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AGREEMENT FOR PURCHASE AND SALE
(UTILITY EASEMENT)
THIS AGREEMENT FOR PURCHASE AND SALE (this “Agreement”) is made and entered into by and between CITY OF SANTA CLARA (“Grantee” or “City”) and JB MANUFACTURING, LLC, a California limited liability company (“Grantor”) with regard to the purchase and sale of certain property interests, upon the terms and conditions set forth herein.
Grantee and Grantor are referred to collectively herein as the “Parties” and individually as a “Party.”
RECITALS
WHEREAS, the City of Santa Clara’s Electric Utility, Silicon Valley Power (“SVP”), plans to construct approximately 0.6 miles of new 60 kilovolt (kV) overhead transmission line (hereafter, the “Project”) along Shulman Avenue, Memorex Drive, Ronald Street, Di Giulio Avenue and Lafayette Street within the northwestern area of the City of Santa Clara. SVP’s primary objective for the Project is to increase system capacity and reliability.
WHEREAS, the Project will involve the placement of multiple new monopole steel structures and/or replace existing wood pole structures and result in either the expansion of existing electric overhead and wire clearance easements or the acquisition of new electric overhead and wire clearance easements.
WHEREAS, to construct and maintain a portion of the Project, Grantee needs to acquire from Grantor certain easement rights, which Grantee has the power to acquire through the exercise of its power of eminent domain.
WHEREAS, to avoid the necessity of an eminent domain proceeding, and to facilitate the construction and maintenance of a portion of the Project, Grantee wishes to acquire from Grantor, and Grantor wishes to sell to Grantee, certain easement rights (hereafter, the “Easement”) as more particularly described in the form of Overhead Electric Easement Deed attached hereto as Exhibit “I”, upon the terms and conditions set forth herein.
WHEREAS, Grantor and Grantee recognize that the purchase of the Easement is subject to approval of the City Council of the City of Santa Clara (hereafter, the “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 this 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 owner of certain real property commonly known as 2122 Ronald Street, Santa Clara, CA 95050, APN: 224-66-003, located in the City of Santa Clara, California, over which property the Easement will cross.
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1.2. Sale and Conveyance. Grantor shall sell to Grantee and Grantee shall purchase from Grantor, subject to all of the terms and conditions hereof, the Easement.
1.3. Effective Date. This Agreement shall become effective on the date this Agreement is counter-executed by Grantee (the “Effective Date”); provided, however, that Grantee shall deliver a copy of such counter-executed Agreement to Grantor within three days of such date.
1.4. Title. Grantee has obtained from First American Title Company (the “Title Company”) a preliminary title report dated March 22, 2022 (hereafter, the “Title Report”), and Grantee shall promptly deliver to Grantor a true, correct and complete copy of the Title Report. Grantee irrevocably acknowledges and agrees that all exceptions listed or contained in the Title Report (collectively, the “Approved Exceptions”) have been and are approved by Grantee.
ARTICLE 2
PURCHASE PRICE
2.1. Purchase Price. The purchase price for the Easement shall be Fifteen Thousand and no/100 Dollars ($15,000.00) (the “Purchase Price”).
2.2. Payment of Purchase Price. The Purchase Price shall be payable in full in cash upon close of Escrow (as defined below) in accordance with Section 4.3.
ARTICLE 3
CONDITIONS TO PURCHASE AND SALE
3.1. General Conditions Precedent to Purchase and Sale. The obligation of Grantee to purchase the Easement, and the obligation of Grantor to sell the Easement, are each expressly conditioned upon the satisfaction, at or prior to closing, of the following condition set forth in this Section 3.1.
3.1.1 Approval by City Council. The City Council shall have passed a resolution authorizing the purchase of the Easement and the recordation of the Easement Deed.
3.2 Grantee’s Conditions Precedent to Closing. The obligations of Grantee to consummate the Closing herein provided for shall be subject to the following conditions precedent, any one or more of which may be waived by Grantee:
3.2.1 Title Insurance. The Title Company shall be prepared to issue an ALTA Standard Owner’s Policy of Title Insurance in the amount of the Purchase Price insuring title to the Easement vested in Grantee, subject only to the Approved Exceptions (the “Title Policy”).
3.2.2 Deposit of Overhead Electric Easement Deed. Grantor shall have deposited into Escrow (as defined below) an Overhead Electric Easement Deed in the form of Exhibit “B” attached hereto (the “Easement Deed”), fully executed and in recordable form, conveying title to the Easement (subject to the Approved Exceptions) to Grantee.
3.2.3 No Breach. At and as of the Closing (as defined in Section 4.3.2), there shall be no material breach of any of Grantor’s representations, warranties, or covenants set forth in Article 5.
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3.2.4 Delivery of Documents. All documents and instruments required to be delivered by Grantor at or prior to the Closing shall have been delivered or shall be tendered at the Closing.
3.3. Grantor’s Condition Precedent to Closing. The obligations of Grantor to consum- mate the Closing herein provided for shall be subject to the following condition precedent, which may be waived by Grantor:
3.3.1. Delivery of Title Report, Funds and Documents. Grantee shall have delivered to Grantor or Grantor’s attorney a true, correct and complete copy of the Title Report at or before the tenth (10th) day following the Effective Date, and all funds, as well as all documents and instruments, required to be delivered by Grantee at or prior to the Closing shall have been delivered or shall be tendered at the Closing.
3.4. Grantee’s Remedies.
3.4.1 Conditions Precedent. If any one or more of the conditions precedent listed in Section 3.2 is 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 by delivering to Grantor written notice of such termination specifying the reason therefor. Upon such termination, any money deposited into Escrow by Grantee shall be distributed as follows: first to Escrow Holder in an amount equal to Escrow Holder’s fees and charges, if any, with respect to the Escrow, with the remainder returned to Grantee; and thereafter neither Party shall have any further rights, obligations or liabilities hereunder except to the extent, if any, that any such right, obligation or liability set forth herein expressly survives termination of this Agreement.
3.4.2 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 written notice to Grantor specifically setting forth the nature of said failure or default and stating that Grantor shall have a period of ten (10) calendar days to cure such failure or default. If Grantor has not cured such failure or default within such period (or, if such failure or default is not capable of being cured within ten (10) calendar days, Grantor either has not commenced such cure in good faith within such period or does not diligently thereafter complete such cure within thirty (30) days), 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 delivering written notice to Grantor and Escrow Holder to that effect, in which event any money deposited into Escrow by Grantee shall be distributed in the manner set forth in Section 3.4.1 above.
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.
3.5. Grantor’s Remedies.
3.5.1. For Failure to Deliver Documents. If all documents and instruments identified or referred to in Section 3.3.1 are not delivered or tendered by Grantee at or prior to the Closing, Grantor shall have the right either to waive the delivery in question and proceed
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with the sale of the Easement pursuant to all of the other terms of this Agreement, or, in the alternative, to terminate this Agreement by delivering to Grantee written notice of such termination specifying the reason therefor. Upon such termination, any money deposited into Escrow by Grantee shall be distributed as follows: (a) first to Escrow Holder, in an amount equal to Escrow Holder’s fees and charges, if any, with respect to the Escrow, (b) next to Grantor, in an amount equal to the sum of all reasonable and documented notary fees, signing agent fees and courier or delivery costs incurred by Grantor in connection with Grantor’s execution, acknowledgement and delivery of the Easement Deed, and (c) the remaining balance shall be returned to Grantee; and thereafter neither Party shall have any further rights, obligations or liabilities hereunder except to the extent, if any, that any such right, obligation or liability set forth herein expressly survives termination of this Agreement.
3.5.2. For Failure to Deliver Funds. If Grant ee fails to deliver at or prior to the Closing all funds required to be delivered by Grantee at or prior to the Closing, Grantor shall have the right to give written notice to Grantee specifically setting forth the nature of said failure and stating that Grantee shall have an additional period of time, but not less than ten (10) calendar days, to cure such failure. If Grantee does not cure such failure within such period, Grantor may terminate this Agreement by delivering written notice to Grantee and Escrow Holder to that effect, in which event any money deposited into Escrow by Grantee shall be distributed in the manner set forth in Section 3.5.1 above.
ARTICLE 4
CLOSING AND ESCROW
4.1. Escrow Holder; Joint Escrow Instructions. Grantee has established an escrow (the “Escrow”) with First American Title, 1737 North First St., #110, San Jose, CA 95112 (the “Escrow Holder”), Escrow Officer Luisa Sosa, telephone: (408) 451-7996. A copy of this Agreement, duly executed by both Parties, shall be deposited therein by Grantee within five (5) business days after the Effective Date. The following provisions, or applicable portions thereof, of this Agreement constitute the joint escrow instructions of the Parties to Escrow Holder, which Escrow Holder is to use along with any additional mutual instructions to close the escrow: Article 1, Article 2, Article 3, Article 4 and Article 6. The Parties will receive Escrow Holder’s general provisions, if any, directly from Escrow Holder, and will execute and deliver such general provisions within five (5) days after receipt thereof.
To the extent that such general provisions are inconsistent with or conflict with this Agreement, then (i) as to the duties and obligations of Escrow Holder only, the general provisions will control, and (ii) as to the rights and obligations of the Parties, this Agreement will control. The Parties will execute such additional instructions, documents and forms that may be provided by Escrow Holder and that are reasonably necessary to close the escrow; provided, however, that no such instruction, document or form shall alter any Party’s rights or obligations under this Agreement. Within three days after execution and delivery thereof, the Parties shall deliver to Escrow Holder a copy of any amendment, contract or other instrument that modifies or amends any of the provisions of this Agreement.
4.2 Escrow Deposits. Prior to or on the Closing Date, the Parties shall deposit the following into the Escrow:
4.2.1 Deliveries by Grantor. Grantor shall deposit the following into Escrow:
(a) The Easement Deed, fully executed and in recordable form;
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(b) If required by the Escrow Holder, 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 or as may be reasonably required by Escrow Holder or otherwise to carry out the terms and intent of this Agreement.
4.2.2 Deliveries by Grantee. Grantee shall deposit the following into Escrow:
(a) Cash or immediately available funds in the amount of the Closing Date Payment (as defined in Section 4.3.3.3 below) together with such additional cash or immediately available funds in the amount necessary to pay all closing costs and escrow fees and charges;
(b) A duly executed Certificate of Acceptance, substantially in the form of the Certificate of Acceptance attached hereto, certifying that the resolution required pursuant to Section 3.1.2 hereof has been duly adopted by the City Council; and (c) Such other documents and instruments as may be required by any other provision of this Agreement or as may reasonably be required by Escrow Holder or otherwise to carry out the term and intent of this Agreement.
4.3. Close of Escrow.
4.3.1 Closing Date. Escrow shall close on the thirtieth (30 th) day following the Effective Date or upon such other date as may be mutually agreed upon by Grantee and Grantor (the “Closing Date”).
4.3.2 Closing of Escrow. When the all of the Conditions Precedent listed in Article 3 have been satisfied or waived, and when Escrow Holder has received all necessary cash and documents and is in a position to issue the Title Policy as provided in Section 3.2.1, Escrow Holder shall immediately close Escrow as provided below (the “Closing”).
4.3.3 Procedure. Escrow Holder shall close Escrow as follows:
4.3.3.1 Record Deed. Date and record the Overhead Electric Easement Deed in the Official Records of Santa Clara County.
4.3.3.2 Deliver Copies of Deed. Deliver one (1) certified copy of the recorded Deed to Grantee.
4.3.3.3 Pay to Grantor. Pay to Grantor the funds in Escrow in an amount (hereafter, the “Closing Date Payment”) equal to the Purchase Price. Notwithstanding any provision herein to the contrary or in any other document, instrument or deliverable, ownership of and title to the Easement shall not transfer or pass to Grantee until the Closing Date Payment has been received in the account of Grantor by wire transfer of immediately available funds.
4.3.3.4 Deliver Title Policy. Deliver the Title Policy to Grantee.
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4.3.3.5 Closing Statement. Prepare and deliver to each of Grantee and Grantor a signed copy of the Escrow Holder’s closing statement showing all receipts and disbursements of the Escrow.
4.3.4 Closing Costs. Each Party shall each pay its own legal fees and other expenses incident to the negotiation and preparation of this Agreement, regardless of whether the transactions contemplated hereby are consummated. Grantee shall pay all closing costs and all costs and expenses of escrow, including without limitation the following: (a) all recording costs (if any), (b) all recording fees (if any), (c) all escrow fees and charges, (d) the title insurance premium, and (e) all transfer taxes (if any).
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. Grantor is a California limited liability company, duly organized, validly existing and in good standing under the laws of the State of California 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 its obligations arising under this Agreement and such performance does not conflict with any obligations of the Grantor. The individual(s) 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; Litigation. 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 actual 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 has 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 No Existing Lease. There are no contracts 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.
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
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Council and that this Agreement shall have no force or effect 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. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and assigns, except that no Party hereto may assign its rights hereunder without the prior written consent of the other Party. No assignment of all or any portion of this Agreement shall release or relieve the Parties hereto of any liability hereunder and such Parties shall remain primarily liable hereunder.
6.3. Entire Agreement. This Agreement, including all exhibits, contains the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing signed by duly authorized representatives of the Party or Parties to be charged.
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, 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 attorney’s 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 $5,000, 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 every provision herein contained in this Agreement.
6.9 Execution in Counterparts; Facsimile, PDF or Electronic Signatures. This Agreement may be executed by original, facsimile, PDF or electronic signatures, and in two or more counterparts, each of which shall be deemed an original, but all of which together shall
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constitute one and the same instrument. Facsimile, PDF or electronic signatures shall be treated as original signatures. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.
6.10. Survival. The terms, covenants and conditions of Articles 5 and 6 shall remain true and correct as of the Closing Date, shall be deemed to be material and shall survive the execution and delivery of this Agreement, the delivery of the Easement Deed and the recordation thereof.
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 against receipt, or sent 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: JB Manufacturing, LLC
Attention: Barbara Plata
1875 Saint Marks Ct.
Morgan Hill, CA 95037
Telephone: 408-476-0247
with a copy, given in the
manner prescribed above, to: Nopar & Associates
530 Lytton Avenue, Suite 200
Palo Alto, California 943011541
Attn: Alan S. Nopar, Esq.
Telephone: 650-328-7300
To Grantee: City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Attn: City Manager
Telephone: 408-615-2210
with a copy, given in the
manner prescribed above, 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 personal delivery 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 five (5) 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.
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6.12. Further Assurances. Each of the parties hereto shall execute and deliver all such other instruments and take all such actions as any party may reasonably request from time to time in order to effectuate the purposes of this Agreement and the transactions provided for herein.
6.13. Provisions Severable. The prov isions of this Agreement are independent of and severable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
6.14 Number of Days. In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays and holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or holiday, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or holiday.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed effective as of counter-execution by Grantee’s authorized signing official shown as follows:
GRANTOR
JB Manufacturing, LLC,
a California limited liability company
By:
Title:
Date: ________________________, 20___
GRANTEE
City of Santa Clara,
a municipal corporation
By:
Title:
Date of Grantee’s Counter-Signature
(Effective Date of Agreement):
__________________________, 20___
APPROVED AS TO FORM
Office of the City Attorney
City of Santa Clara
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EXHIBIT “I”
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