{CW139258.9} Purchase & Sale Agreement
PURCHASE AND SALE AGREEMENT FOR REAL PROPERTY
THIS PURCHASE AND SALE AGREEMENT FOR REAL PROPERTY
(“Agreement”) is entered into as of ________________________________, by and between PAUL B. DRAPER and TERESA J. DRAPER, Trustees, DRAPER 2008 REVOCABLE TRUST and DEBORAH A. FANTAZIA, Trustee, FANTAZIA REVOCABLE TRUST (collectively “Seller”), and the CITY OF PATTERSON, a California municipal corporation (“City” or “Buyer”). Seller and Buyer may be referred to herein as a “Party” or collectively as the “Parties.” There are no other parties to this Agreement.
RECITALS
A. Seller owns a parcel of real property located in the City of Patterson, Stanislaus County, California, Assessor’s Parcel Number 047-026-026, as more particularly described in Exhibit A attached hereto (the “Property”).
B. Buyer desires to acquire the Property for construction of a storm basin and sports complex, in accordance with the Villages of Patterson Master Plan adopted by City in June 2007.
C. Seller wishes to convey the Property, and Buyer wishes to acquire the Property, subject to the terms and conditions set forth herein.
D. On ________________, 2024, by Resolution No. __________, the City of Patterson City Council authorized the City Manager to execute this Agreement, and to take all acts necessary and incidental to complete the transaction described in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
Section 1. Effective Date. The “Effective Date” of this Agreement will be the date on which both Parties have executed this Agreement. This Agreement will not be effective unless the City Council, by resolution, has approved this Agreement and has authorized the City Manager to execute this Agreement.
Section 2. Sale of Property to Buyer. Seller agrees to convey the Property to Buyer, subject to the terms and conditions set forth herein. The Property conveyance includes all of Seller’s rights, title, and interest to the Property, including but not limited to, all water rights, mineral rights, easements, and other property rights related to the Property. Seller will convey the Property to Buyer by grant deed.
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Section 3. Purchase Price. The purchase price for the Property shall be One Million One Hundred Eighty-Six Thousand and Nine Hundred Dollars ($1,186,900.00) (“Purchase Price”).
Section 4. Escrow.
(a) Opening of Escrow. Promptly after the Effective Date, Seller and Buyer will open an escrow with an “Escrow Agent” to carry out the terms of this Agreement. (b) Title Report. Within five (5) days after opening of escrow, the Escrow Agent will deliver to Seller and Buyer a preliminary title report, together with legible copies of all documents referenced therein as exceptions to title (the “Title Report”). The costs of the Title Report shall be split equally between Buyer and Seller.
(c) Escrow Forms and Documentation. The Parties will promptly deposit all funds and documents as required by the Escrow Agent to complete this transaction, including fully executed counterpart originals of this Agreement. The Parties agree to be bound by the Escrow Agent’s standard forms or general provisions, as may be required to complete this transaction. This Agreement will control in the event of any inconsistency between this Agreement and the Escrow Agent’s standard forms, general provisions, or any other documentation required by the Escrow Agent.
(d) Escrow Agent Duties. At Closing, the Escrow Agent will effectuate the transfer of Property by doing the following: (i) Recording the grant deed, subject to any modifications approved by Buyer and Seller; (ii) Providing a closing statement setting forth the Purchase Price, the allocation of Closing Costs (defined below), and all prorations and adjustments as provided in this Agreement; (iii) Delivering the Purchase Price to Seller, plus or minus any Closing Costs, adjustments and prorations; (iv) Delivering the Title Policy (defined below), as may be requested by Buyer; and (v) Recording all documents as may be necessary to clear title in accordance with the terms of this Agreement.
Section 5. Deposit. Within five (5) days after the Effective Date, Buyer will deposit Ten Thousand Dollars ($10,000) with the Escrow Agent (“Deposit”). The Deposit will become nonrefundable if Buyer elects to terminate this Agreement after expiration of the Diligence Period (defined below). Upon Closing, the Deposit will be credited toward the Purchase Price.
Section 6. Closing.
(a) Closing Date. Consummation of the transaction contemplated by this Agreement shall occur ninety (90) days from the Effective Date (“Closing” or “Closing Date”). The Escrow {CW139258.9} Purchase & Sale Agreement
Agent may cause the Closing to occur on an earlier or later date with the consent of both Seller and Buyer.
(b) Conditions Precedent. The following conditions must be met in order for Closing to occur (the “Conditions Precedent”):
(i) the Property must be in substantially the same condition at Closing as on the Effective Date;
(ii) all liens, encumbrances, and other charges against the Property not assumed by Buyer must be paid and discharged by Seller prior to Closing; (iii) no uncured material, adverse change to the title to the Property will have occurred since the Effective Date;
(iv) Seller will deliver exclusive possession of the Property to Buyer; and (v) Buyer and Seller will have complied with and otherwise performed their respective obligations set forth in this Agreement. Buyer and Seller may, by mutual agreement, extend the Closing as long as necessary to satisfy or waive the applicable Conditions Precedent and proceed with Closing.
Section 7. Closing Costs and Prorations.
(a) Closing Costs. The Parties shall split equally through the Escrow Agent all thirdparty escrow, title, transfer, recording, and similar Closing costs associated with this transaction (“Closing Costs”). All Parties shall pay their own legal, accounting, and other consultant fees, charges, and costs related to this Agreement.
(b) Prorations and Adjustments. Any ad valorem taxes, general and special taxes, and assessments on the Property will be prorated as of the Closing Date. All supplemental taxes, assessments, special taxes, or encumbrances levied on the Property after the Closing Date will be paid by Buyer.
Section 8. Diligence Period. If Buyer, in its sole discretion, for any reason or no reason at all, decides not to proceed with Closing within seventy-five (75) days of the Effective Date (“Diligence Period”), Buyer will have the right to terminate this Agreement by providing written notice to Seller. Upon such termination, the Deposit will be returned to Buyer, and Buyer will be responsible for all outstanding escrow costs as a result of entering into this Agreement. {CW139258.9} Purchase & Sale Agreement
Section 9. Seller Conditions to Closing. Seller’s obligation to convey the Property to Buyer is subject to the following conditions:
(a) Buyer providing the Deposit to the Escrow Agent.
(b) Buyer providing the balance of the Purchase Price to the Escrow Agent. (c) Buyer executing the following real estate disclosure documents provided by Seller:
Natural Hazards Disclosure Report, Agricultural Addendum, and Seller Agriculture Land Supplementary Questionnaire.
(d) Buyer executing such other documents and instruments as are customary and as may be reasonably requested by the Escrow Agent (and acceptable to Seller) to effectuate the Closing.
Section 10. Buyer Conditions to Closing. Buyer’s obligation to acquire the Property is subject to the following conditions:
(a) Seller providing to the Escrow Agent an executed grant deed conveying the Property to Buyer.
(b) Seller providing the following real estate disclosure documents to Buyer: Natural Hazards Disclosure Report, Agricultural Addendum, and Seller Agriculture Land Supplementary Questionnaire. The disclosure forms shall be provided by the Escrow Agent, to the extent possible. The costs of supplying or producing the disclosure documents shall be borne by Seller.
(c) Buyer’s review of title to the Property as shown on the Title Report. Buyer shall inform Seller of any exceptions to title that are objectionable within fifteen (15) days of receiving the Title Report. Seller’s refusal to remove any exceptions from title requested by Buyer shall be cause for termination of this Agreement. The Parties may agree to extend the Closing as may be necessary to allow for removal of the exceptions requested by Buyer.
(d) Buyer’s ability to obtain title insurance for the Property to Buyer’s satisfaction (“Title Policy”).
(e) Seller executing such other documents and instruments as are customary and as may be reasonably requested by the Escrow Agent (and acceptable to Buyer) to effectuate the Closing.
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Section 11. Inspection of the Property.
(a) Tests. Buyer and Buyer’s authorized agents, contractors, employees, and designees (“Buyer’s Agents”) will have the right during the Diligence Period to go upon the Property for the purpose of making such surveys, soil, engineering, geological, environmental and other tests, inspections, and measurements (the “Tests”). The Tests shall include inspections for “Hazardous Substances” (referring to any substance that is toxic, ignitable, reactive, or corrosive; or that is regulated by any federal, state, or local government; or that is defined as “hazardous” pursuant to federal, state, or local government law.) All Tests will be at the sole cost and expense of Buyer.
Buyer shall provide Seller with copies of all Tests. Buyer will give reasonable advance notice to Seller of any Tests that Buyer or Buyer’s Agents will perform. The notice will specify the nature of the Tests to be performed, the approximate date and time the Tests will be performed, and the person or entity performing the Tests. Buyer will repair any damage to the Property caused by Buyer’s inspection activities.
(b) Property Documents. During the Diligence Period, Seller will make available to Buyer for Buyer’s inspection, within five (5) days after Buyer’s written request, all documents and information in Seller’s possession or control pertaining to the Property, including but not limited to, any and all leases, liens, tentative and final maps, surveys, plats, title reports, soil reports, assessment or property tax documentation, environmental studies, entitlement documents, or land or building improvements made during Seller’s time on the Property (collectively, the “Property Documents”). Seller will not be obligated to disclose to Buyer any appraisal or opinions of the value of the Property, any of Seller’s internal financial analyses, or materials relating to Seller’s cost to acquire the Property. Buyer acknowledges that the Property Documents are furnished to Buyer solely as a courtesy. Seller is not responsible for verifying the accuracy of any statements or other information contained in those documents. Seller will retain and collect all originals or copies of the Property Documents.
Section 12. Hazardous Substances. Upon Closing, Buyer shall assume liability for any and all claims, charges, damages, fines, judgments, penalties, costs, liabilities, or losses (including, without limitation, any and all sums paid for attorney, consultant, and expert fees) in connection with federal, state, or local environmental laws, regulations, and requirements related to Hazardous Substances on the Property, including any investigation, cleanup, removal, or restoration of the Property mandated by federal, state, or local agencies or political subdivisions. {CW139258.9} Purchase & Sale Agreement
Section 13. Representations and Warranties.
(a) Seller Representations and Warranties. The following representations and warranties are made to the best of Seller’s knowledge. Buyer is advised to conduct appropriate inspections as to the condition of the Property. Seller makes the following representations:
(i) Buyer is advised that this transaction constitutes an “AS-IS” sale of the Property, with no warranties from Seller to Buyer. Buyer will receive the Property in its current condition, and Seller will have no responsibility to prepare the Property in any way for Buyer.
(ii) Seller has the right, power, and authority to enter into this Agreement and sell the Property in accordance with these terms; each of the persons executing this Agreement on behalf of Seller is authorized to do so; and this Agreement constitutes a valid and legally binding obligation of Seller, enforceable in accordance with its terms.
(iii) During Seller’s ownership, no contracts have been granted to others to purchase or to lease any interest in the Property or any part thereof or which will survive Closing or otherwise impose an obligation on Buyer, except the Agricultural Gound Lease effective January 1, 2024 (“Agricultural Ground Lease”), between Seller and David Fantozzi, individually and dba David Fantozzi Farms (“Lessee”), which shall terminate on the earlier of November 1, 2024 or the Closing Date. Seller agrees to provide Buyer with an executed copy of the Agricultural Ground Lease. Seller shall inform the Lessee of this Agreement and ensure that the Lessee is removed from the Property, at such time that Buyer requires exclusive possession of the Property. Seller shall indemnify, defend, and hold Buyer harmless from any costs, claims, or liabilities associated with removing the Lessee from the Property. Buyer and the Lessee may mutually agree to enter into a new agricultural ground lease upon transfer of the Property to Buyer.
(iv) Seller has not filed, or not been the subject of any bankruptcy or insolvency proceeding, which affects Seller’s ability to convey the Property to Buyer. (v) Seller has no actual knowledge of any violation of governmental laws, regulations, or orders relating to the Property.
(b) Buyer Representations and Warranties. The following representations and warranties are made as to the best of Buyer’s knowledge. Buyer makes the following representations and warranties:
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(i) Buyer has the right, power, and authority to enter into this Agreement and to acquire the Property in accordance with the expressed terms and conditions hereof.
(ii) Each of the persons executing this Agreement on behalf of Buyer is authorized to do so.
(iii) This Agreement constitutes a valid and legally binding obligation of Buyer, enforceable in accordance with its terms.
The above representations and warranties are made by each Party with the knowledge and expectation that the other Party is placing complete reliance thereon, and such warranties will survive Closing. Neither Party will cause or permit any action to be taken which, to the best of that Party’s knowledge, will cause any of its representations or warranties to be untrue in any material respects upon Closing. Each Party agrees to indemnify, defend, and hold the other Party harmless from all liabilities, claims, losses, damages, costs, and expenses (including reasonable attorney’s fees and costs) in connection with a breach of these representations and warranties. This indemnification obligation will survive the Closing.
Section 14. Dispute Resolution. Any dispute arising out of or relating to this Agreement, or any alleged breach thereof, shall be first subject to a conference between the Parties within ten (10) days of receiving notice of the dispute, in an attempt to resolve the dispute. If the dispute is not settled by the conference, the Parties will endeavor to settle the dispute by mediation conducted in Stanislaus County, with each Party to bear its own attorney’s fees and costs and to share equally the costs of the mediation. The Parties agree to conclude the mediation within sixty (60) days of filing the request for mediation. Either Party may terminate the mediation at any time after the first session. If mediation does not resolve the dispute, then the Parties may exercise any remedies available to them under law. In the event any legal action is brought to enforce or interpret this Agreement, the prevailing Party in such action shall be entitled to recover its attorney’s fees in addition to any other relief to which that Party is entitled.
Section 15. Primary Representative; Notices. Any notice or communication required to be given in this Agreement between Buyer and Seller shall be delivered to that Party’s representative identified below. Notices or communications must be in writing, and may be given either personally, by registered or certified mail, by Federal Express, UPS, or other similar couriers providing overnight delivery, or by email (provided that in the event of default or dispute, such notice shall also be provided by one of the other methods specified herein). If personally delivered, a notice will be deemed to have been given when delivered to the Party to whom it is addressed.
If given by registered or certified mail, such notice or communication will be deemed to have been received on the first to occur of (a) actual receipt by any of the addressees specified below, or (b) {CW139258.9} Purchase & Sale Agreement
three (3) days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar courier, a notice or communication will be deemed to have been received on the date delivered as shown on a receipt issued by the courier. If given by email, such notice or communication will be deemed to have been received based on the date delivered as shown on the sent email. Any Party hereto may at any time, by giving ten (10) days’ written notice to the other Party hereto, designate any other address to which such notice or communication will be given. Notices or communications will be given to the Parties at their addresses set forth below:
If to Buyer: City of Patterson
584 S Main St.
Patterson, CA 95222
Attn: City Manager
Email: [email protected]
with copy to: White Brenner LLP
1608 T St.
Sacramento, CA 95811
Attn: Nubia Goldstein
Email: [email protected]
If to Seller: Paul B. Draper, Teresa J. Draper, and Deborah A. Fantazia 240 Pebble Beach Drive
Aptos, CA 95003
Attn: Paul Draper
Email: [email protected]
with copy to: Triebsch & Frampton, APC
P.O. Box 709
Turlock, CA 95381
Attn: J. Scott Dorius
Email: [email protected]
Section 16. Exhibits. The following Exhibits are hereby incorporated by this reference and made part of this Agreement:
Exhibit A: Legal Description of Property
Section 17. General Provisions.
(a) Recitals. The Recitals set forth above are hereby incorporated by this reference and made part of this Agreement. In the event of any conflict between the Recitals and Sections contained in this Agreement, the Sections will control. {CW139258.9} Purchase & Sale Agreement
(b) Amendment. No amendments to this Agreement will be effective unless such amendment is made in writing, signed by both Parties.
(c) Waiver. Waiver by any party of a breach of any provision of this Agreement must be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof, unless specifically stated in writing.
(d) Assignment. This Agreement may not be assigned without the non-assigning Party’s written consent, which may be withheld, conditioned, or delayed in the non-assigning Party’s sole discretion.
(e) Counterparts. This Agreement may be executed simultaneously and in several identical counterparts, each of which will be deemed an original, but which together will constitute one and the same instrument.
(f) Time is of the Essence. Time is of the essence with respect to the performance of this Agreement.
(g) Entire Agreement. This Agreement supersedes any prior agreements, negotiations, and communications, oral or written, and contains the entire agreement between Buyer and Seller as to the subject matter hereof.
(h) Law and Venue. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, and any action brought to interpret or enforce this Agreement will be in the County of Stanislaus.
(i) Calendar Days. Unless otherwise specified, all “days” referred to in this Agreement are calendar days.
(j) Mandatory and Permissive. “Shall” and “will” and “agrees” are mandatory. “May” and “can” are permissive.
(k) Further Acts. The Parties agree that they will cooperate in good faith to accomplish the objectives of this Agreement and to that end, agree to execute and deliver such other instruments or documents as may be necessary and convenient to fulfill the purposes and intentions of this Agreement.
(l) Joint Preparation. All Parties to this Agreement have negotiated it at length and have had the opportunity to consult with and be represented by their own competent counsel. Each provision of this Agreement will be construed as though all Parties participated equally in the {CW139258.9} Purchase & Sale Agreement
drafting of the same. Consequently, the Parties acknowledge and agree that any rule of construction that a document is to be construed against the drafting Party will not be applicable to this Agreement.
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{CW139258.9} Purchase & Sale Agreement
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date.
SELLER:
Fantazia Revocable Trust
By: __________________________
Deborah A. Fantazia, Trustee
Date: __________________________
Draper 2008 Revocable Trust
By: ____________________________
Paul B. Draper, Trustee
By: ____________________________
Teresa J. Draper, Trustee
Date: __________________________
BUYER / CITY:
City of Patterson,
a California municipal corporation
By: ____________________________
Fernando Ulloa, City Manager
Date: __________________________
ATTEST:
By: ____________________________
_________________, City Clerk
Date: __________________________
APPROVED AS TO FORM:
By: ____________________________
Nubia Goldstein, City Attorney
Date: __________________________
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ACCEPTANCE BY ESCROW AGENT:
___________________________ hereby acknowledges that it has received originally executed counterparts or a fully executed original of the foregoing Purchase and Sale Agreement of Real Property and agrees to act as the Escrow Agent thereunder and to be bound by and perform the terms thereof as such terms apply to the Escrow Agent.
Name of Escrow Company: _______________________________ Address: ______________________________________________ Signature: _______________________________
Print: ___________________________________
Its: Authorized Agent
Date: ___________________________________
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EXHIBIT A
Legal Description of Property
The real property situated on Olive Avenue, Patterson, Stanislaus County, California, more particularly described as follows:
Lot 51 as said Lot are laid down and delineated on that certain Map entitled “Map of Patterson Colony Sub-Trust No. 1”, in the County of Stanislaus, State of California, according to the Official Maps thereof filed in the office of the Recorder of Stanislaus County, California, on December 13, 1909 in Vol. 4 of Maps, at Page 40. EXCEPT THEREFROM that portion conveyed to City of Patterson, in Deed recorded September 3, 2003, as Document No 2003-0148664-00, Stanislaus County Records.
APN: 047-026-026