This Amended and Restated City Agreement No. C2017-037 entitled Agreement of Purchase and Sale and Joint Escrow Instructions is made as of the Effective Date identified on the signature page (“Effective Date”) by and between the City of Napa, a California charter city (“Seller”) and James F. Keller, a married man (“Buyer”), with reference to the following facts:
RECITALS
Seller and Buyer entered into that certain Agreement of Purchase and Sale and Joint Escrow Instructions dated as of February 14, 2017, for the purchase and sale of certain real property improved with a surface parking lot located in Napa, California (Napa County APN: 003-212-001) (the “Property”), as legally described in Exhibit A. The Agreement of Purchase and Sale and Joint Escrow Instructions has been amended by letter agreements between Buyer and Seller dated February 14, 2018 and August 30, 2018, respectively, by Amendment No.1 to City Agreement No. C 2017-037 dated February 22, 2019, and by Amendment No.2 to City Agreement No. C 2017-037 dated January 18, 2024. The Agreement of Purchase and Sale and Joint Escrow Instructions as amended by the letter agreements, Amendment No. 1 and Amendment No. 2 are referred to herein as the “Original PSA”. Buyer and Seller agree that this Agreement shall amend and restate, in its entirety, the Original PSA.
The Original PSA required, among other requirements, that the Parties enter into a Development Agreement that addressed matters including, but not limited to, the following: (a) use, intensity and density, maximum floor area, and maximum height of development on the Property and Post Office Parcel, including requirements for timing of construction; (b) public benefits, including (A) location and general design parameters of public parking (size and massing, ingress/egress and circulation, quantity of parking stalls); (B) maintenance and operation standards for the public parking, and (C) requirements for timing of construction of the Project (as defined below); (c) the amount of retail frontage required by the Downtown Napa Specific Plan Guidelines; (d) parking quantities sufficient to serve the Project’s hotel and retail components; (e) CEQA compliance; and (f) such other matters related to the Project.
The Parties entered into that certain Development Agreement contained in City Agreement No. C2019-036 effective as of February 22, 2019, including Amendments No. 1, No. 2 and No. 3 to City Agreement No. C2019-036, for the development of the Post Office Redevelopment Project located in Napa, California (City Agreement No. C2019-036 with Amendments No. 1, No. 2 and No. 3 to City Agreement No. C2019-036 are referred to herein as the “Development Agreement”).
The Development Agreement provides for the rehabilitation of the earthquake damaged Franklin Station Post Office building with the construction of an Upper Upscale hotel with accessory whole ownership dwelling units and ancillary retail and related amenities, including parking (defined as the “Project” in the Development Agreement). The Original PSA and Development Agreement contemplated that the Property would be developed as a structured parking lot to facilitate parking for the Project and public parking as contemplated in the Development Agreement.
Developer has been in the process of reconfiguring and redesigning the Project and desires to replace the Original PSA and revise the Development Agreement to facilitate a revised Project that will continue to rehabilitate the historic Post Office building, reconfigure the hotel portion of the Project and provide additional residential and commercial use opportunity in downtown Napa on the Property (“Revised Project”), as generally described in Exhibit B, as may be revised and supplemented by Developer in a future development permit application.
Developer now desires to acquire the Property as a simple, State Surplus Lands Act (California Government Code section 54220 et seq.) (“SLA”) exempt less-than half-acre real property purchase and sale agreement to facilitate the Revised Project.
Buyer and Seller now desire to amend and restate the Original PSA in its entirety to document the modified terms and conditions for Buyer’s purchase of the Property from the Seller, as more particularly set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Amendment, the receipt and adequacy of which are hereby acknowledged, Seller and Buyer agree as follows:
Salient Terms.
Effective Date:
_______ ___, 2025
Purchase Price:
Two Million Seven Hundred Thousand Dollars ($2,700,000) Buyer:
James F. Keller
P.O. Box 546
Napa, CA 94559
Telephone No.: (707) 333-1184
Seller:
City of Napa
955 School Street / P.O. Box 660
Napa, CA 94559
Attn: City Manager and City Attorney
Telephone No.: (707) 257-9501
Deposit:
Fifty Thousand Dollars ($50,000)
Independent Consideration
One Hundred Dollars ($100.00)
Liquidated Damages Amount:
Total Deposit ($50,000)
Real Property:
Approximately 0.5+/- acres located commonly known as Napa County APN: 003-212-001), as is further described in Exhibit “A” attached hereto and incorporated herein.
Closing Date:
Thirty (30) days following the satisfaction of all Buyer conditions and Seller conditions as described in Section 7 below, but in no event later than the Expiration Date as defined herein.
Escrow Holder:
Placer Title Company of Napa
5 Silverado Plaza, Suite 101
Napa, CA 94559
Attn: Laura Blessing
Exhibits:
A: Description of Property
B: Project Description
Agreement of Purchase and Sale. Buyer agrees to buy and the Seller agrees to sell, on all the terms and conditions stated herein, the real property described in Section 1(h) above and all improvements thereon (the “Real Property”), together with Seller’s interest, if any, in: (i) any easements, rights of way, privileges, licenses, appurtenances and other rights and benefits of Seller or belonging to the Real Property, including Seller’s interest in any and all intangible personal property arising out of or in connection with the ownership or operation of the Real Property (including the right to use the current names of the Real Property), (ii) all licenses, permits, entitlements, certificates of occupancy and franchises issued to Seller by federal, state or local municipal authorities relating to the use, maintenance, occupancy or operation of the Real Property, (iii) all personal property and fixtures (if any) owned by Seller and located on the Real Property and that are used or useful in connection with the Real Property, and (iv) all warranties given by third parties with respect to the Real Property (collectively, the “Property”). Seller shall also transfer to Buyer all plans and specifications in Seller’s possession for development of any projects on the Property (“Plans”).
Deposit.
Deposit. Pursuant to the Original PSA, an escrow has been opened with Escrow Holder under Order No. 141775, and Buyer’s $50,000 Deposit shall remain in such Escrow pursuant to the terms and conditions of this Agreement. The Deposit shall be held by Escrow Holder in an interest-bearing account insured by the federal government in an institution as directed by Buyer and reasonably acceptable to Seller. The Deposit shall be credited against the Purchase Price at Close of Escrow.
Independent Consideration. Buyer has deposited into Escrow, in addition to the Deposit described above, the Independent Consideration. The Independent Consideration shall be non-refundable to Buyer as independent consideration for the rights and options extended to Buyer hereunder, including, without limitation, the right and option to terminate this Agreement as provided herein. The Independent Consideration shall be disbursed to Seller immediately following Buyer’s deposit thereof into Escrow. In all instances under this Agreement in which Buyer elects to terminate or is deemed to have terminated this Agreement and the Deposit is returned to Buyer, Seller shall retain the Independent Consideration when the Deposit is returned to Buyer. The Independent Consideration shall not be applicable to the Purchase Price or treated as consideration given to Buyer for any purpose other than as provided herein. The parties intend and agree that the amount of the Independent Consideration is sufficient consideration for the rights and options extended to Buyer hereunder and that it satisfies the threshold for sufficient consideration for such rights and options as articulated in Steiner v. Thexton (2010) 48 Cal. 4th 411.
Closing Date. “Close of Escrow”, or the “Closing Date,” is the date upon which the Grant Deed conveying title to the Property to Buyer is recorded with the County Recorder of Napa County and all funds are disbursed from escrow. The Closing Date shall occur as set forth in Section 1(i). The Closing Date shall also mean the PSA Outside Date as defined in the Development Agreement.
Terms. The Purchase Price described in Section 1(b) above shall be paid to Seller at Close of Escrow by wire transfer, plus or minus the closing adjustments and prorations described in Section 10.
Condition of Property. From the Effective Date to the Closing Date (the “Escrow Period”), Buyer and Buyer’s agents, employees and consultants shall have a nonexclusive license to enter upon the Property for the purpose of allowing Buyer to conduct reasonable engineering and soils tests, environmental surveys, inspections of completed work and all improvements on the Property, feasibility and other economic studies, surveys and other examinations of the Property Buyer deems appropriate. Notwithstanding the foregoing, Buyer acknowledges and agrees that Buyer has completed its due diligence and inspections of the Property (pursuant to the terms and conditions of the Original PSA), and the only remaining contingencies are the Buyer Conditions described in Section 7 below.
Buyer shall indemnify, defend and hold Seller free and harmless from all loss or liability (including, without limitation, attorneys’ fees) arising from such activities of Buyer and its agents and employees upon the Property prior to the closing, and from all mechanic’s, materialmen’s and other liens resulting from any such conduct of Buyer and its agents and employees. Buyer, at Buyer’s sole cost and expense, shall immediately restore the Property to its reasonable condition existing immediately prior to Buyer’s inspections if, for any reason, the Property is not transferred by Seller to Buyer. Until restoration is complete, Buyer shall take all steps necessary to ensure that any conditions on the Property created by Buyer’s inspections do not interfere with the normal operation of the Property, create any dangerous, unhealthy, unsightly or noisy conditions on the Property. Buyer’s indemnification and restoration obligations under this Section 6 shall survive the Closing or earlier termination of this Agreement.
Seller has previously furnished to Buyer (pursuant to the Original PSA), copies of all pertinent and material information in the possession of Seller or Seller’s agents, employees or managers relating to the Property (“Due Diligence Materials”). Seller shall promptly provide to Buyer any additional Due Diligence Materials relating to the Property that have not previously been provided to Buyer, and /or which relate to the Property and are generated from and after the Effective Date.
BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY CLOSING DOCUMENTS, SELLER HAS NOT MADE ANY REPRESENTATIONS, WARRANTIES, GUARANTIES, PROMISES, STATEMENTS OR ASSURANCES WHATSOEVER, EXPRESS OR IMPLIED, DIRECTLY OR THROUGH ANY EMPLOYEE OR AGENT, AS TO THE CONDITION OF THE PROPERTY, OR ANY OTHER MATTER, INCLUDING, BUT NOT LIMITED TO, HAZARDOUS MATERIALS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING IN ANY WAY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR ANY CLOSING DOCUMENTS, SELLER EXPRESSLY DISCLAIMS MAKING OR HAVING MADE ANY REPRESENTATIONS OR WARRANTY WITH RESPECT TO THE DUE DILIGENCE MATERIALS FURNISHED BY SELLER. BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR SELLER’S EXPRESS COVENANTS, REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT OR ANY CLOSING DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS: (A) ALL MATTERS RELATING TO THE TITLE TOGETHER WITH ALL GOVERNMENTAL AND OTHER LEGAL REQUIREMENTS SUCH AS TAXES, ASSESSMENTS, ZONING, USE PERMIT REQUIREMENTS, BUILDING PERMIT REQUIREMENTS, BUILDING CODES AND OTHER DEVELOPMENT REQUIREMENTS; (B) EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PHYSICAL CONDITION OF THE PROPERTY; (C) ALL OTHER MATTERS OF ANY SIGNIFICANCE AFFECTING THE PROPERTY, WHETHER PHYSICAL IN NATURE OR INTANGIBLE IN NATURE, SUCH AS THE POLITICAL CLIMATE WITH RESPECT TO THE GOVERNMENTAL AGENCIES THAT HAVE JURISDICTION OVER THE PROPERTY, DEVELOPMENT OF THE PROPERTY OR THE OPERATION OF THE PROPERTY; (D) THE EXISTENCE, QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION OF UTILITIES SERVING THE PROPERTY; (E) THE ECONOMICS OF THE PRESENT OR FUTURE OWNERSHIP AND/OR OPERATION OF THE PROPERTY; AND (F) THE EXISTENCE OF HAZARDOUS MATERIALS IN, UNDER OR AFFECTING THE PROPERTY; AND, EXCEPT AS OTHERWISE PROVIDED HEREIN OR IN ANY DOCUMENT EXECUTED BY SELLER AT THE CLOSING, BUYER IS PURCHASING THE PROPERTY “AS IS-WITH ALL DEFECTS” BASED UPON BUYER’S OWN INSPECTION OF THE PROPERTY. _________ _________
Buyer Seller
Conditions.
Buyer Conditions. Buyer’s obligation to purchase the Property is conditioned upon:
the performance by Seller, in all material respects, of each and every covenant and obligation of Seller hereunder; each representation and warranty made in this Agreement by Seller shall be true and correct, in all material respects, at the time the representation or warranty was made and as of the Closing Date; except to the extent initiated by the City or associated with the Revised Project, there shall not be any condemnation, environmental or other pending governmental administrative or legal proceedings with respect to the Property which would materially and adversely affect Buyer’s intended uses of the Property or the value of the Property; Buyer shall have approved and executed a revised Development Agreement pursuant to California Government Code Section 65865 et seq., with respect to the Developer’s Revised Project, in form and substance mutually acceptable to the parties in their sole and absolute discretion (the “Revised Development Agreement”) that, in addition to the revision of any current terms in the Development Agreement, the Revised Development Agreement shall address additional matters including, but not limited to, the following (a) changes to the Project and description of the Revised Project; (b) use of the City Property for, including but not limited to, branded residential, residential, hotel, or associated mixed use or combination thereof and related accessory uses such as parking; (c) key milestones and timeframes for the performance of such milestones and shall modify any similar milestones and timeframes in the Development Agreement as the Parties may agree and that such milestones and timeframes may be amended by written agreement between the Developer and City Manager; and (d) such other matters related to the Project as decided by the Parties; and Except to the extent arising from or relating to any activity of Buyer or on behalf of Buyer during the Escrow Period, since the Effective Date, no adverse change in the physical condition of the Property, or any damage, destruction or loss thereto that would have a material adverse effect on Buyer’s ability to develop the Revised Project shall have occurred.
Failure of Buyer Condition. Upon failure to satisfy any of the conditions stated herein which run in Buyer’s favor (provided Buyer has timely notified Seller of the failure of the condition), unless there is a written waiver of said condition by Buyer, the Deposit together with fee and cost monies transferred by Buyer to Escrow Holder as set forth under Section 7 herein shall be returned to Buyer, the parties shall be returned to their original position as existed prior to the execution hereof, and this Agreement shall be declared null and void and of no further force or effect, except as otherwise provided herein. Should Buyer waive any Buyer conditions in writing, this Agreement shall remain in force as if the condition had not been included herein.
Seller Conditions. Seller’s obligation to sell the Property is conditioned upon:
the performance by Buyer of each and every covenant and obligation of Buyer hereunder; the truth of each representation and warranty made in this Agreement by Buyer at the time the representation or warranty was made and as of the Closing Date; Seller’s completion of the necessary environmental review of the Revised Project in accordance with the California Environmental Quality Act (“CEQA”); Seller shall have approved and executed a Revised Development Agreement; and Buyer shall have received all discretionary approvals and assurances from all appropriate governmental entities to develop the Revised Project in the manner described in the Revised Development Agreement, and, subject to payment of the applicable fees, Seller shall be ready to issue the first building permit for the development of the Revised Project.
Failure of Seller Condition. Except as specifically set forth in this Section, upon failure to satisfy the conditions set forth in Section 7(c)(i) (Buyer’s performance), 7(c)(ii) (accuracy of Buyer representations), 7(c)(iv) (CEQA compliance) or 7(c)(v) (assurances regarding Revised Project) (collectively, “Buyer Performance Conditions”), or upon the failure of the condition set forth in Section 7(c)(iv) for any reason other than a Non-Regulatory Disapproval (defined below), unless there is a written waiver of said Buyer Performance Condition by Seller, the Deposit together with fee and cost monies transferred by Buyer to Escrow Holder as set forth under Section 10 herein shall be released to Seller as liquidated damages pursuant to Section 8(a), below. Upon failure to satisfy the condition set forth in Section 7(c)(iv), solely due to Seller’s unwillingness in its proprietary capacity (and not in its regulatory or governmental capacity) to approve reasonable modifications to the Development Agreement (a “Non-Regulatory Disapproval”), the Deposit shall be refunded to Buyer, and neither party shall have any further obligation to one another hereunder, except for any obligations which expressly survive termination of this Agreement. Buyer acknowledges that Seller has not committed itself to the approval of the Revised Project, as a whole or to any particular features thereof, whether occurring on or off of the Property, and that Seller retains discretion to consider feasible mitigation measures and alternatives to the Revised Project (including a “no project” alternative), or disapprove of the Revised Project altogether, as part of the CEQA review required under Seller’s conditions to Closing. Buyer acknowledges and assumes the foregoing risk, including but not limited to the fact that Seller is not bound or committed to any definite course of action with respect to the Revised Project or any other approvals from the City of Napa that may be associated therewith.
Remedies for Breach.
Buyer’s Breach. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IF THE SALE OF THE PROPERTY TO BUYER IS NOT CONSUMMATED DUE TO BUYER’S DEFAULT, THEN SELLER, AS SELLER’S SOLE AND EXCLUSIVE REMEDY, SHALL BE ENTITLED TO RETAIN THE DEPOSIT AND ALL ACCRUED INTEREST THEREON, AND BUYER SHALL DELIVER TO SELLER ALL STUDIES, REPORTS, SOILS ANALYSIS AND SIMILAR DOCUMENTS REGARDING THE PROPERTY IN BUYER’S POSSESSION, WITHOUT COST TO SELLER, AS SELLER’S LIQUIDATED DAMAGES. THE PARTIES AGREE THAT IT WOULD BE EXTREMELY IMPRACTICABLE AND DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY SELLER AS A RESULT OF BUYER’S FAILURE TO COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE DAMAGES WHICH SELLER WILL INCUR AS A RESULT OF SUCH FAILURE. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTION 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676, AND 1677; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT AFFECT BUYER’S RESTORATION OBLIGATIONS, OR WAIVE OR AFFECT BUYER’S INDEMNITY OBLIGATIONS AND SELLER’S RIGHTS TO THOSE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT. THE PARTIES HAVE SET FORTH THEIR INITIALS BELOW TO INDICATE THEIR AGREEMENT WITH THE LIQUIDATED DAMAGES PROVISION CONTAINED IN THIS SECTION. _________________ _________________
SELLER’S INITIALS BUYER’S INITIALS
Seller’s Breach. If the transfer of the Property from Seller to Buyer does not close as a result of a default by Seller under this Agreement, Buyer shall be entitled only to elect one of the following remedies as Buyer’s sole and exclusive remedy: (i) the return of the Deposit, (ii) an action for specific performance of this Agreement for the delivery of the Property, or (iii) any other remedy available to Buyer at law or equity.
Title. Buyer acknowledges and agrees that it has reviewed and approved of the condition of title to the Property as documented in the preliminary title report issued by Placer Title Company of Napa dated July 22, 2019 (the “Preliminary Report”), including all exceptions described therein (the “Approved Exceptions”). Evidence of marketable title shall be in the form of a California Land Title Association standard form policy of title insurance paid for by Buyer, insuring title in Buyer subject only to the Approved Exceptions. Buyer may, at its sole cost and expense upgrade to ALTA coverage if Buyer chooses to do so, and any survey required therefor (or for any other reason) shall be obtained at Buyer’s expense. The title policy shall be in the amount of the Purchase Price.
Prorations. Property taxes shall be prorated at Close of Escrow, if applicable. Seller shall also be responsible for and pay at the Close of Escrow any outstanding penalties and or late fees as to property taxes and or assessments.
Closing Costs. Buyer shall pay for the premium of a CLTA title insurance policy and any upgrades thereto or endorsements. Costs of revenue stamps or county documentary transfer taxes in connection with this transaction shall be paid by Seller. Other taxes shall be paid by the parties as is customary in Napa County. All escrow costs of closing shall be divided equally between the parties at Close of Escrow, except that Buyer shall pay all recording fees.
Possession. Possession shall be delivered to Buyer on Close of Escrow.
Seller’s Representations and Warranties. Seller hereby represents and warrants the following to Buyer for the purpose of inducing Buyer to enter into this Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof and as of the Closing Date (except that any representation which was made “as of the date of this Agreement” shall be true only as of the date of this Agreement) and shall survive the Closing and conveyance of title to the Property:
Authority. Seller has the legal power, right and authority to enter into this Agreement and the instruments and documents referenced herein, and to consummate the transaction contemplated hereby. The individuals executing this Agreement and the instruments referenced herein on behalf of Seller hereby represent and warrant that they have the power, right and authority to bind Seller.
Action. All requisite action has been taken by Seller and all requisite consents have been, or shall be, obtained, in connection with the entering into this Agreement and the instruments and documents referenced herein, and the consummation of the transaction contemplated hereby, and no consent of any other party is required except as specifically acknowledged by this Agreement.
Binding. This Agreement is, and all agreements, instruments and documents to be executed by Seller pursuant to this Agreement shall be duly executed by and are, or shall be, valid and legally binding upon Seller and enforceable in accordance with their respective terms.
No Default. Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any agreement, document, instrument, or other obligation to which Seller is a party or by which Seller may be bound, or under any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body, applicable to Seller or to the Property.
Contracts. As of the Close of Escrow, Seller will not be a party to any service contracts or management agreements affecting the Property.
Conflicts and Pending Actions or Proceedings. There is no agreement to which Seller is a party or, to Seller’s knowledge, binding on Seller which is in conflict with this Agreement. There is no action or proceeding pending or, to Seller’s knowledge, threatened against or relating to Seller or the Property, including, without limitation, any condemnation proceedings, which challenges or impairs Seller’s ability to execute or perform its obligations under this Agreement.
No Representations as to Property. There are no representations, agreements, arrangements, or circumstances, oral or written, between the parties relating to the subject matter contained in this Agreement that are not fully expressed in the Agreement, and Seller has not made and does not make any representation or warranty concerning any matter or thing affecting or relating to the Property, including but not limited to its fitness for a particular use, its physical condition or any other matter.
Sale “AS-IS”. Subject to Seller's representations and warranties contained herein, Buyer's election to purchase the Property will be based upon and will constitute evidence of Buyer's independent investigation of the Property, its use, development potential and suitability for Buyer's intended use, including (without limitation) the following: the feasibility of developing the Property for the purposes intended by Buyer and the conditions of approval for any subdivision map; the size and dimensions of the Property; the availability, cost and adequacy of water, sewerage and any utilities serving or required to serve the Property; the presence and adequacy of current or required infrastructure or other improvements on, near or affecting the Property; any surface, soil, subsoil, fill or other physical conditions of or affecting the Property, such as climate, geological, drainage, air, water or mineral conditions; the condition of title to the Property; the existence of governmental laws, statutes, rules, regulations, ordinances, limitations, restrictions or requirements concerning the use, density, location or suitability of the Property for any existing or proposed development thereof including but not limited to zoning, building, subdivision, environmental or other such regulations; the necessity or availability of any general or specific plan amendments, rezoning, zoning variances, conditional use permits, building permits, environmental impact reports, parcel or subdivision maps and public reports, requirements of any improvement agreements; requirements of the California Subdivision Map Act, and any other governmental permits, approvals or acts (collectively “Permits”); the necessity or existence of any dedications, taxes, fees, charges, costs or assessments which may be imposed in connection with any governmental regulations or the obtaining of any required Permits; the presence of endangered plant or animal species upon the Property; and all of the matters concerning the condition, use, development or sale of the Property. Seller will not be liable for any loss, damage, injury or claim to any person or property arising from or caused by the development of the Property by Buyer.
Except with respect to fraud or a default by Seller hereunder (including a breach of Seller's warranties and representations), Buyer at the Close of Escrow expressly waives its rights granted under California Civil Code Section 1542, which provides as follows:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Buyer's Initials: ________ Seller's Initials: ________ Representations and Warranties of Buyer. Buyer hereby represents and warrants the following to Seller for the purpose of inducing Seller to enter into this Agreement and to consummate the transactions contemplated hereby, all of which shall be true as of the date hereof and as of the Closing Date and shall survive the Close of Escrow and conveyance of title to the Property hereunder:
Buyer has the legal power, right and authority to enter into this Agreement and the instruments and documents referenced herein, and to consummate the transaction contemplated hereby. The individuals executing this Agreement and the instruments referenced herein on behalf of Buyer hereby represent and warrant that they have the power, right and authority to bind Buyer.
All requisite action has been taken by Buyer and all requisite consents have been obtained in connection with the entering into this Agreement and the instruments and documents referenced herein, and the consummation of the transaction contemplated hereby, and no consent of any other party is required.
This Agreement is, and all agreements, instruments and documents to be executed by Buyer pursuant to this Agreement shall be duly executed by and are, or shall be, valid and legally binding upon Buyer and enforceable in accordance with their respective terms.
Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any agreement, document, instrument or any other obligation to which Buyer is a party or to which Buyer may be bound or affected, or under any law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body, applicable to Buyer or to the Property.
Buyer warrants that Buyer is a sophisticated owner and buyer of real property, familiar and experienced with requirements for the development of real property. Buyer has examined the Property or will have done so by Closing, is or will be familiar with its physical condition, and accepts the Property in an “AS-IS” condition.
Buyer has conducted or will conduct an independent investigation with respect to zoning and subdivision laws, ordinances, resolutions, and regulations of all governmental authorities having jurisdiction over the Property, and the use and improvement of the Property and is, or at Closing will be, satisfied with the results of such investigation.
The Property is being sold “AS-IS” and with all faults.
Seller’s Deliveries. At least two (2) business days prior to the Closing Date, Seller shall deliver to Escrow Holder the following documents, fully executed and acknowledged where appropriate, and such other items as follows:
A grant deed (“Grant Deed”) conveying title to the Property; Such funds as may be necessary to comply with Seller’s obligation hereunder regarding prorations, costs, expenses, and removal of liens or encumbrances, and payment of taxes and assessments (unless otherwise paid by Buyer under the terms of this Agreement); Such other documents as may be reasonably requested by Escrow Holder or the Title Company.
Buyer’s Deliveries. At least two (2) business days prior to the Closing Date, Buyer shall deliver to Escrow Holder the following documents, fully executed and acknowledged where appropriate, and such other funds and items as follows:
A Preliminary Change of Ownership Statement in form suitable for filing with the County Tax Collector; Deliver the balance of the proceeds due to close the Escrow; Such other documents as may be reasonably requested by Escrow Holder or Title Company.
Escrow Holder’s Actions. At the Close of Escrow, subject to Escrow Holder having received the documents and monies required to be deposited into Escrow pursuant to this Agreement and Escrow having received no written notice by a party that a condition precedent to its obligation to close has not been satisfied, Escrow Holder shall be instructed by the parties hereto to do each of the following:
Duly record the Grant Deed and arrange for the delivery to the parties conformed copies thereof as soon as available.
Cause the Title Company to deliver the Title Policy to Buyer.
Time. Time is of the essence of this Agreement.
Real Estate Brokerage. Buyer and Seller each represent and warrant that they have not dealt with any other salesman, broker, or finder with respect to this transaction. Buyer and Seller represent and warrant that there is no broker, finder, or other intermediary of any kind with whom such party has dealt in connection with the transactions contemplated hereby, and each party agrees to indemnify, defend, and hold harmless the other with respect to such representation and warranty.
Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be deemed received (i) if hand delivered, then upon personal delivery to the party to whom the notice is directed, (ii) if sent by reputable overnight delivery service for next business day delivery and fee prepaid, then one (1) business day after delivery to the delivery service, (iii) if sent by facsimile or by e-mail, then the same business day if sent prior to 5:00 pm California time (or the next business day if sent after 5:00 pm California time), and provided that there has been no indication of failure of transmission (provided that, unless receipt has been confirmed, a confirmation copy of any such notice sent by e-mail shall also be sent by another method of delivery permitted pursuant to this Section 20), and (iv) if sent by mail, then three (3) business days following its deposit in the United States mail, postage prepaid, addressed to the applicable party as set forth in Section 1 above.
Attorneys’ Fees. If either party hereto prevails against the other in litigation concerning any part of this Agreement, such successful party shall be entitled to its reasonable attorney’s fees, including investigation and costs of discovery, and costs connected with such action in addition to all other recovery or relief.
Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties relating to the subject matter hereof and supersedes all prior agreements, representations and memoranda. No other representations, warranties or covenants have been made, relied upon or survive the execution of this agreement. The invalidity of any one of the covenants, agreements, conditions or provisions of this agreement or any portion thereof shall not affect the remaining portions hereof, and this agreement shall be construed as if such covenant, agreement, condition or provision had not been inserted herein. All modifications hereof shall be in writing signed by both Buyer and Seller.
Further Assurances. Seller and Buyer agree that at any time or from time to time after the execution of this Agreement and whether before or after the Close of Escrow they shall, upon request of each other, execute and deliver such further documents and do such further acts and things as are necessary in order to fully effect the purpose of this Agreement.
Survival. Except as may be otherwise specified herein, any representations or warranties made in this Agreement and any exhibit or amendment hereto shall survive the Close of Escrow.
Successors. The terms, covenants and conditions of this agreement shall be binding upon and shall inure to the benefit of the heirs, executors, administrators and assigns of the respective parties hereto.
Assignment. Seller may assign its rights hereunder so long as it covenants to remain responsible for the full performance hereof through Close of Escrow. Buyer may assign this Agreement and its rights and obligations hereunder (and under all of the documents and agreements to be executed at Closing hereunder (the “Collateral Documents”) with notice to Seller, but without obtaining Seller’s prior written consent, so long as the assignment (a) is to a corporation, partnership or limited liability company which (i) is controlled and substantially owned by Buyer or is an affiliate of Buyer, or (ii) results from the merger or consolidation with Buyer, or (b) is to any authorized Assignee under Section 11.1 of the Development Agreement or assigned provision of the Revised Development Agreement. In the event of an assignment of this Agreement by Buyer in accordance with the terms of this Paragraph, the assignor shall not be released from liability hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective successors and assigns. Except as expressly set forth hereinabove Buyer shall have no right to assign or otherwise transfer its right and interest under this Agreement without Seller’s prior written consent, which shall not be unreasonably withheld or delayed.
Governing Law. This agreement shall be governed by the laws of the State of California and any question arising hereunder shall be construed as determined according to such law.
Condemnation. In the event that, prior to the Close of Escrow, a governmental entity shall commence any action of eminent domain to take any portion or all of the Property, the Buyer, at Buyer’s sole and absolute discretion, shall be entitled to terminate and cancel this Agreement in which this Agreement shall be null and void and the Deposit along with any other funds deposited or transferred by Buyer to Escrow Holder shall be immediately returned to Buyer.
Meaning of Certain Words. Wherever appropriate in this Agreement, the singular shall be deemed to refer to the plural and the plural to the singular, and pronouns of certain genders shall be deemed to include either or both of the other genders.
Headings and Labels. All article and paragraph titles or captions, including the title of the Agreement, are for convenience only and shall not be deemed a part of this Agreement, nor carry any evidentiary value in any legal proceeding.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
Exclusivity. Except as otherwise expressly provided below, commencing on the Effective Date and continuing until Closing or termination of this Agreement, Seller shall not offer the Property or any interest therein for sale or lease to any other party, or negotiate, solicit, or entertain any offers to sell or lease the Property. Seller may issue on or more short term (i.e. daily, weekly or monthly) licenses authorizing use of all or a portion of the Property, including for parking purposes, provided the term of such license(s) shall not extend beyond the Closing.
Amendment. This Agreement shall expire and shall be of no further force or effect on the date which is thirty-six (36) months from the Effective Date hereof (“Expiration Date”); provided, however, City Manager may authorize 180-day extensions to the Expiration Date if the City has approved the Revised Development Agreement and the Buyer has made good faith efforts to obtain the first building permit for the Revised Project. If the Closing has not occurred on or before the Expiration Date, and the parties have not extended this Agreement by a written amendment hereto, this Agreement shall automatically terminate, and the Deposit shall be released to Seller as liquidated damages. Following release of the Deposit to Seller, the parties shall have no further obligation to one another and this Agreement, the Revised Development Agreement and any Collateral Documents shall be of no force or effect.
City Municipal Powers. Seller is entering into this Agreement in its proprietary capacity, and not in its governmental or regulatory capacity. Nothing in this Agreement shall be construed as restraining, impairing or restricting the City of Napa in its regulatory capacity, or granting any rights upon Buyer with respect to the use, occupancy, development, or operation of the Property or the Revised Project in a manner inconsistent with applicable law, including, without limitation, any required approvals issued by the City of Napa in its governmental or regulatory capacity or the required CEQA review conducted in conjunction therewith. This Agreement does not grant any development rights upon Buyer or any successor or assign, or require Seller to approve the Revised Project, in whatever form may be presented or modified in the future, and any such development shall be subject to all applicable provisions of the Municipal Code of the City of Napa, as well as state and federal law. (Signatures to Follow)
IN WITNESS WHEREOF the parties have executed this Agreement as of the Effective Date above.
EFFECTIVE DATE: _______ ___, 2025
BUYER: SELLER:
James F. Keller, a married man City of Napa, a California charter city By: By:
Its: Its:
ATTEST:
By:
Its: City Clerk
COUNTERSIGNED:
By:
Its: City Auditor
APPROVED AS TO FORM:
By:
Its: City Attorney
EXHIBIT “A”
Property Description
The land referred to in this Agreement is situated in the State of California, County of Napa, City of Napa, and is described as follows:
All of Lot 3 and a portion of Lot 4 in Block 23, as shown on the map entitled, “Plan of Napa City”, recorded November 28, 1853 in Book B of Deeds, page 433, Napa County Official Records, described as follows:
Commencing at the point of intersection of the Southeastern line of Second Street and the Northeastern line of Randolph Street, said point being also the most Western corner of said Lot 3; thence Southeasterly along the Northeastern line of Randolph Street 169.20 feet; thence Northeasterly at right angles 107.50 feet, more or less, to a point on the Southwestern line of the tract of land described in the deed to Elaine Berglund of record in Book 470 of Official Records, page 467, said Napa County Records; thence Northwesterly at right angles along said Southwestern line 49.2 feet, more or less, to a point on the Southeastern line of said Lot 3; thence Northeasterly along said line 12.5 feet, more or less, to the most Southern corner of Lot 1 in said Block 23; thence Northwesterly at right angles along the Southwestern line of said Lot 1 a distance of 120 feet, more or less, to a point on the Southeastern line of Second Street; thence Southwesterly along said Southeastern line 120 feet, more or less, to the point of commencement.
Excepting Therefrom, that portion thereof lying within the boundaries of the land upon which the party wall referred to in the deed from W. H. Young et ux to Edith Mildred Thibaut, dated May 17, 1920 and recorded May 18, 1920 in Book 129 of Deeds, page 58, said Napa County Records, is situated.
Napa County APN: 003-212-001
EXHIBIT “B”
FRANKLIN STATION PROJECT DESCRIPTION
This revised Franklin Station Project Description is for the Amended and Restated City Agreement No. C2017-037 entitled Agreement of Purchase and Sale and Joint Escrow Instructions for the City for the approximate 0.5+/- acres located at the southeast corner or Randolph and Second Streets, commonly known as Napa County APN: 003-212-001 (“Parking Lot Property”) related to the proposed hotel and residential development and restoration and related improvements to the former Franklin Station Post Office (“Franklin Station”).
On February 12, 2019 Developer and City of Napa entered into a Development Agreement (City Agreement C2019-036, “Development Agreement”) to rehabilitate the earthquake damaged Franklin Station Post Office building and construct on the Post Office Parcel and the neighboring “Ace Parcel” located at 819 Randolph Street, Napa, California a five-story, Upper Upscale hotel with a maximum of 163 rooms with ancillary retail and related amenities (“Post Office Redevelopment”), which contemplated the develop an automated parking structure not to exceed 60’ in height with ancillary improvements, including up to 7,000 square feet of ground floor retail/restaurant/commercial space on the Parking Lot Property and, collectively, with the Post Office Redevelopment, called the “Project”.
Although the Parking Lot Agreement and Development Agreement contemplated that the Parking Lot Property would be developed as a structured parking lot to facilitate parking for the Project and public parking as contemplated in the Development Agreement, that structured parking development is financially infeasible. As a result, developer has reconfigured and redesigned the Project and desires to replace the Parking Lot Agreement and revise the Development Agreement to facilitate a revised Project that will continue to rehabilitate the historic Post Office building, reconfigure the hotel portion of the Project and provide additional residential and commercial use opportunity in downtown Napa on the City Property (“Revised Project”).
To document the changes to the Project and description of the Revised Project including the use of the City Property for, including but not limited to, branded residential, residential, hotel, or associated mixed use or combination thereof and related accessory uses such as parking, the City and Developer shall have approved and executed a revised Development Agreement pursuant to Government Code section 65865 et seq. (“Revised Development Agreement”).
The key components of the Revised Project for purposes of the Agreement on the Parking Lot Property includes:
Hotel: An upper upscale hotel, residential condominium units or a combination thereof located at 1351 Second Street (Post Office Parcel) incorporating the post office structure consistent with the Development Agreement.
Residences: Residential condominium units, which may be occupied full time by the owner or placed into the prospective hotel’s reservation system for use as overnight accommodations. The units will be located on the Parking Lot Parcel and also may include the property located at 820 Randolph Street (Wine Country Box Unit Parcel), 809 Coombs Street (Young Building Parcel), and the Post Office Parcel.
Parking: The Parking Lot Property would no longer be developed as a structured parking lot to facilitate parking for the Project and provide public parking. Instead, parking for the Revised Project will be negotiated as part of the Revised Development Agreement. 18 020814.0001 4905-2949-2302.2 14
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EXHIBIT A
AMENDED AND RESTATED AGREEMENT NO. C2017-037
AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS (Surface Parking Lot at Southeast Corner of Second and Randolph) APN 003-212-001