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AGREEMENT FOR PURCHASE AND SALE
(UTILITY EASEMENT)
THIS AGREEMENT FOR PURCHASE AND SALE (“Agreement”) is made and entered into as of _____________________, 20__ (the “Effective Date”) by and between CITY OF SANTA CLARA (“Grantee” or “City”) and INTEL CORPORATION, a Delaware corporation (“Grantor”) with regard to the purchase and sale of certain property interests, upon the terms and conditions set forth herein.
RECITALS
WHEREAS, The City of Santa Clara’s Electric Utility, Silicon Valley Power (“SVP”), plans to construct approximately 0.2 miles of new circuit 60 kilovolt (kV) overhead electric transmission lines along the Bayshore Freeway in the City of Santa Clara as part of its San Tomas Junction Project (“Project”). SVP’s primary objective of the Project is to increase system capacity and reliability.
WHEREAS, the Project will involve the placement of multiple new monopole steel structures and result in either the expansion of existing electric overhead and wire clearance easements or the acquisition of new easements.
WHEREAS, Grantee wishes to acquire from Grantor for the Project, and Grantor wishes to sell to Grantee, certain property rights as more particularly described and depicted in the Easement by Grant of Overhead Electric Easement and Agreement (the “Easement”) attached hereto as Exhibit 1, upon the terms and conditions set forth herein.
WHEREAS, Grantor and Grantee recognize that the purchase and sale of the Easement is subject to approval of the Santa Clara City Council and that this Agreement shall have no force or effect unless and until said City Council approval has been obtained, which approval shall be obtained before execution of the Agreement by Grantee.
NOW THEREFORE, in consideration of the mutual covenants and promises of the parties, the parties hereto agree as follows:
ARTICLE 1
PURCHASE
1.1. The Easement. Grantor is the fee ow ner of certain real property commonly known as 3600 Juliette Lane (APN: 104-39-021 & 104-39-018) located in the City of Santa Clara, California the (“Larger Parcel”) over which the Easement will cross.
1.2. Sale and Purchase. Grantor shall sell to Grantee and Grantee shall purchase from Grantor, upon all of the terms and conditions set forth in this Agreement, the Easement.
ARTICLE 2
PURCHASE PRICE
2.1. Purchase Price . The purchase price (“Purchase Price”) for the Easement shall be EIGHT HUNDRED FORTY SIX THOUSAND and no/100 Dollars ($846,000.00).
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The parties to this Agreement agree and compromise that the Purchase Price together with all other consideration set forth in this Agreement amounts and equates to the full and just compensation to Grantor, and Grantor’s successors and assigns, for Grantee’s acquisition of the Easement and damages to the remainder resulting from the acquisition of the Easement as well as the construction and use of the Project.
2.2. Payment of Purchase Price. The Purchase Price shall be payable in accordance with Section 4.3 of this Agreement (below).
ARTICLE 3
CONDITIONS TO PURCHASE AND SALE
3.1. Conditions Precedent to Purchase and Sale. The obligation of Grantee to purchase and Grantor to sell the Easement is expressly conditioned upon the satisfaction, prior to closing, of each of the conditions set forth in this Section 3.1 (the “Conditions Precedent”).
3.1.1 Title. Grantee has obtained a prel iminary title report from First American Title Company dated August 10, 2021 (the “Title Report”), a copy of which is attached as Exhibit 2. Grantee acknowledges and agrees that the Title Report (including all exceptions) is approved by Grantee (the “Approved Title Matters”).
3.1.2 Execution of Grant of Overhead Electric Easement and Agreement.
Grantor shall be ready, willing and able to grant the Easement to Grantee by executing in a recordable form the Easement subject only to the Approved Title Matters and other matters specified on the Easement Agreement.
3.2.1 Title Insurance. The Title Compan y shall be prepared to issue Easement Policy of Title Insurance in the amount of the Purchase Price insuring the grant of the Easement for the benefit of Grantee subject only to the Approved Title Matters (the “Title Policy”).
3.2.2 No Breach . There shall be no material breach of any of Grantor’s representations, warranties, or covenants set forth in Article 5.
3.3. Grantee ’s Remedies.
3.3.1 Conditions Precedent. If any of the foregoing Conditions Precedent which inure to the benefit of Grantee are not satisfied, Grantee shall have the right either to waive the condition in question and proceed with the purchase of the Easement pursuant to all of the other terms of this Agreement, or, in the alternative, to terminate this Agreement, and thereafter neither party shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement.
3.3.2 Default. If Grantor fails to perform any of its obligations or is otherwise in default under this Agreement, Grantee shall have the right to give notice to Grantor specifically setting forth the nature of said failure and stating that Grantor shall have a period of ten (10) calendar days to cure such failure. If Grantor has not cured such failure within such period (or, if such failure is not capable of being cured within ten (10) calendar days, Grantor either has not commenced in good faith the curing of such failure within such period or does not diligently
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thereafter complete such cure prior to the Closing Date, as may be extended under the terms of this Agreement), Grantee’s sole and exclusive remedy shall be one of the following:
(a) Waiver. Waive such failure and proceed to the Closing pursuant to all of the other terms of this Agreement; or
(b) Terminate. Grantee may terminate this Agreement by notice to Grantor to that effect. Nothing herein shall be deemed a waiver by Grantor of its right or ability to exercise its power of eminent domain to acquire the Easement after a termination of this Agreement.
3.4. Grantor ’s Remedies.
3.4.1 Conditions Precedent. If any of the foregoing Conditions Precedent which inure to the benefit of Grantor are not satisfied, Grantor shall have the right to either waive the condition in question and proceed with the sale of the Easement pursuant to all of the other terms of this Agreement, or, in the alternative, to terminate this Agreement, and thereafter neither party shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement.
ARTICLE 4
CLOSING
4.1. Delivery of Easement. Within ___ da ys following the date this Agreement is executed by all parties, Grantor shall deliver to Grantee all of the following:
(a) The Easement, fully executed and notarized, in a form suitable for recordation;
(b) If requested by Grantee, a FIRPTA Affidavit stating Grantor ’s U.S. taxpayer identification number and that the Grantor is a “United States person” as defined by Internal Revenue Code sections 1445(f)(3) and 7701(b); and (c) Such other documents and instruments as may be required by other provisions of this Agreement to carry out the terms and intent of this Agreement.
4.2. Recordation of Easement and Issuance of Title Policy. Upon receipt of the fully executed and notarized Easement, Grantee will promptly do the following:
(a) Record the Easement with Official Records of Santa Clara County at the Santa Clara County Recorder’s Office; and
(b) Once the Easement has been re corded, order a Title Policy from the Title Company.
4.3. Payment. Conditioned upon recordat ion of the Easement in the Santa Clara County Recorder’s Office and Title Company’s issuance of the Title Policy, Grantee will within ___ days following Grantee’s receipt of the Title Policy Pay Grantor by issuing a check in the amount of the Purchase Price made out to “Intel Corporation” and mailing it to Intel Corporation, 4500 S. Dobson Rd., Chandler, AZ 85248 Attention: Casaundra L. Elwood.
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4.4. Costs. Grantee shall pay recording co sts, if any, the title insurance premium, and any documentary transfer taxes.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1. Grantor ’s Representations and Warranties. Grantor represents and warrants to Grantee that the following matters are true and correct in all material respects as of the execution of this Agreement and will also be true and correct in all material respects as of the Closing:
5.1.1 Organization Authority. Intel Corporation is a Delaware corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware and has the full power and authority to execute and deliver this Agreement and all documents now or hereinafter to be executed and delivered by it pursuant to this Agreement and to perform all obligations arising under this Agreement and such performance does not conflict with any obligations of the Grantor. The individuals executing this Agreement and the instruments referred to herein on behalf of Grantor, have the legal power, rights and actual authority to bind Grantor to the terms and conditions hereof and thereof;
5.1.2 No Violation of Agreement; Litigati on. Neither the execution, delivery or performance of this Agreement by Grantor will result in the breach of any terms, conditions or provisions of, or conflict with or constitute a default under the terms of any indenture, deed to secure debt, mortgage, deed of trust, note, evidence of indebtedness or any other agreement or instrument by which Grantor or the Easement is bound. Grantor has no knowledge of any pending or threatened litigation, actions, applications, orders, protests, proceedings, or complaints against or affecting title to the Easement or Grantor’s interest therein;
5.1.3 Compliance with Laws. Grantor ha s received no written notice alleging violations of any federal, state or municipal laws or ordinances with regard to any portion of the Easement;
5.1.4 Existing Lease. There are no contra cts or agreements with respect to the occupancy of the Easement which will be binding upon Grantee after Closing; and
5.1.5 Grantor Not a Foreign Person. Grantor is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended.
5.2. As-Is. Except as expressly set forth in this Agreement, Grantee agrees to take the Easement "AS-IS, WHERE IS, AND WITH ALL FAULTS" without any representation or warranty of any kind or nature whatsoever, express or implied, and in the condition existing as of the date of this Agreement, subject to reasonable use, ordinary wear and tear, and without any reduction in or abatement of the Purchase Price.
ARTICLE 6
GENERAL PROVISIONS
6.1. Approval of City Council. Grantor and Grantee recognize that as of the execution of this Agreement by Grantor, this Agreement is subject to approval of the City Council of the City of Santa Clara and that this Agreement shall have no force or effect
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unless and until said City Council’s approval has been obtained, but such approval shall be obtained before execution of this Agreement by Grantee.
6.2. Binding on Successors. The terms, covenants, and conditions herein contained shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.
6.3. Entire Agreement. This Agreement including all exhibits hereto contains all of the covenants, conditions, and agreements between the parties and shall supersede all prior correspondence, agreements, and understandings both verbal and written. No addition or modification of any term or provision shall be effective unless set forth in writing and signed by both Grantor and Grantee.
6.4. Brokers’ Fees. Grantor and Grantee each represent and warrant to the other that, there are no brokers’ fees or finders’ fees arising out of this transaction and each shall indemnify, defend, and hold the other harmless from any claim, loss, cost, damage or expense including, without limitation, reasonable attorneys’ and experts’ fees and costs and court costs arising out of or incurred in connection with any claim by any other broker, finder or other person or entity for any brokerage commission, finder’s fee or other amount in connection with any acts or dealings with such indemnifying party with any such broker, finder or other person or entity.
6.5. Attorney’s Fees. In the event either party to this Agreement institutes an action to interpret or enforce the terms hereof, or to obtain money damages, the prevailing party, as determined by the court (whether at trial or upon appeal) shall be entitled to recover from the other, in addition to costs and judgment as awarded by the court, its reasonable attorneys’ fees incurred therein. The prevailing party shall include, without limitation, a party who dismisses an action or proceeding for recovery hereunder in exchange for consideration substantially equal to the relief sought in the action or proceeding. In no event shall an attorney’s fee award exceed $10,000, whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions.
6.6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
6.7. Captions. All captions and headings in this Agreement are for the purposes of reference and convenience and shall not limit or expand the provisions of this Agreement.
6.8. Time. Time is of essence of ev ery provision herein contained in this Agreement.
6.9. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all counterparts shall constitute one agreement.
6.10. Survival. The terms, covenants and conditions of Article 5 shall remain true and correct as of the Closing Date, shall be deemed to be material and shall survive the execution of this Agreement, the delivery of the Easement, and recording of the Easement for a period of twelve (12) months.
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6.11. Notices. All notices, requests or other communications required or permitted to be given in connection with this Agreement shall be in writing and shall be personally delivered (with prompt confirmation by registered or certified mail, postage prepaid), or by commercial courier service, or by registered or certified mail, postage pre-paid, addressed to the party whom it is directed at the following addresses, or at such other addresses as may be designated by notice from such party in the manner provided herein:
To Grantor: Intel Corporation
Attention: Casaundra L. Elwood
4500 S. Dobson Rd.
Chandler, AZ 85248
Telephone: 480-723-7898
To Grantee: City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Attn: City Manager
Telephone: 408-615-2210
With a copy to: City of Santa Clara City Attorney ’s Office 1500 Warburton Avenue
Santa Clara, CA 95050
Attn: City Attorney
Telephone: (408) 615-2230
Notices which are delivered by hand shall be deemed received upon delivery; notices which are deposited in the United States Mail in accordance with the terms of this Section shall be deemed received three (3) days after the date of mailing and notices delivered by commercial courier service shall be deemed received the date of actual delivery. The foregoing addresses may be changed by notice to the other party as herein provided.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed one (1) or more copies of this Agreement, on the Effective Date.
GRANTOR
Intel Corporation,
a Delaware corporation
By:
Title:
Date:
GRANTEE
City of Santa Clara,
a municipal corporation
By:
Title:
Date:
APPROVED AS TO FORM
Office of the City Attorney
City of Santa Clara
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EXHIBIT 1
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Exhibit 2
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