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REDEVELOPMENT AGENCY AGENDA ITEM NO. 12

Meeting Date: December 12, 2006

Subject/Title: Adopt a Resolution approving a Purchase and Sale Agreement with Roberta Jean Garin, Elsie Jane Dill, Beverly Ann Bray, and Christina Hassler, or their authorized representative, for real property identified as 3740 Walnut Boulevard, APN 012-170-006, accepting real property on behalf of the Redevelopment Agency and authorizing the Redevelopment Agency’s Executive Director and Agency Secretary or any of their designees to execute the agreement, and such other documents as may be needed to complete the transaction including acceptance of the Deed; and approving an amendment to the Redevelopment Agency’s 2006-07 budget in the amount of $1,250,000.

Prepared by: Gina Rozenski, Redevelopment Manager

Submitted by: Howard Sword, Economic Development Director

RECOMMENDATION
Adopt a Resolution approving a Purchase and Sale Agreement with Roberta Jean Garin, Elsie Jane Dill, Beverly Ann Bray, and Christina Hassler, or their authorized representative, for real property identified as 3740 Walnut Boulevard, APN 012-170-006, accepting real property on behalf of the Redevelopment Agency and authorizing the Redevelopment Agency’s Executive Director and Agency Secretary or any of their designees to execute the agreement, and such other documents as may be needed to complete the transaction including acceptance of the Deed; and approving an amendment to the Redevelopment Agency’s 2006-07 budget (Funds 303 and 301) in the amount of $1,250,000.

PREVIOUS ACTION
On September 12, 2006, the Redevelopment Agency provided direction to the Agency’s negotiators, Howard Sword and Gina Rozenski, regarding land acquisition.

BACKGROUND
The property located at 3740 Walnut Boulevard is vacant and is adjacent to an Agency-owned parcel. Both parcels fall within the Western Gateway Zone in the Downtown Specific Plan. The owner’s representative and the Agency have been cooperatively working together to assemble the two parcels for a future, comprehensive development of the site. The future development of this site as corner store retail and residential offers a prime opportunity to build a gateway project that will create a neighborly place to live and shop within walking distance to the Downtown core. If this agreement is approved, Agency staff will be searching for an experienced developer via a request-for-qualifications process that will ultimately lead to an exclusive right to negotiate agreement, then a disposition and development agreement. This process and any necessary actions will be brought to the Redevelopment Subcommittee and the Agency for consideration and approval.

The property owners offered the property for sale to the Redevelopment Agency when the owners decided to not develop their parcel. A recent appraisal valued the property at $13.00 per square foot, and is very much aligned with the appraised value of the adjacent parcel owned by the Agency. The property is 2.156 acres or 93,916 square feet. The purchase price is $1,220,900 with contingencies to clear the title of certain conditions and to allow the Agency to determine and approve the environmental condition of the property. The parties wish to close of escrow in February 2007.

An escrow has been opened, title conditions are being reviewed, and a Phase I environmental study has been ordered. In addition, the parties are working together to remove an underground storage tank from the Garin parcel that was discovered during the widening of Walnut Boulevard.

A total development site of four acres will be available when the Garin parcel is assembled with the Agency-owned parcel.

FISCAL IMPACT
The acquisition, Phase I study and escrow costs are estimated at $1,250,000 and will be funded by a transfer from the Agency’s reserve Fund 303 to the Agency’s Administration Fund 301, with the direct expenditure from Fund 301. This will require a budget amendment as follows:

1. Expenditure of $1,250,000 from Fund 303
2. Revenue of $1,250,000 into Fund 301
3. Expenditure of $1,250,000 from Fund 301.

No City General Funds will be used for this transaction.

Attachments:
Resolution
Site Map/Project Map
Agreement

RESOLUTION NO.

A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD APPROVING AN AGREEMENT FOR PURCHASE OF A FEE PARCEL WITH ROBERTA JEAN GARIN, ELSIE JANE DILL, BEVERLY ANN BRAY AND CHRISTINA HASSLER, OR THEIR AUTHORIZED REPRESENTATIVE, FOR REAL PROPERTY IDENTIFIED AS 3740 WALNUT BOULEVARD, BRENTWOOD, CA, APN 012-170-006, ACCEPTING REAL PROPERTY ON BEHALF OF THE AGENCY, AND AUTHORIZING THE REDEVELOPMENT AGENCY’S EXECUTIVE DIRECTOR AND AGENCY SECRETARY OR ANY OF THEIR DESIGNEES TO EXECUTE THE AGREEMENT, AND SUCH OTHER DOCUMENTS AS MAY BE NEEDED TO COMPLETE THE TRANSACTION INCLUDING ACCEPTANCE OF THE DEED, AND APPROVING AN AMENDMENT TO THE REDEVELOPMENT AGENCY’S 2006-07 BUDGET.

WHEREAS, 3740 Walnut Boulevard (“Property”) is located within the boundaries of the Redevelopment Plan for the Brentwood Redevelopment Project, and is subject to rights, restrictions, conditions and provisions of said Plan and any amendments thereto; and

WHEREAS, the Property is owned by Roberta Jean Garin, Elsie Jane Dill, Beverly Ann Bray and Christina Hassler, individually or as trustees of certain trusts, (“Owners”), and further identified as APN 012-170-006; and

WHEREAS, the Property is under-utilized causing a physical and economic blight condition; and

WHEREAS, for future redevelopment opportunities of the Property in accordance with the Downtown Specific Plan’s zoning regulations and design standards and guidelines, the Agency desires to acquire the Property for the purpose of facilitating and encouraging a gateway project that will create additional residential and shopping opportunities within walking distance to the Downtown core; and

WHEREAS, a Purchase Agreement between the Agency and the Owners has been negotiated for the necessary transfer of the Property to the Agency.

NOW, THEREFORE BE IT RESOLVED, by the Redevelopment Agency of the City of Brentwood, that the Agency hereby finds and determines as follows:

1. The Redevelopment Plan for the Brentwood Redevelopment Project authorizes the acquisition of real property located in the Project Area for future redevelopment purposes.

2. The payment from the Redevelopment Agency’s 80% tax increment will assist in the elimination of the blighting condition inside the Project.

3. The Implementation Plan identifies as goals and objectives the following:

Eliminate conditions of blight existing in the Project Area and insure, to the extent possible, that the causes of blighting conditions will be eliminated or prevented.

Encourage expansion of local commercial, retail, industrial and residential opportunities to achieve the greatest return on Agency’s investment, maximize the leveraging of tax increment, create local jobs, enhance sales tax generation, and increase property values.

Facilitate and assist the implementation of goals, objectives and recommendations of approved . . . planning, zoning, and design documents; and specific plans adopted for the areas within the Merged Project Areas.

Continue to increase, improve and preserve the supply of affordable very low, low and moderate income housing inside and outside the Merged Project Areas.

4. The Executive Director, Agency Counsel and Agency Secretary, or their designees, are authorized to execute the Purchase Agreement for the Property for an amount not to exceed $1,220,900 plus incidental fees and any related escrow and inspection fees and to take all actions and execute documents to complete the purchase transaction.

5. The Agency staff is directed to take actions necessary to assemble the Property with the adjacent Agency-owned parcel, and to commence a request-for-qualifications process to identify a financially capable, experienced developer for development of a mixed-use project consisting of housing and corner store retail that is an integral part of Downtown Brentwood and in compliance with the Downtown Specific Plan.

BE IT FURTHER RESOLVED, that the Brentwood Redevelopment Agency hereby authorizes the Executive Director or her designee to accept the real property described in the Grant Deed.

BE IT FURTHER RESOLVED, that the Brentwood Redevelopment Agency hereby amends its 2006-07 expenditure budget in the amount of $1,250,000 for Debt Service Fund 303, hereby amends its 2006-07 revenue budget in the amount of $1,250,000 for Administration Fund 301, and hereby amends its 2006-07 expenditure budget in the amount of $1,250,000 from Administration Fund 301 for the purpose of this transaction.

PASSED, APPROVED AND ADOPTED by the Redevelopment Agency of the City of Brentwood at a regular meeting held on the 12th day of December 2006 by the following vote:

ASSESSOR'S PARCEL NO: 012-170-006
AGREEMENT FOR PURCHASE AND SALE OF REAL
PROPERTY (INCLUDING ESCROW INSTRUCTIONS)

THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (the "Agreement") is entered into as of , 2006, (the date of last execution of this Agreement by the parties as indicated on the signature page hereof) (the “Date of Agreement”) by and between CITY OF BRENTWOOD REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and ROBERTA JEAN GARIN, SUCCESSOR TRUSTEE OF THE WILLIAM O. GARIN SEPARATE PROPERTY REVOCABLE TRUST ESTABLISHED ON NOVEMBER 10, 1992, BY DEVISE, ELSIE JANE DILL AS TO AN UNDIVIDED ONE-FOURTH (1/4) INTEREST, BY DEVISE, BEVERLY ANN BRAY AS TO AN UNDIVIDED ONE-EIGHTH (1/8) INTEREST, BY DEVISE, CHRISTINA HASSLER AS TO AN UNDIVIDED ONE-EIGTH (1/8) INTEREST, BY DEVISE, AND ELSIE JANE DILL, AS TRUSTEE, UNDER THE WILL OF ROBERT E. GARIN, DECEASED, AND BY THE DECREE OF DISTRIBUTION OF THE ESTATE, A CERTIFIED COPY OF WHICH WAS RECORDED ON DECEMBER 19, 1990, SERIES NO. 90-259912, AS TO AN UNDIVIDED ONE-FOURTH (1/4) INTEREST (“Garin”).

IT IS HEREBY MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS:

1. Agreement to Sell and Purchase. Garin agrees to sell to Agency, and Agency agrees to purchase from Garin, upon the terms and for the consideration set forth in this Agreement, that approximately 2.156-acre portion of real property (APN 012-170-006), located at 3740 Walnut Avenue in the City of Brentwood, County of Contra Costa, State of California, which is legally described in the Legal Description attached hereto as Exhibit A and incorporated herein (the "Property").
2. Purchase Price. The total purchase price for the Property shall be $1,220,900.00 (the "Purchase Price"). Agency shall pay the Purchase Price by depositing into Escrow, on or before the date for close of Escrow, immediately available funds in the amount of the Purchase Price.
3. Conveyance of Title. Garin agrees to convey by Grant Deed to Agency marketable fee simple title to the Property, free and clear of all recorded and unrecorded liens, encumbrances, assessments, easements, leases, and taxes except (i) any exceptions approved by the Agency pursuant to Section 3.1 below; and (ii) matters created by, through or under Agency. Garin shall not voluntarily create any new exceptions to title following the date of this Agreement.
3.1. Review of Title. Agency has obtained a Preliminary Title Report from North American Title Company with respect to the Property (the "Report"). Agency shall have until a date 30 days after the Date of Agreement to review all exceptions and matters shown therein. In the event that the Report shows any exceptions which are unacceptable to Agency, Agency may, by written notice to Garin given by a date 30 days after the Date of Agreement, disapprove of any such exceptions (the "Unpermitted Exceptions"). Any exception not disapproved in accordance with this section shall be deemed approved by Agency. If Agency notifies Garin of any Unpermitted Exceptions and if Garin is unwilling or unable, after exercising commercially reasonable efforts, to cure the Unpermitted Exceptions to Agency's satisfaction within ten days after Agency's notice or such longer period as may be agreed upon in writing by both Agency and Garin, then Agency may, at its sole option, either (a) terminate this Agreement by written notice to Garin given within five days of the end of such ten-day period, in which event neither party shall have any further rights, obligations or liabilities hereunder, or (b) accept the Property subject to the Unpermitted Exceptions. Agency's failure to give Garin written notice of its election to terminate within such five-day period shall be deemed to be Agency's acceptance of the Unpermitted Exceptions.
4. Title Insurance Policy. Escrow Agent (defined below) shall, following recordation of the Grant Deed, provide Agency with a CLTA (or ALTA, at the request of the Agency) policy of title insurance in the amount of the Purchase Price, issued by the Title Company, together with any endorsements requested by the Agency, showing fee simple title to the Property vested in Agency, subject only to the exceptions approved by Agency as set forth in Section 3 and approved printed exceptions and stipulations in the policy. Agency shall pay the title policy premium.
5. Escrow. Agency and Garin have opened an escrow (the "Escrow") in accordance with this Agreement with North American Title Company, Attn: Linda Moore, Escrow Number 54709-559011301 (the "Escrow Agent"). This Agreement, together with the escrow instructions prepared by Escrow Agent and executed by Agency and Garin, constitutes the joint escrow instructions of Agency and Garin, and Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to perform all acts necessary to close this Escrow in the shortest possible time. Escrow Agent shall execute the attached Consent of Escrow Agent.
5.1. Grant Deed. Prior to the close of Escrow, Garin shall execute, acknowledge and deliver into Escrow a Grant Deed (the "Grant Deed") in the form attached hereto as Exhibit B and incorporated herein. The Certificate of Acceptance attached to the Grant Deed shall be executed, acknowledged and delivered into Escrow by Agency on or before the close of Escrow. Agency and Garin agree to deposit with Escrow Agent any additional instruments as may be necessary to complete this transaction.
5.2. Insurance. Insurance policies for fire or casualty are not to be transferred, and Garin will cancel its own policies after close of escrow.
5.3. Escrow Account. All funds received in the Escrow shall be deposited with other escrow funds in a general escrow account and may be transferred to any other escrow trust account in any state or national bank doing business in the State of California. All disbursements shall be made by check from such account.
6. Pro Rations; Tax Adjustment Procedure. Agency is a public agency and exempt from the payment of property taxes. Garin will be responsible for all taxes and assessments up to the Close of Escrow, as defined below. There are no tenants on the Property, therefore there is no need for the proration of rents.
7. Escrow Agent Authorization. Escrow Agent is authorized to, and shall:
7.1. Pay and Charge Garin. Pay and charge Garin for any amount necessary to place title in the condition necessary to satisfy Section 3 of this Agreement and for any Escrow fees, recording fees and other costs and expenses of Escrow payable under Section 7.8 below.
7.2. Pay and Charge Agency. Pay and charge Agency for any Escrow fees, recording fees and other costs and expenses of Escrow payable under Sections 7.8, 9.1 and 9.2 below.
7.3. Disbursement. Disburse funds, record the Grant Deed and Certificate of Acceptance, and deliver the title policy and the Non-Foreign Transferor Declaration to Agency, when conditions of the Escrow have been fulfilled by Agency and Garin.
7.4. Close of Escrow. The term "Close of Escrow," if and where written in these instructions, shall mean the date the Grant Deed and other necessary instruments of conveyance are recorded in the office of the Contra Costa County Recorder. Recordation of instruments delivered through this Escrow is authorized, if necessary or proper in the issuance of the policy of title insurance pursuant to Section 4 hereof.
7.5. Time Limits. All time limits within which any matter specified is to be performed may be extended by mutual agreement of the parties. Any amendment of, or supplement to, any instructions must be in writing. E-mail is an acceptable form of writing.
7.6. Time of the Essence. TIME IS OF THE ESSENCE IN THESE INSTRUCTIONS AND ESCROW IS TO CLOSE ON OR BEFORE FEBRUARY 16, 2007. Any extension of this date must be in accordance with Section 7.5 above. If this Escrow is not in condition to close by such date, then any party who has fully complied with this Agreement may, in writing, demand the return of its money or property; provided, however, no demand for return shall be recognized until five days after Escrow Agent shall have mailed copies of demand to the other party at the respective addresses shown in Section 18, below, and if any objections are raised within such five-day period, Escrow Agent is authorized to hold all money, papers and documents until instructed by a court of competent jurisdiction or mutual instructions.
7.7. Escrow Agent Responsibility. The responsibility of the Escrow Agent under this Agreement is expressly limited to Sections 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12 of this Agreement and to its liability under any policy of title insurance issued in regard to this Escrow.
7.8. Escrow Fees, Charges and Costs. Agency shall pay the costs of the Title Policy, one-half of the Escrow fee and any other local customary fees and costs normally chargeable to the buyer. Garin shall pay one-half of the Escrow fee, recording fees, if any, notary fees and any other local customary fees and costs normally chargeable to the seller.
7.9. FIRPTA. If the provisions of FIRPTA or similar state act apply to the transaction memorialized in this Agreement, and unless Garin is not a "foreign person" or an exemption applies, the Escrow Agent shall deduct and withhold from Garin's proceeds ten percent of the gross sales price and shall otherwise comply with all applicable provisions of FIRPTA and any similar state act. Garin and Agency agree to execute and deliver as directed by Escrow Agent any instrument, affidavit, and statement, and to perform any act reasonably necessary to comply with the provisions of FIRPTA and any similar state act and regulation promulgated thereunder.
7.10. Transfer Taxes. No transfer tax shall be due because Agency is a public entity.
8. Conditions Precedent to Close of Escrow.
8.1. Agency's Conditions Prior to Closing. The obligation of the Agency to complete the purchase of the Property is subject to the satisfaction of the following conditions:
a. Garin shall deliver through Escrow an executed, acknowledged and recordable Grant Deed sufficient to convey fee title to the Agency as set forth in Section 5.1.
b. Garin shall deliver through Escrow such other funds and documents as are necessary to comply with Garin's obligations under this Agreement.
c. Garin shall not be in default of any of its obligations under the terms of this Agreement, and all of Garin's representations and warranties made as of the date of this Agreement shall continue to be true and correct as of the Close of Escrow.
d. Agency shall have approved the condition of title to the Property and Escrow Agent shall have committed to deliver to Agency a title insurance policy as required by Section 4 hereof.
e. Agency shall have approved the environmental condition of the Property as provided in Section 9 below.
f. Garin shall have removed the UST (as defined in Section 9.1) from the Property.
On failure of any of the conditions set forth above, Agency may terminate its obligations under this Agreement with no further liability to Garin by giving notice to Garin on or before the expiration of the time allowed for each condition. In the event of such termination by the Agency, the Escrow Agent shall return the Purchase Price, if deposited, to Agency. Agency's failure to elect to terminate its obligations shall constitute a waiver of the condition by Agency.
8.2. Garin's Conditions Precedent to Closing. The obligation of Garin to complete the sale of the Property is subject to the satisfaction of the following conditions:
a. The Agency shall not be in default of any of its obligations under the terms of this Agreement, and all of Agency's representations and warranties made as of the date of this Agreement shall continue to be true and correct as of the Close of Escrow.
b. The Agency shall have deposited with the Escrow Agent immediately available funds in an amount equal to the Purchase Price and the Agency's share of costs and other expenses described herein.
On failure of any of the conditions set forth above, Garin may terminate its obligations under this Agreement with no further liability to Agency by giving notice to Agency on or before the expiration of the time allowed for each condition. Garin's failure to elect to terminate its obligations shall constitute a waiver of the condition by Garin.
9. Environmental Condition. The Purchase Price for the Property is based on the sale of the Property in an environmentally clean condition, with no Hazardous Materials, as defined below, of any kind located on or under the Property.
9.1. Removal of UST. Garin shall remove and properly dispose of an underground storage tank located on the Property, as well as any Hazardous Materials associated with such underground storage tank (collectively, the “UST”) prior to Close of Escrow. Agency shall reimburse Garin the sum of $5000.00 through escrow to cover a portion of the cost of the UST removal and disposal.
9.2. Phase I and Approval of Environmental Condition. Garin shall provide Agency with a Phase 1 environmental report (“Phase 1”) within 30 days of the Date of Agreement. The cost of the Phase 1 will be reimbursed by Agency through escrow. Within ten days of receipt of the Phase 1, Agency shall notify Garin in writing of whether Agency approves or disapproves the environmental condition of the Property. Agency's failure to give written notice of approval or disapproval within such 10-day period shall be deemed disapproval of the environmental condition of the Property. In the event Agency disapproves, or is deemed to have disapproved, the environmental condition of the Property, the Agency may exercise one of the following options: (a) terminate this Agreement by written notice to Garin given within five days of the end of such ten-day period, in which event neither party shall have any further rights, obligations or liabilities hereunder; (b) elect to do additional investigation, at Agency’s expense, extend the closing date, and based upon the results of such tests, either terminate this Agreement, move forward or negotiate an amendment; or (c) negotiate an amendment to this Agreement, including a modified Purchase Price.
9.3. Indemnity. Garin shall indemnify, defend (with counsel reasonably acceptable to Agency), protect and hold Agency and its officers, employees, agents and representatives, harmless from, all claims, demands, damages, defense costs or liability of any kind or nature regarding the UST and Hazardous Materials located on or under or generated by or from the Property. Developer's indemnity obligations under this Section 9.3 shall survive termination of this Agreement and transfer of the Property. Developer's indemnity obligations under this Section 9.3 shall not extend to claims, demands, damages, defense costs or liability caused by the sole negligence or willful misconduct of Agency or its officers, employees, agents or representatives.
9.4. Definition of “Hazardous Materials”. As used in this Agreement, the term "Hazardous Materials" shall mean any substance, material, or waste which is or becomes, prior to the close of Escrow, regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is: (a) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (b) defined as "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (c) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (d) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (e) petroleum; (f) asbestos or asbestos containing materials; (g) polychlorinated byphenyls; (h) Methyl-tert-Butyl Ether; (i) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (j) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. §1317); (k) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq.; or (l) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq.
10. Permission to Enter on Premises. Garin hereby grants to Agency, or its authorized agents, permission to enter upon the Property at all reasonable times prior to Close of Escrow for the purpose of making any inspections or performing any tests Agency deems necessary. In the event that the Agency does not acquire the Property from Garin, Agency agrees to repair, as nearly as reasonably can be accomplished, any damage to the Property caused by Agency’s inspections or testing and will restore such area to as near its original condition as can be reasonably accomplished.
11. Closing Statement. Garin instructs Escrow Agent to release a copy of Garin's closing statement to Agency.
12. Loss or Damage to Property. Loss or damage to the Property, by fire or other casualty, occurring prior to the recordation of the Grant Deed, shall be at the risk of Garin. In the event that loss or damage to the Property, by fire or other casualty, occurs prior to the recordation of the Grant Deed, Agency may elect to require that the Garin pay to Agency the proceeds of any insurance policy or policies which may become payable to Garin by reason thereof, or to permit such proceeds to be used for the restoration of the damage done, or to reduce the Purchase Price by an amount equal to the diminution in value of the Property by reason of such loss or damage or the amount of insurance payable to Garin, whichever is greater.
13. Warranties, Representations, and Covenants of Garin. Garin hereby warrants, represents, and/or covenants to Agency that:
13.1. Pending Claims. To the best of Garin's actual knowledge, there are no actions, suits, claims, legal proceedings, or any other proceedings affecting the Property or any portion thereof, at law, or in equity before any court or governmental agency, domestic or foreign.
13.2. Encroachments. To the best of Garin's actual knowledge, there are no encroachments onto the Property by improvements on any adjoining property, nor do any buildings or improvements located on the Property encroach on other properties.
13.3. Condition of Property. The Property is in good condition, and until the Close of Escrow, Garin shall maintain the Property in good condition and state of repair and maintenance, and shall perform all of its obligations under any service contracts or other contracts affecting the Property. To best of Garin’s actual knowledge, any utilities or utility lines serving the Property are in good working order.
13.4. Garin's Title. Until the close of Escrow, Garin shall not do anything which would impair Garin's title to any of the Property.
13.5. Conflict with Other Obligation. To the best of Garin's knowledge, neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease, covenants, conditions and restrictions, or other agreement or instrument to which Garin or the Property may be bound.
13.6. Authority. Garin is the owner of and has the full right, power, and authority to sell, convey, and transfer the Property to Agency as provided herein and to carry out Garin's obligations hereunder. Each party executing this Agreement on behalf of Garin represents and warrants that such person is duly and validly authorized to do so on behalf of Garin.
13.7. Governmental Compliance. Garin has not received any notice from any governmental agency or authority alleging that the Property is currently in violation of any law, ordinance, rule, regulation or requirement applicable to its use and operation. If any such notice or notices are received by Garin following the Date of Agreement, Garin shall notify Agency within ten days of receipt of such notice. Garin then, at its option, may either elect to perform the work or take the necessary corrective action prior to Close of Escrow or refuse to do so, in which case Garin shall notify Agency of such refusal and Agency shall be entitled to either close Escrow with knowledge of such notice or terminate this Agreement.
13.8. Right to Possession. No person or entity other than Garin has the right to possess the Property or any portion of it, as of the date of this Agreement.
13.9. No Tenants. The Property is not occupied by Garin or any other person or entity. Garin shall not enter into any lease or other agreement, respecting use or occupancy of the Property, or any portion thereof, without the written consent of Agency.
13.10. Non-Foreign Transferor. Garin is not a "foreign person" within the meaning of the Foreign Investment in Real Property Act or any similar state statute, and Garin will comply with all of the requirements of the Foreign Investment in Real Property Act and any similar state statute in connection with this transaction.
13.11. Change of Situation. Until the Close of Escrow, Garin shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 13 (13.1 through 13.10, inclusive) not to be true as of the close of Escrow, immediately give written notice of such fact or condition to Agency.
14. Full and Complete Settlement for Fee Interest. The total compensation to be paid by Agency to Garin is in consideration for all of Garin's interest in the Property and any rights or obligations which exist or may arise out of the acquisition of the Property for public purposes.
15. Broker's Commission. Garin and Agency each warrants and represents that it has not engaged the services of any agent, finder or broker in connection with the transaction which is the subject of this Agreement, and that it is not liable for any real estate commissions, broker's fees or finder's fees which may accrue by means of the sale of the Property. Garin and Agency agree to and do hereby indemnify and hold the other harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from any broker, agent or finder, licensed or otherwise, which it has employed in connection with the transaction covered by this Agreement.
16. Waiver, Consent and Remedies. Each provision of this Agreement to be performed by Agency and Garin shall be deemed both a covenant and a condition and shall be a material consideration for Garin's and Agency's performance hereunder, as appropriate, and any breach thereof by Agency or Garin shall be deemed a material default hereunder. Either party may specifically and expressly waive in writing any portion of this Agreement or any breach thereof, but no such waiver shall constitute a further or continuing waiver of a preceding or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require further compliance by the other party with any breach or provision so waived. The consent by one party to any act by the other for which such consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or any similar acts in the future. No waiver or consent shall be implied from silence or any failure of a party to act, except as otherwise specified in this Agreement. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement shall be cumulative and no one of them shall be exclusive of any other. Except as otherwise specified herein, either party hereto may pursue any one or more of its rights, options or remedies hereunder or may seek damages or specific performance in the event of the other party's breach hereunder, or may pursue any other remedy at law or equity, whether or not stated in this Agreement.
17. Attorney's Fees. In the event any action is instituted between Garin, Agency and/or Escrow Agent in connection with this Agreement, then as between Agency and Garin, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses, including court costs and reasonable attorneys' fees, and all fees, costs and expenses incurred on any appeal or in collection of any judgment.
18. Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by facsimile, reputable overnight courier, or sent by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed received upon the earlier of: (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if mailed, three business days after the date of posting by the United States post office; (iii) if delivered by Federal Express or other overnight courier for next business day delivery, the next business day; or (iv) if sent by facsimile, with the original sent on the same day by overnight courier, the date on which the facsimile is received, provided it is before 5:00 P.M. Pacific Time. Notice of change of address shall be given by written notice in the manner described in this Section 18. Rejection or other refusal to accept or the inability to deliver because of a change in address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Unless changed in accordance herewith, the addresses for notices given pursuant to this Agreement shall be as follows:
If to Garin: Henry Dill
P.O. Box 1646
Salinas, CA 93902
Telephone: (831) 594-9225
Facsimile: (831) 422-0960

If to Agency: City of Brentwood
150 City Park Way
Brentwood, CA 94513
Attention: Redevelopment Manager
Telephone: (925) 516-5405
Facsimile: (925) 516-5407

19. Default. Failure or delay by either party to perform any covenant, condition or provision of this Agreement within the time provided herein constitutes a default under this Agreement. The injured party shall give written notice of default to the party in default, specifying the default complained of. The defaulting party shall immediately commence to cure such default and shall diligently complete such cure within ten days from the date of the notice. The injured party shall have the right to terminate this Agreement by written notice to the other party in the event of a default which is not cured within such ten day period.
20. Entire Agreement. This Agreement and its exhibits constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the terms and conditions thereof. All prior agreements, representations, negotiations and understanding of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein.
21. Captions. The captions used herein are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof.
22. Governing Law Venue. This Agreement and the exhibits attached hereto have been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. Venue for any action brought under this Agreement shall be in the Superior Court of Contra Costa County, California.
23. Severability. If any provision of this Agreement as applied to any party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by law) any other provision of this Agreement, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of this Agreement as a whole.
24. Amendments. No addition to or modification of any provision contained in this Agreement shall be effective unless fully set forth in writing by Agency and Garin.
25. Time of Essence. Time is of the essence of each provision of this Agreement.
26. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time.
27. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
28. Cooperation. Each party agrees to cooperate with the other in the Closing of this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth below.
GARIN:

By:
Roberta Jean Garin, as Successor Trustee of the William O. Garin Separate Property Revocable Trust Established on November 10, 1992

Date:

By:
Elsie Jane Dill, as an individual and as Trustee under the will of Robert E. Garin, deceased

Date:

By:
Beverly Ann Bray

Date:

By:
Christina Hassler

Date:
AGENCY:

CITY OF BRENTWOOD REDEVELOPMENT AGENCY

By:
Donna Landeros, Executive Director

Date:

ATTEST:

By:
Margaret Wimberly, Secretary

APPROVED AS TO FORM:

By:
Damien B. Brower, Agency Counsel

CONSENT OF ESCROW AGENT
Escrow Agent hereby acknowledges receipt of this Agreement, which has been executed by the parties. Escrow Agent hereby agrees (i) to be and serve as Escrow Agent pursuant to this Agreement; and (ii) subject to further escrow instructions mutually agreeable to the parties and Escrow Agent, to be bound by the Agreement in the performance of its duties as Escrow Agent and to hold and disburse all funds received by Escrow Agent in accordance with the provisions of this Agreement; provided, however, Escrow Agent shall have no obligation, liability, or responsibility under any amendment to the Agreement unless and until the same is accepted by Escrow Agent in writing.
NORTH AMERICAN TITLE COMPANY

By:
Its:

EXHIBIT A
Legal Description of the Property
A PART OF LOT ONE HUNDRED EIGHTY-ONE (181) AS SAID LOT IS DESIGNATED UPON A MAP ENTITLED, SUBDIVISION NUMBER FOUR OF BRENTWOOD IRRIGATED FARMS, AND RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, CALIFORNIA, SEPTEMBER 11, 1917, SAID PART BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHERLY CORNER OF SAID LOT 181 AND RUNNING THENCE ALONG THE NORTHEASTERLY BOUNDARY OF SAID LOT SOUTH 46 DEG. 57 MIN. EAST FOUR HUNDRED NINETY-THREE AND SEVEN TENTHS (493.7) FEET; THENCE CONTINUING ALONG SAID NORTHEASTERLY BOUNDARY SOUTH 35 DEG. 38 MIN. EAST ONE HUNDRED FORTY-NINE AND EIGHT TENTHS (149.8) FEET; THENCE SOUTH 89 DEG. 37 ½ MIN. WEST EIGHTY-NINE AND EIGHT TENTHS (89.8) FEET TO A 1-INCH BY 30-INCH BLACK PIPE; THENCE SOUTH 89 DEG. 37 ½ MIN. WEST THREE HUNDRED FIFTY-NINE AND FOUR TENTHS (359.4) FEET TO A 1-INCH BY 30-INCH BLACK PIPE ON THE EAST BOUNDARY OF ROAD NO. 5; THENCE ALONG SAID EAST BOUNDARY NORTH 0 DEG. 08 MIN. EAST FOUR HUNDRED SIXTY-ONE AND EIGHT TENTHS (461.8) FEET TO THE POINT OF BEGINNING.

EXCEPTING THEREFROM:

THAT PORTION OF LOT 181 DEEDED TO THE CITY OF BRENTWOOD, RECORDED MAY 6, 2005, INSTRUMENT NO. 05-161826, OFFICIAL RECORDS.

EXHIBIT B
Recording Requested by and )
After Recordation Mail to: )
)
City of Brentwood )
150 City Park Way )
Brentwood, CA 94513 )
Attn: City Clerk )
)
This document is exempt from the payment of a recording fee pursuant to Government Code § 27383

GRANT DEED

For valuable consideration, the receipt of which is hereby acknowledged, ROBERTA JEAN GARIN, SUCCESSOR TRUSTEE OF THE WILLIAM O. GARIN SEPARATE PROPERTY REVOCABLE TRUST ESTABLISHED ON NOVEMBER 10, 1992, BY DEVISE, ELSIE JANE DILL AS TO AN UNDIVIDED ONE-FOURTH (1/4) INTEREST, BY DEVISE, BEVERY ANN BRAY AS TO AN UNDIVIDED ONE-EIGHTH (1/8) INTEREST, BY DEVISE, CHRISTINA HASSLER AS TO AN UNDIVIDED ONE-EIGTH (1/8) INTEREST, BY DEVISE, AND ELSIE JANE DILL, AS TRUSTEE, UNDER THE WILL OF ROBERT E. GARIN, DECEASED, AND BY THE DECREE OF DISTRIBUTION OF THE ESTATE, ACERTIFIED COPY OF WHICH WAS RECORDED ON DECEMBER 19, 1990, SERIES NO. 90-259912, AS TO AN UNDIVIDED ONE-FOURTH (1/4) INTEREST hereby grant to the CITY OF BRENTWOOD REDEVELOPMENT AGENCY, a public body, corporate and politic, the real property located in the City of Brentwood, California, described in Attachment No. 1 attached hereto.

Dated: , 200

By:
Roberta Jean Garin, as Successor Trustee of the William O. Garin Separate Property Revocable Trust Established on November 10, 1992

Date:

By:
Elsie Jane Dill, as an individual and as Trustee under the will of Robert E. Garin, deceased

Date:

By:
Beverly Ann Bray

Date:

By:
Christina Hassler

Date:

ATTACHMENT NO. 1
Legal Description
A PART OF LOT ONE HUNDRED EIGHTY-ONE (181) AS SAID LOT IS DESIGNATED UPON A MAP ENTITLED, SUBDIVISION NUMBER FOUR OF BRENTWOOD IRRIGATED FARMS, AND RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF CONTRA COSTA COUNTY, CALIFORNIA, SEPTEMBER 11, 1917, SAID PART BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHERLY CORNER OF SAID LOT 181 AND RUNNING THENCE ALONG THE NORTHEASTERLY BOUNDARY OF SAID LOT SOUTH 46 DEG. 57 MIN. EAST FOUR HUNDRED NINETY-THREE AND SEVEN TENTHS (493.7) FEET; THENCE CONTINUING ALONG SAID NORTHEASTERLY BOUNDARY SOUTH 35 DEG. 38 MIN. EAST ONE HUNDRED FORTY-NINE AND EIGHT TENTHS (149.8) FEET; THENCE SOUTH 89 DEG. 37 ½ MIN. WEST EIGHTY-NINE AND EIGHT TENTHS (89.8) FEET TO A 1-INCH BY 30-INCH BLACK PIPE; THENCE SOUTH 89 DEG. 37 ½ MIN. WEST THREE HUNDRED FIFTY-NINE AND FOUR TENTHS (359.4) FEET TO A 1-INCH BY 30-INCH BLACK PIPE ON THE EAST BOUNDARY OF ROAD NO. 5; THENCE ALONG SAID EAST BOUNDARY NORTH 0 DEG. 08 MIN. EAST FOUR HUNDRED SIXTY-ONE AND EIGHT TENTHS (461.8) FEET TO THE POINT OF BEGINNING.

EXCEPTING THEREFROM:

THAT PORTION OF LOT 181 DEEDED TO THE CITY OF BRENTWOOD, RECORDED MAY 6, 2005, INSTRUMENT NO. 05-161826, OFFICIAL RECORDS.

STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 20__, before me, ___, the undersigned, personally appeared ,
( ) personally known to me
( ) proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) (is/are) subscribed to the within instrument and acknowledged to me that (he/she/they) executed the same in (his/her/their) authorized capacity(ies), and that by (his/her/their) signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal:
Signature

CERTIFICATE OF ACCEPTANCE

This is to certify that the fee interest in real property conveyed by Grant Deed dated , 200 , from ROBERTA JEAN GARIN, SUCCESSOR TRUSTEE OF THE WILLIAM O. GARIN SEPARATE PROPERTY REVOCABLE TRUST ESTABLISHED ON NOVEMBER 10, 1992, BY DEVISE, ELSIE JANE DILL AS TO AN UNDIVIDED ONE-FOURTH (1/4) INTEREST, BY DEVISE, BEVERY ANN BRAY AS TO AN UNDIVIDED ONE-EIGHTH (1/8) INTEREST, BY DEVISE, CHRISTINA HASSLER AS TO AN UNDIVIDED ONE-EIGTH (1/8) INTEREST, BY DEVISE, AND ELSIE JANE DILL, AS TRUSTEE, UNDER THE WILL OF ROBERT E. GARIN, DECEASED, AND BY THE DECREE OF DISTRIBUTION OF THE ESTATE, ACERTIFIED COPY OF WHICH WAS RECORDED ON DECEMBER 19, 1990, SERIES NO. 90-259912, AS TO AN UNDIVIDED ONE-FOURTH (1/4) INTEREST, to the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body, corporate and politic, as grantee, are hereby accepted by the Executive Director pursuant to authority conferred by Resolution No. , dated , and the Agency, as grantee, consents to recordation of said Grant Deed.

Dated: By:
Name:
Its: Executive Director
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 20 , before me, ____, the undersigned, personally appeared ,
( ) personally known to me
( ) proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) (is/are) subscribed to the within instrument and acknowledged to me that (he/she/they) executed the same in (his/her/their) authorized capacity(ies), and that by (his/her/their) signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal:
Signature

 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov