1991-238-Authorizing The Town Manager To Execute A Modfication And Extention Of The Option To Purchace Real Property Located At 17 Fiesta WayRESOLUTION 1991 -238
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING THE TOWN MANAGER TO EXECUTE
A MODIFICATION AND EXTENSION OF THE OPTION
TO PURCHASE REAL PROPERTY LOCATED AT 17 FIESTA WAY
WHEREAS, there were material omissions in information provided at the time the
option and purchase agreements for real property located at 17 Fiesta Way were negotiated,
and
WHEREAS, the Town might be liable for relocation costs for the tenants currently
occupying the property, and
WHEREAS, the previous agreement was not contingent upon the award of a library
building grant by the California Library Construction and Renovation Bond Act Board,
NOW, THEREFORE, BE IT RESOLVED, that the Town Council authorizes the
Town Manager to execute a modification and extension of the option to purchase the
property in the attached form, contingent on the award of a library building grant.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Los Gatos, California on the 21st of October, 1991, by the following vote:
COUNCILMEMBERS:
AYES: Randy Attaway, Joanne Benjamin, Steven Blanton,
Eric D. Carlson, Mayor Brent N. Ventura
NAYS:
ABSENT:
ABSTAIN:
SIGNED: � V,�
ATTEST:
C
c�v
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CLERK OF THE TOWN OF L0 GATOS
LOS GATOS, CALIFORNIA
OPTION AGREEMENT
This Agreement made this day of October, 1991 at Los Gatos,
California, by Joe Ann Pfaff, hereinafter collectively referred to as " Optionor," and Town
of Los Gatos, hereinafter collectively referred to as " Optionee."
WHEREAS, Optionor is the owner of certain real property situated in the Town
of Los Gatos, hereinafter referred to as "the property," commonly known as 17 Fiesta
Way, Los Gatos, California, and more particularly described in Exhibit A, which is
attached to this option agreement and incorporated herein by reference; and
WHEREAS, Optionees desire to acquire the exclusive right to purchase the
property at an agreed price and under specified terms and conditions;
NOW THEREFORE, it is agreed as follows:
1. Grant of Option: Optionor hereby grants to Optionee the exclusive
right to purchase the property at a price and under the terms and conditions set forth in
Exhibit B.
2. Option Period: This option shall commence on the day and year first
above written and shall remain in effect until February 28, 1992 or until 20 days after
the California Library Construction and Renovation Board gives written notice to the
Optionee of award or denial of its application for a grant to build a library, whichever
comes first.
3. Consideration: This option is granted in consideration of Optionee's
payment to Optionor of the sum of $ 1.00 payable at the time this agreement is signed,
by a certified or cashier's check drawn to the order of Optionor, subject to collection,
receipt of which is hereby acknowledged.
4. Application of Consideration to Purchase Price: If this option or
any extension thereof is exercised in accordance with its terms, then the consideration
paid Optionor by Optionee shall not apply to the purchase price.
5. Retention of Consideration: In the event this option or any
extension thereof is not exercised, all sums paid and services rendered to Optionor by
Optionee shall be retained by Optionor in consideration of the granting of this option.
6. Exercise of Option: If Optionee is not in breach of this Agreement
they may exercise this option by execution and tender to Optionor of an instrument in
the form of Exhibit B. Optionor shall then immediately execute and deliver to Optionee
an executed copy of the instrument.
7. Automatic Termination: If Optionee fails to exercise this option in
accordance with its terms and within the option period or any extension thereof, then
this option and the rights of Optionee shall automatically and immediately terminate
without notice. Thereafter, Optionees shall properly execute, acknowledge, and
deliver to Optionor within 15 days, of request therefor, a release, quitclaim deed, or
any other document required by Optionor or a title insurance company to verify the
termination of this Agreement.
8. Assignability of Option: Optionee may not assign this Agreement.
9. Notices: Unless otherwise provided herein, any notice, tender, or
delivery to be given hereunder by either party to the other may be effected by personal
delivery in writing or by registered or certified mail, postage prepaid, return receipt
requested, and shall be deemed communicated as of mailing upon actual receipt.
Mailed notices shall be addressed as set forth below, but each party may change
his /her address by written notice in accordance with this paragraph.
To Optionor Ms. Joe Ann Pfaff
17 Fiesta Way
Los Gatos, CA 95032
To Optionee Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95032
10. Entire Agreement: This instrument and the attached Exhibit A
constitute the entire agreement between the parties relating to the option. Any prior
agreements, promises, negotiations, or representations not expressly set forth in this
Agreement are of no force and effect. Any amendment to this Agreement shall be of
no force and effect unless it is in writing and signed by the Optionor and Optionee.
11. Attorneys' fees: If any legal action or proceeding arising out of or
relating to this Agreement is brought by either party to this Agreement, the prevailing
party shall be entitled to receive from the other party, in addition to any other relief that
may be granted, the reasonable attorneys' fees, costs, and expenses incurred in the
action or proceeding by the prevailing party.
12. Binding Effect: This agreement shall be binding on and inure to the
benefit of the parties to this Agreement and their heirs, personal representatives,
successors, except as otherwise provided in this Agreement.
Executed on day of October, at Los Gatos, California.
OPTIONOR
Ms. Joe Ann Pfaff
Town of Los Gatos
David W. Knapp, Town Manager
Approved as to form
CONTRACT OF SALE
Preamble
CONTRACT OF SALE entered into , 1991 by and between
Joe Ann Pfaff, surviving joint tenant (hereafter referred to as "Seller') and the Town of Los
Gatos, a municipal corporation (hereafter referred to as 'Buyer ").
Seller agrees to sell and convey, and Buyer agrees to purchase, the real property
located at 17 Fiesta Way in the Town of Los Gatos, Santa Clara County, California
(hereafter referred to as "the Property "), and more particularly described in Exhibit A, which
is attached to this Contract and hereby incorporated by reference, on the following terms and
conditions:
ARTICLE 1. PURCHASE PRICE
Amount and Terms of Payment
Section 1.01. The total purchase price of the Property is $200,000 payable by Buyer
to Seller upon the close of escrow.
ARTICLE 2. ESCROW
Opening of Escrow
Section 2.01. An escrow shall be opened to consummate the sale of the Property
according to the terms of this Contract at the office of Valley Title Company (hereafter
referred to as the "escrow holder') at 300 South First Street, San Jose, California, 95113.
The escrow shall be opened within 3 days after the execution of this Contract. Written
escrow instructions in accordance with the terms of this Contract shall be prepared by
each party, and the instructions shall be signed by the parties and delivered to the escrow
holder within 15 days of the execution of this Contract. Buyer and Seller shall also de-
posit with the escrow holder all instruments, documents, and other items (i) identified in
the escrow instructions or (ii) reasonably required by the escrow holder to close the sale
on the closing date specified below.
Closing Date
Section 2.02. The escrow shall be closed on the date the deed is recorded. The escrow
shall be considered to be in a condition to close when the escrow holder is authorized un-
der the escrow instructions, and when the escrow holder is otherwise able, to record the grant
deed. The escrow must be in a condition to close no later than 120 days after execution of
this Agreement, unless the closing date is extended pursuant to the terms of this Contract.
anty005 \17fiestaxon 1 October 30, 1991
Prorations
Section 2.03. The following shall be prorated between Seller and Buyer on the basis
of a 30 -day month as of the date on which escrow closes; real property taxes, dues, and
premiums on any insurance policies that are transferred to Buyer pursuant to Section 5.03.
Broker's Commission
Section 2.04. No real estate agent or broker is involved in this transaction and no
broker's fees or commission shall be paid.
Closing Costs
Section 2.05. Seller shall pay any transfer taxes, the cost of the CLTA title
insurance policy required by this Contract, any reconveyance and recording fees, charged
for the reconveyance of any deed of trust, and the cost of preparing, executing, and
acknowledging the grant deed and all other instruments necessary to convey title to
Buyer. Buyer shall pay the cost of recording the grant deed and any other instruments re-
quired to convey title to Buyer. The escrow fee, other than the cost of the above title
insurance policy, shall be paid 50 percent by Buyer and 50 percent by Seller.
Vesting of Title
Section 2.06. On the close of escrow, title shall be vested in the Town of Los
Gatos, a municipal corporation.
ARTICLE 3. ADDITIONAL TERMS AND
CONDITIONS
Miscellaneous Conditions
Section 3.01. The close of escrow opened pursuant to Section 2.01, and Buyer's
obligation to purchase the Property pursuant to this Contract, are subject to the satisfaction
of the following conditions, which are solely for Buyer's benefit unless otherwise indicated:
Marketable Title
(a) The conveyance to Buyer of good and marketable title to the Property, as
evidenced by a California Land Title Association standard coverage title insurance
policy issued by Valley Title Company in the full amount of the purchase price
insuring that title to the Property is vested in Buyer free and clear of all title defects,
liens, encumbrances, conditions, covenants, restrictions, and other adverse interests of
record or known to Seller, subject only to those exceptions approved by Buyer in
writing and the following: a lien for current real property taxes.
anty005 \17fiesta.con 2 October 30, 1991
Delivery of Possession
(b) The delivery, of possession of the Property (with all keys to locks and all
garage door openers) to Buyer immediately on the close of escrow free and clear
of all uses and occupancies except those approved in writing by Buyer.
Physical Condition of the Property
(c) Buyer's satisfaction, in its sole discretion, with the physical condition of the
Property after completing any or all of the tests permitted under Section 4.01.
Failure of Condition and Seller's Breach of Warranty
Section 3.02. Except as provided in Section 3.04, if any of the conditions set forth
in this Contract fails to occur, or if Buyer notifies Seller in writing prior to the close of
escrow of Seller's breach of any of Seller's warranties set forth in this Contract, then
Buyer may cancel the escrow, terminate this Contract, and recover the amounts paid by
Buyer to the escrow holder toward the purchase price of the Property. Buyer shall
exercise this power to terminate by complying with any applicable notice requirements
specified in the relevant condition and, in all other cases, by providing written notice to
Seller and the escrow holder within 20 days of the failure or breach. The exercise of this
power shall not waive any other rights Buyer may have against Seller for breach of this
Contract. Seller shall instruct the escrow holder, in the escrow instructions delivered
pursuant to Section 2.01, to refund to Buyer all money and instruments deposited in
escrow by Buyer pursuant to this Contract upon failure of a condition or conditions or
breach of a warranty or warranties and receipt of a termination notice. This instruction
shall be irrevocable. In the event of such a termination, Seller shall bear any costs and
expenses of escrow.
Seller's Election to Remedy Defects
Section 3.03. Notwithstanding any provision of this Contract to the contrary, Seller
shall have the right to remedy certain violations of this Contract prior to the close of es-
crow. This right to remedy shall be subject to the following requirements and restrictions:
(a) Buyer shall immediately notify Seller in writing of Buyer's discovery, prior to the
close of escrow, of a violation of any of the following provisions of this Agreement:
Sections, 3.02(a), 4.02. For these purposes, the foregoing violations shall be referred
to as "defects."
(b) If Buyer fails to give notice, Buyer shall waive the defect and the defect shall
not be a violation of this Contract. If Buyer gives notice, Seller may elect to
remedy the defect by giving Buyer written notice of this election within 5 days of
receiving Buyer's notice. Seller's notice of election to remedy shall specify the
number of days (if any), up to a maximum of 10 that escrow shall be postponed so
that Seller may remedy the defect. If Seller fails to provide a timely notice of
election or fails to remedy the defect prior to the close of escrow (including any
antyM5 \17fiesta.con 3 October 30, 1991
extension of escrow pursuant to this Section), then Buyer, at Buyer's election, may
do either of the following:
(1) Terminate the Contract without any liability, on the part of either party; or
(2) Purchase the Property without a reduction in the purchase price and without
any liability for the unremedied defect or defects on the part of Seller.
The failure by Buyer to make such an election shall be deemed an election of
option 2.
(c) Seller shall instruct the escrow holder, in the escrow instructions delivered pursuant
to Section 2.01, to immediately refund to Buyer all money and instruments deposited
in escrow by Buyer pursuant to this Contract on termination of this Contract pursuant
to this Section, and on receipt of notice of that termination from Buyer. In the event
of such a termination, Seller shall bear any costs and expenses of the escrow.
ARTICLE 4. RIGHTS, WARRANTIES AND INDEMNIFICATION
Right of Buyer to Enter Property
Section 4.01. Seller grants to Buyer, or Buyer's agents, the right, at any time and
from time to time within three (3) days after the opening of the escrow for this
transaction, to enter onto the Property to conduct tests or investigations, provided that:
(a) The acts shall be conducted at the sole cost and expense of Buyer;
(b) The acts do not unreasonably interfere with Seller's possession;
(c) Buyer shall indemnify and hold Seller harmless from any costs or liability
resulting from the acts, and, if the escrow is canceled for a reason that is not the
fault of Seller, for any damage to the Property resulting from the acts; and
(d) Buyer shall give Seller written notice of the intention to enter two (2) days
prior to the date of the planned entry.
Warranties of Seller
Section 4.02. Seller warrants that:
(a) Seller owns the Property, free and clear of all liens, licenses, claims, encumbrances,
easements, encroachments on the Property from adjacent properties, encroachments
by improvements on the Property onto adjacent properties, and rights of way, of any
nature, not disclosed by, the public record.
(b) Seller has no knowledge of any pending litigation or claims involving the Property.
antyoo5\17fiesta.con 4 October 30, 1991
(c) Seller has no knowledge of any violations of, or notices concerning defects or
noncompliance with any, applicable building code or other code, statute, regulation,
ordinance, judicial order, or judicial holding pertaining to the Property. Seller has not
received any notice from any governmental authority relating to defects in the
Property or non - compliance with any applicable law, code or regulation.
(d) Seller is not in default under any contract, note, or encumbrance relating to the
Property.
(e) Seller is not engaged in any business on the Property and does not and will not
lose or make any claim for loss of goodwill as a result of this Agreement.
(f) Seller will maintain the Property in good repair and in the same condition,
reasonable wear and tear excepted, it was in when it was inspected by Buyer on
July 10, 1991.
(g) Seller has no knowledge that there are now or ever have been underground
storage tanks located on the Property, no knowledge that hazardous waste has
been released on the Property, and no knowledge that there is asbestos or PCB
present anywhere on the Property.
(h) Seller has delivered true, accurate and complete copies of all documents,
surveys, plans and specifications describing the Property and known by Seller to
exist; and no documents supplied to Buyer from Seller contain any untrue
statement of material fact or fail to state any fact, which would be necessary, in
light of the circumstances, to render the documents supplied not misleading.
Seller's Indemnification for Toxic or Hazardous Materials
Section 4.03. If any toxic or hazardous materials are discovered which were on the
Property before close of escrow, Seller will defend, indemnify and hold the Buyer
harmless for any and all costs of identification, evaluation, removal, and remediation.
Waiver of Relocation Assistance
Section 4.04. Seller is aware that State law requires Buyer to provide relocation
assistance in connection with this Agreement. Seller agrees that the terms and conditions
of this Agreement include full compensation for all monetary allowances, benefits and
payments to which she is or may be entitled under the provisions of Government Code
§7260 et seq., and covenants not to make any further demand or application for
relocation monetary assistance.
Warranties of Buyer
Section 4.05. Buyer warrants that purchase of this Property is in lieu of
condemnation since acquisition is necessary for construction of a public library at this site.
anty005 \17fiesta.con 5 October 30, 1991
Survival of Warranties
Section 4.06. All warranties, covenants, and other obligations described in this Article
and elsewhere in this Contract shall survive delivery of the deed.
ARTICLE 5. MISCELLANEOUS PROVISIONS
Loss, Destruction, and Condemnation
Section 5.01. The parties agree that the following provisions shall govern the risk of
loss:
(a) If, before Seller transfers legal title or possession of the Property to Buyer, all or
a material part of the Property is destroyed without fault of Buyer, or is taken by
eminent domain by any other governmental entity, Buyer shall be entitled to elect to
recover any portion of the price Buyer has paid, and Seller shall not have the right
to enforce this Contract. For these purposes, "material part of the Property" means
improvements on the Property that would cost $1,000 or more to replace or to restore
to their condition as of the date of execution of this Contract.
(b) If after Seller transfers legal title or possession of the Property to Buyer, all or any
part of the Property, is destroyed without fault of Seller, or is taken by eminent
domain by any other governmental entity, Buyer is not relieved from Buyer's
obligation under this Contract to pay the full price for the Property, nor is Buyer
entitled to recover any portion of the price Buyer has paid.
(c) If at any, time prior to the close of escrow, damage, destruction, or condemnation
occurs, and this loss is not covered by Subsections (a) or (b) of this Section, shall be
entitled to offset the cost of repair or replacement against the purchase price of the
Property.
Insurance
Section 5.02. Seller shall cancel all policies of insurance on the Property, as of the
close of escrow. Buyer shall be responsible for obtaining insurance on the Property as of
close of escrow.
Cooperation
Section 5.03. Each party agrees to take such further action and to execute and deliver
such further documents as may be reasonable or necessary in order to carry out the purposes
of this agreement.
anty005 \17fiestamn 6 October 30, 1991
Assignment
Section 5.04. Buyer may not assign this Contract without Seller's prior written consent.
The valid assignment of this Contract shall not relieve Buyer of liability under this Con-
tract.
Time of Essence
Section 5.05. Time is of the essence in this Contract.
Notices
Section 5.06. Any notice, tender, delivery, or other communication pursuant to this
Contract shall be in writing and shall be deemed to be properly given if delivered, mailed,
or sent by wire or other telegraphic communication in the manner provided in this Section,
to the following persons:
(a) If to Buyer: David W. Knapp, Town Manager
Town of Los Gatos
110 East Main Street
P.O. Box 949
Los Gatos, CA 95031
(b) If to Seller: Joe Ann Pfaff
17 Fiesta Way
Los Gatos, CA 95032
Either party may change that party's address for these purposes by giving written
notice of the change to the other party in the manner provided in this section.
If sent by mail, any notice, delivery, or other communication shall be effective or
deemed to have been given 48 hours after it has been deposited in the United States
mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If
sent by wire or other form of telegraphic communication, any notice, delivery, or other
communication shall be effective or deemed to have been given eight hours after it has been
deposited with Western Union, or other carrier, prepaid and addressed as set forth above.
Entire Agreement
Section 5.07. This Contract and the attached Exhibits constitute the entire agreement
between the parties relating to the sale of the Property. Any prior agreements, promises,
negotiations, or representations not expressly set forth in this Contract are of no force and
effect. Any amendment to this Contract shall be of no force and effect unless it is in writing
and signed by Buyer and Seller.
anty005 \17fiesta.con 7 October 30, 1991
Attorneys' Fees
Section 5.08. If any action, proceeding, or arbitration arising out of or relating to this
Contract is commenced by either party to this Contract or by the escrow holder, then as
between Buyer and Seller, the prevailing party shall be entitled to receive from the other
party, in addition to any other relief that may be granted, the reasonable attorneys' fees,
costs, and expenses incurred in the action, proceeding, or arbitration by the prevailing party.
Binding Effect
Section 5.09. This Contract shall be binding on and inure to the benefit of the parties
to this Contract and their heirs, personal representatives, successors, and assigns, except as
otherwise provided in this Contract.
Governing Law
Section 5.10. This Contract and the legal relations between the parties shall be
governed by and construed in accordance with the laws of the State of California.
Headings
Section 5.11. The headings of the articles and sections of this Contract are inserted
for convenience only. They do not constitute part of this Contract and shall not be used in
its construction.
Waiver
Section 5.12. The waiver by any party to this Contract of a breach of any provision of
this Contract shall not be deemed a continuing waiver or a waiver of any subsequent breach
of that or any other provision of this Contract.
Dated this day of , 1991.
SELLER
JOE ANN PFAFF
:8•_•
DAVID W. KNAPP, TOWN MANAGER
TOWN OF LOS GATOS
Approved as to form
anty005 \17fiestaxon 8 October 30, 1991