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AGREEMENT NO. _______________
PURCHASE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS FOR THE SALE OF REAL PROPERTY BY
AND BETWEEN THE CITY OF BAKERSFIELD AND
BOLTHOUSE
LAND COMPANY, LLC.
THIS AGREEMENT
is made and entered into on _____________________,
by and between the CITY OF BAKERSFIELD, a municipal corporation (“BUYER” herein), and BOLTHOUSE LAND COMPANY, LLC., a California limited liability company (“SELLER” herein).
R
E C I T A L S :
WHEREAS, it is the intent of the parties to set forth all the covenants and conditions for purchase by BUYER of The Property and improvements thereon described in Exhibit “A,” and as shown on the drawing marked Exhibit “B,” (the “Property”) attached hereto and incorporated herein by this reference; and
WHEREAS,
The Property consists of 7.376 gross acres, of which 0.704 acres is subject to dedication for future roadway purposes; and
WHEREAS,
it is the intent of the parties that the purchase price is to include any and all claims for compensation and/or payment arising from this acquisition,
NOW, THEREFORE,
incorporating the above recitals herein, BUYER and
SELLER mutually agree as follows:
1. AGREEMENT TO SELL
AND PURCHASE. SELLER agrees to sell and
BUYER agrees to purchase The Property in accordance with all the covenants and conditions set forth in this Agreement.
2. PURCHASE PRICE
. The purchase price of SIX HUNDRED
THOUSAND FOUR HUNDRED AND EIGHTY DOLLARS ($600,480) represents The Property’s fair market value as established by an appraisal prepared by Merriman, Hurst & Associates. The amount set forth herein above includes any and all claims by SELLER for compensation arising from this transaction, including, but not limited to, any future claim for farming losses attributable to BUYER’s commencement of construction of the Westside Parkway, as provided below.
2.1 Farming Lease Rights. At the close of escrow, SELLER and BUYER shall enter into a farming lease permitting SELLER, its successors and assigns, including SELLER’s tenants and tenant’s subtenants to use The Docusign Envelope ID: 53CFF0F1-E718-8848-82C1-63112C13DD9C
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Property for farming and related incidental uses for the term and on the terms and conditions set forth in the farming lease form which is attached hereto as Exhibit “C” (the “Farming Lease”).
3. EXCLUDED PERSONAL PROPERTY & WATER WELL. BUYER and
SELLER acknowledge and agree that The Property shall be conveyed to BUYER at the closing subject to certain continuing rights and interests of Seller, as are more particularly set forth in this Section.
3.1 Excluded Personal Property BUYER acknowledges that SELLER and/or SELLER'S farming tenant owns all farming improvements and equipment located on The Property , including below-ground and above- ground irrigation improvements and equipment located on or used to irrigate The Property, including well casing, tubing, submersible pumps and other below -ground improvements and equipment, motors, pumps, wellheads, gearheads, valves, controls, tanks, diverters, irrigation pipelines and systems, and other above- ground improvements and equipment, including any replacement improvements and equipment which SELLER or its farming tenant hereafter places on or affixes to The Pro perty (collectively, the Farming Improvements and Equipment"), BUYER agrees that following the closing, SELLER (and SELLER's farming tenant, as applicable) shall retain the right to use, maintain, repair and replace the Farming Improvements and Equipment o n The Property; provided that upon or before the expiration of six (6) months following BUYER's written notice to SELLER notifying SELLER that BUYER intends to commence construction of improvements for the West Beltway on portions of The Property where the Farming Improvements and Equipment are located (in each case, a "Removal Date"), SELLER shall have the right, but not the obligation (except as expressly stated to the contrary in Section 3.2 below), at SELLER's cost, to remove or cause to be removed any Farming Improvements and Equipment from said portions of The Property. "Construction Activities" shall mean the soliciting/advertising for bids for construction on the Premises for the West Beltway. Any Farming Improvements and Equipment which SELLER does not remove or cause to be removed from The Property as of the Removal Date, shall be
deemed to have been abandoned by SELLER and SELLER's farming tenant, and BUYER shall thereafter have the right to remove and dispose of the same at BUYER's cost. The terms and conditions set forth in this Section 3 .1 shall survive the close of escrow and the recordation of all instruments of conveyance.
3.2 Continued Use of Water Well. BUYER agrees that
following the closing of escrow and entering into the Farming Lease, SELLER shall retain the right to use, maintain, repair and replace that certain agricultural water well known as Bolthouse Farms Water Well No. 6E4-3 (at Docusign Envelope ID: 53CFF0F1-E718-8848-82C1-63112C13DD9C
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its sale cost and expense) located within The Property , as shown on Exhibit "B" (the "6E4-3 Well"), together with, (i)the right to take and use water from the 6E4-3 Well for agricultural and other non-potable uses, ( ii) the right of access, ingress and egress to, from, over and across such portions of The Property as shall be reasonably convenient to BUYER for SELLER's continued use, maintenance, repair and/or replacement of the 6E4-3 Well. (iii) the right to place and use pipelines from the 6E4-3 Well to SELLER's real properties within the West Ming Specific Plan area. SELLER's rights as reserved in this Section 3.2 shall terminate upon the expiration of six (6) months following BUYER's written notice to SELLER notifying SELLER that BUYER intends to commence construction of improvements for the Westside Parkway on that portion of The Property which is located immediately adjacent to the 6E4-3 Well. Upon or before such termination, SELLER shall, at SELLER's cost, plug and abandon the 6E4-3 Well, and shall remove from The Property any portion of the Farming Improvements and Equipment as shall be required for such plugging and abandonment.
The terms and conditions set forth in this Section 3.2 shall survive the close of escrow and the recordation of all instruments of conveyance.
3.3 Witholding of Funds. BUYER and SELLER agree that
the amount of TWENTY THOUSAND ( $20,000) shall be withheld from the Purchase Price by BUYER to be released to SELLER, upon proper abandonment of the 6E4-3 Well. SELLER shall ensure the 6E4-3 Well has been plugged and abandoned to the satisfaction of BUYER and in accordance with safety standards and state and/or local regulations.
Subsequently, SELLER shall inform the City, in writing, at such time that SELLER has plugged and abandoned the 6E4-3 Well. Within thirty (30) days of City’s receipt of the Abandonment Letter, the balance of the Payment in the amount of Twenty Thousand Dollars ($ 20,000) shall be paid by the City directly to SELLER. The terms and conditions set forth in this Section 3.3 shall survive the close of escrow and the recordation of all instruments of conveyance.
SELLER Initials:________
4. ESCROW.
4.1 Escrow Holder. The purchase and sale of The Property shall be consummated by means of an escrow to be opened at the office of Ticor Title Company, herein “Escrow Holder”, located at 10000 Stockdale Highway, Bakersfield, CA.
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4.2 Escrow Instructions. Within twenty (20) working days of execution of this Agreement by all parties, each shall deliver to Escrow Holder appropriately executed escrow instructions or file a written protest detailing what instructions are not acceptable. This Agreement shall serve as the parties’ instructions to the Escrow Holder and shall become part of the escrow instructions for consummation of the purchase and sale of The Property. SELLER and BUYER agree to execute such additional and supplementary instructions as may be appropriate or required by Escrow Holder to comply with the terms of this Agreement; provided, however, that in the event of any conflict between this Agreement and any additional or supplementary escrow instructions, the terms of this Agreement shall control, unless the parties jointly agree to the contrary. Said escrow instructions are incorporated herein by this reference.
5. BUYER’S CONTINGENCIES. The closing of this transaction is contingent upon the satisfaction or waiver of the following contingencies prior to the Closing Date. Each of these contingencies must be satisfied or waived prior to any obligation of the BUYER to become effective. The failure to satisfy or waive these contingencies within the time stated, or within any mutually-agreed extended time, shall terminate this Agreement with no liability of BUYER for any direct or consequential damages:
5.1 Financing. Availability of funds for this acquisition;
5.2 Preliminary Title Report and Documents. Within ten (10) working days of execution of this Agreement by all parties, the following shall occur:
5.2.1 BUYER shall obtain a preliminary title report (herein “PTR”) concerning The Property , issued by Escrow Holder, together with copies of reproducible documents referred to in such PTR, if any;
5.2.2 BUYER shall deliver to Escrow Holder its written
disapproval of any exceptions to the title referred to in paragraphs 4.2.1 and 4.2.2 above within ten (10) working days after BUYER’s receipt thereof.
If, after receipt of disapproval of any exceptions to the title, SELLER does not elect to cure all of said exceptions, then BUYER shall have the right either to accept title to The Property subject to said exceptions, thereby waiving any and all claims against SELLER by reason thereof, or to terminate this Agreement. BUYER shall give SELLER such written notice of BUYER’s election within the ten (10) working days after receipt of SELLER’s election not to cure. If BUYER elects to terminate this Agreement, thereafter neither SELLER nor BUYER shall have any further liability hereunder, except that BUYER shall be entitled to the prompt return of all funds deposited by BUYER with Escrow Docusign Envelope ID: 53CFF0F1-E718-8848-82C1-63112C13DD9C
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Holder, less reasonable escrow cancellation fees and costs and title company charges which BUYER hereby agrees to pay;
5.3 Title Insurance. Escrow Holder will issue, at BUYER’S sole cost and expense without right of reimbursement from SELLER, an ALTA title policy insuring title in BUYER’s name in an amount equal to the purchase price;
5.4 Site Assessment. A favorable environmental site
assessment to be performed by BUYER;
5.5 Material Change. No material change, as hereinafter defined, shall have occurred with respect to The Property which has not been approved in writing by BUYER. For purposes of this Agreement, a “material change” shall be a change in the status of the use, occupancy, tenants, or condition of The Property as reasonably expected by the BUYER that occurs after the date of this Agreement and prior to the close of escrow. BUYER shall have twenty (20) working days following receipt of written notice from any source of any such material change within which to approve or disapprove same. Unless otherwise notified in writing by either party, Escrow Holder shall assume that no material change has occurred prior to the close of escrow.
5.6 Existing Leases and Tenancy Statements. SELLER
represents that they will provide to Buyer a copy of relevant portions of any existing unrecorded leases, subleases, or rental arrangements (herein the “existing leases”) and there will be no additional leases prior to the close of escrow other than the Farming Lease and any subleases permitted under the terms and conditions thereof, excepting those approved in writing by BUYER;
5.7 Other Agreements. SELLER shall within ten (10) working days of the date of this Agreement provide BUYER with legible copies of all other agreements known to SELLER that will affect The Property after the closing;
5.8 Unrecorded Title Matters. SELLER has no actual
knowledge of any encumbrances, covenants, conditions, restrictions, easements, licenses, liens, charges , or other matters which affect the title of The Property that are not recorded in the Official Records of the Kern County Recorder, except as otherwise disclosed in writing to BUYER;
5.9 Possessory Rights. SELLER has no knowledge that
anyone or any entity will, at the time of the closing, have any right to Docusign Envelope ID: 53CFF0F1-E718-8848-82C1-63112C13DD9C
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possession of The Property, except as disclosed by the SELLER in writing to BUYER, or as permitted by the Farming Lease.
All of the above contingencies are for the benefit of, and may be waived in writing by, BUYER and may be elsewhere herein referred to as “BUYER’s contingencies.”
6. SELLER’S WARRANTIES. SELLER hereby makes the following warranties and representations to BUYER which shall survive t he closing for a period of one (1) year;
6.1 Authority of SELLER. SELLER warrants and represents that SELLER has the right and legal ability to transfer The P roperty to the BUYER as set forth in this Agreement;
6.2 Legal Proceedings. SELLER has no knowledge of any
actions, lawsuits , or proceedings pending or threatened before any commission, board, bureau, agency, arbitrator, court, or tribunal that would affect The Property or the right to occupy or utilize same;
6.3 Bankruptcy Proceedings. SELLER is not the subject of a bankruptcy, insolvency, or probate proceeding and has no notice o r knowledge that any tenant, lessee, or other person/entity possessing an interest in The Property is the subject of a bankruptcy or insolvency proceeding.
7. CONVEYANCE OF TITLE. SELLER agrees to convey to BUYER The Property free and clear of all recorded and unrecorded deeds of trust and other monetary liens. The amount of any bond or assessment which is a lien shall be paid by SELLER or otherwise removed by SELLER from title to The Property at or before the c losing, subject to approval of the title report.
SELLER shall execute a Grant Deed to convey The Property to BUYER and deliver same to Escrow Holder within fifteen (15) working days of the opening of escrow. Any and all water rights accruing to The Property shall also be transferred to BUYER without reservation, except that the Grant Deed shall contain an express reservation reserving to SELLER any and all rights accruing to SELLER under the terms and conditions of that certain Land Exchange and Water Development Agreement No. 06 -157 (the “Water Development Agreement”) entered into as of June 7, 2006 by and between BUYER, Bolthouse Properties, LLC, Castle & Cooke California, Inc., and the Kern County Water Agency (“KCWA”), including without limitation the rights accruing to SELLER under Section 3.4 of said agreement. Such express reservation shall provide as follows:
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“RESERVING TO GRANTOR, any and all rights accruing to
Grantor under the terms and conditions of that certain Land Exchange and Water Development Agreement, Agreement
No. 06-157 entered into as of June 7, 2006 by and between Grantor, Grantee, Bolthouse Properties, LLC and the Kern County Water Agency, including without limitation the rights accruing to Grantor under Section 3.4 of said agreement.”
In addition, BUYER acknowledges that SELLER does not own any oil, gas or mineral rights in or to The Property, and the parties acknowledge and agree that the legal description attached to the Grant Deed shall exclude all oil, gas and mineral rights previously excepted and reserved of record.
8. CLOSING COSTS. BUYER shall be responsible for all normal and reasonable escrow fees, including the costs of title insurance. SELLER shall be responsible for the costs to clear title and all real property taxes and assessments accruing up to the close of escrow. SELLER shall fully pay the amount of any bond or assessment which is a lien upon The Property prior to the close of escrow.
9. CLOSING DATE. Escrow shall close no later than ten (10) working days after the satisfaction of all contingencies set forth herein, unless extended by mutual written agreement of both parties. In no event shall the escrow close more than sixty (60) working days from execution of this Agreement by all parties, unless extended in writing, by mutual agreement of all parties.
10. POSSESSION OF SELLER’S PARCEL. SELLER agrees to give possession of The Property to BUYER on the date of close of escrow, subject to SELLER’S rights under the Farming Lease.
11. NO WAIVER OF DEFAULT. The failure of any party to enforce against another party any provision of this Agreement shall not constitute a waiver of that party’s right to enforce such a provision at a later time, and shall not serve to vary the terms of this Agreement.
12. GOVERNING LAW. The laws of the State of California will govern the validity of this Agreement, its interpretation and performance.
Any litigation arising in any way from this Agreement shall be brought in Kern County, California.
13. TIME. Time is of the essence in this Agreement.
14. BINDING EFFECT. The rights and obligations of this Agreement shall inure to the benefit of, and be binding upon, the parties to the Docusign Envelope ID: 53CFF0F1-E718-8848-82C1-63112C13DD9C
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Agreement and their heirs, administrators, executors, personal representatives, successors and assigns.
15. BROKERS AND FINDERS. The parties acknowledge and
represent that BUYER shall pay no commission to any broker or finder in connection with the purchase and sale of The Property.
16. ASSIGNMENT. Neither this Agreement nor any rights, interests, duties, liabilities, obligations or responsibilities arising out of, concerning or related in any way to this Agreement (including, but not limited to, accounts, actions, causes of action, claims, damages, demands, liabilities, losses, obligations, or reckonings of any kind or nature whatsoever, for compensatory or exemplary and punitive damages, or declaratory, equitable or injunctive relief, whether based on contract, equity, tort or other theories of reco very provided for by the common or statutory law ) (collectively, “Assignable Rights”) may be assigned or transferred by any party without the prior written consent of the other party, which shall not be unreasonably withheld, except that SELLER shall have the right to assign this Agreement and any or all of SELLER’s Assignable Rights and obligations thereunder without BUYER’s prior written consent (effective upon written notice thereof given to BUYER ) to any entity controlled by or under common control with SELLER . Any assignment other than an assignment which is expressly permitted by the terms and conditions of this Section 15 is prohibited, and shall be unenforceable and otherwise null and void without the need for further action by the non-assigning party or parties.
17. MERGER AND MODIFICATION. This Agreement sets forth the entire Agreement between the parties and supersedes all other oral or written representations. This Agreement may be modified only in a writing approved by the City Council and signed by all the parties.
18. CORPORATE AUTHORITY. Each individual signing this
Agreement on behalf of entities represents and warrants that they are, respectively, duly authorized to sign on behalf of the entities and to bind the entities fully to each and all of the obligations set forth in this Agreement.
19. EXECUTION. This Agreement is effective upon execution. It is the product of negotiation and all parties are equally responsible for authorship of this Agreement. Section 1654 of the California Civil Code shall not apply to the interpretation of this Agreement.
20. EXHIBITS. In the event of a conflict between the terms, conditions or specifications set forth in this Agreement and those in exhibits attached hereto, the terms, conditions or specifications set forth in this Docusign Envelope ID: 53CFF0F1-E718-8848-82C1-63112C13DD9C
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Agreement shall prevail. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement, whether or not actually attached.
21. FURTHER ASSURANCES. Each party shall execute and deliver such papers, documents and instruments, and perform such acts as are necessary or appropriate, to implement the terms of this Agreement and the intent of the parties to this Agreement.
22. NON-INTEREST. No officer or employee of BUYER shall hold any interest in this Agreement (California Government Code section 1090).
23. HAZARDOUS MATERIALS. SELLER knows of no hazardous
material(s) stored, discharged, abandoned, dumped or in any way placed in, on, over, under or about The Property. SELLER knows of no activities, either public or private, wherein SELLER or a third party has placed, stored, discharged, abandoned or dumped any hazardous material of any nature, in, on, over, under or about The Property.
24. NOTICES. All notices relative to this Agreement shall be given in writing and shall be personally served or sent by certified or registered mail and be effective upon actual personal service or depositing in the United States mail. The parties shall be addressed as follows or at any other address designated by notice:
To BUYER: CITY OF BAKERSFIELD
Attention: Property Management
1600 Truxtun Avenue, 4
th Floor
Bakersfield, CA 93301
To: SELLER: Bolthouse Land Company, LLC
Attn: Executive Vice President of
Development
11601 Bolthouse Drive, Suite 200
Bakersfield, CA 93311
25. LAND EXCHANGE PERMITTED. Notwithstanding anything to the contrary contained in this Agreement, SELLER may transfer The Property, and/or any additional property purchased by BUYER pursuant to the terms and conditions of Section 4 above, by means of one or more exchanges for like- kind property qualifying for tax- deferred treatment pursuant to Internal Revenue Code Section 1031 or 1033. If SELLER exercises such option, then BUYER shall cooperate in effecting a qualifying like- kind exchange through a trust or other means determined by SELLER, as long as SELLER bears all cost and expense in connection with such exchange and Docusign Envelope ID: 53CFF0F1-E718-8848-82C1-63112C13DD9C
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BUYER is not required to incur liability for or in connection with such exchange or enter the chain of title to any property other than The Property or the additional property purchased by BUYER, as applicable. The parties understand, acknowledge and agree that this provision may require that BUYER and/or SELLER execute and deliver such documents as shall be reasonably necessary or required to effect the exchange, and the need to instruct the Title Company to forward all or any portion of the closing funds and/or closing documents to SELLER’S exchange accommodator.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, the day and year first-above written.
“BUYER” “SELLER”
CITY OF BAKERSFIELD BOLTHOUSE LAND COMPANY, LLC.
By:___________________________ By:
KAREN GOH BRET M. NIELSEN Mayor Chief Operating Officer
APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
By:___________________________
ASHLEY ZAMBRANO
Deputy City Attorney II
(Signatures continue on following page)
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APPROVED AS TO CONTENT:
By:____________________________
ZACHARY MEYER
Public Works Director
COUNTERSIGNED:
By:__________________________
RANDY MCKEEGAN
Finance Director
Attachments: Exhibit “A” – Legal Description
Exhibit “B” – Drawing
Exhibit “C” - Form of Farming Lease
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