13 Exhibit A - Draft Purchase and Sale Agreement 14850 Winchester -1- EXHIBIT A
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made by and
between the SANTA CLARA COUNTY CENTRAL FIRE PROTECTION DISTRICT
(“Buyer”), and the TOWN OF LOS GATOS (“Seller”) is dated for reference purposes as of the
later of the dates set forth by Seller and Buyer on the signature page of this Agreement (the
“Effective Date”).
RECITALS
A. Seller owns that certain real property located at 14850 Winchester Boulevard,
Town of Los Gatos, County of Santa Clara, State of California, referred to as Parcels B and C of
APN: 424-31-055, which is more particularly described on Exhibit A attached hereto (the
“Land”), together with any improvements located thereon, and all rights, privileges, easements
and appurtenances to the Land, including without limitation all development rights, mineral and
water rights, appurtenant easements, rights-of way and other appurtenances used in connection
with or relating to the Land (the Land and all such rights, privileges, easements and appurtenances
being collectively referred to herein as the “Property”).
B. Pursuant to that certain “Annexation Agreement” between Seller and Buyer dated
March 2, 1970 and that certain “Agreement for Sale of Land, For Leaseback of Part of It and
Coordinating the Termination Date of the Lease with that of an Earlier Lease” dated [July 22,
1980] (the “Ground Lease”), Buyer is the current tenant of the Property and has approximately
16 years remaining under the Ground Lease.
C. Buyer desires to purchase the Property to facilitate a long-term investment by Buyer
in the Property for the construction of a new fire station, and Seller desires to sell the Property to
Buyer, 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 to Buyer and Buyer agrees to purchase from Seller the Property for the
Purchase Price (defined in Section 2), subject to and on the terms and conditions set forth herein.
2. Purchase Price. The purchase price for the Property is One Million Two Hundred
Thousand Dollars ($1,200,000) (the “Purchase Price”), payable as follows:
(a) Within five (5) business days after the Effective Date, Buyer shall deposit, as
earnest money, in immediately available funds, the amount of Fifty Thousand Dollars ($50,000.00)
(such amount and any interest earned thereon, the "Deposit") into escrow number [Would like to
use Chicago Title or Old Republic]_________ (the “Escrow”) opened with
_______________________ with ________ as the designated escrow officer (telephone no.:
_______________, email: _____________) (the “Escrow Holder”). Buyer may, upon delivery
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of the Deposit into Escrow, instruct the Escrow Holder to invest the Deposit in an interest-bearing
money market or savings account with a national banking association or federally chartered
savings and loan association. If the Closing does not occur, the Deposit shall be returned to Buyer
unless the provisions of Section 14 are applicable, in which case the disposition of the Deposit
shall be governed by the provisions of Section 14; and
(b) In sufficient time for the Close of Escrow to occur on the Closing Date (defined
below), Buyer shall deposit into Escrow, in immediately available funds, a sum equal to the
Purchase Price less the Deposit, and plus or minus adjustments to account for Seller’s and Buyer’s
prorations and costs set forth in this Agreement (the “Net Purchase Price”).
Notwithstanding anything to the contrary in this Agreement, a portion of the Deposit, in the amount
of One Hundred Dollars ($100) (the “Independent Consideration”) shall be earned by Seller
upon execution and delivery of this Agreement by Seller and Buyer. The Independent
Consideration represents adequate bargained for consideration for Seller’s execution and delivery
of this Agreement and Buyer’s right to have inspected the Property pursuant to the terms hereof.
The Independent Consideration is in addition to and independent of any other consideration or
payment provided for herein and is nonrefundable in all events. Upon the Closing (defined below),
or earlier termination of this Agreement, the Independent Consideration shall be paid to Seller,
and in the case of a termination of this Agreement in which the Deposit is required to be returned
to Buyer, the Deposit shall be returned to Buyer less the Independent Consideration, which shall
be paid to Seller.
3. 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 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:
(a) Buyer shall have until 5:00 pm PST on the date that is thirty (30) days after the
Effective Date to review and approve each and every aspect of the Property (the “Due Diligence
Period”). If Buyer elects, in Buyer’s sole and absolute discretion, to proceed with the purchase of
the Property, then Buyer shall, before the end of the Due Diligence Period, notify Seller in writing
(such notice, the “Approval Notice”) that Buyer elects to proceed with the purchase of the
Property, subject to such title objections made by Buyer that Seller has agreed to remove on or
before the Closing Date, if any. If before the end of the Due Diligence Period Buyer fails to give
Seller such Approval Notice, then Buyer shall be deemed to have elected to terminate this
Agreement, the Deposit shall be returned to Buyer, and neither party shall have any further rights
or obligations hereunder except for those obligations of Buyer or Seller which are expressly stated
in this Agreement to survive Close of Escrow, Closing or other termination of this Agreement (the
“Surviving Obligations”).
4. Property Materials. To the extent not already provided to Buyer, not later than two (2)
business days after 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
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or Seller’s agents (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’, 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; (iii)
other correspondence and notices from any governmental or quasi-governmental authorities
related to the Property; (iv) all current leases, rental agreements, service contracts, and other
agreements pertaining to use of, service to or the management or operation of the Property; (v) a
rental statement including names of tenants and subtenants, period of rental and rental rights, if
any; (vi) all permits and other approvals or licenses concerning the Property obtained from any
governmental entity, including but not limited to, certificates of occupancy, conditional use
permits, development plans, and license and permits pertaining to the operation, management or
use of the Property, further including those pertaining to any and all water rights or claims; (vii)
information related to any material facts or defects affecting the Property, including insurance
claims within the past five years; and (viii) any and all other disclosures required by law.
5. Title.
(a) 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, (ii) the standard pre-printed exceptions and exclusions contained in an
ALTA extended coverage owner’s policy of title insurance, (iii) liens and encumbrances to which
Buyer has waived pursuant to 5(b) below or otherwise consented in writing, and (iv) liens and
encumbrances directly caused by the acts of Buyer or any of Buyer’s Representatives.
Notwithstanding anything to the contrary in this Agreement, 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 prior to the recording of the Grant Deed (including all liens
evidencing any deed of trust (and related documents) securing financing for or through Seller, all
delinquent tax liens, all mechanics’ and/or materialmen’s’ liens relating to work performed by or
on behalf of Seller, and all judgment liens against Seller) (collectively, “Existing Liens”); 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.
(b) Buyer may advise Seller by written notice, not later than five (5) business days prior
to the end of the Due Diligence Period (the “Title Objection Deadline”), what exceptions to title,
if any, will not be accepted by Buyer. Seller shall have two (2) business days after receipt of
Buyer’s objections to give Buyer: (A) notice that Seller will remove the objectionable exceptions
on or before the Closing Date (as defined below); or (B) subject to the obligation to remove the
Existing Liens, notice that Seller elects not to cause some or all of such exceptions to be removed.
If Seller gives Buyer notice under clause (B), Buyer may elect on or before the expiration of the
Due Diligence Period to (X) waive its objections to title (other than Existing Liens) and proceed
with the purchase without offset or credit against the Purchase Price, or (Y) terminate this
Agreement, in which event the Deposit shall be returned to Buyer, and neither party shall have any
further rights or obligations hereunder except as provided in the Surviving Obligations. If Seller
fails to give Buyer notice within two (2) business days after receipt of Buyer’s objections, then
Seller shall be deemed to have elected to give Buyer notice under clause (B). If Buyer fails to give
Seller notice of its election to terminate this Agreement pursuant to (Y) above or Buyer has elected
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not to make any objections to title prior to the Title Objection Deadline, then, assuming Buyer has
delivered an Approval Notice, Buyer shall be deemed to have elected to waive its objections to
title except for any objections which Seller has agreed in writing to remove prior to Closing.
(c) Whether or not Buyer shall have furnished to Seller any notice of title objections
pursuant to the foregoing provisions of this Agreement, Buyer may, at or prior to Closing, notify
Seller in writing of any objections to title first raised by the Title Company between (a) the
expiration of the Title Objection Deadline, and (b) the Closing Date, and which: (1) are not the
result of Buyer’s acts, (2) do not constitute exceptions which Buyer has approved or waived
pursuant to Sections 5(a) and/or (b) above, and (3) have a material adverse effect on the
marketability, use, value or operation of the Property, as reasonably determined by Buyer. Buyer
shall advise Seller of its additional title objections by written notice within two (2) business days
of learning of the additional title matter. Seller shall have until the earlier of (x) two (2) business
days after receipt of Buyer’s objections, or (y) the Closing Date, to give Buyer notice that (i) Seller
will remove such objectionable exceptions, or (ii) Seller elects not to cause such exceptions to be
removed. If Seller gives Buyer notice under clause (ii), Buyer may elect within two (2) business
days after receipt of Seller’s notice to (A) waive its objections to title and proceed with the
purchase without offset or credit against the Purchase Price, or (B) terminate this Agreement. If
Seller fails to give Buyer timely notice as required in this subparagraph (c), then Seller shall be
deemed to have elected to give Buyer notice under clause (y)(ii). If Seller gives (or is deemed to
have given) Buyer notice under clause (y)(ii), and Buyer fails to give Seller notice of its election
within two (2) business days after receipt of Seller’s notice, then Buyer shall be deemed to have
elected to have elected to waive its objections under clause (A) above. If Buyer elects to terminate
this Agreement under this Section 5(c), the Deposit shall be returned to Buyer, and neither party
shall have any further rights or obligations hereunder except as provided in the Surviving
Obligations.
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 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) The Title Company shall be irrevocably committed to issue to Buyer at the
Closing an extended coverage ALTA owner’s 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”);
(ii) There shall have been no material adverse change in the physical condition
of the Property from the Effective Date through the Closing Date; and
(iii) Seller shall not be in default of Seller’s obligations under this Agreement,
and all of Seller’s express representations and warranties set forth in this Agreement shall be true
and correct when made and as of the Closing.
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(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:
(1) Buyer shall not be in material default of Buyer’s obligations under this
Agreement, and that all of Buyer’s express representations and warranties set forth in this
Agreement continue to be true, correct and unchanged in all materials respects as of the Closing.
7. 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 Escrow. The “Closing Date”
shall be ten (10) business days from the receipt by Seller of the Approval Notice, or such other
date as the parties may mutually agree (without expectation or obligation to so agree).
Notwithstanding the foregoing, either Buyer or Seller may elect, with two (2) business days’ prior
notice to the other party, to extend the Closing Date for up to thirty (30) additional days.
(b) 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 signature(s) notarized for recording
in the official records of Santa Clara County, California (“Official Records”), conveying to Buyer
title to the Property, in the form of Exhibit B attached hereto (“Grant Deed”);
(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 (including without
limitation certifications or other assurances relating to mechanics’ or materialmen’s liens, parties
in possession and the status and capacity of Seller and persons signing on behalf of Seller).
(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 Escrow the following:
(1) The Net Purchase Price;
(2) A Certificate of Acceptance substantially in the form set forth on Exhibit C
attached hereto; and
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(3) Such additional instruments or documents reasonably required 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.
8. Representations, Warranties and Covenants.
(a) Representations By Seller. Seller represents and warrants to Buyer as follows:
(1) This Agreement (i) is and at the time of Closing will be duly authorized,
executed and delivered by Seller, (ii) is and at the time of Closing will represent the legal, valid
and binding obligations of Seller, and (iii) does not and at the time of Closing will not violate or
conflict with any provision of any agreement or judicial order to which Seller is a party or to which
Seller or the Property is subject. All other documents executed by Seller which are to be delivered
to Buyer at Closing (i) are or at the time of Closing will be duly authorized, executed and delivered
by Seller, (ii) are or at the time of Closing will represent the legal, valid and binding obligations
of Seller, and (iii) do not and at the time of Closing will not violate or conflict with any provision
of any agreement or judicial order to which Seller is a party or to which Seller or the Property is
subject. 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) Seller is not a “foreign person” within the meaning of Section 1445(f)(3)
of the Federal Code.
(3) The Property Materials delivered to Buyer are complete copies of the
originals of such documents in the possession or control of Seller or Seller’s agents and are all of
the Property Materials in the possession or control of Seller or Seller’s agents. The Property
Materials constitute all of the documents affecting the Property that disclose potential defects or
problems with respect to the condition, use or operation of the Property which remain uncured and
there are no documents not in the possession or under the control of Seller or Seller’s
Representatives or property manager that disclose defects or problems with respect to the
condition, use or operation of the Property which remain uncured. 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. “Seller's Representatives” shall mean,
collectively and individually, the agents, employees, officers, directors, property managers,
contractors, subcontractors, attorneys, consultants and representatives of Seller.
(4) Seller has not received written notice from any governmental or quasi-
governmental authority of existing violations of any laws or other legal requirements applicable to
the Property, which remain uncured.
(5) Seller has not received written notice of any action, suit or proceeding
pending, and Seller has no actual knowledge of anything threatened against or affecting all or any
portion of the Property, or relating to or arising out of the ownership, management, development,
proposed development or operation of the Property, or which would affect Seller’s ability t o
perform its obligations under this Agreement in any court or arbitration or other quasi-judicial
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proceeding or before or by any governmental or quasi-governmental authority. Seller has not
received written notice from any applicable governmental authority of any pending or, or Seller’s
knowledge, threatened special assessments or condemnation actions with respect to the Property.
(6) 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).
(7) Seller has not granted any option or right of first refusal or first opportunity
to any party to acquire any interest in any of the Property or to occupy the Property. There are no
contracts, leases or other agreements relating to the ownership, operation and maintenance of the
Property that will survive the Closing and which will be binding on Buyer or the Property, other
than the Permitted Exceptions. No party, other than Seller, has any right to occupy the Property
or any portion thereof.
(8) To Seller’s knowledge, the Property Materials delivered to Buyer include
all reports relating to whether any Hazardous Materials have been located on the Property or have
migrated onto the Property or have been released into the environment, or discharged, placed or
disposed of at, on or under the Property. To Seller’s knowledge there are no Hazardous Materials
on, under, about or affecting the Property in violation of any applicable laws. As used in this
Agreement, “Hazardous Materials” shall mean and include the following, including mixtures
thereof: any hazardous substance, pollutant, contaminant, waste, by-product or constituent
regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq.; oil and petroleum products and natural gas, natural gas liquids,
liquefied natural gas and synthetic gas usable for fuel; pesticides; asbestos and asbestos-containing
materials, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; source material, special nuclear material, by-product material and any other
radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy
Act of 1954, 42 U.S.C. Section 2011 et seq. or the Nuclear Waste Policy Act of 1982, 42
U.S.C.10101 et seq.; chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R.
Section 1910.1200 et seq.; mold; industrial process and pollution control wastes, whether or not
hazardous within the meaning of the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq.; and any other substance, waste or material which has been determined to be injurious
to health, public safety or the environment.
(9) Seller represents and warrants to Buyer that: (i) Seller and Seller’s
Representatives are not acting, and shall not act, directly or indirectly, for or on behalf of any
person, group, entity, or nation named by any Executive Order or the United States Treasury
Department as a terrorist, “Specially Designated National and Blocked Person,” or other banned
or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation
enforced or administered by the federal Office of Foreign Assets Control; and (ii) Seller and
Seller’s Representatives are not entering into this Agreement, directly or indirectly, on behalf of,
or instigating or facilitating this transaction, directly or indirectly, on behalf of any such person,
group, entity, or nation.
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The representations and warranties of Seller set forth in this Section 8(a) shall survive the Close
of Escrow.
(b) Representations By Buyer. Buyer represents and warrants to Seller that no consent
or approval from anyone other than Buyer’s Board of Directors 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) 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, leased, licensed, 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 or should be aware which would make any of Seller’s
representations and warranties untrue in any material respect, or any covenant of Seller under this
Agreement incapable or improbable of being cured or performed.
(3) Seller shall not accept, consider or entertain any offers to acquire or
purchase the Property from any third parties as of the Effective Date of this Agreement.
(4) Seller shall cooperate with Buyer in connection with the merger of the Land
and Parcel A of 424-31-055 (“Parcel A”), as the circumstances may require for the Buyer’s future
use or sale of the Land or the Buyer’s potential combined development of the Land and Parcel A.
This subsection (4) will survive the Close of Escrow.
9. Prorations.
(a) Subject to this Section 9 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 12:01 a.m. on 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, and Buyer bears
all expenses with respect to the Property, and has the benefit of all income with respect to the
Property on and after 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 (if any) by Seller at the Closing. Notwithstanding the foregoing, Seller shall
be solely responsible for clearing all possessory interest taxes, if any, 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 Section 9(b) below.
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(b) Subject to Section 9(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 the owing party
is provided with notice of the amount due, 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 notice of amount due to the date of payment. This subsection
(b) shall survive the Closing.
10. Title Charges; Other Closing Costs. If this transaction is terminated before Close of
Escrow by either party for any reason other than a breach or default by either party hereunder,
Buyer and Seller shall share equally 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 (if any) for the recording
of the Grant Deed and shall pay 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.
11. Close of Escrow. Upon the Close of Escrow, Seller and Buyer shall instruct Escrow Holder
to deliver all funds, instruments and documents as follows:
(a) Escrow Holder shall be instructed to deliver to Seller:
(i) Copies of the fully executed Grant Deed, showing recording information,
and certified by the Escrow Holder as being a true and complete copies recorded in the Official
Records;
(ii) A copy of the fully executed Non-Foreign Status Certificate, and the 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) Copies of the fully executed Grant Deed showing recording information,
and certified by the Escrow Holder as being a true and complete copies recorded in the Official
Records;
(ii) A copy of the fully executed Non-Foreign Status Certificate and Form 593-
C;
(iii) The original Title Policy; and
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(iv) A copy of all other documents deposited into Escrow.
(c) Escrow Holder shall be 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 be directed
to file a Form 1099 information return and send the statement to Seller as required under the
aforementioned statute and regulation.
12. 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 (provided that the Closing
Date shall be extended to the extent necessary to accommodate such period), 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) business day period, 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 12, then the Deposit shall be released to Buyer, and
Seller and Buyer shall thereupon be released from all further obligations under this Agreement
other than the Surviving Obligations.
13. Risk of Loss. If prior to the Closing, the Property is materially damaged or destroyed,
Buyer has the right, exercisable by giving written notice to Seller within ten (10) business days 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 Deposit 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 further 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 and all of Seller’s
right to insurance proceeds (if any) shall be transferred and assigned to Buyer at the Closing. A
failure by Buyer to notify Seller in writing within such ten (10) business day period or the Closing
Date, whichever is earlier, will be deemed an election to proceed under clause (B) above. If Buyer
elects (or is deemed to elect) to proceed under clause (B) above, then thereafter, Seller shall not
compromise, settle or adjust any claims to such insurance proceeds without Buyer’s prior written
consent, which consent shall not be unreasonably withheld or delayed.
14. Default.
(a) DEFAULT BY BUYER; LIQUIDATED DAMAGES.
-11- EXHIBIT A
IF CLOSING FAILS TO OCCUR SOLELY BECAUSE OF BUYER’S DEFAULT
UNDER THIS AGREEMENT, SELLER SHALL, AT ITS ELECTION, HAVE THE OPTION
TO TERMINATE THIS AGREEMENT IN WHICH CASE SELLER AND BUYER SHALL
THEREUPON BE RELEASED FROM THEIR RESPECTIVE OBLIGATIONS HEREUNDER
(OTHER THAN THE SURVIVING OBLIGATIONS), AND AS LIQUIDATED DAMAGES
HEREUNDER, THE DEPOSIT SHALL BE PAID TO AND RETAINED BY SELLER. THE
PARTIES ACKNOWLEDGE THAT SELLER’S ACTUAL DAMAGES IN THE EVENT OF A
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 14(a) 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 14(a) SHALL SURVIVE
THE TERMINATION OF THIS AGREEMENT. SELLER HEREBY WAIVES THE
PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389 WITH RESPECT TO ANY
DEFAULT BY PURCHASER OF ITS OBLIGATIONS TO CLOSE THE TRANSACTION.
SELLER HEREBY WAIVES THE RIGHT OF SPECIFIC PERFORMANCE WITH RESPECT
TO ANY BREACH OR DEFAULT BY PURCHASER UNDER THIS AGREEMENT.
SELLER’S INITIALS: _______ BUYER’S INITIALS: _______
NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THIS SECTION 14 LIMIT
THE DAMAGES RECOVERABLE BY EITHER PARTY AGAINST THE OTHER PARTY
DUE TO THE OTHER PARTY’S OBLIGATION TO INDEMNIFY SUCH PARTY IN
ACCORDANCE WITH THIS AGREEMENT.
(b) Default by Seller.
If the Closing fails to occur due to Seller’s default in the performance of its obligations
hereunder or is otherwise in breach of the terms hereof, Buyer shall, at its election, have the right
to: (i) specific performance of Seller’s obligations under 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 obligations under 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 rights available to Buyer by law or in equity.
The provisions of this Section 14(b) shall survive the Close of Escrow or the termination of this
Agreement.
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15. Notice. All notices required or permitted hereunder shall be in writing and shall be served
on the parties at the following address:
If to Seller: Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Attention: Laurel Prevetti
Phone No.: (408) 354-6832
Email: lprevetti@losgatosca.gov
With a copy to: Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Attention: Robert Schultz
Phone No.: (408) 354-6818
Email: rschultz@losgatosca.gov
If to Buyer: Santa Clara County Central Fire Protection District
14700 Winchester Boulevard
Los Gatos, CA 95032
Attention: Fire Chief Tony Bowden
Phone No.: (408) 341-4411
Email: tony.bowden@sccfd.org
With a Copy to: Office of County Counsel
70 W. Hedding Street, East Wing, 9th Floor
San Jose, CA 95110
Attention: Karen M. Willis, Deputy County Counsel
Phone No.: (408) 299-5982
Email: karen.willis@cco.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, or (c) by a nationally
recognized overnight courier, or (d) 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
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.
16. Time of Essence. Time is of the essence of this Agreement.
17. Governing Law and Venue. 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 transaction(s)
contemplated by it, shall be governed by, construed and enforced in accordance with the law of
-13- EXHIBIT A
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 arbitration 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. 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.
19. 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.
20. Assignability. Neither party shall assign this Agreement without the prior written consent
of all parties.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of both the
parties hereto and their respective legal representatives, successors and permitted assigns.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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
-14- EXHIBIT A
a continuing waiver. No waiver shall be binding unless executed in writing by the party making
the waiver.
28. 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.
29. 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. In the event either party hereto now or hereafter
shall consist of more than one person, firm, or corporation, then and in such event, all such persons,
firms, or corporations shall be jointly and severally liable as such party under this Agreement.
30. 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.
31. 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 affiliates, joint-venturers, partners,
associations, master-servant, agents, representatives, a joint enterprise, employer-employee,
lender-borrower or contractor. Seller shall have no authority to employ any person as employee,
agent or representative on behalf of Buyer for any purpose. Neither Seller nor any person using
or involved in or participating in any actions or inactions relating to the Agreement, or the Property
shall be deemed an affiliate, employee, representative or agent of Buyer, nor shall any such person
or entity represent himself, herself or itself to others as an employee, affiliate, agent or
representative of Buyer.
32. No Third-Party Rights. The parties do not intend to create rights in, or to grant remedies
to, any third party as a beneficiary of or to 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.
33. Headings. The captions appearing in this Agreement are inserted only as a m atter of
convenience and in no way define, limit, construe or describe the scope or intent of such sections
of this Agreement or in any way affect this Agreement.
34. Brokers. The parties represent and warrant to each other that no broker or finder was
instrumental in arranging or bringing about this transaction for such party and that there are no
-15- EXHIBIT A
claims or rights for brokerage commissions or finder’s fees in connection with the transactions
contemplated by this Agreement.
35. No Permitted Use of Buyer Name. Except as allowed herein or by another written
agreement entered into by and between the parties, Seller shall not publicize or use, or allow
anyone else to use, the name, trade name, trade dress, seal, logo or other proprietary information
of Buyer in any manner.
36. Conflict of Interest. Seller shall, and Seller shall ensure that Seller’s Representatives,
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 will constitute a material breach of this
Agreement and is grounds for immediate termination of this Agreement by the Buyer. A violation
of Government Code 1090 may make this Agreement void on its face. In accepting this
Agreement, Seller covenants, warrants, represents and agrees that it presently has no interest, and
will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any
manner or degree with the performance of this Agreement. Seller further covenants that, in the
performance of this Agreement, it will not employ any contractor, consultant or person having
such an interest.
37. Non-Discrimination. Seller shall comply with all applicable Federal, State and local laws
and regulations including the County of Santa Clara’s policies concerning nondiscrimination and
equal opportunity in contracting. Such laws include but are not limited to the following: Title VII
of the Civil Rights Act of 1964, as amended; Americans with Disabilities Act of 1990; The
Rehabilitation Act of 1973 (Sections 503 and 504); California Fair Employment and Housing Act
(Government Code Sections 12900 et sea.); California Labor Code sections 1101 and 1102. Seller
shall not discriminate against any subcontractor, employee, or applicant for employment because
of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental
disability, physical disability, medical condition, political beliefs, organization affiliations, or
marital status in the recruitment, selection for training including apprenticeship, hiring,
employment, utilization, promotion, layoff, rates of pay or other forms of compensation. Nor shall
Seller or any of Seller’s Representatives discriminate in the fulfillment of any of the Agreement
terms because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation,
mental disability, physical disability, medical condition, political beliefs, organizational
affiliations, or marital status.
38. California Public Records Act. All documents and records provided to or made available
to Buyer under this Agreement become the property of the Buyer, which is a public agency subject
to the disclosure requirements of the California Public Records Act (“CPRA”). If proprietary
information is contained in documents submitted by Seller or Seller’s Representatives to Buyer,
and Seller expressly claims that such information falls within one or more CPRA exemptions,
Seller must clearly mark such information “CONFIDENTIAL AND PROPRIETARY,” and
identify the specific lines containing the confidential information. In the event of a request for such
information, the Buyer will make reasonable efforts to provide notice to Seller prior to such
-16- EXHIBIT A
disclosure. If Seller contends that any documents are exempt from the CPRA and wishes to prevent
disclosure, it is required at its own cost, liability and expense to obtain a protective order, injunctive
relief or other appropriate remedy from a court of law in Santa Clara County at least two (2) days
before Buyer’s deadline to respond to the CPRA request. If Seller fails to obtain such a remedy
before the Buyer responds to the CPRA request, Buyer will disclose the requested information and
shall not be liable or responsible for such disclosure. Seller represents, warrants and agrees that it
shall defend, indemnify and hold Buyer harmless for, from and against any and all Claims that
may or do result from denial by Buyer of a CPRA request for any information arising from any
representation, or any action (or inaction), by Seller or Seller’s Representatives.
-17- EXHIBIT A
39. Survival. Paragraphs 14 through and including 40 shall survive the Closing or earlier
termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as follows:
SELLER:
TOWN OF LOS GATOS
By:__________________________
Title:________________________
Date:________________________
-18- EXHIBIT A
BUYER:
SANTA CLARA COUNTY CENTRAL FIRE
PROTECTION DISTRICT, a dependent special
district
_____________________________________
CINDY CHAVEZ, President of the Board of
Directors
Date: _______________
Signed and certified that a copy of this
document has been delivered by electronic
or other means to the President of the Board of
Directors.
ATTEST:
_______________________________
Name:
Title:
APPROVED AS TO FORM AND LEGALITY:
_________________________
Karen M. Willis, Deputy County Counsel
-19- EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION
-1-
EXHIBIT B
GRANT DEED
RECORD WITHOUT FEE UNDER CALIFORNIA
GOVERNMENT CODE SECTIONS 27383 AND 6103
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
[INSERT]
Space above this Line for Recorder’s Use
A.P.N. ________________________
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,
_______________, a __________________ (“Grantor”), hereby GRANTS to the Santa Clara
County Central Fire Protection District, a dependent special district (“Grantee”), all right, title, fee,
and interest in and to that real property situated in the City of Los Gatos, County of Santa Clara,
State of California, described on Exhibit A attached hereto, together with all buildings and other
improvements located on said real property, and all rights, privileges, easements and
appurtenances thereto, including without limitation all mineral and water rights, appurtenant
easements, rights-of way and other appurtenances used in connection with or relating to such real
property, buildings, structures and other improvements.
In Witness Whereof, Grantor has caused this instrument to be executed.
GRANTOR: ___________________
______________________, a ________________
Dated:__________________ By:
Its:
Mail tax statements to: Same as above address.
-2-
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF )
On __________________________, before me, _______________________________,
Notary Public, personally appeared __________________________________, who proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same 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)
(Signature)
-3-
EXHIBIT C
CERTIFICATE OF ACCEPTANCE
(Government Code Section 27281)
Certificate of Acceptance
by
Santa Clara County Central Fire Protection District
THIS IS TO CERTIFY that the interest in real property conveyed by the Grant Deed dated
____________, ____ from the Town of Los Gatos, to the Santa Clara County Central Fire Protection
District, a fire district authorized by the State of California, is hereby accepted by the undersigned officer
or agent on behalf of the Santa Clara County Central Fire Protection District pursuant to authority
conferred by Resolution No. _________ of the Board of Directors of the Santa Clara County Central Fire
Protection District adopted on _______________, and the grantee consents to recordation thereof by its
duly authorized officer.
In witness whereof, I have hereunto set my hand on _______________ day of ____.
By:
TONY BOWDEN, Fire Chief
Santa Clara County Central Fire Protection District
-4-
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF )
On __________________________, before me, _______________________________, Notary
Public, personally appeared __________________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same 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)
(Signature)