Seller may have against each other arising out of this Agreement and the Escrow,
which rights shall survive the termination of this Agreement.
(e) Possession of the Property shall be delivered to Buyer at the Closing, free and
clear of all tenants and occupants.
4. Inspections.
Subject to this Section below, until the earlier to occur of the Close of Escrow or
termination of this Agreement, Buyer shall have the right to enter upon the Property to inspect,
investigate and conduct tests upon the Property at its sole cost and expense. Buyer shall keep the
Property free and clear of any and all liens related to Buyer's inspections, tests and
investigations. All entry onto and inspections of the Property shall be subject to the following:
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(a). Buyer shall give Seller not less than three (3) business days prior written notice of
any entry onto the Property by Buyer or by Buyer's agents, employees, consultants and
contractors (collectively "Buyer's Representatives ").
(b) If the Property is physically damaged in connection with any of Buyer's or
Buyer's Representatives' activities on, in or about the Property pursuant to this Agreement, then
Buyer, at Buyer's sole cost and expense, shall promptly repair such damage.
(c) Buyer shall indemnify, protect, defend (with counsel reasonably acceptable to
Seller) and hold harmless Seller and each of Seller's employees, agents, officers, directors and
Board of Supervisors for, from and against any and all claims, damages, liens, suits, causes of
action, legal or administrative proceedings, fines, penalties, judgments, demands, obligations,
costs,. liabilities and losses (including mechanics' liens) and expenses (including, without
limitation, reasonable attorneys' fees) (all collectively and each individually referred to herein as
the "Claims and Liabilities ") for property damage (both real and personal), death or personal
injury to the extent caused by the acts or negligence of Buyer or Buyer's Representatives acting
on behalf of Buyer pursuant to this Agreement while on, in or about the Property, subject to this
Section 4(c) below, which obligation shall survive Close of Escrow or termination of this
Agreement. Notwithstanding any other provision of this Agreement, in no event shall Buyer
have any liability as the result of Buyer's discovery of any environmental or other condition or
fact affecting or concerning the Property, except to the extent such condition is exacerbated, or
any liability for matters caused by the acts or negligence of anyone other than Buyer and Buyer's
Representatives acting on behalf of Buyer.
5. Property Materials. Not later than the Effective Date, Seller shall deliver to Buyer for
Buyer's review and copying the following documents relating to the Property to the extent in the
possession or control of Seller (such documents being collectively, the "Property Materials "):
(i) all soils, groundwater, environmental, property inspection and other reports and test results
relating to the physical condition of the Property, including without limitation engineers' and
consultants' plans, reports and studies relating to the physical condition of the Property; (ii) all
notices of violation of laws, if any, from any governmental or quasi - governmental authorities
related to the Property; and (iii) other correspondence and notices from any governmental or
quasi - governmental authorities related to the Property.
6. Conditions to Closing.
(a) Buyer's Conditions. In addition to all other conditions to the completion of the
transaction described in this Agreement, Seller and Buyer agree that the Closing of the sale and
purchase contemplated by this Agreement is subject to satisfaction, approval or waiver by Buyer
of the matters specified in this Section 6 (a), below, which conditions are solely for the benefit of
Buyer and can be unilaterally waived by Buyer:
(i) Buyer's approval, in its sole and absolute discretion, of all matters
pertaining to the Property. Ending at 5 p.m. (Pacific Standard Time) on the fifth (5th) business
day after the Effective Date (the "Due Diligence Period "), Buyer shall have the right to review
and approve the Property Materials, to inquire and meet with all governmental or quasi -
governmental authorities, and to inspect and approve the physical condition of and all other
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matters concerning the Property, at Buyer's sole cost. If the condition set forth in this Section
6 a i is not satisfied to Buyer's satisfaction, determined in Buyer's sole and absolute discretion,
or waived by Buyer, within the Due Diligence Period, Buyer shall have the right to terminate this
Agreement by notifying Seller in writing of the termination of this Agreement ( "Buyer's
Termination Notice ") prior to the end of the Due Diligence Period. If Buyer fails to notify
Seller prior to the end of the Due Diligence Period that the condition has been satisfied or waived
and fails to deliver Buyer's Termination Notice, then, Buyer shall be deemed to have elected to
terminate this Agreement. Upon termination or deemed termination of this Agreement pursuant
to this Section 6(a)(i), the Nonrefundable Consideration shall be released to Seller, the Deposit
Balance shall be promptly refunded to Buyer, and Seller and Buyer shall thereupon be released
from all further obligations under this Agreement, other than the Surviving Obligations. After the
Due Diligence Period, if the Agreement is not terminated pursuant to this Section 6(a)(i), the
Deposit Balance shall) become nonrefundable, except where such Deposit Balance is made
refundable by express provision made elsewhere in this Agreement;
(ii) The Title Company shall be irrevocably committed to issue to Buyer at the
Closing an extended coverage ALTA owners policy of title insurance in the amount of the
Purchase Price, insuring the Property is vested in Buyer subject to no exceptions other than the
Permitted Exceptions, in the form and with endorsements to be approved by Buyer prior to the
end of the Due Diligence Period (the "Title Policy ");
(iii) There shall have been no material adverse change in the physical
condition'of the Property from the Effective Date through the Closing Date; and
(iv) Seller shall not be in material default of Seller's obligations under this
Agreement, and all of Seller's express representations and warranties set forth in this Agreement
shall continue to be true, correct and unchanged in all material respects as of the Closing.
(b) Seller's Conditions. In addition to all other conditions to the completion of the
transaction described in this Agreement, Seller and Buyer agree that the Closing of the sale and
purchase contemplated by this Agreement is subject to satisfaction, approval or waiver by Seller
of the matters specified in this Section 6 (b), below, which conditions are solely for the benefit of
Seller and can be unilaterally waived by Seller: Buyer shall not be in material default of
Buyer's obligations under this Agreement, and all of Buyer's express representations and
warranties set forth in this Agreement shall continue to be true, correct and unchanged in all
material respects as of the Closing.
7. Title. At Closing, title to the Property shall be conveyed to Buyer subject to only the
following exceptions (collectively, the "Permitted Exceptions "): (i) non- delinquent real
property taxes and assessments (if any), (ii) the standard pre - printed exceptions and exclusions
contained in an ALTA extended coverage owner's policy of title insurance, and (iii) liens and
encumbrances resulting from the acts of Buyer or any of Buyer's Representatives. Anything to
the contrary in this Agreement notwithstanding, Seller shall pay or discharge, or cause to be
removed, whether or not specifically objected to by Buyer, all monetary liens or encumbrances
affecting the Property (other than non- delinquent real property taxes and assessments, and other
than monetary liens and encumbrances created by Buyer, but otherwise including without
limitation all deeds of trust and mortgages and other encumbrances relating thereto, judgment
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liens, mechanics' and materialmen's liens or claims of lien, and liens relating to defaulted taxes),
and all liens or encumbrances voluntarily created or assumed by Seller in violation of Section
8 Ubelow; and in no event shall Seller be allowed to elect or be deemed to have elected not to
pay, discharge or cause to be removed such matters. If following the Effective Date, the Title
Company discloses additional exceptions not previously disclosed as exceptions in the
preliminary title report delivered to Buyer before the Effective Date, other than the Permitted
Exceptions, then unless Buyer agrees to accept title as it then is without reduction of the
Purchase Price, Buyer may, at its option determined in Buyer's sole and absolute discretion,
terminate this Agreement, in which event the Nonrefundable Consideration shall be released to
Seller if such exception has not been caused by Seller's default under this Agreement (and
otherwise it shall be released to Buyer), and the Deposit Balance shall be returned to Buyer.
8. Representations,_ Warranties and Covenants.
(a) Representations By Seller. Seller represents and warrants to Buyer based on
information and belief as follows:
(1) No consent or approval is required for the execution and delivery of this
Agreement by Seller or the performance by Seller of its obligations hereunder other than those
already obtained by Seller.
(2) To the best of Seller's knowledge as based on information and belief
presently available to Seller at the time of execution of this Agreement, the Property Materials
delivered to Buyer are complete copies of such documents in the actual possession or control of
Seller, and are all of the Property Materials known to be in the actual possession or control of
Seller. Prior to the Closing, Seller agrees to promptly deliver to Buyer any additional documents
received by Seller relating to the physical condition, use and operation of the Property.
(3) Seller's Board of Supervisors or County Executive have not received
written notice from any governmental or quasi- governmental authority of existing violations of
any laws or other legal requirements specifically with respect to the Property.
(4) As of the Closing, there shall be no outstanding contracts made by Seller
for any improvements to the Property which have not been fully paid for, and Seller shall cause
to be discharged and removed as an exception to title all mechanics' and materialmen's liens
arising from any labor and material furnished prior to the Closing (other than those caused by
work performed by Buyer).
The representations and warranties of Seller set forth in this Section 8(a) shall survive the
Close of Escrow.
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(b) Representations By Buyer. Buyer represents and warrants to Seller that no
consent or approval from anyone other than Buyer is required for the execution and delivery of
this Agreement by Buyer or the performance by Buyer of its obligations hereunder. The
representations and warranties of Buyer set forth in this Section 8(b) shall survive, the Close of
Escrow.
(c) Mutual Representations and Indemnity. Each party represents and warrants to the
other that it has had no dealings with any real estate broker, agent or finder in connection. with
the negotiation of this Agreement. In the event of a claim for broker's fee, finder's fee,
commission or other similar compensation in connection with this Agreement, Buyer,. if. such
claim is based upon an alleged relationship with or any agreement alleged to have been made by
Buyer, hereby agrees to indemnify, protect and defend with counsel reasonably acceptable to
Seller and hold Seller and its Board of Directors, officers, agents, employees, successors and
assigns harmless against any and all Claims and Liabilities which Seller may or does sustain or
incur by reason of such claim or claims. In the event of a claim for broker's fee, finder's fee,
commission or other similar compensation in connection herewith, Seller, if such claim is based
upon an alleged relationship with or any agreement alleged to have been made by Seller, hereby
agrees to indemnify, protect, and defend with counsel reasonably acceptable to Buyer and hold
Buyer and its City Council, officers, agents, employees, successors and assigns harmless against
any and all Claims and Liabilities which Buyer may sustain or incur by reason of such claim or
claims. The provisions of this Section 8(c) shall survive the Close of Escrow or termination of
this Agreement.
(d) Covenants of Seller. Seller hereby agrees as follows:
(1) After the Effective Date and prior to the Closing, no part of the Property,
or any interest therein, shall be sold, encumbered or otherwise transferred without Buyer's prior
written consent.
.(2) Prior to Closing, Seller shall promptly notify Buyer of any fact or
circumstance of which Seller becomes aware which would make any of Seller's representation_ s
and warranties untrue in any material respect, or any covenant of Seller under this Agreement
incapable or improbable of being cured or performed.
(e) Covenant of Buyer. Buyer hereby agrees as follows:
(1) Buyer shall. not cause or be the- reason for the imposition of any
mechanics' and materialmen's liens to be placed on or attached to the Property prior to Closing.
(2) Prior to Closing, Buyer shall promptly notify Seller of. any fact or
circumstance of which Buyer becomes aware which would make any of Buyer's representations
and warranties untrue in any material respect, or any covenant of Buyer under this Agreement
incapable or improbable of being cured or performed.
9. As Is. Buyer acknowledges and agrees that prior to the end of the Due Diligence Period,
Buyer and its representatives shall have made such inspections of the Property and matters
related thereto as Buyer and its representatives desire, and, except for SelIer's express
representations, warranties and covenants contained in this Agreement or in any documents
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delivered to Buyer at the Closing, Buyer shall accept the Property upon the basis of Buyer's own
review and determination of all matters pertaining to the Property. If Buyer does not elect to
inspect the Property before Closing, upon Closing Buyer shall be deemed to have knowingly
elected not to conduct any inspections and to have assumed the risk that there may be
environmental or other conditions affecting the Property that reasonable inspections may have
uncovered; except that in no event shall Buyer's failure to conduct any investigations of the
Property operate to relieve Seller from' Seller' breach of any of Seller's express representations
and warranties in this Agreement or in any documents delivered to Buyer at the Closing or from
any fraud on the part of Seller. Buyer acknowledges and agrees that the Property is to be sold
and conveyed to and accepted by Buyer in an "AS IS" "WITH ALL FAULTS" condition, except
for Seller's express representations, warranties and covenants stated in this Agreement or in any
documents delivered to Buyer at the Closing. Seller does not make any representations or
warranties of any kind whatsoever, either express or implied, with respect to the Property, except
as expressly stated in this Agreement or in any documents delivered to Buyer at the Closing.
10. Prorations.
(a) Subject to this Section 10 below, ' all revenues and expenses of the Property,
including without limitation real property taxes, special taxes, assessments (if any) shall be
prorated and apportioned between Buyer and Seller as of the Closing Date, so that Seller bears
all expenses with respect to the Property, and has the benefit of all income with respect to the
Property, through and including the date immediately preceding the Closing Date. If any portion
of the Property is affected by any assessment or other charge, whether for taxes or bonds, or
interest thereon, which is or may become payable in installments, and an installment payment of
such assessment is then a lien due and payable as part of the annual ad valorem property tax bill
received for the Property, then such installment shall be prorated as of the Closing Date; and if
any such assessment or other charge is not payable in installments or are not billed as part of the
annual ad valorem property tax bill for the Property, shall be paid in full by Seller at the Closing.
Notwithstanding the foregoing, Seller shall be solely responsible for clearing all possessory
interest taxes from the Property not later than the Closing. Any necessary adjustment due either
party on receipt of a supplemental tax bill will be made by the parties outside of this Escrow
within the time required by this Section 10 below, which obligation shall survive the Closing.
(b) Subject to Section 10(a) above, if any of the items to be prorated as of Closing
cannot be finally determined as of Closing, the prorations shall be made at Closing based on the
last available information, and post - closing adjustments between Buyer and Seller shall be made
within twenty (20) days after the date that the actual amounts are determined, and if payment is
not made within this twenty (20) day period the party owing such sums shall pay interest
thereon, at the rate of ten percent (10 %) per annum, from date of delivery of the bill to the non-
paying party to the date of payment. This subsection (b) shall survive the Closing.
11. Title Charges- Other Closing Costs. If this transaction is terminated by Buyer prior to the
expiration of the Due Diligence Period for any reason other than Seller's default hereunder,
-Buyer shall pay all escrow costs billed by the Escrow Holder and Title Company. If this
transaction closes as provided in this Agreement, (i) Seller shall pay that portion of the premium
for the Title Policy attributable to standard ALTA coverage (exclusive of endorsements), and the
escrow fees; (ii) Buyer shall pay recording fees for the recording of the Grant Deed (if any), and
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the portion of the premium for the Title Policy attributable to extended ALTA coverage and
endorsements issued with the Title Policy; and (iii) all other Closing costs, if any, shall be
allocated between Seller and Buyer in accordance with the custom in Santa Clara County,
California.
12. Disbursement of Funds. On the Close of Escrow, Escrow Holder shall be instructed to
disburse the Purchase Price less (a) Seller's share of proration as determined pursuant to
Section 10, (b) Seller's share of costs of Escrow pursuant to Section 11, in immediately available
funds, as directed by Seller.
13. Delivery of Documents. Escrow Holder shall be instructed to, upon the Close of Escrow,
deliver all instruments and documents as follows:
(a) Escrow Holder shall be instructed to deliver to Seller:
(i) A copy of the Grant Deed executed by Seller, showing recording
information, and certified by the Escrow Holder as being a true and complete copy of the Grant
Deed recorded in the Official Records;
(ii) A copy of the Non- Foreign Status Certificate, and Form 593 -C;
(iii) A copy of all other documents deposited into Escrow; and
(iv) The Purchase Price, less the costs and prorations chargeable to Seller
pursuant to this Agreement.
(b) Escrow Holder shall be instructed to deliver to Buyer following the Close of
Escrow the following:
(i) A copy of the Grant Deed signed by Seller, showing recording
information, and certified by the Escrow Holder as being a true and complete copy of the Grant
Deed recorded in the Official Records;
(ii) A copy of the Non- Foreign Status Certificate, and Form 593 -C;
(iii) The original Title Policy; and
(iv) A copy of all other documents deposited into Escrow.
14. Condemnation. If between the date of this Agreement and the Closing Date any
condemnation or eminent domain proceedings are initiated which would result in the taking of
any portion of the Property, then Buyer may terminate this Agreement by written notice to
Seller. Seller shall promptly notify Buyer in writing upon receiving written notice of the
commencement or occurrence of any condemnation or eminent domain proceedings affecting the
Property. If such proceedings are initiated for the taking of any part of the Property, Buyer shall
then notify Seller, within ten (10) business days after Buyer's receipt of Seller's notice (but in no
event later than the Closing Date), whether or not Buyer elects to terminate this Agreement. If
Buyer elects not to terminate this Agreement or fails to make an election within such ten (10)
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business day period or prior to the Closing Date, whichever is earlier, then Buyer shall be
deemed to have elected to proceed with the Closing without any reduction to the Purchase Price,
in which event Seller shall assign to Buyer at Closing all of Seller's right, title and interest in and
to any award made in connection with such condemnation or eminent domain proceedings, or if
such payment has been received by Seller such payment shall be credited to Buyer at the
Closing, and Closing shall be delayed, if necessary, until the later to occur of (i) the Closing
Date, or (ii) ten (10) days after the expiration of the ten (10) business day period. If this
Agreement is terminated in accordance with this Section 14, then the Nonrefundable
Consideration shall be released to Seller, the Deposit Balance shall be refunded to Buyer by the
Escrow Holder, and Seller and Buyer shall thereupon be released from all further obligations
under this Agreement other than the Surviving Obligations.
15. Risk of Loss. If prior to the Closing, the Improvements, or any part thereof, are
materially and substantially damaged or destroyed such that the total cost of restoring the
Property to the condition that existed just prior to the damage or destruction is equal to or
exceeds thirty percent (30 %) of the Property's fair market value prior to the damage or
destruction, Buyer has the right, exercisable by giving written notice to Seller within ten (10)
days after receiving written notice of such damage or destruction (but in any event no later than
the Closing Date), either (A) to terminate this Agreement, in which case the Nonrefundable
Consideration shall be released to Seller, the Deposit Balance shall be returned to Buyer, and any
other money or documents in escrow shall be returned to the party depositing the same, and
neither party shall have any Rather rights or obligations under this Agreement other than the
Surviving Obligations, or (B) to accept the Property in its then condition and to proceed with the
Closing. A failure by Buyer to notify Seller in writing within such ten (10) business day period
or prior to the Closing Date, whichever is earlier, will be deemed an election to proceed under
clause (B) above. If Buyer elects (B) in the prior sentence, all of Seller's insurance proceeds, if
any, shall be retained by Seller, and in no event shall Buyer have any obligation under the Lease
to repair or restore the Property, all such repairs and restoration to be performed by Seller if
Seller wants the Property repaired or restored.
16. Default.
(a) DEFAULT BY BUYER, DAMAGES.
IF THE SALE OF THE PROPERTY IS NOT CONSUMMATED BECAUSE OF
BUYER'S DEFAULT UNDER THIS AGREEMENT, ESCROW HOLDER SHALL BE
INSTRUCTED BY SELLER TO CANCEL THE ESCROW, SELLER AND BUYER SHALL
THEREUPON BE RELEASED FROM EACH OF ITS RESPECTIVE OBLIGATIONS
HEREUNDER (OTHER THAN THE SURVIVING OBLIGATIONS), AND AS LIQUIDATED
DAMAGES HEREUNDER, THE DEPOSIT (DEFINED IN SECTION 2(a) ) SHALL BE PAID
TO AND RETAINED BY SELLER AS LIQUIDATED DAMAGES, SUBJECT TO THIS
SECTION BELOW PROVIDED HOWEVER THAT IF THE TRANSACTION TERMINATES
DUE TO A DEFAULT BY BUYER THAT OCCURS BEFORE THE EXPIRATION OF THE
DUE DILIGENCE . PERIOD, THE AMOUNT TO BE RETAINED BY SELLER AS
LIQUIDATED DAMAGES SHALL BE LIMITED TO THE ONE HUNDRED DOLLARS
($100) NONREFUNDABLE CONSIDERATION DESCRIBED IN SECTION 2(al. THE
PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT'OF A
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KKS104706142
DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. THEREFORE, BY PLACING THEIR SIGNATURES OR INITIALS BELOW,
THE PARTIES ACKNOWLEDGE THAT THE AMOUNT DESIGNATED AS LIQUIDATED
DAMAGES IN THIS SECTION 16(a) ABOVE HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS REASONABLE LIQUIDATED DAMAGES PURSUANT TO THE
TERMS HEREOF, CALIFORNIA CIVIL CODE SECTIONS 1671 AND 1677 AND ANY
OTHER APPLICABLE LAW, AND TERMINATION OF THIS AGREEMENT AND
RETENTION OF LIQUIDATED DAMAGES AS A RESULT THEREOF SHALL
CONSTITUTE SELLER'S ONLY AND EXCLUSIVE REMEDY AGAINST BUYER IN THE
EVENT OF A DEFAULT ON THE PART OF BUYER. 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. THE
PROVISIONS OF THIS SECTION 16(a) SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
SELLER'S INITIALS: BUYER'S INITIALS:
(b) Default or Breach b, Sy eller.
If Seller materially defaults in the performance of its obligations hereunder or is
otherwise in material breach of the terms hereof, such that Buyer is materially and adversely
impacted, Buyer shall, at its election, have the right to: (i) specific performance of Seller's
obligation to convey the Property to Buyer pursuant to this Agreement, and Seller agrees that,
because of the unique nature of the Property, specific performance is an appropriate remedy for
enforcement of Seller's obligation to convey the Property to Buyer pursuant to this Agreement;
(ii) terminate this Agreement, upon which termination Buyer's remedy shall be the return of the
Deposit and recovery of all out of pocket expenses incurred by Buyer in connection with this
Agreement and Buyer's due diligence investigations relating to the Property and all other
damages incurred by Buyer as the result of Seller's default, and (iii) such other rights available to
Buyer by law or in equity. The provisions of this Section 16 (b) shall survive the Close of
Escrow or the termination of this Agreement.
17. Notice. All notices required or permitted hereunder shall be in writing and shall be
served on the parties at the following address:
If to Buyer: City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020 -6197
Attention: Thomas J. Haglund, City Administrator
Facsimile No.: (408) 846 -0500
Phone No.: (408) 846 -0203
Email: tom.haglund @ci.gilroy.ca.us
4840 - 6586- 8567v7 -11-
KKS104706142
With a copy to: City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020 -6197
Attention: Rick Smelser, Director of Public Works
Facsimile No.: (408) 846 -0429
Phone No.: (408) 846 -0260
Email: rick.smelserna cityo f gilroy.org
and
Berliner Cohen
Ten Almaden Boulevard, 11th Floor
San Jose, CA 95113
Attention: Linda Callon
Facsimile No.: (408) 998 -5388
Phone No.: (408) 286 -5800
Email: linda.callon @berline.com
If to Seller: County of Santa Clara
Office of the County Executive
70 W. Hedding Street, East Wing, .11`h Floor
San Jose, CA 95`110
Attention: Glen Williams
Facsimile No.: (408) 297 -4698
Phone No.: (408) 299 -5164
Email: Glen.williams @ceo.sccgov.org
With a Copy to: County of Santa Clara
Office of the County Executive
70 W. Hedding Street, East Wing, 11`x' Floor
San Jose, CA 95110
Attention: Bruce Knopf
Facsimile No.: (408) 297 -4698
Phone No.: (408) 299 -5155
Email: Bruce.knopf @ceo.sccgov.org
Subject to this Section below, any such notices shall be sent either (a) by certified mail,
return receipt requested, postage prepaid in the U.S. mail, (b) by personal delivery, (c) by a
nationally recognized overnight courier, (d) by telecopier, in which case notice shall be deemed
delivered when the transmitting telecopier machine has confirmed that the notice has been
completed or sent without error, provided that a copy is also sent out not later than one (1)
business day thereafter by certified mail, personal delivery or overnight courier as described in
(a), (b) or (c) immediately above, or (e) by email, provided that a copy is also sent out not later
than one (1) business day thereafter by certified mail, personal delivery or overnight courier as
described in (a), (b) or (c) immediately above. The above addresses may be changed by written
notice to the other party; provided, however, that in no event shall a change of address include a
P.O. Box. Notwithstanding this Section above, if a notice is sent in the manner required by this
4840-6586- 8567v7 -12-
KKS104706142
Section above, it shall be deemed given upon receipt, refusal of delivery by the intended
recipient or failure of delivery due to incorrect delivery information provided by the intended
recipient to the noticing party.
18. Time of Essence. Time is of the essence of this Agreement.
19. Governing Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to any choice of law
principles. Venue for all court proceedings or alternative forms of dispute resolution proceeding_ s
shall be Santa Clara County.
20. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
21. Captions. The captions in this Agreement are inserted for convenience of reference and
in no way define, describe or limit the scope or intent of this Agreement or any of the provisions
hereof.
22. Assignability. Buyer shall not assign this Agreement without the prior written consent of
Seller.
23. Binding Ems. This Agreement shall be binding upon and inure to the benefit of both
parties hereto and their respective successors and permitted assigns.
24. Modifications: Waiver. No waiver, modification, amendment, discharge or change of
this Agreement shall be valid unless the same is in writing and signed by both parties.
25. Entire Agreement. This Agreement contains the entire .agreement between the parties
relating to the transactions contemplated hereby and all prior or contemporaneous agreements,
understandings, representations or statements, oral or written, are superseded hereby.
26. Partial Invalidity. Any provision of this Agreement which is void, unenforceable or
invalid or the inclusion of which would adversely affect the validity, legality or enforcement of
this Agreement shall be of no effect, but all the remaining provisions of this Agreement shall
remain in full force and effect.
27. Submission of Agreement. The submission of this Agreement by one party to the other
or their agents or attorneys for review will not be deemed an offer to sell or purchase the
Property, and no agreement with respect to the purchase and sale of the Property, will exist unless
and until this Agreement is executed and delivered by both Seller and Buyer.
28. Real Estate Reportin Person. erson. Escrow Holder is designated the "real estate reporting
person" for purposes of Section 6045 of Title 26 of the United States Code and Treasury
Regulation 1.6045 -4 and any instructions or settlement statement prepared by Escrow Holder
shall so provide. Upon the consummation of the transaction contemplated by this Agreement,
Escrow Holder shall, after review and approval by Seller (such approval not to be unreasonably
4840.6586=8567x7 _ 13_
KKN4706142
withheld, conditioned or delayed), file a Form 1099 information return and send the statement to
Seller as required under the aforementioned statute and regulation.
29. Computation of Time. In computing any period of time pursuant to this Agreement, the
day of the act or event from which the designated period of time begins to run will not be
included, and the last day of the period so computed will be included, unless it is a Saturday,
Sunday or legal holiday recognized as such in California, in which event the period runs until the
end of the next day which is not a Saturday, Sunday or such legal holiday. As used in the
Agreement, "business day shall mean a day which is not a Saturday, Sunday or legal holiday
recognized as such in California.
30. Waiver. No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed in writing. by the
party making the waiver.
31. Number and Gender, Joint and Several Liability. When required by the context of this
Agreement, each number (singular and plural) shall include all numbers, and each gender shall
include all genders.
32. Negotiated Terms. Each party has had the opportunity to be advised by legal counsel and
other professionals in connection with this Agreement, and each party has obtained such advice
as each party deems appropriate. The parties agree that the terms and conditions of this
Agreement are the result of negotiations between the parties and that this Agreement shall not be
construed in favor of or against any party by reason of the extent to which any party or its
professionals participated in the preparation of this Agreement.
33. Signatures. Signatures and initials to this Agreement created by the signer by electronic
means and/or transmitted by telecopy or other electronic transmission shall be valid and effective
to bind the party so signing. Each party agrees to promptly deliver an execution original to this
Agreement with its actual signature and initials to the other party, but a failure to do so shall not
affect the enforceability of this Agreement, it being expressly agreed that each party to this
Agreement shall be bound by its own electronically created and/or telecopied or electronically
transmitted signature and initials and shall accept the electronically created and/or telecopied or
electronically transmitted signature and initials of the other party to this Agreement.
34. Exclusivity. During the term of this Agreement, Seller shall not offer the Property or any
interest therein for sale or lease to any other party, or negotiate, solicit or entertain any offers.
[Signature pages follow]
4840 - 6586- 8567v7 -14-
KKS104706142
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
SELLER:
County of Santa Clara, a Political Subdivision of
the State of California
Mi a asse m resident Board of Supervisors
Date: DEC 0 9 2014
Signed and certified that a copy of this document
has been delivered by electronic or other means to
the President, Board of Supervisors.
ATTEST:
Ly Regadanz lerk
of the Board of Supervisors
Date: DEC 0 9 2014
APPROVED AS TO FORM AND LEGALITY:
Shirley R. dw ds,
Deputy County ounsel
4840 -658M567v7 -15-
KKS104706142
BUYER:
1 oy, a municipal corporation
By:
Thomas J. Hajzlun , City Administrator
Da
Att
Approv
Linda A. allon, City A, orney
4840. 6586- 8567u7 -16-
KKS104706142
Exhibit Reference
Exhibit A
Exhibit B
484H5M567v7
KKS10 M142
EXHIBIT INDEX
Content
Legal Description of Land
Grant Deed
-1-
i
i
EXHIBIT A.
The land referred to Is situated in the County of Santa. Clara, City of Gilroy, State of California,
and is described as follows: '
PARCEL NO. 1
Being a portion of Lot 6 Block i South, Range 3 West, as shown upon Map No. 5 accompanying
Report of the Commissioners in Henry Miller, et al., Plaintiffs vs. Massey Thomas et al.,
defendants in Superior Court of the State of California in and for the County of Santa Clara,
Case No. 5536, and being more particularly described as follows: Beginning at a point on the
Easterly line of Rosanna Street distant thereon N. 200 W. 188.50 feet from the intersection
thereof with the Northerly line of Seventh Street, said point of beginning being also the
Southwesterly comer of Lot 6 as shown on said Map; thence along the Easterly line of Rosanna
Street, N. 20° W. 20.30 feet to a point; thence N. 690 55'30" E. to a point in the Southwesterly
line of -Lot 2; thence along said Southwesterly line of Lot 2,'S. 190 08' E. to an iron pipe at the
Easterly comer common to said Lots 5 and 6 in the Southwesterly line of Lot 2; thence S. 690
03' W. 139.72 feet to the point of beginning.
PARCEL NO.2
Being a portion of Lot 2-and all of Lot 5 In Block 1 South, Range 3 West of the City of Gilroy, as
shown upon Map No. 5 accompanying the report of the referees and its amendments in the
action for partition of Henry Miller, et al., Plaintiffs, vs. Massey Thomas, et al., Defendants, in
the Superior Court of the State of California, in. and for the County of Santa Clara, Action No.
5536, and being more particularly described as follows: Beginning at an iron pipe on the
Easterly line of Rosanna Street distant thereon: N. 200 W. 104.80 feet from the Intersection
thereof with the Northerly line of Seventh Street, said point of beginning. being also the
Northwesterly corner of Lot 4 as shown on said Map; thence along the Easterly line -of Rosanna
Street N. 200 W. 83.70 feet, to an iron pipe at the Westerly comer common to Lots 5 and 6;
thence along the line common to Lots 5 and 6, N. 690 03' E. 139.72 feet to an iron .pipe at the
Easterly corner common to said lots 5 and 6 In the Southwesterly line of Lot 2; thence along
said Southwesterly line. of Lot 2 and the prolongation thereof S. 190 08' E. 85.85 feet to an Iron
pipe at the intersection thereof with the Easterly prolongation of the Northwesterly line of Lot 4;
thence along Bald Easterly prolongation and the Northwesterly line of Lot -4, S. 690 55' 30" W.
138.39 feet to the point of beginning.
APN: 799 -08 -054
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F:X40i 1008s�
RECORD WITHOUT FEE UNDER CALIFORNIA
GOVERNMENT CODE SECTIONS 27383 AND 6103
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
.City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020 -6197
Attention: City Clerk
MAU, TAX STATEMENTS TO:
i
Same as above
Space above this Line for Recorder's Use
A.P.N. 799 -08 -054
Transfer is exempt from documentary transfer tax pursuant to R &T Code Section 11922
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, County of
Santa Clara, a political subdivision of the State of California ( "Grantor's, hereby GRANT to
City of Gilroy, a municipal corporation ( "Gratitee'% all that real property situated in the Cit, of
Gilroy, County of Santa Clara, State of California, described on- Exhibit attached hereto, and
the building and other improvements located on said real property, together with all privileges,
easements and other rights (if any) that are appurtenant to said real property, building and other
improvements, including without limitation all mineral and water rights, appurtenant easements,
rights -of way and other appurtenances (if any) used in connection with or relating to said real
property, building and other improvements.
In Witness Whereof, Grantor has caused this instrument to be executed.
GRANTOR:
[Signatures appear on next page]
4840 6MB-MV7
KKS'04706142
0
TENANT:
COUNTY OF SANTA CLARA,
a political subdivision of the State of California
By:
Mike Wasserman, President
Board of Supervisors
Date:
ATTEST:
Signed and certified that a copy of this document
has been delivered by electronic-or other means to
the President, Board of Supervisors.
Lynn Regadanz, Clerk of the Board of Supervisors
Date:
APPROVED AS TO FORM AND LEGALITY:
Shirley R. Edwards
Deputy County Counsel
Mail tax statements to: Same as above address.
46404W-N670 -2-
MST4706142
I
STATE OF CALIFORNIA )
COUNTY OF )
On , before me,
Notary Public, personally appeared _ _ ___ . __, who prov ed to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscri to
the within instrument and acknowledged to me that he/she/they executed the same I in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the 'State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal) i
(Signature)
4M- 65664WV7
KKMD4706142
-3-
EX ■iBI O A
The land referred to Is situated In the County of Santa Clara, City of Gilroy, State of California,
and is described as follows:
PARCEL NO. 1
Being a portion of Lot 6 Block 1 South, Range 3 West, as shown upon Map No. 5 accompanying
Report of the Commissioners in Henry Miller, et al., Plaintiffs vs. Massey Thomas et al.,
defendants in Superior Court of the.State of California In and for the County of Santa Clara,
Case No. 5536,. and being more particularly described as follows: Beginning at a point on the
Easterly line of Rosanna Street distant thereon N. 200 W. 188.50 feet from the intersection
thereof with the Northerly line of Seventh Street said point of beginning being also the
Southwesterly comer of Lot 6 as shown on said Map; thence along the Easterly line of Rosanna
Streef, N. 200 W. 20.30 feet to a point; thence N. 690 55130" E. to a point In the Southwesterly
line of Lot 2; thence along said Southwesterly line of Lot 2, S. 190 08' E. to an iron pipe at the
Egstedy corner common to said Lots 5 and 6 in the Southwesterly line of Lot 2; thence S. 690 L
03' W. 139.72 feet to the point of beginning.
PARCEL NO. 2-
Being a portion of Lot 2•and' all of Lot 5 in Block 1 South, Range 3 West of the City-of Gilroy, as
shown upon Map No. .5 •accompanying the report of the referees and Its amendments In the
action for partition of Henry Miller, et al., Plaintiffs, vs. Massey Thomas, et al., Defendants, in
the Superior Court of the State of California' In and for the County of Santa Clara, Action No.
5536, and being more particularly described as follows: Beginning at an iron pipe on the
Easterly line of Rosanna Street distant thereon N. 20° W. 104.80 feet from the Intersection
thereof with the Northerly line of Seventh Street, said point of beglnning•being also the
Northwesterly comer of Lot 4 as shown on said Map; thence along the Easterly line-of Rosanna
Street N. 200 W. 8330 feet, to an iron pipe at the Westerly corner common to Lots .5 and 6;
thence along the line common to Lots 5 and 6, N. 690 03' E. 139.72 feet to an iron pipe at the
Easterly corner common to said Lots 5 and 6 in the Southwesterly line of Lot 2; thence along
said Southwesterly line- of Lot 2 and the prolongation thereof S. 190 08'. E. 85.85.feet to an iron
pipe at the intersection thereof with ttie Easterly prolongation of the Northwesterly line of Lot 4;
thence along said Easterly prolongation and the Northwesterly line of Lot-4, S. 6910 55' 30" W.
138.39 feet to the point of beginning.
APN: 799-08 -054
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