5N MEETING DATE: 11/5/12
Wit ITEM NO.
COUNCIL AGENDA REPORT
DATE: November 1, 2012
TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER
SUBJECT: PROPERTY LOCATION: 137 BERSANO LANE. APN 424 -29 -054,
PROPERTY OWNER: BARBARA CHRISTMANN.
A. ADOPT A RESOLUTION APPROVING A PURCHASE AND SALE
AGREEMENT FOR THE RE- PURCHASE OF AN AFFORDABLE
HOUSING UNIT SUBJECT TO AN EXISTING BELOW MARKET PRICE
(BMP) FIRST RIGHT OF REFUSAL OPTION; AND
B. AUTHORIZING THE TOWN MANAGER TO NEGOTIATE AND
EXECUTE ALL AGREEMENTS AND DOCUMENTS NECESSARY AND
APPROPRIATE TO EFFECTUATE THE PRESERVATION OF THE
AFFORDABLE HOUSING UNIT.
RECOMMENDATION:
Adopt a resolution approving a Purchase and Sale Agreement for the re- purchase of an affordable
housing unit subject to an existing Below Market Price (BMP) First Right of Refusal Option, located
at 137 Bersano Lane, Los Gatos, CA, APN 424 -29 -054, and authorizing the Town Manager to
negotiate and execute all agreements and documents necessary and appropriate to effectuate the
preservation of the affordable housing unit (Attachment 1).
BACKGROUND:
The property, 137 Bersano Lane, is a 2- bedroom 1.5 -bath townhome that is listed in the Town's
Below Market Price Housing Program inventory and is subject to an existing first refusal right to
purchase option in the Deed Restriction recorded in December 2007. The unit was originally
purchased for $193,100.
In April 2012, the Town provided a second mortgage loan (in the amount of $31,000) to the
homeowner to prevent the lender's foreclosure of the home and this loan directly paid off the
homeowner's overdue mortgage payments, Home Owner Association (HOA) dues and property tax
payments.
PREPARED BY: Todd Capurso, Acting Director of Community Development
Reviewed by: Assistant Town Manager A2 Town Attorney _* Finance
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PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: 137 Bersano Lane
October 30, 2012
On June 6, 2012, the property owner wrote a letter to the Town noting her intent to sell this property
as allowed by the Below Market Price (BMP) Deed Restriction. The owner noted the need to sell the
unit because she was again unemployed, no longer had sufficient income to cover mortgage and
property related payments, was ineligible for refinancing, and that the unit would likely result in
foreclosure by her existing lender (i.e. due to lack of payments).
On July 2, 2012, the Town responded that it would be exercising its option and repurchasing the unit
for the designated BMP sales as defined in the agreement.
On September 4, 2012, after reconfirming the property owner's desire to sell the BMP unit, the
Town opened an escrow account with Old Republic Title Company as required by the Deed
Restriction.
On September 6, 2012, the Town was informed by the lender that its loan servicing company had
recorded a Notice of Default and had initiated the formal foreclosure process for this property due to
lack of payment.
The Town has notified the lender and the loan servicer that it intends to exercise its option to
purchase in advance of any trustee sales proceedings and has requested a loan payoff demand
calculation.
Since July, staff has been researching potential alternatives to preserve the affordable housing unit,
resolve the lender's foreclosure, and provide the homeowner the options to other housing options.
DISCUSSION:
Adoption of the recommended resolution achieves three objectives: 1) preservation of the
affordable housing unit, 2) resolution of the foreclosure /repayment of lenders, and 3) providing the
homeowner other options for housing.
If the Town does not exercise its option to preserve the affordable housing unit, the lender would
foreclose on this unit some time in December in order to recoup the investors' funds that were used
to finance. If the foreclosure is completed as a Trustee Sale, the lender's loan would be repaid from
the sales proceeds but the Town would be entitled to all excess proceeds after repayment of the first
mortgage based on to the terms of the recorded Deed Restriction. This however, would also result in
the loss of the affordable unit.
Under the terms of the Purchase and Sale Agreement (Attachment 1), the Town would repurchase
the unit from the owner for $207,315.95 as defined by the recorded Deed Restriction.
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: 137 Bersano Lane
October 30, 2012
The Town is required to close escrow by December 5, 2012. At Close of Escrow the title company
will disburse payments for the following items from the sales proceeds:
• Repayment of first mortgage loan balance, penalties and interest (approximately $190,000)
• Payment of an existing small claims court judgment (approximately $2,300)
• Payment of HOA dues in arrears (approximately $1,500)
• Payment of 2"a installment of property taxes (approximately $1,600)
• Payment of title insurance and closing costs (approximately $4,000)
• Partial repayment of Town loan (approximately $8,000)
In addition, the homeowner will be offered an early move out incentive of $5,000 which can be used
as a resource to obtain other housing alternatives.
The Town will work with Neighborhood Housing Services Silicon Valley, the Town's new BMP
Program contract administrator, to refurbish the unit and sell it to another qualified buyer at the
earliest opportunity.
CONCLUSION:
Adoption of the resolution will allow the Town to achieve the objectives of: 1) preservation of the
affordable housing unit, 2) resolution of the foreclosure /repayment of lenders, and 3) providing the
homeowner other options for housing.
The prepared Purchase and Sale Agreement will allow staff to complete the repurchase of the BMP
unit by the second week of December as required by the terms of the recorded Deed Restriction.
Staff recommends adoption of the prepared resolution (Attachment 1).
FISCAL IMPACT:
The Town will expend $207, 315.95 from the BMP Housing In -lieu Fee Fund to repurchase this unit.
Sufficient funds are available in the BMP Housing In -lieu Fee Fund for the acquisition and
refurbishment expenses (approximately $10,000) and these expenditures will be reimbursed upon
sale of the unit to another income qualified BMP buyer. The Town will pursue collection of the
balance of the previously provided second mortgage loan (approximately $23,000) through the
eventual resale of the property to a qualified affordable housing purchase.
Attachments:
1. Draft Resolution ( Purchase and Sale Agreement, and Joint Escrow Instructions)
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: 137 Bersano Lane
October 30, 2012
Distribution:
Barbara Christmann, 137 Bersano Lane, Los Gatos, CA 95030
Sheldon Perry, Excel Financial, 6472 Camden Avenue, Suite 211, San Jose, CA 95120
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RESOLUTION 2012-
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
APPROVING A PURCHASE AND SALE AGREEMENT FOR THE
RE- PURCHASE OF AN AFFORDABLE HOUSING UNIT SUBJECT TO AN EXISTING
BELOW MARKET PRICE (BMP) FIRST RIGHT OF REFUSAL OPTION, LOCATED
AT 137 BERSANO LANE, LOS GATOS, CA, APN 424 -29 -054, AND AUTHORIZING
THE TOWN MANAGER TO NEGOTIATE AND EXECUTE ALL AGREEMENTS AND
DOCUMENTS NECESSARY AND APPROPRIATE TO EFFECTUATE
THE PRESERVATION OF THE AFFORDABLE HOUSING UNIT.
WHEREAS, the Town of Los Gatos Zoning Ordinance Sections 29.10.3000 through
29.10.2040 establishes a Below Market Price (BMP) Housing Program to assist low and moderate
income Los Gatos citizens purchase homes at prices below market value; and
WHEREAS, the residential unit located at 137 Bersano Lane was purchased as a BMP
unit by the property owner through the BMP Housing Program for a reduced sales price that is
affordable to lower income households; and
WHEREAS, the BMP Housing Program requires as a condition of participation that a
Deed Restriction with a First Right of Refusal Option for the Town to be able to repurchase units at
a future designated sales price be recorded on the title record of BMP units; and
WHEREAS, a Deed Restriction with a First Right of Refusal Option was recorded for this
BMP unit on December 28, 2007; and
WHEREAS, the property owner notified the Town in writing on rune 6, 2012 of her desire
to sell her BMP unit; and
WHEREAS, the Town has indicated it is exercising its First Right Option and purchasing
the unit for the designated sales prices of $207, 315.95; and
ATTACHMENT 1
WHEREAS, this resolution provides for the acquisition of this BMP unit by the Town of
Los Gatos and authorizes the Town Manager to negotiate and execute all agreements and
documents necessary and appropriate to effectuate thepreservation of the affordable housing unit.
NOW, THEREFORE, BE IT RESOLVED, that Town Council of the Town of Los
approves a Purchase and Sale Agreement and, Joint Escrow Instructions for the purchase of the
BMP unit at 137 Bersano Lane as shown in Exhibit A.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos, California, held on the 5th day of November, 2012, by the following vote:
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
ATTEST:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
NADEMESM2012 \137 Berasano Ln Purchase &Sale Agrmt. Reso.t 1- 5- 12.docx
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(this "Agreement ") is dated for identification the day of October, 2012, by and between
BARBARA CHRISTMANN, a single person, ('Buyer ") and TOWN OF LOS GATOS, a
California municipal corporation ( "Seller "). Buyer and Seller are sometimes referred to herein
individually as a "Party" and collectively as the "Parties."
RECITALS
A. Seller owns the real property located at 137 Bersano Lane, in the Town of Los Gatos
(the "Town "), Santa Clara County ( "County "), California (APN 424 -29 -054), more fully
described on Exhibit A ( "Legal Description of the Property "), attached hereto and incorporated
herein by this reference (the "Real Property ").
B. Seller agrees to sell the Real Property to Buyer and Buyer agrees to Purchase the
Property from Seller in accordance with the conditions set forth in the "Notice of Recorded Deed
Restrictions and First Right of Refusal of the Town of Los Gatos" recorded on December 28,
2007 in the County of Santa Clara, Document No. 19697452 and on all of the terms, covenants
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, the promises and
covenants of the Parties in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which the Parties acknowledge, the Parties agree as follows:
1. Definitions. Certain capitalized terms used in this Agreement have the meanings
defined below:
Closing means the date upon which a grant deed is recorded in the Official Records
of the County, title to the Property is conveyed to Buyer subject only to the Permitted
Exceptions, and possession of the Property is delivered to Buyer, in accordance with the terms of
this Agreement.
Closing Date means the (i) the date that is thirty (30) business days following the
Feasibility Date; or (ii) such other date as may be mutually agreed to by Buyer and Seller in
writing.
Effective Date means the date upon which both Buyer and Seller have executed this
Agreement, and Buyer has received either a copy or an original of this Agreement as so
executed.
Escrow means the escrow established pursuant to this Agreement through which the
purchase and sale of the Property shall be consummated.
_ EXHIBIT A
-1 Of Attachment 1
Escrow Cancellation Charges is defined in Section 10.2.
Escrow Holder means Old Republic Title Company having an office at 438 N. Santa
Cruz Avenue, Los Gatos, CA 95050.
Feasibility Date means the date that is 20 days after Seller executes this Agreement.
Hazardous Materials is defined in Section 11.6.
Improvements means all improvements, structures, and fixtures situated on the Real
Property, together with all of Seller's right, titre and interest in all parking areas, landscaping, and
other improvements, structures, and fixtures.
Inspections is defined in Section 4.2.
Objections is defined in Section 42.
Objection Election Notice is defined in Section 4.2.
Objection Notice is defined in Section 4.2.
Opening of Escrow is the date on which Escrow is opened under Section 3.
Parties and Party are defined in the first paragraph of this Agreement.
Permitted Exceptions means general and special real property taxes and assessments,
a lien not yet due and payable; any other liens, easements, encumbrances, covenants, conditions
and restrictions ofurecord which are not Disapproved Exceptions as described in Section 4.1
below, unless Buyer waives its disapproval of such Disapproved Exception(s); and any liens,
easements, encumbrances, covenants, conditions or restrictions which are created under the
signature of Buyer.
Personal- -= Property means all of Seller's interest in all equipment, furniture,
furnishings, machinery, heating, plumbing, ventilation and air conditioning systems and
equipment, carpet, tile, floor coverings, security devices, sprinkler systems, leasing files and
records, keys, maintenance ' equips ent � and supplies 'and all other tangible personal property
situated on the Real Property ai d-used in connection therewith or with the Improvements, but
excluding the items listed in Exhibit B attached hereto and incorporated herein by this reference,
which items shall remain Seller's property, are not to be conveyed to Buyer under this
Agreement; and may be removed from the Real Property by'Seller.
Pro ert is defined in the Recitals to this Agreement.
Purchase Price means Two Hundred and 'Seven Thousand Three Hundred and Sixteen
Dollars ($207,316).
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Rents means base rent, common area maintenance, parking, tax, insurance and other
payments due and payable under any Lease for all or any portion of the Real Property
Improvements, together with all sales and other taxes thereon, and all other income generated by
all or any portion of the Property.
Seller is defined in the first paragraph of this Agreement.
Title Company means Old Republic Title Company.
Title Policy means a current CLTA owner's title insurance policy with such
endorsements as Buyer may reasonably request, in amount equal to the Purchase Price, insuring
fee title to the Property vested in Buyer, subject only to the Permitted Exceptions.
2. Purchase and Sale. Seller agrees to sell the Property to Buyer, and Buyer agrees to
purchase the Property from Seller, on the terms and conditions set forth herein.
3. Escrow. An escrow account was opened by Town on September 4, 2012. Within
five (5) -days after the mutual execution of this Agreement by the Parties, the Parties shall
delivering an executed copy of this Agreement to Escrow Holder. This Agreement shall
constitute joint escrow instructions to Escrow Holder. The Parties shall execute such additional
instructions not inconsistent with the provisions of this Agreement which may be reasonably
required by Escrow Holder and shall be bound by Escrow Holder's general instructions;
provided, however, that as between the Parties, if any conflict between the provisions of this
Agreement and the provisions of Escrow Holder's general instructions exists or arises, then the
provisions of this Agreement shall control Escrow Holder is designated the "real estate reporting
person" for purposes of Section 6045 of the Internal Revenue Code of 1986, as amended, and
Treasury Regulation 1.6045 -4, and any instructions or settlement statement prepared by Escrow
Holder shall so provide. Escrow Holder shall be responsible for filing Form 1099 -5 with the
Internal Revenue Service.
4. Buyer's Inspections, Feasibility Investigations, Town Council Approval• Estoppel
Certificates.
4.1 Title.
(a) Upon execution of this Agreement by the Parties, Seller, at its sole cost
and expense to be paid out of Escrow, shall deliver to Seller and Buyer a current preliminary
report ( "Preliminary Report") of title to the Real Property, issued by the Title Company, together
with legible copies of all documents referenced therein as exceptions to title and a plot plan for
the Real Property showing the locations of all the recorded easements. On or before the
Feasibility Date, Buyer shall notify Seller of Buyer's objections to title, if any ( "Disapproved
Exceptions "). Seller shall, at Seller's cost, either (i) cause the Disapproved Exceptions to be
removed from title to the Property prior to Closing; or (ii) cause the Disapproved Exceptions be
insured over by the Title Company pursuant to an endorsement (reasonably acceptable to Buyer);
or (iii) the Disapproved Exceptions shall be removed from title to the Property prior to Closing
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and Seller shall reimburse Buyer out of Escrow proceeds for any and all costs associated with the
removal-of the Disapproved Exceptions. Notwithstanding the foregoing, all mortgages, deeds of
trust or other consensual monetary liens and ariy liens or encumbrances arising after the Effective
Date and voluntarily created "or assumed by Seller and not created by or resulting from the acts of
Buyer ( "Monetary Disapproved Exceptions "), shall be deemed Disapproved Exceptions, and
Seller shall be obligated to eliminate same on or prior to the Closing Date.
(b) Seller shall deliver title to the Property at Closing subject only to the
Permitted Exceptions. Any exceptions to title shown on any supplement to the Preliminary
Report that may be issued from time to time by the Title Company following the Feasibility Date
shalbbe removed by Seller at or prior to Closing.
4.2 Feasibility.. Upon execution of this Agreement by the Parties, Seller
shall, to the extent such items are in Seller's possession, promptly provide Buyer with any and all
documentation with respect-.to any conditions That currently `exist on the Property, if any,
correspondence or other documents'in Seller's-possession that may be relevant`"to the condition of
the Property, including, without limitation, correspondence or documents related in any manner
to the current maintenance 'or repair of :the-`Property, including construction warranties,
indemnities, all studies, reports; agreements; 'documents, leases (including; without limitation,
the Leases), surveys, engineering'studies, geological "reports, architect's drawings, plans; -maps,
building contracts, permits',and entitlements in Seller's possession or control 'concerning the
Property and its improvement and development ( collectively,' "the "Feasib`ility Materials "), and
Seller shall instruct its engineers, architects" mar6ting consultants, tenants and other
advisors, consultants -and agents ( "Seller's Consultants" ) if arty, Ito share any information or
knowledge they have concerning the Property with Buyer. Buyer and its agents may enter onto
the Real Property to make such `inspections, audits, fe''asibility studies; soil and engineering tests
and surveys 'and other examinations thereof (collectively, "Inspections ") as Buyer 'deems
reasonably. necessary,- provided that Buyer shall g' ` e at least severity two (72) hours prior notice
to Seller of any intended entry onto the Real,Prop'erty, and any such entry shall not unreasonably
interfere with Seller's use of or activities on the Real Property. Buyei shall "repair'any damage to
the Property resulting from such entry. However, Buyer's -review and investigation of the
Property shall.,not -i any_way preclude-Buy' from relylt g on the representations and warranties
made by Seller in this Agreement. On or before the Feasibility Date, Buyer shall notify Se11er in
writing of any objections (the "Objections ") Buyer has to the condition of the Property disclosed
by the Inspections (the "Objection Notice "). Seller shall, within three (3) days after its receipt of
the Objection Notice from Buyer, provide Buyer and Escrow Holder with written notice
regarding whether,,Seller•--ihten'& to, 'at 'Seller's° cost, clear'th'e Property of and /or resolve the
Objection s..to`Buyer's reasonable sAtrsfaction. If Sellerdoes not notify Biyer`and Escrow Holder
within ;said .,three= (3.), day tperod- that S'elle'r, -11asi `arra&Aed'to have the -Obj'6ctions cleared'from the
Property !or otherwise resolved, to, Buyer's reasonable "satisfaction, Buyer shall have tile` right, but
not the, =obligation, to . remove the Objections and Seller' °shall cooperate"witfi Buyer to have the
Obj'ectionl `cleared. Sellet:sh-All obli- gated acid shall re rriburse Buyer for any and all costs
associated with the removal of the Objections at time 'of Closing and'settlementof Escrow funds,
4.3 Access. Seller grants to Buyer and Buyer's agents, employees and consultants a
nonexclusive license to enter upon the= Property during �buslness hours at'-times reasonably
Im
acceptable to Buyer and Seller on not less than seventy -two (72) hours prior notice to Seller, for
the purpose of allowing Buyer to conduct whatever soil and engineering tests, feasibility studies,
surveys and other examinations of the Property Buyer deems appropriate, provided that Buyer
may not perform any intrusive, invasive or destructive testing of the Real Property without
obtaining Seller's prior written consent, such consent not to be unreasonably withheld or
delayed.
4.4 Town Council Approval. The Town Council shall approve this agreement. If
documentation of the Town Council approval is not provided by the Feasibility Date, the Town
Council will deemed to have affirmatively rejected the purchase of the Property in accordance
with the terms of this Agreement, in which event this Agreement shall automatically terminate.
5. Closing, • Deposit of Purchase Price.
5.1 Subject to Buyer's right to terminate this Agreement in accordance with
Section 4, the timely satisfaction of all of the Conditions to Closing set forth in Section 9, and the
representations and warranties of -Seller and -Buyer herein being true as of the Closing Date, the
Closing shall occur on the Closing Date.
5.2 Provided Seller has deposited all of the items required by Section 7 below no
later than two (2) business days prior to the Closing Date, and provided the Title Company has
confirmed to Buyer in writing that it is unconditionally prepared to issue the Title Policy to
Buyer, subject only to the Permitted Exceptions, upon consummation of the Closing, on or
before the Closing Date, Buyer shall deposit with Escrow Holder the Purchase Price and Buyer's
share of closing costs and prorations as provided in Section 6 below, in immediately available
funds. Escrow Holder shall hold all funds deposited by Buyer with it pursuant to this
Agreement, including without limitation the Purchase Price if and when deposited in accordance
with this section, in an interest- bearing account.
6. Closing Costs and Prorations.
6.1 Closing Costs. Buyer shall pay only for Buyer document preparation and
recording fees and Seller shall pay all other closing costs as customary for Santa Clara County
including but not limited to Title Insurance, Escrow Fees, and all other closing cost related to the
transaction.
6.2 Prorations.
(a) General. Income, if any, from the Property, and real property taxes and
operating expenses, if any, affecting the Property shall be prorated as of 11:59 p.m. on the day
preceding the Closing on an accrual basis. For purposes of calculating prorations, Buyer shall be
deemed to be in title to the Property, and therefore entitled to the income, if any, and responsible
for the expenses, for the entire day upon which the Closing occurs.
-5-
(b) Taxes and Assessments. All nondelinquent real estate taxes and
assessments on the Property shall 'bbprorated based on the actual current tax bill.
(c) Operating Expenses. All utility service charges for electricity, heat and
air conditioning service, other utilities, elevator maintenance, common area maintenance, taxes
(other than real estate taxes), other expenses incurred in operating the Property that Seller
customarily pays, and any other costs incurred in the ordinary course of business or the
management and operation of the - Property shall be prorated on an= accrual basis. Seller shall pay
all such expenses that accrue prior to the,Closing,'and Buyer shall pay all such expenses accruing
on the Closing. To the extent possible,` Seller and Buyer shall obtain- - billings and meter readings
as of.the Closing to aid in such prorationfs. This'obligation shall survive the Closing. Any utility
security deposits to be refunded to Seller shall be obtained by Seller from the utility company,.
and Buyer shall make its own deposit with such companies.- Seller will `notify all utility
companies servicing the Property of the sale of the Property to Buyer and will request that such
companies send Seller a final bill for the period ending :'on the last day before the Closing. Buyer
will .notify the utility companies that all utility bills for the - period commencing on the Closing
are to -be- sent to Buyer. If following the Closing either Buyer or &ller-receives a bill! for utilities
or other services provided to the Property for the period- -in which the Closing occurred, Buyer
and Seller will prorate the bill pursuant to this subsection.
(d) Service Contracts. Unless agreed otherwise in writing by both Buyer and
Seller prior to the Closing, all service contracts for the Property shall be terminated as of the
Closing and all amounts payable under such `service contracts shall be paid on or, before the
Closing by Seller.
(e) - Method` of Proration. All other �prorations shall be made in accordance
with customary practice in the County, except as expressly provided'herein. Buyer shall cause
their accountants to prepare a schedule of tentative- prorations prior rto the Closing Date and
present it to Buyer for Buyer's review and approval five (5) days prior to the Closing Date. Such
prorations, if and to the extent-known and agreed upon -as of`th -e Closing,:.shalf be paid by`Buyer
to- Seller (if the prorations result in a net credit to Seller) or by Seller to Buyer (if the prorations
result in•-a net credit.to Buyer) by increasing or- reducing the cash to -be paid by Buyer at the
Closing. At least three (3)-_--business days'priorto-the Closing'Date, Escrow Holder shall deliver
to :Seller and Buyer'a tentative proration schedule setting- forth�'a preliminary determi iatron` of
prorations. If any information needed for the proration of any item is not available, the Parties
shall reprorate such item after Closing and payment shall be made promptly to the Party entitled
thereto. After Closing, Seller shall remain solely responsible for and shall promptly pay before
delinquency any real estate taxes and assessments for the Property relating to periods prior to the
Closing Date.
7. Deposits by Seiler. No later than two (2) business days prior to the Closing Date,
Seller shall -deposit'with Escrowl Holder:
a. A grant deed; on the Title Company's standard form, duly executed by Seller
(the "Grant Deed "), acknowledged and in recordable form, subject only to the Permitted
M
Exceptions. At Buyer's option, the Grant Deed may include an Assignment of Declarant's
Rights.
b. Seller's Nonforeign Affidavit in the form accepted by the Title Company, duly
executed by Seller ( "Nonforeign Affidavit ").
C. A Real Estate Withholding Exemption Certificate as required by California
Revenue and Taxation Code (Form 593) ( "State Withholding Certificate ").
d. Such other bills of sale, assignments and other instruments of transfer or
conveyance as Buyer or Escrow Holder may reasonably request or as may be otherwise
necessary to evidence and effect the sale, assignment, transfer, conveyance and delivery of the
Property to Buyer.
8. Deposits by Buyer. Prior to the Closing, Buyer shall deposit with Escrow Holder the
following:
a. The Purchase Price in immediately available funds in accordance with
Section 5.
b. Such other instruments or documents as Escrow Holder may reasonably request
or may be necessary to effect the sale, assignment, transfer, conveyance and delivery of the
Property to Buyer.
9. Conditions to Closing.
9.1 Conditions to Buyer's Obligations. The Closing and Buyer's obligation to
purchase the Property are subject to the satisfaction of the following conditions or Buyer's
written waiver of such conditions on or before the Closing Date. Buyer may waive in writing
any or all of such conditions in its sole and absolute discretion.
(a) Buyer shall have timely delivered documentation of Town Council
Approval.
(b) Seller shall have performed all obligations to be performed by Seller
pursuant to this Agreement prior to Closing.
(c) Seller's representations and warranties set forth herein shall be true and
correct as of the Closing.
(d) The Title Company shall be committed to issue the Title Policy to Buyer
effective as of the Closing Date.
(e) Between the Effective Date and the Closing Date, there shall have been no
material changes in the condition or status or fitness of the Real Property "that would adversely
affect Buyer's intended use of the Real Property.
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9.2 Conditions to Seller's Obligations. Closing and Seller's obligation to
consummate the transactions contemplated by this Agreement are subject to the satisfaction of
the conditions that as of the Closing Date:
(a) Buyer shall have performed all obligations to be performed by Buyer
pursuant to this Agreement prior to Closing,
(b) Buyer's representations and warranties set forth herein shall be true and
correct as of the Closing.
10. Closing Covenants.
10.1 Escrow Holder's Actions. Upon the Closing Date, when Escrow. Holder holds
the items required to be deposited by Seller afi&Buyer as -described above and- TTitle Company is
prepared to issue and deliver to Buyer the applicable Title Policy, Escrow Holder 1�s• instructed
and authorized to (i) record the Grant Deed in the Office of the - County Recorder of the County;
(ii) record the - Assignment of Declarant's Rights (if any, and if separate from the Gran_ t Deed) in
the Office of the County Recorder of the County; (iii) file a Real Estate Withholding Exemption
Certificate, if required, with the State of California. Franchise Tax Board or other-taxing
authority; (iv) pay any transfer taxes (v) pay any outstanding amounts due to Homeowners
Association, property taxes, or any other outstanding - lien; (vi) instrucf the County Recorder to
return the Grant Deed to Buyer; (vii) disburse to Seller from the funds deposited into Escrow by
Buyer the Purchase Price, if any exist; (viii) disburse from funds deposited by Buyer amounts
toward payment of all other items chargeable to the account of Buyer hereunder, and disburse the
balance of such funds, if any, to Buyer; (ix) deliver to Buyer the Nonforeign Affidavit; and (x)
the Title Policy.
10.2 Escrow Cancellation Charges. If the Closing does not occur because of the
default of a Party, the defaulting Party shall 'b'ear all Escrow:.Cancellatiori Charges. If-the Closing
does not occur for any reason- other than the default of a Party; then Buyer and Seller shall each
pay one half (1 /2) of any Escrow Cancellation,,Charges. As used`herein, "Escrow Cancellation
Charges" means all fees, charges and expenses incurred by Escrow Holder or third parties
engaged by Escrow Holder as well as all expenses related to the services of the Title Company in
connection with the issuance of the Preliminary Report and other title matters.
10.3 Conveyance and Possession. Upon Closing, Seller shall (a) convey title to the
Property to, Buyer; subject 'onl'y to the Per nitte'd -- Exceptions; and (b) deliver exclusive possession
of the Property to Buyer. In addition, in the event any claim is made- by any prior owner,
mortgagee, developer, Tenant or other claimant against Seller or Buyer related in any way to
Sell --or's right 16 convey the Property, Seller shall defend and indemnify Buyer.
10.4 Relocation Costs. In addition to any other rights, remedies and /or consideration
provided .for. under =this Agreement; -Buyer has offered to pa'y to Seller a sum not to exceed
$5;000•:. dollars to cover actual moving and relocation expenses ' ( "Reimbursable Relocation
Costs ") in exchange for Buyer moving from and leaving the premises clear'of all possessions at
least 7 days before the date of the Closing. With the exception of the foregoing, Seller hereby
waives its right to receive from Buyer, and releases Buyer from any and all obligation to pay,
any other amounts under the California Relocation Assistance Law (California Government
Code section 7260 et seq.) and /or Title 25 of the California Code of Regulations. As an express
condition to the Buyer's obligation to pay Seller any Reimbursable Relocation Costs, Seller shall
submit to Buyer the invoices for Seller's Reimbursable Relocation Costs, which invoices shall
clearly document the specific expenses incurred by the Seller and shall otherwise be in a form
reasonably acceptable to the Buyer.
11. Representations and Warranties of Seller. Seller makes the following representations
and warranties to Buyer:
11.1 Seller owns the Real Property in fee simple absolute and has good and
marketable title to the Real Property, subject to no liens, claims or encumbrances other than
those disclosed in the Preliminary Report. Seller has not alienated, encumbered, transferred,
optioned, leased, assigned, transferred or otherwise conveyed its interest or any portion of its
interest in the Real- Property or any portion thereof except as set forth in the Preliminary Report
and as disclosed herein, nor has Seller entered into any agreement (other than this Agreement) so
to do, unless such agreement(s) have been provided to Buyer in accordance with Section 4.2
above.
11.2 Seller is not in default under, and Seller has received no notice that any event
has occurred which with the giving of notice or the passage of time, or both, would constitute a
default under any contract, transaction, agreement, covenant, condition, restriction, lease,
easement, encumbrance or instrument pertaining to the Property.
11.3 To Seller's actual knowledge, there are no lawsuits, claims, suits, proceedings
or investigations pending or threatened against or affecting Seller or any of the Property and
there are no lawsuits, suits or proceedings pending in which Seller is the plaintiff or claimant and
which relate to the Property. To- Seller's actual knowledge, there is no action, suit or proceeding
pending or threatened which questions the legality or propriety of the transactions contemplated
by this Agreement.
11.4 Other than as expressly disclosed to Buyer, Seller has made no oral or written
commitments or representations to, or understandings or agreements with, any person, firm or
entity, any adjoining property owner or any authority which would in any way be binding on
Buyer or would interfere with Buyer's ability to develop and improve the Property, and Seller
shall not make or enter into any such commitment, representations, understandings or
agreements without Buyer's written consent.
11.5 The Seller's materials delivered to Buyer in connection with the purchase and
sale of the Property are all of the documents, leases, or agreements affecting the Property in
Seller's possession.
11.6 Except as disclosed to Buyer in writing, Seller has received no notice from any
governmental body or agency or any other person or entity that: (a) asbestos - containing
M
materials were installed or exposed in the Property through demolition, renovation or otherwise
at any time during or prior to Seller's ownership of the Property; 01 lectrical transformers or
other equipment containing PCBs are or were ~located on the Property at any time during or prior
to Seller's - ownership of ,the Property; (e) storage; tanks for gasoline, heating oil or diesel fuel or
any other substances -are or were located on or finder the Property at any time during or prior to
Seller's ownership of the Property; `and '.('d) materials regulated under any Federal, St4te or local
law, or regulation, a s amended from =tine �to time as a toxic, hazardous; cntaminated or similarly
harmful or dangerous material or substance (including, without limitation, asbestos and radon)
are or were located on, in or under the Property or have affected the Property or waters on or
under the Property at any time during or'.prior to Seller`s ownership of the Property.. For the
purposes of this Agreement, the term "Hazardous Materials" means any substance, product,
waste or other material of any nature whatsoever which is or becomes listed, regulated or
addressed pursuant to the Comprehensive 'Environirienfal Response Compensation and Liability
Act, 42;U.,S.C. Section 9'601, et seq: ;, the Resource Conservation and Recovery Act `42 U.S.C.
Section 6904 et seq.; the Clean •Water Act, 33 U.S.0 'S-ection 125'1 et seq.; arid' the California
Hazardous Waste Control Act, Health & Safety yCode Section 25100 et seq.
11.7 Seller has not received any written notice under the California Health and
Safety Code or any other applicable local, State or Federal law regarding Hazardous Materials
on, under or affecting the Property or requiring the removal of any Hazardous Materials from the
Property.
11.8 Seller is not a "foreign person" within the meaning of IRC Section 1445.
11.9 Seller has not entered into any and there are no leases or other agreements
relating to any portion of the Property; and no person, other than the Seller, has any right of
possession to the Property or any part thereof.
11.10 Seller is an individual and liar fall capacity, right,` power, and authority to
.,.,enter into this Agreement and: to perform its obligations aiereunder; aid`the person(s)' exeo ing
this Agreement on behalf of Seller -°have the right; power and-authority to dd so.
11.11 Except as disclosed in the Preliminary Report, Seller has received no written
notice of -any 'special= assessments - (wh'etlier `from an assessment district; facilities district, or
otherwise) against the Property b'ein'g contemplated:
11.12-_ S'ellery has 'not 'received'- Ah notic6lfro rr `ariy of Seller's insurance carriers of
any. defect ts ot. inadequacies in, the'Property br any portion thereof; which would adversely affect
the insurability of the Property or the cost of any such ftisurance. 'There are no pending ifisufance
claims by Seller with respect to any portion of the Real Property.
11:13. Seller is not -bankrupt -or ins "olverit under any applicable Federal or State
standard, nor has Seller filed for protection or relief under any applicable bankruptcy or creditor
protection statute nor has Seller been threatened by creditors with an involuntary application of
any applicable bankruptcy -or creditor' protection statute. Seller Is not entering into the
transactions described in this Agreerent with an intent "to defraud any creditor or to prefer the
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rights of one creditor over any other. Seller and Buyer have negotiated this Agreement at arms -
length and the consideration to be paid represents fair value for the assets to be transferred.
11.14 There are no unrecorded leases, licenses or other possessory interests in the
Real Property.
11.15 Indemnity. Seller hereby agrees to indemnify, protect, defend and hold Buyer
and the Property harmless from and against any damage, claim, liability or expense of any kind
whatsoever (including, without limitation, reasonable attorney's fees and fees of expert
witnesses) arising from or in connection with any breach of any of the foregoing representations
and warranties of Seller and any other representations or warranties of Seller contained
elsewhere in this Agreement. Such representations and warranties of Seller and any other
representations and warranties of Seller contained elsewhere in this Agreement are true and
correct on and as of the date of this Agreement and shall be true and correct on and as of the date
of the Closing, and shall survive the Closing, without the necessity of a separate written
certificate regarding the same. If after the date of this Agreement, but prior to the Close of
Escrow, Buyer or Seller should learn, discover or become aware of any existing or new item, fact
or circumstance which renders a representation or warranty of Seller set forth herein incorrect or
untrue in any material respect (collectively, the "Representation Matter "), then the Party who has
learned, discovered or become aware of such Representation Matter shall promptly give written
notice thereof to the other Party. Any Representation Matter caused by deliberate acts of Seller
or fraudulently made by Seller is a default by Seller. Regarding any other Representation
Matter, Buyer shall have the right, in its sole discretion, to either (i) waive in writing and proceed
to acquire the Property or the terms set forth in this Agreement hereunder, or (ii) terminate this
Agreement, and the Deposit and any other amounts paid by Buyer to Seller or deposited into
Escrow by Buyer shall be immediately returned to Buyer. Upon such termination, neither Party
hereunder shall have any further obligations or liabilities under this Agreement except as
specifically set forth herein.
Seller's Knowledge Defined. The phrases "to Seller's actual knowledge" or "to the actual
knowledge of Seller" as used in this Section 11 mean to the actual, present knowledge of Pastor
Richard Grandquist and the current members of the Seller's Board of Directors, without any duty
of further inquiry or investigation, and without the imputation to such individuals of the
knowledge of any other person.
Limitations. Any action against Seller based upon an alleged breach of Seller's
representations and warranties herein must be filed within six (6) months after Seller relinquishes
physical possession of the Real Property to Buyer, and failure to timely file any such action shall
be deemed Buyer's waiver and release of any such action.
AS -IS Conveyance. Buyer expressly acknowledges and agrees that, unless otherwise
expressly set forth in this Agreement: (a) Buyer has made such independent examinations and
inquiries as Buyer deems necessary and desirable with respect to the Property and the transaction
contemplated by this Agreement; (d) Buyer is specifically purchasing the Property on an "AS -IS
WITH ALL FAULTS BASIS" and is relying solely upon Buyer's own independent
investigations, examinations and inquiries and the materials and information prepared by Buyer
see
or by third parties at Buyer's request in determining that the Property and each portion thereof is
suitable and adequate in'all respects for any and all activities and uses which Buyer may elect to
conduct thereon; (e) Seller is not making, has not made and expressly disclaims any
representation, warranty or other assurance "whatsoever with respect to the Property or any
condition or feature thereof, (f) Buyer is fully acquainted with the nature and condition, in all
respects, of the Property, including the existence or availability of all permits and approvals from
governmental authorities and the soil and geology thereof; and, (g) Buyer understands that Buyer
will be assuming the entire risk of any and all 'potential uncertainties regarding the Property.
Subject to Section 11.1; Buyer specifically releases and waives any claim against or liability of
Seller- ar sing -from, relating to or resulting from any law, rule, ordinance, regulation, notice,
demand, order, citation, or other action or`proposed''action affecting the Property" in' any way
issued or taken -after the Seller relinquishes physical possession of the Real Property to ;Buyer by
any governmental jurisdiction; political subdivision; agency or authority except, notwithstanding
the foregoing or any other provision of�this Agreement, Buyer does not waive any such claim or
liability of Seller `arising from; relating to or resulting fr "om (x) any breach of "any Seller
agreement, covenant, representation, or warranty =that is expressly made under this, Agreement by
Seller or (y) any other express obligation 'of Seller hereunder, including, without limitation,
Seller's indemnity obligations set forth in this Section 11'.15 above (collectively, a "Seller
Obligation "), regardless of whether any such Seller Obligation also arises from, relates to, or
results from any law, rule; ordinance, regulation, notice, demand, order, citation, or otherraction
or proposed action affecting the Property in any way issued or taken after the Closing by any
governmental jurisdiction, politicai subdivision, agency, -or authority. The provisions of this
Section 11.15 shall survive the Closing.
No Additional Representations by Seller: Subject to, and except as specifically set forth in
Section 11.1• above, neither Seller nor any of its- agents partners or employees has made and does
not make any representations or warranties, whether oral or written, expressed or implied, with
respect to: (i) any physical or environmental aspect or condition of the Property or any part
thereof (including,,, without limitation, the presence of any hazardous materials); _.(ii) any
dimension or'speci`ficatioris of the Property or any part,. thereof, -including, wAh0`U,lii4t6ion, the
square footage or- r6htable- area of the impr6veme%ts -6 the number' or sufficiency `6f parking
'sp "aces- off, "yar about' the ° Prop'erty, (iii) feasibility;` desirability, suitability, habitability or
convertibility of the Property and ariy part thereof"into or for any particular use or purpose; (iv)
the zoning, building or land use restrictions applicable to the Property o any+part thereof; (v)
soil, seismic or other geological conditions effecting the Property or any part thereof with any
applicable laws; r40168- or regulations; including, without limitation, use permits, building codes,
fire .'and -safety- codes< < and ;h "andicapped access codes and regulations (including; without
limitation, the Aiiiericans With Disabilities Act); (vi)Jthe truth, accuracy or completeness of any
of the materials or documents delivered td, Buyer except fo' "r`'docu menu prepared by Seller; (vii)
the availability or unavailability of governmental, quasi - governmental or other permits,
approvals; licenses,- or entitlements, if "an`y; in- any, wa` relating to the Property "or` any part
thereof; (viii)-= the;availabilitybr unavailability of-water, sewer, electric, telephone or other utility
services;. if aiiy, for the Property or any-Part thereof; `(ix) the operability; adequacy, state of repair
or- useful life of any fixture, equipment, machinery or- other apparatus of.the Property; (x)
restrictions on Hours of operation, parking, types of tenants and' uses, signage, architectural and
other limitations imposed by zoning, use permits and other restrictions effecting the Property;
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and (xi) any other matter of any nature whatsoever relating in any way to the Property or to any
of the documents delivered by Seller to Buyer. All representations, warranties and covenants of
Seller in this Agreement are made as of the date of this Agreement and as of the Closing and
shall survive the Closing and the recordation of the Grant Deed. It shall be a material default
hereunder if Seller is unable to make such representations and warranties truthfully as of the
Closing Date.
12. Representations and Warranties of Buyer. Buyer makes the following
representations, warranties and covenants to Seller:
12.1 Buyer is a California municipal corporation duly organized, validly existing
and in good standing under the laws of the State of California. Buyer has the right, power and
authority to enter into this Agreement and to perform its obligations hereunder, and the person(s)
executing this Agreement on behalf of Buyer have the right, power and authority to do so.
12.2 This Agreement constitutes the legal, valid and binding obligation of Buyer
enforceable against Buyer in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, moratorium and other
principles relating to or limiting the rights of contracting parties generally. This Agreement does
not violate any provision of any material agreement or document to which Buyer is a party or to
which Buyer is bound.
All representations and warranties of Buyer in this Agreement are made as of the date
of this Agreement and as of the Closing, and shall survive the Closing and the recordation of the
Grant Deed. It shall be a material default hereunder if Buyer is unable to make such
representations and warranties truthfully as of the Closing Date.
13. Notification by Seller of Certain Matters. During the period prior to the Closing
Date, Seller shall promptly advise Buyer in writing of any material adverse change in the
condition of the Property, any default by any Tenant under the terms of any of the Leases, the
occurrence of any event or the discovery of any fact which would render any representation or
warranty of Seller to Buyer in this Agreement, untrue or materially misleading, and any written
notice or other communication from any third person alleging that the consent of such third
person is or may be required in connection with the transactions contemplated by this
Agreement.
14. Seller's Covenant Not to Further Encumber the Property. Seller shall not, directly or
indirectly, alienate, encumber, transfer, option, lease, assign, sell, transfer or convey its interest
or any portion of such interest in the Property or any portion thereof, modify, supplement or
terminate any lease, or enter into any agreement to do so, so long as this Agreement is in force.
Seller shall timely discharge, prior to the Closing, any and all obligations relating to work
performed on or conducted at or materials delivered to Property from time to time by Seller, or at
Seller's direction or on its behalf, in order to prevent the filing of any claim or mechanic's lien
with respect to such work or materials. Without limiting the foregoing, from the opening of
Escrow until the Close of Escrow, Seller shall not execute any new leases or amend, renew,
terminate, or accept the surrender of any existing tenancy or approve any sublease or assignment
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of any lease (collectively, a "Lease Event ") without first obtaining Buyer's written consent to
Such Lease Event,
15. Damage or Destruction. If any material damage or destruction to any of the Real
Property occurs prior to Closing, Seller shall immediately give Buyer written notice of such
damage or destruction, and Buyer shall have the option, exercisable within ten -'(10) days
thereafter either to (i) terminate the Escrow, in which case Escrow Holder shall immediately
return all documents, instruments and. moneys to the Party which deposited - same in respect of
the Closing; or (ii) accept the Property in its condition at that time, and to receive an assignment
of all of Seller's rights to any insurance proceeds payable by reason of such damage or
destruction, with a commensurate reduction in the Purchase Price. If Buyer elects to proceed
under Clause (ii) above, Seller shall not compromise, settle or adjust any such insurance claims
without Buyer's prior written consent. For pp. dses" hereof, "material damage or destruction"
shall be deemed to be such damage or destruction -that is' reasonably estimated to cost more than
five percent (5 %) of the Purchase Price to repair or restore. If damage or destruction to the Real
Property occurs_ which is not material, Buyer shall accept the Property in its condition at that -,
time, and shall receive an assignment of all of Seller's rights to any insurance proceeds'payable
by reason of such damage or destruction, without anyreduction in the Purchase Price.
16. Condemnation. If prior to the Closing all or any portion of the Property is subject to
an actual or threatened taking by a superior public authority, by the power of eminent domain or
otherwise, Buyer shall have the right, exercisable by giving written notice to Seller within ten
(10) business days after Buyer's receipt of written notice of such taking, either to (i), terminate
Escrow, in which case Escrow Holder shall immediately 'return all documents, instruments and
moneys to the Party which deposited same in `respect 'of the Closing; or (ii) to accept the
applicable portion of the Property in its then condition and to receive an assignment of all of
Seller's rights to any condemnation award payable by reason of such taking. If Buyer elects to
proceed under Clause (ii) above, Seller shall not compromise, settle or adjust any claims to such
award without Buyer's prior written consent.'
17. Remedies. w..
17.1 If Seller defaults hereunder oi- f`the Closing does not occur by reason of
Seller's default hereunder; and; ff- such default is not` cured i0hin ten (10) business 'days after
Buyer provides Seller with written notice of such default, then Buyer, at its option, may elect
either (i) to maintain this Agreement in full force and effect and pursue any remedies to which
Buyer may be entitled under this i Agreementj atllaw= and /or in equity; -for (ii) to terminate this
Agreement, and .Buyer shall ha e the right to pursue an a6t16n-f6r damages.
17.2. If Buyer defaults hereunder or if the Closing does not occur by reason of
Buyer's .default hereunder; and if 'such default is not cured within ten (10) days after Seller
provides Buyer with written notice of such, default; then Buyer, at its 'option, inay elect to
terminate this Agreement and pursue an action for damages, - provided' 'that under no
circumstances shall Seller be entitled to a judgment for. specific .performance of this Agreement
and the maximum damages recoverable- against Buyer "shall be the- actual costs and expenses
incurred by Seller in negotiating this Agreement, up to a maximum of Five Thousand Dollars
-14-
($5,000). The foregoing represents the exclusive rights and remedies available to Seller at law or
in equity in the event of Buyer's default under or breach of this Agreement. Seller hereby waives
any and all rights it may now or hereafter have to recover any other damages on account of
Buyer's breach, including, without limitation, loss of bargain, special, punitive, compensatory or
consequential damages.
18. Miscellaneous,
18.1 Assignment. Seller shall not be entitled to assign this Agreement and its
rights and obligations hereunder without obtaining Buyer's prior written consent, which consent
will not be unreasonably withheld or delayed. Buyer shall be entitled to assign this Agreement
and its rights and obligations hereunder without obtaining Seller's prior written consent, provided
that Buyer shall not be released from its obligations hereunder by reason of such assignment or
delegation without Seller's written consent.
18.2 No Modifications. No addition to or modification of any term or provision of
this Agreement shall be effective unless set forth in writing and signed by both Seller and Buyer.
- 18.3 Construction of Agreement. Each Party and attorneys for each Party have
participated in the drafting and preparation of this Agreement. Therefore, the provisions of this
Agreement shall not be construed in favor of or against either Party, but shall be construed as if
both Parties equally prepared this Agreement.
18.4 Headings. The paragraph headings herein are used only for the purpose of
convenience only and shall not be deemed to limit the subject of the sections or paragraphs of
this Agreement or to be considered in their construction. Unless otherwise specifically referring
to another instrument or document, references to "Sections" and "Subsections" refer to the
Sections and Subsections of this Agreement.
18.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
18.6 Time of the Essence. Time is of the essence of each and every provision of
this Agreement. Unless business days are expressly provided for, all references to "days" herein
shall refer to consecutive calendar days. If the Closing Date or any other date or time period
provided for in this Agreement is or ends on a Saturday, Sunday or Federal, State or legal
holiday, then such date shall automatically be extended to the next day which is not a Saturday,
Sunday or Federal, State or legal holiday.
18.7 Successors and Assigns. Subject to the provisions of Section 18.1, all of the
provisions of this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Parties.
18.8 Further Assurances. Each of the Parties shall execute and deliver any and all
additional papers, documents and other assurances, and shall do any and all acts and things
reasonably necessary in connection with the performance of their obligations hereunder and to
916^2
carry out the intent of this Agreement. Without limiting the generality of the foregoing, Seller
shall cooperate with Buyer by executing such documents and providing to Buyer or the
appropriate regulatory agency such items as Buyer or the appropriate regulatory agency may
reasonably request,, and Seller shall cooperate under` any covenants, conditions and restrictions
affecting the Property so as to facilitate Buyer's development of the Property, provided such
cooperation entails no material additional cost or expense to Seller.
18.9 No Waiver. The waiver by one Party of the performance of any covenant,
condition or promise, or of the time for performing any act, under this Agreement shall not
invalidate this Agreement nor shall - it be considered a ' waiver by such Party of 'any other
covenant, condition or promise, or of the time for performing any other act required, under this
Agreement., The exercise of any `remedy pro vide&iii this Agreement shall -not be a waiver of any
remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude
any other remedies unless they are expressly excluded.
1.8.10 Severability. If any provision of this Agreement shall become illegal, null or
void or against public policy, for any reason,, or shall be held by any court of competent
jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this
Agreement shall not be affected thereby and shall remain in force and effect to the full extent
permissible by law.
18.11 Gender and Number. In this Agreement, the masculine, feminine and neuter
genders and the singular and the plural include one another, unless the context requires
otherwise.
1.8.12 Entire Agreement. This Agreement constitutes the entire agreement between
the Parties pertaining to. the subject matter hereof and shall supersede all prior and
contemporaneous agreements, representations, negotiations and understandings of the parties,
oral or written. The foregoing sentence shall in no way affect the validity of any instrument
executed by the Parties in the form of the exhibits attached to this Agreer'nent.
18.13 Incorporation of Exhibits. All exhibits to this Agreement are incorporated
herein bythis reference.
18.14 Counterparts. This Agreement. may- be executed in counterparts, each of
which shall constitute an original, but- all of which =together shall constitute one and the same
instrument. The signature page�of any counterpart m`aybe1det6?Ohed-therefrom without impairing
the legal effect of the signature(s) thereon provided such signature page is attached to any other
counterpart identical thereto except having additional signature pages executed by the other
Party.: Counterparts may be delivered- by facsimile provided -that `original: executed counterparts
are;delivered.to-the recipient on the next business day following th`e facsimile transmission.
18.15 Attorneys' Fees. If any action or proceeding is instituted to enforce or
interpret�any provision of this Agreement, the prevailing Party therein shall be entitled to recover
its attorneys' fees and costs from'the losing party.
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18.16 Notices. Any notice to be given hereunder to either Party or to Escrow Holder
shall be in writing and shall be given either by personal delivery (including express or courier
service), or by registered or certified mail, with return receipt requested, postage prepaid and
addressed as follows:
To Buyer: Community Development Director
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
To Seller: Barbara Christmann
Any Party may, by written notice to the others and to Escrow Holder,
designate a different address which shall be substituted for the one specified above. Any such
notice shall be deemed to have been delivered upon its receipt or upon the second attempt at
delivery, as evidenced by the regular records of the person or entity attempting delivery.
18.17 Relationship of Parties. The Parties agree that their relationship is that of
Seller and Buyer, respectively, and that nothing contained herein shall make either Party the
fiduciary of the other for any purpose whatsoever, nor shall this Agreement be deemed to create
any form of business organization between the Parties, including, without limitation, a joint
venture or partnership, nor is either Party granted any right or authority to assume or create any
obligation or responsibility on behalf of the other Party, nor shall either Party be in any way
liable for any debt of the other.
18.18 Survival. The agreements, representations, covenants and warranties of the
Parties contained herein shall survive the Closing and the delivery of the Grant Deed.
18.19 Real Estate Commissions. Seller represents and warrants that it has not
retained the services of a real estate brokerage in the listing and sale of the Real Property. Seller
shall be solely responsible for all fees and commissions if Seller has retained the services of a
brokerage. Buyer represents and warrants that it has not engaged or used any real estate broker,
agent or salesman in connection with the transaction contemplated by this Agreement. Buyer
and Seller each agree that it will indemnify and hold the other Party harmless from and against
any and all claims, losses, damages, costs or expenses (including attorneys' fees) of any kind or
character arising out of or resulting from any agreement or arrangement with any other broker or
finder in connection with this Agreement or the transactions contemplated by this Agreement.
The foregoing indemnity will survive the expiration or termination of this Agreement.
18.20 Arbitration of Disputes. Except as otherwise provided in this Agreement, any
controversy or dispute arising out of this Agreement or the interpretation of any of the provisions
hereof shall be submitted to arbitration in Santa Clara County, California, under the commercial
arbitration rules then obtaining of the American Arbitration Association. Any award or decision
obtained from any such arbitration proceeding shall be final and binding on the Parties, and
-17-
judgment upon any award thus obtained may be entered in any court having jurisdiction thereof.
No action at law or in equity based upon any claim arising out of or related to this Agreement
shall be instituted in any court by any party hereto except (a) an action to compel arbitration
pursuant to this section; or (b) an action to enforce an award obtained in an arbitration
proceeding in accordance with this section. All notices relating to any arbitration shall be given
as provided in this Agreement.
18.21 Conflict of Interest. No member, official or employee of Buyer shall have any
personal interest, direct or indirect, in this Agreement, nor shall any such member, official or
employee participate in any decision related to this Agreement which affects his /her personal
interest or the interest of any corporation, partnership or association in which he /she is directly or
indirectly interested. Seller warrants that Seller has not paid nor given and will not pay nor give
any third person any money or any other consideration for obtaining this Agreement.
IN WITNESS WHEREOF, this Agreement is executed by BUYER and by SELLER.
Recommended by:
Todd Capurso, Community Development
Director
"BUYER":
TOWN OF LOS GATOS,
a California municipal corporation
Greg Larson, Town Manager
"SELLER ":
APPROVED AS TO FORM: BARBARA CHRISTMANN
By:
Judith Propp, Town Attorney Barbara Christmanh
Exhibits: Exhibit A: 'Legal Description of the Property
Exhibit B: Excluded `Items
N`.\DEV \BMP\2012 Program Review \Resales \137 Bersano Ln \Property Purchase and Sale Agmt 137 Bersano FINAL,doc
i
ACCEPTANCE BY ESCROW HOLDER
Old Republic Title Company hereby acknowledges that it has received a fully executed
counterpart of the foregoing Agreement of Purchase and Sale of Real Property and Joint Escrow
Instructions ( "Agreement ") and agrees to act as Escrow Holder under the Agreement and to be
bound by and perform the terms thereof as such terms apply to Escrow Holder.
OLD REPUBLIC TITLE COMPANY
Dated: By:
Its:
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EXHIBIT A —
OF THE PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to is situated in the County of Santa Clara, Town of Los Gatos, State of
California, and is described as follows:
PARCEL ONE:
Lot 28, as shown on the Map of "Tract 9736" (the "Map ") which Map was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California on October 28, 2005, in
Book 793 of Maps, at Pages 12 thorough 16, inclusive, as reserved.
EXCEPTING THEREFROM the underground water rights without rights of surface entry as
conveyed to San Jose Water Company, a California corporation, by Deed recorded December 20,
2005, as Document No. 18735992, Official Records, Santa Clara County, California.
PARCEL TWO:
A non- exclusive easement, over a portion of Lot 27, for Private Side Yard (P.Y.E.) as shown on
the Map. The Private Side Yard Easement area is for use as defined in the Declaration.
PARCEL THREE:
A non - exclusive ingress and egress easement over the private streets as defined in the
Declaration and as shown on the Map.
Villa Felice /Bella Vista
APN: 424 -29 -054
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EXHIBIT B -
OF THE PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
EXCLUDED ITEMS
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