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REDEVELOPMENT AGENCY AGENDA ITEM NO. 21


Meeting Date: June 12, 2007

Subject/Title: Adopt a Resolution approving a Purchase and Sale Agreement with William M. Nielsen and Marsha G. Nielsen, Trustors and Trustees of The Nielsen Family Trust dated June 4, 2004, or their authorized representative, for real property identified as 200 Sunset Court, APN 016-010-015, 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

Prepared by: Gina Rozenski, Redevelopment Manager

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION
Adopt a Resolution approving a Purchase and Sale Agreement with William M. Nielsen and Marsha G. Nielsen, Trustors and Trustees of The Nielsen Family Trust dated June 4, 2004, or their authorized representative, for real property identified as 200 Sunset Court, APN 016-010-015, 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.

PREVIOUS ACTION
On February 13, 2007, the Redevelopment Agency provided direction to the Agency’s negotiators, Howard Sword and Gina Rozenski, regarding land acquisition.

BACKGROUND
The property located at 200 Sunset Court has six housing units and is adjacent to a vacant Agency-owned parcel. 200 Sunset Court has deteriorated and defective buildings, an inadequate water supply from a well system delivered from a separate parcel, and excessive building code violations causing a physical and economic blight condition.

This property is located within the North Brentwood Redevelopment Project Area and the Brentwood Boulevard Specific Plan and has a proposed land use of high density residential.

The property owners offered the property for sale to the Redevelopment Agency. The mutually agreed and negotiated value of the property is $10.50 per square foot, for a total purchase price of $512,000. The property is 1.12 acres or 48,787 square feet. The parties wish to close of escrow on or before December 31, 2007, contingent on completing relocation activities by the Agency in accordance with the California Code of Regulations, Relocation Assistance Guidelines, which includes the preparation of a relocation plan.

The possible assemblage of 200 Sunset Court with the adjacent Agency-owned parcel for a future residential development offers a prime opportunity to eliminate existing blight conditions and complement the existing residential character of the neighborhood. A total development site of 2.014 acres will be available when 200 Sunset Court is assembled with the Agency’s parcel. A relocation plan for the existing tenants, future development of the site and any other actions will be brought to the Land Use and Development Subcommittee and the Agency for consideration and approval at later dates when necessary.

Community Redevelopment Law Section 33334.16 provides redevelopment agencies the authority to acquire property using its Low/Moderate Housing Fund with the condition that the agency, within five years from the date of acquisition, develops the parcel for housing affordable to persons and families of low and moderate income or initiates activities consistent with the development of the property for that purpose. It is the intention of Agency staff to assemble 200 Sunset Court with the adjacent parcel at 140 Jane Street, also acquired using Low/Moderate Housing Funds in 2004, into one 2-acre parcel for a future affordable residential development.

An escrow has been opened, title conditions have been reviewed, and a Phase I environmental study has been completed. After close of escrow and tenant vacancy, the existing structures will be demolished for public safety and liability purposes, and the necessary actions to assemble the two parcels will be undertaken.

FISCAL IMPACT
The acquisition, escrow and title fees, demolition and assemblage costs are estimated at $550,000 and will be funded by a direct expenditure from Fund 302. Funds are included in the Fiscal Year 2007-2008 budget from Agency’s Low/Moderate Housing Fund 302. No City General Funds will be used for this transaction.

Relocation activities are estimated to cost approximately $345,000, which includes state-mandated relocation benefits for existing tenants, the cost to prepare a relocation plan and replacement housing plan, and relocation agents. Funds are included in the Fiscal Year 2007-2008 budget from the Agency’s Low/Moderate Housing Fund 302. No City General funds will be used for relocation activities.

Attachments: Resolution
Site Map/Project Map
Agreement


AGENCY RESOLUTION NO.

A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD APPROVING AN AGREEMENT FOR PURCHASE OF A FEE PARCEL WITH WILLIAM M. NIELSEN AND MARSHA G. NIELSEN, TRUSTORS AND TRUSTEES OF THE NIELSEN FAMILY TRUST DATED JUNE 4, 2004, OR THEIR AUTHORIZED REPRESENTATIVE, FOR REAL PROPERTY IDENTIFIED AS 200 SUNSET COURT, BRENTWOOD, CA, APN 016-010-015, 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.

WHEREAS, 200 Sunset Court (“Property”) is located within the boundaries of the North Brentwood Redevelopment Project Area Plan (“Plan”), and is subject to rights, restrictions, conditions and provisions of said Plan and any amendments thereto; and

WHEREAS, the Property is owned by William M. Nielson and Marsha G. Nielsen, Trustors and Trustees of the Nielsen Family Trust dated June 4, 2004, (“Owners”), and further identified as APN 016-010-015; and

WHEREAS, the Property is under-utilized, has deteriorated and defective buildings, inadequate infrastructure, and excessive building code violations causing a physical and economic blight condition; and

WHEREAS, for future redevelopment opportunities of the Property and improvement of the immediate surrounding area, the Agency desires to acquire the Property with its Low and Moderate Housing Funds to remove said blighted conditions from the premises, relocate the existing occupants in accordance with California Code of Regulations, Relocation Assistance Guidelines, and demolish the buildings and clear the land for safety and liability purposes; and

WHEREAS, pursuant to Government Code Section 65402, the Planning Commission approved Resolution 91-32 on June 4, 1991, and Resolution 02-17 on May 2, 2007, finding that any acquisition or disposition of real property pursuant to the Plan conforms to the General Plan of the City of Brentwood. Further, the Planning Commission approved Resolution 05-07 on February 2005, finding that the proposed purchase of the Property conforms to the General Plan; and

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

WHEREAS, Community Redevelopment Law Section 33391 provides the Agency with the authority to purchase real property; and Section 33334.2(e)(1) provides the Agency with the authority to use Low/Moderate Housing Funds to purchase real property provided the Agency initiates development of the property for housing affordable to persons and families of low and moderate income within five (5) years of acquisition.

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 Housing Set Aside Funds will assist in the elimination of the existing blighting conditions 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 . . . residential opportunities to achieve the greatest return on Agency’s investment, maximize the leveraging of tax increment, . . . 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 in the amount of $512,000 plus incidental fees and any related escrow, relocation, inspection, demolition and assemblage costs for a total estimated amount of $895,000 and to take all actions and execute documents to complete the purchase transaction, including execution of a certificate of acceptance.

5. The Agency staff is directed to initiate and complete necessary relocation activities to vacate the site of all tenants and prepare the mandated relocation and replacement housing plans, take actions necessary to demolish the existing structures, and assemble the Property with the adjacent Agency-owned parcel upon close of escrow.

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.

PASSED, APPROVED AND ADOPTED by the Redevelopment Agency of the City of Brentwood at a regular meeting held on the 12th day of June 2007 by the following vote:






ASSESSOR'S PARCEL NO: 016-010-015
TITLE REPORT NO: 702572
AGREEMENT FOR PURCHASE AND SALE OF REAL
PROPERTY (INCLUDING ESCROW INSTRUCTIONS)

THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY ("Agreement") is entered into as of , 2007, ("Effective Date") by and between the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body corporate and politic (the "Agency"), and William M. Nielsen and Marsha G. Nielsen, Trustors and Trustees of The Nielsen Family Trust dated June 4, 2004 (collectively, the "Seller").
Recitals
A. Seller is owner of that certain real property within the City of Brentwood, County of Contra Costa, State of California, consisting of approximately 1.12 acres and identified as County Assessor's Parcel Numbers 016 010 015, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference ("Real Property"), together with all buildings, structures or other improvements on the Real Property ("Property").
B. Seller desires to sell the Property to the Agency and the Agency desires to purchase the Property from Seller.
C. Prior to Seller's conveyance of the Property to the Agency, Agency desires to adopt a relocation plan and relocate all existing tenants. After Seller's conveyance of the Property to the Agency, Agency desires to demolish all existing improvements on the Property.
Agreement
It is hereby mutually agreed between the parties as follows:
1. Agreement to Sell and Purchase. Seller agrees to sell to Agency, and Agency agrees to purchase from Seller, upon the terms and for the consideration set forth in this Agreement, the Property. The Property includes all of Seller's appurtenant rights, privileges and easements, including, without limitation, all water, minerals, oil, gas and other hydrocarbons as well as all development rights, air rights, water rights, and water stock and any rights, privileges and easements owned by Seller in gross used in connection with the beneficial use and enjoyment of the Property. For purposes of this Agreement, rights, privileges and easements owned by Seller means those which it owns as of Close of Escrow (as defined in Section 8.4 below) and those to which it succeeds thereafter. The purchase and sale transaction contemplated under this Agreement is referred to herein as the "Sale."
2. Purchase Price. The total purchase price ("Purchase Price") for the Property shall be $512,000.00.
2.1. Good Faith Deposit. The Agency, within fifteen business days of full execution of this Agreement, shall deliver a deposit into Escrow in the amount of $128,000 (“Deposit”), representing 25 percent of the Purchase Price. The Deposit shall be applied to the Purchase Price at the Close of Escrow and shall be refunded to Agency if the event of a termination of this Agreement or failure to close escrow as set forth herein. Interest may accrue on the Deposit and shall be applied toward the Purchase Price.
2.2. Agency shall deposit the Purchase Price less the Deposit into Escrow on or before the date for Close of Escrow.
3. Preliminary Documents. Seller shall provide to Agency the following documents within thirty (30) days following the Effective Date:
3.1. Copies of all written residential leases and a list of all residential tenants on the Property.
3.2. Copies of all authorizations, approvals, permits, variances, allocations and entitlements with respect to land use, utilities and government services for the Property, including, without limitation, any previously paid fees and deposits.
3.3. Copies of all documents and materials relating to tests, studies and reports prepared or obtained by or furnished Seller with respect to the Property which relate to the physical nature, extent, characteristics and condition of the soil, subsoil, surface water and groundwater of the Property, including, without limitation, the presence of Hazardous Materials (as defined in Section 17).
4. Conveyance of Title. Seller 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) existing easements over the Property for public utilities; (ii) exceptions numbered 4, 6, 7 and 9 as shown on the Preliminary Title Report No. 702572 issued by North American Title Company and dated April 27, 2007, with respect to the Property ("Title Report"); and (iii) matters created by, through or under Agency. Seller shall not voluntarily create any new exceptions to title following the Effective Date including but not limited to any recorded or unrecorded leases or rental of Property.
5. 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 reasonably requested by the Agency, showing fee simple title to the Property vested in Agency, subject only to the exceptions set forth in Section 4 and the printed exceptions and stipulations in the policy. Agency shall pay the title policy premium.
6. Escrow. Agency and Seller have opened an escrow ("Escrow") in accordance with this Agreement with North American Title Company 2530 Sand Creek Road, Suite B-4, Brentwood, California, Attn: Linda Moore, Escrow Number 702572 ("Escrow Agent"). This Agreement, together with the escrow instructions prepared by Escrow Agent and executed by Agency and Seller, constitutes the joint escrow instructions of Agency and Seller, and Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all acts necessary to close this Escrow in the shortest possible time, and no later than December 31, 2007. Both parties agree to consider extension requests in good faith and with no additional cost or compensation to Agency.
6.1. Grant Deed. Prior to the Close of Escrow, Seller 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 Seller agree to deposit with Escrow Agent any additional instruments as may be necessary to complete this transaction.
6.2. Insurance. Insurance policies for fire or casualty are not to be transferred, and Seller shall maintain all insurance policies insuring the Property as of the Effective Date through Close of Escrow. Seller will cancel its own policies after Close of Escrow.
6.3. Escrow Account. All funds received in the Escrow shall be deposited with other escrow funds in a general escrow account(s) 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.
7. Prorations; Tax Adjustment Procedure. Escrow Agent is authorized and is instructed to comply with the following pro ration and tax adjustment procedure:
7.1. Taxes. Seller shall be responsible for any property taxes and any assessments and bonds against the Property payable prior to and through the Close of Escrow, including any penalties or interest attributable to delinquent taxes, assessments or bonds.
7.2. Rents. Seller shall have all rights, title and interest to rents paid or payable by tenants after the Effective Date. It is anticipated that there will be no tenants on the Property as of the Close of Escrow. In the event there are tenants on the Property on or after the Close of Escrow, all rights, title and interest to rents paid or payable after the Close of Escrow shall be the sole property of Agency.
8. Closing Costs; Disbursement.
8.1. Closing Costs. Pursuant to California Revenue and Taxation Code section 27383, it is anticipated that no recording fees will be assessed on the Sale. All expenses of the escrow for the sale shall be paid by Buyer and Seller in accordance with customary practice for Contra Costa County as reasonably determined by the Title Company. Each party shall bear its own legal fees and due diligence costs in connection with the sale.
8.2. Disbursement. Escrow Agent is authorized to 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 Seller.
8.3. Close of Escrow. The term "Close of Escrow," where written in this Agreement, shall mean the date the Grant Deed and other necessary instruments conveying title of the Property to the Agency 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 5 hereof.
8.4. 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.
8.5. FIRPTA. If the provisions of FIRPTA or similar state act apply to the transaction memorialized in this Agreement, and unless Seller is not a "foreign person" or an exemption applies, the Escrow Agent shall deduct and withhold from Seller's proceeds ten percent (10%) of the gross sales price and shall otherwise comply with all applicable provisions of FIRPTA and any similar state act. Seller 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.
8.6. Transfer Taxes. Pursuant to California Revenue and Taxation Code section 11922, no transfer tax shall be due because Agency is a public entity.
9. Conditions Precedent to Close of Escrow.
9.1. Agency's Conditions Prior to Closing. The obligation of the Agency to complete the Sale is subject to the satisfaction of the following conditions:
a. Seller shall have and convey good and marketable title to the Property.
b. Seller shall deliver through Escrow an executed, acknowledged and recordable Grant Deed sufficient to convey fee title to the Agency as set forth in Section 6.1.
c. Agency shall have completed all relocation activities and the Property shall be vacant of occupants.
d. Seller shall have removed all vehicles, dumpsters, tires, furniture, appliances, mattresses, debris, trash and livestock from the Property and the condition of the Property shall be in compliance with the City of Brentwood Municipal Code and regulations related to abatement of public nuisance, and other state and federal laws and regulations.
e. Seller shall deliver through Escrow such other funds and documents as are necessary to comply with Seller's obligations under this Agreement.
f. Seller shall not be in default of any of its obligations under the terms of this Agreement, and all of Seller's representations and warranties shall be true and correct as of the Close of Escrow.
g. Escrow Agent shall have committed to deliver to Agency the Title Policy as described in and required by Section 4 hereof.
On failure of any of the conditions set forth above, Agency may terminate its obligations under this Agreement with no further liability to Seller by giving notice to Seller 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.
9.2. Seller's Conditions Precedent to Closing. The obligation of Seller 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.
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 described herein.
On failure of any of the conditions set forth above, Seller 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. Seller's failure to elect to terminate its obligations shall constitute a waiver of the condition by Seller.
9.3. Post-Closing Conditions. It is anticipated that Agency will make arrangements for the demolition of structures on the Property after the Close of Escrow. Accordingly, no later than five (5) days prior to Close of Escrow, Seller shall inform Escrow Agent as to whether water services ("Water Services") to the Property delivered from 7030 Brentwood Boulevard are disconnected. In the event Seller does not confirm to Escrow Agent that the Water Services have been disconnected, Escrow Agent is hereby instructed to hold back funds in the amount of $5,000.00 from Seller's disbursement pursuant to Section 8.2 of this Agreement in order to cover any costs incurred by Agency in disconnecting Water Services.

10. Permission to Enter on Premises. Seller hereby grants to Agency, or its authorized agents, permission to enter upon the Property at all reasonable times prior to the Agency Close of Escrow, for the purpose of making necessary or appropriate inspections (the "Inspections") and to contact existing Tenants in connection with the Agency's relocation activities, as set forth in Section 14 (the "Interviews").
11. Closing Statement. Seller instructs Escrow Agent to release a copy of Seller'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 Seller. However, in the event that loss or damage to the Property, by fire or other casualty, occurs prior to the recordation of the Grant Deed, any insurance policy or policies which may become payable to Seller by reason thereof, Agency, in its sole discretion, shall determine whether such proceeds will 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 Seller, whichever is greater. However, in the event any buildings or structures located on the Property are lost or damaged by fire or other casualty prior to the recordation of the Grant Deed, the parties agree there will be no reduction in the Purchase Price due to the Agency’s intention to demolish existing improvements on the Property following close of Escrow.
13. Tax-Deferred Exchange. Seller wishes to attempt to affect a "tax-deferred" exchange pursuant to Section 1031 of the Internal Revenue Code in connection with the transaction contemplated in this Agreement. The Agency shall cooperate with Seller, at no cost, expense, or liability to Agency, in Seller's attempt to effectuate such exchange, but the Agency makes no representations to Seller that any such exchange shall be treated as "tax-deferred" by the Internal Revenue Service. Seller agrees to indemnify Agency from all liability with respect to any action which Seller requests the Agency to take pursuant to this Section 13, and to reimburse the Agency for all fees, costs, and expenses (including reasonable attorney's fees) incurred by the Agency as a result of Seller's election to participate in a Section 1031 exchange. The Agency shall not be required to hold title to any real estate or other assets in order to cooperate with Seller's Section 1031 exchange.
14. Relocation of Tenants; Rental and Occupancy by Seller. As soon as reasonably practicable following the Effective Date, Agency shall, at its sole cost and expense, create a relocation plan and diligently pursue such actions as are necessary to relocate all the tenants located on the Property in accordance with applicable laws and regulations, including California Government Code Section 7260. Seller further agrees not to raise or forgive any rental payments or evict any tenants without the prior written approval of the Agency. Seller shall cooperate with the Agency in taking all steps necessary to terminate all existing leases and relocate existing tenants, including without limitation, sending written notices of termination to tenants as and when the Agency directs, consenting to the interview of tenants by Agency staff or consultants and allowing the distribution of information to tenants, all in accordance with the Agency's relocation obligations.
15. Indemnities.
15.1. Seller shall defend, indemnify and hold harmless Agency and its officers, employees, volunteers, agents and representatives from and against any and all present and future causes of action, claims, liabilities, obligations, damages, fines, penalties, judgments, actions or expenses (including attorney fees) (collectively, "Claims") arising out of Seller's negligence or misconduct during Seller's ownership of the Property or Seller's default of this Agreement.
15.2. Agency shall defend, indemnify and hold harmless Seller and its officers, employees, volunteers, agents and representatives from and against any and all Claims, arising out of this Agreement, but excluding any Claims for which Seller has indemnified Agency pursuant to Section 15.1 and any claims arising out of Seller's default under this Agreement.
16. Warranties, Representations and Preclosing Covenants of Seller. Seller hereby warrants, represents, and/or covenants to Agency that:
16.1. Seller's Title. Until the Close of Escrow, Seller shall not do anything which would impair Seller's title to any of the Property.
16.2. Conflict with Other Obligation. 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 Seller or the Property may be bound.
16.3. Authority. Each party executing this Agreement on behalf of Seller represents and warrants that such person is duly and validly authorized to do so on behalf of Seller.
16.4. No Contracts. Seller shall not enter into any lease or other agreement (oral or written), respecting use or occupancy of the Property, or any portion thereof, without the written consent of Agency. There are no contracts, agreements, or equipment leases relating to the operation, repair or maintenance of the Property, nor any easements, licenses, covenants, restrictions, agreements, or other documents, the terms of which extend beyond midnight of the day preceding the Closing Date (collectively, “Contracts”). Neither Seller nor any Seller Parties shall create, enter into, amend, or modify any Contracts or other agreements relating to the Property, whether written or oral, without Buyer’s prior written consent.
16.5. No Grants. Seller shall not grant to any party other than Agency any option, contract or other agreement with respect to the Sale or any portion thereof.
16.6. Preliminary Documents. All of the Preliminary Documents delivered to Agency pursuant to Section 3 above are true, correct and complete.
16.7. Hazardous Materials. Seller shall not use, dump, store, release, transport or dispose of any Hazardous Materials (as defined in Section 17) at anytime following the Effective Date during its ownership of the Property.
16.8. Non-Foreign Transferor. Seller is not a "foreign person" within the meaning of the Foreign Investment in Real Property Act or any similar state statute, and Seller 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.
16.9. Pending Claims and Government Compliance. Seller shall immediately notify Agency in the event that it receives notice of or otherwise becomes aware of any actions, suits, claims, legal proceedings, or other proceedings affecting the Property or any portion thereof, at law, or in equity before any court or governmental agency, domestic or foreign or if it receives 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.
16.10. Change of Situation. Until the Close of Escrow, Seller shall, upon learning of any fact or condition which would cause any of the warranties, representations or covenants in this Section 16 not to be true as of the Close of Escrow, immediately give written notice of such fact or condition to Agency.
17. Buyer's Contingency and Right to Terminate. As soon as practicable, but in any event no later than the Close of Escrow, Agency may undertake its environmental assessment of the Property. In the event Agency, in its sole discretion, determines that the Property contains Hazardous Materials (as defined below) which make it infeasible to use or develop the Property as contemplated, Agency may provide written notice of such determination to Seller and the Escrow Agent, Escrow shall be cancelled and this Agreement shall terminate. Regardless of the Agency's right to cancel Escrow and terminate this Agreement, in the event Hazardous Materials are found in, on or under the Property, neither party waives or relinquishes any common law or statutory rights it or they may have against third persons arising from or related to the cause or source of the Hazardous Materials, or for contribution or indemnity as a result of site evaluation, remediation and clean-up costs and liability. 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: (i) 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); (ii) 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); (iii) 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); (iv) 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); (v) petroleum; (vi) asbestos or asbestos containing materials; (vii) polychlorinated byphenyls; (viii) Methyl-tert-Butyl Ether; (ix) 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; (x) designated as a "hazardous substances" pursuant to Section 311 of the Clean Water Act, (33 U.S.C. §1317); (xi) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq.; or (xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq.
18. Full and Complete Settlement for Fee Interest. The total compensation to be paid by Agency to Seller is in consideration for all of Seller's interest in the Property and any rights or obligations of Seller which exist or may arise out of the acquisition of the Property for public purposes, including without limitation, Seller's fee interest in the land, severance damages, relocation assistance, any alleged pre-condemnation or inverse condemnation damages, loss of business goodwill (if any), costs, interest, attorney's fees, and any claim whatsoever of Seller which might arise out of or relate in any respect to the acquisition of the Property by the Agency, but specifically excluding any rights or claims of tenants leasing portions of the Property. Seller fully releases and discharges Agency from all and any manner of rights, demands, liabilities, obligations, claims, or cause of actions, in law or equity, of whatever kind or nature, whether known or unknown, whether now existing or hereinafter arising, which arise from or relate in any manner to (i) the sale of the Property or the relocation of Seller's business operations, if any, including the specific waiver and release of any right to any relocation benefits, assistance and/or payments under California Government Code Section 7260, et seq., notwithstanding that such relocation assistance, benefits and/or payments may be otherwise required under said sections or other state or federal law; and (ii) compensation for any interest in the Property or Seller's business operations, if any, conducted thereon, including, but not limited to, land and improvements, fixtures, furniture, or equipment thereon, goodwill, severance damage, attorneys' fees or any other compensation of any nature whatsoever. By releasing and forever discharging claims both known and unknown which are related to or which arise under or in connection with the items set out above, Seller expressly waives any rights under California Civil Code section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
19. Broker's Commission. Agency 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. Seller has engaged the services of Sylvia Amaral of Coldwell Banker Amaral & Associates (“Agent”) in connection with the transaction and agrees to pay the Agent a commission in the amount equal to 2 percent of the Purchase Price. Seller agrees to and does hereby indemnify Agency and holds Agency harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from the engagement of or services performed by Agent.
20. Condition of Property. Except as otherwise expressly stated in this Agreement, Seller has not made any express or implied representations, guarantees, promises, statements, assurances or warranties as to (a) the suitability for any purpose or the compliance with any and all laws of any or all of the Property or any of the improvements thereon, (b) the profitability of owning and operating the Property or any of the improvements thereon, (c) the physical condition thereof, (d) the net or gross footage contained therein, or (e) the zoning thereof, the condition of title or any other past, present or future matter whatsoever. Except for the express representations, warranties and covenants of Seller contained in this Agreement, Agency is relying solely upon Agency's own independent inspection, investigation and analysis of the Property as Agency deems necessary or appropriate in so acquiring the Property from Seller (including, without limitation, any and all matters concerning the condition, use, sale, development or suitability for development of the Property); and the Property is being purchased "AS-IS-WHERE-IS-AND-WITH-ALL-FAULTS."
21. Waiver, Consent and Remedies. Each provision of this Agreement to be performed by Agency and Seller shall be deemed both a covenant and a condition and shall be a material consideration for Seller's and Agency's performance hereunder, as appropriate, and any breach thereof by Agency or Seller 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.
22. Attorney's Fees. In the event any declaratory or other legal or equitable action is instituted between Seller, Agency and/or Escrow Agent in connection with this Agreement, then as between Agency and Seller, 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.
23. 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 (3) 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 23. 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 Seller: Dr. and Mrs. William Nielsen
2163 Concord Avenue
Brentwood, CA 94513
Tel: (925) 634-2120
Fax: (925) 516-5879

If to Agency: Brentwood Redevelopment Agency
Attn: Gina Rozenski
150 City Park Way
Brentwood, CA 94513
Tel: (925) 516-5405
Fax: (925) 516-5407

with a copy to: City of Brentwood
Attn: City Attorney
150 City Park Way
Brentwood, CA 94513
Tel: (925) 516-5195
Fax: (925) 516-5441

24. 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 (10) 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 (10) day period.
25. Entire Agreement. This Agreement and the exhibits attached hereto 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.
26. 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.
27. 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.
28. 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.
29. 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 Seller.
30. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.
31. Time of Essence. Time is of the essence of each provision of this Agreement.
32. 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.
33. Interpretation of Agreement. The article, section and other headings of this Agreement are for convenience of reference only and shall not be construed to affect the meaning of any provision contained herein. Where the context so requires, the use of the singular shall include the plural and vice versa and the use of the masculine shall include the feminine and the neuter. The term “person” shall include any individual, partnership, joint venture, corporation, trust, unincorporated association, any other entity and any government or any department or agency thereof, whether acting in an individual, fiduciary or other capacity.
34. 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.







SIGNATURE PAGE TO FOLLOW









IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth below.
AGENCY:
REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body corporate and politic

Date: By:
"Effective Date" Donna Landeros
Its: Executive Director

APPROVED AS TO FORM: ATTEST:


Damien Brower Margaret Wimberly
Agency Counsel Agency Secretary


SELLER:

THE NIELSEN FAMILY TRUST DATED
JUNE 4, 2004

Date:
William M. Nielsen, Trustor and Trustee


Date:
Marsha G. Nielsen, Trustor and Trustee



CONSENT OF ESCROW AGENT
Escrow Agent hereby acknowledges receipt of three (3) counterparts of this Agreement, each of 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. Escrow Agent further agrees to immediately deliver to each of Seller and Agency's counsel one (1) original counterpart of this Agreement executed by the parties and Escrow Agent.

NORTH AMERICAN TITLE COMPANY

By:
Its:

EXHIBIT A
Legal Description of the Property
Real property in the City of Brentwood, County of Contra Costa, State of California, described as follows:
[To be inserted]


EXHIBIT B
Recording Requested by and )
After Recordation Mail to: )
)
City of Brentwood )
Redevelopment Agency )
150 City Park Way )
Brentwood, California 94513 )
Attn: Agency Secretary )
)
This document is exempt from the payment of a recording fee pursuant to Government Code § 27383 and transfer taxes pursuant to Revenue and Taxation Code § 11922.
GRANT DEED

For valuable consideration, the receipt of which is hereby acknowledged, WILLIAM M. NIELSEN AND MARSHA G. NIELSEN, TRUSTORS AND TRUSTEES OF THE NIELSEN FAMILY TRUST DATED JUNE 4, 2004, hereby grant to the REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body corporate and politic, the real property located in the City of Brentwood, California, described in Attachment No. 1, attached hereto.
Dated: , _____
By: The Nielsen Family Trust dated June 4, 2004


William M. Nielsen, Trustor and Trustee



Marsha G. Nielsen, Trustor and Trustee




ATTACHMENT NO. 1
Legal Description
Real property in the City of Brentwood, County of Contra Costa, State of California, described as follows:
[To be inserted]


State of California
County of ____________________________
On __________________ before me, _________________________________________, Notary Public, personally appeared ___________________________________________ personally known to me (or 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 ______________________________________ (Seal)



State of California
County of ____________________________
On __________________ before me, _________________________________________, Notary Public, personally appeared ___________________________________________ personally known to me (or 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 ______________________________________ (Seal)




CERTIFICATE OF ACCEPTANCE

This is to certify that the fee interest in real property conveyed by Grant Deed dated , _____, from William M. Nielsen and Marsha G. Nielsen, Trustors and Trustees of The Nielsen Family Trust dated June 4, 2004, to the Redevelopment Agency of the City of Brentwood (“Agency”), a public body corporate and politic, as grantee, is 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.
AGENCY:

Dated: , _____ By:
Donna Landeros
Its: Executive Director
State of California
County of ____________________________
On __________________ before me, _________________________________________, Notary Public, personally appeared ___________________________________________ personally known to me (or 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 ______________________________________ (Seal)
 

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