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CITY COUNCIL AGENDA ITEM NO. 10

Meeting Date: June 12, 2001 

Subject/Title: Lease For Park Use and Option To Purchase Agreement with the Castellos and related Actions for the Purchase of Sand Creek Park.

Submitted by: J. Stevenson/M. Kirby 

Approved by: Jon Elam, City Manager


RECOMMENDATION
Approve a Resolution approving the following actions: (1) authorize the City Manager to execute the attached Lease For Park Use and Option To Purchase Agreement with Joseph G. Castello and Gloria L. Castello, as Trustees under the 1982 Castello Living Trust dated October 14, 1982 All Their Right, Title and Interest and Victor R. Castello and Marjorie Lola Castello Living Trust dated May 25, 1989 All Their Right, Title and Interest for Sand Creek Park, CIP Project No. 522-5203 and Sand Creek Road, CIP Project 336-3061; (2) authorize the City Manager to execute the Purchase Agreement when the City can close escrow for the purchase price set out in the Purchase Agreement; and (3) authorize the City Manager to accept the real property on behalf of the City and authorize the Mayor or City Manager and City Clerk or their designees to execute all agreements, and such other documents as may be needed to complete these transactions. 

PREVIOUS ACTION
On January 12, 1999, the City Council by Resolution No. 99-1 approved the purchase of the Lea property located at the Northwest corner of Sand Creek Road and Fairview Avenue for Sand Creek Park and Sand Creek Road, CIP 33660.

On May 25, 1999, the City Council approved Resolution No. 99-134, which adopted the 1999-2004 Capital Improvement Program.

On October 12, 1999, the City Council by Resolution No. 99-227 approved the Engineering Design Contract for the central portion of Sand Creek Road from Fairview Avenue to the Railroad Tracks, CIP Project No. 336-3061.

On May 23, 2000, the City Council approved Resolution No. 2076, which adopted the 2000-2005 Capital Improvement Program, which included a portion of the Sand Creek Park Project, CIP 522-5203 and the Sand Creek Road Project, CIP 336-3061.

On May 23, 2000, the City Council passed Resolution No. 2081 certifying the Mitigated Negative Declaration and adopting the Mitigation Monitoring and Reporting Program for the Sand Creek Road Project, CIP 336-3061.

On May 22, 2001, the City Council passed Resolution No. 2299 certifying the Negative Declaration and adopting the 2001-2006 Capital Improvement Program, which included a portion of the Sand Creek Park Project, CIP 522-5203 and the Sand Creek Road Project, CIP 336-3061.

BACKGROUND
The purchase of the Castello property is one of the acquisitions necessary to complete the third segment of Sand Creek Road and the ultimate construction of an approximately 13-acre community park, which includes the land-banked Lea property.

The City’s major thoroughfare improvements started with CIP Projects No. 336-3055 and No. 336-3092. The ultimate goal is to improve access to the commercial areas of the City from the Highway 4 Bypass and improve east-west circulation throughout the City.

The acquisition of the entire parcel will not only help us complete our ultimate goal for the Sand Creek Road Project, but combined with the 2.17-acre land banked parcel, will fulfill the community park need as per the Park Master Plan for northwest Brentwood.

The acquisition of this parcel adjacent to the Sand Creek Soccer Complex Project, CIP 522-5220 will allow us to substantially improve the availability of sports fields in the City.

The funding for the first year’s lease will be through the Sand Creek Road Project, CIP Project No. 336-3061, the second year’s lease will be accomplished by a revised budget for the 2002/2007 Capital Improvement Program and the ultimate purchase will be through Park Fee Credits, Roadway Fee Credits and Water Fee Credits.


Attachments:
Resolution
Site Map
Lease For Park Use and Option To Purchase Agreement

RESOLUTION NO.


A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING THE FOLLOWING ACTIONS: (1) AUTHORIZE THE CITY MANAGER TO EXECUTE THE ATTACHED LEASE FOR PARK USE AND OPTION TO PURCHASE AGREEMENT WITH JOSEPH G. CASTELLO AND GLORIA L. CASTELLO, AS TRUSTEES UNDER THE 1982 CASTELLO LIVING TRUST DATED OCTOBER 14, 1982 ALL THEIR RIGHT, TITLE AND INTEREST AND VICTOR R. CASTELLO AND MARJORIE LOLA CASTELLO LIVING TRUST DATED MAY 25, 1989 ALL THEIR RIGHT, TITLE AND INTEREST FOR SAND CREEK PARK, CIP PROJECT NO. 522-5203 AND SAND CREEK ROAD, CIP PROJECT 336-3061; (2) AUTHORIZE THE CITY MANAGER TO EXECUTE THE PURCHASE AGREEMENT WHEN THE CITY CAN CLOSE ESCROW FOR THE PURCHASE PRICE SET OUT IN THE PURCHASE AGREEMENT; AND (3) AUTHORIZE THE CITY MANGER TO ACCEPT THE REAL PROPERTY ON BEHALF OF THE CITY AND AUTHORIZE THE MAYOR OR CITY MANAGER AND CITY CLERK OR THEIR DESIGNEES TO EXECUTE ALL AGREEMENTS, AND SUCH OTHER DOCUMENTS AS MAY BE NEEDED TO COMPLETE THESE TRANSACTIONS.



WHEREAS, on January 12, 1999, the City Council by Resolution No. 99-1 approved the purchase of the Lea property located at the Northwest corner of Sand Creek Road and Fairview Avenue for Sand Creek Park and Sand Creek Road, CIP 33660; and

WHEREAS, on May 25, 1999, the City Council approved Resolution No. 99-134, which adopted the 1999-2004 Capital Improvement Program; and

WHEREAS, on October 12, 1999, the City Council by Resolution No. 99-227 approved the Engineering Design Contract for the central portion of Sand Creek Road from Fairview Avenue to the Railroad Tracks, CIP Project No. 336-3061; and

WHEREAS, on May 23, 2000, the City Council approved Resolution No. 2076, which adopted the 2000-2005 Capital Improvement Program, which included a portion of the Sand Creek Park Project, CIP 522-5203 and the Sand Creek Road Project, CIP 336-3061; and

WHEREAS, on May 23, 2000, the City Council passed Resolution No. 2081 certifying the Mitigated Negative Declaration and adopting the Mitigation Monitoring and Reporting Program for the Sand Creek Road Project, CIP 336-3061; and

WHEREAS, on May 22, 2001, the City Council passed Resolution No. 2299 certifying the Negative Declaration and adopting the 2001-2006 Capital Improvement Program, which included a portion of the Sand Creek Park Project, CIP 522-5203 and the Sand Creek Road Project, CIP 336-3061; and

WHEREAS, a Lease for Park Use and Option To Purchase Agreement is needed for Sand Creek Park and Sand Creek Road; and

WHEREAS, real property identified as APN 019-110-032 owned by Joseph G. and Gloria L. Castello and Victor R. and Marjorie Lola Castello is needed for the ultimate Sand Creek Park and the Sand Creek Road Project; and

WHEREAS, a Purchase Agreement between the City of Brentwood and the vested property owners needs to be developed and is necessary to transfer property.

NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Brentwood, that the Lease for Park Use and Option To Purchase Agreement with the vested property owners is approved.

BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Purchase Agreement with the above property owners attached as Exhibit B to the Lease for Park Use and Option To Purchase Agreement when the City can close escrow for the purchase price set out in the Purchase Agreement.

BE IT FURTHER RESOLVED that the Mayor or City Manager and City Clerk or any of their designees are authorized to execute the Agreements and any related escrow documents including accepting the Grant Deed.

BE IT FURTHER RESOLVED that the City of Brentwood hereby accepts the Grant Deed.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 12th day of June 2001 by the following vote:

AYES: Councilmembers
NOES: 
ABSENT: 



WHEN RECORDED RETURN TO:

City of Brentwood
C/o City Clerk
150 City Park Way 
Brentwood, CA 94513


LEASE FOR PARK USE AND OPTION TO PURCHASE 

THIS LEASE is made as of this _____ day of __________, 2001 by and between, JOSEPH G. CASTELLO AND GLORIA L. CASTELLO, AS TRUSTEES UNDER THE 1982 CASTELLO LIVING TRUST DATED OCTOBER 14, 1982 ALL THEIR RIGHT, TITLE AND INTEREST AND VICTOR R. CASTELLO AND MARJORIE LOLA CASTELLO LIVING TRUST DATED MAY 25, 1989 ALL THEIR RIGHT, TITLE AND INTEREST, (“Landlord”), and CITY OF BRENTWOOD, a California municipal corporation (“City”).

WITNESSETH:

A. In consideration of the rents and covenants and subject to the terms herein set forth, Landlord hereby leases to City, and City hereby leases from Landlord certain property located at the northwest intersection of Fairview Avenue and the new Sand Creek Road, Brentwood, California, Contra Costa County, being a portion of Assessor's Parcel No 019-110-032, (“Property”) containing approximately 9.6 acres of area (hereinafter “Property”), as more particularly designated and outlined on a plat labeled Exhibit A and incorporated herein by reference.

B. As more particularly set forth in this Lease for Park Use and Option to Purchase ("Lease"), Landlord granted to City an option to purchase the Property.

C. Landlord and City desire to execute this Lease to provide constructive notice to all third parties of the City's rights under this Lease and in particular City's rights of an option to purchase the Property.

For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 

1. Term

Except as provided in Paragraph 5, the Term of this Lease shall be for a period of two (2) years commencing on the Effective Date and ending 24 months late from the Effective Date, unless extended in writing by mutual agreement of the parties.

2. Rent

City covenants and agrees to pay $25,000.00 annually, without offset or deduction, except as expressly authorized elsewhere in this Lease, to the Landlord, its successors and assigns. The City shall make the first (1st) annual payment upon full execution of this Lease. The second annual payment, if necessary, will be made 12-months after the first payment.

In the event that the City purchases property before 12-months has elapsed, any remaining rent prepaid by City will be a credit to City in escrow. 

3. As Is Condition 

Landlord shall deliver the Property in an “as-is” condition, except as provided in this Lease. Landlord acknowledges and agrees that City shall have complete access to the Property for the purpose of conducting any grading, installation, and construction of a public park or related public park use. 

4. Use

City intends to use the Property as a public park and related uses of a public park and effectively operate a public park. 

5. Termination

This Lease shall terminate on the day immediately preceding 24 month anniversary of the effective date of this Lease or when the parties can close escrow for the City's purchase of the Property, whichever occurs first. The effective date of this Lease shall be the date when the City begins to make improvements to the Property or on July 1, 2001, whichever occurs first. If the City does holdover, annual rent shall be increased by 10% and prorated over each month that the City retains possession, but no holdover shall be permitted for more than six months after original term of this Lease without a written lease. Upon termination of this Lease, the City agrees to purchase the property from the Landlord. If this Lease terminates due to the exercise of the City’s option granted in Paragraph 10, then the City shall purchase the Property according to the terms stated in Paragraph 10. If the City has not exercised its option granted in Paragraph 10, the City agrees to purchase the Property for cash and close escrow no later than the conclusion of the 24 month lease term or any allowable holdover at the adjusted purchase price set forth in Paragraph 10.

6. Payments at the Landlord's Direction

All rent payable and all statements deliverable by the City to the Landlord under this Lease shall be paid and delivered to the Landlord at the place designated by the Landlord for notices under this Lease, or any place it so designates in writing in the future.

7. Taxes, Insurance Premiums, and Maintenance Expenses

(a) Landlord will pay annually all taxes which may be levied or assessed by any lawful authority against the Property to the extent of Landlord’s current taxes and any annual increases allowable under Proposition 13. 

The term “taxes” shall mean and include all taxes, assessments and other governmental charges, general and special, excluding taxes levied or assessed against the Property including, without limitation, assessments for public improvements or benefits, which shall, during the Term, be assessed, levied, and imposed by any governmental authority upon the land that comprises the Property. 

(b) City shall pay taxes levied or assessed against Property for public improvements or benefits.

(c) City shall pay for all utilities consumed by it at the Property. 

8. Past Due Rent and Additional Sums

If the City fails to pay within ten (10) days of the due date thereof, any rent, or any other amounts or charges, such unpaid amount shall accrue a late charge in the amount ten percent (10%) of the unpaid amount, and shall in addition thereto bear interest from the eleventh (11th) day following the due date until the date of payment at the rate of ten percent (10%) per annum.

9. The City's Covenants

The City covenants and agrees as follows:

(a) Prompt Payment

That it will pay when due all Rent and other charges herein described and all water and sewer charges, gas, electricity and other utility bills attributable to the Property as the same shall become due. If the Landlord shall pay any money or incur any expenses in correction of violations of the City's covenants herein set forth, the amounts so paid or incurred shall, at the Landlord's option, bear interest at the rate set forth in Paragraph 8 hereof. Charges for the foregoing shall commence on the effective date of this Lease.

(b) Park Use

Landlord will permit the City to grade the Property for use as a park and any related public park use. 

(c) Insurance/Indemnity

All personal property, improvements, and betterment's of City in the Property, shall be and remain at its sole risk, and Landlord shall not be liable for any damage to or loss of such personal property arising from or out of the occupancy or use by City of the Property, or any part thereof or any other part of Landlord's property comprising the Property, from vandalism or theft, except as due to Landlord's negligence and/or willful misconduct or that of its agents, employees, contractors, invitees or licensees.

Except in the case of Landlord's active negligence and/or willful misconduct or that of its agents, employees, contractors, invitees or licensees, City shall be liable for any injury or loss of life of persons in the Property.

Except in the case of Landlord’s own active negligence and/or willful misconduct or that of its agents, employees, contractors, invitees or licensees, City shall protect, defend and indemnify and save Landlord, its agents and employees harmless from any and all liability, damage, expense, cause of action, suits, loss, costs, penalties, attorneys fees, claims or judgments arising from any injury or loss of life to the person of City or other persons or damage to property caused by City's negligence and/or willful misconduct or that of its agents, employees, contractors, invitees or licensees.

10. Option to Purchase.

Landlord grants to City an option to purchase the Property within two years from the effective date of this Lease (the “Option Period”). The city may purchase the Property at anytime during the Option Period for Fee Credits, as defined by the City’s Development Fee Program, or for cash. If either the Landlord or the City finds a buyer willing and able to purchase sufficient Fee Credits at face value to compensate Landlord for the purchase price, as established and adjusted in this Paragraph, then the City agrees to exercise its option to purchase the Property. On the occurrence of this contingency, either party may give the other party 30-day prior notice of its intent to close escrow. If the City decides to purchase the Property for cash, the exercise of the City’s option shall be in writing sent to the Landlord at the address provided in Paragraph 16, and the parties shall close escrow on the City’s purchase within 30 days of the City exercising its option. In either situation, both parties shall undertake all appropriate actions to close escrow within the applicable 30 day period.

The Property's purchase price shall be $1,000,000.00. The Property's purchase price shall be adjusted upward by the annual rate [time to commence upon execution of Lease] of increase as established U.S. Bureau of Commerce, cost of living index for the S. F. /Oakland area and prorated accordingly for portion of a year. The City shall pay all escrow, recording, or other fees incurred in this purchase, if any, and if title insurance is requested by the City, City shall pay for the title insurance. The terms of the purchase shall be as described in Exhibit B, attached hereto and incorporated herein by this reference.


If after two years from the effective date of this Lease, the City has not closed escrow for the purchase of the Property, the City agrees to purchase the Property, under the threat of eminent domain proceedings, for the purchase price described herein. But for this Lease, the City would take all appropriate actions to initiate an eminent domain proceeding in order to purchase the Property for public use. 

11. Quiet Possession

Landlord represents to and covenants with City that Landlord shall not enter into any covenants, easements or other agreements after the date of this Lease which prohibit or restrict City's proposed use of the Property or otherwise change the terms of this Lease without City’s prior written consent of City.

12. Hazardous Materials

Landlord represents that to the best of their knowledge, the Property is in compliance in all material respects with all applicable federal, state, and local statutes, ordinances and codes, including, but not limited to, pollution, environmental protection and the rules and regulations of any governmental authority having jurisdiction over the Property. Landlord is not aware of any outstanding environmental violations of any of the foregoing.

The parties acknowledge that herbicides and pesticides may have been used in connection with prior agricultural uses of or for mosquito and/or weed abatement on the Property. To the best of the Landlord's knowledge, said herbicides and pesticides and mosquito abatement were applied in compliance with the law. Other than such materials, Landlord represents and warrants that during the period that Landlord owned the Property, there have been no disposals, releases or threatened releases of hazardous substances or wastes on, from, or under the Property. 

Landlord further represents and warrants that Landlord has no knowledge of wastes, on, from or under the Property, which may have occurred prior to Landlord's taking title to the Property. 

If the Property is found to be contaminated with hazardous material, which requires mitigation under Federal or State law, the City may elect to recover its clean-up costs from those who caused or contributed to the contamination. 

Neither City, its successors or assigns, nor any permitted assignee, permitted sublessee or other person acting at the direction of City shall (i) manufacture, treat, use, store or dispose of any Hazardous Materials on the Property or any part thereof in violation of any applicable Environmental Laws, or (ii) permit the release of a Hazardous Material on or from the Property or any part thereof.

In the event of a release of Hazardous Material by City, City shall indemnify, protect, defend and hold Landlord harmless from and against any and all costs, fees, damages, losses, expenses and/or liabilities of any kind or nature in any way related to the release, removal, transportation and/or disposal of such Hazardous Materials. If any action or proceeding were brought against Landlord by reason of such claim, City upon notice from Landlord shall defend the same at City's expense by counsel reasonably satisfactory to Landlord. In the event Landlord incurs any costs, fees, damages, losses, expenses, and/or liabilities in connection with a release of Hazardous Materials by City, City shall pay such costs, fees and/or expenses within ten (10) days of written request from Landlord. Landlord shall not incur any fees or costs before notifying Tenant that it is likely to incur such fees and costs unless City takes corrective action.

The term “Hazardous Material” shall mean any waste, substance, or material (i) identified in Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as the same may be amended from time to time (herein called “CERCLA”), or (ii) determined to be hazardous, toxic, a pollutant or contaminant, under federal, state, or local law, including, but not limited to, petroleum and petroleum products. The term "release" shall have the meaning given to such term in Section 10 1 (22) of CERCLA.

13. Attornment

City shall, in the event any proceedings are brought for the foreclosure of, or in the event of exercise of the power of sale under any mortgage made by Landlord covering the Property, attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as Landlord under Lease provided such purchaser expressly assumes all of the Landlord's obligations hereunder in writing.

14. Subordination

The rights of City under this Lease shall be and are subject and subordinate at all times to the lien of any bank or institutional deed of trust or deeds of trust now or hereafter in force against the Property and to all advances made or hereafter to be made upon the security thereof, provided the note holder and beneficiary secured by such deed of trust or deeds of trust shall agree to recognize the Lease of City in writing in the event of foreclosure if City is not then in default beyond any applicable cure period. Within fifteen (15) business days after receipt of request therefor by Landlord, City shall deliver to Landlord such subordination agreement in a form acceptable to City as may be required by any lender or proposed lender to evidence such subordination.

15. Landlord's Remedies

If the rent, or any other charge agreed to be paid and all other sums of money which under the provisions hereof may be due Landlord, shall be in arrears in whole or in part for ten (10) or more days following written notice, City shall be in default. If City shall violate any covenant contained herein, other than the covenant to pay rent or other sums of money due Landlord, and shall fail to comply with such covenant within thirty (30) days after being given written notice of such violation by Landlord, City shall be in default. In the event of City's default, Landlord shall have the following remedies:

(a) Landlord may continue the lease in full force and effect for so long as Landlord does not terminate the City's right to possession and Landlord may enforce all of Landlord's rights and remedies under this Lease; and 

(b) Landlord may terminate City's right to possession, in which case this Lease shall terminate and, upon such termination, the Landlord may recover from the City unpaid rent and any additional rent which had been earned at the time of termination.

16. Notices

All notices from City to Landlord required or permitted by any provision of this Lease shall be in writing and sent by registered or certified mail, postage prepaid and directed to Landlord at:

Joseph G. Castello
152 Newell Avenue
Los Gatos, California 95032

All notices from Landlord to City so required or permitted shall be in writing and sent by registered or certified mail, postage prepaid and directed to City at:

Jon Elam, City Manager
City of Brentwood
150 City Park Way
Brentwood, CA 94513

Either party may, at any time or from time to time, designate in writing a substitute address for that above set forth, and thereafter notices shall be directed to such substitute address for that above set forth. Notices to either party shall be effective three (3) business days after depositing in the United State Postal system or on the next business day if sent by overnight courier in accordance with this Paragraph.

17. Successors and Assigns

This Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon Landlord, its successors, and assigns, and shall be binding upon City, its successors, assigns, heirs, executors, administrators, and legal representatives, and shall inure to the benefit of City and only such assigns of City to whom the assignment by City has been consented to by Landlord.

18. Waiver

The failure of either party to insist, in any one or more instances, upon a strict performance of any covenant of this Lease or to exercise any option or right herein contained shall not be construed as a waiver or relinquishment for the future of such covenant, right, or option, but the same shall remain in full force and effect unless the contrary is expressed in writing.

19. Holding Over

Any holding over by City after expiration of the Lease Term shall constitute a renewal or extension of the Lease. Any holding over after the expiration of the Lease without the consent of Landlord shall be construed to be a tenancy from month to month. Rent shall be ten percent (10%) of the previous annual rent and prorated over each month the City retains possession. No holdover shall be permitted for more than six months after the original term of this Lease without a new written lease.

20. Entire Agreement

This Lease sets forth all the promises, agreements, conditions, and understandings between Landlord and City relative to the Property, and there are no promises, agreements, conditions, or understandings, either oral or written, expressed or implied, between them other than set forth herein. Except as herein otherwise provided, no subsequent alterations, amendment, change, or additions to this Lease shall be binding upon Landlord or City unless reduced to writing and signed by them.

21. Construction of Agreement

This Lease shall be constructed under the laws of the State of California in which the Property are located. All headings preceding the text of the several provisions and sub provisions are inserted solely for convenience of reference and none of them shall constitute a part of this Lease or affect its meaning, construction, or effect. Venue for any action brought by Landlord and City relation to this Lease shall be in the courts of Contra Costa County.

22. Broker's Commissions

Each party represents that it has not had dealings with any real estate broker, finder, or other person with respect to this Lease in any manner. Each party shall hold harmless the other party from all damages resulting from any claims that may be asserted against the other party by any broker, finder, or other person, with whom the other party has or purportedly has dealt.

23. Attorney’s Fees

Attorney’s fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this agreement. The above $5000 limit is the total of attorneys fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this agreement that neither party shall have to pay the other more than $5000 for attorney’s fees arising out of an action, or actions to enforce the provisions of this agreement.

In the event any dispute arising between the parties is resolved without court proceedings, the prevailing party shall be entitled to recover attorneys' fees as stated above, including fees for In-House Counsel, in connection with such dispute.


IN WITNESS WHEREOF, Landlord and City have caused this Lease to be executed in their names by their duly authorized officers.

LANDLORD CITY

______________________ ________________________
Joseph G. Castello, Jon Elam
Trustee City Manager

______________________
Gloria L. Castello,
Trustee

Attest:
______________________
Victor R. Castello _________________________
Karen Diaz, CMC, City Clerk

______________________
Marjorie Lola Castello



EXHIBIT A









Location Map Here. 
EXHIBIT B


CITY OF BRENTWOOD
AGREEMENT FOR PURCHASE AND SALE OF INTERESTS IN REAL PROPERTY

Parcel Number: 019-110-032
Property Location: Fairview Avenue at Sand Creek Road
Project Name: Sand Creek Park [Castello Property]

Grantors: Joseph G. Castello and Gloria L. Castello, as Trustees, etux
Mailing Address: 152 Newell Avenue– Los Gatos, CA 95032


A document in the form of a Grant Deed, covering the property described and shown in Exhibit A (hereinafter referred to as “Purchase Property”, will be executed and delivered to the City Clerk of the City of Brentwood.

In consideration of the above-mentioned instrument and the other considerations hereinafter set forth, it is mutually agreed as follows:

1. This Agreement is effective on the date of approval by the City Council.

2. The City shall:

A. Acquire said Purchase Property for One-Million Dollars $1,000,000.00, by paying the undersigned grantors with “Fee Credits” as follows:

- Park Fee Credits of Four-Hundred-Eleven-Thousand Dollars ($411,000.00)

- Roadway Fee Credits of Two-Hundred-Ninety-Four-Thousand-Five-Hundred Dollars ($294,500.00) 

- Water Fee Credits of Two-Hundred-Ninety-Four-Thousand-Five-Hundred Dollars ($294,500.00),

for the fee interest as conveyed by the above document when title to said
Purchase Property or interest vests in the City free and clear of all liens, encumbrances,
assessments, leases, and taxes, as shown in the Preliminary Report issued by North
American Title Company, Order No. 9690511 and dated November 8, 1999, except
Item No’s. 4, 5, and 9.

B. Pay all escrow, recording, or other fees incurred in this transaction, if any, and, if title insurance is desired by the City, the premium charged therefor.

3. Grantor hereby authorizes the City to prepare and file escrow instructions with Title Company, on behalf of Grantor, in accordance with this agreement. Parties herein mutually agree that close of escrow will occur simultaneously with the close of escrow on APN 019-110-031. Grantor to give City 30 days notice prior to the close of escrow on APN 019-110-031.

4. It is understood that the agreement between the City and the Grantors shall include the following:

A. Grantors warrant that there are no oral or written leases on all or any portion of the property being conveyed exceeding a period of one month, except that certain Oil and Gas Lease, dated January 22, 1960, by and between John Costello, et. ux. and Shell Oil Company, recorded January 12, 1961, Book 3782, Page 368, Official Records, and the grantors further agree to hold the City harmless and reimburse the City for any and all of its losses and expenses occasioned by reason of the aforementioned lease or any lease of said property held by any tenant of grantor for a period exceeding one month.

B. The legal description of said Purchase Property will contain the following exception:

Seller reserves its interest in and to all of, gas, petroleum and other hydrocarbon substances and minerals in, under or recoverable from the portion of subsurface of the above described Purchase Property lying below a plane parallel to and five hundred (500) feet vertically below the surface of said Property; and the right to remove therefrom such oil and minerals from said subsurface subject to complying with all applicable laws, including laws of the City of Brentwood. The rights granted herein do not and shall not include the right to enter upon the surface of the Purchase Property or any portion hereof lying above a plane parallel to and five hundred (500) feet vertically below the surface of said Property. These rights of Seller shall collectively be referred to as "subsurface rights."

C. The acquisition price of the property being acquired in this transaction reflects the fair market value of the property without the presence of contamination.

a.) To the best of Grantors' knowledge, the Purchase Property is in compliance in all
material respects with all applicable federal, state and local statutes, ordinances and
codes, including, but not limited to, pollution, environmental protection and the rules
and regulations of any governmental authority having jurisdiction over the Purchase
Property. Grantors are not aware of any outstanding violations of any of the
foregoing.

b.) The parties acknowledge that herbicides and pesticides may have been used in
connection with prior agricultural uses of or for mosquito and/or weed abatement on the Purchase Property. To the best of Grantors' knowledge, said materials were applied in compliance with law. Other than such materials, Grantors represent and warrant that during the period of Grantors' ownership of the property, there have been no disposals, releases or threatened releases of hazardous substances or wastes on, from, or under the property.

c.) Grantors further represent and warrant that Grantors have no knowledge of wastes, on, from or under the property, which may have occurred prior to Grantors taking title to the property.

d.) If the Purchase Property is found to be contaminated by the presence of hazardous
waste, which requires mitigation under Federal or State law, the City may elect to
recover its clean-up costs from those who caused or contributed to the
contamination.

The parties have herein set forth the whole of their agreement. The performance of this agreement constitutes the entire consideration of said document and shall relieve the City of all further obligation or claims on this account, or on account of the location, grade or construction of the proposed public improvement.


CITY OF BRENTWOOD GRANTORS


By: 
Michael A. McPoland, Sr., Mayor 

Date: 

ATTESTED:

By: 
Karen Diaz, CMC, City Clerk

Date: Date: 



NO OBLIGATION OTHER THAN SET FORTH HEREIN WILL BE RECOGNIZED

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