HomeMy WebLinkAboutDublin Crossing Scarlett Dr Remainder Parcel AGREEMENT REGARDING SCARLETT DRIVE REMAINDER PARCEL
This AGREEMENT ("Agreement") is made and entered into as of January 91, 2017
("Effective Date")by and between the CITY OF DUBLIN,a municipal corporation("City"),and
DUBLIN CROSSING LLC, a Delaware limited liability company("Developer").
RECITALS
A. On or around November 19, 2013, the City and Developer entered into a
Development Agreement, recorded as Document Number 2014134795 in the Official Records of
the County of Alameda (the "Development Agreement"). The Development Agreement was
amended by Amendment No. 1 to Development Agreement, recorded as Document Number
2015202606 in the Official Records of the County of Alameda(the "First Amendment") and by
Amendment No. 2 to Development Agreement, recorded as Document Number 2016056821 in
the Official Records of the County of Alameda(the"Second Amendment").
B. The Second Amendment added Section 9.9 to the Development Agreement. That
section provides that:
"9.9. Cooperation in Potential Expansion of Park Footprint. One of the
transportation improvements that Developer is required to complete, the Scarlett
Drive extension, requires the acquisition of a portion of a parcel owned by a third
party, Scarlett Homes LLC. The remainder, if acquired from Scarlett Homes LLC, .
could be incorporated into the Dublin Crossing Park, and the Parties desire that to
occur if feasible. Developer will use commercially reasonable efforts, as
determined by Developer in its sole discretion, to acquire the entire parcel owned
by Scarlett Homes LLC, and, if that effort is successful, it will dedicate it to the
City for park purposes. City shall accept such dedication upon Developer's
satisfaction of the requirements of Section 9.4. The City shall not be obligated
under Section 9.5 to improve the lands dedicated pursuant to this Section, and
Developer shall not be entitled to credit under the PFF as a result of the dedication."
C. In furtherance of its obligations under Section 9.9 of the Development Agreement,
Developer has negotiated with Scarlett Homes LLC the commercial terms for the purchase and
sale of the parcel owned by Scarlett Homes LLC. Developer desires that City purchase the land
directly from Scarlett Homes LLC using funds provided by Developer, subject to the terms and
conditions as stated herein.
D. City intends to enter into the Purchase Agreement and Escrow Instructions(Scarlett
Drive Remainder Parcel) in the form attached to this Agreement as Exhibit A in furtherance of the
obligations as stated in this Agreement(the "Purchase and Sale Agreement").
D. These Recitals are incorporated into this Agreement as though fully set forth herein.
AGREEMENT
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1. Property. The City agrees to acquire from Scarlett Homes LLC that certain real
property located in the City of Dublin, County of Alameda, State of California, as more
particularly described on Exhibit A to the Purchase and Sale Agreement(the "Property"). The
City agrees to acquire the Property solely to accommodate Developer's preferred method of
satisfying its obligations under Section 9.9 of the Development Agreement.
2. Payment. Developer agrees to pay any and all costs whatsoever that the City is
now obligated or will be obligated to pay under the Purchase and Sale, included but not limited
to,the Purchase Price and Buyer's Closing Costs as defined in that agreement.
3. Deposits.
3.1 Initial Deposit. Developer agrees to deposit the Initial Deposit with the
Escrow Agent in the amount and at the time, date, and location (and manner of
transmission) as stated in Section 1.1.1(a) and(b) of the Purchase and Sale Agreement.
3.2 Second Deposit. Developer agrees to deposit the Second Deposit with the
Escrow Agent in the amount stated and at the time, date, and location (and manner of
transmission) as stated in Section 1.1.1(c) of the Purchase and Sale Agreement.
Developer shall only be obligated to deposit the Second Deposit as required herein if City
delivers the Feasibility Approval Notice as described in Section 1.1.1(c) of the Purchase
and Sale Agreement.
3.3 Purchase Price Balance. Developer agrees to deposit the Purchase Price
Balance with the Escrow Agent in the amount stated and at the time, date, and location
(and manner of transmission) as stated in Section 1.1.3 of the Purchase and Sale
Agreement upon demand by City.
3.4 Closing Costs. Developer agrees to deposit,upon demand by City, or, as
required under the Purchase and Sale Agreement, all other costs, fees, and expenses that
City is obligated to deposit with the Escrow Agent under the terms of the Purchase and
Sale Agreement.
3.5 Material Inducement. Developer recognizes that Developer's promises
to pay fully for the acquisition of the Property is a material inducement to the City's
decision to enter into this Agreement, and that any failure by Developer to timely make
any of the payments stated in this Agreement will expose the City to costs, liability, and
damages and constitute a default of the City's obligations under the Purchase and Sale
Agreement. Developer agrees there are no conditions attached to its obligation to make
the payments stated herein, except as expressly stated in this Agreement. In the event
Developer takes any action(or fails to take any required action) under this Agreement
that causes the City to be in breach of the Purchase and Sale Agreement(a"Developer
Breach"), Developer shall defend, indemnify, and hold harmless City from and against
any and all claims, costs, expenses, liabilities, damages, arising out of or related to a
Developer Breach, including but not limited to the City's legal costs and attorneys' fees.
3.6 Return of Deposits. In the event that the Purchase and Sale Agreement
does not close escrow, and the City is entitled to a refund of any portion of the Initial
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Deposit,the Second Deposit, the Purchase Price Balance, or the Closing Costs, City
agrees to remit such refunds to Developer plus any interest earned upon the funds.
4. Title Report. City shall provide Developer with a copy of the Title Report as
defined in Section 4.2.1 of the Purchase and Sale Agreement. Developer shall have the right to
provide the City with written objections only to those items in the Title Report that will prevent
Developer from fulfilling its obligations under the Development Agreement. Any written
objection by Developer must be provided in writing to the City no later than twenty (20) days
prior to the expiration of the Feasibility Period as defined in Section 4.1 of the Purchase and Sale
Agreement.
5. Right-of-Way Map for Property. Developer agrees to prepare and pay for all
costs required to prepare and submit to the City any right-of-way maps for the Property.
6. Notices. All notices, demands or other communications given hereunder shall be
in writing and shall be deemed to have been duly delivered (i) upon the delivery (or refusal to
accept delivery)by messenger or overnight express delivery service (or, if such date is not on a
business day, on the business day next following such date), or(ii) on the third(3rd) business
day next following the date of its mailing by certified mail, postage prepaid, at a post office
maintained by the United States Postal Service, or (iii)upon the receipt by facsimile transmission
as evidenced by a or(iv) upon the receipt of an electronic email transmission, followed by
delivery by one of the other means identified in (i)-(iii), addressed as follows:
If to City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: Chris Foss, City Manager
Telephone: (925) 833-6650
If to Developer: Dublin Crossing, LLC
c/o Brookfield Bay Area Holdings LLC
500 La Gonda Way, Suite 100
Danville, CA 94526
Attention: John Ryan, President
Telephone: (925) 743-8000
Fax: (925) 743-8050
Email:john.ryangbrookfieldhomes.com
with a copy to:
Email:joe. ug erragbrookfieldrp.com
with a copy to:
DLA Piper LLP (US)
2000 University Avenue
East Palo Alto, California 94303-2215
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Attention: Patrick J. McGaraghan, Esq.
Telephone: (650) 833-2030
Fax: (650) 687-1184
Email: pat.mcg_araghangdlapiper.com
If to Escrow Agent: First American Title Company
4750 Willow Road, Suite 100
Pleasanton, CA 94588
Attention: Diane Burton
Telephone: (925) 201-6603
Fax: (866)648-7806
Email: DBurton@firstam.com
Either party may, by notice given as aforesaid, change the address or addresses, or designate an
additional address or additional addresses, for its notices, provided, however, that no notice of a
change of address shall be effective until actual receipt of such notice.
7. General Provisions.
7.1 Captions. Captions in this Agreement are inserted for convenience of
reference only and do not define,describe or limit the scope or the intent of this Agreement
or any of the terms hereof.
7.2 Exhibits. All exhibits referred to herein and attached hereto are a part
hereof.
7.3 Entire Agreement. This Agreement contains the entire agreement between
the parties relating to the transaction contemplated hereby and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are merged
herein.
7.4 Modification. No modification, waiver, amendment, discharge or change
of this Agreement shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment, discharge or
change is or may be sought.
7.5 Attorneys' Fees. Should any party hereto employ an attorney for the
purpose of enforcing or construing this Agreement, or any judgment based on this
Agreement, in any legal proceeding whatsoever, including insolvency, bankruptcy,
arbitration, declaratory relief or other litigation, the prevailing party shall be entitled to
receive from the other party or parties thereto reimbursement for all reasonable attorneys'
fees and all costs, whether incurred at the trial or appellate level, including but not limited
to service of process, filing fees, court and court reporter costs, investigative costs, expert
witness fees and the cost of any bonds, whether taxable or not, and such reimbursement
shall be included in any judgment, decree or final order issued in that proceeding. The
"prevailing party" means the party in whose favor a judgment, decree, or final order is
rendered.
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7.6 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
7.7 Time of Essence. Time is of the essence to this Agreement and to all dates
and time periods set forth herein.
7.8 Survival of Warranties, Covenants, Obligations and Indemnities. All
covenants and obligations set forth in this Agreement shall survive the Closing of the
Purchase and Sale Agreement and all indemnities provided in this Agreement in favor of
either Developer or City shall survive the Closing of the Purchase and Sale Agreement or
termination of this Agreement.
7.9 Assignment by Buyer. Developer may not assign its rights under this Agreement
except to an entity owned by or under common control of or otherwise affiliated with and
controlled by Developer or any party which controls Developer directly or indirectly.
7.10 Severability. If any term, covenant, condition, provision or agreement herein
contained is held to be invalid, void or otherwise unenforceable by any court of competent
jurisdiction, the fact that such term, covenant, condition, provision or agreement is invalid, void
or otherwise unenforceable shall in no way affect the validity or enforceability of any other term,
covenant, condition,provision or agreement herein contained.
7.11 Successors and Assigns. All terms of this Agreement shall be binding upon, inure
to the benefit of and be enforceable by,the parties hereto and their respective legal representatives,
successors and assigns.
7.12 Interpretation. City and Developer acknowledge each to the other that both they
and their counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any amendments or exhibits hereto.
7.13 Counterparts. This Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed an original; such counterparts shall together constitute
but one agreement.
7.14 Recordation. This Agreement may not be recorded and any attempt to do so shall
be of no effect whatsoever.
7.15 Business Day. As used in this Agreement, "business day" shall be deemed to be
any day other than a day on which banks in the state of California or the state in which the Property
is located shall be permitted or required to close.
IN WITNESS WHEREOF,this Agreement has been executed as of the date first set forth
above.
CITY OF DUBLIN, a municipal corporation
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DUBLIN CROSSING, LLC,
a Delaware limited liability company
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EXHIBIT A
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
(SCARLETT DRIVE REMAINDER PARCEL)
(See attached.)
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339027-000055 Exhibit A