City of Brentwood
Home PageContact Us!Back

City Administration

2010 Council Goals and Strategic Plan | City Council Members | Calendar of Events | Elections
eNotification | Sub-Committees| Pledge of Allegiance Sign Ups | Invocation Sign Up
Live Streaming Council Meeting | Streaming PC Help |
Streaming Mac Help |

Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 16

Meeting Date: March 13, 2007

Subject/Title: Adopt a Resolution approving a Purchase and Sale Agreement with Mery Lynn Nail and Lorraine Visher, or their authorized representative, for real property identified as 3900 Sellers Avenue, APN 015-010-065, accepting real property on behalf of the City of Brentwood and authorizing the City Manager to execute the agreement, and such other documents as may be needed to complete the transaction including acceptance of the Deed; approving an amendment to Fund 263 in the 2006/07 operating budget not to exceed $1,080,000; and adopt a resolution amending the 2006/07 – 2010/11 Capital Improvement Program (CIP) to include the budget for the Agricultural Park and History Center.

Prepared by: Linda Maurer, Economic Development Manager

Submitted by: Howard Sword, Director of Community Development

RECOMMENDATION
Adopt a Resolution approving a Purchase and Sale Agreement with Mery Lynn Nail and Lorraine Visher, or their authorized representative, for real property identified as 3900 Sellers Avenue, APN 015-010-065, accepting real property on behalf of the City of Brentwood and authorizing the City Manager 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 Fund 263 in the 2006/07 operating budget not to exceed $1,080,000; and adopt a resolution amending the 2006/07 – 2010/11 Capital Improvement Program (CIP) to include the budget for Agricultural Park and History Center.

PREVIOUS ACTION
On May 23, 2006, by Resolution No. 2006-126, City Council adopted the City’s 2006/07 –
2010/11 Capital Improvement Program (CIP).

On November 14, 2006, the City Council provided direction to the City’s negotiators, Howard Sword and Linda Maurer, regarding land acquisition.

BACKGROUND
The property located at 3900 Sellers Avenue in unincorporated Brentwood is currently configured as a single family residence with a guest house (in-law unit) located on site. This property is approximately 7.26 acres and is adjacent to the East Contra Costa Historical Society (ECCHS) Museum parcel.

The Nail Property is also located within the Brentwood Agricultural Conservation Area, as defined by the City’s General Plan. According to the Brentwood Municipal Code, Chapter 17.730.50, properties located within this area are to be given first priority as it relates to the City’s Agricultural Enterprise Program for farmland mitigation purposes. The City intends on purchasing the property in fee title using funds collected and deposited in the City’s Agricultural Land Fund; and upon the close of escrow, executing the appropriate legal instrument to preserve the agricultural lands.

The property owners offered the property for sale to the City of Brentwood with the intent that the City would work to develop the Agricultural Park and History Center concept. A recent appraisal valued the property at $1.1 million dollars with $635,000 of that appraised value based on the bare land. At the time the appraisal was executed, the site was approximately 7.68 acres; however, there was a discrepancy between the recorded lot lines in the County Surveyor’s office and the lot lines on the recorded parcel map, which correspond to property ownership. The discrepancy, and the corresponding resolution, has reduced the property to 7.26 acres and the purchase price to $1,065,000. This purchase price is based on the original value of the home site and the adjusted bare land value, which is $82,682 per acre.

The Nail Property acquisition is not included 2006/07 – 2010/11 CIP budget and now needs to be an established CIP project, titled Agricultural Park and History Center.

The City has expressed interest in this site in order to help expand the ECCHS programs, in partnership with the City’s Parks and Recreation Department. The concept proposes the development of an Agricultural Park and History Center, which will become a vital component to helping preserve and enhance this area’s rich history in agriculture and farming. This concept is consistent with Chapter 4, Goal 2 of the General Plan’s Conservation and Open Space Element that calls for the preservation and enhancement of historic and cultural resources in and around the Brentwood community.

Pulte Homes received approval from the City’s RGMP Committee to meet its agricultural points’ obligation by financially supporting the Agricultural Park and History Center concept proposal with a contribution of approximately $230,000.

In a separate staff report on tonight’s agenda, the Council’s newly-formed Agricultural Enterprise Committee is recommending that the City Council make a formal request to the County to financially participate in the land acquisition through the use of County park fees collected for the area’s Census tracts. This request, if granted by the County, may reduce the amount of funds required from the City’s Agricultural Land Fund 263.

If the Council approves the agreement, staff will open escrow, review the title conditions and begin the necessary inspections and review of the property. The parties wish to close escrow in April 2007. Concurrently, staff will begin the discussion/negotiation between Parks and Recreation and ECCHS will begin on the operations and maintenance of the property.


FISCAL IMPACT
The purchase price ($1,065,000) and costs associated with escrow are estimated at $1,080,000 and will be funded by Agricultural Land Fund 263. This will require a budget amendment and an expenditure from Agricultural Land Fund 263 in an amount not to exceed of $1,080,000. The City’s General Fund will not be impacted by this transaction. The attached CIP budget sheet reflects funding for the acquisition and associated costs.

Attachments:
Resolution
Agreement
CIP Sheet/Project Map

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING A PURCHASE AND SALE AGREEMENT WITH MERY LYNN NAIL AND LORRAINE VISHER, OR THEIR AUTHORIZED REPRESENTATIVE, FOR REAL PROPERTY IDENTIFIED AS 3900 SELLERS AVENUE, APN 015-010-065, ACCEPTING REAL PROPERTY ON BEHALF OF THE CITY OF BRENTWOOD AND AUTHORIZING THE CITY MANAGER 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 FUND 263 IN THE 2006-07 OPERATING BUDGET NOT TO EXCEED $1,080,000; AND ADOPT A RESOLUTION AMENDING THE 2006/07 – 2010/11 CAPITAL IMPROVEMENT PROGRAM (CIP) TO INCLUDE THE BUDGET FOR AGRICULTURAL PARK AND HISTORY CENTER.

WHEREAS, 3900 Sellers Avenue (“Property”) is located in unincorporated Brentwood is currently configured as a single family residence with a guest house (in-law unit) located on site. This property is approximately 7.26 acres and is adjacent to the East Contra Costa Historical Society (ECCHS) Museum parcel; and

WHEREAS, the Property is owned by Mery Lynn Nail and Lorraine Visher, individually or as trustees of certain trusts, (“Owners”), and further identified as APN 015-010-065; and

WHEREAS, the Property is located within the Brentwood Agricultural Conservation Area, as defined by the City’s General Plan, making the Property a high priority for agricultural preservation as defined in the Brentwood Municipal Code, Chapter 17.730.50; and

WHEREAS, the City intends to purchase the property in fee title and place the necessary legal instrument on the property to preserve the site as an Agricultural Park and History Center, in partnership with the East Contra Costa Historical Society; and

WHEREAS, a Purchase Agreement between the City of Brentwood and the Owners has been negotiated to necessitate the transfer of the Property to the City of Brentwood.

NOW, THEREFORE BE IT RESOLVED: 1) The City Council of the City of Brentwood hereby approves the Purchase and Sale Agreement with Mery Lynn Nail and Lorraine Visher, or their authorized representative, for real property identified as 3900 Sellers Avenue, APN 015-010-065, accepting real property on behalf of the City of Brentwood.

2) The City Council of the City of Brentwood hereby authorizes the City Manager to execute the agreement, with such minor non-material revisions as may be approved by the City Manager in consultation with the City Attorney and such other documents as may be needed to complete the transaction including acceptance of the Deed.

3) The City Council of the City of Brentwood hereby approves an amendment to Fund 263 in the 2006/07 operating budget in the amount not to exceed of $1,080,000 for the purpose of this transaction.

4) The City Council of the City of Brentwood amends the 2006/07 – 2010/11 Capital Improvement Program (CIP) to include the budget for the Agricultural Park and History Center.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 13th day of March 2007 by the following vote:

ASSESSOR'S PARCEL NO: 015-010-065
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 , 2007, (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, a municipal corporation ("City"), and MERY LYNN NAIL AND LORRAINE VISHER, SUCCESSOR CO-TRUSTEES OF THE MARGARETTE I. NAIL 1992 TRUST, DATED APRIL 27, 1992 (“Nail”).
IT IS HEREBY MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS:

1. Agreement to Sell and Purchase. Nail agrees to sell to City, and City agrees to purchase from Nail, upon the terms and for the consideration set forth in this Agreement, that approximately 7.26-acre portion of real property (APN 015-010-065), located at 3900 Sellers Avenue in the unincorporated area of the County of Contra Costa, State of California, which is legally described in the Legal Description attached hereto as Exhibit A and incorporated herein and all improvements located thereon (collectively, the "Property").
2. Purchase Price. The total purchase price for the Property shall be $1,065,000.00 (the "Purchase Price"). City 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. Nail agrees to convey by Grant Deed to City 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 City pursuant to Section 3.1 below; and (ii) matters created by, through or under City. Nail shall not voluntarily create any new exceptions to title following the date of this Agreement.
3.1. Review of Title. City has obtained a Preliminary Title Report from Old Republic Title Company with respect to the Property (the "Report"). City 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 City, City may, by written notice to Nail 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 City. If City notifies Nail of any Unpermitted Exceptions and if Nail is unwilling or unable, after exercising commercially reasonable efforts, to cure the Unpermitted Exceptions to City's satisfaction within ten days after City's notice or such longer period as may be agreed upon in writing by both City and Nail, then City may, at its sole option, either (a) terminate this Agreement by written notice to Nail 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. City's failure to give Nail written notice of its election to terminate within such five-day period shall be deemed to be City's acceptance of the Unpermitted Exceptions.
4. Title Insurance Policy. Escrow Agent (defined below) shall, following recordation of the Grant Deed, provide City with a CLTA (or ALTA, at the request of the City) policy of title insurance in the amount of the Purchase Price, issued by the Title Company, together with any endorsements requested by the City, showing fee simple title to the Property vested in City, subject only to the exceptions approved by City as set forth in Section 3 and approved printed exceptions and stipulations in the policy. City shall pay the title policy premium.
5. Escrow. City and Nail have opened an escrow (the "Escrow") in accordance with this Agreement with Old Republic Title Company, Attn: Nancy Byrd, Escrow Number 54709-559011301 (the "Escrow Agent"). This Agreement, together with any escrow instructions executed by City or Nail and consistent with this Agreement, constitutes the joint escrow instructions of City and Nail, 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, Nail 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 City on or before the close of Escrow. City and Nail 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 Nail 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. The parties shall prorate all taxes and assessments as of 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 Nail. Pay and charge Nail 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 City. Pay and charge City for any Escrow fees, recording fees and other costs and expenses of Escrow payable under Sections 8.4, 10.1 and 10.2 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 City, when conditions of the Escrow have been fulfilled by City and Nail.
7.4. 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, 9, 12 and 13 of this Agreement and to its liability under any policy of title insurance issued in regard to this Escrow.
8. Closing.
8.1. 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.
8.2. 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.
8.3. Time of the Essence. TIME IS OF THE ESSENCE IN THESE INSTRUCTIONS AND ESCROW IS TO CLOSE ON OR BEFORE MAY 15, 2007. Any extension of this date must be in accordance with Section 8.2 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 19, 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.
8.4. Escrow Fees, Charges and Costs. City 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. Nail 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.
8.5. FIRPTA. If the provisions of FIRPTA or similar state act apply to the transaction memorialized in this Agreement, and unless Nail is not a "foreign person" or an exemption applies, the Escrow Agent shall deduct and withhold from Nail's proceeds ten percent of the gross sales price and shall otherwise comply with all applicable provisions of FIRPTA and any similar state act. Nail and City 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.
8.6. Transfer Taxes. No transfer tax shall be due because City is a public entity.
9. Conditions Precedent to Close of Escrow.
9.1. City's Conditions Prior to Closing. The obligation of the City to complete the purchase of the Property is subject to the satisfaction of the following conditions:
a. Nail shall deliver through Escrow an executed, acknowledged and recordable Grant Deed sufficient to convey fee title to the City as set forth in Section 5.1.
b. Nail shall deliver through Escrow such other funds and documents as are necessary to comply with Nail's obligations under this Agreement.
c. Nail shall not be in default of any of its obligations under the terms of this Agreement, and all of Nail'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. City shall have approved the condition of title to the Property and Escrow Agent shall have committed to deliver to City a title insurance policy as required by Section 4 hereof.
e. City shall have approved the condition of the Property as provided in Section 10 below.
f. City shall be in a position to record a conservation easement against the Property immediately following recordation of the Grant Deed.
g. The East Contra Costa County Historical Society (“ECCCH”) shall have quitclaimed to Nail that portion of the Property currently owned by ECCCH.
h. Nail shall have granted to ECCCH a landscape easement over a portion of the Property adjacent to property owned by ECCCH in a form approved by the City.
On failure of any of the conditions set forth above, City may terminate its obligations under this Agreement with no further liability to Nail by giving notice to Nail on or before the expiration of the time allowed for each condition. In the event of such termination by the City, the Escrow Agent shall return the Purchase Price, if deposited, to City. City's failure to elect to terminate its obligations shall constitute a waiver of the condition by City.

9.2. Nail's Conditions Precedent to Closing. The obligation of Nail to complete the sale of the Property is subject to the satisfaction of the following conditions:
a. The City shall not be in default of any of its obligations under the terms of this Agreement, and all of City'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 City shall have deposited with the Escrow Agent immediately available funds in an amount equal to the Purchase Price and the City's share of costs and other expenses described herein.
On failure of any of the conditions set forth above, Nail may terminate its obligations under this Agreement with no further liability to City by giving notice to City on or before the expiration of the time allowed for each condition. Nail's failure to elect to terminate its obligations shall constitute a waiver of the condition by Nail.

10. Condition of the Property and Hazardous Materials.
10.1. Inspection and Environmental Review of Property. 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. City shall have until a date 60 days after the Date of Agreement to review and inspect the physical and environmental condition of the Property, including performing all inspections and reviews described below. No later than ten days of the completion of City’s 60-day review, City shall notify Nail in writing of whether City approves or disapproves the physical and environmental condition of the Property. City's failure to give written notice of approval or disapproval within such 10-day period shall be deemed disapproval of the condition of the Property. In the event City disapproves, or is deemed to have disapproved, the condition of the Property, the City shall exercise one of the following options: (a) terminate this Agreement by written notice to Nail 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) negotiate an amendment to this Agreement, including a modified Purchase Price if Hazardous Materials are located on the Property.
a. Well, Septic and Structural Inspections. The City shall order an inspection of the Property’s well system, including but not limited to, capacity (gallons per minute) and structural integrity, septic system and structures. The cost of the inspections will be reimbursed by Nail through escrow.
b. Phase I and Environmental Condition. The City shall order a Phase 1 environmental report (“Phase 1”). The cost of the Phase 1 will be paid by the City.
10.2. Hazardous Materials Indemnity. Nail shall indemnify, defend (with counsel reasonably acceptable to City), protect and hold City and its officers, employees, agents and representatives, harmless from, all claims, demands, damages, defense costs or liability of any kind or nature regarding Hazardous Materials located on or under or generated by or from the Property. Developer's indemnity obligations under this Section 10.2 shall survive termination of this Agreement and transfer of the Property. Developer's indemnity obligations under this Section 10.2 shall not extend to claims, demands, damages, defense costs or liability caused by the sole negligence or willful misconduct of City or its officers, employees, agents or representatives.
10.3. 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.
11. Permission to Enter on Premises. Nail hereby grants to City, 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 City deems necessary. In the event that the City does not acquire the Property from Nail, City agrees to repair, as nearly as reasonably can be accomplished, any damage to the Property caused by City’s inspections or testing and will restore such area to as near its original condition as can be reasonably accomplished.
12. Closing Statement. Nail instructs Escrow Agent to release a copy of Nail's closing statement to City.
13. 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 Nail. In the event that loss or damage to the Property, by fire or other casualty, occurs prior to the recordation of the Grant Deed, City may elect to require that the Nail pay to City the proceeds of any insurance policy or policies which may become payable to Nail 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 Nail, whichever is greater.
14. Warranties, Representations, and Covenants of Nail. Nail hereby warrants, represents, and/or covenants to City that:
14.1. Pending Claims. To the best of Nail'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 City, domestic or foreign.
14.2. Encroachments. To the best of Nail'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, except for any improvements that will be allowed pursuant to the landscape easement required by section 9.1(h).
14.3. Condition of Property. The Property is in good condition, and until the Close of Escrow, Nail 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 Nail’s actual knowledge, any utilities or utility lines serving the Property are in good working order.
14.4. Nail's Title. Until the close of Escrow, Nail shall not do anything which would impair Nail's title to any of the Property, except execute the landscape easement required by section 9.1(h).
14.5. Conflict with Other Obligation. To the best of Nail'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 Nail or the Property may be bound.
14.6. Authority. Nail is the owner of and has the full right, power, and authority to sell, convey, and transfer the Property to City as provided herein, except for that portion of the Property to be quitclaimed to Nail prior to Close of Escrow pursuant to section 9.1(g), and to carry out Nail's obligations hereunder. Each party executing this Agreement on behalf of Nail represents and warrants that such person is duly and validly authorized to do so on behalf of Nail.
14.7. Governmental Compliance. Nail has not received any notice from any governmental City 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 Nail following the Date of Agreement, Nail shall notify City within ten days of receipt of such notice. Nail 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 Nail shall notify City of such refusal and City shall be entitled to either close Escrow with knowledge of such notice or terminate this Agreement.
14.8. Right to Possession. No person or entity other than Nail has the right to possess the Property or any portion of it, as of the date of this Agreement.
14.9. No Tenants. The Property is not occupied by Nail or any other person or entity. Nail 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 City.
14.10. Non-Foreign Transferor. Nail is not a "foreign person" within the meaning of the Foreign Investment in Real Property Act or any similar state statute, and Nail 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.
14.11. Change of Situation. Until the Close of Escrow, Nail 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 City.
15. Full and Complete Settlement for Fee Interest. The total compensation to be paid by City to Nail is in consideration for all of Nail'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.
16. Relocation Waiver and Indemnity. Nail acknowledges that the Property is currently vacant and unoccupied. Nail agrees and acknowledges that Nail is not entitled to, and hereby waives any claim to, any right to relocation benefits or assistance, replacement dwelling(s) or any other compensation of any nature whatsoever available or alleged to be available under any Federal, State or local law, regulation or ordinance, including the California Relocation Assistance Act of 1970, as amended (California Government Code § 7260 et seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. § 4601 et seq.), and implementing State and Federal regulations (“Relocation Laws”). Nail shall indemnify, defend (with counsel reasonably acceptable to City), protect and hold City, and its officers, employees, agents and representatives, harmless from, any and all claims, demands, damages, defense costs or liability of any kind or nature relating to any claims that may be asserted by any person or business residing or located upon the Property for relocation benefits or assistance, replacement dwelling(s) or any other compensation of any nature whatsoever available or alleged to be available under any Relocation Laws. City's indemnity obligations under this Section 16 shall survive termination of this Agreement.
17. Broker's Commission. City 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. Nail has engaged the services of a real estate broker and shall pay any and all real estate commissions, broker’s fees or finder’s fee that it may owe from the proceeds of the sale. Nail hereby indemnifies and holds City 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 Nail has employed in connection with the transaction covered by this Agreement.
18. Waiver, Consent and Remedies. Each provision of this Agreement to be performed by City and Nail shall be deemed both a covenant and a condition and shall be a material consideration for Nail's and City's performance hereunder, as appropriate, and any breach thereof by City or Nail 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.
19. Attorney's Fees. In the event any action is instituted between Nail, City and/or Escrow Agent in connection with this Agreement, then as between City and Nail, 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.
20. 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 Nail: Lorraine Visher
P.O. Box 1646
Salinas, CA 93902
Telephone: (831) 594-9225
Facsimile: (831) 422-0960

If to City: City of Brentwood
150 City Park Way
Brentwood, CA 94513
Attention: Economic Development Manager
Telephone: (925) 516-5139
Facsimile: (925) 516-5407

21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. Amendments. No addition to or modification of any provision contained in this Agreement shall be effective unless fully set forth in writing by City and Nail.
27. Time of Essence. Time is of the essence of each provision of this Agreement.
28. 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.
29. 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.
30. 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.
NAIL:

By:
Lorraine Visher, as Successor Co-Trustee of the Margarette I. Nail 1992 Trust, dated April 27, 1992

Date:

By:
Mery Lynn Nail, as Successor Co-Trustee of the Margarette I. Nail 1992 Trust, dated April 27, 1992

Date:


CITY:

CITY OF BRENTWOOD

By:
Donna Landeros, City Manager

Date:

ATTEST:

By:
Margaret Wimberly, City Clerk

APPROVED AS TO FORM:

By:
Damien B. Brower, City Attorney

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.
OLD REPUBLIC TITLE COMPANY

By:
Its:

EXHIBIT A
Legal Description of the Property

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, MERY LYNN NAIL AND LORRIANE VISHER, SUCCESSOR CO-TRUSTEE OF THE MARGARETTE I. NAIL 1992 TRUST, DATED APRIL 27, 1992 (“Nail”). hereby grant to the CITY OF BRENTWOOD, a municipal corporation, the real property located in the unincorporated area of the County of Contra Costa, described in Attachment No. 1 attached hereto.

Dated: , 200

By:
Lorraine Visher, as Successor Co-Trustee of the Margarette I. Nail 1992 Trust, dated April 27, 1992

By:
Mery Lynn Nail, as Successor Co-Trustee of the Margarette I. Nail 1992 Trust, dated April 27, 1992

ATTACHMENT NO. 1
Legal Description

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 MERY LYNN NAIL AND LORRIANE VISHER, SUCCESSOR CO-TRUSTEE OF THE MARGARETTE I. NAIL 1992 TRUST, DATED APRIL 27, 1992 (“Nail”), to the CITY OF BRENTWOOD, a municipal corporation, as grantee, are hereby accepted by the City Manager pursuant to authority conferred by Resolution No. , dated , and the City, as grantee, consents to recordation of said Grant Deed.

Dated: By:
Name:
Its: City Manager
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