Agenda — Calistoga City Council, February 6, 2024 (part 3 of 3)

CNAP-55587\2877807.8 30
EXTREMELY DIFFICULT TO FIX ACTUAL DAMAGES; (B) AN AMOUNT

EQUAL TO THE DEPOSIT HAS BEEN AGREED UPON, AFTER
NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES IF THE CLOSING DOES NOT OCCUR BY REASON OF BUYER’S

DEFAULT HEREUNDER AND SHALL CONSTITUTE LIQUIDATED
DAMAGES PAYABLE TO SELLER; (C) THE PAYMENT OF THE

LIQUIDATED DAMAGES TO SELLER SHALL CONSTITUTE THE
EXCLUSIVE AND SOLE REMEDY OF SELLER AT LAW OR IN EQUITY; (D) SELLER MAY RETAIN THAT PAYMENT ON ACCOUNT OF THE
PURCHASE PRICE FOR THE PROPERTY AS LIQUIDATED DAMAGES; AND (E) PAYMENT OF THOSE SUMS TO SELLER AS LIQUIDATED DAMAGES IS

NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT INSTEAD, IS

INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER
PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE. THE PARTIES HAVE FREELY NEGOTIATED THE FOREGOING
LIQUIDATED DAMAGES PROVISION IN GOOD FAITH. NOTHING SET FORTH IN THIS PARAGRAPH 26.b. SHALL SERVE TO LIMIT ANY

INDEMNITY OBLIGATION OF BUYER UNDER THIS AGREEMENT OR ANY POST-CLOSING OBLIGATION OF BUYER. EXCEPT AS EXPRESSLY

PROVIDED ABOVE, SELLER HEREBY WAIVES AND RELEASES ANY

RIGHT SELLER OTHERWISE POSSESSES TO RECOVER OR SEEK TO

RECOVER ANY DAMAGES ARISING OUT OF A DEFAULT UNDER THIS

AGREEMENT BY BUYER PRIOR TO CLOSING, INCLUDING, WITHOUT

LIMITATION, ANY CONSEQUENTIAL (INCLUDING LOST PROFITS),

SPECIAL OR GENERAL DAMAGES OF ANY NATURE OR KIND (EVEN IF

BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),

OR FOR ANY PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, AND

ALL SUCH DAMAGES CLAIMS ARE HEREBY WAIVED BY SELLER TO THE FULLEST EXTENT PERMITTED BY LAW.
c. SELLER Default. IF, AT CLOSING, SELLER IS IN DEFAULT OF ANY OF ITS

OBLIGATIONS UNDER THIS AGREEMENT AND SUCH DEFAULT CONTINUES

BEYOND THE PERIOD SPECIFIED IMMEDIATELY ABOVE IN PARAGRAPH

26.a, THEN BUYER SHALL HAVE THE RIGHT TO ELECT, AS ITS SOLE AND EXCLUSIVE REMEDY, TO TAKE ONE (1), BUT NOT MORE THAN ONE (1), OF THE FOLLOWING ACTIONS: (i) terminate this Agreement by written notice to Seller, promptly after which the Deposit shall be returned or released to Buyer and neither Seller nor Buyer shall have any liability hereunder except for those obligations which expressly survive the termination of this Agreement; (ii) waive the default and proceed to Closing; or (iii) file an action for specific performance; provided, however, that no such action shall be deemed timely unless Buyer files and serves the same within no later than ninety (90) days after the earlier of (x) the date the applicable Seller’s default occurred or (y) what would have been the Expected Closing Date, but for Seller’s default, and any such action filed or served thereafter shall be deemed time barred. EXCEPT AS EXPRESSLY PROVIDED ABOVE, AND EXCEPT FOR SELLER’S POST-CLOSING Item #8.1.

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OBLIGATIONS UNDER THIS AGREEMENT, BUYER HEREBY WAIVES AND

RELEASES ANY RIGHT BUYER OTHERWISE POSSESSES TO RECOVER OR

SEEK TO RECOVER ANY DAMAGES ARISING OUT OF THIS AGREEMENT

AND/OR ESCROW THEREFOR, INCLUDING, WITHOUT LIMITATION, ANY

CONSEQUENTIAL (INCLUDING LOST PROFITS), SPECIAL OR GENERAL

DAMAGES OF ANY NATURE OR KIND (EVEN IF SELLER HAS BEEN ADVISED

OF THE POSSIBILITY OF SUCH DAMAGES), OR FOR ANY PUNITIVE

DAMAGES UNDER ANY CIRCUMSTANCES, AND ALL SUCH DAMAGES

CLAIMS ARE HEREBY WAIVED BY BUYER TO THE FULLEST EXTENT PERMITTED BY LAW.

27. FURTHER ASSURANCES AND CONTINGENCIES. The Parties agree to perform such further acts and to execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Agreement and the intentions of the Parties. Such acts shall include, but not be limited to, compliance by Buyer and Seller with California Government Code section 65402.

28. GENDER, NUMBER. As used herein, the singular shall include the plural and the masculine shall include the feminine, wherever the context so requires.

29. GOVERNING LAW; VENUE. This Agreement shall be governed, interpreted, construed, and enforced in accordance with the laws of the State of California and, subject to Paragraph 46, any litigation brought hereunder in state court shall be brought in the Superior Court of California, County of Napa, a unified court.

30. HEADINGS. The captions and paragraph and subparagraph headings used in this Agreement are inserted for convenience of reference only and are not intended to define, limit, or affect the construction or interpretation of any term or provision hereof.

31. CONSTRUCTION. This Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.

32. WAIVER OF BREACH. No waiver by any Party of any breach of this Agreement shall be deemed a waiver of any other or subsequent breach.

33. NO OTHER INDUCEMENT. The making, execution and delivery of this Agreement by the Parties hereto has been induced by no representations, statements, warranties, or agreements other than those expressed herein.

34. SEVERABILITY. If any term, provision, covenant, or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall be severable and shall not be affected thereby, and each of the remaining terms, provisions, covenants, or conditions of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

Item #8.1.

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35. SUCCESSORS. All terms of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties hereto and their respective heirs, legal representatives, successors, and assigns.

36. TIME. Time is of the essence of each provision of this Agreement. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holidays, unless the period of time specifies business days, provided that if the date or last date to perform any act or give any notice or approval shall fall on a Saturday, Sunday or state or national holiday, such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or state or national holiday.

37. WAIVER OF PERFORMANCE. The waiver by one Party of the performance of any term, provision, covenant, or condition shall not invalidate this Agreement, nor shall it be considered as a waiver by such Party of any other term, provision, covenant, or condition. Delay by any Party in pursuing any remedy or in insisting upon full performance for any breach or failure of any term, provision, covenant, or condition shall not prevent such Party from later pursuing remedies or insisting upon full performance for the same or any similar breach or failure.

38. ATTORNEYS’ FEES. Should any litigation be commenced between the Parties to this Agreement concerning the sale or the rights or duties of the Parties in relation thereto, the Party prevailing in such litigation shall be entitled, in addition to such other relief as may be provided by this Agreement, to a reasonable sum as and for attorney’s fees and costs in such litigation, or in a separate action brought for that purpose. For purposes of this Agreement, the terms “attorneys’ fees” or “attorneys’ fees and costs” shall mean the fees and expenses of counsel to the prevailing Party, which may also include printing, photostating, duplicating, air freight charges and other expenses, as well as the fees billed for law clerks, paralegals and other persons not admitted to the bar but performing services under the supervision of an attorney.

39. NOTICES. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given and effective: (i) on the date of delivery if served personally on the Party to whom notice is to be given or, unless otherwise specifically provided or required by this Agreement; (ii) if sent by overnight delivery, such as by Federal Express, on the date said notice or other writing is delivered or on which delivery is refused; (iii) five (5) business days after mailing by first class, registered or certified mail, postage prepaid; or (iv) if by electronic mail, on the date sent, and properly addressed as follows:

Item #8.1.

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BUYER:

City of Calistoga
1232 Washington St.

Calistoga, CA 94515
ATTN: City Manager
Email: [email protected]
With a copy to:

City Attorney
Burke, Williams & Sorensen, LLP
1999 Harrison Street, Suite 1650
Oakland, CA 94612
ATTN: Michelle Marchetta Kenyon
Email: [email protected]
SELLER:

Napa County
County Executive Office
1195 Third Street, Suite 319
Napa, California 94559
ATTN: Ryan Alsop / County CEO
Email: [email protected]
With a copy to:

Napa County
Office of Napa County Counsel
1195 Third Street, Suite 301
ATTN: Sheryl Bratton / County Counsel
Email: [email protected]
With an additional copy to (only until the Closing
occurs):

Miller Starr Regalia
1331 N. California Blvd., Suite 600
Walnut Creek, CA 94596
Attn: Michael Di Geronimo
Email: [email protected]
Any Party may change its address for purposes of this paragraph by giving the other Party written notice of the new address in the manner set forth above.

40. CLOSING COSTS, FEES AND PRORATIONS.
a. Buyer shall pay all closing costs including but not limited to real property taxes, assessments, documentary transfer taxes, title insurance desired by Buyer (including the premiums for the Title Policy), escrow and recording fees. Additionally, with respect to the costs of curing any Exception, which Seller has agreed to cure, if any, as specified in Paragraph 9 above, Seller shall pay for all costs thereof. Each Party will be responsible for and bear all of its own costs and expenses incurred in connection with the proposed purchase and sale, including without limitation, all accounting, legal and other fees and expenses.
b. All fixed and additional rentals under any Existing Lease or new lease to the extent permitted by Buyer, if any, in effect at Closing shall be prorated subject to the following:

Seller shall deliver or provide a credit in an amount equal to all prepaid rentals for periods after the Expected Closing Date and all refundable cash security deposits (to the extent the foregoing was made by the applicable tenant and not applied or forfeited prior to the Closing) to Buyer on the Expected Closing Date. All delinquent fixed, base or Item #8.1.

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minimum rent, reimbursable tenant expenses and any and all additional rent, sums or expenses owed by any tenant under any Existing Lease or New Lease (“Delinquent Rent”) shall not be prorated on the Expected Closing Date. Rather, with respect to any such Existing Lease or New Lease, Buyer shall cause any such Delinquent Rents for the period prior to Closing to be remitted to Seller if, as and when collected, subject to the following: At Closing, Seller shall deliver to Buyer a schedule of all such Delinquent Rents. To the extent Buyer receives payment of rents (or income in connection with other tenant charges) no matter how identified on or after the Expected Closing Date, such payments shall be applied first toward the rent (or other tenant charge) for the month in which the Closing occurs then to the rent (or other tenant charge) owed to Buyer in connection with the applicable Lease or other document for which such payments are received, and then to any Delinquent Rents (or other tenant charges) owed to Seller, with Seller’s share thereof being promptly delivered to Seller; provided, however, that any year-end or similar reconciliation payment shall be allocated as hereinafter provided.

Buyer may not waive any Delinquent Rents or modify a Lease so as to reduce or otherwise affect amounts owed thereunder for any period in which Seller is entitled to receive a share of charges or amounts without first obtaining Seller’s written consent.

Seller hereby reserves the right to pursue any remedy for damages against any tenant owing Delinquent Rents and any other amounts to Seller (but following the Closing shall not be entitled to terminate any Lease or any tenant’s right to possession), provided that, Seller shall not exercise any such remedy for a period of two (2) months after the Closing. Buyer shall reasonably cooperate with Seller, at no material out-of-pocket cost to Buyer, in any collection efforts hereunder, but shall not be required to litigate or declare a default under any Lease. Notwithstanding the above, Buyer shall have no obligation to deliver any Delinquent Rent received by Buyer more than fourteen (14) months after the Closing and after said period shall have no further duty to cooperate with Seller with respect to the collection of any Delinquent Rents. With respect to Delinquent Rents and any other amounts or other rights of any kind respecting tenants who are no longer tenants of the Property as of the Expected Closing Date, Seller shall retain all of the rights relating thereto.

41. REAL ESTATE BROKERS. The Parties acknowledge and agree that there are no brokers representing the Parties or due any fees and/or commissions under this Agreement. Buyer and Seller each represent and warrant to the other that they have had no dealings with any person, firm, broker or finder in connection with the negotiation of this Agreement and/or the consummation of the purchase and sale contemplated herein, and that no broker or other person, firm or entity is or are entitled to any commission or finder’s fee in connection with this transaction as the result of any dealings or acts of such Party. Seller and Seller do each hereby agree to indemnify, defend, protect, and hold the other harmless from and against any costs, expenses or liability for compensation, commission or charges which may be claimed by any broker, finder, or other similar party, by reason of any dealings or act of the indemnifying Party.

42. COUNTERPARTS AND .PDF / FACSIMILE SIGNATURES. This Agreement may be executed by the Parties in counterparts, each of which shall be deemed an original, and all of which when together shall constitute one and the same instrument. Escrow Holder, after verifying that the counterparts are identical except for the signatures, is authorized and instructed Item #8.1.

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to combine the signed signature pages on one of the counterparts, which shall then constitute the Agreement. In order to expedite the transaction contemplated herein, facsimile and/or .pdf (including by DocuSign) signatures may be used in place of original signatures on this Agreement. Seller and Buyer intend to be bound by the signatures on the electronically transmitted document, are aware that the other Party will rely on such signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the form of signature.

43. RELATIONSHIP OF BUYER AND SELLER. Notwithstanding anything to the contrary contained herein, this Agreement shall not be deemed or construed to make the Parties hereto partners or joint venturers, or to render either Party liable for any of the debts or obligations of the other, it being the intention of the Parties to merely create the relationship of Seller and Buyer with respect to the Property to be conveyed hereby.

44. AUTHORITY TO SIGN; CERTAIN RIGHTS DELEGATED TO SELLER’S CHIEF EXECUTIVE OFFICER. Each Party and the signatories for that Party represent and warrant that the Party’s signatories to this Agreement are authorized to enter into this Agreement on behalf of that Party and that no other authorizations are required to implement this Agreement on behalf of that Party. The Parties agree that written evidence of such authorization shall be submitted by each Party to the other Party prior to the Close of Escrow. Such evidence may be in the form of a certified copy of the minutes of the governing board of the Party approving such Agreement and authorizing signature thereof. Notwithstanding anything in this Agreement to the contrary, Seller’s chief executive officer (Ryan Alsop) is hereby authorized on behalf of Seller to agree in an writing signed by him to extend the Due Diligence Period, Title Inspection Period, the Closing Date, and/or other similar dates specified in this Agreement (as originally signed or amended) as well as to sign any amendments contemplated by this Agreement as of the Effective Date.

45. FORCE MAJEURE. Neither Party hereunder shall be deemed to be in default under this Agreement, and all performance and other dates specified in this Agreement shall be extended where a delay in the Party’s ability to perform is due to: war; insurrection; strikes and labor disputes; lockouts; riots; floods; pandemics, earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of terrorism; epidemics; quarantine restrictions; freight embargoes; governmental restrictions, or any other cause beyond that Party’s reasonable control and without its fault or negligence (each a “Force Majeure Delay”). Acts or failures to act of Buyer shall not excuse performance by Buyer and acts or failures to act of Seller shall not excuse performance by Seller. Buyer’s inability or failure to obtain financing or purchase funds for the purchase of the Property shall not be the basis for a Force Majeure Delay, except to the extent that the delivery of purchase funds in Buyer’s possession or control was caused by one of the Force Majeure Delays enumerated above. An extension of time for any such Force Majeure Delay shall be for the period of the forced delay and shall commence to run from the time of the commencement of the cause of the delay until the cause of the delay has ceased, provided, and on the condition that the Party claiming such extension must send to the other Party written notice of such Force Majeure Delay (and the basis therefor) within ten (10) days of the commencement of the Force Majeure Delay or such Party waives its right to claim a Force Item #8.1.

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Majeure Delay hereunder.
[Signatures on next page]

Item #8.1.

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IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the last date of execution below.

BUYER: CITY OF CALISTOGA
By: ___________________
Name: ________________
Its: ___________________
Date: ________, 202__
APPROVED AS TO FORM:

City Attorney:

By: ___________________
Name: ________________
SELLER: NAPA COUNTY, a political subdivision of the
State of California
By: __________________________________
Joelle Gallagher, Chair of the Board of
Supervisors

Dated: ________, 202__
APPROVED AS TO FORM:

Office of County Counsel
By:

County Counsel

APPROVED BY THE NAPA COUNTY BOARD
OF SUPERVISORS:

Dated: _____________
Processed By:

Item #8.1.

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___________________________
Deputy Clerk of the Board
ATTEST: NEHA HOSKINS
Clerk of the Board of Supervisors
By:

Item #8.1.

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JOINDER AND ACCEPTANCE BY ESCROW HOLDER
Placer Title Company referred to in this Agreement as “Escrow Holder,” hereby acknowledges that it received this Purchase and Sale Agreement and Escrow Instructions executed by Seller and Buyer on or about ___________, 202_, and accepts the obligations of Escrow Holder as set forth herein.

PLACER TITLE COMPANY
By: _________________________
Name: _________________________
Title: _________________________
Item #8.1.

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CNAP-55587\2877807.8
Exhibit A
Description of Fairgrounds Property

Item #8.1.

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CNAP-55587\2877807.8
Exhibit A
[Continued]
The land referred to in this report is situated in the City of Calistoga, County of Napa, State of California, and is described as follows:

TRACT ONE:

PARCEL ONE:

Commencing at the most Northerly corner of the 15.62 acre tract of land described in deed to P.

Rubbattino et al recorded September 30, 1916, in Book 116 of Deeds, at page 114, said Napa County Records; thence from said point of beginning S 29° 45’ W, along the westerly line of said Tract 320.00 feet to the true point of beginning thence from said true point of beginning S 59° 45’ E 554.30 feet; thence N 29° 50’ E 320.00 feet to the northerly line of Lot 35 as shown on the map entitled, “Map of Calistoga Lands, as surveyed in 1871 and Subdivided in part in 1876” filed April 20, 1877, Napa County Records; thence S 59° 45’ E along said northerly line, 80.00 feet to the westerly line of the Napa County Fair Grounds, described in deed of record in Book 130 of Official Records at page 215, Napa County Records; thence S 29° 50’ W along said westerly line 1715.61 feet to the center of the Napa River; thence along the center of the Napa River the following courses and distances, N 68° 38’ 02” W 158.57 feet; thence N 75° 11’ 37” W 75.66 feet; thence N 62° 51’ 48” W 201.27 feet; thence N 57° 03’ 10” W 201.52 feet to the westerly line of said 15.62 acre tract; thence continuing northwesterly along the center of the Napa River to the center of Musgrove Creek; thence northerly along the center of Musgrove Creek to a point on a line which bears N 84° 15’ 03” W from a point which lies S 29° 42’ 44” W 80.11 feet from the most easterly corner of Lot 28 as shown on the “Final Map of Fairway Vista” recorded in Book 15 of Record Maps at Pages 4 and 5, Napa County Records; thence S 84° 15’ 03” E to the southeasterly line of said Lot 28; thence N 29° 42’ 44” E along the southeasterly line of Fairway Vista 1164.46 more or less to the point of beginning.

APN: 011-481-022 and 011-140-006
TRACT TWO:

PARCEL ONE:

Lots numbered 31,32,33, 34 and the East one-half of Lot 35 as the said lots are laid down and delineated upon a certain map entitled "Map of Calistoga Lands, as Surveyed in 1871 and Subdivided in Part In 1876" filed April 20,1877 in the office of the County Recorder of said Napa County.

Excepting therefrom the following:
(a) All that portion of said Lots 31, 32 and 33 which lies southeasterly of the northeasterly extension of the southeasterly line of said Lot 34.
(b) 6.71 acres of land, more or less, of said Lot numbered 34, heretofore conveyed by Susan J.

McFarling to F.M. Crumley by deed of record in Volume 98 of Deeds at page 48, Napa County Records.

Item #8.1.

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(c) 11 38 acres of land, more or less, of said Lot numbered 35, heretofore conveyed by Susan J McFarling to Francis M. Crumley by deed of record Volume 112 of Deeds at page 94, Napa County Records.

APN: 011-140-007 (Ptn.)
PARCEL TWO:

Commencing at the most eastern comer of that certain parcel of land described in the deed of John B Logvy et ux of record in Book 161 of Official Records, page 306, said Napa County Records, and running thence along the northerly boundary thereof, North 59° 45’ West, 615.78 feet and South 30° 15’ West, 103 62 feet to a corner of said parcel: thence continuing South 30° 15’ West 21.38 feet; thence South 59° 45' East 615.78 feet to a point on the northwesterly line of Oak Street; and thence North 30° 15' East and along said last mentioned line 125.00 feet to the point of beginning.

APN: 011-140-007(Ptn.)
PARCEL THREE:

Beginning at the point formed by the intersection of the Westerly line of the city street known as "Oak Street" with the northerly line of the city street known as "Washington Street," thence from said point of beginning along said northerly line N 59° 45' W 330.00 feet to the point of commencement along said northerly line N 59° 45' W 234.96 feet; thence S 30°15' W 113.60 feet to the centerline of the Napa River, thence along the centerline the following courses and distances: N 63° 00' W 150.40 feet, N 69° 00' W 189.00 feet; N 48° 30' W 220.00 feet; and N 66° 45' W 207.00 feet to the southeast corner of the tract of land conveyed to the County of Napa in deed of record in Volume 548, at Page 14, Official Records; thence along the easterly line of said tract of land N 30° 15' E 717.50 feet to the southwest corner of the tract of land conveyed to the County of Napa in deed of record in Volume 130, Page 215, Official Records, thence along the Southerly line of said tract S 59° 08' E 484.38 feet; thence leaving said southerly line S 16° 06' E 306.16 feet; thence S 31° 10' W 21.39 feet to the southwest corner of the parcel of land conveyed to the County of Napa in deed of record in Volume 746 at Page 370, Official Records; thence along the Southerly line of said parcel S 59°45' E 617.55 feet to the westerly line of the City street known as "Oak Street," thence along the westerly line S 30°15' W 202.28 feet; thence S 31° 10' W 21.38 feet to the Southwest corner of the parcel of land conveyed to the County of Napa in deed of record in Volume 746 Page 370, Official Records; thence along the Southerly line of said parcel S 59° 45' E 617.55 feet to the westerly line of the City street known as "Oak Street," thence along said westerly line S 30°15' W, 202.28 feet; thence N 59° 06' W 330.02 feet; thence S 30°15' W 146.25 feet to the point of commencement.

APN: 011-140-055
Item #8.1.

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CNAP-55587\2877807.8
Exhibit A-1
Depiction of Retained Land
[Attached]
Item #8.1.

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CNAP-55587\2877807.8
Exhibit B
Grant Deed

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

MAIL TAX STATEMENTS TO:
(Space Above This Line For Recorder’s Use Only)
DOCUMENTARY TRANSFER TAX IS $0. THIS TRANSFER IS EXEMPT FROM DOCUMENTARY TRANSFER TAX PURSUANT TO R&T CODE §11922.

EXEMPT FROM RECORDING FEES PURSUANT TO GOV. CODE § 27383 THE PROPERTY IS LOCATED IN CALISTOGA, CALIFORNIA. APN(S): 011-140-055, 011-140- 006, 011-140-007 and 011-481-022

GRANT DEED
For valuable consideration, NAPA COUNTY, a political subdivision of the State of California hereby grants to the CITY OF CALISTOGA, a general law city, all that certain real property located in the City of Calistoga, County of Napa, State of California, more particularly described on Schedule 1 attached hereto and incorporated herein by reference, together with all rights and privileges appurtenant thereto, subject to all matters of record (including a right of first refusal and purchase option as referenced more fully in that Declaration of Covenants and Memorandum of Option and Right of First refusal to Purchase recorded on even date herewith) and all matters that would be shown by an accurate survey of the Property.

Dated this ____ day of _______, 202__.

GRANTOR:

NAPA COUNTY, a political subdivision of the State
of California
By:____________________________________
__________________________, Chair of the
Board of Supervisors
Item #8.1.

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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of _____________________ )
On ____________________, before me, ____________________________, the undersigned, a notary public for the state, personally appeared _____________________________, proved to me to be the person(s) whose name(s) is/are subscribed to the within instrument, as a witness thereto, on the oath of _____________________________, a credible witness who is known to me and provided a satisfactory identifying document. _____________________________, being by me duly sworn, deposed and said that he/she/they was present and saw/heard _______________________________, the same person(s) described in and whose name(s) is/are subscribed to the within, or attached, instrument in his/her/their authorized capacity(ies) as a party(ies) thereto, execute or acknowledge executing the same, and that said affiant subscribed his/her/their name(s) to the within instrument as a witness at the request of _______________________________.

WITNESS my hand and official seal.

Signature
Item #8.1.

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CNAP-55587\2877807.8
Exhibit A to Grant Deed
Legal Description
That certain land situated in the County of Napa, State of California, and described as follows:
[To be inserted]
Item #8.1.

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CNAP-55587\2877807.8
Exhibit C
Escrow Holder’s General Provisions

1. All funds received in this escrow shall be deposited in a separate escrow fund account or accounts of Placer Title Company (for the benefit of the Parties hereto) with one or more state or national banks duly qualified to do business in the State of California, so that each such account shall be fully insured at all times by the Federal Deposit Insurance Corporation, to the maximum extent permitted by law. All disbursements shall be made by check of Placer Title Company.

2. Escrow Holder is authorized to prepare, obtain, record, and deliver the necessary instruments to carry out the terms and conditions of this escrow and to order to be issued at Close of escrow the policy of title insurance as called for in these instructions. “Close of escrow” shall mean the date instruments are recorded, unless otherwise specified by the Parties.

3. All adjustments and prorations shall be made on the basis of a 365-day year and the actual number of days in the month in which the close of escrow occurs.

4. If applicable, Escrow Holder is instructed to assign any fire and casualty insurance policy delivered to you and to secure any endorsements required in the performance of these instructions.

Escrow Holder may assume that said policy is in full force and effect and that all premiums due have been paid.

5. Escrow Holder shall have no responsibility for notifying any of the Parties to this escrow of any sale, resale, loan, exchange, or other transaction involving any property herein described or of any profit realized by any person, firm, or corporation in connection therewith, regardless of the fact that such transaction(s) may be handled by you in this escrow or in another escrow.

6. No notice, demand or change of instruction shall be of any effect in this escrow unless given in writing by all parties affected thereby and except as otherwise specifically provided in the Agreement to which these General Provisions are attached.

7. If the conditions of this escrow have not been complied with at the time herein provided, Escrow Holder is nevertheless to complete the same as soon as the conditions (except as to time) have been complied with, unless any Party hereto has made written demand upon you for the return of money and instruments deposited by it.

8. Unless the Agreement otherwise provides or unless otherwise instructed by either Buyer or Seller, Escrow Holder is authorized to furnish copies of these instructions, any supplements, or amendments thereto, notices of cancellation and closing statements to the attorneys, real estate broker(s) and lender(s), if any, named in this escrow.

9. Any funds abandoned or remaining unclaimed, after good faith efforts have been made by the Escrow Holder to return same to the Party(ies) entitled thereto, shall be assessed a holding fee of Fifty Dollars ($50.00) annually.

Item #8.1.

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CNAP-55587\2877807.8

10. All documents, closing statements, and balances due the Parties to this escrow are to be wire transferred to said Parties pursuant to separate wire transfer instructions to be delivered to escrow, or if no such separate wire transfer instructions are given to escrow, by Priority U.S. Mail or FEDEX at the addresses set forth in the Agreement of the parties for notices, unless otherwise instructed.

11. Notwithstanding the foregoing, if Escrow Holder is also acting as Title Company under the Agreement, nothing set forth in these General Provisions shall limit any liability set forth in the Title Policy(ies) provided in the Agreement.

12. For purposes of complying with Internal Revenue Code Section 6045(e), as amended effective January 1, 1991, escrow holder is hereby designated as the “person responsible for closing the transaction” and also as the “reporting person,” for purposes of filing any information returns with the Internal Revenue Service concerning this transaction, as required by law.

13. Escrow Holder shall assist the Parties in obtaining a waiver of withholding from the Franchise Tax Board with respect to the transactions contemplated by the Agreement in accordance with Section 18662 of the Revenue and Taxation Code of California.

14. Escrow Holder shall assist the Parties in complying with the provisions of Internal Revenue Code Section 1445 (FIRPTA withholding).

Item #8.1.

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CNAP-55587\2877807.8
Exhibit D
Memorandum
[Attached]
Item #8.1.

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CNAP-55587\2887642.3 1

RECORDING REQUESTED AND WHEN
RECORDED RETURN TO:

Napa County
Office of Napa County Counsel
1195 Third Street, Suite 301
Attn: Sheryl Bratton

No transfer tax is owed as no property is being conveyed or transferred as of the recordation of this instrument; the transferee or grantee is a public entity; and consideration is less than $100. (Rev. & Tax Code Sections 11911 & 11922) Exempt from recording fees pursuant to Gov. Code Section 27383

DECLARATION OF COVENANTS AND RESTRICTIONS AND MEMORANDUM OF

AGREEMENT RE REPURCHASE OPTION AND RIGHT OF FIRST REFUSAL

THIS DECLARATION OF COVENANTS AND RESTRICTIONS AND MEMORANDUM OF AGREEMENT RE REPURCHASE OPTION AND RIGHT OF FIRST REFUSAL (this “Declaration and Memorandum”) is entered into as of this _____ day of __________, 202__ (the “Effective Date”), by and between COUNTY OF NAPA, a political subdivision of the State of California (the “County”), and CITY OF CALISTOGA, a California general law city (the “City”). County and City are sometimes individually referred to herein as “Party” and together referred to as “Parties”.

RECITALS
A. County was the owner of approximately +/- 70.6-acres of real property as well as the buildings and other improvements located thereon in the City of Calistoga, County of Napa, commonly known as and used as the Napa County Fairgrounds (collectively, the “Fairgrounds”).

B. On or about the Effective Date, pursuant to that Napa County Agreement No. _____, Purchase and Sale Agreement and Escrow Instructions, between County, as Seller, and City, as Buyer (the “Purchase Agreement”), County sold and transferred the entirety of the Fairgrounds to the City (the “Property”), excluding an approximately +/- 1.24 acre parcel, the ownership of which was retained by the County (the “Retained Land”). The Property is more fully described on Exhibit A to this Declaration and Memorandum, and the Retained Land is more fully described on Exhibit B to this Declaration and Memorandum. The approximate locations of the Property and the Retained Land are designated on Exhibit C hereto. The Property and the Retained Land are sometimes individually referred to herein as a “Parcel” and collectively as the “Parcels”.

C. As set forth in the Purchase Agreement, County sold the Property to City at a substantial discount below its fair market value in order to have City own and operate the Property for public purposes consistent with historical uses, as defined herein, of the Fairgrounds for the benefit of the community, all of which City has agreed to do.

D. One of the purposes of this Declaration and Memorandum is to provide record notice of certain provisions of the Purchase Agreement that survived the closing thereunder.

NOW, THEREFORE, for the purposes set forth above and as otherwise set forth below, for good and valuable consideration, the Parties declare that the Parcels shall hereafter be held, used, operated, Item #8.1.

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transferred, sold, conveyed, and leased subject to the following covenants and restrictions for the entirety of the term of this Declaration and Memorandum:

AGREEMENT

1. Incorporation of Purchase Agreement. The provisions of Paragraph 14 of the Purchase Agreement are incorporated into this Declaration and Memorandum and are set forth below. To the extent that any provisions of this Declaration and Memorandum and the Purchase Agreement conflict, the provisions of the Purchase Agreement shall control; provided, however, that for the avoidance of doubt, the Parties’ agreements set forth herein are separate and independent of any provisions of the Purchase Agreement, and shall be binding regardless of any such conflict.

2. Defined Terms. Any capitalized terms contained herein shall have the meaning set forth in the Purchase Agreement as referenced in Section 4 below unless otherwise specified in this Declaration and Memorandum.

3. Historical Uses. City agrees to limit the use of the Property to Historical Uses except to the extent that County consents in writing in its sole and absolute discretion to permit a Proposed Rezoning or elects not, or fails to, exercise its Repurchase Option as specified below.

4. Repurchase Right and Right of First Refusal. Paragraph 14 of the Purchase Agreement provides in pertinent as follow:
“a. Repurchase Right. Buyer [City] agrees that Seller [County] possesses and hereby grants Seller [County] the right and option to repurchase the Property, or applicable portions thereof, from Seller [County] for a period of ninety-nine (99) years or as otherwise provided in Paragraph 14.c, for the Adjusted Price (as defined below) on and subject to the terms and conditions set forth below (the “Repurchase Option”):
i. Right to Exercise the Repurchase Option. Seller [County] may exercise its Repurchase Option if the Property, or any portion thereof, is subject to a Proposed Rezoning (as defined below) except as follows: If Buyer [City] (or any other applicable governmental authority or body) finally denies (i.e. the denial is not subject to any right appeal or legal challenge) the Proposed Rezoning before the Repurchase Closing occurs, then the Repurchase Option for the specific Proposed Rezoning whether or not previously exercised by Seller [County] shall become null and void (but not Seller’s [County’s] right to exercise its Repurchase Option for other Proposed Rezonings). Unless Seller [County] agrees in its sole and absolute discretion otherwise in writing, Buyer [City] shall not hold a vote on or otherwise approve of any Proposed Rezoning until the time for Seller [County] to deliver Seller’s Election Notice has expired. ii. Exercise of Repurchase Option.

1. Before any Proposed Rezoning of all or part of
the Property occurs, Buyer [City] shall send Seller [County] a written notice in compliance with the notice provisions of this Agreement specifying the Proposed Rezoning and what parts of the Property would be affected thereby (the “Option Property”), which notice shall also include the reasons why Buyer [City] wishes to permit or consider the Proposed Rezoning and be Item #8.1.

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accompanied by a reconciled statement (the “UCI Value
Statement”) certified as being accurate by Buyer’s [City’s] chief financial officer or an outside auditor of the monetary value of all unamortized capital improvements (amortized in accordance with IRS guidelines), if any, made by Buyer [City] (through the use of the Buyer's [City’s] general funds) on the Option Property (“Unamortized Capital Improvements Value”) along with
reasonable supporting documentation (the “Proposed Change in Use Notice”). Seller [County] shall have until the later of (x) ninety (90) days after its receipt of the Proposed Change in Use Notice or (y), if Seller [County] has agreed to permit such a vote on or approval to occur pursuant to subparagraph (i) above, thirty (30) days after the Proposed Rezoning has been finally approved to elect to exercise the Repurchase Option for the Option Property by providing notice of Seller’s [County’s] election to Buyer [City] in accordance with the notice provisions of this Agreement (“Seller’s Election Notice”). Buyer [City] shall, however, have no obligation to convey the Option Property unless Seller [County] pays the Adjusted Price (as defined below) to Buyer [City] as specified in this Paragraph 14a. No more than once annually, Buyer [City] shall provide Seller [County] with an annual list of capital improvements, if any, made by the Buyer [City] to the Property.

2. Notwithstanding the above, if less than the
entirety of the Property is subject to a Proposed Rezoning and such portion of the Property is not a separate legal parcel or parcels in compliance with the California Subdivision Map Act
(Government Code Section 66410 et seq. (the “Map Act”), then Seller [County] and Buyer [City] shall coordinate to process a lot line adjustment or parcel map creating a separate legal parcel for the portion of the Property subject to the Proposed Rezoning (“Rezoning Parcel”). Alternatively, Buyer [City] may determine a parcel map to create the Rezoning Parcel may be waived or that the conveyance of the Rezoning Parcel is exempt from compliance with the Map Act pursuant to Government Code Section
66428(a)(2). If a Rezoning Parcel is created, whether by map, lot line adjustment, waiver conveyance or exemption, Seller [County] shall be entitled to repurchase the Rezoning Parcel but only for an Adjusted Price calculated on said basis. If (i) the application to create, or waive a map for creation of a Rezoning Parcel is finally denied by Buyer [City] (or other applicable governmental authority or body) (i.e. beyond any applicable appeal or legal challenge period) and (ii) Buyer [City] reasonably determines that the conveyance of the Rezoning Parcel (or what would have been the Rezoning Parcel had the application been approved) would not be exempt from compliance with the Map Act pursuant to
Government Code Section 66428(a)(2) or any successor or other statute or law, then Seller [County] shall be entitled to repurchase the entirety of the legal parcel or parcels on which the land subject to the Proposed Rezoning is located (and which land will be Item #8.1.

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CNAP-55587\2887642.3 4
deemed to be the Option Property), but only for an Adjusted Price calculated on said basis.
iii. Escrow and Closing of the Repurchase. If Seller [County] timely exercises the Repurchase Option, then an escrow shall be opened promptly with Escrow Holder (or any national title company selected by Seller [County] if Escrow Holder is no longer in business) for purposes of facilitating the reconveyance of the Option Property to Seller [County] in accordance with the terms of this Paragraph 14a. In such an event, the closing of the repurchase transaction (the “Repurchase Closing”) shall take place on the ninetieth (90th) day following the delivery of Seller’s Election Notice (the “Repurchase Closing Date”) or such earlier date as Seller [County] may elect subject to the following conditions and obligations being satisfied (but which date shall be subject to the extension to the extent that the Option Property does not initially entirely consist of one or more legal parcels to allow the process specified in subparagraph (ii) above to be completed). Title to the Option Property shall be conveyed to Seller [County] by a grant deed substantially in the form of Exhibit B to this Agreement.

Title to the Option Property shall be subject to all matters of record except Buyer [City] shall cause the Option Property to be conveyed free and clear of all Monetary Liens (the “Excluded Exceptions”). As a condition of the Repurchase Closing, Seller [County] shall be entitled to receive a CLTA owner’s title policy (or other similar owner’s title policy) in the amount of the Adjusted Price showing title vested in Seller [County] with no Excluded Exceptions shown thereon. The Repurchase Closing shall take place on the Repurchase Closing Date at the offices of the applicable escrow holder or at such other location as may be agreed to by Buyer [City] and Seller [County]. All closing costs for the Repurchase Closing shall be allocated between Buyer [City] and Seller [County] per county custom as reasonably determined by the escrow holder for the transaction. Buyer [City] and Seller [County] shall sign and, if applicable, acknowledge such other documents and instruments as may be reasonably required to cause the Option Property to be conveyed to Seller [County] pursuant to this Paragraph 14(a). iv. No Extinguishment or Waiver. With respect to any future Proposed Rezoning not covered in a Proposed Change in Use Notice delivered to Seller [County], Seller’s Repurchase Option shall not be deemed waived or extinguished if Seller [County] elects not to exercise the Repurchase Option for the Proposed Rezoning actually specified in the applicable Proposed Change in Use Notice. Seller’s [County’s] repurchase right shall also survive any failure by Buyer [City] to timely provide Seller [County] with a Proposed Change in Use Notice as required under this Paragraph 14a.
b. Right of First Refusal.
i. Buyer [City] agrees that Seller [County] possesses and hereby grants Seller [County] a right of first refusal for a term of ninety-nine (99) years, or as otherwise provided in Paragraph 14.c, to repurchase the Property, or any part thereof, (the “ROFR”) for the Adjusted Price before, with respect to such Property, or any part thereof, (the “ROFR Property”) Buyer [City] either (1) sells or conveys fee title to the ROFR Property or (2) enters into a Long Term Lease (as defined below) to any third-party entity for the ROFR Property. No such Long Term Lease or agreement to sell or convey the Property shall be effective until and Item #8.1.

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unless Seller [County] fails to timely provide a Seller’s ROFR Exercise Notice as specified below, and in no event shall any such Long Term Lease or agreement to sell or convey the Property be binding on Seller [County] if Seller’s ROFR Exercise Notice is timely delivered and Seller [County] proceeds to repurchase the Property, or the applicable portion thereof, pursuant to said notice. ii. Prior to offering the ROFR Property for any such sale, conveyance, or Long Term Lease or accepting an unsolicited offer for the same, Buyer [City] shall send Seller [County] a written notice in compliance with the notice provisions of this Agreement including the proposed purchase agreement or lease, or specifying the proposed terms of the sale or lease, as applicable, along with a UCI Value Statement (the “ROFR Notice”) for the ROFR Property certified, as being accurate by Buyer’s [City’s] chief financial officer or an outside auditor, and with supporting documents as specified in Paragraph 14a. Seller [County] shall have ninety (90) days after its receipt of the ROFR Notice to exercise its ROFR by providing notice thereof to Buyer [City] (“Seller’s ROFR Exercise Notice”), which notice shall comply with the notice provisions of this Agreement. The ROFR Property shall be limited to the portion of the Property that is the subject of the proposed sale, conveyance or Long Term Lease. iii. Notwithstanding the above, if less than the entirety of the Property is proposed to be subject to a Long Term Lease and such portion of the Property is not a separate legal parcel or parcels in compliance with the Map Act (as defined above) then Seller [County] and Buyer [City] shall coordinate to process a lot line adjustment or parcel map creating a separate legal parcel or parcels for the land included within the Long Term Lease and the ROFR Property shall consist of said legal parcel or parcels once such process is completed.

Alternatively, Buyer [City] may determine a parcel map to create the ROFR Property may be waived or that the conveyance of the ROFR Property is exempt from compliance with the Map Act pursuant to Government Code Section 66428(a)(2). If the ROFR Property is created, whether by map, lot line adjustment, waiver, conveyance or exemption, Seller [County] shall be entitled to purchase the ROFR Property but only for an Adjusted Price calculated on said basis. If (x) the application to create or waive a map to cause the ROFR Property to consist entirely of one or more legal parcels in compliance with the Map Act (as defined above) is finally denied by Buyer [City] (or any other applicable governmental authority or body) and (y) Buyer [City] reasonably determines that the conveyance of the ROFR Property is not exempt from compliance with the Map Act pursuant to Government Code Section 66428(a)(2) or any successor or other statute or law, then Buyer [City] shall not proceed with the Long Term Lease. iv. If the ROFR is timely exercised, subject to the payment of the Adjusted Price, the ROFR Property shall be conveyed to Seller [County] by a grant deed through an escrow, free and clear of Monetary Liens, all as specified in Paragraph 14(a) on the later of the closing date specified in the ROFR Notice or ninety (90) days after the delivery of Seller’s ROFR Exercise Notice (but which date shall be subject to the extension to the extent that the ROFR Property does not initially entirely consist of one or more legal parcels to allow the process specified in subparagraph (iii) above to be completed). Closing costs shall be allocated as specified in the ROFR Notice, or if not so specified, as stated in Paragraph 14(a).

Item #8.1.

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CNAP-55587\2887642.3 6
v. For the avoidance of doubt, if the ROFR is timely
exercised, the purchase price paid for the ROFR Property shall be the Adjusted Price and not any purchase price specified in any applicable purchase or sale agreement or term sheet triggering the ROFR.
c. Term of the Repurchase Option and ROFR. The term of the Repurchase Option and ROFR shall commence as of the Closing of the sale of the Property to Buyer [City] and, unless otherwise agreed by Buyer [City] and Seller [County] in a recorded instrument, shall expire on the earlier of (x) 5:00 p.m. Pacific Time ninety-nine (99) years following said Closing or (y) the maximum period allowed by applicable law.

The Repurchase Option and/or ROFR shall automatically expire and be of no effect on the expiration of the term specified in this Paragraph; provided, however, that Seller [County] shall execute such instruments (e.g., a quitclaim deed) as may be reasonably requested by Buyer [City] to confirm the termination of the Repurchase Option and/or ROFR, as applicable, after such occurs.
d. Defined Terms. Defined Terms. The following terms shall have the meanings ascribed to them below for purposes of this Paragraph 14. i. “Adjusted Price” means the Purchase Price paid by
Buyer [City] at Closing increased by the change in the Index from the Closing of the sale of the Property to Buyer [City], plus the Unamortized Capital Improvements Value (as defined in Paragraph 14(a)(ii)), which Adjusted Price shall be prorated on a land to land basis (i.e. the ratio of the square footage of the land within the Option Property or ROFR Property, as the case may be, to the square footage of all of the land within the Property) if the Option Property or ROFR Property, as applicable, consists of less than all of the Property.
ii. “Index” means the Consumer Price Index for All Urban Consumers-All Items, published monthly by the United States Department of Labor (base year 1982-84=100), or any successor index thereto as hereinafter provided. If the base year of the Index is changed, then all calculations pursuant to this Paragraph 14 that require the use of the Index shall be made by using the appropriate conversion factor published by the Department of Labor (or successor agency) to correlate to the base year of the Index herein specified. If no such conversion factor is published, then the Parties shall in good faith make the necessary calculation to achieve such conversion. Should the Department of Labor discontinue the publication of the Index, then the Parties will adopt a substitute index or procedure, which reasonably reflects and monitors consumer prices. iii. “Historical Use” means each prior use of the Property specified on Exhibit D-1 to this Agreement [Exhibit D to this Declaration and Memorandum]; provided, however, in no event shall a Historical Use include a proposed project involving large scale commercial or residential development for a use or uses listed on Exhibit D-1 or otherwise. iv. “Long Term Lease” means any lease, license,
occupancy, concession, or similar agreement with a term (including options to extend) in excess of twenty-five (25) years.

Item #8.1.

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CNAP-55587\2887642.3 7
v. “Proposed Rezoning” means any proposed change in the zoning for the Property or any part thereof, to allow a use that is not a Historical Use of the Property and which such new use would not be allowed under the zoning for the Property as set forth in Calistoga Municipal Code Section 17.23.020 (A)(1), (2), (3) or (4) as of the Effective Date as stated in Exhibit D-2 to this Agreement [Exhibit E to this Declaration and Memorandum].
e. Right to Enforce. Buyer [City] stipulates and agrees that Seller [County] may enforce its Repurchase Option and ROFR through specific performance and/or other equitably relief, including through a mandatory or prohibitory injunction, and that the Property, and any part thereof, are of a special and unique character which gives it a peculiar value, and that Seller [County] cannot be reasonably or adequately compensated in damages in an action at law in the event Buyer [City] breaches its obligation to sell the Property, or any part thereof, to Seller [County] pursuant to either Seller’s Repurchase Option or ROFR.
f. Buyer Compliance With Surplus Land Act. If Seller [County] seeks to exercise its Repurchase Option and/or ROFR pursuant this Paragraph 14, Buyer [City] shall take all actions necessary to designate the Option Property, or ROFR Property, as applicable, “exempt surplus property” under the SLA (as defined in Paragraph 9(e)) to be transferred back to Seller [County] for its use as a local agency to the full extent that such is legally required to allow such conveyance or transfer to occur. This obligation includes but is not limited to scheduling all public meetings, making all necessary findings, and providing all necessary documentation to the HCD to lawfully transfer the Option Property and/or ROFR Property, as applicable, to Seller [County] under the SLA.”

5. Covenants to Run with the Land. The covenants, restrictions, rights, conditions, powers, and other provisions contained or referenced in this Declaration and Memorandum: (a) are made for the mutual benefit of the Parties and their respective successors (by operation of law or otherwise) and assigns and the Parcels; (b) burden the applicable Parcels and are binding upon the Parties and their respective successors (by operation of law or otherwise), assigns, and all other persons or entities acquiring any Parcel, or portion thereof or interest therein; and (c) are intended as and are enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including without limitation, Section 1468 of the Civil Code of the State of California, as the same may be amended from time to time and any successor statutes thereof.

6. Duration / Term of Declaration and Memorandum. The Parties agree that the covenants, restrictions and other provisions set forth in this Declaration and Memorandum will run with the land as specified above and stay in effect for ninety-nine (99) years or such shorter period as specified in Section 4 above / Paragraph 14c of the Purchase Agreement. Upon the termination of this Declaration and Memorandum, County will promptly execute and deliver to City an appropriate release and cancellation instrument acknowledging the expiration or termination of this Declaration and Memorandum, and the provisions thereof. The release and cancellation instrument will be executed in proper form for recordation in the official real estate records of the County.

7. Counterparts. This Declaration and Memorandum may be executed in one or more counterparts, each of which will constitute an original, and all of which together will constitute one and the same instrument.

Item #8.1.

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CNAP-55587\2887642.3 8

8. Recordation. The Parties agree that this Declaration and Memorandum shall be recorded in the official real estate records of Napa County.

9. Modification and Termination. This Declaration and Memorandum may not be modified in any respect whatsoever or terminated, in whole or in part, except with the written consent of the City and the County.

10. Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given and effective: (i) on the date of delivery if served personally on the Party to whom notice is to be given or, unless otherwise specifically provided or required by this Agreement; (ii) if sent by overnight delivery, such as by Federal Express, on the date said notice or other writing is delivered or on which delivery is refused; (iii) five (5) business days after mailing by first class, registered or certified mail, postage prepaid; or (iv) if by electronic mail, on the date sent, and properly addressed as follows:

CITY: City of Calistoga
1232 Washington St.

Calistoga, CA 94515
ATTN: City Manager
Email: [email protected]
With a copy to: City Attorney
Burke, Williams & Sorensen, LLP
1999 Harrison Street, Suite 1650
Oakland, CA 94612
ATTN: Michelle Marchetta Kenyon
Email: [email protected]
COUNTY: Napa County
County Executive Office
1195 Third Street, Suite 319
Napa, California 94559
ATTN: Ryan Alsop
Email: [email protected]
With a copy to: Napa County
Office of Napa County Counsel
1195 Third Street, Suite 301
ATTN: Sheryl Bratton
Email: [email protected]
Any Party may change its address for purposes of this section by giving the other Party written notice of the new address in the manner set forth above.

11. No Waiver. The waiver by one Party of the performance of any covenant or condition hereunder shall not invalidate this Declaration and Memorandum, nor shall it be considered to be a waiver by such Party of any other covenant or condition hereunder. The waiver by either or both Parties of the time for performing any act shall not constitute a waiver of the time for performing any Item #8.1.

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other act or an identical act required to be performed at a later time. The exercise of any remedy provided by law and the provisions of this Declaration and Memorandum for any remedy shall not exclude other remedies unless they are expressly excluded.

12. Attorneys’ Fees. If either Party shall bring suit against the other as a result of any alleged breach or failure by the other Party to fulfill or perform any covenants or obligations under this Declaration and Memorandum or in any deed, instrument or other document delivered pursuant hereto, or to seek declaratory relief as to the rights or obligations of either Party, then in such event, the prevailing Party in such action shall be entitled to reasonable attorneys’ fees incurred by reason of such action and all costs of suit and those incurred in preparation thereof.

13. Provisions Severable. Each provision of this Declaration and Memorandum shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Declaration and Memorandum be deemed to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Declaration and Memorandum.

14. Governing Laws. This Declaration and Memorandum shall be construed and governed in accordance with the laws of the State of California.

15. Entire Agreement. THIS DECLARATION AND MEMORANDUM, WHICH

INCLUDES EACH OF THE EXHIBITS ATTACHED HERETO, ALONG WITH THE PURCHASE

AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES RELATING

TO THE SUBJECT OF THIS AGREEMENT AND SUPERSEDES ALL PREVIOUS AGREEMENTS,

PROMISES, REPRESENTATIONS, UNDERSTANDINGS AND NEGOTIATIONS, WHETHER

WRITTEN OR ORAL, AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.

16. Construction. Each Party has participated in the drafting of this Declaration and Memorandum and has had the same reviewed by counsel of its choosing, and, as such, this Declaration and Memorandum shall not be construed against either such Party based on the drafter of any particular provision thereof.

IN WITNESS WHEREOF, the undersigned have executed this Declaration and Memorandum as of the date and year set forth below.

CITY: CITY OF CALISTOGA
By: ___________________
Name: ________________
Its: ___________________
Item #8.1.

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CNAP-55587\2887642.3 10
APPROVED AS TO FORM:

City Attorney:

By: ___________________
Name: ________________
COUNTY: NAPA COUNTY, a political subdivision of the
State of California
By: ___________________
Joelle Gallagher, Chair of the
Board of Supervisors
Dated: ________, 202__
APPROVED AS TO FORM:

Office of County Counsel
By:

County Counsel

APPROVED BY THE NAPA COUNTY BOARD
OF SUPERVISORS:

Dated: _____________
Processed By:
___________________________
Deputy Clerk of the Board
ATTEST: NEHA HOSKINS
Clerk of the Board of Supervisors
By:

Item #8.1.

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CNAP-55587\2887642.3 11
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who 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.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

Item #8.1.

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CNAP-55587\2887642.3 12
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

Item #8.1.

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CNAP-55587\2887642.3 13
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

Item #8.1.

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CNAP-55587\2887642.3 14
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature
Item #8.1.

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EXHIBIT A

LEGAL DESCRIPTION OF PROPERTY
Item #8.1.

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EXHIBIT B

LEGAL DESCRIPTION OF RETAINED PROPERTY
Item #8.1.

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EXHIBIT C

SITE PLAN SHOWING PROPERTY AND RETAINED PROPERTY
[Attached]
Item #8.1.

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CNAP-55587\2887642.3 18
EXHIBIT D / EXHIBIT D-1 TO PURCHASE AGREEMENT

HISTORICAL USES
Public fairs and celebrations, recreational, athletic, social, and other civic and community activities and enterprises of a public nature.

The County Fairgrounds has served as a versatile public open space to facilitate the exchange of goods and services; to celebrate agriculture; to host contests, entertainment, recreational and community events and services.

Communication towers.

Health services (e.g. vaccination clinics, cooling center, food distribution).

Collection events for household hazardous waste disposal service.

School events (e.g. graduations, parties, sports contests, classroom instruction, grad night).

Sports (e.g. cub football, adult softball).

Youth summer camps.

Events (e.g. weddings, wedding receptions, family reunions, quinceaneras, camping reunions for travel groups, memorial services, community fundraisers, Christmas bazaars, food festivals, car shows, horse shows, antiques shows, trade shows, auctions, crab feeds, pancake breakfasts, afternoon teas, dinners, home wine and beer tasting events, trade/agricultural/holiday fairs, livestock exhibits, conventions, flea markets, drive-in movies, dances, bingo, fashion shows, BBQs, card parties, music festivals, concerts, art shows, carnivals, circuses, haunted house, cultural celebrations, exhibitions).

Meetings (e.g. Lions, American Legion, Native Sons of the Golden West, Garden Club, Rock Club, Lions, Native Daughters of the Golden West, American Legion, Soroptimist, Women's Golf Club, Men's Golf Club, Sharpsteen Museum, Rotary, Youth-centric organizations, Cub Scouts, Boy Scouts, Cub Football, Calistoga Little League, Calistoga Wildcat Athletic Boosters, Calistoga Music Boosters, 4-H, FAA, Safe Grad Night, Silverado Riders, NARC/Racing groups, Equestrian groups, Calistoga Firefighters, Knights Valley Volunteer Fire Department, Mountain Volunteer Fire Department, Cal Fire/Napa Fire).

Races and/or racetrack.

Golf / golf course.

RV camping / RV park.

Emergency Evacuation Center.

Camps for emergency responders including during wildfires.

Housing for fairground employees
Item #8.1.

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CNAP-55587\2887642.3 19
Museum.

Art Center.

Parking lot.

Recycled water distribution.

Public Safety training and recruitment exercises (e.g. helicopter rescue, agility tests, active shooter, fire suppression, forced entry)
Botanical gardens.

Item #8.1.

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CNAP-55587\2887642.3 20
EXHIBIT E / EXHIBIT D-2 TO PURCHASE AGREEMENT

MUNICIPAL CODE

17.23.020 Uses allowed.

A. Uses allowed in a P district are as follows, and each shall require a use permit:

1. City and County offices, corporation yards, water and wastewater facilities;

2. Parks, libraries, schools, community centers, museums, fairgrounds, churches;

3. Quasi-public uses such as telephone and electric substations;

4. Fraternal buildings and hospitals.

Item #8.1.

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Exhibit D-1
Historical Uses
Public fairs and celebrations, recreational, athletic, social, and other civic and community activities and enterprises of a public nature.

Communication towers.

Health services (e.g. vaccination clinics, cooling center, food distribution).

Collection events for household hazardous waste disposal service.

School events (e.g. graduations, parties, sports contests, classroom instruction, grad night).

Sports (e.g. cub football, adult softball).

Youth summer camps.

Races and/or racetrack.

Golf / golf course.

RV camping / RV park.

Emergency Evacuation Center.

Item #8.1.

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CNAP-55587\2877807.8
Camps for emergency responders including during wildfires.

Housing for fairground employees
Museum.

Art Center.

Parking lot.

Recycled water distribution.

Public Safety training and recruitment exercises (e.g. helicopter rescue, agility tests, active shooter, fire suppression, forced entry)
Botanical gardens.

Item #8.1.

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Exhibit D-2
Municipal Code

17.23.020 Uses allowed.

A. Uses allowed in a P district are as follows, and each shall require a use permit:

1. City and County offices, corporation yards, water and wastewater facilities;

2. Parks, libraries, schools, community centers, museums, fairgrounds, churches;

3. Quasi-public uses such as telephone and electric substations;

4. Fraternal buildings and hospitals.

Item #8.1.

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Exhibit D-3
Emergency Use Easement
[Attached]
Item #8.1.

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CNAP-55587\2886370.4 1

RECORDING REQUESTED AND WHEN
RECORDED RETURN TO:

Napa County
Office of Napa County Counsel
1195 Third Street, Suite 301
Attn: Sheryl Bratton

The affected property is located in the City of Calistoga, County of Napa No transfer tax is owed as no property is being conveyed or transferred as of the recordation of this instrument; the transferee or grantee is a public entity; and consideration is less than $100. (Rev. & Tax Code Sections 11911 & 11922) Exempt from recording fees pursuant to Gov. Code Section 27383

EASEMENT AGREEMENT
This EASEMENT AGREEMENT (the “Agreement”), dated __________ __, 2024, is entered into by and between CITY OF CALISTOGA, a California general law city (“Grantor”), and NAPA COUNTY, a political subdivision of the State of California (“Grantee”). Grantor and Grantee may be referred to in this Agreement at times individually as a “Party” and collectively as the “Parties”. The following Recitals are a material part of this Agreement:

RECITALS
A. As of the date of this Agreement, Grantor has purchased certain improved real property located in the City of Calistoga, County of Napa, which real property is more fully described on Exhibit A to this Agreement (the “Property”). The Property is a part of the land commonly known as the Napa County Fairgrounds and was sold to Grantor pursuant to that Napa County Agreement No. __ Purchase and Sale Agreement and Escrow Instructions, dated ____ 2024, entered into by Grantee, as seller, and Grantor, as buyer (the “Sales Contract”).

B. Pursuant to the Sales Contract, Grantor has agreed to and wishes to grant, and Grantee desires to receive and accept certain easements over the Property for (i) emergency response purposes and (ii) ingress and egress over and across the Property to accomplish the foregoing purpose, on the terms and conditions stated more fully below.

AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the following grants, agreements and covenants are hereby made:

1. PERPETUAL EASEMENTS IN GROSS. Grantor hereby grants to Grantee and its successor(s), the following perpetual easements in gross:
a. a non-exclusive easement on, in, over, and across the Property including any buildings and/or structures located thereon for emergency response purposes by Grantee and other governmental entities conducting the subject emergency response in partnership with Grantee (including federal, state, county, and city emergency personnel) upon the Item #8.1.

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declaration of any federal, state, county or other local disaster as such may occur from time to time, including, without limitation, the use of all or part of the Property for temporary staging of emergency personnel, vehicles and equipment; shelter and housing for emergency personnel and disaster victims; medical care and first aid; communication facilities; counseling services; financial assistance offices; and meals (the “Emergency Response Easement”). Each said use shall be entitled to be continued until a reasonable period after the cessation of the applicable disaster.
b. a non-exclusive easement of ingress and egress for the use of Grantee and other governmental entities conducting the subject emergency response in partnership with Grantee (including federal, state, county, and city emergency personnel) over and across those portions of the Property not improved with buildings or other structures (except to the extent the same are being used as part of the Emergency Response Easement) for vehicular and pedestrian access for the purpose of utilizing the easements set forth in and granted by subsection (a) above.

Said easements may be used by Grantee and other governmental entities conducting the subject emergency response in partnership with Grantee (including federal, state, county, and city emergency personnel) and their respective agents, employees, consultants, contractors, and similar permittees.

2. ALTERATIONS. Grantee and other governmental entities conducting the emergency response in partnership with the Grantee (including federal, state, county, and city emergency personnel) shall have the right, from time to time, to make improvements, modifications, and/or alterations to the Property, which are consistent with, or facilitate the use of, the Emergency Response Easement, provided that any such improvements, modifications, or alterations are of a temporary nature and will be removed, or caused to be removed, by Grantee after they are no longer needed after the cessation of the applicable disaster, and any damage to the Property caused by such improvements, modifications and/or alterations is repaired at no cost to Grantee.

3. CERTAIN RESERVED RIGHTS. Except as otherwise provided in this Agreement, the Grantor reserves the rights to use the Property as long such use does not materially and/or unreasonably interfere with the Grantee’s easement rights under this Agreement.

4. INDEMNITY. Except as may be prohibited or limited by applicable law, (i) Grantee will be responsible for all costs required to repair damages to the Property and the improvements thereon caused by Grantee and/or other governmental entities conducting the emergency response in partnership with the Grantee, including all of their respective agents, employees, consultants, contractors, and similar permittees in the exercise of the rights granted under this Agreement, and (ii) Grantee shall indemnify, defend and hold Grantor harmless from and against any and all actual loss, cost, expense (including attorneys’ fees), claims, demands, causes of action, liability, and damages arising from third-party claims against Grantor for personal injury or property damage (collectively, “Claims”) that result from or arise out of the use of the easements granted under this Agreement by Grantee and/or other governmental entities conducting the emergency response in partnership with the Grantee, including all of their respective agents, employees, consultants, contractors, and similar permittees; provided, however, such indemnification and defense obligations shall not extend to any Claims to the extent caused by or arising from Grantor’s negligence or willful misconduct, or that of any agent, representative, contractor or employee thereof.

5. INSURANCE. Grantee and other governmental entities conducting the emergency response in partnership with the Grantee shall cause all of their respective third-party agents, consultants, contractors (including subcontractors), and similar permittees who enter upon the Property for purposes of Item #8.1.

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conducting any emergency response (collectively "Grantee’s Agents") shall have, and continue to have, the following insurance coverage in full force and effect as a condition of any entry or continued entry onto the Property or any portion thereof, and such insurance shall be maintained in full force and effect throughout the use the easement by the applicable Grantee’s Agents:
a. Workers' Compensation Insurance. To the extent required by law, Grantee’s Agents shall provide Workers' Compensation, including but not limited to, coverage for workers’ compensation and employer’s liability, and a waiver of subrogation. b. Liability Insurance. The following liability insurance coverages, issued by a company admitted to do business in California and having an A.M. Best rating of A VII or better or equivalent self-insurance satisfactory to Grantor's Risk Manager, or by a combination thereof:
i. General Liability. Commercial or comprehensive general liability insurance coverage (personal injury and property damage) of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, issued by a company admitted to do business in the State of California, covering liability for any personal injury, including death, to any person and/or damage to the property of any person arising from the acts or omissions of the insured party. If the coverage includes an aggregate limit, the aggregate limit shall be no less than twice the per occurrence limit.
ii. Comprehensive Automobile Liability Insurance. Comprehensive automobile liability insurance policy (Bodily Injury and Property Damage) on owned, hired, leased and non-owned vehicles used in conjunction with that party's activities under this Agreement of not less than One Million Dollars ($1,000,000) combined single limit per occurrence. If the coverage includes an aggregate limit, the aggregate limit shall be no less than twice the per occurrence limit. c. Certificates of Coverage, Waiver of Subrogation and Additional Insureds. Insurance coverages referenced in 5a and 5b, above, shall be evidenced by one or more certificates of coverage and copies of applicable endorsements or, with the consent of Grantor's Risk Manager, demonstrated by other evidence of coverage acceptable to Grantor's Risk Manager, which shall be delivered by Grantee or Grantee’s Agents to Grantor prior to each of Grantee’s Agents' entry onto the Property, or any one of them (and anytime thereafter as may be reasonably requested by Grantor).
i. The certificate(s) or other evidence of coverage shall reference this Agreement by its number or title; shall be kept current during the term of this Agreement; shall provide that, if such coverage is reasonably obtainable in the geographic area where the Property is located, Grantor shall be given no less than thirty (30) days prior written notice of any non-renewal, cancellation, other termination, or material change, except that only ten (10) days prior written notice shall be required where the cause of non-renewal or cancellation is non-payment of premium; and shall provide that the inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, the coverage afforded applying as though separate policies had been issued to each insured, but the inclusion of more than one insured shall not operate to increase the limits of the company’s liability.

Item #8.1.

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ii. For the commercial general liability insurance coverage referenced in 5bi. and, for the comprehensive automobile liability insurance coverage referenced in 5bii. where the vehicles are covered by a commercial policy rather than a personal policy, Grantee’s Agents shall also deliver to Grantor with the evidence of coverage an endorsement from the insurance provider naming Grantor and its officers, employees, agents and volunteers as additional insureds and waiving subrogation. For the Workers Compensation insurance coverage, Grantee’s Agents shall deliver to Grantor with the evidence of coverage an endorsement waiving subrogation. All liability policies required by this Agreement shall be occurrence based policies.
iii. The certificate or other evidence of coverage shall provide that if the same policy applies to activities of Grantee’s Agents not covered by this Easement, then the limits in the applicable certificate relating to the additional insured coverage of Grantor shall pertain only to liability for activities of Grantee's Agents under this Agreement, and that the insurance provided is primary coverage to Grantor with respect to any insurance or self-insurance programs maintained by Grantor. iv. Upon request by Grantor's Risk Manager, Grantee’s Agents shall provide or arrange for the insurer to provide within thirty (30) days of the request, copies of the actual insurance policies or relevant portions thereof. d. Minimum Limits Not Precluding Additional Coverage. No minimum limits of coverage set forth above shall serve to preclude the application of any coverage in excess of the same, and insurance provided by Grantee’s Agents shall be deemed to be primary and noncontributory with any insurance or self-insurance programs maintained by Grantor. e. Deductibles / Retentions. Any deductibles or self-insured retentions for policies of Grantee’s Agents shall be disclosed to Grantor's Risk Manager. f. Inclusion in Subcontracts. Grantee agrees and acknowledges that the above-referenced liability and Workers' Compensation insurance requirements shall apply to all subcontractors and any other third-party permittee who is involved in providing services under this Agreement involving any entry onto the Property, or any portion thereof, and Grantee shall require compliance of said persons or entities with such insurance requirements set forth in this Section 5.

6. FEE PAYMENTS. To the extent that any governmental entities and/or their respective permittees conducting the emergency response in partnership with Grantee pay any rent or other fees for use of the Property for emergency purposes, all such rent and/or fees shall be paid to the Grantor, not the Grantee.

7. TERM OF THE AGREEMENT; RUNNING OF BENEFITS. This Agreement and the term of all easements granted herein shall be perpetual. All provisions of this Agreement including the benefits and burdens, are binding upon and inure to the benefit of the heirs, permitted assigns, successors, licensees, invitees, successors, tenants, and subtenants of the Parties until such time, if any, that both Parties agree in writing to mutually terminate the easements set forth herein.

Item #8.1.

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8. ENFORCEMENT. Either Party shall be entitled to enforce their respective rights under this Agreement through injunctive or equitable relief.

9. NOTICES. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given and effective: (i) on the date of delivery if served personally on the Party to whom notice is to be given or, unless otherwise specifically provided or required by this Agreement; (ii) if sent by overnight delivery, such as by Federal Express, on the date said notice or other writing is delivered or on which delivery is refused; (iii) five (5) business days after mailing by first class, registered or certified mail, postage prepaid; or (iv) if by electronic mail, on the date sent, and properly addressed as follows:

Grantee’s Address: Napa County
County Executive Office
1195 Third Street, Suite 319
Napa, California 94559
Attention: Ryan Alsop / County CEO
Email: [email protected]

With a copy to: Napa County
Office of Napa County Counsel
1195 Third Street, Suite 301
Attention: Sheryl Bratton / County Counsel
Email: [email protected]
Grantor’s Address: City of Calistoga
1232 Washington St.

Calistoga, CA 94515
Attention: City Manager
Email: [email protected]
With a copy sent to: City Attorney
Burke, Williams & Sorensen, LLP
1999 Harrison Street, Suite 1650
Oakland, CA 94612
Attn: Michelle Marchetta Kenyon
Email: [email protected]
Either Party may provide written notice of a change of address in accordance with the above.

10. MISCELLANEOUS.
a. No Assignment. Grantee may not assign the easements and other rights granted to it under this Agreement to any other party or entity.
b. Entire Agreement. This Agreement constitutes the entire agreement of the Parties hereto pertaining to its subject matter.
c. Headings. The section headings and captions used in this Agreement are inserted herein for convenience of reference only and are not to be considered in the construction of the provisions hereof and shall not in any way limit the scope or modify the substance or context of any section or paragraph Item #8.1.

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hereof. In the event of any ambiguity in this Agreement, this Agreement shall not be construed against either Party based on the drafter hereof.
d. Counterparts. This Agreement may be executed in any number of counterparts which together shall constitute the Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]

Item #8.1.

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CNAP-55587\2886370.4 7
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first set forth above.

GRANTOR: CITY OF CALISTOGA
By: ___________________
Name: ________________
Its: ___________________
APPROVED AS TO FORM:

City Attorney:

By: ___________________
Name: ________________
GRANTEE: NAPA COUNTY, a political subdivision of the State of California
By: __________________________________
Joelle Gallagher, Chair of the Board of
Supervisors
APPROVED AS TO FORM:

Office of County Counsel
By:

County Counsel
Item #8.1.

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CNAP-55587\2886370.4 8

APPROVED BY THE NAPA COUNTY BOARD OF
SUPERVISORS:

Dated: _____________
Processed By:
___________________________
Deputy Clerk of the Board
ATTEST: NEHA HOSKINS
Clerk of the Board of Supervisors
By:

Item #8.1.

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EXHIBIT A

LEGAL DESCRIPTION OF THE PROPERTY
[To be Inserted]
Item #8.1.

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Exhibit E
Existing Leases

1. That Structure Lease Agreement between the County and New Cingular Wireless PCS, LLC entered into on or about November 25, 2014 (Napa County Agreement No. 8238).

2. Amended and Restated License Agreement for Use of Fairground Facilities, dated August 11, 2020, by and between the County and the Calistoga Art Center, a nonprofit organization (Napa County Agreement No. 200398B), as amended by that Napa County Agreement No. 200398B Amendment No. 1, dated December 8, 2020, that Napa County Agreement No. 200398B Amendment No. 2, dated May 18, 2021, that Napa County Agreement No. 200398B Amendment No. 3, dated June 7, 2022, that Napa County Agreement No. 200398B Amendment No. 4, dated January 10, 2023, and that Napa County Agreement No. 200398B Amendment No. 5, dated June 6, 2023. With the City’s written permission, County may extend the above-referenced agreement.

3. Intentionally Omitted.

4. Intentionally Omitted.

5. That Land and Tower Lease Agreement entered into on or about January 24, 2017, by and between the County and GTE Mobilnet of California limited partnership (Napa County Agreement No. 170731B).

6. Ground Lease dated December 4, 2018, by and between the County and the Napa County Office of Education (Napa County Agreement No. 8574) along with that Access and Utility Easement Agreement, dated January 1, 2019, by and between the County and the Napa County Office of Education (Napa County Agreement No. 8575).

7. Intentionally Omitted.

8. That Amended and Restated Space License Agreement for Use of Fairground Facilities, dated December 8, 2020, by and between the County and Silver Rose Property Owner, a limited partnership (Napa County Agreement No. 21098B), as amended by that Amendment No. 1, dated June 8, 2021, and that Assignment and Amendment No. 2, dated December 14, 2021, wherein Licensee’s interest was assigned to Calistoga Vines Lessee, Inc., as amended by that Amendment No. 3, dated December 13, 2022, and as amended by that Amendment No. 4, dated June 6, 2023. With the City’s written permission, County may extend the above-referenced agreement.

9. That Space License Agreement, dated August 2, 2021, by and between the County and Pacific Gas and Electric Company, a California corporation (Napa County Agreement No. 220111C), as amended by that Napa County Agreement No. 220111C, dated February 24, 2022, and as amended by that Napa County Agreement No. 220111C Amendment No. 2, dated May 24, 2023. With the City’s written permission, County may extend the above-referenced agreement.

Item #8.1.

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10. Intentionally Omitted.

11. Intentionally Omitted.

12. That Space License Agreement, dated February 16, 2023, by and between the County and Calistoga Cares! Food Bank, Inc, a California 501(c)3 non-profit organization (Napa County Agreement No. 230327C), as amended by that Napa County Agreement No. 230327 Amendment No. 1, dated May 18, 2023.

Item #8.1.

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Exhibit F
List of Seller’s Documents
[To be finalized before the Effective Date]

1. Access and Utility Easement Agreement between the County and Napa County Office of Education entered into as of January 1, 2019 (Napa County Agreement No. 8575).

2. Land Tenure Agreement between Napa County and the State of California, Department of Food and Agriculture, Division of Fairs and Expositions entered into as of January 27, 2004 (Napa County Agreement No. 6243).

3. Correspondence from HomanTeague to the County regarding “David Abreu’s Personal Property At Fairgrounds,” dated June 2, 2022 and November 22, 2022.

Item #8.1.

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Exhibit G
Tenant Estoppel Certificate

CITY, STATE
Address
PN#

TENANT ESTOPPEL CERTIFICATE
TO:

DATE:

PREMISES:

LEASE DATE:

LANDLORD: (“Landlord”)

TENANT: (“Tenant”)
MONTHLY BASE RENT:

PERCENTAGE RENT:

LEASE TERM: Lease expires
RENEWAL OPTIONS: As stated in the lease
Ladies and Gentlemen:

To the best of its knowledge and belief, the undersigned Tenant hereby confirms, as of the date hereof, the following:

1. It is currently in possession of the Premises. Tenant has not assigned the Lease or sublet the Premises.

2. The Lease is in full force and effect and represents the entire agreement between Tenant and the Landlord relating to the lease of the Premises, and the Lease has not been amended, modified, changed, supplemented, or clarified, except as follows:
a.

Item #8.1.

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3. Monthly Base Rent is _____________ [Insert date]. No rent has been paid more than one month in advance of its due date.

4. To its actual knowledge, Tenant has no defense or offset to Tenant’s obligation to pay Rent pursuant to the Lease.

5. Tenant has not received nor has Tenant given any notice of default pursuant to the terms of the Lease which has not been cured, except:

6. The Security Deposit, if any, paid by Tenant is:

7. Tenant has no option, right of first refusal or otherwise to purchase the Property or any portion thereof or any interest therein and the only interest of the Tenant in the Property is that of a tenant pursuant to the terms of the Lease.

This Tenant Estoppel Certificate is given solely for the information of the party to whom it is addressed and may not be relied upon by any other person or entity. Tenant shall be estopped from taking any position contrary to the statements contained in this Tenant Estoppel Certificate in any dispute between Tenant and the party to whom this Tenant Estoppel Certificate is addressed, however, this Tenant Estoppel Certificate shall not in any way create any liability in or provide any right of action against Tenant or its officers, directors, agents, employees, and representatives.

Very truly yours,
______________________________________
By:____________________________________
Item #8.1.

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EXHIBIT G-1
Form of Landlord Estoppel Certificate
TO: CITY OF CALISTOGA, a general law city (“Buyer”)
RE: Premises Address: ______ __________, Calistoga, CA (the Premises”) Leases Date: ________________
By and Between: NAPA COUNTY, a political subdivision of the State of California (“Landlord”) and ______________________ (“Tenant”)
The undersigned is the Landlord of the above-referenced lease and any and all amendments thereto (collectively, the “Lease”). The undersigned hereby acknowledges and certifies to Buyer the following:

1. Tenant is currently in possession of the Premises. To Landlord’s actual knowledge, Tenant has not assigned the Lease or sublet the Premises, except as follows: ______________.

2. The Lease is in full force and effect and represents the entire agreement between Tenant and Landlord relating to the lease of the Premises, and the Lease has not been amended, modified, changed, supplemented, or clarified, except as follows: _______________.

3. Monthly Base Rent is _____________ [Insert date]. No rent has been paid more than one month in advance of its due date.

4. To Landlord’s actual knowledge, Tenant has no defense or offset to Tenant’s obligation to pay Rent pursuant to the Lease.

5. Landlord has not received nor has Landlord given any notice of default pursuant to the terms of the Lease which has not been cured, except as follows: ____________.

6. The expiration date of the Lease is _____________. Tenant has no options to extend the term of the Lease other than the following:
.

7. The Security Deposit, if any, paid by Tenant is ____________.

8. Tenant has no option, right of first refusal or otherwise to purchase the property of which the Premises is a part or any portion thereof, and the only interest of the Tenant in said property is that of a tenant pursuant to the terms of the Lease.

Pursuant to that Purchase and Sale Agreement and Escrow Instruction, dated August __, 2019 for reference purposes, between Landlord, as seller, and Buyer (the “Purchase Agreement”), the undersigned hereby certifies that the information contained in this Landlord Estoppel Certificate is true and correct in all material respects, that the parties to whom this statement is addressed may rely upon said information, and Landlord shall be estopped from taking any position contrary to the statements Item #8.1.

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contained in this Landlord Estoppel Certificate. To the extent that the Tenant subsequently provides a Tenant Estoppel Certificate as specified more fully in Paragraph 21.c.7 of the Purchase Agreement, the terms of Paragraph 21.c.7 shall apply. Notwithstanding anything to the contrary herein, (1) this Landlord Estoppel Certificate shall not be effective unless and until the “Closing” (as defined in the Purchase Agreement) occurs; (2) Seller shall have no liability under this Landlord Estoppel Certificate except to the extent Tenant makes a claim that constitutes a breach of this Landlord Estoppel Certificate above, and any such liability shall be limited by the damage limitations set forth in Paragraph 26.c of the Purchase Agreement; and (3) this Landlord Estoppel Certificate is subject to the time limitation set forth in Paragraph 17 of the Purchase Agreement, which is referred to therein as the Survival Period.

IN WITNESS WHEREOF, Landlord has executed this Landlord Estoppel Certificate as of ____________________, 20__.

NAPA COUNTY, a political subdivision of the State of California By: ___________________
_____________, Chair of the
Board of Supervisors
Dated: ________, 20__
APPROVED AS TO FORM:

Office of County Counsel
By: ___________________
Deputy County Counsel
Item #8.1.

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Exhibit H
Abreu Claim
[Attached]
Item #8.1.

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Item #8.1.

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Item #8.1.

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Exhibit I
Adjacent Storage Property and Access Road Easement
[Attached]
Item #8.1.

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CNAP-55587\2892200.3 1

RECORDING REQUESTED AND WHEN
RECORDED RETURN TO:

Napa County
Office of Napa County Counsel
1195 Third Street, Suite 301
Attn: Sheryl Bratton

The affected property is located in the City of Calistoga, County of Napa, and constitutes a portion of Napa County Assessor's Parcel Number (APN) 011-140-055
No transfer tax is owed as no property is being conveyed or transferred as of the recordation of this instrument; the transferee or grantee is a public entity; and consideration is less than $100. (Rev. & Tax Code Sections 11911 & 11922) Exempt from recording fees pursuant to Gov. Code Section 27383

EASEMENT AGREEMENT REGARDING ADJACENT STORAGE PROPERTY AND ACCESS ROAD
This EASEMENT AGREEMENT REGARDING ADJACENT STORAGE PROPERTY AND ACCESS ROAD (the “Agreement”), dated __________ __, 2024, is entered into by and between NAPA COUNTY, a political subdivision of the State of California (“Grantor”) and CITY OF CALISTOGA, a California general law city (“Grantee”). Grantor and Grantee may be referred to in this Agreement at times individually as a “Party” and collectively as the “Parties”. The following Recitals are a material part of this Agreement:

RECITALS
A. As of the date of this Agreement, Grantee has purchased from Grantor certain improved real property located in the City of Calistoga, County of Napa, which real property is more fully described on Exhibit A to this Agreement (the “Property”). The Property is a part of the land commonly known as the Napa County Fairgrounds and was sold to Grantee pursuant to that Napa County Agreement No. __ Purchase and Sale Agreement and Escrow Instructions, dated ____ 2024, entered into by Grantee, as seller, and Grantor, as buyer (the “Sales Contract”).

B. Pursuant to the Sales Contract, Grantor retained ownership of an approximate 1.24 acres parcel, which is more fully described on Exhibit B to this Agreement (the “Easement Parcel”). The Easement Parcel consists of certain land and improvements currently being leased to the Napa County Office of Education (“NCOE”) (with a street address of 1407 N. Oak Street, Calistoga, CA 94515) (the “NCOE Leased Premises”); certain land located to the west of the NCOE Leased Premises that is currently improved with a building used for maintenance and storage purposes and related improvements (the “Adjacent Storage Property”), and an access roadway or driveway providing access for the rest of the Easement Parcel to Oak Street (the “Access Road”). The Adjacent Storage Property is more fully described on Exhibit C to this Agreement and depicted on Exhibit C-1 hereto. The Access Road is more fully described on Exhibit D to this Agreement and depicted on Exhibit D-1 hereto.

C. Grantee desires to obtain from Grantor and Grantor desires to grant to Grantee (i) a nonexclusive easement to access and use the Adjacent Storage Property for the term specified below and (ii) a permanent non-exclusive easements for (1) ingress and egress purposes over the Access Road and (2) utilities under said road on the terms and conditions stated more fully below.

Item #8.1.

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CNAP-55587\2892200.3 2

AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the following grants, agreements and covenants are hereby made:

1. ADJACENT STORAGE PROPERTY EASEMENT. Grantor hereby grants to Grantee and its successor(s) and assigns a non-exclusive easement over, across, on, and under the Adjacent Storage Property for the term specified below to use the same including the building located thereon for the benefit of the Property in conjunction with the City’s ownership and operation thereof (the “ASP Easement”).

2. ACCESS ROAD EASEMENTS. Grantor hereby grants to Grantee and its successor(s) and assigns a non-exclusive, perpetual easement for the following purposes and no others:
a. vehicular and pedestrian access over, on and under the Access Road for ingress and egress to and from the Property and, while the ASP Easement referenced in Section 1 continues in effect, the Adjacent Storage Property, to and from the public roadway currently known as North Oak Street, which use shall be consistent with design and size of said Access Road.
b. the installation, use, maintenance, repair, and replacement of utilities serving the Property, Access Road, and while the ASP Easement referenced in Section 1 continues in effect, the Adjacent Storage Property, all of which shall be installed and maintained underground and below the Access Road. In no event shall any such utilities interfere with any utilities serving the Easement Parcel or any portion thereof.

Said easements may be used by Grantee and its agents, employees, contractors, and other permittees including any tenants and occupants of the Property. Grantee may assign the easement rights specified above to any tenant or occupant of the Property for the term of said tenant’s or occupant’s lease or other occupancy agreement as well as to successor owners of all or part of the Property.

3. MAINTENANCE.
a. At its sole expense, Grantee shall maintain in good condition the Adjacent Storage Property including all improvements thereon while the ASP Easement remains in effect. Grantee shall also be responsible for all costs related to the utility easement rights granted to it under Section 2b above. Grantee shall cause the Access Road to be maintained in good condition (including the paving and repairing, restriping, or resurfacing or replacement of such areas, when reasonably necessary, with the type of material originally installed thereon, or such substitute therefor as shall in all respects be at least equal thereto in quality, appearance and durability) (the “Access Road Maintenance Work”). Grantor shall reimburse Grantee for fifty percent (50%) of the costs of the Access Road Maintenance Work (but only for the portion encumbered by the easement set forth in Section 2a above) within thirty (30) days after Grantor’s receipt of an invoice for the same along with reasonable supporting documentation, which invoice shall detailed how Grantor’s share of such Access Road Maintenance Work was calculated or determined. b. All maintenance work performed by Grantee pursuant to Section 2a or otherwise within any easements granted by this Agreement shall be undertaken in such a manner as to minimize any interfere with Grantor’s and its permittees’ use of the Easement Parcel, or any portions thereof, to the extent reasonably possible. Without limiting the above, except Item #8.1.

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CNAP-55587\2892200.3 3
in the event of an emergency, no temporary closure of the Access Road for maintenance or repair purposes shall occur unless such is during non-business hours (i.e., before 8:00 a.m. or after 5:00 p.m., Monday thru Friday, or on Saturday or Sunday) unless some reasonable means of alternative access to the Easement Parcel (outside of the Access Road) from the public street (either directly or indirectly is made available to Grantee and its permittees. c. Except in the event of an emergency, Grantee shall provide Grantor with at least twenty (20) days’ prior notice of any Access Road Maintenance Work or utility work undertaken pursuant to this Agreement.

4. ALTERATIONS. Grantee shall not perform or permit to be performed any alterations or other changes to the Adjacent Storage Property and/or Access Road without Grantor’s written approval not to be unreasonably withheld, conditioned or delayed. In no event shall any alterations preclude or interfere in any material manner with Grantor’s or its permittees’ use of the Easement Parcel, or any portion thereof.

Nothing set forth above, however, shall preclude or prevent Grantee from constructing and maintaining a fence along the boundary of the Property and the Easement Parcel. If such a fence is installed, then Grantor shall reimburse Grantee for fifty percent (50%) of the actual costs incurred for the fencing and its installation. Said reimbursement shall be made within thirty (30) days after Grantee’s receipt of an invoice detailing such costs, which invoice shall include proof of payment by Grantee and reasonable supporting documentation.

5. CERTAIN RESERVED RIGHTS. Except as otherwise provided in this Agreement, the Grantor reserves the rights to use those portions of the Easement Parcel burdened by the easements specified above as long such use does not materially and/or unreasonably interfere with the Grantee’s easement rights under this Agreement.

6. INDEMNITY. Except as may be prohibited or limited by applicable law, (i) Grantee will be responsible for all costs required to repair damages to the Easement Parcel and the improvements thereon caused by Grantee and/or its permittees use of any of the easements granted under this Agreement, and (ii) Grantee shall indemnify, defend and hold Grantor harmless from and against any and all actual loss, cost, expense (including attorneys’ fees), claims, demands, causes of action, liability, and damages arising from third-party claims against Grantor for personal injury or property damage (collectively, “Claims”) that result from or arise out of the use of the easements granted under this Agreement by Grantee and/or its permittees; provided, however, such indemnification and defense obligations shall not extend to any Claims to the extent caused by or arising from Grantor’s negligence or willful misconduct, or that of any agent, representative, contractor, employee or other permittee thereof.

7. INSURANCE. Grantee shall cause all of its respective third-party agents, consultants, contractors (including subcontractors) (each a “Grantee’s Agent”) who enter upon the Easement Parcel to have, the following insurance coverage in full force and effect as a condition of any entry or continued entry onto the Easement Parcel or any portion thereof, and such insurance shall be maintained in full force and effect throughout the use the easement by the applicable Grantee’s Agent:
a. Workers' Compensation Insurance. To the extent required by law, Grantee's Agents shall provide Workers' Compensation, including but not limited to, coverage for workers' compensation and employer's liability, and a waiver of subrogation. b. Liability Insurance. The following liability insurance coverages, issued by a company admitted to do business in California and having an A.M. Best rating of A VII or better or equivalent self-insurance satisfactory to Grantor's risk manager, or by a combination thereof:

Item #8.1.

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CNAP-55587\2892200.3 4
i. General Liability. Commercial or comprehensive general liability insurance coverage (personal injury and property damage) of not less than One Million Dollars ($1,000,000) combined single limit per occurrence, issued by a company admitted to do business in the State of California, covering liability for any personal injury, including death, to any person and/or damage to the property of any person arising from the acts or omissions of the insured party. If the coverage includes an aggregate limit, the aggregate limit shall be no less than twice the per occurrence limit.
ii. Comprehensive Automobile Liability Insurance. Comprehensive automobile liability insurance policy (Bodily Injury and Property Damage) on owned, hired, leased and non-owned vehicles used in conjunction with that party's activities under this Agreement of not less than One Million Dollars ($1,000,000) combined single limit per occurrence. If the coverage includes an aggregate limit, the aggregate limit shall be no less than twice the per occurrence limit. c. Certificates of Coverage, Waiver of Subrogation and Additional Insureds. Insurance coverages referenced in 7a and 7b, above shall be evidenced by one or more certificates of coverage and copies of applicable endorsements or, with the consent of Grantor's Risk Manager, demonstrated by other evidence of coverage acceptable to Grantor's Risk Manager, which shall be delivered by Grantee or Grantee's Agents to Grantor prior to each of Grantee's Agents' entry onto the Property, or any one of them (and anytime thereafter as may be reasonably requested by Grantor).
i. The certificate(s) or other evidence of coverage shall reference this Agreement by its number or title; shall be kept current during the term of this Agreement; shall provide that, if such coverage is reasonably obtainable in the geographic area where the Property is located, Grantor shall be given no less than thirty (30) days prior written notice of any non-renewal, cancellation, other termination, or material change, except that only ten (10) days prior written notice shall be required where the cause of non-renewal or cancellation is non-payment of a premium; and shall provide that the inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, the coverage afforded applying as though separate policies had been issued to each insured, but the inclusion of more than one insured shall not operate to increase the limits of the company's liability.
ii. For the commercial general liability insurance coverage referenced in 7bi and, for the comprehensive automobile liability insurance coverage referenced in 7bii. where the vehicles are covered by a commercial policy rather than a personal policy, Grantee's Agents shall also deliver to Grantor with the evidence of coverage an endorsement from the insurance provider naming Grantor and its officers, employees, agents and volunteers as additional insureds and waiving subrogation. For the Workers Compensation insurance coverage, Grantee's Agents shall deliver to Grantor with the evidence of coverage an endorsement waiving subrogation. All liability policies required by this Agreement shall be occurrence based policies.

Item #8.1.

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CNAP-55587\2892200.3 5
iii. The certificate or other evidence of coverage shall provide that if the same policy applies to activities of Grantee’s Agents not covered by this Easement, then the limits in the applicable certificate relating to the additional insured coverage of Grantor shall pertain only to liability for activities of Grantee's Agents under this Agreement, and that the insurance provided is primary coverage to Grantor with respect to any insurance or self-insurance programs maintained by Grantor. iv. Upon request by Grantor's Risk Manager, Grantee’s Agents shall provide or arrange for the insurer to provide within thirty (30) days of the request, copies of the actual insurance policies or relevant portions thereof. d. Minimum Limits Not Precluding Additional Coverage. No minimum limits of coverage set forth above shall serve to preclude the application of any coverage in excess of the same, and insurance provided by Grantee’s Agents shall be deemed to be primary and noncontributory with any insurance or self-insurance programs maintained by Grantor. e. Deductibles / Retentions. Any deductibles or self-insured retentions for policies of Grantee’s Agents shall be disclosed to Grantor's Risk Manager. f. Inclusion in Subcontracts. Grantee agrees and acknowledges that the above-referenced liability and Workers' Compensation insurance requirements shall apply to all subcontractors and any other third-party permittee who is involved in providing services under this Agreement involving any entry onto the Property, or any portion thereof, and Grantee shall require compliance of said persons or entities with such insurance requirements set forth in this Section 7.

8. TERM OF THE AGREEMENT; RUNNING OF BENEFITS. This Agreement and the term of all easements granted herein shall be perpetual except as follows: The ASP Easement may be terminated by Grantor providing notice of such termination to Grantee. No such termination notice shall be effective, however, unless Grantee is given at least nine (9) months prior notice of the specified termination date. The easements and covenants granted and given under this Agreement shall run with the land for the benefit of the Property and to the extent applicable the Easement Parcel and burden the Easement Property and to the extent applicable the Property. This Agreement shall be binding upon and inure to the benefit of Grantee and any successor owner of any portion of the Property, and shall be binding upon and inure to the benefit of Grantor and any successor owner of the Easement Parcel or any portion thereof.

9. ENFORCEMENT. Either Party shall be entitled to enforce their respective rights under this Agreement through injunctive or equitable relief.

10. NOTICES. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed given and effective: (i) on the date of delivery if served personally on the Party to whom notice is to be given or, unless otherwise specifically provided or required by this Agreement; (ii) if sent by overnight delivery, such as by Federal Express, on the date said notice or other writing is delivered or on which delivery is refused; (iii) five (5) business days after mailing by first class, registered or certified mail, postage prepaid; or (iv) if by electronic mail, on the date sent, and properly addressed as follows:

Grantor’s Address: Napa County
County Executive Office
Item #8.1.

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CNAP-55587\2892200.3 6
1195 Third Street, Suite 319
Napa, California 94559
Attention: Ryan Alsop / County CEO
Email: [email protected]

With a copy to: Napa County
Office of Napa County Counsel
1195 Third Street, Suite 301
Attention: Sheryl Bratton / County Counsel
Email: [email protected]
Grantee’s Address: City of Calistoga
1232 Washington St.

11. MISCELLANEOUS.
a. Entire Agreement. This Agreement constitutes the entire agreement of the Parties hereto pertaining to its subject matter.
b. Headings. The section headings and captions used in this Agreement are inserted herein for convenience of reference only and are not to be considered in the construction of the provisions hereof and shall not in any way limit the scope or modify the substance or context of any section or paragraph hereof. In the event of any ambiguity in this Agreement, this Agreement shall not be construed against either Party based on the drafter hereof.
c. Counterparts. This Agreement may be executed in any number of counterparts which together shall constitute the Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]

Item #8.1.

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CNAP-55587\2892200.3 7
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first set forth above.

GRANTEE: CITY OF CALISTOGA
By: ___________________
Name: ________________
Its: ___________________
APPROVED AS TO FORM:

City Attorney:

By: ___________________
Name: ________________
GRANTOR: NAPA COUNTY, a political subdivision of the State of California
By: __________________________________
Joelle Gallagher, Chair of the Board of
Supervisors
APPROVED AS TO FORM:

Office of County Counsel
By:

County Counsel
Item #8.1.

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CNAP-55587\2892200.3 8

APPROVED BY THE NAPA COUNTY BOARD OF
SUPERVISORS:

Dated: _____________
Processed By:
___________________________
Deputy Clerk of the Board
ATTEST: NEHA HOSKINS
Clerk of the Board of Supervisors
By:

Item #8.1.

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CNAP-55587\2892200.3

EXHIBIT A

LEGAL DESCRIPTION OF THE PROPERTY
[To be Inserted]
Item #8.1.

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CNAP-55587\2892200.3

EXHIBIT B

LEGAL DESCRIPTION OF THE EASEMENT PARCEL
[To be Inserted]
Item #8.1.

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CNAP-55587\2892200.3

EXHIBIT C

LEGAL DESCRIPTION OF ADJACENT STORAGE PROPERTY
[To be Inserted]
Item #8.1.

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CNAP-55587\2892200.3
EXHIBIT C-1

DEPICTION OF ADJACENT STORAGE PROPERTY
[To be Inserted]
Item #8.1.

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CNAP-55587\2892200.3

EXHIBIT D

LEGAL DESCRIPTION OF ACCESS ROAD
[To be Inserted]
Item #8.1.

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CNAP-55587\2892200.3
EXHIBIT D-1

DEPICTION OF ACCESS ROAD
[To be Inserted]
Item #8.1.

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Item #8.1.

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City of Calistoga

STAFF REPORT
To: Honorable Mayor and City Council
From: Rachel Melick, Parks & Recreation Director
Meeting: City Council - Feb 06 2024
Subject: Consideration of Pool Season Changes Regarding Expansion of Lap Swim and Changes in Use Fees
DESCRIPTION:

Consideration of Pool Season Changes Regarding Expansion of Lap Swim and Changes in Use Fees
RECOMMENDATION:

Provide direction to staff regarding various proposed pool season changes related to the opening of the pool and modification of fees for the high school, pre-season lap swimming, and non-resident youth. An example of a motion might be to:

1. Authorize opening the pool for lap swim prior to the regular season during the time the Calistoga High School Swim Team uses the pool and subsidize the high school's cost to use the pool.

2. Establish a drop-in charge of $8 for adults and $6 for seniors for all lap swimmers for preseason lap swim

3. Establish a charge of $6 for each drop-in, non-resident child 17-under BACKGROUND/SUMMARY:

In response to prior community requests, staff has considered how additional swim time could be offered. Should the City Council be interested in this option, staff is recommending consideration of several different fee modifications: A) A reduction in the reimbursement the high school pays to the city. B) Charging for pre-season lap swim. C) Charging for non-resident youth under the age of 18.

ANALYSIS:

The Calistoga Community Pool is traditionally open to the public beginning the first weekend of April through the end of September. However, under the Calistoga Parks and Recreation Department Schedule and Reimbursement Agreement ("reimbursement agreement") for use of the Calistoga Community Pool Facilities, the Calistoga High School uses the pool outside of regular public use for high school swim team practice. The school district reimburses the city for utility costs, maintenance costs, and staff time up until the time the pool is open to the public, as per the terms of the reimbursement agreement. Once the pool is open to the public, the school only reimburses the city for the staff time during their allocated time slot. In 2023 the total amount charged to the school was $10,002.25.

In an effort to generate more access for the public, and as the swim team traditionally has not needed the entire pool, staff approached the high school about sharing the pool space for public lap swim during the time the swim team uses it, approximately an hour 3-4 days/week. The high school Item #8.2.

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is amenable to sharing the space and the costs for utilities, maintenance, and staff costs which means the city would forgo 50% of the reimbursement the school currently pays. With utility costs rising in 2024, staff would anticipate the total increasing by about 15%, bringing the overall reimbursement under the current agreement to approximately $11,200. Under the proposed sharing of expenses, the city would instead recover around $5,600.

Staff is also looking for direction on whether or not a pre-season rate should be charged. The prosed drop-in fee would be the non-residents fees of $8 for adults and $6 for seniors, for all lap swimmers during this time.

Staff is also looking ahead to the normal pool season and seeking direction on implementing a charge for non-resident children 17-under. Currently all children 17-under are admitted to the pool without a fee. However, in evaluating ways to be more financially sustainable and provide primary facility benefit for residents, staff is recommending implementing a fee, in line with non-resident seniors, for non-resident children of $6 per drop-in. Based off of data from last pool season gathered by staff during recreation swim, the may possible equate to approximately $20,000 in revenue.

Resident children 17-under would still enjoy the community benefit of using the facility at no charge and would be admitted using a season pass. Since non-resident adults are currently charged for admittance, this would be in line with that practice.

CEQA STATUS:

None
FINANCIAL IMPACT:

The cost, by way of lost revenue to the city, is approximately $5,600 to share the space for lap swimming during high school swim team. The potential revenue is unknown should a fee be charged for pre-season lap swim. The city could recuperate approximately $20,000 in revenues by implementing a fee for non-resident children 17-under. Each of these items may be considered independently of the others.

ATTACHMENT(S):

Pool admission prices 2023 (1)
APPROVAL(S):

Jessie Catacutan Approved - Jan 25 2024
Laura Snideman, City Manager Approved - Jan 30 2024
Yudiana Galvan, City Clerk Approved - Jan 30 2024
Item #8.2.

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calistoga COMMUNITY POOL

POOL ADMISSION PRICES
Daily Fees
Lap & Rec Swim
Seniors (55+) $6
Adults (18+) $8
Youth (Under 18) FREE
Water Aerobics
Seniors (55+) $8
Adults (18+) $10
10 Punch Pass
Seniors (55+) $60
Adults (18+) $80
Lap & Rec Swim
Water Aerobics
Seniors (55+) $80
Adults (18+) $100
Season Pass
April-September, 2023
Includes water aerobics, lap swim,
and rec swim
Calistoga Resident
Must provide proof of residency
Residents (all ages) FREE
Non-Resident
Seniors (55+) $400
Adults (18+) $550
Family (two adults) $750
Youth (11-17 yrs)
FREE. Must have a signed
registration form to come to the pool
without an adult.

MERCHANDISE
Sweatshirt $25 Adult Goggles $10
Towel $10 Youth Goggles $7
Swim Diaper $2 Light Weights $20 Kickboard $10
Item #8.2.

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Calistoga City CouncilFebruary 6, 2024

Calistoga City Council
February 6, 2024