Staff Report.4 New York Ave Grant Agreement with attachments
PREPARED BY: Arn Andrews
Assistant Town Manager
Reviewed by: Town Attorney, Director of Parks and Public Works, and Interim Finance Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 10/04/2022 ITEM NO: 12
DATE: September 28, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Adopt a Resolution Granting 4 New York Avenue to the Los Gatos-Saratoga
Union High School District and Authorize the Town Manager to Negotiate and
Execute the 4 New York Avenue Grant Agreement and All Documents Needed
to Complete the Transaction in a Form Acceptable to the Town Attorney
RECOMMENDATION:
Adopt a Resolution (Attachment 1) granting 4 New York Avenue to the Los Gatos-Saratoga
Union High School District and authorize the Town Manager to negotiate and execute the 4
New York Avenue Grant Agreement in substantially the form presented and all documents
needed to complete the transaction in a form acceptable to the Town Attorney.
BACKGROUND:
To date, the Town has pursued a property strategy which focuses on finding long-term
solutions for the disposition of Town-owned properties either through pursuit of public
purpose/benefit, monetization, or a hybrid of both. Following are property dispositions
approved by the Town Council to date:
• October 2018 entered into an Exclusive Negotiating Agreement with Sarah Chaffin for
the siting and development of affordable (teacher) housing at 20 Dittos Lane – Public
Purpose
• March 2019 entered into an Exclusive Negotiating Agreement with Imwalle Asset
Management for 4 Tait Avenue and Forbes Mill - Monetization/Public Purpose
• May 2019 sale of 148000 Winchester Blvd to Santa Clara County Fire District (“County
Fire”) for $1.9 million – Monetization/Public Purpose
PAGE 2 OF 3 SUBJECT: Grant Agreement for 4 New York Avenue DATE: September 29, 2022
BACKGROUND (continued):
• April 2020 sale of 14850 Winchester Blvd to Santa Clara County Fire District (“County
Fire”) for $1.2 million – Monetization/Public Purpose
On September 13, 2016, the Town Council declared 4 New York Avenue as surplus property and
directed staff to pursue disposition options (Attachment 2). Given that the Town is transferring
the property to the School District, a State agency, for the agency’s use, the transfer is exempt
from noticing requirements of the State Surplus Lands Act. On October 16, 2018, the Town
Council asked staff to reengage in direct negotiations with the Los Gatos-Saratoga Union High
School District (LGSUHSD) due to the synergies associated with the High School being the
dominant land use in the area.
DISCUSSION:
Over the years the Town and LGSUHSD (“Parties”) have discussed multiple scenarios for the
High School to obtain ownership of 4 New York Avenue. Beginning in 2021, property
disposition discussions between the Parties began coalescing around ways LGSUHSD could
significantly collaborate on enhancing traffic management around the High School and other
opportunities for public benefit.
On June 15, 2021, the Town Council reviewed a proposal from LGSUHSD for the transfer of the
Venue property and some interior campus streets to the school district. In response to the
proposal Council provided LGSUHSD with the core elements required of LGSUHSD for
acceptance of their offer. On February 4, 2022, the Town Manager received a response from
LGSUHSD to the Council’s core elements of a property transfer agreement (Exhibit A to
Attachment 3).
As referenced in the Grant Agreement (Attachment 3), in exchange for the granting of 4 New
York Avenue the District agrees to the following material commitments:
A. Convening a working group to address parking and traffic issues in the vicinity of
the High School;
B. Expanding existing parking and improve ingress/egress/student drop off at the
pinch point of New York Avenue and Pleasant Street to address traffic and
parking issues;
C. Allowing future ingress/egress from the property on which the Los Gatos Lodge
is currently located;
D. Retaining KCAT at the property known as “the Venue” with multi-generational
programming for community benefit;
E. Continuing LGHS as a community resource with the community continuing to
have appropriate access to the open spaces on campus;
PAGE 3 OF 3 SUBJECT: Grant Agreement for 4 New York Avenue DATE: September 29, 2022
DISCUSSION (continued):
F. Working toward amending the District’s Master Plan to show access at the
property line shared with the property currently occupied by the Los Gatos
Lodge;
G. Developing design for bicycle/pedestrian access at the property line shared with
the property currently occupied by the Los Gatos Lodge; and
H. Cooperating with Town to grant necessary public utility easements and
emergency vehicle access easements on portions of streets on the High School
campus proposed for vacation by the Town.
In addition to the granting of 4 New York Avenue, the Parties have agreed to the Town vacating
New York Avenue from the western terminus (Venue) to the western lot line of 116 New York
Avenue and Chicago Avenue. Staff will return to Council with a Summary Vacation Resolution
once all the appropriate public utility easements and emergency vehicle access easements have
been established.
CONCLUSION:
Successful completion of these transaction will result in significant community benefit through
enhanced traffic management and the resumption of community programming at 4 New York
Avenue.
COORDINATION:
This staff report has been coordinated with the Town Manager, Town Attorney, Parks and
Public Works Department, and Finance Department.
FISCAL IMPACT:
None.
ENVIRONMENTAL ASSESSMENT:
In accordance with CEQA Guidelines Section 15312, this transfer of surplus government
property is categorically exempt from CEQA.
Attachments:
1. Resolution Granting 4 New York Avenue
2. 2016 Resolution Declaring 4 New York Avenue Surplus
3. Draft Grant Agreement with Exhibit A - Property Description and Exhibit B - LGSUHSD
Proposal
This Page Intentionally Left Blank
1 of 3
Resolution 2022- Council Meeting Date
DRAFT RESOLUTION 2022-XX RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
APPROVING THE GRANT AGREEMENT FOR THE GRANT OF TOWN-OWNED
PROPERTY LOCATED AT 4 NEW YORK AVENUE, APN 529-27-024 AND AUTHORIZING
THE TOWN MANAGER TO EXECUTE ALL DOCUMENTS NEEDED TO COMPLETE THE
TRANSACTION IN A FORM ACCEPTABLE TO THE TOWN ATTORNEY
WHEREAS, land was purchased in 1906 at the crest of the present day High School Court
and a separate High School building was opened in 1908; and
WHEREAS, the land fronting Main Street where the current High School lawn sits was
purchased in 1911; and
WHEREAS, the Los Gatos Union High School District was formed in 1922; and
WHEREAS, in 1925 a new High School was built adjacent to the 1908 building to
accommodate growing student enrollment; and
WHEREAS, in 1930 four acres were purchased which are the current softball, soccer, and
lacrosse fields; and
WHEREAS, in 1955 the lands that encompass the baseball, football, and track fields were
purchased; and
WHEREAS, over the decades the High School campus has grown to surround the property
known as 4 New York Avenue (Property); and
WHEREAS, in 1991 the San Jose Water Company granted portions of the property known
as 4 New York Avenue to the Town; APN: 529-27-2 and APN: 529-27-4 (“Property”) in 1991; and
WHEREAS, in 1992 the Town Council adopted Resolution 1992-7 authorizing a lease
agreement for 4 New York Avenue with A Place For Teens for the use of a new facility to be built;
and
WHEREAS, in 1994 a building measuring approximately 3,720 was constructed on the site
and funded primarily by community organizations; and
WHEREAS, in 2012 due to the financial challenges of A Place For Teens the Town took
possession of the building; and
ATTACHMENT 1
2 of 3
Resolution 2022- Council Meeting Date
WHEREAS, the Town desires to grant the Town-owned real property located at 4 New
York Avenue for the common benefit of the community; and
WHEREAS, per Resolution 2016-045, the Town declared 4 New York Avenue surplus
property; and
WHEREAS, the Town and Los Gatos-Saratoga Union High School District (District) have
discussed over the years the potential of the District purchasing the Property; and
WHEREAS, over the years multiple appraisals have been performed indicating the
Property has monetary value; and
WHEREAS, the Town is willing to forego monetary consideration and grant the Property
to the District in exchange for significant traffic management policy considerations and other
public benefits ; and
WHEREAS, the District represents that it is willing and able to carry out the commitments
set forth in Exhibit A and that this Agreement will materially contribute to the quality of life in
Town by enhancing traffic management and contributing toward community benefit and
collaboration now and into the future; and
WHEREAS, attached as Exhibit B is the Grant Agreement that the Town has negotiated
with the District;
NOW, THEREFORE, be it resolved that the Town Council of the Town of Los Gatos does
hereby approve the attached Grant Agreement for the granting of the Town-owned real property
located at 4 New York Avenue, APN 529-27-024, Los Gatos California and authorizes the Town
Manager to execute the Grant Agreement in substantially the form presented to the Town
Council and to take any and all steps (including, but not limited to, the execution and delivery of
any and all certificates, agreements, notices, consents, escrow instructions, closing documents,
and other instruments or documents) as the Town Manager deems necessary or appropriate in
order to consummate the grant contemplated by the Grant Agreement or to otherwise
effectuate the purpose and intent of this Resolution, and in a form acceptable to the Town
Attorney.
3 of 3
Resolution 2022- Council Meeting Date
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California, held on the 4th day of October 2022 by the following vote:
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: __________________
ATTEST:
TOWN CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: __________________
This Page Intentionally Left Blank
RESOLUTION 2016 -045
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
DECLARING REAL PROPERTY AT
4 NEW YORK AVENUE SURPLUS TO THE NEEDS OF THE TOWN
WHEREAS, the Town ofLos Gatos owns certain real property 4 New York Avenue identified
by assessor's parcel number (APN) 529 -27 -024 (Exhibit 1); and
WHEREAS, the property at 4 New York Avenue is no longer necessary for municipal use.
NOW, THEREFORE, BE IT RESOLVED:
1. That the 4 New York Avenue property be deemed surplus to the needs of the Town.
2. That Town staff conduct required notifications per California Government Code §54222.
3. Staffundertake opportunities to sell or lease the property, bringing offers with terms to the
Town Council for review as allowed by code.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos held on the 6`h day of September 2016, by the following vote:
COUNCIL MEMBERS:
AYES: Marcia Jensen, Steve Leonardis, Rob Rennie, Marico Sayoc, Mayor Barbara Spector
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED:
v td
OF THE TOWN OF LOS GATOS
LOS GATOS, LIFORNIA
DATE: Q 1P
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE:
Resolution 2016 -045 September 6, 2016
ATTACHMENT 2
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1
GRANT AGREEMENT
This Grant Agreement (the “Agreement”) is entered into by and between the Town of Los Gatos
“Town”), and Los Gatos-Saratoga Union High School District (“District”).
R E C I T A L S
A. Town owns real property and improvements located at 4 New York Avenue (APN 529-27-024) in
the Town of Los Gatos California and described more particularly in Exhibit “A” attached hereto
and incorporated herein by reference. The real property, including improvements thereon, is
referred to herein as the “Property.”
B. Town desires to donate and District desires to accept the Property.
C. Town is willing to grant the Property to District in exchange for significant traffic management
policy improvements and other public benefits.
D. District represents that it is willing and able to carry out the commitments set forth in its proposal
dated January 22, 2022 and described in Exhibit “B” attached hereto and incorporated herein by
reference, and that this Agreement will materially contribute to the quality of life in Town by
enhancing traffic management and contributing toward community benefit and collaboration now
and into the future.
E. In the event that District does not carry out the commitments described in Exhibit “B” and Section
7 of this Agreement, District will pay Town the appraised value of the Property.
A G R E E M E N T
NOW, THEREFORE, in consideration of the agreements herein contained and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as
follows:
1. Recitals. The Recitals are an integral part of this Agreement and are incorporated herein.
2. Effective Date. This Agreement shall be effective on the date it is fully executed by the District
and Town (“Effective Date”).
3. Grant and Acceptance of Property. In accordance with and subject to the terms and provisions of
this Agreement, Town agrees to grant the Property to District in a form approved by the Town
Manager (“Grant Deed”). Upon the condition that the Title Policy is issued to District, District
agrees to accept the Property in AS-IS condition except that Town represents to District that Town
owns the Property and there are no leases or third party claims against the Property. Neither Town
nor its elected and appointed officials, employees, or agents, have made any representations or
warranties to the District with respect to the condition, fitness, use or zoning of the Property upon
which the District has relied directly or indirectly for any purpose. The District acknowledges that
it has been afforded the opportunity to make such inspections (or have such inspections made by
consultants) as it desires of the Property. The District acknowledges that its staff includes
experienced property professionals with experience and knowledge in the areas of property
acquisition, property zoning and development, and environmental and land use laws and
ATTACHMENT 3
2
regulations. The District is relying solely on its own investigation as to the Property and is assuming
the risk that adverse physical, economic or other conditions may not have been revealed by such
investigation.
4. No Escrow; Closing; Title Policy.
4.1 No escrow. No escrow will be required under this Agreement.
4.2 Closing. Within 10 days from the Effective Date, the parties shall consummate this
transaction through the Title Company.
A. Delivery of Deed. Within three days of the Effective Date, Town shall execute,
acknowledge, and deliver the Grant Deed to the District.
B. Preliminary Change of Ownership Statement. Prior to the Closing, District shall
complete a Preliminary Change of Ownership Statement and deliver same to the
Title Company to be delivered to the County concurrently with the recordation of
the Grant Deed.
C. Recordation. Promptly upon District’s receipt of the originally executed Grant Deed,
District shall execute a Certificate of Acceptance and attach it to the Deed with the
Executed Agreement and promptly deliver it to the Title Company for recordation in
the official records of Santa Clara County.
D. Closing Defined. This transaction shall be deemed closed upon confirmation from
the Title Company that the Grant Deed has been recorded and the Title Company
has issued the Title Policy (“Closing”).
E. Cooperation. Town agrees to cooperate with District in the event any additional
documents are required to cause the Title Company to issue the Title Policy.
4.3 Costs. District shall pay all fees with respect to this transaction, including, but not limited
to, the premium for the Title Policy, documentary transfer taxes (if applicable), etc.
5. Title Policy. District shall promptly obtain and review a preliminary title report (“Title Report”)
from First American Title Insurance Company (“Title Company”) with respect to the Property. At
Closing, District shall require that the Title Company issue to District an ALTA non-extended
coverage owner’s title policy insuring the Property vested in District for the fair value of the
Property and subject to such exceptions as acceptable to the District (“Title Policy”).
6. Release and Discharge. Except for those terms and provisions which expressly survive the Close
of Escrow, from and after the Closing, the District hereby completely releases and forever
discharges Town’s elected and appointed officials, employees, and agents from and against all
claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen (collectively, “Claims”)
arising from or in any way growing out of or connected with the physical condition of the Property
or any law or regulation applicable thereto (collectively, the “Released Matters”). In connection
with such waiver and relinquishment, the District acknowledges that it is aware that it hereafter
may discover Claims or facts in addition to or different from those which it now knows or believes
to exist with respect to the Released Matters, but that it is the District’s intention to fully, finally
and forever to settle and release all of the Released Matters in accordance with the provisions of
this Section, and the release set forth herein shall be and remain in effect as a full and complete
release notwithstanding the discovery or existence of any such additional or different Claims or
facts. The foregoing release of Claims shall be binding on the District and all subsequent owners,
lessees and other transferees of the Property.
3
In connection with this Section, the District expressly waives the benefits of Section 1542 of the
California Civil Code which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
EXPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO
HIM MUST HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR.”
District’s Initials
7. Conditions to Grant. Town’s grant is conditioned upon District’s agreement to undertake the
commitments described in Exhibit B to this Agreement.
7.1 Material Commitments. The District’s material commitments include:
A. Convening a working group to address parking and traffic issues in the vicinity of
the High School;
B. Expanding existing parking and improve ingress/egress/student drop off at the pinch
point of New York Avenue and Pleasant Street to address traffic and parking issues;
C. Allowing future ingress/egress from the property on which the Los Gatos Lodge is
currently located;
D. Retaining KCAT at the property known as “the Venue” with multi-generational
programming for community benefit;
E. Continuing LGHS as a community resource with the community continuing to have
appropriate access to the open spaces on campus;
F. Working toward amending the District’s Master Plan to show access at the property
line shared with the property currently occupied by the Los Gatos Lodge;
G. Developing design for bicycle/pedestrian access at the property line shared with the
property currently occupied by the Los Gatos Lodge; and
H. Cooperating with Town to grant necessary public utility easements and emergency
vehicle access easements on portions of streets on the High School campus
proposed for vacation by the Town.
7.2 Breach. In the event that District fails to undertake any Material Commitment, Town will
provide 30 days’ written notice of the breach. Remedy. If District does not rectify the
breach within 30 days’ of receiving written notice from the Town, District will pay the
Town the appraised value of the Property, which is $710,000 within 90 days of Town’s
original written notice.
8. Taxes and Assessments. Non-delinquent real property taxes and assessments and utility and other
charges (to the extent such utility or other accounts cannot be transferred in the name of
District as of the Effective Date) shall be prorated between Town and District as of the Effective
Date. All prorations shall be made on a per-diem basis using a thirty (30) day month and a three
hundred sixty-five (365) day year. To the extent any apportionment cannot reasonably be
completed by the Effective Date, the parties shall make such necessary proration in a
commercially reasonable manner and pay such amounts to the party entitled hereto within a
4
period of thirty (30) days after the Effective Date. Notwithstanding anything to the contrary
herein, Town reserves the right to keep, collect and retain any refunds, rate or price
reductions or other sums, including, without limitation, any property tax refund, reductions or
rebate, which relate to the periods prior to the Effective Date whether or not such sums are
collected after the Effective Date, and District shall promptly return to Town any such sums
received by District.
9. Miscellaneous.
9.1 Town Manager Authority. On behalf of the town, the Town Manager or designee
shall have the authority to (i) extend any dates under this Agreement, (ii) execute
documents required to effectuate this transaction, and (iii) agree to any non-material
modifications of this Agreement.
9.2 No Conflict of Interest. No officer or employee of Town shall have any financial
interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which affects his or her financial
interest or the financial interest of any corporation, partnership, or association in which
he or she is, directly or indirectly, interested, in violation of any State statute or
regulation. Town and District each warrant that they have not paid or given and will not
pay or give any third party any money or other consideration for obtaining this
Agreement.
9.3 Notices. All notices shall be in writing and delivered personally, by overnight air
courier service, by facsimile transmission or email, or by U.S. certified mail, return receipt
requested, postage prepaid, to the parties at their respective addresses set forth herein,
and the same shall be effective upon receipt if delivered personally, one business day
after depositing with an overnight air courier, or two business days after depositing in
the mail.
A. City: [insert contact name and address]
B. District: [insert contact name and address]
9.4 Interpretation; Governing Law. This Agreement shall be construed according to its
fair meaning and as if prepared by both parties. This Agreement shall be construed in
accordance with the laws of the State of California in effect at the time of execution of
this Agreement.
9.5 No waiver. No delay or omission by either party hereto in exercising any right or
power accruing upon the compliance or failure of performance by the other party under
the provisions of this Agreement shall impair any such right or power or be construed to
be a waiver thereof. A waiver by either party of a breach of any of the covenants,
conditions, or agreements hereof to be performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or other covenants,
agreements, restrictions, or conditions.
9.6 Amendment. This Agreement may only be modified or amended by a written
document executed by both parties.
9.7 Severability. If any term, provision, condition or covenant of this Agreement or the
application thereof to any party of circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this instrument, or the application of such term,
provisions, condition or covenant to persons or circumstances other than those as to
5
whom or which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
9.8 Merger of Prior Agreements and Understandings. This Agreement and other
documents incorporated herein by reference contain the entire understanding between
the parties relating to the transaction contemplated by this Agreement and all prior to
contemporaneous agreements, understanding, representations and statements, oral or
written, are merged herein and shall be of no further force or effect.
9.9 Qualifications; Authority. Each individual executing this Agreement on behalf of
the party represents, warrants and covenants to the other party that (a) such person is
duly authorized to execute and deliver this Agreement on behalf of such party; and (b)
such party is bound under the terms of this Agreement.
9.10 Time of Essence. Time is of the essence of this Agreement.
9.11 Execution in Counterparts. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on both
parties, notwithstanding that both parties are not signatories to the original or the same
counterpart.
9.12 Attorney’s Fees. In the event any action or suit is brought by a party hereto against
another party hereunder by reason of any breach of this Agreement, the prevailing party
shall be entitled to have and recover from other party all costs and expenses of the
action or suit, including reasonable attorneys’ fees and related costs.
10. Survival. All of the terms, provisions, representations, warranties and covenants of the
parties under this Agreement shall survive the assignment, expiration or termination of this
Agreement and shall not merge in the deed or other documents following the delivery and
recordation of said deed or other documents.
11. Possession of the Property. Possession of the Property shall be delivered to District at the Closing.
12. Attorneys’ Fees. Should either party institute any action or proceeding to enforce any provision
of this Agreement or for damages by reason of an alleged breach of any provision hereof, the
prevailing party shall be entitled to receive all costs and expenses, including reasonable attorneys’,
consultants and expert witness fees incurred by such prevailing party in connection with
such action or proceeding, at trial and on any appeal.
13. Assignment and Successors. This Agreement shall inure to the benefit of and shall be binding
upon the parties to this Agreement and their respective heirs, successors, and assigns.
14. Entire Agreement. The parties have herein set forth the whole of their agreement.
15. Construction. The section headings and captions of this Agreement are, and the arrangement of
this instrument is, for the sole convenience of the parties to this Agreement. The section headings,
captions and arrangement of this instrument do not in any way affect, limit, amplify or modify the
terms and provisions of this Agreement. This Agreement shall not be construed as if it had been
prepared by one of the parties, but rather as if both parties had prepared it. The parties to this
Agreement and their counsel have read and reviewed this Agreement and agree that any rule of
6
construction to the effect that ambiguities are to be resolved against the drafting party shall not
apply to the interpretation of this Agreement. The Recitals are and shall be enforceable as a part
of this Agreement.
16. Further Assurances. Whenever requested to do so by the other party, each party shall execute,
acknowledge and deliver all further conveyances, assignments, confirmations, satisfactions,
releases, powers of attorney, instruments of further assurance, approvals, consents and all further
instruments and documents as may be necessary, expedient, or proper in order to complete all
conveyances, transfers, sales, and assignments under this Agreement, and do all other acts and to
execute, acknowledge, and deliver all documents as requested in order to carry out the intent and
purpose of this Agreement.
17. Property Studies and Records. Town shall deliver to District, within ten (10) calendar days after
execution of this Agreement by all Parties, complete, accurate and legible (hard and electronic)
copies of all documents concerning the Property that are in Donors’ possession or control or are
readily available to Donors, including, but not limited to, title reports, specifications, maps,
drawings, surveys, engineering, soils, environmental, and geotechnical studies and reports, leases,
estoppels, topographic surveys, grading plans, feasibility, marketing or other studies, investigations
or reports, permits, approvals, right of way and easement agreements, zoning and master plans,
bonds, specific plans, initial studies, mitigated negative declarations and/or environmental impact
reports, Phase I and II environmental assessments, entitlement documents; property tax bills;
estoppels from tenants; and notices of any violation of any federal, state or local statutes,
ordinances, affordable housing or inclusionary housing agreements, rules or regulations.
18. Waiver. A waiver or breach of any covenant or provision in this Agreement shall not be deemed a
waiver of any other covenant or provision in this Agreement, and no waiver shall be valid unless in
writing and executed by the waiving party.
19. Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or
unenforceable, the remainder of this Agreement shall not be affected.
20. Counterparts. This Agreement and any amendments hereto may be executed in any number of
counterparts and by each party in separate counterparts, each of which when so executed and
delivered shall be deemed an original and all of which taken together shall constitute one and the
same instrument.
21. Costs, Expenses and Fees. District and Town each agree to pay their own costs and expenses,
including fees of attorneys, accountants and consultants, incurred in the preparation of and
carrying out of this Agreement.
22. Right To Enter Property.
22.1 Access to Property. Commencing with execution of this Agreement, District or District's
representatives, after written request(s) and approval(s), shall be allowed access to the
Property prior to Closing at all reasonable times for the purpose of obtaining data and
making surveys, tests, inspections and other studies at District's sole expense, necessary
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to carry out this Agreement or as required by local and California state regulatory agencies.
22.2 If District elects to enter Property, District shall procure and maintain (and require any of
its representatives entering the Property to procure and maintain): (i) workers’
compensation insurance required by the laws of the State of California; (ii) commercial
general liability insurance in the amount of at least Two Million Dollars ($2,000,000)
combined single limit, naming Town as additional insureds and containing a cross liability
endorsement or severability of interests clause; and (iii) with respect to any contractor or
consultant conducting environmental, soils or geological tests, commercial general liability
insurance, in the amount of at least One Million Dollars ($1,000,000) combined single limit.
District shall, prior to any entry by District and/or its representatives, furnish certificates of
such insurance coverage to Town. Such certificates shall contain a clause providing for thirty
(30) days’ advance notice of cancellation or material change in coverage.
22.3 Restoration of Property. District shall, upon completion of data gathering, and making
surveys, tests, inspections and other studies, restore the Property to the extent reasonably
possible to its condition prior to such data gathering, surveys, tests, inspections and other
studies.
22.4 Indemnification Resulting From Access. District shall indemnify and hold harmless Town of
and from any and all mechanic's liens, claims, actions, liabilities, costs, expenses, including
attorneys' fees, and damages of any type or nature arising out of or in any way related to
any such use of or entry onto the Property by District or by any other person or entity on
behalf of, or at the request of, District, excluding any losses or damages, including but not
limited to a reduction in the value of the property, resulting from any finding or results of
any surveys, tests, inspections or other studies, whether or not negligent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates below written.
DISTRICT TOWN
By: By:
Name: Name:
Its: Its:
Date: Date:
Approved as to form: Approved as to form:
Attest:
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EXHIBIT A
EXHIBIT B