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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 Richard G Rossi as trustee of the Rossi Survivor’s Trust (“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 0.6 miles of new 60 kilovolt (kV) overhead transmission line 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 of the Memorex Loop Project (“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 easements.
WHEREAS, Grantee wishes to acquire from Grantor, and Grantor wishes to sell to Grantee certain property rights, as more particularly described in Exhibit A (the “Easement”) for the Project upon the terms and conditions set forth herein.
WHEREAS, Grantee wishes to acquire from Grantor, and Grantor wishes to sell to Grantee certain property rights, as more particularly described in Exhibit A (the “Easement”) for the Project upon the terms and conditions set forth herein.
WHEREAS, Grantor and Grantee recognize that the 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 2191 Ronald St., APN: 224-67-023 located in the City of Santa Clara, California over which the Easement will cross.
1.2. Sale and Conveyance. Grantor shall se ll to Grantee and Grantee shall purchase from Grantor, all of the terms and conditions set forth in Articles 2 and 3 hereof, the Easement.
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ARTICLE 2
PURCHASE PRICE
2.1. Purchase Price . The purchase price (“Purchase Price”) for the Easement shall be Fifty Thousand and no/100 Dollars ($50,000.00).
2.2. Payment of Purchase Price. The purcha se price shall be payable all in cash upon close of Escrow (as defined below) in accordance with Section 4.2.
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 dated April 12, 2022, from First American Title Company (the “Title Report”). Grantee acknowledges and agrees that all exceptions are approved by Grantee (the “Approved Exceptions”).
3.1.2 Execution of Overhead Electric Ease ment Deed. Grantor shall be ready, willing and able to convey title to the Easement by Overhead Electric Easement Deed to Grantee in the form of Exhibit B attached hereto (the “Easement Deed”) subject only to the Approved Exceptions.
3.1.3 Deposit of Grant Deed. Grantor shall have deposited into Escrow (as defined below) the Overhead Electric Easement Deed as provided for in Section 4.1.1, conveying title to the Easement (subject to the Approved Exceptions) to the Grantee.
3.1.4 Title Insurance. The Title Compan y shall be prepared to issue an ALTA Standard Owner 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”).
3.1.5 Certificate of Acceptance. Grante e has obtained a resolution of the City Council of the City of Santa Clara authorizing recordation of the Overhead Electric Easement Deed and has deposited a properly executed Certificate of Acceptance into Escrow.
3.1.6 No Breach. There s hall be no material breach of any of Grantor’s representations, warranties, or covenants set forth in Article 5.
3.1.7 Documentary Deposit. Grantor and Grantee shall have each deposited into Escrow all materials required to be deposited under Article 4.
3.2. Grantee ’s Remedies.
3.2.1 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 any money deposited into Escrow by Grantee shall be returned to Grantee, and thereafter neither
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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.
3.2.2 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 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 and Escrow Agent 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.
3.3. Grantor ’s Remedies. 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 any amounts deposited into Escrow shall be returned to Grantee, 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 AND ESCROW
4.1. Deposits into Escrow. Grantee has established an escrow (the “Escrow”) with First American Title, 1850 Mt. Diablo Blvd., Suite 530, Walnut Creek, CA 94596. Attn.: Roni Sloan Loftin, telephone: (925) 927-2127 (the “Escrow Agent”). A copy of this Agreement, duly executed by both parties, shall be deposited therein within five (5) business days after the Effective Date. Subject to Section 4.2.2 below, this Agreement shall serve as escrow instructions to Escrow Agent, as escrow holder, for consummation of the purchase and sale contemplated hereby. Prior to or on the Closing Date, the Parties shall deposit the following into the Escrow:
4.1.1 Grantor. Grantor shall deposit the following into Escrow:
(a) The Overhead Electric Easement Deed, fully executed and suitable for recordation;
(b) If required by the Escrow Agent, 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
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(c) Such other documents and instruments as may be required by other provisions of this Agreement or may be reasonably required by Escrow Agent or otherwise to carry out the terms and intent of this Agreement.
4.1.2 Grantee. Grantee shall deposit the following into Escrow:
(a) Cash or immediately availabl e funds in the amount of the Purchase Price together with such additional cash in the amount necessary to pay Grantee’s share of closing costs and prorations, as hereinafter set forth; (b) An executed Certificate of Acceptance; 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 Agent or otherwise to carry out the term and intent of this Agreement.
4.2. Close of Escrow.
4.2.1 Closing Date. Escrow shall cl ose on or before the thirtieth (30th) day following execution of this Agreement by Grantee or upon such other date as is mutually agreed upon by Grantee and Grantor (the “Closing Date”).
4.2.2 Closing of Escrow. When the Conditions Precedent listed in Section 3.1 have been satisfied or waived by Grantee and Grantor and Escrow Agent has received all necessary cash and documents and is in a position to issue the Title Policy, as provided in Section 3.1.4, Escrow Agent shall immediately close Escrow as provided below (the “Closing”).
The parties to this Agreement shall cooperate with each other and the Escrow Agent in preparing and executing such further documents (including further escrow instructions) as may be reasonably necessary to close Escrow as contemplated by this Agreement; provided however, that in the event of any conflict between the provisions of this Agreement and any such further documents or escrow instructions, the terms of this Agreement shall control.
4.2.3 Procedure. Escrow Agent shall close Escrow as follows:
4.2.3.1 Record Deed. Date and reco rd the Overhead Electric Easement Deed in the Official Records of Santa Clara County.
4.2.3.2 Deliver Copies of Deed. Deliver one (1) certified copy of the recorded Deed to Grantee.
4.2.3.3 Pay to Grantor. Pay to Grantor the funds in Escrow equal to the Purchase Price, reduced only by the Grantor’s share of closing costs and prorations, as hereinafter set forth in Section 4.2.4 below.
4.2.3.4 Deliver Title Policy. Deliver the Title Policy to Grantee.
4.2.3.5 Closing Statement. Prepare and deliver to Grantee and Grantor one signed copy of the Escrow Agent’s closing statement showing all receipts and disbursements of the Escrow.
4.2.4 Closing Costs and Prorations.
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4.2.4.1 Closing Costs. Grantee and Grantor shall each pay its own attorney’s fees in connection with negotiating this Agreement and closing the Escrow. Grantee shall pay recording costs, if any, Escrow fees, 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. Richard G Rossi as trustee of the Rossi Survivor’s Trust is a trust, 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 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.
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 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. Construction of Project. Grantee will require its overhead transmission line contractor for the Project to undertake any drilling work within the Easement on Grantor’s
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property only on weekends. Grantee will provide Grantor with both the initial Project schedule for the drilling within the Easement and any updates to that schedule regarding drilling within the Easement. Grantee agrees that it shall require its contractor to restore any damages it causes to the Easment area, including asphalt and concrete. Once the pole is set in the Easement, the contractor will return the landscaping as close to its pre-construction appearance as possible, with the acknowledgment that there will then be a steel pole with a subsurface concrete foundation in it.
6.3. Binding on Successors. The terms, cove nants, and conditions herein contained shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.
6.4. 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.
6.5. 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.
6.6. 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.
6.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
6.8. 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.
6.9. Time. Time is of essence of every prov ision herein contained in this Agreement.
6.10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all counterparts shall constitute one agreement.
6.11. Survival. The terms, covenants and co nditions of Articles 5, 6, and 7 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 Grant Deed, and transfer of title.
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6.12. 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: Richard G Rossi, Trustee
Attention: Richard G Rossi
14046 Apricot Hill
Saratoga, CA 95070
Telephone: 408-727-0185
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.
IN WITNESS WHEREOF, the parties hereto have executed one (1) or more copies of this Agreement, on the date(s) set forth below, effective as of the day and year first above written (“Effective Date”).
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GRANTOR
Richard G Rossi as trustee
of the Rossi Survivor’s Trust,
a California trust
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 A
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EXHIBIT B
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