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Item 8.1 Acquisition of Former Railroad Right of Way
or 19 82 /ii � 111 DATE: TO: FROM: STAFF REPORT CITY CLERK CITY COUNCIL File #670 -20 & 930 -30 March 19, 2013 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' SUBJECT: Consideration of Acquisition of Former Railroad Right of Way Adjacent to the Iron Horse Trail and Initiation of Associated General Plan Amendment Study and Parks and Open Space Master Plan for the Portions of the Right of Way North of Amador Valley Boulevard Prepared by Paul McCreary, Parks and Community Services Director EXECUTIVE SUMMARY: Staff is seeking City Council authorization to approve an Agreement to pursue the potential acquisition of two parcels of former Union Pacific right of way for potential use as future parkland and open space (APN Numbers: 941 - 2768- 006 -02 and 941 - 0550 - 023 -04). If the City Council chooses to move forward with the potential acquisition of the parcels, a General Plan Amendment (GPA) Study would need to be completed to consider a land use designation of Parks /Public Recreation and Open Space for the parcel adjacent to the Iron Horse Trail that begins at the City limits to the north and runs south to just beyond Amador Valley Boulevard to the Alamo Canal Trail (APN 941 - 2768- 006 -02). As part of the GPA study, the City would also hold several public meetings to develop a Parks and Open Space Master Plan for the site prior to completing the acquisition process. FINANCIAL IMPACT: If the City Council approves the Agreement to Assign and Assume Purchase and Sale Agreement and Escrow Instructions, and the acquisition is completed, the City would pay $4.65 million to acquire the two parcels. If the City ultimately chooses not to complete the acquisition, it would forfeit a $100,000 deposit. As part of the acquisition process the City would need to retain various consultants to complete the studies necessary to finalize the assignment and acquisition. The total estimated costs for the consultant services and the acquisition of the property would be $4,943,900 and would be funded from the following sources: Public Facilities Fees (Quimby Act Fund) $2,868,675 General Fund Reserves $2,075,225 Total Funding $4,943,900 Amount of Budget Change for Fiscal Year 12 -13 $303,300 RECOMMENDATION: Page 1 of 6 ITEM NO. 8.1 Staff recommends the City Council take the following actions: (1) Adopt the Resolution approving the Agreement to Assign and Assume the Purchase and Sale Agreement held by UP Amador, LLC for two parcels of Union Pacific Right of Way (APN Numbers: 941 - 2768- 006 -02 and 941 - 0550 - 023 -04) and approving the initiation of a General Plan Amendment Study to change the land use designation on APN 941- 2768 -006- 02 Parks /Public Recreation and Open Space; (2) Adopt the Resolution approving the Agreement with SWA Group to prepare a Park and Open Space Master Plan for Parcel 941 - 2768- 006 -02; and (3) Appropriate funds in the amount of $303,300 to fund the project costs anticipated for the remainder of Fiscal Year 2012 -2013 from the Public Facilities Fee Fund in accordance with the attached Budget Change Form. (4) Submitted B Reviewed B Director of Parkzand Assistant City Manager Community Services DESCRIPTION: The Parks and Recreation Master Plan outlines the standards to meet the parks and recreation facilities needs for residents at the build -out of Dublin. The Master Plan was last updated in 2006. Staff is currently updating the Master Plan and has identified the need to acquire additional parkland beyond what was identified in the 2006 update. In the past seven years, the City has adopted several new General Plan Amendments as well as updated the Downtown Specific Plan. These updated plans will increase the estimated build -out population of Dublin beyond what was anticipated in the last Master Plan update. Based on the preliminary population projections, Staff believes that the City will have a communitywide parkland deficit at build -out of approximately 12 acres. This deficit does not include any other residential population increases that may result from the future approval of any open General Plan Amendment studies. Therefore the City needs to acquire additional parkland for future development in Dublin to continue to meet the standard of providing five acres of parkland for every 1,000 residents. Mission Valley Properties (MVP) currently has an option to purchase two parcels of abandoned railroad right of way (ROW) from Union Pacific as follows. • Parcel A is located north and south of Amador Valley Boulevard, adjacent to the Iron Horse Regional Trail and extends north to the City of Dublin /City of San Ramon city limits and south to the Alamo Canal Trail. The site is bounded to the east by County -owned land, which is identified as a future transportation corridor and has an easement for the Kinder Morgan pipeline. South San Ramon Creek runs in a northwest/southeast direction along the west side of the Iron Horse Regional Trail. Residential uses are located to the east and west. Parcel A has some constraints such as overhead power lines on the western edge of the property, as well as water and sewer utilities that traverse the site. Page 2 of 6 There are also some wetland areas that may be precluded from park development; however would be a great interpretive feature for a future park. Parcel A currently has no zoning designation. • Parcel B is located south of Dublin Boulevard, adjacent to the Iron Horse Regional Trail and extends north to Dublin Boulevard and south to the Dublin /Pleasanton BART Station near the east end of Scarlett Court. The City's Maintenance Yard is to the west of Parcel B, as are three other parcels owned by Hacienda Auto Body, Security Storage and Arlen Ness. Overhead utility poles run in a northwest- southeast direction to the west of the site within the industrial area. The power lines traverse a portion of the subject property at the southern end. Parcel B is zoned Light Industrial. MVP is considering requesting the initiation of a General Plan Amendment study to examine residential development on Parcel A. In the past there was public discontent with previous proposals for residential development on Parcel A; however there was support from residents for preserving the site for passive parks /recreation and open space uses. The City studied the potential for non - residential uses in 2008, and at the end of the study directed Staff to not move forward at the time as the City would need to purchase the parcels if they were designated park or open space. In 2008, due to the economic recession, the City did not have the funds available to purchase the property. Staff, however, continues to believe that the property would be an excellent site for additional parkland. MVP approached the City about the City's interest in potentially acquiring Parcel A for park and open space purposes and Parcel B for other purposes. Staff, based on direction provided by the City Council, negotiated an Assignment Agreement for City Council consideration with MVP's successor corporation in the Agreement, UP Amador LLC. The Agreement would result in the City stepping into MVP's role as purchaser should the City approve a General Plan Amendment Study to add a land use of Parks /Recreation and Open Space to Parcel A. UP Amador would receive an assignment fee in exchange for assigning its rights to the City. The total amount the City would pay for Parcels A and B is less than the value of the parcels indicated in the appraisal commissioned by the City. Proposed Land Uses and Anticipated Outcomes for Parcel A Staff recommends that the City consider pursuing the acquisition of Parcel A for a combination of passive community park and open space uses north of Amador Valley Boulevard, as well as a neighborhood square on the piece south of Amador Valley. The acquisition and park and open space improvements, if completed, would accomplish the following outcomes: • Ensure adequate parkland to serve infill development. • Meet the City Council's Strategy to create a community that supports environmental sustainability and provides an open space network that ensures environmental protection and provides public access where appropriate, as well as the following strategic goals: o Create open space connections and trails where appropriate • Identify opportunities for development of a unique passive park /recreation facility • Explore and implement strategies that enhance environmental sustainability • Enable City to provide the necessary parkland for the residential component of the Downtown Specific Plan and, in turn, meet the City Council's Strategy to continue to strengthen the identity and aesthetic appeal of the downtown, and facilitate continued investment in Downtown Dublin. Page 3 of 6 • Proactively address the parkland deficit in a cost effective manner. Purchasing 12 +/- acres of residential land elsewhere in the City could cost over $15.0 million based on current land acquisition costs in Dublin. • Improve pedestrian connections between the Iron Horse Trail, the Alamo Creek Trail, Stagecoach Park, Dougherty Hills Open Space, Dublin High School and the various apartments and condominiums along the project site. • Provide neighborhood parkland in close proximity to the new Emerald Vista development. • Provide opportunity to enhance the Iron Horse Trail through Dublin and provide a unique amenity for trail users. Proposed Land Uses and Anticipated Outcomes for Parcel B MVP's arrangement with Union Pacific requires MVP to purchase Parcel A and Parcel B as a package. Therefore, if the City acquires the 12.25 -acre Parcel A for park and open space uses, the City would also by necessity acquire 2.207 -acre Parcel B that is light industrial zoning. Approximately 0.2 acres could be used to expand the City's Maintenance Yard and provide a secondary emergency access point to the site from the BART property. For the remainder of the parcel, Staff would explore options for uses compatible with the light industrial land use, which may be limited due to the site characteristics. The City could also sell the remaining property as conservation or mitigation space, or to the adjacent property owners to expand their businesses. Acquisition Process During the months of January and February 2013, as part of the negotiation of the Agreement to Assign and Assume, the City completed initial due diligence work for the two sites including a Phase I Environmental Site Assessment, Biological Survey, ALTA Survey and limited soils testing. The results of the studies and surveys revealed that there were no major issues identified with the sites. The Environmental Site Assessment noted that, due to the nature of the products and chemicals used along railways in the past, there could be the possibility for some minor soil contamination which could be mitigated as part of the site grading. There was also reference to a fuel spill that occurred on a small portion the site from the Kinder Morgan Pipeline that is on the adjacent parcel to the east. However the impacts of the spill were successfully remedied by Kinder Morgan and the site has continued to be tested by the State with no negative indications of residual soil contamination. There were some areas identified as potential wetlands as well as some potentially protected plant species on the sites. Staff believes that these possible constraints could be accounted for in the site planning and would even enhance the park and open space plans. The survey noted several utility easements traversing the site, with the power lines running along the western edge of the parcel noted as the primary constraint, which would be undergrounded as part of the Master Plan for improvements. If the City Council approves the Agreement to Assign and Assume, then Staff would complete further evaluation of the proposed use of Parcel A as a park and open space, including extensive public outreach. The evaluation would begin immediately and be completed by September 2013. It would include the following components: • Environmental review under the California Environmental Quality Act (CEQA) • A study of a potential change in the General Plan Land Use to Parks /Public Recreation and Open Space • Park and Open Space Master Plan • Phase II Environmental Site Assessment Page 4 of 6 As part of the acquisition process Staff would also discuss potential partnerships with Alameda County Flood Control and East Bay Regional Park District on future development of the site and improvements to the Iron Horse Trail. Park and Open Space Master Plan As part of the evaluation of the project the City would conduct several public meetings to develop a Master Plan for Parcel A showing the ultimate site plan, and the cost and phasing of the improvements. In January 2013, a Request for Proposals (RFP) was circulated to landscape architecture firms in California for the development of the Master Plan. The three firms that submitted proposals (Carducci and Associates, Royston Hanamoto Alley & Abbey, and SWA Group) were interviewed, and SWA Group was recommended by the selection committee for this project. The committee was intrigued the possibilities the SWA saw in the site, and with the wide array of projects SWA has completed that were similar in character to the linear and natural feel of the site being considered by the City. For over five decades, SWA has been recognized as a world leader in landscape architecture, planning and urban design. Their projects, located in more than 60 countries worldwide, have garnered over 600 awards. Acquisition Project Costs and Funding Sources The City Attorney's Office had an appraisal of the parcels completed to determine the current fair market value of the land. The City Attorney's Office has reviewed the appraisal and assumptions and has determined it suitable for the purpose of entering into the proposed Agreement to Assign and Assume Purchase and Sale Agreement with UP Amador, LLC. If the City Council is interested in pursuing acquisition of the parcels, Staff would recommend using a combination of Quimby Act Funds, the Open Space General Fund Reserve and the Innovations /New Opportunities General Fund Reserve to fund the land acquisition. Under the financial terms of the Agreement, the City would pay an assignment and acquisition fee of $4.65 million to acquire the two parcels. There would be a $100,000 non - refundable deposit made to the escrow account by March 22, 2013. The deposit would be applied to the assignment and acquisition fee, with the balance due at the close of escrow. Escrow would close within five (5) business days of the date of approval of a City of Dublin General Plan Amendment and Zoning Amendment, but in any event no later than October 31, 2013. Staff anticipates bringing these studies back for Commission and City Council consideration in August and September in order to meet the October 31, 2013 deadline. As part of the acquisition process the City would need to retain various consultants to complete the studies and plans necessary to finalize the assignment and acquisition. The total estimated costs for the consultant services and to acquire the property would be $4,943,900 and would be funded from the following sources: Public Facilities Fees (Quimby Act Fund): $2,868,675 General Fund Reserves: $2,075,225 Total Funding: $4,943,900 Amount of Budget Change for Fiscal Year 12 -13: $303,300 Future Costs The Master Plan for Parcel A would identify the estimated costs to improve the neighborhood square and passive community park areas. The cost of the improvements would depend on the Page 5 of 6 number of acres that are developed and the level of amenities provided. Those improvements would be funded by future Quimby and Community Parkland Improvement fees collected in the downtown area. To get a sense of magnitude, the following would be the estimated cost of park improvements based on current fees: 2.25 acres neighborhood square south of Amador Valley $1.2 million 8.25 acres of passive community park north of Amador Valley $2.9 million 1.75 acres of open space and wetland restoration $1.0 million Total Estimated Improvement Costs $5.1 million* *In 2013 dollars The future costs for Parcel B are unknown at this time and would depend on the ultimate use of the area adjacent to the Maintenance Yard, and if there was a subdivision of the property. NOTICING REQUIREMENTS /PUBLIC OUTREACH: A public meeting notice was sent to any property owners within 500 feet of the two parcels. A copy of the Staff Report was provided to UP Amador, LLC and the Parks and Community Services Commission. ENVIRONMENTAL REVIEW: The California Environmental Quality Act (CEQA), together with the State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and when applicable, environmental documents are prepared. The current proposed action is not a project under CEQA, because the City's final decision whether or not to acquire the subject property is contingent upon the City Council approving a General Plan Amendment for Parcel A that designates Parcel A as Parks /Public Recreation and /or Open Space and the City will complete environmental review prior to considering approving the amendment. The proposed agreement does not obligate the City Council to approve the General Plan Amendment or acquire the property. Thus, the City has not, as a practical matter, committed itself to the project so as to effectively preclude any alternatives or mitigation measures that might otherwise be incorporated into the project, including the option of not going forward with the acquisition. In addition, there is not sufficient detail about the potential future park and open space project to allow meaningful environmental review under CEQA at this time. ATTACHMENTS: 1. Resolution approving the Agreement to Assign and Assume the Purchase and Sale Agreement held by UP Amador, LLC for two parcels of Union Pacific Right of Way and approving the initiation of a General Plan Plan Amendment Study 2. Resolution approving the Agreement with SWA Group to prepare a Park and Open Space Master Plan 3. Budget Change Form in the amount of $303,300 to fund the project costs anticipated for the remainder of Fiscal Year 2012 -2013 from the Public Facilities Fee Fund Page 6 of 6 RESOLUTION NO. XX - 13 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * ** APPROVING AN AGREEMENT TO ASSIGN AND ASSUME THE PURCHASE AND SALE AGREEMENT HELD BY UP AMADOR, LLC FOR TWO PARCELS OF UNION PACIFIC RIGHT OF WAY (AP N NUMBERS: 941 - 2768- 006 -02 AND 941 - 0550 - 023 -04) AND INITIATE A GENERAL PLAN AMENDMENT STUDY ON APN 941 - 2768- 006 -02 WHEREAS, the City of Dublin Parks and Recreation Master Plan and has identified a standard of providing five acres of parkland for every 1,000 residents; and WHEREAS, the City is updating the Parks and Recreation Master Plan and has identified there will be a deficit of parkland at the build -out of the City; and WHEREAS, the City Council ( "City Council ") of the City of Dublin desires to purchase two parcels of former Union Pacific Railroad right of way in Dublin including Parcel Numbers 941 -2768- 006-02 (Parcel A) and 941- 0550 - 023 -04 (Parcel B); and WHEREAS, the City would acquire Parcel A for future parkland and open space; and WHEREAS, while no specific use has been determined for Parcel B, Staff believes the adjacency to the existing Maintenance Yard could provide for expansion of the Maintenance Yard and other future public facility needs; and WHEREAS, the City and UP Amador, LLC have negotiated an Agreement to Assign and Assume the Purchase and Sale Agreement and Escrow Instructions substantially in the form attached hereto as Exhibit A ( "Agreement to Assign and Assume the Purchase and Sale Agreement and Escrow Instructions "); and WHEREAS, pursuant to the terms of the Agreement, (1) the City will pay $4.65 million to acquire from UP Amador, LLC, all of its right, title, interest and obligation in, under and to the Purchase and Sale Agreement between UP Amador, LLC and Union Pacific Railroad Company; (2) within three business days of approval of the Agreement the City will make a non - refundable deposit of $100,000 into escrow that shall be credited towards the $4.65 acquisition fee; and WHEREAS, the acquisition fee is below the fair market value appraisal of the parcels; and WHEREAS, Parcel A has no land use designation or zoning the City will conduct a General Plan Amendment Study and develop a Park and Opens Space Master Plan for the site with public input. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the Agreement to Assign and Assume the Purchase and Sale Agreement and Escrow Instructions with UP Amador, LLC. ATTACHMENT 1 BE IT FURTHER RESOLVED that the City Council does hereby authorize the City Manager to execute the Purchase and Sale Agreement substantially in the form attached hereto; to make revisions to the Agreement, with the advice of counsel, which do not materially or substantially increase the City's obligations thereunder; to sign all documents, to make all approvals and take all actions necessary or appropriate to carry out and implement the Agreement and to administer the City's obligations, responsibilities and duties to be performed under the Agreement, including conducting a General Plan Amendment Study and CEQA process, and developing a Park and Open Space Master Plan. PASSED, APPROVED AND ADOPTED this 19th day of March, 2013, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor ATTACHMENT 1 AGREEMENT TO ASSIGN AND ASSUME PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS THIS AGREEMENT TO ASSIGN AND ASSUME PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this "Agreement to Assign "), is made as of the 19`" day of March, 2013 ( "Effective Date "), by and between U.P. Amador, LLC, a California limited liability company ( "Assignor "), and the City of Dublin, a California municipal corporation ( "Assignee "). Assignor and Assignee are collectively referred to herein as the "Parties ". Capitalized terms not defined herein shall have the meaning ascribed to them in the Purchase and Sale Agreement (defined below). RECITALS A. On January 31, 2012, Assignor's predecessor in interest, MVP Development California, LLC, a California limited liability company ( "Purchaser "), and Union Pacific Railroad Company, a Delaware Corporation ( "Seller "), entered into that certain Purchase and Sale Agreement and Escrow Instructions ( "Purchase and Sale Agreement ") for the purchase and sale of real property (the "Property ") located in the City of Dublin, County of Alameda, State of California, as further described in Exhibit A attached hereto. B. On December 20, 2012, Purchaser and Assignor entered into that certain Assignment of Purchase Agreement, pursuant to which Purchaser assigned to Assignor all right, title, interest and obligations in, under and to the Purchase and Sale Agreement, and Assignor assumed same. C. Assignor desires and intends to sell, and convey to Assignee, and Assignee desires to purchase from Assignor, all of Assignor's right, title, interest and obligation in, under and to the Purchase and Sale Agreement, ("Assignor's Interest in the Purchase Agreement ") pursuant to the terms and conditions herein. NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are acknowledged, Assignor and Assignee hereby agree as follows: 1. Assignment. Assignor hereby agrees to assign and transfer to Assignee all of Assignor's Interest in the Purchase Agreement pursuant to the terms and conditions contained herein. 2. Assumption. Assignee agrees to assume and to perform and observe all of the terms, conditions, obligations and covenants of Assignor under the Purchase and Sale Agreement to be performed after the Effective Date of the Assignment contemplated by this Agreement to Assign. 3. Assignment Consideration.. The Parties agree that in consideration of the Assignment contemplated by this Agreement to Assign, Assignee shall pay Assignor an assignment fee equal to the difference between (a) Four Million Six Hundred Fifty Thousand Dollars ($4,650,000) and (b) the balance of the purchase price due under the Purchase and Sale Agreement at the close of escrow. (the "Assignment Fee "). 4. Assignee's Deposit. EXHIBIT A TO RESOLUTION JSS(agcit205)1c (i) Within three (3) business days of expiration of Assignee's Due Diligence Period (as defined in Section 5 hereof ) Assignee shall deposit One Hundred Thousand Dollars ($100,000), into escrow with First American Title Company, as Escrow Holder (Assignee's Deposit "). (ii) Assignee's Deposit shall be immediately released by Escrow Holder to Assignor and shall be credited toward the Assignment Fee. (iii) Except in the event of default by Assignor or as otherwise specifically defined hereunder, Assignee's Deposit shall be nonrefundable as Liquidated Damages, pursuant to Section 8.1 hereof, for the benefit of Assignor 5. Assignee's Due Diligence. Assignee has until and including 11:59 p.m. Pacific Standard Time on March 19, 2013 (the "Due Diligence Period "), in which to complete its Due Diligence with respect to Assignee's purchase under this Agreement to Assign, including, without limitation: (i) review and approval or disapproval of a Preliminary Report dated May 12, 2012 issued by First American Title Company and conditions of title, as accepted by Purchaser, with respect to the Property; (ii) review of all documentation submitted to Assignee by or on behalf of Assignor with respect to the condition of the Property; (iii) to the extent permitted by the Purchase and Sale Agreement, review and approval or disapproval of all physical inspections, Phase One Environmental Assessments, Phase Two Environmental Assessments, engineering studies, biological studies, geotechnical studies, and such other feasibility studies as Assignee conducts; (iv) confirmation that the portion of the Property identified as "Parcel 2" is in conformance with the City of Dublin General Plan designation as Industrial Land Use; (v) Review and approval or disapproval of an ALTA survey conducted by Assignee's consultant; and. (vi) City Council of Dublin approval of this Agreement. 5.1 As required in Section 4 above, Assignee shall indicate its approval of Due Diligence and election to proceed with this transaction by placing the required deposit into escrow within three (3) business days of the expiration of the Due Diligence Period. Failure to make the deposit in a timely fashion shall be deemed a disapproval of Due Diligence and this Agreement shall terminate with neither party having any additional rights or obligations whatsoever. 6. Consent to Assignment /Conversion to Purchase and Sale Agreement). Pursuant to Section 12.3(a) of the Purchase and Sale Agreement, Seller's consent is required for the assignment contemplated by this Agreement to Assign.. In the event that Assignor is unable to provide written confirmation of Seller's consent prior to June 5, 2013, then the proposed assignment shall fail. In that event, the Parties hereby agree to enter into the purchase and sale agreement attached hereto as Exhibit D ( "Future Purchase and Sale Agreement "). 7. Conditions to Closing. 7.1 Assignee's Conditions to Closing. The following conditions are conditions precedent to Assignee's obligation to purchase and accept Assignor's Interest in the Purchase Agreement (the "Assignee's Conditions Precedent "). 7.1.1 Assignor shall have performed all of its material obligations hereunder. 2 JSS(agcit205)1c 7.1.2 The City of Dublin City Council shall have approved a City of Dublin General Plan Amendment and Zoning Amendment to amend the land use and zoning on Parcel One of the Property, in accordance with Section 10 herein.. 7.1.3 At the Closing, if Assignor has obtained the consent of Seller to the Assignment, the Purchase and Sale Agreement shall be in full force and effect. If consent to assign is not obtained, Assignor shall have performed all of its obligations under the Future Purchase and Sale Agreement. The Assignee's Conditions Precedent are intended solely for the benefit of Assignee. If any of the Assignee's Conditions Precedent are not satisfied on or before the expiration of the Due Diligence Period, or the Closing Date, as applicable, Assignee shall have the right in its sole discretion either to terminate this Agreement to Assign or to waive the Assignee Condition(s) Precedent. 7.2 Assignor's Conditions to Closing. The following are conditions precedent to Assignor's obligation to assign Assignor's Interest in the Purchase Agreement (the "Assignor's Conditions Precedent "). 7.2.1 Assignee shall have received written consent to assignment to Assignor from Seller, or, in the event that such consent is not obtained, shall have performed all of its obligations under the Future Purchase and Sale Agreement. 7.2.2 Assignee shall have performed all of its material obligations hereunder. The Assignor's Conditions Precedent are intended solely for the benefit of Assignor. If any of the Assignor's Conditions Precedent are not satisfied by the expiration of the Due Diligence Period, or the Closing Date, as applicable, Assignor shall have the right in its sole discretion either to terminate this Agreement to Assign or to waive the Assignor Condition(s) Precedent. 8. Default 8.1 Default by Assignee. In the event that Assignee terminates this Agreement to Assign following the expiration of Assignee's Due Diligence Period, and for any reason other than the default of Assignor, such termination shall constitute a default of Assignee, entitling Assignor, as its sole remedy, to retain Assignee's Deposit as Liquidated Damages for the breach of this Agreement to Assign, as more specifically provided below: ASSIGNOR AND ASSIGNEE ACKNOWLEDGE AND AGREE THAT: (i) IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE ASSIGNOR'S ACTUAL DAMAGES IN THE EVENT OF ASSIGNEE'S DEFAULT UNDER THIS AGREEMENT, WHICH DEFAULT RESULTS IN ASSIGNEE'S FAILURE TO ACQUIRE THE PROPERTY; AND (ii) TAKING INTO ACCOUNT ALL OF THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE OF THIS ASSIGNMENT, ASSIGNEE'S TOTAL DEPOSIT AS PROVIDED AT SECTION JSS(agcit205)1c 4 OF THIS AGREEMENT IS A REASONABLE ESTIMATE OF ASSIGNOR'S ACTUAL DAMAGES IN SUCH EVENT, CONSEQUENTLY, IN THE EVENT OF ASSIGNEE'S DEFAULT UNDER THIS AGREEMENT WHICH DEFAULT RESULTS IN ASSIGNEE'S FAILURE TO ACQUIRE THE SUBJECT PROPERTY, ASSIGNOR'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS ASSIGNMENT AND RETAIN ASSIGNEE'S DEPOSIT AS LIQUIDATED DAMAGES HEREUNDER. ASSIGNOR SPECIFICALLY WAIVES ANY RIGHTS UNDER SECTION 3389 OF THE CALIFORNIA CIVIL CODE. THE PARTIES HERETO INTEND THAT THE TERMS OF THIS SECTION 8.1 COMPLY WITH THE PROVISIONS OF SECTION 1676 OF THE CALIFORNIA CIVIL CODE. ASSIGNOR EXPRESSLY ACKNOWLEDGES AND AGREES THAT ASSIGNEE'S FAILURE TO ACQUIRE THE PROPERTY AS A RESULT OF ASSIGNEE'S DUE DILIGENCE PURSUANT TO SECTION 5 SHALL NOT CONSTITUTE AN EVENT OF DEFAULT, WHETHER ASSIGNEE TERMINATES THE AGREEMENT OUTRIGHT OR REQUESTS AND FAILS TO OBTAIN A PRICE REDUCTION FROM ASSIGNOR OR OTHER REVISIONS TO THIS AGREEMENT SATISFACTORY TO ASSIGNEE IN ITS SOLE REASONABLE DISCRETION, AND THAT TERMINATION PURSUANT TO SECTION 5 SHALL NOT ENTITLE ASSIGNOR TO LIQUIDATED DAMAGES OR ANY OTHER REMEDY AT LAW OR EQUITY. Assignor: Assignee: 8.2 Default by Assignor If escrow fails to Close due to Assignor's default hereunder, Assignee shall be entitled as its sole and exclusive remedies: (a) to terminate this Agreement and to receive the return of Assignee's Deposit or (b) to enforce specific performance of Assignor's obligation to assign /convey Assignor's Interest in the Purchase Agreement. Assignor acknowledges that Assignee would otherwise lack an adequate remedy at law for Assignor's default and thus the remedy of specific performance must be available to Assignee. If Assignee does not commence an action for specific performance within thirty (30) days of the scheduled Close of Escrow then the right to pursue Specific Performance shall be deemed to have terminated and Assignee shall be entitled only to return of Assignee's Deposit as a remedy. 9. Payment Upon Closing Assignor and Assignee agree that at the Closing, the balance of the Assignment Fee shall be due and payable to Assignor. Assignor and Assignee further agree that except as expressly stated in this Agreement to Assign, Assignee has no obligation to make any payments to Assignor in connection with Assignee's acquisition of the Property or assumption of the Purchase and Sale Agreement, including without limitation, for any expense incurred by Assignor in connection with the examination, appraisal or evaluation of the Property. Closing costs and title policy costs shall be allocated between Assignee and Seller in accordance with the provisions of the Purchase and Sale Agreement. In the event that such costs exceed those contemplated by the underlying Purchase and Sale Agreement (due to possible calculation based on Assignment Consideration as opposed to the underlying purchase price in the Purchase and Sale Agreement) Assignee shall be solely responsible for payment of the costs that exceed those contemplated by the Purchase and Sale Agreement. 10. Close of Escrow. In the event consent from Seller to this Agreement to Assign is timely obtained, then Escrow shall close under this Agreement to Assign pursuant to an "Assignment and Assumption" in the form attached hereto as Exhibit C. Escrow shall Close within five (5) days of the date of approval of a City of Dublin General Plan Amendment and Zoning Amendment by the City of Dublin as set forth in Section 7 of Exhibit B attached hereto, but in any event no later than October 31, 2013. Assignee acknowledges and agrees that it 4 JSS(agcit205)1c may be necessary to process the General Plan Amendment and Zoning Amendments as being effective only upon the City of Dublin taking title to the Property. In the event that consent of Seller to this Agreement to Assign is not obtained prior to June 5, 2013, as required by Section 6 herein, then Escrow shall Close pursuant to the terms and conditions contained in the "Future Purchase and Sale Agreement" attached hereto as Exhibit D. In the event that Assignee does not Close Escrow by October 31, 2013, Escrow shall terminate and Assignor shall retain the One Hundred Thousand Dollar ($100,000) Assignee's Deposit as its sole remedy. 11. Indemnity. Assignor shall indemnify, defend (with counsel approved by Assignee) and hold Assignee and its elected and appointed officers, officials, employees, agents, contractors and consultants (collectively, "Indemnitees ") harmless from and against any and all losses, damages, fines, deficiencies, penalties, claims, demands, suits, actions, causes of action, legal or administrative proceedings, judgments, costs and expenses (including without limitation reasonable attorneys' fees and court costs) or liabilities of any kind (all of the foregoing, collectively "Claims ") arising directly or indirectly in any manner in connection with or resulting from any failure of any of Assignor's representations or warranties set forth in this Assignment to be true and correct. The provisions of this Section 11 shall survive the close of escrow for the sale of the Property to Assignee and the termination of the Purchase and Sale Agreement. 12. Miscellaneous. This Agreement to Assign shall be binding upon and inure to the benefit of Assignor and Assignee and their respective successors and assigns. This Agreement to Assign shall be governed by and construed in accordance with the laws of the State of California, and may not be modified or amended in any manner other than by a written agreement signed by the party to be charged therewith. In the event of any litigation between Assignor and Assignee arising out of this Agreement to Assign, the prevailing party shall be entitled to reasonable attorneys' fees and costs incurred in such action. The Parties hereto represent and warrant to each other that they have authorized the execution of this Agreement to Assign by all requisite action and that the person(s) executing this Agreement to Assign on behalf of the parties hereto have been duly authorized to do so. This Agreement to Assign, together with the Exhibits attached hereto, which are incorporated herein by reference, contains the entire agreement between the Parties hereto with respect to the Purchase and Sale Agreement and the Property, and except as otherwise expressly provided herein, all prior negotiations or agreements, whether oral or written, are superseded and merged herein. If any provision of this Agreement to Assign shall be declared by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement to Assign shall not be affected thereby and shall remain valid and enforceable to the extent permitted by law. 13. Counterparts. This Agreement to Assign may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same instrument. Signatures delivered in electronic format (by e -mail in PDF format) or by facsimile shall be treated as originals. IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement to Assign as of the day and year first written above. JSS(agcit205)1c ASSIGNOR: U.P. Amador, LLC, a California limited liability company By: Name: Title: ASSIGNEE: City of Dublin, a California municipal corporation M ATTEST: APPROVED AS TO FORM: Joni Pattillo, City Manager Caroline Soto, City Clerk John Bakker, City Attorney 6 JSS(agcit205)lc EXHIBIT A PARCEL I An approximate 12.13 acre parcel north and south ofAmador Valley Boulevard, adjacent to the Iron Horse Regional Trail, extending north to the city limits with San Ramon and south to the Alamo Canal Trail. (APN 941 -2768- 006 -02) ASSESSOR'S MAP 941 1 f flip C� i. T4 2789 c«se:a.wr�.zsoai :zwocc uFtR. g7i9,uni I0TR. 5180wo c, fiUSDIVISION OF PLOT OF THE DOUGHERTY RANCHVrz - .: . zM a Cpyh� 1 EXHIBIT A TO AGREEMENT EXHIBIT A PARCEL 2 An approximate 2.13 acre parcel located at the south of Dublin Boulevard near the intersection of Scarlett Drive and north of Interstate 580. 3r+n a lmmr, � Map'bi min "Oftm Estate d Etiza h .Daugherlp SON: I "- 200 P.M.2Y65 uren (APN 941 - 0550 - 023 -04) January 15, 2013 Mr. Kevin Fryer MISSION VALLEY PROPERTIES 5000 Hopyard Road, Suite 170 Pleasanton, CA 94566 RE: NON - BINDING LETTER OF INTENT TO PURCHASE ( "LOI") — APPROXIMATELY 14.26 ACRES OF UNION PACIFIC LAND, RIGtrr -OF -WAY, DUBLIN, CALIFORNIA Dear Kevin: The following outlines the terms and conditions under which the City of Dublin would consider purchasing the above - referenced property through an Assignment of an existing Purchase and Sale Agreement, by and between Union Pacific Railroad as Seller and Mission Valley Properties as Buyer, subsequently assigned to its affiliate, UP Amador, LLC: 1. ASSIGNOR: UP Amador, LLC 2. ASSIGNEE. City of Dublin 3. SUBJECTPROPERTY.• Two parcels of Union Pacific Railroad right -of -way in Dublin, California. Parcel I) An approximate 12.13 acre parcel north and south of Amador Valley Boulevard, adjacent to the Iron Horse Regional Trail, extending north to the Dublin city limits with San Ramon and south to the Alamo Canal Trail. (APN 941 - 2768 - 006 -02) Parcel 2) An approximate 2.13 acre parcel located at the south of Dublin Boulevard near the intersection of Scarlett Drive and north of Interstate 580. (APN 941 -0550- 023 -04) Both parcels are outlined on "Exhibit A" attached hereto and are referred to herein as the "Subject Property". 4. PURCHASEPRICE. The Purchase Price shall total Four Million Six Hundred Fifty Thousand and No /100 Dollars ($4,650,000.00). S. DEPOSIT: Within two (2) business days after Assignee's approval of the Due Diligence Period; and the City Council approval of the proposed assignment, Assignee will execute the Assignment Agreement and make a deposit of One Hundred Thousand and No /100 Dollars ($100,000.00) ( "Deposit ") into escrow with First American Title Company, as Escrow Holder. The Deposit shall become non - refundable as Liquidated Damages, be applicable to EXHIBIT B TO AGREEMENT Mr. Kevin Fryer MISSION VALLEY PROPERTIES January 15, 2013 Page 2 the Purchase Price, and be immediately released by escrow holder to the Assignor. Should Assignor fail to gain approval from Union Pacific Railroad of the Assignment of its Purchase Agreement to Assignee prior to Close of Escrow, the Deposit shall be refunded to Assignee. 6. ASSIGNEE'S CONTINGENCIES AND DUE DILIGENCE PERIOD: Assignee shall have from full execution of this LOI until March 5, 2013 ( "Due Diligence Period ") within which to satisfy itself, in its sole and absolute discretion, as to the suitability of the Subject Property for Assignee's intended use, including, but not limited to, the satisfactory completion of the matters described in Paragraphs "A" through "F" below. A) Review and approve, or disapprove, of the May 12, 2012, Preliminary "Title Report and the conditions of title, as accepted by Mission Valley Properties, on the Subject Property; B) Review of documentation provided by Assignor regarding the condition of the Subject Property; C) Conduct and approve the results of physical inspections, Phase One and Phase Two Environmental Assessment, engineering, biological and geotechnical studies, and other feasibility studies as Assignee deems necessary.; D) Confirm that Parcel 2 is in conformance with the General Plan as an Industrial Land Use; E) Receipt of an ALTA Survey to be ordered by Assignee; and F) Approval by the City Council of the City of Dublin of the terms of the purchase at its meeting on March 5, 2013. 7. CLOSE OFESCROW.• Escrow shall close within five (5) days from approval of a General Plan Amendment and Zoning Amendment by the City of Dublin to amend the land use and zoning on Parcel 1 to Parks and Open Space, including the time until the CEQA statute of limitations expires to file a court challenge on the project approval, however, no later than October 31, 2013. Mr. Kevin Fryer MISSION VALLEY PROPERTIES January 15, 2013 Page 3 S. ESCROWAGENT.• Within five (5) days of execution of the Assignment Agreement, Assignee and Assignor shall open escrow at First American Title Company ( "Escrow Agent "), by depositing a fully executed Assignment Agreement with Assignee's Deposit. 9. DELIVERY OF DUE DILIGENCE MATERrALS. Within five (5) business days of the date this LOI, Assignor shall provide Assignee with all available pertinent documents and information affecting all, or part, of the Subject Property that are within Assignor's possession or reasonable control, including, but not limited to: tax bills, service contracts, permits, CC &R's, studies, governmental correspondence, appraisals, all licenses, warranties, any available "as built', architectural and /or engineering drawings for the Subject Property; notices received from any governmental entity, authority or agency alleging violations of any zoning, building, fire, health, safety, or environmental code applicable to the Subject Property; the existing title policy, existing plat or survey, and all existing environmental, structural and maintenance studies and reports (including without limitation, Phase One and Phase Two Environmental Studies) (collectively the "Disclosure Materials "). 10. RIGHT OFENTRY. Assignee shall have reasonable access to the Subject Property in order to perform due diligence, in accordance with the terms of a Right of Entry executed by Assignor and Assignee. 11. ASSIGNMENT AGREEMENT. Assignee will prepare an Assignment Agreement within ten (10) business days of full execution of this LOL 12. STANDSTILL AGREEMENT.• Following the execution of this LOT, Assignor shall not market, negotiate, nor enter into or solicit any agreements (to include, but not be limited to Letters of Intent, Non - Disclosure Agreements, and Purchase Agreements) for the sale of the Subject Property. This provision shall remain in full force and effect during the Contract negotiations between the parties hereto and until close of Escrow on Assignee's purchase of the Subject Property. 13. EXPIRATION. This Non - Binding Letter of Intent shall be valid until 5:00 p.m. on Friday, January 18, 2013. Mr. Kevin Fryer MISSION VALLEY PROPERTIES January 15, 2013 Page 4 This LOI is non - binding and intended solely as a summary of the terms currently proposed by the parties hereto. It is to be used for discussion purposes only. The parties acknowledge that neither of them intends to enter or has entered into, and nothing herein constitutes an agreement to negotiate a definitive future agreement. Both parties further acknowledge that no binding agreement will exist between them until a definitive future agreement has been prepared in writing and signed by both of them Assignee shall not have any contractual duties or implied covenants top Assignor, including but not limited to an implied covenant of good faith and fair dealing arising from this LOI. Any actions taken by Assignor in reliance on this LOl are at Assignor's own risk, cost and expense without recourse to Assignee. Prior to the City Council's approval of and the execution of such written definitive agreement, either party may and without any liability to the other party, unilaterally terminate all negotiations. In any event, each party shall be responsible for its own costs and expenses incurred in connection with these negotiations and with the preparation and execution of a definitive agreement. Sincerely, CITY OF DUBLIN ) 4 6 -kZZk Joni Pattillo City Manager J55(prfry116)j1/1c Attachments ACKNOWLEDGED AND ACCEPTED: ASSIGNOR: UP Amador, LLC BY: t NAME PRINTED: . .pij i 4vJ TITLE:° DATE: t L3 EXHIBIT A PARCEL 1 An approximate 12.13 acre parcel north and south of Amador Valley Boulevard, adjacent to the Iron Horse Regional Trail, extending north to the city limits with San Ramon and south to the Alamo Canal Trail. (APN 911- 2768- 006 -02) ASSESSOR'S MAP 941 2768 •wrce ^.4� �xd Iry COOAr No tMat 16496 m TR, 4719m *7R.5180 A - $UW.1Vt$IDN OF PLOT A OF THE DOUGHE:RTY RANCH.", 1 xrx := - eras wa EXHIBIT A PARCEL2 An approximate 2.13 acre parcel located at the south of Dublin Boulevard near the intersection of Scarlett Drive and north of Interstate 580. (APN 941- 0550 - 023 -04) .ays% %J roar - P,M IrMft sg �1 Map of ttrt "iy at ft Watt of Eliral h kDougheriy OIR f 3 � scare t °• 2 qc 1 } .. .... tY EXHIBIT C ASSIGNMENT AND ASSUMPTION THIS ASSIGNMENT AND ASSUMPTION ( "Assignment ") is made and entered into as of , 20, by and between ( "Assignor "), and ( "Assignee "). RECITALS A. ( "Owner "), as Seller, and Assignor, as Buyer, have entered into a Purchase and Sale Agreement dated , [as amended by ] ([together], the "Purchase Agreement "), pursuant to which Assignor agreed to purchase from Owner that certain real property, and improvements thereon, commonly known as Assessor's Parcel Number , located at , County, California (the "Property "). A copy of the Purchase Agreement is attached hereto as Exhibit A. B. Assignor and Assignee have entered into that certain Agreement to Assign and Assume Purchase and Sale Agreement and Escrow Instructions dated as of 2013 ( "Agreement to Assign." C. Assignor desires to assign to Assignee, and Assignee desires to acquire from Assignor, all of Assignor's right, title and interest in and to the Purchase Agreement (including, without limitation, the benefit of all the Deposits made by Assignor thereunder) such that Assignee will be able to "step into the shoes" of Assignor with respect to Assignor's rights and abilities to purchase the Property pursuant to the Purchase Agreement, and thereafter develop the Property. D. Owner's written consent to this assignment has been obtained, and all other conditions precedent to this assignment have been satisfied. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, Assignor and Assignee agree as follows: 1. Assignor hereby assigns, transfers, sells, grants and conveys to Assignee, and Assignee hereby accepts from Assignor, all of the Assignor's right, title and interest in and to the Purchase Agreement (including, without limitation, the benefit of the Deposits paid by Assignor thereunder). 2. Assignee hereby assumes the obligations of Assignor first arising under the Purchase Agreement on and after the date hereof, except that Assignee shall not assume any obligations or liability resulting from (i) the failure of Assignor to perform its obligations and duties under the Purchase Agreement accruing prior to the date hereof, (ii) any act or omission of Assignor, its agents, contractors, employees or authorized representatives in connection with the Purchase Agreement or any entry onto the Property by any such parties; or (iii) any claim made EXHIBIT C TO AGREEMENT 9 JSS(agcit205)1c against Assignee under any indemnity set forth in the Purchase Agreement which arises out of, or is attributable to, any act or omission of Assignor, or any of Assignor's contractors, consultants, agents, employees or authorized representatives (who are performing work on behalf of Assignor, and not Assignee). 3. Assignor shall continue to be responsible for any and all obligations or liability resulting, and shall indemnify Assignee and its elected and appointed officers, officials, employees, agents, contractors and consultants, from and against (i) the failure of Assignor to perform its obligations and duties under the Purchase Agreement accruing and which became due prior to the date hereof, (ii) any act or omission of Assignor, its agents, contractors, employees or authorized representatives in connection with the Purchase Agreement or any entry onto the Property by any such parties; or (iii) any claim made against Assignee under any indemnity set forth in the Purchase Agreement which arises out of, or is attributable to, any act or omission of Assignor, or any of Assignor's contractors, consultants, agents, employees or authorized representatives (who are performing work on behalf of Assignor, and not Assignee). 4. Assignee shall indemnify, defend and hold Assignor harmless from and against any and all loss, liability, expense, claim, damage and injury to person or property resulting from any breach by Assignee of any obligation assumed hereunder. 5. Except as may otherwise be provided in the Agreement to Assign and the certificates delivered pursuant thereto, the assignment and delegation of rights and obligations under the Purchase Agreement as provided in this Assignment is made by Assignor without warranties or representations, expressed or implied. 6. The validity, performance, and construction of this Assignment, and the relationship between the parties shall be governed and interpreted in accordance with the substantive laws of California, without regard to its choice of law rules. 7. To be binding on either party, any modifications to the terms contained in this Assignment must be in writing and be executed by authorized officers of each party. 8. In the event either party institutes any action, suit or proceeding (including arbitration proceeding) against the other party in connection with any dispute or matter arising under or relating to this Assignment, the prevailing party shall be entitled to recover from the other its reasonable attorneys' fees and costs, expert witness fees, and arbitration fees and costs, in addition to any award the prevailing party may receive. 9. This Assignment may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one instrument. (signature page follows) 10 JSS(agcit205)1c IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date first above written. 2059196.2 ASSIGNOR: ASSIGNEE: By: Name: Its: By: Name: Its: 11 JSS(agcit205)lc PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS Between U.P. AMADOR, LLC, A California limited liability company SELLER And THE CITY OF DUBLIN, a California municipal corporation BUYER DATED: , 2013 EXHIBIT D TO AGREEMENT First American Title Company ( "Escrow Holder ") 6683 Owens Drive Pleasanton, California 94588 Attention: Diane Burton Telephone: (925) 460 -8228 Facsimile: (866) 648 -7806 E -Mail: dburton @firstam.com Escrow No. Date of Opening of Escrow: PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (the "Agreement ") is made as of , 2011 ( "Execution Date "), by and between U.P. AMADOR, LLC, a California limited liability company ( "Seller "), and THE CITY OF DUBLIN, a California municipal corporation ( "Buyer "). RECITALS A. Seller's predecessor -in- interest, MVP Development California, LLC, a California limited liability company ( "MVP ") and Union Pacific Railroad Company, a Delaware corporation ( "Railroad "), entered into that certain Purchase and Sale Agreement and Escrow Instructions dated January 31, 2012 (as amended, the "Original PSA ") to provide for MVP's purchase of the "Property" and the "Trestle" as defined below. B. MVP Assigned the Original PSA to Seller. C. Seller and Buyer entered into that certain Agreement to Assign and Assume Purchase and Sale Agreement and Escrow Instructions dated March , 2013 (the "Master Agreement "). Pursuant to the terms of the Master Agreement, if Seller was unable to obtain Railroad's written consent to the assignment of the Original PSA from Seller to Buyer, then Seller and Buyer are required to enter into a "Future Purchase and Sale Agreement" to provide for Seller's sale of the Property and the Trestle to Buyer. D. Seller has not received Railroad's written consent to the assignment of the Original PSA to Buyer. Accordingly, Seller and Buyer are entering into this Agreement. ARTICLE 1 PROPERTY Seller agrees to sell to Buyer and Buyer agrees to purchase from Seller the real property in Dublin, Alameda County, California, shown on the print attached as Exhibit A (the "Property "), and the railroad trestle located at the south end of the Property south of Amador Valley Blvd. shown on Exhibit A (the "Trestle "), subject to the terms and conditions of this Agreement, Seller's acquisition of the Property and the Trestle from Railroad, any and all applicable federal, state and local laws, orders, rules, regulations, any and all outstanding rights 1 of record or open and obvious on the ground, and all matters in the form of Grant Deed attached as Exhibit B (the "Deed ") and the Bill of Sale attached as Exhibit C. ARTICLE 2 PURCHASE PRICE 2.1 Purchase Price The purchase price ( "Purchase Price ") for the Property is FOUR MILLION SIX HUNDRED FIFTY THOUSAND DOLLARS ($4,650,000.00). 2.2 Payment of Purchase Price. Buyer shall pay the Purchase Price as follows: 2.2.1 Deposit. In connection with the Master Agreement, Buyer has delivered to Seller outside of escrow the sum of ONE HUNDRED THOUSAND AND NO /100" DOLLARS ($100,000.00) as a deposit (the "Deposit ") toward the Assignment Fee (as defined in the Master Agreement). The Deposit is nonrefundable except in the event of a material default by Seller or termination of this Agreement pursuant to Article 10. The Deposit will be applied towards the Purchase Pri ce at Closing (as defined in Section 8.2.1). 2.2.2 Balance. On the earlier to occur of (i) two (2) business days following Buyer's exercise of Buyer's Notice to Close (as defined in Section 8.2.1) or (ii) two (2) business days prior to the Closing Date (as defined in Section 8.2.1), Buyer shall deliver to Escrow Holder a sum equal to the Purchase Price, together with Buyer's share of prorations and costs of Escrow as provided in Sections 8.6 through 8.8, less the amount of the Deposit. Buyer shall pay such sum by cashier's or certified check drawn upon a California financial institution, or by a wire transfer of U.S. funds for immediate credit. 2.3 Deposit as Liquidated Damages. IN THE EVENT THE SALE OF THE PROPERTY IS NOT CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF BUYER, ESCROW HOLDER MAY BE INSTRUCTED BY SELLER TO CANCEL THE ESCROW. IF ESCROW IS CANCELLED, THEN SELLER WILL THEREUPON BE RELEASED FROM ITS OBLIGATIONS UNDER THIS AGREEMENT. THE DEPOSIT WILL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES, BUYER SHALL DELIVER TO SELLER ALL OF THE MATERIALS REQUIRED TO BE DELIVERED TO SELLER PURSUANT TO SECTION 3.2. IN THE EVENT OF A DEFAULT BY BUYER AS AFORESAID, BUYER SHALL PAY ALL TITLE, SURVEY AND ESCROW CANCELLATION CHARGES. THE PARTIES ACKNOWLEDGE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A DEFAULT BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR SIGNATURES OR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT, THE ACTUAL TITLE, SURVEY AND ESCROW CANCELLATION CHARGES AND BUYER'S DELIVERY OF THE MATERIALS DESCRIBED IN SECTION 3.2 HAVE BEEN AGREED UPON, AFTER NEGOTIATION, AS REASONABLE LIQUIDATED DAMAGES PURSUANT TO THE TERMS HEREOF AND CALIFORNIA CIVIL CODE SECTIONS 1671 AND 1677 AND WILL CONSTITUTE SELLER'S EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF A DEFAULT ON THE PART OF BUYER PROVIDED THE DEPOSIT IS RELEASED TO SELLER AS 2 AFORESAID. SELLER WAIVES THE REMEDY OF SPECIFIC PERFORMANCE AND THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 2.3, BUYER AND SELLER ACKNOWLEDGE AND AGREE THAT IN THE EVENT OF A DEFAULT BY BUYER, THE OBLIGATIONS OF AND INDEMNITY BY BUYER IN SECTION 3.2, THE CONFIDENTIALITY PROVISIONS OF SECTION 12.22 AND THE PROVISIONS OF SECTIONS 9.3 AND 12.21 (HEREAFTER "SURVIVING OBLIGATIONS ") WILL NOT BE LIMITED, IMPAIRED OR OTHERWISE AFFECTED BY ANY TERMINATION OF THIS AGREEMENT OR ANY LIQUIDATED DAMAGES RECEIVED BY SELLER PURSUANT TO THIS SECTION 2.3 AS A RESULT OF SUCH DEFAULT. SELLER: BUYER: 2.4 Waiver of Right to Record Lis Pendens. AS A MATERIAL CONSIDERATION FOR SELLER ENTERING INTO THIS AGREEMENT, BUYER EXPRESSLY WAIVES (A) ANY RIGHT UNDER CALIFORNIA CODE OF CIVIL PROCEDURE, PART II, TITLE 4.5 (SECTION 405 — 405.61) OR AT COMMON LAW OR OTHERWISE TO RECORD OR FILE A LIS PENDENS OR A NOTICE OF PENDENCY OF ACTION OR SIMILAR NOTICE AGAINST ALL OR ANY PORTION OF THE PROPERTY, (B) ITS RIGHT TO SPECIFIC PERFORMANCE IN CONNECTION WITH ANY ALLEGED DEFAULT BY SELLER HEREUNDER AND (C) ITS RIGHT TO BRING ANY ACTION THAT WOULD IN ANY WAY AFFECT TITLE TO OR THE RIGHT OF POSSESSION OF ALL OR ANY PORTION OF THE PROPERTY. BUYER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. BUYER ACKNOWLEDGES AND AGREES THAT PRIOR TO THE ACTUAL CLOSE OF ESCROW, BUYER DOES NOT AND WILL NOT HAVE ANY RIGHT, TITLE AND /OR INTEREST IN THE PROPERTY OR ANY PORTION THEREOF. BUYER AND SELLER HEREBY EVIDENCE THEIR SPECIFIC AGREEMENT TO THE TERMS OF THIS WAIVER BY PLACING THEIR SIGNATURES OR INITIALS IN THE PLACE PROVIDED BELOW. SELLER: BUYER: ARTICLE 3 AS IS SALE; RELEASE AND INDEMNITY; INSPECTION 3.1 As Is Sale, Release and Indemnity 3.1.1 "As Is" Sale. Buyer and its representatives, prior to the Closing Date, will have been afforded the opportunity to make such inspections of the Property and matters related thereto as Buyer and its representatives desire, including, without limitation, governmental laws and regulations to which the Property is subject. Buyer shall accept the Property upon the basis of its review and determination of the applicability and effect of such laws and regulations. 3 Buyer acknowledges and agrees that the Property is to be sold and conveyed to and accepted by Buyer in an "as is" condition with all faults, and that the Property has been used for, among other things, railroad right -of -way purposes. Buyer further acknowledges that Buyer has received, reviewed and is knowledgeable of the matters contained in the report listed on Exhibit D attached hereto and made a part hereof, including, without limitation, the Natural Hazard Area Report (collectively, the "Property Materials "). Seller makes no representation or warranty as to the accuracy or completeness of the Property Materials. Except as expressly set forth in this Agreement, Seller does not make any representations or warranties of any kind whatsoever, either express or implied, with respect to the Property or any of such related matters; in particular, but without limitation, Seller makes no representations or warranties with respect to the use, condition, title, occupation or management of the Property, compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters, compliance with covenants, conditions and restrictions (whether or not of record), other local, municipal, regional, state or federal requirements, or other statutes, laws, codes, ordinances, regulations or requirements (collectively, "Condition of the Property "). Buyer acknowledges that it is entering into this Agreement on the basis of Buyer's own investigation of the physical and environmental conditions of the Property, including the subsurface conditions and Buyer assumes the risk that adverse physical and environmental conditions may not have been revealed by its investigation. 3.1.2 Release. BUYER, FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES SELLER, SELLER'S EMPLOYEES, AGENTS, OR ANY OTHER PERSON ACTING ON BEHALF OF SELLER, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, DIRECT OR INDIRECT, WHICH BUYER NOW HAS OR WHICH BUYER MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE CONDITION OF THE PROPERTY AND THE TRESTLE, INCLUDING, WITHOUT LIMITATION, THE KNOWN OR UNKNOWN PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PROPERTY AND THE TRESTLE (INCLUDING, WITHOUT LIMITATION, ANY CONTAMINATION IN, ON, UNDER OR ADJACENT TO THE PROPERTY AND THE TRESTLE BY ANY HAZARDOUS OR TOXIC SUBSTANCE OR MATERIAL), OR ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION APPLICABLE THERETO, INCLUDING, WITHOUT LIMITATION, THE TOXIC SUBSTANCES CONTROL ACT, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AND THE RESOURCE CONSERVATION AND RECOVERY ACT. THE FOREGOING APPLIES REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF SELLER, ITS AFFILIATES, THEIR EMPLOYEES, AGENTS, OFFICERS, SUCCESSORS OR ASSIGNS. WITH RESPECT TO THE FOREGOING RELEASE, BUYER EXPRESSLY WAIVES THE BENEFITS AND PROTECTIONS OF SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, WHICH READS AS FOLLOWS: 1542. Certain Claims Not Affected by General Release. A general release does not extend to claims which the creditor does not know or suspect to exist E in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. BUYER HEREBY EVIDENCES ITS SPECIFIC AGREEMENT TO THE TERMS OF THIS RELEASE BY PLACING ITS SIGNATURE OR INITIALS BELOW. Buyer's Initials 3.1.3 Indemnity. FROM AND AFTER CLOSING, BUYER SHALL, TO THE MAXIMUM EXTENT PERMITTED BY LAW, INDEMNIFY, DEFEND AND SAVE HARMLESS SELLER, ITS AFFILIATES, THEIR EMPLOYEES, AGENTS, OFFICERS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, CAUSES OF ACTION, LEGAL OR ADMINISTRATIVE PROCEEDINGS, CLAIMS, DEMANDS, FINES, PUNITIVE DAMAGES, LOSSES, COSTS, LIABILITIES AND EXPENSES, INCLUDING ATTORNEY'S FEES, IN ANY WAY ARISING OUT OF OR CONNECTED WITH THE CONDITION OF THE PROPERTY AND THE TRESTLE, INCLUDING, WITHOUT LIMITATION, THE KNOWN OR UNKNOWN PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PROPERTY AND THE TRESTLE (INCLUDING, WITHOUT LIMITATION, ANY CONTAMINATION IN, ON, UNDER OR ADJACENT TO THE PROPERTY AND THE TRESTLE BY ANY HAZARDOUS OR TOXIC SUBSTANCE OR MATERIAL), OR ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION APPLICABLE THERETO, INCLUDING, WITHOUT LIMITATION, THE TOXIC SUBSTANCES CONTROL ACT, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AND THE RESOURCE CONSERVATION AND RECOVERY ACT. THE FOREGOING APPLIES REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF SELLER, ITS AFFILIATES, THEIR EMPLOYEES, AGENTS, OFFICERS, SUCCESSORS OR ASSIGNS. 3.1.4 Survival. The provisions of this Section 3.1 will survive the Closing and the delivery of the Deed. 3.1.5 Additional and Independent Consideration. The release and indemnity by Buyer under this Section 3.1 are additional and independent consideration to Seller for the sale and purchase of the Property, without which Seller would not sell the Property for the Purchase Price. 3.2 Inspection 3.2.1 Buyer acknowledges that, in connection with the Master Agreement, Buyer and its representatives (including architects and engineers) have had the right to enter upon and inspect the Property and the Trestle and conduct such boundary and topographic surveys, soil and engineering tests and environmental assessments with engineers or consultants licensed in the State of California as Buyer reasonably required. Buyer has completed all investigations of the Property and the Trestle that Buyer has deemed necessary or desirable and, 5 by proceeding under the Master Agreement following the expiration of the Due Diligence Period provided for in Section 5 of the Master Agreement, Buyer has approved of the condition of the Property and the Trestle. 3.2.2 Intentionally deleted. 3.2.3 Buyer shall indemnify, hold harmless and defend (with counsel acceptable to Seller) Seller and Seller's affiliates ( "Seller's affiliates" means any corporation which directly or indirectly controls or is controlled by or is under common control with Seller), its and their officers, agents servants and employees against and from any and all liability, loss, cost, damage or expense (including, without limitation, attorneys' fees) of whatsoever nature growing out of or in connection with personal injury to or death of persons whomsoever (including, without limitation, exposure to hazardous or toxic substances), or loss or destruction of or damage to property whatsoever (including, without limitation, contamination by hazardous or toxic substances and any required testing, removal or cleanup thereof), where such personal injury, death, loss, destruction or damage arises in any way in connection with or incident to the occupation or use of the Property or the Trestle by, or the presence thereon of, Buyer, its officers, agents or employees before Closing and occurs from any such cause. 3.2.4 Intentionally deleted. 3.2.5 Buyer shall pay in full for all materials joined or affixed to the Property and for all persons who perform labor upon the Property, and must not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the Property for any work done or materials furnished thereon at the instance or request or on behalf of Buyer. Buyer shall indemnify, hold harmless and defend (with counsel acceptable to Seller) Seller and Seller's affiliates, its and their officers, agents, servants and employees against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed or materials furnished before Closing. 3.2.6 The indemnity obligations of Buyer under this Section will survive any termination of this Agreement or the delivery of the Deed and the transfer of title. ARTICLE 4 TITLE TO PROPERTY 4.1 Title. At the Closing (as defined in Section 8.2.1), Seller shall execute and deliver to Buyer the Deed to the Property in the form of Exhibit B attached hereto. Title will be evidenced by the issuance by First American Title Insurance Company ( "Title Company ") of a CLTA Standard Coverage Owner's Policy of Title Insurance in the full amount of the Purchase Price (the "Title Policy "), insuring fee simple title to the Property in Buyer, subject only to: delinquent; 4.1.1 A lien to secure payment of real property taxes and assessments, not It 4.1.2 Matters affecting the condition of title created or permitted to be created by or with the written consent of Buyer; 4.1.3 Standard exceptions in the Title Policy, and exceptions that are disclosed by the Title Report described in Section 5.1 or any supplementary report and that are approved or deemed approved by Buyer in accordance with Section 5.1; 4.1.4 Any other exceptions or reservations set forth in the Deed; and 4.1.5 Those certain leases or licenses identified in the records of Seller as follows: (a) Pipeline Crossing Agreement dated July 11, 2006 between Railroad and Dublin San Ramon Services District, identified in the records of Railroad as Lease Audit No. 241028, Folder 2401 -86, for a 12" water pipeline crossing; (b) License Agreement dated April 8, 1980 between Southern Pacific Transportation Company and Viacom Cablevision, identified in the records of Railroad as Lease Audit No. 190058, for a 3" underground television cable, (c) Application dated December 15, 1967 from The Pacific Telephone and Telegraph Company to install underground steel conduit under railroad right - of -way, identified in the records of Railroad as Audit No. 156511; (d) Application dated June 24, 1977 from The Pacific Telephone and Telegraph Company to install one underground 4" galvanized steel conduit under railroad right -of -way, identified in the records of Railroad as Audit No. 182789; (e) Indenture dated January 18, 1984 between Southern Pacific Transportation Company and the City of Dublin, identified in the records of Railroad as Lease Audit No. 201069, for storm sewer facilities; (f) Wire Line Crossing dated September 17, 1970 between Southern Pacific Company (predecessor in interest to Southern Pacific Transportation Company) and Pacific Gas and Electric Company, identified in the records of Railroad as Lease Audit No. 164510; (g) Application dated November 14, 1974 to Southern Pacific Transportation Company from The Pacific Telephone and Telegraph Company for an aerial cable over railroad right -of -way, identified in the records of Railroad as Lease Audit No. 174446; (h) Lease Audit No. S201070 with Dublin San Ramon Services District; 7 (i) Lease Audit No. S188410 with the County of Alameda; 0) Lease Audit No. 5155779 with the County of Alameda, for a public road crossing; and (k) Lease Audit No. 5203170 with GTE for a wireline crossing; (collectively, the "Licenses "). At Closing, the Licenses will be assigned by Seller to and assumed by Buyer to the extent the Licenses affect the Property, by duly executed Assignment and Assumption Agreement (the "Assignment of Licenses ") in the form attached as Exhibit E. Rentals and other payments under the Licenses, if any, shall be prorated between Seller and Buyer as of the date of Closing. 4.2 Unidentified Licenses. Buyer acknowledges that the Property may be subject to other licenses and third party rights ( "Unidentified Licenses ") that have not been identified by Seller to Buyer from Seller's review of the records provided to Seller by Railroad or of the records of Railroad not provided to Seller. It is the responsibility of Buyer to determine if any of these Unidentified Licenses exist. If any Unidentified License that affects the Property is identified after the Execution Date, Seller's rights (including, without limitation, any income) and obligations under such License will be assigned to and assumed by Buyer at or after Closing to the extent such License affects the Property, by duly executed Assignment and Assumption Agreement in the form of Exhibit E. Any Unidentified License(s) discovered by Buyer after Closing will be assigned to and assumed by Buyer by duly executed Assignment and Assumption Agreement in the form of Exhibit E. 4.3 Extended Coverage. Buyer, at its option and at its sole cost and expense, may obtain ALTA extended coverage and /or an ALTA survey, provided, however, that the failure to obtain such extended coverage will not be a condition to nor delay the Close of Escrow beyond the Closing Date, and that Seller will not be required to assume any obligations or liabilities in addition to Seller's obligations and liabilities under this Agreement. ARTICLE 5 BUYER'S CONDITIONS TO CLOSING The following are conditions precedent to Buyer's obligation to purchase the Property: 5.1 Approval of Title. Buyer acknowledges that, in connection with the Master Agreement, Buyer has previously reviewed the condition of title to the Property and the Trestle and is satisfied with the results of such review. 5.2 Cable. Time Warner may have located fiber optic cable on the Property in error. Such fiber optic cable should have been installed on abutting Alameda County property, and Alameda County was to notify Time Warner to relocate the fiber optic cable to the Alameda County property. Seller does not have knowledge that Alameda County or Time Warner has relocated the fiber optic cable to Alameda County property as of the date of this Agreement. It is n. the responsibility of Buyer to have the surveyor locate such fiber optic cable. If any Time Warner fiber optic cable is found to be located on the Property, any relocation should be at the expense of Alameda County, and Seller shall have no responsibility or incur any cost or expense for any such relocation. 5.3 Feasibility Review. Prior to the Execution Date, Buyer has approved the condition of the Property, the feasibility of the Buyer's development plan therefor, and any other factors that Buyer deems relevant in connection with the purchase, ownership and development of the Property. 5.4 Government/Tentative Parcel Map Approvals. Prior to the Close of Escrow, Buyer, at its sole cost and expense, shall use commercially reasonable efforts to obtain all necessary governmental approvals, exemptions, permits, zoning changes, general plan amendments and entitlements ( "Governmental Approvals ") for Buyer's intended use of the Property for public park purposes. In no event shall Buyer take any action (nor shall Seller be required to take any action) in connection with such Governmental Approvals which would (i) affect in any manner whatsoever Railroad's adjacent property, (ii) encumber the Property prior to Closing, (iii) or obligate Railroad as owner of the Property (or Seller as owner of the Property after its acquisition of the Property) or otherwise to pay money, construct improvements or dedicate any interest in real property. Neither Railroad nor Seller shall be required to execute any applications or to assume any obligations whatsoever thereunder. Any approvals obtained by Buyer shall expressly provide that they shall be null and void and shall not be filed for record unless and until the sale and purchase of the Property shall close pursuant to this Agreement. If Buyer fails to obtain such Governmental Approvals, Buyer may terminate this Agreement by giving Seller notice of such termination; provided, however, that in such event, the Deposit shall be retained by Seller, and neither party will have any further rights or obligations under this Agreement (except for the Surviving Obligations). 5.5 Compliance by Seller. Seller will have complied with each and every condition and material covenant of this Agreement to be kept or complied with by Seller. ARTICLE 6 SELLER'S CONDITIONS TO CLOSING The following are conditions precedent to Seller's obligation to sell the Property. 6.1 Seller Shall Have Acquired the Property. The terms and conditions of this transaction are subject to Seller's acquisition of the Property on or before the Closing Date pursuant to the Original PSA. If this Agreement is terminated due to Seller not having acquired the Property from Railroad, the Deposit will be returned to Buyer and neither party will have any further rights or obligations under this Agreement (except for the Surviving Obligations). 6.2 Assumption of Grading Obligation. At Closing, Seller shall assign and Buyer shall assume the obligations of Seller under Section 10 of that certain Real Property Purchase Contract - County of Alameda, dated November 27, 1985 (the "Alameda Contract "), between Southern Pacific Transportation Company and the County of Alameda, a copy of which is E attached hereto as Exhibit F and made a part hereof, as it relates to the Property to provide a compacted and engineered subgrade to the Property as referenced in Section 10 of the Alameda Contract or to provide the County of Alameda a cash or surety bond to cover the cost of said subgrade. Such assignment by Seller and assumption by Buyer of the grading obligation shall be in the form of the Assignment and Assumption Agreement attached hereto as Exhibit G and hereby made a part hereof ( "Assignment of Grading Obligations "). 6.3 Compliance by Buyer. Buyer will have complied with each and every condition and material covenant of this Agreement to be kept or complied with by Buyer. ARTICLE 7 SUBDIVISION MAP ACT 7.1 Subdivision Compliance. This Agreement is expressly conditioned upon compliance with the California Subdivision Map Act ( "Subdivision Compliance "). If the Property is not already in compliance, Buyer shall undertake and use commercially reasonable efforts to pursue, at its sole cost and expense, such action as may be necessary to effect Subdivision Compliance. In the event that Buyer has not effected such Subdivision Compliance on or before the expiration of Governmental Approval Period, this Agreement shall automatically terminate, Buyer shall bear all escrow cancellation and similar fees, the Deposit will be returned to Buyer, and neither party will have any further rights or obligations (except for the Surviving Obligations). 7.2 Seller's Cooperation. In connection with Buyer pursuing Subdivision Compliance, Seller shall use commercially- reasonable efforts to cause Railroad to cooperate in good faith by executing necessary documents, provided, however, that neither Seller nor Railroad shall be required to incur any cost or expense in connection therewith and that any action Buyer desires Seller or Railroad to take shall be reasonably acceptable to Seller and Railroad as to substance and legal form. In no event shall Buyer take any action (nor shall Seller or Railroad be required to take any action) in connection with such Subdivision Compliance which would (a) affect in any manner whatsoever Railroad's adjacent property, (b) encumber the Property prior to Closing of Escrow, (c) obligate Seller as owner of the Property or otherwise or Railroad to pay money, construct improvements or dedicate any interest in real property, or (d) detrimentally affect the value, use or development of the Property or Railroad's adjacent property. ARTICLE 8 OPENING AND CLOSING OF ESCROW 8.1 Opening of Escrow and Escrow Instructions. Upon execution of this Agreement, the parties shall deposit three (3) executed counterparts of this Agreement with Escrow Holder and this instrument will serve as the instructions to Escrow Holder for consummation of the purchase and sale contemplated hereby, including Escrow Holder's general provisions which are contained in Exhibit H attached hereto to the extent said general provisions do not conflict with the provisions contained in these Escrow Instructions. Escrow Holder shall insert the date of the 10 Opening of Escrow on the upper right hand corner of the first page of this Agreement on each of the three counterparts. The Opening of Escrow is the date upon which Escrow Holder has received executed counterparts of this Agreement from both Buyer and Seller and has received the Deposit from Buyer. Escrow Holder shall deliver to both Buyer and Seller a set of counterparts of the Agreement executed by Buyer, Seller and Escrow Holder and shall retain a set in Escrow. Escrow Holder is responsible only for undertaking such matters in conjunction with the Closing as are specifically provided for in this Agreement or in any additional or supplementary escrow instructions delivered by the parties. 8.2 Closing. 8.2.1 Closing Date. The consummation of the transaction contemplated by this Agreement and recording of the Deed (the "Closing" or "Close of Escrow ") will occur and delivery of all items to be made at the Closing under the terms of this Agreement will be made immediately following (on the same business day) Seller's acquisition of the Property from Railroad. In no event shall the Closing Date occur later than March 5, 2014. Buyer shall have the right to provide written notice to Seller ( "Buyer's Notice to Close "), indicating that Buyer has obtained the Governmental Approvals and elects to cause the Closing to occur on a date to be specified by Buyer, which shall be no sooner than fifteen (15) days following Seller's receipt of Buyer's Notice to Close. Upon receipt of Buyer's Notice to Close, Seller shall use commercially- reasonable efforts to cause Railroad to proceed with the closing under the Original PSA on the date specified in Buyer's Notice to Close; provided, however, that if Railroad will not or cannot close on such date, the Closing shall occur on the earliest date that Railroad will agree to cause the closing under the Original PSA to occur. Seller shall have no liability to Buyer due to Railroad's refusal to close under the Original PSA on any particular date. 8.2.2 Preclosing Conditions. Provided that Escrow Holder can comply with these instructions, that Escrow Holder has received the deliveries described in Sections 8.3 and 8.4 below, that Escrow Holder has not received prior written notice from a party that any condition to such party's obligations has not been fulfilled, or that Buyer has elected to terminate its rights and obligations under this Agreement pursuant to Article 5 or Seller has elected to terminate its rights and obligations under this Agreement pursuant to Article 6 and the Title Company has issued or is unconditionally prepared to issue to Buyer, as of the Closing Date, the Title Policy, then Escrow Holder is authorized and instructed to (a) record the Deed, (b) deliver the Purchase Price to Seller, less prorations and costs of Escrow in accordance with Section 8.6, (c) deliver a conformed copy of the recorded Deed, a fully executed counterpart of each of the Bill of Sale and the Assignment of Leases, and a fully executed counterpart of the Assignment of Grading Obligations to Buyer and Seller, and (d) deliver the closing statements to Buyer and Seller in accordance with Section 8.2.4. Escrow Holder is instructed to request that the amount of the documentary transfer tax due be shown on a separate paper and affixed to the Deed by the County Recorder after the permanent record is made, which request must be in the form of Exhibit I. 8.2.3 Failure to Close. If the Closing does not occur on or before the Closing Date, then either party not then in default may elect to terminate this Agreement and cancel Escrow by giving written notice of such termination and cancellation to the other party and to 11 Escrow Holder. In the event of such termination and cancellation, neither party will have any further obligations hereunder (other than the Surviving Obligations) and, unless the Escrow fails to close due to (a) a material default by Seller, (b) the failure of a condition precedent to Buyer's obligations hereunder, or (c) termination of this Agreement pursuant to Article 10, the Deposit and any interest accrued thereon will be paid to or retained by Seller, and all documents and other instruments must be returned to the party depositing the same into Escrow. If neither party is in default, then Buyer and Seller will share equally the cost of cancellation of Escrow. If only one of the parties hereto is in default or if this Agreement expressly so provides, then such defaulting party shall pay for the entire cost of cancellation of Escrow. The termination of this Agreement and cancellation of Escrow will be without prejudice to whatever legal rights, as such rights may be limited by the terms of this Agreement, that Buyer or Seller may have against each other arising out of this Agreement and the Escrow. If neither party so elects to terminate this Agreement and cancel Escrow, Escrow Holder shall close the Escrow as soon as possible. 8.2.4 Notification; Closing Statements. If Escrow Holder cannot comply with the instructions in this Agreement and to be provided, Escrow Holder is not authorized to cause the recording of the Deed or close this Escrow. If Escrow Holder is unable to cause the recording of the Deed, Escrow Holder shall notify Ravi Nandwana at (925) 467 -9900 and at , without delay. If Escrow Holder is able to comply with the instructions herein and to be provided, at the Closing Escrow Holder shall deliver to Seller at the addresses provided in Section 12.9 a true, correct and complete copy of the Seller's closing statement, in the form customarily prepared by Escrow Holder and shall deliver to Buyer at the address provided in Section 12.9 a true, correct and complete copy of Buyer's closing statement, in the form customarily prepared by Escrow Holder. 8.3 Deliveries by Seller. Not later than three (3) business days prior to the Closing Date, Seller shall deposit with Escrow Holder the following items: 8.3.1 Deed. The Deed in the form of Exhibit B duly executed and acknowledged by Seller. 8.3.2 Bill of Sale. The Bill of Sale in the form of Exhibit C duly executed and acknowledged by Seller. 8.3.3 Assignment of Licenses. The Assignment of Licenses in the form of Exhibit E duly executed by Seller. 8.3.4 Assignment of Grading Obligations. The Assignment of Grading Obligations in the form of Exhibit G duly executed by Seller. 8.3.5 Transfer Tax Letter. The Transfer Tax Letter duly executed by Seller in the form of Exhibit I. 8.3.6 Non - Foreign Status Certificate. A Non - Foreign Status Certificate pursuant to Internal Revenue Code Section 1445 duly executed by Seller. 12 8.3.7 California Form 593 -C. California Form 593 -C (Real Estate Withholding Certificate) duly executed by Seller. 8.3.8 Other Documents. Any other documents, instruments, data, records, correspondence or agreements called for under this Agreement that have not previously been delivered. 8.4 Deliveries by Buyer. Not later than three (3) business days prior to the Closing Date (or such other time specified below), Buyer shall deposit with Escrow Holder the following items: 8.4.1 Purchase Price. A sum, including the Deposit, in an amount equal to the Purchase Price, plus Buyer's share of the prorations and costs of Escrow that are required pursuant to this Article 8 to close Escrow. Buyer acknowledges that the delivery of the Purchase Price proceeds is required in order to permit a "double escrow" pursuant to which Buyer's funds shall be used to pay the purchase price to Railroad under the Original PSA and agrees that such funds can be used for such purposes as long as Escrow Holder is unconditionally prepared to record the Deed and issue the Title Policy to Buyer. 8.4.2 Bill of Sale. The Bill of Sale in the form of Exhibit C duly executed by Buyer. 8.4.3 Assignment of Licenses. The Assignment of Licenses in the form of Exhibit E duly executed by Buyer. 8.4.4 Assignment of Grading Obligations. The Assignment of Grading Obligations in the form of Exhibit G duly executed by Buyer. 8.4.5 Other Documents. Any other documents, instruments, data, records, correspondence or agreements called for under this Agreement that have not been previously delivered. 8.5 Other Instruments. Seller and Buyer shall each deposit such other instruments and take such other actions as are reasonably required by Escrow Holder or otherwise required to close the Escrow and consummate the purchase of the Property in accordance with the terms of this Agreement. 8.6 Prorations. All revenues and expenses of the Property, including, without limitation, real property taxes, special taxes, assessments and utility fees and /or deposits will be prorated and apportioned between Buyer and Seller as of 12:01 a.m. on the Closing Date, so that Seller bears all expenses with respect to the Property and has the benefit of all income with respect to the Property through and including the date immediately preceding the Closing Date. Seller and Buyer agree that any of the aforesaid prorations that cannot be calculated accurately as of the Closing Date will be prorated on the basis of the parties' reasonable estimates, and will be recomputed between Seller and Buyer when actual tax statements for the year of Closing are received, and either party owing the other party a sum of money based on such subsequent 13 proration adjustment will promptly pay said sum to the other party, and, if payment is not made within ten (10) days after delivery of a bill therefor, will pay interest thereon at the lesser of the rate of ten percent (10 %) per annum or the highest rate permitted by law, from the Closing Date to the date of payment. If the real property taxes on the Property are assessed as part of Railroad's State Board of Equalization ( "SBE ") assessment in Alameda County, California, then Seller may collect from Buyer at Closing Buyer's share of such real property taxes from the date of Closing through the period ending on June 30 after the January 1 following the date of Closing, and Railroad shall then pay when due Railroad's SBE assessment; provided, however, that Seller may collect such funds only to the extent and in the amount that Seller is required to pay such sums to Railroad at the Closing under the Original PSA. For example, if Closing occurs on December 31, 2013, then Seller may collect real property taxes from December 31, 2013 to and including June 30, 2014, or if Closing occurs on January 30, 2014, then Seller may collect such taxes from January 30, 2014 through and including June 30, 2015. 8.7 Special Taxes, Bonds or Assessments. If, at the time of Closing, any portion of the Property is affected by an assessment or other charge, whether for taxes or bonds, or interest thereon, which is or may become payable in installments, and an installment payment of such assessment is then a lien, then such installment will be prorated as of midnight at the end of the day preceding the Close of Escrow. All installments not then yet due whether or not the same have been prepaid will not be prorated and Buyer shall assume such bonds or assessments. Any prepaid assessments made in advance of its due date will be credited to Seller solely to the extent the same were credited to Railroad in connection with the closing under the Original PSA. In addition, Buyer shall assume any and all future bonds, assessments, special taxes, fees or charges applicable to the Property for liabilities now or hereafter imposed by any governmental authority (collectively referred to as "Governmental Requirements ") including, without limitation, those for (a) common area improvements, whether or not specifically set forth in this Agreement, (b) local assessment or improvement districts, (c) any special tax assessments, (d) traffic mitigation improvements, (e) park and recreation fees, and /or (f) any other public facility infrastructure or traffic mitigation required or imposed by the City of Dublin. Buyer shall assume all such bonds or future assessments without offset or adjustment. 8.8 Costs and Expenses. The costs and expenses of Escrow upon Close of Escrow will be allocated as follows: Seller shall pay the cost of any county documentary or other transfer taxes applicable to the sale and one -half (1/2) of any city documentary or other taxes applicable to the sale. Buyer shall pay all other recording charges, the premium for the Owner's Policy of Title Insurance, one -half (1/2) of any city documentary or other taxes applicable to the sale, and all other standard costs and charges of the Escrow. 8.9 Disbursement of Funds. On the Close of Escrow, Escrow Holder shall disburse the Purchase Price less (a) the Deposit; (b) Seller's share of prorations as determined pursuant to Section 8.6; (c) Seller's share of costs of Escrow pursuant to Section 8.8; and (d) the portion of the Purchase Price paid to Railroad as the purchase price under the Original PSA, in immediately available funds, and, unless otherwise instructed by Seller, Escrow Holder shall cause such funds to be sent to Seller pursuant to separate written instructions. 14 8.10 Delivery of Documents. Upon the Close of Escrow, Escrow Holder shall promptly deliver all instruments and documents to such party's attorney specified in Section 12.9, and if no attorney is specified, then to such party directly. Escrow Holder shall promptly deliver to the party entitled thereto the recorded originals of such instruments or documents upon Escrow Holder's receipt of the same. 8.11 Supplemental Taxes. Seller and Buyer acknowledge that the Property may be subject to supplemental taxes due as a result of change of ownership taking place through this Escrow. Any necessary adjustment due either party on receipt of a supplemental tax bill will be made by the parties outside of this Escrow and Escrow Holder is released of any liability in connection with same. ARTICLE 9 REPRESENTATIONS, WARRANTIES AND COVENANTS; POST -SALE CONDITIONS 9.1 Representations, Warranties and Covenants of Seller. Seller hereby represents, warrants and covenants to Buyer as of the date of this Agreement, as follows: 9.1.1 Organization. Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California and qualified to do business in California, with full power and authority to enter into and comply with the terms of this Agreement. 9.1.2 Enforceability. This Agreement and all documents executed by Seller which are to be delivered to Buyer at the Closing are, provided Buyer has duly executed those documents requiring Buyer's signature, legal, valid, and binding obligations of Seller, and do not and at the time of Closing will not violate any provisions of any agreement or judicial order to which Seller is a party or to which Seller or the Property is subject. 9.1.3 Authority to Execute Documents. The individual(s) executing this Agreement and the documents contemplated herein on behalf of Seller have the legal right, power and actual authority to bind Seller to the terms and conditions hereof and to the terms and conditions of all such documents contemplated hereunder, subject, however, to Seller's acquisition of the Property pursuant to the terms of the Original PSA. Seller makes no representation regarding whether Railroad will cooperate in connection with the sale of the Property and the Trestle from Seller to Buyer. It is understood and agreed that no individual executing this Agreement on behalf of Seller shall have any personal liability of any kind whatsoever hereunder or otherwise related to this Agreement or the transactions contemplated hereby. 9.2 Representations, Warranties and Covenants of Buyer. Buyer hereby represents, warrants and covenants to Seller as of the date of this Agreement, as follows: 15 9.2.1 Organization. Buyer is a municipal corporation, duly organized, validly existing and in good standing under the laws of the State of California and qualified to do business in California, with full power and authority to enter into and comply with the terms of this Agreement. 9.2.2 Enforceability. This Agreement and all documents executed by Buyer which are to be delivered to Seller at the Closing are intended, provided Seller has duly executed those documents requiring Seller's signature, to be legal, valid, and binding obligations of Buyer, and do not and at the time of Closing will not violate any provisions of any agreement or judicial order to which Buyer is a party or to which it is subject. 9.2.3 Bankruptcy. No petition in bankruptcy (voluntary or otherwise), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other action under federal or state bankruptcy or insolvency laws is pending against or contemplated by Buyer. 9.2.3 Authority to Execute Documents. The individual(s) executing this Agreement and the documents contemplated herein on behalf of Buyer have the legal right, power and actual authority to bind Buyer to the terms and conditions hereof and to the terms and conditions of all such documents contemplated hereunder. It is understood and agreed that no individual executing this Agreement on behalf of Buyer shall have any personal liability of any kind whatsoever hereunder or otherwise related to this Agreement or the transactions contemplated hereby. 9.3 Mutual Representations and Covenants, Brokers and Finders. Neither party has agreed to pay a brokerage commission in connection with the transaction contemplated by this Agreement. In the event of a claim for broker's fee, finder's fee, commission or other similar compensation in connection herewith, Buyer, if such claim is based upon any agreement alleged to have been made by Buyer, agrees to indemnify and hold Seller harmless against any and all liability, loss, cost, damage or expense (including reasonable attorneys' fees and costs) which Seller may sustain or incur by reason of such claim; and Seller, if such claim is based upon any agreement alleged to have been made by Seller, agrees to indemnify and hold Buyer harmless against any and all liability, loss, cost, damage or expense (including reasonable attorneys' fees and costs) which Buyer may sustain or incur by reason of such claim. The provisions of this Section will survive the Close of Escrow or termination of this Agreement. ARTICLE 10 CONDEMNATION AND CASUALTY 10.1 Condemnation. If, prior to the Close of Escrow, a governmental agency commences or imminently threatens in writing to commence any eminent domain proceedings to take any material portion of the Property, Buyer and Seller shall each have the unilateral right, exercisable by giving notice of such decision to the other party within thirty (30) days after receiving written notice of such actual or threatened condemnation proceedings, to terminate this Agreement, in which case the Deposit shall be returned to Buyer and neither party shall have any further rights or obligations under this Agreement (other than the Surviving Obligations). If 16 neither party elects to terminate pursuant to this Section 10.1, the Purchase Price will be determined (if not already fixed) as though such condemnation had not occurred, and the net proceeds of condemnation awards paid or payable to Seller by reason of such condemnation of the Property shall be paid or assigned to Buyer upon the Close of Escrow. 10.2 Casualty. If, prior to the Close of Escrow, the Property is damaged by fire, flood, earthquake or other casualty to a material degree, that is, if the cost of restoration of the damaged Property exceeds twenty percent (20 %) of the Purchase Price, Buyer will have the option either to (a) elect not to acquire the Property, in which case this Agreement will terminate, the Deposit will be returned to Buyer, and the parties will be relieved of all further rights and obligations with respect thereto or (b) acquire the Property subject to such casualty, without adjustment in the Purchase Price and otherwise in accordance with the terms and provisions of this Agreement, but Buyer will be entitled to any insurance proceeds paid by an insurer on account of such casualty which would otherwise accrue to Seller. Buyer shall give written notice to Seller of any election pursuant to this Section 10.2 within thirty (30) business days following receipt by Buyer of any written notice of such casualty. Failure of Buyer to make such election within said period will be deemed an election to proceed to purchase the Property pursuant to clause (b) above. If prior to the Close of Escrow, the Property suffers a casualty other than to an extent entitling Buyer to elect not to acquire the Property pursuant to this Section 10.2, Buyer shall close the transaction contemplated by this Agreement in accordance with the terms hereof as though such casualty had not occurred, except that Seller shall, at Closing, pay or assign to Buyer any net insurance proceeds paid or payable to Seller in respect thereof. ARTICLE 11 POSSESSION Possession of the Property will be delivered to Buyer on the Close of Escrow, subject to any Licenses. ARTICLE 12 MISCELLANEOUS 12.1 Agreement Expenses. The parties agree to bear their respective expenses, incurred or to be incurred in negotiating and preparing this Agreement and in Closing and carrying out the transactions contemplated by this Agreement. 12.2 Satisfaction or Waiver of Contingencies. The consummation of the Closing will be conclusive evidence that the contingencies and conditions to Closing have been fully satisfied or waived. 12.3 Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of, the parties hereto and their respective successors, heirs, administrators and assigns, except that Buyer's interest under this Agreement may not be assigned, encumbered or otherwise transferred, whether voluntarily, involuntarily, by operation of law or otherwise, without Seller's prior written consent, which shall not be unreasonably withheld, conditioned or delayed, except as provided below. Any assignment, encumbrance or other transfer in violation of the foregoing 17 will be void and Buyer will be deemed in default hereunder. No assignment by Buyer will relieve Buyer of its obligations under this Agreement. 12.4 Parties in Interest. Except as expressly provided in this Agreement, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor will any provision give any third persons any right to subrogation or action over or against any party to this Agreement. 12.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior or contemporaneous oral or written agreements, representations, statements, documents, or understandings of the parties. 12.6 Amendment. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by the party to be bound. 12.7 Waiver. No waiver of any of the provisions of this Agreement will be deemed, or will constitute, a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver. 12.8 Timeliness. Seller and Buyer acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision of this Agreement and that failure to timely perform any of the material terms, conditions, obligations or provisions of this Agreement by either party is a material breach of and a non - curable (but waivable) default under this Agreement by the party so failing to perform. 12.9 Notices. Any notice or other communication required or permitted to be given under this Agreement ( "Notices ") must be in writing and must be (a) personally delivered; (b) delivered by a reputable overnight courier; or (c) delivered by certified mail, return receipt requested and deposited in the U.S. Mail, postage prepaid. Telecopy notices are valid only to the extent they are (i) actually received by the individual to whom addressed and (ii) followed by delivery of actual notice in the manner described above within three (3) business days thereafter. Notices will be deemed received at the earlier of (a) actual receipt or (b) one business day after deposit with an overnight courier as evidenced by a receipt of deposit; or (c) three business days following deposit in the U.S. Mail, as evidenced by a return receipt. Notices must be directed to the parties at their respective addresses shown below, or such other address as either party may, from time to time, specify in writing to the other in the manner described above: If to Buyer: CITY OF DUBLIN ATTN: City Manager 100 Civic Plaza Dublin, CA 94568 Telephone: 925- 833 -6650 With copy to: CITY OF DUBLIN ATTN: City Attorney 100 Civic Plaza Dublin, CA 94568 Telephone: 925- 833 -6650 If to Seller: UP AMADOR, LLC ATTN: Ravi Nandwana 5000 Hopyard Road, Suite 170 Pleasanton, California 94588 Telephone: (925) 467 -9900 Facsimile: (925) 467 -9919 With copy to: BERLINER COHEN ATTN: Marls Makiewicz 10 Almaden Blvd., Suite 1100 San Jose, California 95113 -2270 Telephone: (408) 286 -5800 Facsimile: (408) 998 -5388 12.10 Governing Law and Venue. This Agreement is to be construed in accordance with, and governed by, the laws of the State of California, and any action or proceeding, including arbitration, brought by any party in which this Agreement is subject, will be brought in the county in which the Property is located. 12.11 Effect of Headings. The headings of the paragraphs of this Agreement are included for purposes of convenience only, and will not affect the construction or interpretation of any of its provisions. 12.12 Invalidity. Any provision of this Agreement which is invalid, void, or illegal, will not affect, impair, or invalidate any other provision of this Agreement, and such other provisions of this Agreement will remain in full force and effect. 12.13 Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 12.14 Number and Gender. When required by the context of this Agreement, each number (singular and plural) will include all numbers, and each gender will include all genders. 12.15 Joint and Several Liability. In the event either party hereto now or hereafter consists of more than one person, firm, or corporation, then and in such event, all such persons, firms, or corporations will be jointly and severally liable as parties under this Agreement. 19 12.16 Recording. Neither party may record this Agreement or any memorandum thereof. 12.17 Further Assurances. Each party to this Agreement agrees to execute, acknowledge, and deliver such further instruments as may be necessary or desirable to accomplish the intent and purpose of this Agreement, provided that the party requesting such further action bears all costs and expenses related thereto. 12.18 Advice of Professionals. Each party has had the opportunity to be advised by legal counsel and other professionals in connection with this Agreement, and each party has obtained such advice as each party deems appropriate. 12.19 Negotiated Terms. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and that this Agreement will not be construed in favor of or against any party by reason of the extent to which any party or its professionals participated in the preparation of this Agreement. 12.20 Recitals and Exhibits. The recitals and contents of all Exhibits to this Agreement are incorporated by reference and constitute a material part of this Agreement. 12.21 Professional Fees and Costs. If any legal or equitable action, arbitration, bankruptcy, reorganization, or other proceeding, whether on the merits, application, or motion, are brought or undertaken, or an attorney retained, to enforce this Agreement or any closing document, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement or any closing document, then the successful or prevailing party or parties in such undertaking (or the party that would prevail if an action were brought) will be entitled to recover reasonable attorney's and other professional fees, expert witness fees, court costs and other expenses incurred in such action, proceeding, or discussions, in addition to any other relief to which such party may be entitled. The parties intend this provision to be given the most liberal construction possible and to apply to any circumstances in which such party reasonably incurs expenses. The provisions of this Section will survive the Close of Escrow or the termination of this Agreement. 12.22 Confidentiality. All information, studies and reports relating to the Property obtained by Buyer, either by the observations and examinations of its agents and representatives or as disclosed to it by Seller, must remain confidential and Buyer shall not disclose any such matters to any person or governmental agency except as unconditionally required by law. If the transaction contemplated herein fails to close for any reason, Buyer shall deliver and return to Seller, at no cost to Seller, all such information, reports and studies, and Buyer shall make no further distributions or disclosures of any such information, reports and studies. Buyer agrees that, except for its lender, accountants, attorneys or a permitted assignee of Buyer, Buyer shall keep the contents of this Agreement confidential and that no publicity or press release to the general public with respect to this transaction shall be made by Buyer without the prior written consent of Seller. The provisions of this Section will survive the termination of this Agreement. 20 12.23 Not an Offer. The submission of this Agreement to Buyer for review or signature does not constitute an offer to sell the Property to Buyer or the granting of an option or other rights with respect to the Property to Buyer. No agreement with respect to the purchase and sale of the Property will exist, and this writing will have no binding force or effect, until executed and delivered by both Seller and Buyer. 12.24 Back -Up Offers. Until the Close of Escrow, Seller will have the right to continue to present the Property for sale and accept "back -up" offers contingent on Buyer's failure to perform under the terms of this Agreement. 12.25 Severability. Any provision of this Agreement that is determined by a court of competent jurisdiction to be invalid or unenforceable will be invalid or unenforceable only to the extent of such determination, which will not invalidate or otherwise render ineffective any other provision of this Agreement. 12.26 Merger. Except as otherwise expressly provided in this Agreement, the covenants, representations and warranties of Buyer and Seller in this Agreement will merge into the Deed to be delivered by Seller to Buyer at Closing and will not survive the Closing of Escrow. 12.27 Tax - Deferred Exchange. Seller may arrange for the exchange upon the Closing of Escrow of one or more parcels of property for the Property in order to effect a tax - deferred exchange within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and comparable provisions of state statutes. Buyer agrees to cooperate with Seller in connection with any such exchange. Such cooperation by Buyer shall include, but is not limited to, executing documents as reasonably may be required by Seller. SELLER: U.P. AMADOR, LLC, a California limited liability company BUYER: By: Name: Title: THE CITY OF DUBLIN, a California municipal corporation By: Name: 21 Title: THE UNDERSIGNED ESCROW HOLDER ACKNOWLEDGES ITS RECEIPT OF THE DEPOSIT AND THREE (3) EXECUTED COPIES OF THIS AGREEMENT AND AGREES TO ACT IN ACCORDANCE THEREWITH. ESCROW HOLDER: FIRST AMERICAN TITLE COMPANY Diane Burton, Escrow Officer 22 EXHIBIT A PRINT OF PROPERTY TO BE ATTACHED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: MAIL TAX STATEMENTS TO: 0_11001 EXHIBIT B GRANT DEED (Space above line for Recorder's use only) FOR VALUE RECEIVED, U.P. AMADOR, LLC, a California limited liability company ( "Grantor "), grants to THE CITY OF DUBLIN, a California municipal corporation ( "Grantee "), all of its right, title, and interest in and to that certain real property (the "Property ") situated in the City of Dublin, County of Alameda, State of California, described in Exhibit A attached hereto and incorporated by reference. EXCEPTING from this grant and RESERVING unto Grantor, its successors and assigns, forever, all minerals and all mineral rights of every kind and character now known to exist or hereafter discovered, including, without limitation, oil and gas and rights thereto, together with the sole, exclusive and perpetual right to explore for, remove and dispose of said minerals by any means or methods suitable to Grantor, its successors and assigns, but without entering upon or using the surface of the Property, and in such manner as not to damage the surface of the Property or to interfere with the use of the Property by Grantee, its successors or assigns. THE PROPERTY IS CONVEYED TO GRANTEE SUBJECT TO: A. All liens, encumbrances, easements, covenants, conditions and restrictions of record; B. All matters which would be revealed or disclosed in an accurate survey of the Property; 1 C. All matters which would be revealed or disclosed by a physical inspection of the Property; D. A lien not yet delinquent for taxes for real property and personal property, and any general or special assessments against the Property; E. Zoning ordinances and regulations and any other notices, orders, laws, ordinances, and governmental regulations and restrictions regulating the use, occupancy or enjoyment of the Property, and amendments and additions thereto, now or hereafter in force or effect; and F. Existing licenses and other existing rights to use the Property and renewals thereof ( "Use Rights "), regardless of whether visible, open and obvious, recorded or unrecorded, or for public streets, rights of way or utilities. IN WITNESS WHEREOF, the undersigned has executed this Deed as of .201 . U.P. AMADOR, LLC, a California limited liability company By:_ Title: 2 STATE OF CALIFORNIA ) COUNTY OF ALAMEDA ) On , 201, before me, a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. (Notary Seal) Notary Public 3 EXHIBIT A TO EXHIBIT B LEGAL DESCRIPTION OF PROPERTY TO BE ATTACHED EXHIBIT C BILL OF SALE U.P. AMADOR, LLC, a California limited liability company ( "Seller "), for and in consideration of One Dollar ($1.00) and other valuable consideration, does hereby sell, transfer and deliver to THE CITY OF DUBLIN, a California municipal corporation ( "Buyer "), its successors and assigns, all of Seller's right, title and interest in and to the following described personal property ( "Personal Property "): Railroad trestle shown on the print attached hereto as Exhibit A and hereby made a part hereof, located at the south end of the property described in Exhibit B attached hereto and hereby made a part hereof, south of Amador Valley Blvd. SELLER, BY THIS INSTRUMENT, MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND FURTHER MAKES NO WARRANTY AS TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, IT BEING UNDERSTOOD THAT THE BUYER IS PURCHASING THE PERSONAL PROPERTY IN AN "AS IS" AND "WHERE IS" CONDITION WITH ALL FAULTS. BUYER AND SELLER AGREE TO SIGN EXHIBIT C HERETO ATTACHED AND HEREBY MADE A PART HEREOF. IN WITNESS WHEREOF, Seller and Buyer have each duly executed this instrument as of the day of , 201 U.P. AMADOR, LLC, a California limited liability company By: Name: Title: THE CITY OF DUBLIN, a California municipal corporation By: Name: 1 Title: EXHIBIT A TO EXHIBIT C PRINT SHOWING TRESTLE EXHIBIT B TO EXHIBIT C LEGAL DESCRIPTION OF PROPERTY TO BE ATTACHED EXHIBIT C TO EXHIBIT C 1. The attached Attachment 1 contains consumer information concerning the proper handling and distribution of creosote pressure- treated wood. 2. Buyer shall provide information on the safe and proper handling of chemically treated ties to each person or company to whom it sells or otherwise conveys ties purchased hereunder. Such information shall include, but not be limited to, delivery to each and every worker and to all persons and companies of a copy of the MSDS Data Sheet Creosote Pressure Treated Wood that is attached hereto and marked Attachment 1, in such translations and along with such other information as may be necessary, to allow such workers, persons and companies to understand and employ safe and proper methods of use, handling and disposal. 3. In addition to providing information, Buyer shall dispose of (and /or store if ties are removed and stored) any and all ties purchased hereunder in a safe manner and in accordance with all applicable federal, state and local laws and regulations and the lawful requirements of responsible government agencies. 4. Buyer shall require the same commitments by contract with any person or company to which it sells ties for resale which are purchased hereunder. 5. Buyer shall defend, indemnify and save harmless Seller, its successors and assigns, from and against all costs, expenses, fines penalties and other liability whatsoever arising directly or indirectly, whether in whole or in part, out of the failure of Buyer to perform any of its obligations described herein. Dated this day of , 201 U.P. AMADOR, LLC, a California limited liability company By: Name: Title: THE CITY OF DUBLIN, a California municipal corporation By: Name: 5 Title: EXHIBIT D PROPERTY MATERIALS Phase I Environmental Site Assessment County of Alameda and Union Pacific Right of Way Dublin, California Prepared by: Treadwell & Rollo Dated: January 5, 2004 Project No.: 4018.01 EXHIBIT E ASSIGNMENT AND ASSUMPTION AGREEMENT FOR VALUE RECEIVED, U.P. AMADOR, LLC, a California limited liability company ( "Assignor "), acting by and through its duly authorized officers, has ASSIGNED AND TRANSFERRED, and by these presents does ASSIGN AND TRANSFER unto THE CITY OF DUBLIN, a California municipal corporation ( "Assignee "), all of Assignor's right, title and interest in and to the licenses (collectively, "Licenses ") to the extent the Licenses affect the real property described in Exhibit A (the "Property "), which Licenses, and all amendments thereto, are described in Exhibit B, together with all security deposits and other deposits held by Assignor under the terms of said Licenses. TO HAVE AND TO HOLD the Licenses unto Assignee, its successors and assigns. This Assignment is made and accepted without recourse against Assignor as to the performance by any party under such Licenses. Assignee agrees to (a) perform all of the obligations of Assignor pursuant to the Licenses as they relate to the Property accruing on and after the date hereof, and (b) indemnify and hold Assignor harmless from and against any and all claims, causes of actions and expenses (including reasonable attorney's fees) incurred by Assignor and arising out of (1) Assignee's failure to comply with terms of the Licenses as they relate to the Property on and after the date hereof, or (2) claims under the Licenses as they relate to the Property by the licensees named in the Licenses accruing on and after the date hereof. All exhibits attached to this Agreement are incorporated herein for all purposes. This Assignment and Assumption will inure to and be binding upon the parties, their successors and assigns. Dated the day of , 201 U.P. AMADOR, LLC, a California limited liability company Name: Title: THE CITY OF DUBLIN, a California municipal corporation C Name: Title: EXHIBIT A TO EXHIBIT E LEGAL DESCRIPTION OF PROPERTY TO BE ATTACHED EXHIBIT B TO EXHIBIT E LIST OF LICENSES TO BE ASSIGNED 1. Pipeline Crossing Agreement dated July 11, 2006 between Union Pacific Railroad Company and Dublin San Ramon Services District, identified in the records of Union Pacific Railroad Company as Lease Audit No. 241028, Folder 2401 -86, for a 12" water pipeline crossing. 2. License Agreement dated April 8, 1980 between Southern Pacific Transportation Company (now known as Union Pacific Railroad Company) and Viacom Cablevision, identified in the records of Union Pacific Railroad Company as Lease Audit No. 190058, for a 3" underground television cable. 3. Application dated December 15, 1967 from The Pacific Telephone and Telegraph Company to install underground steel conduit under railroad right -of -way, identified in the records of Union Pacific Railroad Company as Audit No. 156511. 4. Application dated June 24, 1977 from The Pacific Telephone and Telegraph Company to install one underground 4" galvanized steel conduit under railroad right -of -way, identified in the records of Union Pacific Railroad Company as Audit No. 182789. 5. Indenture dated January 18, 1984 between Southern Pacific Transportation Company and the City of Dublin, identified in the records of Union Pacific Railroad Company as Lease Audit No. 201069, for storm sewer facilities. 6. Wire Line Crossing dated September 17, 1970 between Southern Pacific Company (predecessor in interest to Southern Pacific Transportation Company, now known as Union Pacific Railroad Company) and Pacific Gas and Electric Company, identified in the records of Union Pacific Railroad Company as Lease Audit No. 164510. 7. Application dated November 14, 1974 to Southern Pacific Transportation Company (now known as Union Pacific Railroad Company) from The Pacific Telephone and Telegraph Company for an aerial cable over railroad right -of -way, identified in the records of Union Pacific Railroad Company as Lease Audit No. 174446. 8. Lease Audit No. 5201070 with Dublin San Ramon Services District. 9. Lease Audit No. S188410 with the County of Alameda. 10. Lease Audit No. 5155779 with the County of Alameda, for a public road crossing. M 11. Lease Audit No. S203170 with GTE for a wireline crossing. EXHIBIT F COPY OF ALAMEDA CONTRACT EXHIBIT G ASSIGNMENT AND ASSUMPTION AGREEMENT (GRADING OBLIGATIONS) FOR VALUE RECEIVED, U.P. AMADOR, LLC, a California limited liability company ( "Assignor "), acting by and through its duly authorized officers, has ASSIGNED AND TRANSFERRED, and by these presents does ASSIGN AND TRANSFER unto THE CITY OF DUBLIN, a California municipal corporation ( "Assignee "), all of Assignor's right, title and interest, obligations and liabilities under Section 10 of that certain Real Property Purchase Contract - County of Alameda dated November 27, 1985 between Southern Pacific Transportation Company (now known as Assignor) and the County of Alameda, a political subdivision of the State of California (the "Alameda Contract "), a copy of which is attached hereto as Exhibit A and hereby made a part hereof. TO HAVE AND TO HOLD the Alameda Contract unto Assignee, its successors and assigns. This Assignment is made and accepted without recourse against Assignor as to the performance by any party under the Alameda Contract. Assignee agrees to (a) perform all of the obligations of Assignor set forth in Section 10 of the Alameda Contract, and (b) indemnify and hold Assignor harmless from and against any and all claims, causes of actions and expenses (including reasonable attorney's fees) incurred by Assignor and arising out of (1) Assignee's failure to comply with terms of Section 10 of the Alameda Contract, and (2) claims under Section 10 of the Alameda Contract by any party named in the Alameda Contract. This Assignment and Assumption Agreement shall inure to and be binding upon the parties, their successors and assigns. Dated the day of , 201 U.P. AMADOR, LLC, a California limited liability company Name: Title: THE CITY OF DUBLIN, a California municipal corporation 1 C Name: Title: EXHIBIT A TO EXHIBIT G COPY OF ALAMEDA CONTRACT TO BE ATTACHED EXHIBIT H FIRST AMERICAN TITLE INSURANCE COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY NO. 2787 ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE ESCROW HOLDER GENERAL PROVISIONS DEPOSIT OF FUNDS AND DISBURSEMENTS Escrow Holder shall deposit all funds received in this escrow in any financial institution insured by a federal agency of the United States Government, including financial institutions affiliated with Escrow Holder's company, in one or more general escrow demand accounts. Unless Escrow Holder is handed a W -9 form and specific investment instructions from the Buyer and Seller, all funds delivered to Escrow Holder pursuant to these instructions will be deposited in a non - interest bearing fiduciary account. All disbursements shall be made by Escrow Holder's check unless otherwise instructed in writing. Escrow Holder is authorized not to close escrow or disburse until collected funds have been confirmed in escrow. GOOD FUNDS LAW The parties understand that ALL funds to close escrow and /or to be released early must be deposited into escrow prior to the date of closing/early release to allow sufficient time for clearance of the funds prior to disbursement. In the event such funds are not in the form of a cashier's, certified or teller check drawn on a financial institution, sufficient time must be allowed for clearance to comply with any "good funds" law which is in effect. (For escrows conducted in California, the good funds law is Section 12413.1 of the California Insurance Code.) Funds may be wired directly into Escrow Holder's depository bank account to avoid waiting for clearance. PRORATIONS AND ADJUSTMENTS SUBJECT TO THE EXPRESS TERMS OF THE AGREEMENT, the expression "close of escrow" used in this escrow means the date on which documents referred to herein are recorded and relates only to prorations and /or adjustments unless otherwise specified. All prorations and /or adjustments are to be made on the basis of a 30 -day month unless otherwise instructed in writing. RECORDATION OF DOCUMENTS Escrow Holder is authorized to record any documents delivered through this escrow, the recording of which is necessary or proper in the issuance of the requested policy of title insurance. AUTHORIZATION TO FURNISH COPIES Escrow Holder is to furnish a copy of these instructions, amendments thereto, closing statements and /or any other documents deposited in this escrow to the lender(s), the real estate broker(s), the attorney(s) and /or the accountant(s) involved in this transaction upon request of the lenders, brokers, attorneys or accountants. PERSONAL PROPERTY TAXES No examination, UCC Search or insurance as to personal property and /or the amount or payment of personal property taxes is required unless otherwise instructed in writing. RIGHT OF CANCELLATION Any party instructing Escrow Holder to cancel this escrow shall file notice of cancellation in Escrow Holder's office, in writing. Within a reasonable time, Escrow Holder shall mail, by certified and regular mail, one copy of the notice to each of the other parties at the addresses stated in this escrow. Unless a written objection to cancellation is filed in Escrow Holder's office by a party within ten (10) days after date of mailing, Escrow Holder is authorized at its option to comply with the notice and demand payment of Escrow Holder's cancellation charges as provided in this agreement. If a written objection is filed, Escrow Holder is authorized at Escrow Holder's option to hold all the money and documents contained in this escrow and take no further action until otherwise directed, either by the parties' mutual written instructions, or final order of a court of competent jurisdiction. ACTION IN INTERPLEADER The parties hereto expressly agree that Escrow Holder has the absolute right at Escrow Holder's election to file an action in interpleader requiring the parties to answer and litigate their several claims and rights between themselves and Escrow Holder is authorized to deposit all documents and funds held in this escrow with the clerk of the court. In the event such an action is filed, the parties jointly and severally agree to pay Escrow Holder's cancellation charges and costs, expenses and reasonable attorneys' fees which Escrow Holder is required to expend or incur in the interpleader action, the amount thereof to be fixed and judgment therefor to be rendered by the court. Upon the filing of the action, Escrow Holder shall thereupon be fully released and discharged from all obligations to further perform any duties or obligations otherwise imposed by the terms of this escrow, provided such filing is meritorious. TERMINATION OF AGENCY OBLIGATIONS If there is no action taken on this escrow within six (6) months after the "time limit date" as set forth in the escrow instructions or written extension thereof, Escrow Holder's agency obligation shall terminate at Escrow Holder's option and all documents, monies or other items held by Escrow Holder shall be returned to the parties depositing the same. In the event of termination of this escrow, whether at the request of any of the parties or otherwise, all fees and charges due in connection with this escrow including expenditures incurred and /or authorized shall be paid by the parties hereto. CONFLICTING INSTRUCTIONS Should Escrow Holder before or after close of escrow receive or become aware of any conflicting demands or claims with respect to this escrow or the rights of any of the parties hereto, or any money or property deposited herein or affected hereby, Escrow Holder shall have the right to discontinue any or all further acts on Escrow Holder's part until the conflict is resolved to Escrow Holder's satisfaction, and Escrow Holder shall have the further right to comments or defend any action or proceedings for the determination of the conflict as provided in the "Right of Cancellation" and "Action in Interpleader" paragraphs of these General Provisions. USURY Escrow Holder is not to be concerned with any question of usury in any loans or encumbrances involved in the processing of this escrow and Escrow Holder is hereby released of any responsibility or liability therefor. INDEMNITY FOR ATTORNEYS FEES AND COSTS In the event suit is brought by any party to this escrow, including the Escrow Holder or any other party, against each other, or others, including the Escrow Holder, claiming any right they may have against each other or against the title company, then in that event, with the exception of gross negligence by the title company, the parties hereto agree to indemnify and hold the title company harmless against any attorney's fees and costs incurred by it, unless such suit is based on a claim against the title company and the party is the "prevailing party." AMENDMENT TO ESCROW INSTRUCTIONS Any amendment or supplement to these escrow instructions must be in writing and signed by the parties. These escrow instructions and any written amendments, supplements or exhibits attached hereto constitute the entire escrow agreement between the Escrow Holder and the parties hereto with respect to the subject matter hereof and supersedes all prior understandings, with respect thereto. PROPERTY TAXES SUBSEQUENT TO CLOSE OF ESCROW Buyer and Seller herein acknowledge that there may be supplemental and /or additional taxes which may be assessed by reason of a change in ownership or completion of construction. This will be reflected in the policy of title insurance issued at the close of escrow. Escrow Holder shall not be concerned with any adjustment(s) of supplemental taxes between the parties for bills received by the parties after the close of escrow. In the event Seller has received Supplemental Tax Bill(s) prior to close of escrow, Seller will provide them to Escrow Holder with an explanation of time periods covered by the tax bill(s) for proration purposes. (In California the applicable provisions are found in California Revenue and Taxation Code Sections 75 and following.) In the event Buyer or Seller have applied, or apply for a reduced assessment, and a refund of taxes is received by Escrow Holder as Agent, Escrow Holder is to retain the funds in one or more of Escrow Holder's general escrow demand accounts until Escrow Holder has received mutual written instructions from the parties directing Escrow Holder as to the proper disposition of the tax refund. CHANGE OF OWNERSHIP FORMS Buyer will furnish Escrow Holder with a completed Preliminary Change of Ownership Report which Escrow Holder is instructed to submit at time of recordation pursuant to Section 480.3 of the California Revenue and Taxation Code. In the event this escrow is otherwise ready to close and Buyer has not provided the above report, Escrow Holder is instructed to close this escrow and collect from Buyer for the County Recorder any additional fee required for recordation when a Preliminary Change of Ownership Report does not accompany the documents being recorded. Buyer is aware that if the above report is not submitted at time of recordation as required, a Change of Ownership Statement must be filed by the Buyer with the County Assessor not later than 45 days after recordation and failure to do so will result in additional penalties. Buyer acknowledges that Escrow Holder shall have no responsibility and /or liability for the County Recorder's acceptance or rejection of the Preliminary Change of Ownership Report. For escrows involving property in States other than California parties will provide Escrow Holder with applicable documents as may be required by the county recorder or taxing authority to close this transaction. INSURANCE POLCIES OTHER THAN TITLE INSURANCE When dealing with real property and /or improvements located thereon it is advisable to obtain fire, hazard or liability insurance coverage. In all acts in this escrow relating to insurance, including adjustments, if any, Escrow Holder may assume that each 2 policy is in force and that the necessary premium has been paid. Escrow Holder shall not be responsible for obtaining fire, hazard or liability insurance, unless Escrow Holder has received written instruction prior to close of escrow from the parties or their respective lenders. FACSIMILE INSTRUCTIONS In the event the parties utilize "facsimile" transmitted signed documents, Buyer and Seller hereby agree to accept and instruct the Escrow Holder to rely upon such documents as if they bore original signatures. Buyer and Seller hereby acknowledge and agree to provide to Escrow Holder, within 72 hours of transmission, such documents bearing the original signatures. Buyer and Seller further acknowledge and agree that documents necessary for recording with other than original signatures (i.e., facsimiles) will not be accepted for recording by the County Recorder thereby delaying the close of escrow. EXECUTE IN COUNTERPART These escrow instructions and any subsequent amendments may be executed in one or more counterparts, each of which independently shall have the same effect as if it were the original, and all of which taken together shall constitute one and the same instruction. IF THE TRANSACTION WHICH IS THE SUBJECT OF THIS ESCROW IS A SALE, THE PARTIES TO THIS TRANSACTION MAY HAVE CERTAIN TAX REPORTING AND WITHHOLDING OBLIGATIONS PURSUANT TO STATE LAW OR FEDERAL LAW REFERRED TO BELOW. REPORTING TO THE INTERNAL REVENUE SERVICE The Tax Reform Act of 1986 provides that Escrow Holder must report certain information regarding all real estate transactions to the Internal Revenue Service. This information includes, among other things, the Seller's social security number and /or tax identification number and forwarding address, and the gross sales price of the transaction. This is not a requirement generated by Escrow Holder, but rather a means of complying with the new tax law. This information must be provided to Escrow Holder upon the opening of escrow and neither can escrow be closed, nor can a deed or any other documents be recorded until the information is provided and the Seller certifies the accuracy of the information in writing. By execution of these escrow instructions, the parties acknowledge receipt of this notice. TAX REPORTING AND WITHHOLDING OBLIGATIONS OF THE PARTIES CALIFORNIA LAW: In accordance with Section 18662 and 18668 of the California Revenue and Taxation Code, a Buyer may be required to withhold an amount equal to three and one -third (3 -1/3) percent of the sales price, in the case of a disposition of California real property interest by either: (1) A Seller who is an individual with a last known street address outside of California or when the disbursement instructions authorize the proceeds to be sent to a financial intermediary of the Seller; OR (2) A corporate Seller which has no permanent place of business in California. For failure to withhold, the Buyer may become subject to a penalty in an amount equal to the greater of 10 percent of the amount required to be withheld or five hundred dollars ($500.00). However, notwithstanding any other provision included in the California statutes referenced herein, no Buyer will be required to withhold any amount or be subject to penalty for failure to withhold if: (a) The sales price of the California real property conveyed does not exceed one hundred thousand dollars ($100,000.00); OR (b) The Seller executes a written certificate, under the penalty of perjury, certifying that the Seller is a resident of California, or if a corporation, has a permanent place of business in California, OR (c) The Seller, who is an individual, executes a written certificate, under the penalty of perjury, that the California real property being conveyed is the Seller's principal residence (as defined in Section 1034 of the Internal Revenue Code). The Seller is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding requirement. The California statutes referenced herein include provisions which authorize the Franchise Tax Board to grant reduced withholding and waivers from withholding on a case -by -case basis. The Seller may request a reduction in withholding or waiver and the Buyer and Seller may obtain additional information by contacting the Franchise Tax Board, Withhold at Source Unit, P.O. Box 651, Sacramento, CA 95812 -0651 (916- 845- 4900). LAW OF STATES OTHER THAN CALIFORNIA If the parties are required to withhold by the law of a state other than California, the parties understand that the withholding obligation is the exclusive obligation of the parties to this transaction and that Escrow Holder is not obligated to withhold or notify the parties of any withholding obligation they may have. FEDERAL LAW Internal Revenue Code Section 1445 places special requirements for tax reporting and withholding on the parties to a real estate transaction where the Seller (Transferor) is a non - resident alien, a non - domestic corporation or partnership, a domestic corporation or partnership controlled by non - residents or non - resident corporations or partnerships. With respect to both the State Law and Federal Law referred to above, the parties to this transaction should seek an attorney's, accountant's, or other tax specialists' opinion concerning the effect of these laws on this transaction. The parties to this transaction should NOT act on or rely on any statements made or omitted by the Escrow Officer, Title Officer, or other closing Officer with respect to tax reporting or withholding requirements. By execution of these escrow instructions, the parties acknowledge receipt of this notice. 3 DISCLOSURE OF TAXPAYER IDENTIFICATION NUMBERS Internal Revenue Code Section 6109(h) imposes requirements for furnishing, disclosing and including taxpayer identification numbers in tax returns on the parties to a residential real estate transaction involving seller- provided financing. The parties understand that the disclosure reporting requirements are exclusive obligations between the parties to this transaction and that Escrow Holder is not obligated to transmit the taxpayer identification numbers to the Internal Revenue Service or to the parties. Escrow Holder is not rendering an opinion concerning the effect of this law on this transaction, and the parties are not acting on any statements made or omitted by the Escrow or Closing Officer. By execution of these escrow instructions, the parties acknowledge receipt of this notice. To facilitate compliance with this law, the parties to this escrow hereby authorize Escrow Holder to release any party's taxpayer identification numbers to any requesting party who is a party to this transaction. The requesting party shall deliver a written request to escrow. The parties hereto waive all rights of confidentiality regarding their respective taxpayer identification numbers and agree to hold Escrow Holder harmless against any fees, costs, or judgments incurred and /or awarded in connection with the release of taxpayer identification numbers. TIME IS OF THE ESSENCE OF THESE INSTRUCTIONS If this escrow is not in condition to close by the closing date referred to in the body of these instructions, and demand for cancellation is received by you from any party to this escrow after said date, you will act in accordance with the cancellation instructions contained in these general provisions. If no demand for cancellation is made, you will proceed to close this escrow when the principals have complied with the escrow instructions. E 1827 -22 EXHIBIT I SEPARATE STATEMENT OF DOCUMENTARY TRANSFER TAX County Recorder Alameda County 1106 Madison Street Oakland, California 94607 , 201 Ladies and Gentlemen: In accordance with Revenue and Taxation Code Section 11932, it is requested that this statement of documentary transfer tax not be recorded with the attached deed, but affixed to the deed after recordation and before return as directed on the deed. The deed names U.P. AMADOR, LLC, a California limited liability company, as Grantor, and THE CITY OF DUBLIN, a California municipal corporation, as Grantee. The property being transferred is located in the City of Dublin, County of Alameda, State of California. The amount of documentary transfer tax due on the attached deed is Dollars ($ ), computed on the full value of the property (less the value of any liens and encumbrances remaining on the property at the time of sale). Very truly yours, U.P. AMADOR, LLC, a California limited liability company Name: Title: 1 RESOLUTION NO. XX - 13 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN * * * * * * * * * ** APPROVING AN AGREEMENT WITH SWA GROUP FOR THE IRON HORSE PARK AND OPEN SPACE MASTER PLAN WHEREAS, the City has solicited proposals from landscape architectural firms to complete the Iron Horse Park and Open Space Master Plan and facilitate the community input process; and WHEREAS, the City received three proposals, interviewed all three firms and selected SWA Group; and WHEREAS, SWA Group has demonstrated ability to perform said Master Plan and community input process; and WHEREAS, SWA Group is available to perform work as specified. NOW, THEREFORE, the City Council of the City of Dublin does RESOLVE to approve the Agreement with SWA Group, attached hereto and authorize the City Manager to execute the Agreement. PASSED, APPROVED AND ADOPTED this 19th day of March, 2013, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor ATTACHMENT 1 CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND SWA THIS AGREEMENT for consulting services is made by and between the City of Dublin ( "City ") and SWA ( "Consultant ") as of March 5, 2013. Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the date first noted above and shall end on September 3, 2013, and Consultant shall complete the work described in Exhibit A prior to that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Consultant to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as provided for in Section 8. 1.2 Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices its profession. Consultant shall prepare all work products required by this Agreement and shall conform to the standards of quality normally observed by a person practicing in Consultant's profession. 1.3 Assignment of Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Consultant shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons. 1.4 Time. Consultant shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 1.1 above and to satisfy Consultant's obligations hereunder. Section 2. COMPENSATION. City hereby agrees to pay Consultant a sum not to exceed $72,500 (seventy -two thousand and five hundred dollars), notwithstanding any contrary indications that may be contained in Consultant's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Consultant's proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Consultant for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Consultant for services rendered pursuant to this Agreement, Consultant shall submit all invoices to City in the manner specified herein. Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 1 of 14 EXHIBIT A TO RESOLUTION Except as specifically authorized by City, Consultant shall not bill City for duplicate services performed by more than one person. Consultant and City acknowledge and agree that compensation paid by City to Consultant under this Agreement is based upon Consultant's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Consultant. Consequently, the parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Consultant and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Consultant shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: ■ Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.; The beginning and ending dates of the billing period; A Task Summary containing the original contract amount, the amount of prior billings, the total due this period, the balance available under the Agreement, and the percentage of completion; ■ At City's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense; ■ The total number of hours of work performed under the Agreement by Consultant and each employee, agent, and subcontractor of Consultant performing services hereunder, as well as a separate notice when the total number of hours of work by Consultant and any individual employee, agent, or subcontractor of Consultant reaches or exceeds 800 hours, which shall include an estimate of the time necessary to complete the work described in Exhibit A; ■ The Consultant's signature. 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Consultant. 2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within sixty (60) days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed. 2.4 Total Payment. City shall pay for the services to be rendered by Consultant pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Consultant in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 2 of 14 In no event shall Consultant submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.5 Hourly Fees. Fees for work performed by Consultant on an hourly basis shall not exceed the amounts shown on the following fee schedule: 2.6 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B, and shall not exceed five thousand dollars ($5,000). Expenses not listed in Exhibit B are not chargeable to City. Reimbursable expenses are included in the total amount of compensation provided under this Agreement that shall not be exceeded. 2.7 Payment of Taxes. Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 2.8 Payment upon Termination. In the event that the City or Consultant terminates this Agreement pursuant to Section 8, the City shall compensate the Consultant for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Consultant shall maintain adequate logs and timesheets in order to verify costs incurred to that date. 2.9 Authorization to Perform Services. The Consultant is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Consultant shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Consultant only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Consultant's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long- distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before beginning any work under this Agreement, Consultant, at its own cost and expense, shall procure "occurrence coverage" insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant and its agents, representatives, employees, and subcontractors. Consultant shall provide proof satisfactory to City of such insurance that meets the requirements of this Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 3 of 14 section and under forms of insurance satisfactory in ail respects to the City. Consultant shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Consultant's bid. Consultant shall not allow any subcontractor to commence work on any subcontract until Consultant has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. 4.1 Workers' Compensation. Consultant shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Consultant. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident. In the alternative, Consultant may rely on a self- insurance program to meet those requirements, but only if the program of self - insurance complies fully with the provisions of the California Labor Code. Determination of whether a self - insurance program meets the standards of the Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or the Consultant, if a program of self- insurance is provided, shall waive all rights of subrogation against the City and its officers, officials, employees, and volunteers for loss arising from work performed under this Agreement. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General requirements. Consultant, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non - owned automobiles. 4.2.2 Minimum scope of coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11188) or Insurance Services Office form number GL 0002 (ed. 1173) covering comprehensive General Liability and Insurance Services Office form Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 4 of 14 number GL 0404 covering Broad Form Comprehensive General Liability. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed.12190) Code 8 and 9 ( "any auto "). No endorsement shall be attached limiting the coverage. 4.23 Additional requirements. Each of the following shall be included in the insurance coverage or added as an endorsement to the policy: a. City and its officers, employees, agents, and volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of activities performed by or on behalf of Consultant, including the insured's general supervision of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; and automobiles owned, leased, or used by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or volunteers. b. The insurance shall cover on an occurrence or an accident basis, and not on a claims -made basis. C. An endorsement must state that coverage is primary insurance with respect to the City and its officers, officials, employees and volunteers, and that no insurance or self - insurance maintained by the City shall be called upon to contribute to a loss under the coverage. d. Any failure of CONSULTANT to comply with reporting provisions of the policy shall not affect coverage provided to CITY and its officers, employees, agents, and volunteers. e. An endorsement shall state that coverage shall not be canceled except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Consultant shall notify City within 14 days of notification from Consultant's insurer if such coverage is suspended, voided or reduced in coverage or in limits. 4.3 Professional Liability Insurance. Consultant, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000) covering the licensed professionals' negligent errors and omissions. 4.3.1 Any deductible or self- insured retention shall not exceed $150,000 per claim. Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 5 of 14 4.3.2 An endorsement shall state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 4.3.3 The policy must contain a cross liability or severability of interest clause. 4.3,4 The following provisions shall apply if the professional liability coverages are written on a claims -made form: a. The retroactive date of the policy must be shown and must be before the date of the Agreement. b. Insurance must be maintained and evidence of insurance must be provided for at least five years after completion of the Agreement or the work, so long as commercially available at reasonable rates. If coverage is canceled or not renewed and it is not replaced with another claims -made policy form with a retroactive date that precedes the date of this Agreement, Consultant must provide extended reporting coverage for a minimum of five years after completion of the Agreement or the work. The City shall have the right to exercise, at the Consultant's sole cost and expense, any extended reporting provisions of the policy, if the Consultant cancels or does not renew the coverage. d. A copy of the claim reporting requirements must be submitted to the City prior to the commencement of any work under this Agreement. 4.4 All Policies Requirements. 4.4.1 Acceptability of insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:Vll. 4.4.2 Verification of coverage. Prior to beginning any work under this Agreement, Consultant shall furnish City with certificates of insurance and with original endorsements effecting coverage required herein. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 4.4.3 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 6 of 14 4.4.4 Variation. The City may approve a variation in the foregoing insurance requirements, upon a determination that the coverages, scope, limits, and forms of such insurance are either not commercially available, or that the City's interests are otherwise fully protected. 4.4.5 Deductibles and Self - Insured Retentions. Consultant shall disclose to and obtain the approval of City for the self- insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, only upon the prior express written authorization of Contract Administrator, Consultant may increase such deductibles or self- insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self- insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. 4.4.6 Notice of Reduction in Coverage. In the event that any coverage required by this section is reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to City at Consultant's earliest possible opportunity and in no case later than five days after Consultant is notified of the change in coverage. 4.5 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Consultant's breach: Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; ® Order Consultant to stop work under this Agreement or withhold any payment that becomes due to Consultant hereunder, or both stop work and withhold any payment, until Consultant demonstrates compliance with the requirements hereof; and/or H Terminate this Agreement. Section 5. INDEMNIFICATION AND CONSULTANT'S RESPONSIBILITIES. Consultant shall indemnify, defend and hold harmless the City and its officials, officers and employees from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 7 of 14 strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises from the negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. Notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" as defined in California Civil Code section 2783, as amended from time to time, such duty to indemnify shall not apply when to do so would be prohibited by California Code section 2782. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONSULTANT. 6.1 Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of City. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and /or employee contributions for PERS benefits. 6.2 Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 8 of 14 Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Consultant and any subcontractors shall comply with all laws applicable to the performance of the work hereunder. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Consultant represents and warrants to City that Consultant and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Consultant represents and warrants to City that Consultant and its employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. In addition to the foregoing, Consultant and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. 7.5 Nondiscrimination and Equal Opportunity. Consultant shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Consultant under this Agreement. Consultant shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Consultant thereby. Section 8. 8.1 Consultant shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. TERMINATION AND MODIFICATION. Termination. City may cancel this Agreement at any time and without cause upon written notification to Consultant. Consultant may cancel this Agreement upon thirty (30) days' written notice to City and shall include in such notice the reasons for cancellation. Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 9 of 14 In the event of termination, Consultant shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Consultant delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Consultant or prepared by or for Consultant or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Consultant understands and agrees that, if City grants such an extension, City shall have no obligation to provide Consultant with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Consultant for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The parties may amend this Agreement only by a writing signed by all the parties. 8.4 Assignment and Subcontracting. City and Consultant recognize and agree that this Agreement contemplates personal performance by Consultant and is based upon a determination of Consultant's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Consultant. Consultant may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Consultant shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator. 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 8.6 Options upon Breach by Consultant. If Consultant materially breaches any of the terms of this Agreement, City's remedies shall included, but not be limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; 8.6.3 Retain a different consultant to complete the work described in Exhibit A not finished by Consultant; or 8.6.4 Charge Consultant the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 10 of 14 City would have paid Consultant pursuant to Section 2 if Consultant had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Consultant's Performance. Provided Consultant has been paid for its services in accordance with this Agreement, all reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Consultant prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall become the property of the City. Consultant hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Consultant agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both parties. 9.2 Consultant's Books and Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Section 9.2 of this Agreement requires Consultant to maintain shall be made available for inspection, audit, andlor copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement. Section 10 MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court shall set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 11 of 14 state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties. 10.6 Use of Recycled Products. Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 10.7 Conflict of Interest. Consultant may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Consultant in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 of seq. Consultant shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. Consultant hereby warrants that it is not now, nor has it been in the previous twelve (12) months, an employee, agent, appointee, or official of the City. If Consultant was an employee, agent, appointee, or official of the City in the previous twelve months, Consultant warrants that it did not participate in any manner in the forming of this Agreement. Consultant understands that, if this Agreement is made in violation of Government Code §1090 ef.seq., the entire Agreement is void and Consultant will not be entitled to any compensation for services performed pursuant to this Agreement, including reimbursement of expenses, and Consultant will be required to reimburse the City for any sums paid to the Consultant Consultant understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of Government Code § 1090 and, if applicable, will be disqualified from holding public - office in the State of California. 10.8 Solicitation. Consultant agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials. Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 12 of 14 10.9 Contract Administration. This Agreement shall be administered by the City Manager ( "Contract Administrator "). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.10 Notices. Any written notice to Consultant shall be sent to: SWA ATTN: Rene' Bihan, Managing Principal 301 Battery Street Two Mezzanine San Francisco, CA 94111 Any written notice to City shall be sent to: City of Dublin ATTN: City Manager 100 Civic Plaza Dublin, CA 94568 10.11 Professional Seal. Where applicable in the determination of the contract administrator, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped /sealed and signed by the licensed professional responsible for the report/design preparation. The stamp /seal shall be in a block entitled "Seal and Signature of Registered Professional with report/design responsibility," as in the following example. Seal and Signature of Registered Professional with report/design responsibility. 10.12 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement between City and Consultant and supersedes all prior negotiations, representations, or agreements, either written or oral. CITY OF DUBLIN Joni Pattillo, City Manager Attest: Consulting Services Agreement between City of Dublin and SWA CONSULTANT Rene' Bihan, Managing Principal March 19, 2013 Page 13 of 14 Caroline Soto, City Clerk Approved as to Form: John Bakker, City Attorney Consulting Services Agreement between March 19, 2013 City of Dublin and SWA Page 14 of 14 January 24, 2013 Hof: -nH Bill III Revised February 27, 2013 Gerdo P Aquino Kinder Bauinigardner City of Dublin David Rerkson 100 Civic Plaza William Callaway Dublin, CA 94568 Scott Cooper John E Cutler David R Gal Attention: Mr. Paul McCreary Marro Esposito Subject: Iron Horse Linear Park Master Plan Torn Fox CTDS301 Cinda Gilliland Loreen H,jort Dear Mr. McCreary: viii Hung Roy Imamura We are pleased to submit the following proposal for Professional Services in connection with the project Robert Jacob referenced above. Richard K Law Hui -Li Lee This Agreement is by and between SWA Group ( °SWA "), a California corporation, and City of Dublin Margaret Leonard Chlh -Wei Lin ( "Client "), Dublin, California. John 5 Loomis Charles 5 McDaniel I. SCOPE OF SERVICES Sean Cl` Malley A. Approach Statement Timothy Peterson Lawrence Reed 1. For the subject parcel in the City of Dublin area, of approximately 12.25 acres, we shall R Joseph Runco prepare a series of planning studies and documents as later described which will define the Kevin Shanley development objectives for the proposed use of the parcel. Elizabeth Shreeve Scott Slaney 2. The scope of services will include: David P Thompson a. Review of the Parks and Recreation Master Plan and other related planning documents. John L Wong b. Assessment and prioritization of recreational needs of the surrounding community. c. Site Inventory and preliminary mass grading plan. 5 an h „ 1 Pon�:kr0 d. Preparation of opportunities and constraints map of the site. Sausalito e. Preparation of three (3) preliminary conceptual design alternatives for the site. Laguna Beach Houston I Preparation of master plan identifying the preferred conceptual design, and the Dallas recreational amenities planned for the site including the location and configuration of Los Angeles all site elements. Shanghai g. Preparation of a preliminary phasing plan and cost estimate for the proposed project. 301 Battery Street Two Mezzanine San Francisco CA94111- 32.13 Tel 41 5.836.8770 EXHIBIT A TO AGREEMENT Fax 41 5.836.8771 'AI IW"�'V iW R o1 VI U U Y9. , G ffl City of Dublin January 24, 2013 Revised February 27, 2013 CTDS301 Page 2 B. Background Studies SWA shall: 1. Visit the project site(s) and become familiar with overall characteristics and relationship to the surrounding region; 2. Meet with the Client to discuss the general range of development opportunities and expectations; 3. Review available existing pertinent data, provided by the Client, in the form of base maps, aerial photographs, engineering information and controls, planning reports and projections and architectural studies; 4. Meet informally with appropriate governmental agencies and officials in regard to current land use control. All meetings or contact will be coordinated with the Client or his designated representative; 5. Meet with and coordinate SWA's work with other designated project consultants and maintain liaison of SWA's work in efforts and timing; 6. Visit the site in order to obtain initial photographic coverage. C. Site Analysis and Evaluation 1. On the basis of background studies, on -site investigation, base maps and special information provided by the Client and other project consultants, SWA shall consider and evaluate the following: a. Planning Factors: i. Property configuration; ii. Relationships to adjoining land and parcels; iii. Access potentials; iv. Limitations in the form of easements, zoning controls, assessment districts; v. Special districts; vi. Public facilities and schools; vii. Existing development on the site; viii. Views, visual characteristics and scenic factors; ix. Utility location, availability and easements; b. Natural Factors: i. Topography, slopes and orientation; ii. Soils and geological factors; City of Dublin January 24, 2013 Revised February 27, 2013 CTDS301 Page 3 iii. Hydrology, drainage patterns; iv. Existing water bodies, shorelines; v. Tree cover and vegetation; vi. Climate and wind factors; vii. Wildlife and habitat considerations. D. Summarize significant data from the above by (a) composite map(s), diagram(s) (and supplementary visual displays) to indicate the landscape and environmental opportunities and limitations of the site. E. Programming and Alternative Development Diagrams 1. Evaluate the Client's program of development in order to understand the relationships between land uses, circulation needs and utility requirements. 2. With Client explore alternative development diagrams with an assessment of advantages and disadvantages to enable preparation of a tentative physical development program in terms of land use categories, quantities and increment. F. Site Concept Plan On the basis of the above site factors, architectural inputs on unit types from the Client, and Client's development program and marketing strategy, we will prepare up to three (3) alternative diagrammatic concept plans which include the following: 1. Conceptual level plan indicating basic land uses and circulation patterns, site grading concepts, open space structure, plant massing, feature areas and relationship of the project to adjacent properties; 2. A preliminary development phasing program; 3. Land utilization and development program analysis in terms of units per acre, unit type distributions and supporting facilities; 4. Prepare a feasibility level site development cost estimate for landscape work of three (3) alternatives. G. Site Development Plan 1. Prepare prototypical illustrative site plans for selected areas of the site showing specific arrangements of buildings and open space to supplement the conceptual plan. 2. Develop sections, sketches or other illustrative materials to convey the character of the proposed site development. H. Special Illustrative Plans and Materials Special presentation graphics such as renderings, perspectives, models or displays shall be Additional Services or Reimbursable Costs, as appropriate. Such services or costs shall be approved in advance by City of Dublin January 24, 2013 Revised February 27, 2013 CTDS301 Page 4 the Client. I. Meetings and Plan Revisions 1. Meetings with the Client and other project consultants during the course of work above for understanding and coordination shall be limited to three (3). Additional meetings shall be Additional Services as indicated elsewhere in this Agreement. 2. Public meetings or presentations to local public agencies shall be limited to four (4). Additional meetings or continuing consultation with these agencies shall be Additional Services as covered elsewhere in this Agreement. II. EXCLUSIONS TO SCOPE OF SERVICES Client shall provide the following information or services as required for performance of the work. Should SWA be required to provide services in obtaining or coordinating compilation of this information, such services shall be charged as Additional Services. SWA assumes no responsibility for the accuracy of such information or services, may rely on the accuracy of such information, and shall not be liable for error or omissions therein. A. Topography and boundary surveys in digital format. B. Legal descriptions of property. C. Soils investigations and /or engineering D. Existing site engineering and utility base information. E. Site environmental information required for planning processing. F. Economic or market analyses. G. Overhead aerial photographs at controlled scale. City of Dublin January 24, 2013 Revised February 27, 2013 CTDS301 Page 5 III. FEES AND TERMS Services described above shall be provided or for the fixed sum of $67,500 in accordance with the terms and conditions in Appendix A attached hereto and which is incorporated and made part of this Agreement by reference. Task Duration Fee Establish interactive project website 1 month $5,000 Completion of site review, community assessments, and background analysis 2.5 months $20,000 Public Meeting #1 2 weeks $2,000 Completion of three preliminary conceptual design alternatives 2 months $15,000 Public Meeting #2 2 weeks $2,000 Completion of Master Plan 3.5 months $18,000 Completion of Phasing Plan and Cost Estimate 2.5 months $3,500 Parks Commission Meeting 1 week $1,000 City Council Meeting 1 week $1,000 Total 6 months $67,500 We estimate that Reimbursable Expenses indicated in Appendix A will not exceed $5,000. City of Dublin January 24, 2013 Revised February 27, 2013 CTDS301 Page 6 We would be pleased to answer questions you may have or to clarify the various points above. If this proposal meets with your approval, please sign below and return one copy for our files. Sincerely yours, SWA GROUP L00- 4 Rene Bihan Contracting Agent Landscape Architect, CA License #3682 Landscape architects are licensed by the State of California. Accepted: City of Dublin By: Title: Date: RB /I s Proposal copyright ©2013 by SWA Group. No portion of this proposal may be copied or distributed to without the written permission of SWA Group. City of Dublin January 24, 2013 Revised February 27, 2013 CTDS301 Page 7 In order to expedite invoicing, please indicate the following: Billing Address: Company Name: Address: Attention: Your reference name /number: Your Purchase Order or Contract Number reference for invoicing: City of Dublin January 24, 2013 Revised February 27, 2013 CTDS301 Page 8 Appendix A Appended to and part of Agreement for Professional Services between SWA Group (SWA) and City of Dublin, dated 2/27/2013. FEES FOR PROFESSIONAL SERVICES Services outlined under the Scope of Services shall be provided for the fixed sum stipulated in the Agreement for Professional Services. REIMBURSABLE COSTS The following costs shall be reimbursed at cost plus ten percent (10 %) and are not included in the Fee for Professional Services: A. Cost of copies of drawings, specifications, reports and cost estimates; xerography and photographic reproduction of drawings and other documents furnished or prepared in connection with the work of this contract. B. Cost of commercial carrier and public transportation, lodging, car rental and parking, subsistence and out - of- pocket expenses. Private automobile travel at the IRS - allowable rate at the time of traveling. International flights shall be business class. C. Cost of postage and shipping expenses other than first class mail. D. Long distance telephone charges. E. Photographic services. F. Cost of models, special renderings, promotional photography, special process printing, special equipment, special printed reports or publications, maps and documents approved in advance by Client. G. Fees for additional consultants retained with the approval of Client. ADDITIONAL CONSULTANTS Fees for additional consultants not included in SWA's Basic Services and retained with the approval of Client shall be billed at cost plus fifteen percent (15 %). The additional costs are for accounting, processing expenses, cost of cash expenditures advanced on the Client's behalf, and for the cost of SWA's supervision and liability for outside consultants. ADDITIONAL SERVICES Additional Services shall be provided on a time basis computed as follows: Principals Rate / Hour Bihan 275.00 Principal Winters 123.69 Associate City of Dublin January 24, 2013 Revised February 27, 2013 CTDS301 Page 9 Langworthy 105.54 Associate Other principals, if used on this project, have rates ranging from $205 to $285 an hour. These rates are applicable for six months from the date of the Agreement for Professional Services, but may be increased subsequently without written notice. Other employee time shall be charged at a multiple of two and one -half (2.5) times Direct Personnel Expense. Additional Services include but are not limited to: A. Making planning surveys, feasibility studies, and special analyses of Client's needs to clarify requirements for project programming. B. Site planning. C. Revisions and changes in drawings, specifications or other documents when such revisions are inconsistent with approvals or instructions previously given by the Client required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents D. Cost of review as to form of lenders documents, certifications and consents to assignment requested of SWA during the term of this Agreement. Appendix B SEE CONSULTING SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND SWA GROUP End V CITY OF DUBLIN BUDGET CHANGE FORM FISCAL YEAR 2012/2013 CHANGE FORM # X From Un- Appropriated Reserves (Public Facilities / Quimby Act Park In -Lieu Impact Fee Fund) From Budgeted Contingency (General Fund Account #1001.1901.81101) From New Revenues Between Funds /Departments Name: EXPENDITURE: Name: EXPENDITURE: CIP Iron Horse Parkland Acquisition and CIP Iron Horse Parkland Acquisition and Master Plan - Staffing Costs Master Plan -Land Project Account# 950023.9100.9101.4109 $69,200 Project Account# 950023.9300.9301.4109 $100,000 Name: EXPENDITURE: Name: EXPENDITURE: CIP Iron Horse Parkland Acquisition and CIP Iron Horse Parkland Acquisition and Master Plan - Contract Svcs Master Plan - Printing /Binding Project Account# 950023.9200.9201.4109 $34,300 Project Account# 950023.9500.9503.4109 $1,000 Name: EXPENDITURE: Name: EXPENDITURE: CIP Iron Horse Parkland Acquisition and CIP Iron Horse Parkland Acquisition and Master Plan - Design Master Plan - Transfer In Project Account# 950023.9200.9202.4109 $50,000 Project Account# 950023.9508 $303,300 Name: EXPENDITURE: Name: EXPENDITURE: CIP Iron Horse Parkland Acquisition and Public Facilities /Quimby Act Park In -Lieu Master Plan - Survey Impact Fee Fund — Transfer Out Project Account# 950023.9200.9203.4109 $23,800 GL Account# 4109.9501.89101 $303,300 Name: EXPENDITURE: CIP Iron Horse Parkland Acquisition and Master Plan - Professional Svcs Project Account# 950023.9200.9207.4109 $25,000 REASON FOR BUDGET CHANGE ENTRY: At the March 19th, 2013 City Council meeting the City Council adopted a resolution approving the Agreement to Assign and Assume Purchase and Sale Agreement held by UP Amador, LLC for two parcels of Union Pacific Right of Way (APN 941 - 2768 - 006 -02 and 941 - 0550 - 023 -04) and authorized Staff to initiate a General Plan Amendment Study on APN 941 - 2768 - 006 -02. The City Council also adopted a resolution approving the Agreement with SWA Group to prepare a Park and Open Space Master Plan for APN 941 - 2768 - 006 -02. This budget change will appropriate $303,300 from the Public Facilities — Quimby Act Park In -Lieu Impact Fee Fund to fund the project costs anticipated for the remainder of Fiscal Year 2012 -2013. As Presented at the City Council Meeting on: Date: 3/19/2013 #################(Finance Use Only) ################## Posted By: Date: G:OudgetChangesl5_ 2012 -1308_ 3_ 19_ 13_ Iron_ Horse_ Parkland Acquisition_ Master Plan.doc ATTACHMENT 3