HomeMy WebLinkAboutItem 4.07 Purch&Sale Agmt 5777 Scarlett~~~~ \
~- ~ -ih
\~/''
CITY CLERK
File # ^~~~-~ Q~
?~ ~' ~: > .
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: December 16, 2008
SUBJECT: Approval of Purchase and Sale Agreement for Real Property at 5777
Scarlett Court Capital Improvement Program (CIP) Project No.
93570 (Maintenance Yard Facility/Emergency Operations Center -
Maintenance Facility Phase 1)
Report Prepared by Chris Foss, Assistant City Manager and John
Bakker, City Attorney
ATTACHMENTS: 1) Resolution approving Purchase and Sale Agreement for 5777
Scarlett Court (together with Exhibit A, Agreement)
2) Budget Change Form
RECOMMENDATION: 1) Adopt the resolution approving the Purchase and Sale
Agreement with the 84 Lumber Company for a property located
t
at 5777 Scarlett Court and authorize and direct the City
~' Manager to execute the agreement
,~,.~
~' ~ 2) Approve budget change form in the amount of $3,925,000.
FINANCIAL STATEMENT: The total cost of acquiring the property including an allowance for
closing costs and special studies is $3,925,000 (purchase price is
$3,875,000, plus additional costs estimated not to exceed $50,000
for closing costs and special studies). An additional appropriation is
required from General fund reserves. This transaction will fully
deplete the specific $1.5 million Reserve Designated for this project.
DESCRIPTION: The real property at 5777 Scarlett Court ("the 84 Lumber Property") was until very
recently the site of the 84 Lumber retail operation. The operation was discontinued and the property listed
for sale in October of 2008. Staff determined that the property including the existing structures would
satisfy the City's needs for a Maintenance Yard Facility.
The Maintenance Yard Facility along with an Emergency Operations Center is identified as a future
project in the Five Year Capital Improvement Plan (CIP) (2008 -2013) adopted by the City Council in
June 2008. Although this larger project is identified in the CIP no funds were appropriated for Fiscal Year
2008/2009.
The original project contemplated in the CIP had an estimated total cost of $16,500,000, including
$6,000,000 for land and right of way and $10,000,000 for improvements. Staff is proposing to proceed
---------------------------------------------------------------------------------------------------
COPY TO:
Page 1 of
ITEM NO. ~~ 7
~/
with an initial phase under Project 93570, which will acquire a facility suitable to establish a Maintenance
Yard on the property. The current project only reflects Phase 1 acquisition of the Maintenance Facility
site and building. It is anticipated that provided the sale is completed Staff will present a separate Project
(Phase 2) which will address the cost of Design and site and building improvements necessary to make the
facility functional for City use. Preliminary projections of these costs are an additional $1,075,000. This
would result in a total cost of $5,000,000 for the purchase and construction of the Maintenance Yard
Facility.
It should be noted that this location will not be suitable for an Emergency Operations Center. Staff is
exploring alternative locations and potential for amulti-agency Emergency Operations Center at another
location.
The 84 Lumber Property is approximately 2.61 acres and contains an approximately 18,020 square foot
metal warehouse and two other structures totaling approximately 13,200 square feet. Based on a dated
appraisal, City Staff made a contingent offer on the property. City Staff and 84 Lumber Company entered
into negotiations, which have resulted in a purchase price of $3,875,000 contingent upon the City's receipt
of an appraisal confirming the purchase price. The proposed Purchase and Sale Agreement (see Exhibit A
of Attachment 1, which is titled "Real Estate Sale Agreement and Joint Escrow Instructions") calls for,
among other things, the City to take the property "as is." However, the City also has a 45-day due-
diligence period in which to complete the appraisal and an environmental review of the property to
determine the existence of contamination. The Purchase and Sale Agreement provides for the close of
escrow 60 days following the execution of the agreement. Finally, the agreement would require a deed
restriction prohibiting the property from being used for a lumber yard, building supply, or truss
manufacturing business.
As part of the acceptance of the June 30, 2007 Comprehensive Annual Financial Report, the City Council
designated $1.5 million in General Fund Reserves for the Maintenance Facility /Emergency Operations
Center. These funds can be utilized towards the proposed acquisition. An additional appropriation of
$2,425,000 from General Fund Reserves designated for future projects would be required to fund this
acquisition.
As previously noted Staff would propose to return at a future meeting with a specific Budget and proposed
funding source for a project which will allow the City to rehabilitate the existing building and grounds for
use as a maintenance facility.
RECOMMENDATION: Staff recommends that the City Council: 1) Adopt the resolution approving the
Purchase and Sale Agreement with the 84 Lumber Company for a property located at 5777 Scarlett Court
and authorize the City Manager to execute the agreement; and 2) Approve a budget change in the amount
of $3,925,000.
1177262.1
Page 2 of tip"
l ~ ~~~
RESOLUTION NO. -08
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A PURCHASE AND SALE AGREEMENT WITH 84 LUMBER COMPANY FOR A
PROPERTY LOCATED AT 5777 SCARLETT COURT
WHEREAS, in the 2008-2013 Capital Improvement Program (CII') the City identified the need
for a Maintenance Yard Facility/Emergency Operations Center; and
WHEREAS, the industrial real property commonly known as 5777 Scarlett Court was recently
listed for sale due to a business closure and is suitable for the purpose of the City's Maintenance Yard
Facility; and
WHEREAS, City staff and the property owner have reached proposed terms on the City's
acquisition of the property at 5777 Scarlett Court, and the City Council hereby finds that-the acquisition is
necessary and appropriate for the completion of the Maintenance Yard Facility component of the CIP.
WHEREAS, the acquisition of the property is exempt from CEQA under the Class 1, Existing
Facilities and Class 32, Infill Development categorical exemptions. The property is currently developed
with paved storage and parking areas, a metal storage building and two other structures that will
accommodate the City's Maintenance Yard Facility. The operation of the facility will involve outdoor
storage, vehicle storage, maintenance and related administrative office use and will involve negligible or
no expansion of the recent lumber yard use. The maintenance yard would be consistent with the
applicable general plan and zoning, is in a developed area, is fully served by public utilities and services,
and is a developed site with no habitat value. The area is developed with service commercial and light
industrial uses with no residential uses nearby; the acquisition and maintenance yard use would have no
potential for traffic, noise, air quality or water quality impacts.
NOW, THEREFORE, BE IT RESOLVED that the City Council of Dublin approves the
Purchase and Sale Agreement (attached as Exhibit A and titled "Real Estate Sale Agreement and Joint
Escrow Instructions") between the City of Dublin and 84 Lumber Company.
BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute the
agreement and is authorized to execute any other documents necessary and appropriate to complete the
acquisition of the property pursuant to the terms of the agreement.
PASSED, APPROVED AND ADOPTED this 16t" day of December, 2008.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
lz -r~-a~' 7
ATTACHMENT 1
1177262.1
Z o~ Z~
REAL ESTATE SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS REAL ESTATE SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Agreement") is made and entered into this day of December,
2008, by 84 Lumber Company, a Pennsylvania Corporation, dba Pierce Hardy Real Estate, Inc.
and Pierce Hardy Real Estate, Inc. having merged into Pierce Hardy Real Estate Co., a
Pennsylvania Business Trust on June 29, 1992 and Pierce Hardy Real Estate Co. having merged
into Pierce Hardy Real Estate Co., a Pennsylvania Corporation on February 9, 1995 and Pierce
Hardy Real Estate Co. changed its name to the Magerko Corporation, a Pennsylvania
Corporation on March 8, 1995 and the Magerko Corporation, a Pennsylvania Corporation having
merged into Hardy Management Company, Inc. a Pennsylvania Corporation on December 31,
1998 and having merged into Hardy Management Company, a Nevada Corporation on January 1,
2003 the said Hardy Management Company, Inc. a Nevada corporation now conveying title
individually and as nominee for Pierce Hardy Limited Partnership, a Pennsylvania limited
partnership, said Pierce Hardy Limited Partnership having a beneficial interest in the subject
property pursuant to Nominee Agreement dated January 1, 1995 (herein "Seller") and the City of
Dublin, a municipal corporation (herein "Purchaser").
1. REAL ESTATE. Seller agrees to sell and Purchaser agrees to purchase,
all upon the terms and subject to the conditions contained in this Agreement, that certain real
property in the City of Dublin, County of Alameda, State of California as more particularly
described in Exhibit A to this Agreement (the "Real Estate") and all improvements thereon
(together, the "Subject Property"). Specifically included as part of the Subject Property are all
plumbing, heating, cooling and electrical fixtures and systems, all trees, shrubbery and plantings
and fencing.
2. PURCHASE PRICE. Purchaser agrees to purchase the Subject Property
at a price of Three Million Eight Hundred Seventy-Five Thousand Dollars ($3,875,000.00) (the
"Purchase Price"), payable as follows:
2.1 Earnest money in the amount of One Hundred Thirty-Five Thousand
Dollars ($135,000.00) paid in accordance with the provisions of Paragraph 4 of this Agreement;
and
2.2 The balance of the Purchase Price paid in accordance with Paragraph
4 of this Agreement, subject to adjustments and pro-rations as provided for herein.
3. DEED OF CONVEYANCE; STATUS OF TITLE. At closing of the
purchase and sale of the Subject Property pursuant to this Agreement (the "Closing"), Seller shall
convey title to the Real Estate to the Purchaser by a Grant Deed (the "Deed"), subject only to the
Permitted Exceptions (as such term is defined below).
Exhibit A
~:~~
4. ESCROW; EARNEST MONEY; PAYMENT OF BALANCE OF
PURCHASE PRICE.. Contemporaneously with the execution of this Agreement by Purchaser,
Purchaser will deposit directly with the office of LandAmerica c/o Kristen L. Hoovler
LandAmerica Financial Group, Inc. 411.1 Executive Parkway, Suite 304, Westerville, OH
43081-3682, in the form of a wire transfer of funds or a bank cashier's check ("Cash Equivalent")
the sum of One Hundred Thirty-Five Thousand Dollars ($135,000.00) (the "Escrow Deposit").
The Escrow Deposit will beheld by LandAmerica in anon-interest bearing trust or escrow
account and disbursed by LandAmerica strictly in accordance with the provisions hereof. On the
"Closing Date" (as that term is defined in Paragraph 5, below), but in no event later than required
to permit the timely closing of the Agreement by the Closing Date, Purchaser will cause the
balance of the Purchase Price, plus all costs and prorations for which Purchaser is responsible
hereunder, but less all proper credits due Purchaser from Seller hereunder, to be paid, in the form
of Cash Equivalent, to LandAmerica for the benefit of Seller. Escrow Agent shall disburse the
Escrow Deposit and any other sums received from Purchaser on account as follows:
(i) To Seller, if and when the Closing occurs; or
(ii) To either Seller or Purchaser (as the case maybe) after receiving
written notice from one of said parties stating that the other party to this Agreement is in default,
and requesting remittance of the Escrow Deposit; provided, however, that Escrow Agent shall
not remit the Escrow Deposit until it has first delivered a copy of said notice to the other party
and five (5) days have elapsed without the other party objecting to said disbursement. In the
event of any objection to said disbursement by the said other party, Escrow Agent shall either
continue to hold said Escrow Deposit in escrow until it receives written disbursement directions
agreed to by both parties, or until a final court order with all appeals and appeals periods having
expired; or it may, at any time, deposit the Escrow Deposit with a court of competent jurisdiction
selected by it, and in such event, Escrow Agent shall be fully released and discharged from all
obligations hereunder.
By its joinder in this Agreement, Escrow Agent agrees to act as escrow agent for
Seller and Purchaser in accordance with the provisions of this Paragraph 4. The duties of Escrow
Agent hereunder are only as specifically provided and are purely ministerial in nature. Escrow
Agent shall incur no liability to the parties except for the good faith performance of its duties as
described herein. Purchaser shall be responsible for the payment of all fees of Escrow Agent.
5. CLOSING DATE. The Closing shall take place on or before Sixty (60)
days from full execution of this Agreement of Sale (the "Closing Date"), at a mutually agreeable
location in Alameda County, or at such other date, time or place upon which the parties mutually
agree or by mail.
6. SELLER'S TITLE INSURANCE POLICY. Attached to this Agreement as
Exhibit B is a copy of the title insurance commitment covering the Real Estate ("Seller's Title
Policy").
1173846-7 2
~~Zq
7. PERMITTED EXCEPTIONS. At Closing, the Subject Property shall be
conveyed to Purchaser free and clear of all liens and encumbrances except as follows: (i) the lien
of any real estate taxes which are not yet due and payable, (ii) the matters listed in Paragraphs B
1 through 4 of Schedule B -Section II on Seller's Title Insurance Policy; (The matters set forth
in clauses (i) through (ii) are hereinafter referred to as the "Permitted Exceptions.")
Purchaser will, at Purchaser's sole cost and expense, obtain a preliminary title
report for the Subject Property from LandAmerica/Lawyer's Title (the "Preliminary Title
Report"). If the Preliminary Title Report discloses any matter which needs to be released or
removed in order for title to the Subject Property to be conveyed to Purchaser in accordance with
the provisions of this Paragraph 7 (other than release or satisfaction of any mortgage or security
interest granted by Seller with respect to the Subject Property, which Seller hereby agrees to
release or satisfy at Closing), at least thirty (30) days following the date of this Agreement, time
being of the essence, Purchaser will notify Seller in writing of such matter (a "Title Objection").
The failure of Purchaser to give notice to Seller within thirty (30) days following the date of this
Agreement of any matter to which Purchaser has objection shall constitute an irrevocable waiver
of Purchaser's right to raise such matter as a Title Objection. Upon receipt of a timely notice of a
Title Objection, Seller will undertake such steps as Seller, acting in good faith, deems reasonable
under the circumstance either (a) to cause such Title Objection to be released or satisfied or (b) to
induce the title insurance company which issued the Preliminary Title Report to issue a title
insurance policy to Purchaser without the Title Objection, it being understood that Seller shall
have no obligation whatsoever to expend any sum or undertake any actual or potential liability in
excess of $500 in connection therewith. If at Closing, any Title Objection has not been released
or removed despite Seller's good faith efforts as aforesaid, then Purchaser shall have the option to
either (x) terminate this Agreement forthwith (in which event the Escrow Deposit and all other
sums paid on account shall be repaid to Purchaser), or (y) accept title to the Subject Property
subject to the Title Objection without any change in the Purchase Price.
8. PRORATE EXPENSES.. General and special real estate for 2009,
municipal service charges, personal property taxes and assessments, and utility and service
charges (including any that maybe assessed after Close of Escrow but which pertain to the period
prior to the transfer of title to the Subject Property to Purchaser, regardless of when or to whom
notice thereof is delivered) shall be prorated between Purchaser and Seller as of the Closing Date
based on a fiscal year,. and all based upon the most current available bills. Except as otherwise
provided in Paragraph 21.18, such proration shall be final. Purchaser shall be solely responsible
for any and all charges for municipal improvements assessed or becoming due from and after the
date of Closing including future installments thereof. All prorations shall be made on the basis of
the actual days in a month and a three hundred sixty-five (365) day year.
9. TAXES ON TRANSACTION. Purchaser shall be fully responsible for
any transfer taxes (including, without limitation, real estate transfer taxes) and real estate
recording taxes and fees due in respect of the sale of the Real Estate pursuant to this Agreement.
1173846-7 3
~a
10. TITLE INSURANCE COSTS AND SURVEY. Purchaser shall pay the
cost of all title examinations done and title insurance obtained on the Subject Property, as well as
the cost of a survey.
11. SELLER'S CLOSING DELIVERIES. Seller shall deliver the following
documents at Closing:
11.1 Grant Deed conveying the Real Estate; and
11.2 Such other instruments of conveyance and transfer as shall be
reasonably necessary to transfer to Purchaser all of Seller's right, title and interest to the Subject
Property.
12. PURCHASER'S DELIVERIES. The following shall be delivered by
Purchaser at Closing:
12.1 The payment as set forth in Paragraph 4; and
12.2 The Declaration of Restrictive Covenants as set forth in Paragraph
21.20.
13. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants to Purchaser as follows.
13.1 AUTHORITY. Seller has the right, power and authority to enter
into this Agreement and to sell, assign, transfer and convey to Purchaser the Subject Property and
perform its obligations under the terms of this Agreement. All action necessary for the
execution, delivery and performance of this Agreement by Seller has been taken and this
Agreement is legally binding upon Seller. The individuals executing this Agreement and the
instruments referenced herein on behalf of Seller have the power, right and authority to bind
Seller.
13.2 NO CONFLICT. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will result in a breach of or constitute a
default under any agreement, instrument, or other obligation to which Seller is a party or by
which Seller or the Subject Property maybe bound.
13.3 ORGANIZATION. Seller is a Nevada Corporation duly
organized, validly existing and in good standing under the laws of the State of Nevada and a
limited partnership duly organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania.
13.4 NO LITIGATION. There is no claim, action, litigation,
arbitration or other proceeding pending or, to the best of Seller's knowledge, threatened against
Seller which relates to the Subject Property or the transactions contemplated hereby or which
could result in the imposition of a lien against the Subject Property or have an adverse effect on
1 1 73 846-7
~~
the Subject Property or its operation. If Seller receives notice of any such claim, litigation,
arbitration or proceeding prior to the Closing Date, Seller shall promptly notify Purchaser of the
same in writing.
13.5 CONTRACTS. There are no leases, rental agreements,
management agreements, contracts, warranties, guaranties, bonds or other agreements which will
affect the Subject Property or which will be obligations of Purchaser after the Closing Date, other
than as disclosed in writing to Purchaser or as specifically approved by Purchaser.
13.6 BROKERAGE OR FINDER'S FEES. Neither Seller nor any of
Seller's officers, agents, employees or stockholders has employed any brokers, finders or other
intermediaries, or incurred any liability for any brokerage fees, finder's fees, commissions or
other amounts, with respect to the transaction contemplated by this Agreement, which liabilities
can be asserted against Purchaser or the Subject Property, or require payment by Purchaser,
except the following: Seller shall pay a three (3%) percent commission to Colliers International
should this transaction proceed to Closing. Purchaser shall have no liability for payment of sales
commissions in connection with this transaction.
13.7 CONDITION OF PROPERTY. At the time of Closing, the
improvements on the Subject Property will be in the same condition as they are on the date of
this Agreement, ordinary wear and tear excepted.
13.8 DISCLAIMER. SELLER IS MAKING NO OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE
WHATSOEVER WITH RESPECT TO THE SUBJECT PROPERTY, (INCLUDING, BUT IN
NO WAY LIMITED TO, ANY WARRANTY AS TO THE CONDITION, HABITABILITY,
OR FITNESS OF THE SUBJECT PROPERTY FOR A PARTICULAR PURPOSE).
13.9 SELLER'S COVENANTS. Seller covenants that (i) absent the
written consent of Purchaser, Seller shall not enter into or renew, replace or modify any
agreement regarding the sale, rental, use, management, repair, improvement, or any other matter
affecting the Subject Property that will be binding on Purchaser or the Subject Property after the
Closing Date; (ii) Seller shall not permit any liens, encumbrances, or easements to be placed on
the Subject Property, other than as approved in writing by Purchaser; (iii) Seller shall not permit
any act of waste or act that would tend to diminish the value of the Subject Property for any
reason, except that caused by ordinary wear and tear; (iv) until the Close of Escrow, Seller shall
maintain the Subject Property in accordance with Seller's established practices, and in a
condition as of the Effective Date, ordinary wear and tear excepted, and shall, at Seller's
expense, make all repairs necessary to maintain the Subject Property in such condition; and (v)
Seller shall make no material alteration to the Subject Property or the improvements located
thereon without Purchaser's prior written consent.
14. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to Seller as follows:
1173846-7
~ a
' `~"
14.1 ORGANIZATION. Purchaser is a municipal corporation, duly
organized, validly existing and in good standing under the laws of the State of California.
14.2 AUTHORITY. Purchaser has the right, power and authority to enter
into this Agreement and to purchase from Seller the Subject Property and perform its obligations
under the terms of this Agreement. All action necessary for the execution, delivery and
performance of this Agreement by Purchaser has been taken and this Agreement is legally
binding upon Purchaser.
14.3 BROKERAGE OR FINDER'S FEES. Neither Purchaser nor any of
Purchaser's officers, agents, employees or stockholders has employed any brokers, finders or
other intermediaries, or incurred any liability for any brokerage fees, finder's fees, commissions
or other amounts, with respect to the transaction contemplated by this Agreement, which
liabilities can be asserted against Seller or the Subject Property, or require payment by Seller,
except as set forth below:
See Paragraph 13.6.
15. DISCLAIMER BY PURCHASER OF WARRANTIES OF SELLER.
PURCHASER ACKNOWLEDGES THAT (I) IT AND ITS OFFICERS, AGENTS,
EMPLOYEES, AND ADVISERS HAVE BEEN GIVEN FULL AND COMPLETE
OPPORTUNITY TO EXAMINE THE SUBJECT PROPERTY AND RECORDS AND OTHER
INFORMATION WITH RESPECT TO THE SUBJECT PROPERTY PRIOR TO ENTERING
INTO THIS AGREEMENT AND / OR DURING THE DUE DILIGENCE PERIOD OF THIS
AGREEMENT AND SUCH PARTIES HAVE FULLY AVAILED THEMSELVES OF SUCH
OPPORTUNITY TO THE EXTENT THAT THEY 1N THEIR SOLE JUDGMENT DEEMED
APPROPRIATE, DESIRABLE AND PRUDENT, (II) PURCHASER AND SUCH PARTIES
TAKE FULL RESPONSIBILITY FOR DETERMINING THE SCOPE OF THEIR
INVESTIGATIONS OF THE SUBJECT PROPERTY AND FOR THE MANNER IN WHICH
SUCH INVESTIGATIONS HAVE BEEN CONDUCTED, (III) PURCHASER, TOGETHER
WITH SUCH OTHER PARTIES, ARE FULLY CAPABLE OF EVALUATING THE
ACCURACY OF THE INFORMATION AND MATERIAL OBTAINED BY PURCHASER IN
THE COURSE OF SUCH INVESTIGATION, AND (IV) PURCHASER AND SUCH PARTIES
HAVE NOT RELIED ON SELLER OR ON ANY OFFICER, EMPLOYEE OR AGENT OF
SELLER OR UPON ANY WRITTEN OR ORAL INFORMATION, REPRESENTATION OR
FACT PROVIDED BY ANY SUCH PARTY WITH RESPECT TO ANY MATTER IN
CONNECTION WITH PURCHASER'S EVALUATION OF THE SUBJECT PROPERTY,
INCLUDING, BUT NOT LIMITED TO THE PHYSICAL CONDITION THEREOF. .
ACCORDINGLY, PURCHASER AGREES TO PURCHASE THE SUBJECT PROPERTY "AS
IS" AND "WHERE IS," WITHOUT ANY WARRANTY WHATSOEVER EXPRESS OR
IMPLIED FROM SELLER TO PURCHASER.
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, AND
EXPRESSLY DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
1 1 73 846-7 (,
~~ z~
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS
OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (I) VALUE OF THE SUBJECT PROPERTY;
(II) THE INCOME TO BE DERNED FROM THE SUBJECT PROPERTY; (III) THE
NATURE, QUALITY OR CONDITION OF THE SUBJECT PROPERTY, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (IV) THE COMPLIANCE
OF OR BY THE SUBJECT PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY; (V) COMPLIANCE WITH ANY ENVIRONMENTAL
PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATION, ORDERS OR
REQUIREMENTS, INCLUDING BUT NOT LIMITED TO, TITLE III OF THE AMERICANS
WITH DISABILITIES ACT OF 1990, CALIFORNIA HEALTH & SAFETY CODE, THE
FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL RESOURCE
CONSERVATION AND RECOVERY ACT, THE U.S. ENVIRONMENTAL PROTECTION
AGENCY REGULATIONS AT 40 C.F.R., PART 261, THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS
AMENDED, THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976, THE
CLEAN WATER ACT, THE SAFE DRINKING WATER ACT, THE HAZARDOUS
MATERIALS TRANSPORTATION ACT, THE TOXIC SUBSTANCE CONTROL ACT, AND
REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING; (VI) THE
PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR
ADJACENT TO THE SUBJECT PROPERTY; (VII) THE CONTENT, COMPLETENESS OR
ACCURACY OF REPORT REGARDING TITLE; (VIII) DEFICIENCY OF ANY
UNDERSHORING; (IX) DEFICIENCY OF ANY DRAINAGE; (X) THE FACT THAT ALL
OR A PORTION OF THE SUBJECT PROPERTY MAY BE LOCATED ON OR NEAR AN
EARTHQUAKE FAULT LINE OR A FLOOD ZONE; OR (XI) WITH RESPECT TO ANY
OTHER MATTER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT IT
HAS OR WILL HAVE BEEN GIVEN THE OPPORTUNITY TO INSPECT THE SUBJECT
PROPERTY AND REVIEW INFORMATION AND DOCUMENTATION AFFECTING THE
SUBJECT PROPERTY AND, PURCHASER IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND REVIEW OF SUCH INFORMATION AND
DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY SELLER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT ANY INFORMATION MADE AVAILABLE TO PURCHASER OR PROVIDED OR
TO BE PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER
HAS MADE NO INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR
COMPLETENESS OF SUCH INFORMATION. PURCHASER AGREES TO FULLY AND
IRREVOCABLY RELEASE ALL SUCH SOURCES OF INFORMATION AND PREPARERS
OF INFORMATION AND DOCUMENTATION AFFECTING THE PROPERTY WHICH
WERE RETAINED BY SELLER FROM ANY AND ALL CLAIMS THAT THEY MAY NOW
HAVE OR HEREAFTER ACQUIRE AGAINST SUCH SOURCES AND PREPARERS OF
INFORMATION FOR ANY COSTS, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND,
1173846-7 7
~'~ a9
ACTION OR CAUSE OF ACTION ARISING FROM SUCH INFORMATION OR
DOCUMENTATION; PROVIDED, HOWEVER, THAT SUCH RELEASE SHALL NOT
APPLY TO ANY CLAIMS THAT PURCHASER MAY HAVE BASED ON INFORMATION
OR DOCUMENTATION PREPARED FOR PURCHASER BY SUCH SOURCES OR
PREPARERS PURSUANT TO A DIRECT AGREEMENT BETWEEN PURCHASER AND
SUCH SOURCE OR PREPARER. SELLER IS NOT LIABLE OR BOUND IN ANY
MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF,
FURNISHED BY ANY EMPLOYEE OF SELLER, SERVANT OR OTHER PERSON.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM
EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR
HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS, AND
THAT SELLER HAS NO OBLIGATIONS TO MAKE REPAIRS, REPLACEMENTS OR
IMPROVEMENTS. PURCHASER REPRESENTS, WARRANTS AND COVENANTS TO
SELLER THAT, PURCHASER IS RELYING SOLELY UPON PURCHASER'S OWN
INVESTIGATION OF THE PROPERTY.
PURCHASER EXPRESSLY WAIVES ANY OF ITS RIGHTS GRANTED UNDER
CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS: "A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OR
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
NOTWITHSTANDING THE FOREGOING, THIS RELEASE DOES NOT EXTEND OR
OTHERWISE APPLY TO ANY CLAIM ARISING FROM SELLER'S FRAUD OR WILLFUL
MISCONDUCT.
Purchaser's Initials
16. CONFIDENTIALITY OF INFORMATION PROVIDED BY SELLER.
Purchaser acknowledges that all non-public information of Seller, including but not limited to
any financial and customer information, this Agreement and all terms hereof, all drafts of this
Agreement and all terms thereof, and all documents delivered pursuant to this Agreement, is
secret and confidential proprietary information and as such will continue to constitute a valuable,
unique asset of Seller. Purchaser covenants that it will not either use or disclose any such
information to any person, firm, corporation, association or other entity for any reason or purpose
whatsoever, unless (a) such disclosure is to its accountants, lawyers, and other advisors in
connection with the transactions contemplated by this Agreement and the recipient of such
information has agreed to be bound by this Paragraph 16, or (b) such information is otherwise
publicly available, or (c) such disclosure is required by law, or (d) Purchaser receives Seller's
prior written consent to disclose such information. In the event this Agreement is terminated,
Purchaser and its representative shall continue to keep such information confidential, except as
specified in clauses (b), (c) and (d) above.
1173846-7 8
~~,~
17. PURCHASER'S INDEMNITY. Purchaser shall hold harmless, indemnify
and defend Seller (by counsel reasonably satisfying to Seller) from and against any and all loss,
claim damage, liability or expense which Seller may incur by reason of Purchaser's breach of or
failure to perform any of its covenants, representations or warranties in this Agreement or in any
schedule, certificate, exhibit, or other instrument furnished or to be furnished under this
Agreement.
18. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. All
obligations of Seller under this Agreement are subject to the fulfillment, on or prior to Closing,
of each of the following conditions:
18.1 PERFORMANCE OF OBLIGATIONS. All the terms, conditions,
covenants and obligations of this Agreement to be complied with and performed by Purchaser on
or before Closing shall have been complied with and performed in all material respects.
18.2 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING.
The representations and warranties made by Purchaser herein shall be correct in all material
respects on and as of Closing, with the same force and effect as though such representations and
warranties had been made on and as of Closing, and by consummation of the transactions
contemplated by this Agreement, Purchaser shall be deemed to affirm that the representations
and warranties made by Purchaser herein are correct in all material respects on and as of Closing,
with the same force and effect as though such representations and warranties had been made on
and as of Closing.
18.3 NO INJUNCTION. No injunction, temporary restraining order or
other administrative or judicial order shall have been issued enjoining or restraining the
transactions contemplated hereby in whole or in part.
19. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. All
obligations of Purchaser under this Agreement are subject to the fulfillment, on or prior to the
Closing Date, of each of the following conditions:
19.1 PERFORMANCE OF OBLIGATIONS. All the terms, conditions,
covenants and obligations of this Agreement to be complied with and performed by Seller on or
before the Closing Date shall have been complied with and performed in all material respects.
19.2 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING.
The representations and warranties made by Seller herein shall be correct in all material respects
on and as of Closing, with the same force and effect as though such representations and
warranties had been made on and as of Closing, and by consummation of the transactions
contemplated by this Agreement, Seller shall be deemed to affirm that the representations and
warranties made by Seller herein are correct in all material respects as though such
representations and warranties had been made on and as of Closing.
1173846-7
~,~ ~
19.3 NO INJUNCTION. No injunction, temporary restraining order or
other administrative or judicial order shall have been issued enjoining or restraining the
transactions contemplated hereby in whole or in part.
20. SURVNAL OF REPRESENTATIONS AND WARRANTIES. All
covenants, other representations and warranties made by Seller or Purchaser contained in this
Agreement shall terminate at Closing.
21. MISCELLANEOUS PROVISIONS.
21.1 FURTHER ASSURANCES. Each of the parties hereto agrees to
execute such further documents and to take such further actions as maybe reasonably necessary
in order to effect consummation of the transactions contemplated hereby.
21.2 CONTINGENCIES. This agreement shall be contingent upon the
following:
(a) Environmental Audit. Purchaser will, at Purchaser's sole cost and
expense, obtain a Phase I environmental audit of the Subject Property (the "Audit"). If the Audit
discloses that the Subject Property has been used for the handling, treatment, storage or disposal
of any hazardous or toxic substances as defined under any applicable state or federal laws or
regulations ("Contamination") or otherwise reveals that hazardous materials maybe present in,
on, under or adjacent to the Subject Property, then at least forty-five (45) days following the date
of this Agreement, time being of the essence, Purchaser will so notify Seller in writing and the
date for Closing shall be extended by an additional thirty (30) days in order to enable Purchaser
to obtain a Phase II report for the Subject Property. The failure of Purchaser to give such notice
to Seller within forty-five (45) days following the date of this Agreement shall constitute an
irrevocable waiver of this contingency and the parties shall proceed to Closing. Upon receipt of a
timely notice that the Audit discloses Contamination, Seller will undertake such steps as Seller,
acting in good faith, deems reasonable under the circumstances to cause such Contamination to
be remedied, it being understood that Seller shall have no obligation whatsoever to expend any
sum or undertake any actual or potential liability in excess of $500 in connection therewith. If at
Closing, any Contamination has not been remedied despite Seller's good faith efforts as
aforesaid, then Purchaser shall have the option to either (a) terminate this Agreement forthwith
(in which event the Escrow Deposit shall be repaid to Purchaser), or (b) accept title to the Subject
Property subject to the Contamination without any change in Purchase Price.
(b) Property Review. Purchaser will, at Purchaser's sole cost and
expense, conduct a review of the zoning and building laws, ordinances and regulations affecting
the Subject Property to determine if the Purchaser's intended use of the property for municipal
corporation yard purposes is permitted, the City Council of Dublin approves the purchase and
any other tests, appraisals, surveys or other inspections the Purchaser deems reasonable and/or
necessary (the "Property Review"). If the Property Review reveals that the Subject Property
cannot be used for Purchaser's intended use or the Property Review reveals a condition
unacceptable to Purchaser, then at least forty-five (45) days following the date of this Agreement,
1173846-7 10
~ a vb a~1
time being of the essence, Purchaser will so notify Seller in writing at which time the Escrow
Deposit shall be returned to Purchaser and neither party shall have any further obligation or
liability hereunder. The failure of Purchaser to give such notice to Seller within forty-five (45)
days following the date of this Agreement shall constitute an irrevocable waiver of this
contingency and the parties shall proceed to Closing.
(c) Appraisal. Purchaser will, at Purchaser's sole cost and expense, have
the Subject Property appraised by an MAI appraiser. If the City's appraiser determines that the
appraised value of the Subject Property is less than the Purchase Price, then by not later than
forty-five (45) days following the date of this Agreement, time being of the essence, Purchaser
will so notify Seller in writing at which time the Escrow Deposit shall be returned to Purchaser
and neither party shall have any further obligation or liability hereunder. The failure of
Purchaser to give such notice to Seller within forty-five (45) days following the date of this
Agreement shall constitute an irrevocable waiver of this contingency and the parties shall
proceed to Closing.
(d) Ins ections. Seller authorizes Purchaser and its engineer and/or other
experts, at Purchaser's expense, to go upon the Subject Property, at any reasonable time for the
purpose of making inspections. Such inspections shall be performed to cause no damage to the
Subject Property or improvements thereon, and Purchaser shall repair any damage to the Subject
Property or improvements caused by Purchaser's or its agent's entry. Purchaser agrees to defend
and hold Seller and the Subject Property harmless from all claims and liabilities (including
reasonable attorney's fees, costs and expenses) for personal injury, physical damage to any
person or the Subject Property, or mechanic's or materialmen's liens which maybe asserted
against the Subject Property solely as a result of any such entry by Purchaser, its agents or
designees.
21.3 DEFAULT.
(a) By Purchaser. In the event of a default under this Agreement
by Purchaser, Seller may terminate this Agreement by written notice to Purchaser and, at Seller's
option, elect to: (i) accept payment of the Escrow Deposit as liquidated damages, in which event
Seller shall waive all claims for loss of bargain, and for all direct, out-of-pocket costs and
expenses incurred by Seller, including, but not limited to attorney's fees, or (ii) seek relief in an
action for specific performance; provided, however, that an election by Seller to pursue one or
the other of the foregoing remedies shall not preclude Seller from pursuing the other remedy until
full satisfaction shall have been received on the remedy pursued. Notwithstanding the foregoing,
in the event that Purchaser increases the total amount of the Escrow Deposit by $58,750 to a total
of $193,750 not later than 45 days following the date of this Agreement, Developer's sole
remedy in the event of default by Purchaser thereafter shall be to terminate this Agreement by
written notice to Purchaser and accept payment of the Escrow Deposit as liquidated damages, in
which event Seller shall-waive all claims for loss of bargain, and for all direct, out-of-pocket
costs and expenses incurred by Seller, including, but not limited to attorney's fees.
1173846-7 11
i~ ~~~
(b) B Ste. In the event of a default under this Agreement by
Seller, Purchaser may terminate this Agreement by written notice to Seller and, in addition, at
Purchaser's option, elect to: (i) waive any claim for loss of bargain, in which event all monies
paid on account, including, but not limited to, the Escrow Deposit, shall be repaid to Purchaser
and in addition, Seller shall pay to Purchaser an amount equal to all of Purchaser's direct out-of-
pocket costs and expenses arising out of the transactions contemplated by this Agreement
including, but not limited to, title examination and attorney's fees (in a total amount not
exceeding $1,000), or (ii) seek relief in an action for specific performance; provided, however,
that an election by Purchaser to pursue one or the other of the foregoing remedies shall not
preclude Purchaser from pursuing the other remedy until full satisfaction shall have been
received on the remedy pursued.
21.3.1 LIQUIDATED DAMAGES. If the escrow and this
transaction fail to close as a result of the default of Purchaser in the performance of its
obligations under this Agreement, Purchaser and Seller agree that Seller will sustain damages,
and that Seller's actual damages would be impracticable or extremely difficult to determine. The
Parties therefore agree that if escrow and this transaction fail to close as a result of default of
Purchaser, and Seller is ready, willing and able to perform its obligations hereunder, Seller, as
Seller's sole and exclusive remedy, shall be entitled, under the circumstances specified in section
21.3(a), to retain the Escrow Deposit as liquidated damages and as consideration for entering into
this Agreement. By placing their initials in the spaces below, both Parties agree to the
liquidated damages as set forth above. In the event escrow fails to close as a result of
Purchaser's default and Seller is ready, willing and able to perform its obligations hereunder,
then (a) following Seller's receipt of the Escrow Deposit, this Agreement and the rights and
obligations of Purchaser and Seller hereunder and the escrow created hereby shall terminate
(except those provisions specified to survive the termination of this Agreement), and (b) Escrow
Agent shall, and is hereby authorized and instructed to, return promptly to Purchaser and Seller
all documents and instruments to the Parties who deposited the same. The payment of such
amount as liquidated damages is not intended as a forfeiture or penalty within the meaning of
California Civil Code Sections 3275 or 3369, but is intended to constitute liquidated damages to
Seller pursuant to California Civil Code Sections 1671, 1676 and 1677. Seller hereby waives the
provisions of California Civil Code Section 3389. Seller and Purchaser acknowledge that they
have read and understand the provisions of this Section 21.3.1, and by their initials immediately
below agree to be bound by its terms.
SELLER'S INITIALS:
PURCHASER'S INITIALS
21.4 ASSIGNMENT. Purchaser may not assign this Agreement or any of
its rights, interests or obligations hereunder without the express prior written consent of Seller;
provided that Purchaser may assign the contract to an entity to be formed after the date hereof as
long as Purchaser continues to be obligated hereunder and the appropriate representations and
warranties are incorporated into the assignment. Any assignment by Purchaser which is
consented to by Seller shall not relieve Purchaser of any further liability under this Agreement
1173846-7 12
even though the assignee assumes all of Purchaser's obligations hereunder. Any attempted
assignment which fails to comply with this Paragraph 21.4 shall be void.
21.5 APPLICABLE LAW. This Agreement shall be interpreted,
construed and enforced in accordance with the laws of the State of California without regard to
principles of conflicts of laws.
21.6 NOTICE. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given or made when (i)
delivered by hand, or (ii) five (5) business days after deposit in the United States Mail, certified
or registered, postage pre-paid, return receipt requested, or (iii) the business day immediately
following timely deposit with a nationally recognized overnight courier service (which shall
include Federal Express) to the parties at the following addresses:
If to Purchaser, to:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fax: (925) 833-6651
With a copy, to:
John Steinbuch, SIOR
Senior Vice President
Colliers International
5050 Hopyard Road
Suite 180
Pleasanton, CA 94588
If to Seller, to:
Pierce Hardy Limited Partnership
1019 Route 519, Building 5
Eighty Four, PA 15330
Attn: Cheri B. Bomar, Esquire
Telephone: (724) 228-3636
Fax: 877-333-2291
By notice complying with the requirements of this Paragraph 21.6, each party shall have the right
to change the address for all future notices, or other communications and payments to such party;
provided, however, that the designation of a change of addressee or address, or both, by notice
given hereunder shall not be effective until actually received. Any addressee designated above to
1173846-7 13
1~~~
whom copies of notices are designated to be sent shall be provided copies of notices for
informational purposes only, any such copies maybe sent via regular mail and a failure to give or
to receive copies of notices shall not affect the validity of notice given to the parties or otherwise
be construed as a failure to give notice.
21.7 AMENDMENT AND WAIVER. No term or provision of this
Agreement maybe altered, amended, changed, waived, terminated or modified in any respect or
particular except by written instrument signed by or on behalf of the party to be charged
therewith. No waiver by either party of any breach hereunder shall be deemed a waiver of any
other or any subsequent breach.
21.8 SUCCESSORS AND ASSIGNS. All covenants, representations,
warranties and agreements of the parties contained herein shall be binding upon and inure to the
benefit of its respective successors and permitted assigns.
21.9 ENTIRE AND SOLE AGREEMENT. This Agreement and the
schedules hereto constitute the entire agreement between the parties and supersede all prior
agreements, representations, warranties, statements, promises and understandings, whether
written or oral, with respect to the subject matter hereof and thereof. Neither party hereto shall
be bound by or charged with any written or oral agreements, representations, warranties,
statements, promises or understandings not specifically set forth in this Agreement or in the
exhibits hereto, or in the documents and instruments to be delivered on or before Closing.
21.10 SEVERABILITY. Whenever possible, each provision of this
Agreement and any other statement, instrument or transaction contemplated hereby or relating
hereto shall be interpreted in such manner as to be effective and valid under such applicable law,
but, if any provision of this Agreement or any other statement, instrument or transaction
contemplated hereby or relating hereto shall beheld to be prohibited or invalid under such
applicable law, such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement or any other statement, instrument or transaction contemplated hereby or relating
hereto.
21.11 COUNTERPARTS; CAPTIONS. This Agreement maybe
executed in one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All paragraph headings and other captions
used in this Agreement and the table of contents are for convenience only, are not a part of this
Agreement and shall not be used in construing it.
21.12 PUBLIC ANNOUNCEMENTS. Except to the extent required by
law, neither party shall make any public announcement or public filing with respect to this
Agreement or the transactions contemplated hereby without first obtaining the approval of the
other party of the text and substance thereof, which approval shall not be unreasonably withheld.
1173846-7 14
~~ ;~~ ..
.21.13 EXPENSES. Except as otherwise expressly set forth herein, each
party shall pay and be solely responsible for the expenses incurred by it under this Agreement or
in connection herewith, including counsel fees and expenses of its representatives, whether or not
the transactions contemplated by this Agreement are consummated.
21.14 CASUALTY OR CONDEMNATION. If, prior to Closing, all or a
material part of the Subject Property is destroyed or is subject to condemnation, Seller shall so
notify Purchaser and either party shall have the right to terminate this Agreement. If the
Agreement is not so terminated, there will be no adjustment in the Purchase Price provided for
herein; however, at Closing, Seller shall assign to Purchaser any insurance or condemnation
proceeds to which Seller maybe entitled in connection with such casualty or condemnation.
21.15 TIME. Time is of the essence in this Agreement and of each and
every provision contained in this Agreement. If the date for performance of either Purchaser's or
Seller's obligations under this Agreement falls on a Saturday, Sunday or a legal holiday, the time
for performance shall be extended to the next succeeding business day.
21.16 TAX DEFERRED EXCHANGE PURSUANT TO SECTION 1031
OF INTERNAL REVENUE CODE. It is understood and agreed that, at Seller's option and
provided Purchaser incurs no delay or additional cost or expense, the Closing maybe effectuated
as a tax-free exchange or tax free deferred exchange (pursuant to Section 1031 of the Internal
Revenue Code) ("IRC")), and Purchaser agrees to cooperate in any exchange. Both parties
acknowledge that it is Seller's sole responsibility to designate and to provide any exchange
property that may become a part of any exchange. Seller shall be responsible for any and all
costs of the tax free exchange pursuant to Section 1031 of the IRC and Purchaser shall have no
responsibility or obligation for any costs associated with the tax free exchange.
21.17 TAX WITHHOLDING. Under the Foreign Investment in Real
Property Tax Act (FIRPTA), IRC § 1445, every buyer of U.S. real property must, unless, an
exemption applies, deduct and withhold from seller's proceeds 10% of the gross sales price. The
primary FIRPTA exemptions for rion-residential property are: No withholding is required if (i)
Seller provides Purchaser with an affidavit, under penalty of perjury, that Seller is not a "foreign
person," or (ii) Seller provide Purchaser with a "qualifying statement" issued by the Internal
Revenue Service.
21.18 TAX ABATEMENT Should Seller contest the taxes assessed on
the Subject Property, any tax abatement and/or refund received for a period up to the Closing
Date as part of such action whether payment and/or refund is received prior to or after Closing
shall be the property of Seller.
21.19. REVOCABILITY. It is understood that the Seller is negotiating
an agreement with other potential Purchasers. This Agreement shall not be binding upon the
parties until fully executed by both parties and the earnest money deposited in accordance with
this Agreement.
1173846-7 15
I~a?~~.~
21.20 RESTRICTIVE COVENANT. Purchaser represents and warrants
to Seller that neither Purchaser nor any corporation, partnership or trust controlled by Purchaser,
nor their respective heirs, representatives, successors, assigns and tenants shall use the Subject
Property for the operation of a retail lumber or building supply business or a truss plant facility
for a period of twenty (20) years after the date hereof. At Closing, Purchaser agrees to execute,
deliver and record the Declaration of Restrictive Covenant in the form attached as Exhibit C.
[EXECUTION PAGE FOLLOWS]
1173846-7 16
~~~~
IN WITNESS WHEREOF, the parties have duly executed this Agreement
effective as of the day and year first above written.
ATTEST:
Attest:
SELLER:
Hardy Management Company, Inc., a
corporation
By:
Its:
Pierce Hardy Limited Partnership, a
limited partnership
By: Peter Jon Co., LLC
By:
Its:
PURCHASER:
CITY OF DUBLIN
By:
Caroline Soto, City Clerk Joni Pattillo, City Manager.
Approved as to form
John Bakker, City Attorney
1173846-7 17
~~>~
7nTN nF,R
AND, NOW, this day of , 200_, LandAmerica
Financial Group, Inc. joins in this Real Estate Sale Agreement with Joint Escrow Instructions for
the purposes stated in Paragraph 4, agreeing to act as Escrow Agent as therein provided.
ATTEST: ESCROW AGENT: LandAmerica Financial Group, Inc.
Secretary
By~-
Title:
1173846-7 18
~~ ,~~
Exhibit A
All that certain real property situated in the County of Alameda, State of California, described as
follows:
Parcel A, of Parcel Map 1177, recorded June 10, 1975, in Book 87, of Maps Page 69, Alameda
County Records
AP No. 941-0550-029
1173 846.5
1173846-7 19
t yhi'q: fi
policy/File No.: 08011804
LAWYERS TITLE INSURANCE CORPORATION
COMMITMENT FOR TITLE INSURANCE
Issued by
Lawyers Title Insurance Corporation
SCIIEDULE A
1. Effective Date: January 25, 2008
2. Policy or Policies to be issued: ALTA Loan 1992
Proposed Insured: 84 Lumber Company
Liability: $TO COME
3. The estate or interest in the land described or referred to in the Commitment and covered
herein is A FEE and is at the effective date hereof vested in:
84 Lumber Company, a Pennsylvania corporation by document dated September 18,
1976 recorded December 30, 1976 in Reel 4662, Image 706 Instrument No. 76-
221984, Official Records
4. The land referred to in this Commitment is situated in the County of Alameda, State of
California, and is described as follows:
As Fu11y Set forth on Exhibit "A" attached hereto and by thls reference incorporated herein.
Y•
Authorized Signatory
ALTA Commitment Page 1 ofi 6
Exhibit B
z~~
File No.: 08011804
EXHIBIT "A
All that certain real property situated in the County of Alameda, State of
California, described as follows:
Parcel A, of Parcel Map 1177, recorded June 10, 1975, in Book 87, of Maps
Page 69, Alameda County Records.
A.P.No.: 941-0550-029
ALTA Commitment Page 2 of 6
z~~j'~
File No.: 08011804
SCHEDULE B -SECTION I
The following are requirements to be complied with:
1. Instrument creating the estate or interest to be insured must be executed and filed for record,
to wit:
2. Pay the full consideration to, or for the account of, the grantors or mortgagors.
3. Pay all taxes, charges, assessments, levied and assessed against subject premises, which are
due and payable.
4. Satisfactory evidence should be had that improvements and/or repairs or alterations thereto
are completed; that contractor, sub-contractors, labor and materialmen are all paid; and have
released of record all liens or notice of intent to pertect a lien for labor or material.
END OF SCHEDULE B -SECTION I
ALTA Commitment Page 3 of 6
2~~zq
File No.: 08011804
SCHEDULE B -SECTION IT
EXCEPTIONS
Schedule 13 of policy or policies to be issued will contain exceptions to the following matters unless the
same are disposed of to the satisfaction of the Company:
A. Property taxes, including general and special taxes, personal property taxes, if any, and any
assessments collected with taxes, to be levied for the fiscal year 2008 - 2009 which are a lien not yet
due or payable.
B. Supplemental or escaped assessments of property taxes, if any, assessed pursuant to the
Revenue and Taxation Code of the State of California.
1. An easement for the purpose shown below and rights incidental thereto as set forth In a
document
Granted to: Alameda County Flood Control and Water Conservation District, a body corporate and
politic
Purpose: Right of way for the transmission and distribution of water, a pipe or pipelines
Recorded: October 18, 1981 in Reel 432, Image 541 Instrument No. AS128887, Official Records
Affects: An easterly 15 foot portion of said land
Z. A waiver of any claims for damages to said land by reason of the location of a freeway or
highway contiguous thereto as contained in a document
In Favor af: The State of California
Recorded: Apri! 22, 1966 in Reel 1753, Image 683 Instrument No. AY51516, Official Records
3. An easement for the purpose shown below and rights incidental thereto as set forth in a
document
Granted to: Valley Community Services District, a political subdivision
Purpose: Sanitary sewer mains and water supply mains
Recorded: October 9, 1969 in Reel 2493, Image 656 Instrument No. 69-114732, Official Records
Affects: The southerly 20 feet of said land
4. An easement for the purpose shown below and rights incidental thereto as set forth in a
document
Granted to: Valley Community Services District, a political subdivision
Purpose: Public utilities
Recorded: November 2, 1977 in Reel 5120, Image 369 Instrument No. 77-218438 Official
Records
Affects: An easterly portion of said land
ALTA Commitment Page 4 of 6
2 5 v~~ ~i
SCHEDULE B -SECTION II
Contiinued
File No.: 08011804
5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing
in the public records or attaching subsequent to the effective date hereof but prior to the date
the proposed Insured acquires for value of record the estate or interest or mortgage thereon
covered by this commitment.
REQUIREMENTS:
NO.1: The Company will require a certified copy of the Resolution of the Board of Directors of the
following corporation authorizing the transaction for which this Commitment was ordered.
Corporation: S4 LUMBER COMPANY, A PENNSYLVANIA CORPORATION
NOTES:
NO. 1: Property taxes, including general and special taxes, personal property taxes, if any, and any
assessments collected with taxes, for the fiscal year shown below, are paid. For proration
purposes the amounts are:
Fiscal year 2007 -- 2008
1st Installment: $4,728.25
2nd Installment: $4,728.25
Land Value: $270,747
Improvement Value; $494,634
Persona{: $35,019
Code Area: 26-001
Assessment No.: 941-0550-029
NO. 2: THE FOLLOWING INFORMATION WILL BE INCLUDED IN THE CLTA FORM 115 or ALTA FORM
22-06 ENDORSEMENT TO BE ISSUED PURSUANT TO THIS ORDER:
THERE IS LOCATED ON
Said land: A Commercial Structure
Known as: 5777 Scarlett Court, Dublin, California
ALTA Commitment Page 5 of 6
~~ ~;~~~
SCHEDULE B -SECTION II
Continued
PRIVACY NOTICE (1S U.S.C. 6801 AND 16 CFR PART 313):
File No.: 08011804
WE COLLECT NONPUBLIC PERSONAL INFORMATION ABOUT YOU FROM INFORMATION YOU PROVIDE
ON FORMS AND DOCUMENTS AND FROM OTHER PEOPLE SUCH A5 YOUR LENDER, REAL ESTATE
AGENT, ATTORNEY, ESCROW, ETC. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION
ABOUT OUR CUSTOMERS OR FORMER CUSTOMERS TO ANYONE, EXCEPT AS PERMITTED BY LAW. WE
RESTRICT ACCESS TO NONPUBLIC PERSONAL INFORMATION ABOUT YOU TO THOSE EMPLOYEES
WHO NEED TO KNOW THAT INFORMATION IN ORDER TO PROVIDE PRODUCTS OR SERVICES TO YOU.
WE MAINTAIN PHYSICAL, ELECTRONIC AND PROCEDURAL SAFEGUARDS THAT COMPLY WITH
FERERAL REGULATIONS TO GUARD YOUR NONPUBLIC PERSONAL INFORMATION.
NOTE: CALIFORNIA INSURANCE CODE 12413.1 REGULATES THE DISBURSEMENT OF ESCROW AND
SUB-ESCROW FUNDS BY TITLE CQMPANIES. THE LAW REQUIRES THAT FUNDS BE DEPOSITED IN
THE TITLE COMPANY ESCROW ACCOUNT AND AVAILABLE FOR WITHDRAWAL PRIOR TO
DISBURSEMENT. FUNDS DEPOSITED WITH THE COMPANY VIA WIRE TRANSFER MAY BE DISBURSED
UPON RECEIPT. FUNDS DEPOSITED WITH THE COMPANY VIA CASHIER'S OR TELLER'S CHECKS
DRAWN ON A CALIFORNIA BASED BANK MAY BE DISBURSED THE NEXT BUSINESS DAY AFTER THE
DAY OF DEPOSIT. IF FUNDS ARE DEPOSITED WITH THE COMPANY BY OTHER METHODS RECORDING
AND/OR DISBURSEMENT MAY BE DELAYED. ALL ESCROW AND SUS-ESCROW FUNDS RECEIVED BY
THE COMPANY WILL BE DEPOSITED IN AN ESCROW ACCOUNT OF THE COMPANY IN A STATE OR
NATIONAL BANK. THE COMPANY MAY RECEIVE CERTAIN DIRECT OR INDIRECT BENEFITS FROM THE
BANK BY REASON OF THE DEPOSIT OF ANY SUCH FUNDS. OR THE MAINTENANCE OF SUCH
ACCOUNTS WITH SUCH BANK, AND THE COMPANY SHALL HAVE NO OBLIGATION TO ACCOUNT TO
THE PARTIES TO ANY ESCROW IN ANY MANNER FOR THE VALUE OF, OR TO PAY TO SUCH PARTY ANY
BENEFIT RECEIVED BY THE COMPANY. THOSE BENEFITS MAY INCLUDE, WITHOUT LIMITATION,
CREDITS ALLOWED BY SUCH-BANK ON LOANS TO THE COMPANY OR ITS PARENT COMPANY AND
EARNINGS ON INVESTMENTS MADE WITH-THE PROCEEDS OF-SUCH LOANS, ACCOUNTING;
REPORTING AND OTHER SERVICES AND PRODUCTS OF SUCH BANK. SUCH BENEFITS WILL BE
RETAINED BY THE COMPANY AS PART OF TTS COMPENSATION FOR HANDLING SUCH FUNDS.
NOTE: AN OWNER'S POLICY ISSUED IN CONNECTION WITH THIS COMMITMENT WILL CONTAIN THE
FOLLOWING PRE--PRINTED EXCEPTIONS:
1. Rights or claims of parties other than the Insured in actual possession of any or all of the
property.
2. Unrecorded easements, discrepancies or conflicts in boundary lines, shortage in area and
encroachments which an accurate and complete survey would disclose.
3. Unfiled mechanic's or materialmen's liens.
END OF SCHEDULE B -SECTION II
RF2
ALTA Commitment Page 6 of 6
~ ~
decIWIND /f
1 /26/99
EXHIBIT C
DECLARATION OF RESTRICTIVE COVENANT
This Declaration is made as of the day of , 2008, by The City of Dublin, a ("Declarant") to
and for the benefit of Pierce Hardy Limited Partnership, a Pennsylvania limited partnership ("Seller"), having a mailing address of 1019 Route 519, Eighty Four, PA
15330.
RECITALS
A. On the day of , 2008, Seller has conveyed to Declarant a certain parcel of land located in the City of
Dublin, County of Alameda and State of California, as more fully described on Schedule A herein (the "Subject Property").
B. In consideration of the purchase and sale of the Subject Property, Declarant has agreed to make this Declaration upon the terms and conditions hereinafter
set forth.
NOW THEREFORE, for good and valuable consideration, intending to be legally bound, Declarant hereby covenants, declares and agrees as follows:
1. Incorporation By Reference -The above recitals are incorporated herein and made a part hereof.
2. Declaration -None of the Subject Property as described more fully on Schedule A herein (collectively the "Encumbered Property") shall be used for the
operation of a retail lumber or building supply business or truss manufacturing company for a period of twenty (20) years after the date
hereof.
3. Run With The Land -The terms and conditions of this Declaration shall run with the land and shall be binding upon Declarant and its
representatives, successors, assigns and tenants and shall benefit Seller and its successors and assigns.
4. Recordation -This Declaration shall be recorded in the appropriate land records of each county or appropriate local jurisdiction within the location of the
Encumbered Property.
5. Modifications -This Declaration may not be modified, waived or amended except by a written instrument executed by Seller, its successors or
assigns.
6. Headings Not Controlling -Headings used in this Declaration are for reference purposes only and shall not be deemed a part of this Declaration.
IN WITNESS WHEREOF, Declarant has executed this Declaration as of the date first written above.
The City of Dublin.
Witness:
E3y:
Its:
2007
Sworn to and subscribed before me by
on this day of
Notary Public
(All Declarants Must Sign) This Instrument was prepared by and after recording should be returned to:
Pierce Hardy Limited Partnership
1019 Route 519
Eighty Four, PA l 5330
ATTN: Kelly Holmes
Exhibit C
Z . `~~~
Schedule A
(Legal Description of Subject Property)
See Schedule A Attached Hereto
CITY OF DUBLIN
BUDGET CHANGE FORM
CHANGE FORM #
New Appropriations (City Council Approval Required):
X From Unappropriated Reserves
X From Designated Reserve $1.5 Million
From New Revenues
Required)
Budget Transfers:
~ ~~
From Budgeted Contingent Reserve (1080-799.000)
Within Same Department Activity
X Between Departments (City Council Approval
Other
DECREASE BJD(:FT A('CnTTNT AM(1TiNT TNf RFecF RTrnr_~~r e~rnrriv~r ~r,rnTT~r~r
Name: GENERAL FUND -Maintenance
Facility / EOC Capital Project - $ 50 000
Maintenance Facility Phase -Contract
Services -General
Account #: 001-93570-740-000
Name: GENERAL FUND -Maintenance
Facility / EOC Capital Project - $3,375,000
Maintenance Facility Phase -Land
Account #: 001-93570-750-010
Name: GENERAL FUND -Maintenance
Facility / EOC Capital Project - $ 500,000
Maintenance Facility Phase -Buildings
Account #: 001-93570-750-030
Fin Mgr/ASD:
Signature
Date: / po Og
REASON FOR BUDGET CHANGE ENTRY: A suitable site became available that can be utilized as a
Corporation Yard /Maintenance Facility. This is an identified need in the current City of Dublin 5 Year
Capital Improvement Plan. Although a $1.5 million reserve is designated for this project no funds were
appropriated with the FY 2008/2009 Budget. This Budget Change will appropriate funds to complete the
acquisition phase of the Project. A future project will be presented to undertake the rehabilitation of the
current site to make accommodate a City Maintenance Facility.
City Mana er: sk-/ ~~~~ 1' Date: 1 i d~
Signature
As Approved at the City Council Meeting on: Date: 12/16/2008
Mayor: Date:
Signature
Posted By: Date:
Signature
ATTACHMENT # 2
1177262.1
Page 4 of 5