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P
URCHASE AND SALE AGREEMENT WITH ESCROW
INSTRUCTIONS FOR ASSESSOR PARCEL NUMBER 676-0-
070-070 BETWEEN THE CITY OF THOUSAND OAKS AND
HILLSIDES, A CALIFORNIA NON-PROFIT PUBLIC BENEFIT
CORPORATION, FORMERLY KNOWN AS CHURCH HOME
FOR CHILDREN OF THE PROTESTANT EPISCOPAL
CHURCH OF THE DIOCESE OF LOS ANGELES
T
HIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (“Agreement”) made and entered into this _____ day of November, 2024, by and between the CITY OF THOUSAND OAKS, a municipal corporation (herein referred to as “City”), and Hillsides, a California non-profit public benefit corporation, formerly known as Church Home for Children of the Protestant Episcopal Church of the Diocese of Los Angeles (“Seller”).
R
ecitals
A. Seller is the owner of approximately 0.75 acres of real property (“Property”) located in the City of Thousand Oaks, County of Ventura, California, more particularly described as follows: LOT 6, BLOCK 38, OF THE THOUSAND OAKS TRACT, IN
THE CITY OF THOUSAND OAKS, COUNTY OF VENTURA, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGE 67 OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; and illustrated on attached Exhibit A, which is incorporated into this Agreement by this reference.
B. Property consists of one legal lot (Assessor Parcel Number [APN] 676-0- 070-070 located in the Skyline Open Space.
C. City desires to purchase Property to preserve as open space.
D. Seller desires to sell Property to City on the terms and conditions of this Agreement.
Fi
ndings
City determines that entering into this Agreement to purchase Property for open space and the actual purchase of Property is categorically exempt from California Environmental Quality Act pursuant to CEQA Guidelines, 14 CCR Sections 15313 and 15325.
ATTACHMENT #4
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NOW THEREFORE for good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties agree as follows.
Section 1. Purchase and Sale
Seller agrees to sell, and City agrees to purchase the Property subject to the terms and conditions in this Agreement.
Section 2. Purchase Price
The purchase price for the Property shall be Thirty -nine thousand dollars ($39,000) ("Purchase Price") and shall be payable as follows:
A. Within ten (10) business days of the opening of escrow as described in Section 3 below, City shall deposit with Escrow Agent the sum of Three thousand nine hundred dollars ($3,900.00) as earnest money ("Deposit") and applied in accordance with the terms of this Agreement.
B. On or before the Closing Date, City shall deposit with Escrow Agent the balance of the Purchase Price in cash or in immediately available funds.
Section 3. Escrow
Within five (5) business days of full execution of this Agreement by the parties, City shall open an escrow (“Escrow”) with Chicago Title Company, Attn: Dori Mittner, 2945 Townsgate Rd. Suite #200, Westlake Village, CA 91361, Phone No. 805- 497-7430 and Fax No. 805- 230-8235 (“Escrow Agent”), subject to the provisions of the standard conditions for acceptance of escrow and the terms and conditions in this Agreement, with a signed counterpart of this document to be delivered as escrow instructions to Escrow Agent. In the event of any conflict between the terms of this Agreement and the standard conditions for acceptance of escrow, the terms of this Agreement shall control.
Section 4. Conditions to City’s Performance
City's obligation to perform under this Agreement is subject to the following conditions.
A. Seller conveying a marketable fee simple title to the property by Grant Deed pursuant to Section 8. B. 1, herein.
B. Seller's representations and warranties in this Agreement being correct as of the date of this Agreement and as of the Close of Escrow.
C. Seller’s Performance of all obligations under this Agreement.
D. Escrow Agent being prepared to issue the Title Policy on the Close of Escrow subject only to the Approved Exceptions.
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Section 5. Conditions to Seller's Performance
Seller's obligation to perform under this Agreement is subject to satisfaction of the following conditions.
A. City's performance of all the obligations which it is required to perform pursuant to this Agreement.
B. Escrow Agent's commitment to issue the Seller's Title Policy at the Close of Escrow subject only to the Approved Exceptions.
C. Escrow closing within 30 days of opening of escrow.
Section 6. Access
A. Access to Property shall be given to City, its agents, employees, or contractors during normal business hours upon at least one (1) business days’ notice to Seller, at his/her own cost and risk, for any purposes, including, but not limited to, inspecting P roperty and conducting an environmental audit (including an investigation of past and current uses of Property). To the extent that any damage is caused to the Property as a result of City’s or its agent’s, employee’s or contractor’s inspection, sampling or audit of the Property, the City shall restore the Property to the condition that existed prior to its inspection, sampling or audit. City shall indemnify and defend Seller against and hold Seller harmless from all losses, costs, damages, liabilities, and expenses, including, without limitation, reasonable attorney fees arising out of City's entry onto Property or any activity thereon by City or its agents, employees, or contractors prior to the Close of Escrow except to the extent any such losses, diminu tion in property value, costs, damages, liabilities, and expenses arise out of the negligence or willful acts of Seller , or the discovery of any condition of the Property not created by the City. Any third parties besides City employees or officers entering onto the Property shall have comprehensive general liability insurance with limits not less than $1,000,000 and shall name Seller as Additional Insured under said coverage prior to entry onto the Property.
Seller acknowledges that City is self-insured for one million dollars and such self- insurance satisfies the insurance requirements of this subsection. Any entry onto Property by City or its agents, employees, or contractors shall be at reasonable times. The provisions of this Section shall survive the Close of Escrow.
B. In addition to the provisions of Section 6.A, above, City and its agents, employees, or contractors shall have the right, from the date of this Agreement until the Closing Date, to contact any federal, state, or local governmental authority or agency to investigate any matters relating to Property. Seller agrees to cooperate reasonably with City and its agents, employees, or contractors in the inspection of Property.
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C. If, at any time before the Close of Escrow, the investigation(s) undertaken by the City in accordance with any provision of Section 6, reveals a condition unacceptable to the City, the City shall have the right to immediately terminate this agreement and shall be entitled to a return of the Deposit, less any amount authorized under this agreement for the initiation of escrow.
Section 7. Title
A. Immediately following the opening of Escrow, City shall cause Escrow Agent to issue to City (with a copy to Seller) a preliminary report for a California Land Title Association (“CLTA”) Owner's Policy for the Property, setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters affecting Seller's title to Property (“Preliminary Report”), together with copies of all documents relating to title exceptions referred to in the Preliminary Report.
B. City shall approve or disapprove each exception shown on the Preliminary Report and each encroachment, overlap, or boundary line dispute, or any other matter that materially and adversely affects title to Property or that violates any law, rule, or regulation (each an “Exception”) within ten (10) days following the receipt of the Preliminary Report. City’s failure to object within the ten- day period shall be deemed to be an approval of the Exceptions. The Exceptions approved by City hereunder shall be referred to as the “Approved Exceptions.”
C. If any Exception is disapproved (each a “Disapproved Exception”), Seller shall have the right, but not the obligation, within ten (10) days following expiration of the ten-day period provided under Section 7.B above, to cause each Disapproved Exception to be discharged, satisfied, released, or terminated, as the case may be, of record, and in a form that is reasonably satisfactory to City and Escrow Agent, all at Seller's sole cost and expense. Seller authorizes Escrow Agent to disburse from the cash portion of the Purchase Price and proceeds otherwise disbursable to Seller upon Closing the sum sufficient to discharge any Disapproved Exception that may be discharged only by the payment of money.
If Seller is unable or unwilling to obtain a discharge, satisfaction, release, or termination of any Disapproved Exception within the period specified above, then this Agreement shall automatically terminate ten (10) business days after expiration of the 10- day period for curing the Disapproved Exceptions or after Seller advises City in writing that Seller is unable or unwilling to cause such discharge, satisfaction, release, or termination, whichever occurs first, unless within such 10- business-day period City waives in writing such Disapproved Exception, in which event such Disapproved Exception shall be deemed an Approved Exception under this Agreement. If this Agreement terminates pursuant to the foregoing sentence, then City shall pay all charges of the Escrow Agent in connection with this transaction; and the parties shall be relieved of all further obligations and liabilities to each other under this Agreement except as otherwise provided herein, and all funds and documents deposited with Escrow Agent Purchase Agreement – APN 676-0-070-070Page 5 of 18
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shall be promptly refunded or returned, as the case may be, by Escrow Agent to the depositing party. Anything above to the contrary notwithstanding, it is understood and agreed that City's indemnity obligations under Section 6 above shall not terminate upon termination of this Agreement pursuant to this or any other provision hereof.
Section 8. Close of Escrow
A. Title. Simultaneously with the Close of Escrow, Escrow Agent shall issue:
1. An CLTA Owner's Policy of Title Insurance (“Title Policy”) in the amount of the Purchase Price, subject only to the following matters:
(a) Lien for real property taxes, bonds, and assessments not then due; and (b) Approved Exceptions.
B. Seller's Deposits into Escrow. Seller shall deposit with Escrow Agent on or prior to the Close of Escrow the following documents:
1. A grant deed executed and acknowledged by Seller conveying to City good and marketable fee simple title to the Property, subject only to the Approved Exceptions (“Deed”);
2. A Non-Foreign Person Affidavit under Section 1445 of the Internal Revenue Code of 1986, as amended (“FIRPTA Affidavit”); and
3. Either California Franchise Tax Board Form 593- C or 593- W regarding the withholding of California taxes on the sale of California real estate (“Withholding Affidavit”).
C. City's Deposits into Escrow. City shall deposit with Escrow Agent, on or prior to the Close of Escrow, the balance of the Purchase Price in accordance with Section
2.B.
D. Closing Date. The conveyance of the Property to City and the closing of this transaction (“Close of Escrow”) shall take place within 10 business days following the satisfaction of the conditions set forth in Sections 4 and 5 (“Closing Date”), or by the date specified in Section 5. C., whichever is earlier.
E. On the Closing Date, Escrow Agent shall close Escrow as follows:
1. Record the Deed (marked for return to City) with the Ventura County Recorder (which shall be deemed delivery to City);
2. Issue the CLTA Owner's Policy of Title Insurance;
3. Prorate taxes, assessments and other charges as provided in Section 8.
H;
4. Disburse to Seller the Purchase Price less prorated amounts and charges to be paid by or on behalf of Seller;
5. Charge City for those costs and expenses to be paid by City pursuant to this Agreement and disburse any net funds remaining after the preceding disbursements to City;
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6. Prepare and deliver to both City and Seller one signed copy of Escrow Agent's closing statement showing all receipts and disbursements of the Escrow; and
7. Deliver to City the Foreign Investment in Real Property Tax Act (“FIRPTA”) Affidavit, and the Withholding Affidavit.
F. If Escrow Agent is unable to simultaneously perform all of the instructions set forth in E, above, Escrow Agent shall notify City and Seller and retain all funds and documents pending receipt of further instructions jointly issued by City and Seller.
G. Prorations. Escrow Agent shall prorate the following costs at the Close of Escrow:
1. Seller shall pay:
(a) All governmental conveyance- related fees and taxes due upon transfer of the Property, except as same may be exempt as a result of the conveyance of the Property to an exempt public agency.
2. City shall pay:
(a) The recording charges, if any, in connection with recordation of the Deed;
(b) All charges in connection with issuance of a CLTA Standard Policy of Title Insurance in the amount of the Purchase Price, that portion of the premium for the Title Policy in excess of the premium for a CLTA Standard Policy of Title Insurance, and all endor sements requested by the City; and
(c) All escrow fees charged by Escrow Agent.
H. Real Estate Taxes, Bonds, and Assessments. Real property taxes shall be prorated at the Close of Escrow based on the most current real property tax bill available, including any additional property taxes that may be assessed after the Close of Escrow but that relate to a period prior to the Close of Escrow, regardless of when notice of those taxes is received or who receives the notice. Seller shall pay all installments of any bond or assessment that constitutes a lien on the Property at the Close of Escrow.
I. Possession. Possession of the Property shall be delivered to City at the Close of Escrow.
Section 9. Default
A. If the Closing does not occur by reason of any default by Seller, provided City is not also in material default hereunder (and City ’s failure to deposit funds and/or documents to close the transactions contemplated hereby shall be deemed a material default) and provided that City has provided Seller with written notice of such default and Seller fails to cure such default within three (3) Business Days after receipt of such notice, then City may, as its sole and exclusive remedy Purchase Agreement – APN 676-0-070-070Page 7 of 18
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terminate its obligation to complete its purchase of the Property, in which event City shall be entitled to the D eposit. The remedies provided in this Sect ion 9(A) are exclusive, and except as may be provided for above, City expressly waives, to the extent permitted by law, all other remedies, claims and causes of action (including any right to obtain lost profits or actual, consequential, special or any other damages from Seller) if the Closing does not occur by reason of any default by Seller. Notwithstanding the prior sentence, nothing herein shall limit City’s ability or right to collect attorney’s fees under Section 16 below.
B. If Escrow fails to close by reason of any default by City, Seller shall be entitled to retain the Deposit and all accrued interest as liquidated damages, and the Escrow shall be canceled and neither party shall have any rights or responsibilities to the other, except as otherwise provided in this Agreement. Notwithstanding the prior sentence, nothing herein shall limit Seller’s ability or right to collect attorney’s fees under Section 16 below.
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 (and any corresponding provisions of the laws of other jurisdictions, if applicable), but is intended to constitute liquidated damages to seller pursuant to California civil code sections 1671, 1676, and 1677 (and any corresponding provisions of the laws of other jurisdictions, if applicable).
The provisions of this section 9 shall survive any termination of this agreement.
Section 10. Seller’s Representations and Warranties
A. Seller represents and warrants to City that as of the date of this Agreement and, in all instances, to the best of Seller’s knowledge:
1. Seller has received no written notice, notice of violation, administrative complaint, judicial complaint, or other formal written notice alleging that conditions on the Property are or have been in violation of any Environmental Law, or informing Seller that the Property is subject to investigation or inquiry regarding Hazardous Substances on the Property or the potential violation of any Environmental Law.
2. Seller has no information, records, or studies in Seller's possession in connection with the Property concerning Hazardous Substances.
3. Seller has received no written notice that any condition on the Property violates any health, safety, fire, environmental, sewage, building, or other federal, state, or local law, code, ordinance, or regulation.
4. Seller has received no written notice of any threatened litigation, administrative proceeding, or other legal or governmental action with respect to the Property.
5. Seller has delivered no due diligence information to City regarding the Property.
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6. Seller has not caused any toxic or hazardous chemicals, waste, or substances of any kind to be spilled, disposed of, or stored on, under, or at the Property, whether by accident, burying, drainage, or storage in containers, tanks, or holding areas, or by any other means, and to the best of Seller’s knowledge, the Property is free from any Hazardous Substances.
B. Seller shall promptly notify City of any facts that would cause any of the representations contained in this Agreement to be untrue as of the Close of Escrow and shall deliver to City at the Close of Escrow a certificate ("Closing Certificate") confirming that the representations contained in this Agreement continue to be true as of the Close of Escrow. The obligations of City to consummate the transactions contemplated are conditioned upon the delivery by Seller of the Closing Certificate.
If City rea sonably concludes that a fact materially and adversely affects the Property, City shall have the option to terminate this Agreement by delivering written notice to Seller and Escrow Agent. If City terminates this Agreement pursuant to this Section, Escrow Agent shall, within five (5) days following receipt of City's notice to terminate, return to City the Deposit and all accrued interest, and cancel the Escrow.
As used in this Section 10) , the phrase “to the best of Seller’s knowledge” and similar expressions means the actual knowledge of Stacey Roth, without inquiry of any sort, who is the individual at Seller most knowledgeable about the Property, and without imputation of knowledge of others, and without any personal liability under or in connection with this Agreement. Similarly, receipt of written notice in connection with Seller’s representations and warranties under this Section means specifically, receipt of written notice by Hillsides, a California non -profit public benefit corporation within the twelve months immediately preceedin g the date of this Agreement.
Notwithstanding anything to the contrary in this Agreement, Seller shall have no liability, and Buyer shall make no claim against Seller, for (and Buyer shall be deemed to have waived any failure of a condition hereunder by reason of) a failure of any condition or a breach of any representation or warranty, covenant or other obligation of Seller under this Agreement or any closing document executed by Seller if the failure or breach in question constitutes or results from a condition, state of facts or other matter that was actually known to Buyer prior to the Closing and Buyer proceeds with the Closing.
C. As Is. Seller informs C ity that seller was only recently made aware that the property was donated to the seller, and seller has made no independent investigation of the property and has no knowledge regarding the property or its history. City acknowledges and agrees that, seller has not made, does not make and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, of , as to, concerning or with respect to (i) value; (ii) the income to be derived from the Purchase Agreement – APN 676-0-070-070Page 9 of 18
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property; (iii) the suitability of the property for any and all activities and uses which city may conduct thereon, including the possibilities for future development of the property; (iv) the habitability, merchantability, marketability, profitability or fitness for a particular purpose of the property; (v) the manner, quality, state of repair or lack of repair of the property; (vi) the nature, quality or condition of the property, including, without limitation, the water, soil and geology; (vii) the compl iance of or by the property or its operation with any laws, rules, ordinances or regulations of any applicable governmental authority or body; (viii) the manner or quality of the construction or materials, if any, incorporated into the property; (ix) compliance with any environmental protection, pollution or land use laws, rules, regulation, orders or requirements, including but not limited to, title iii of the Americans with Disabilities Act of 1990, the Federal Water Pollution Control Act, the Federal Res ource Conservation and Recovery Act, the U.S . Environmental Protection Agency regulations at 40 C.F.R., Part 261, the Comprehensive Environmental Response, Compensation and Liability act of 1980, as amended, the R esource Conservation and Recovery act of 1976, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, the T oxic Substance Control Act, and regulations promulgated under any of the foregoing; (x) the presence or absence of hazardous materials at, on, under, or adjacent to the property; (xi) the content, completeness or accuracy of any due diligence materials or preliminary report regarding title; (xii) the conformity of the improvements to any plans or specifications for the property, including any plans and specifications that may have been or may be provided to city; (xiii) the conformity of the property to pas t, current or future applicable zoning or building requirements; (xiv) adequacy or sufficiency of any undershoring; (xv) adequacy or sufficiency of any drainage; (xvi) the fact that all or a portion of the property may or may not be located on or near an earthquake fault line; (xvii) the existence of vested land use, zoning or building entitlements affecting the property; or (xviii) with respect to any other matter. City further acknowledges and agrees that having been given the opportunity to inspect the property and review information and documentation affecting the property, C ity is relying solely on its own investigation of the property and review of such information and documentation, and not on any information provided or to be provided by Seller.
City further acknowledges and agrees that any information made available to City or provided or to be provided by or on behalf of seller with respect to the property was obtained from a variety of sources and that seller has not made any independent investigation or verification of such information and makes no representations as t o the accuracy or completeness of such information. C ity agrees to fully and irrevocably release all such sources of information and preparers of information and documentation aff ecting the property which were retained by seller from any and all claims that they may now have or hereafter acquire against such sources and preparers of information for any costs, loss, liability, damage, expense, demand, action or cause of action arisi ng from such information or documentation. Seller is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the property, or the operation thereof, furnished by any real estate broker, agent, employee, servant or other person.
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City further acknowledges and agrees that to the maximum extent permitted by law, the sale of the property as provided for herein is made on an “AS IS” condition and basis with all faults, and that seller has no obligations to make repairs, replacements or improvements except as may otherwise be expressly stated herein. City represents, warrants and covenants to seller that city is relying solely upon city’s own investigation of the property.
In furtherance of the “AS IS, WHERE IS” nature of the sale, City shall rely solely upon City’s own knowledge of the Property based on its investigation of the Property and its own inspection of the Property in determining the Property’s physical condition. City and anyone claiming by, through or under City hereby waives its right to recover from and fully and irrevocably releases Seller from any and all claims, actions, demands, liabilities, damages, costs, penalties, forfeitures, losses or expenses including, without limitation, reasonable attorneys’ fees and the costs and expenses (“Claims”) that it may now have or hereafter acquire against any of the Seller Related Entities arising from or related to any construction defects, errors, omissions or other conditions, latent or otherwise, including environmental matters, affecting the Property, or any portion thereof. This release includes Claims of which City is presently unaware or which City does not presently suspect to exist which, if known by City, would materially affect City’s release to Seller. From and after the Closing, in connection with the above release, City specifically waives the provision of 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.”
In this connection and to the extent permitted by law, City hereby agrees, represents and warrants that City realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, de bts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and City further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that from and after the Closing, City nevertheless hereby intends to release, discharge and acquit Seller from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which might in any way be included as a material portion of the consideration given to Seller by City in exchange for Seller’s performance hereunder.
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D. Survival. The representations and warranties in Section 10 will survive Closing, but only for a period (the “ Survival Period”) of one (1) year, and no claim shall be allowed on any such representation or warranty unless notice of the claim and a detailed statement of the basis for the claim is delivered as provided in Section
10.E below.
E. Limitation on Liability. Notwithstanding anything to the contrary contained elsewhere herein, no claim for any breach by Seller of any representation, warranty, covenant, indemnity or obligation of Seller under this Agreement, or under any document, instr ument or agreement delivered by Seller at the Closing (including any Seller Closing Documents), which is asserted by Buyer after the Closing (“Buyer’s Post -Closing Claims”), shall be actionable or payable unless each of the following conditions is satisfied: (i) the breach in question results from or is based on a condition, state of facts or other matter which was not known to Buyer prior to Closing, (ii) the valid claims for all such breaches, if any, collectively aggregate more than Five Thousand Dollars ($5 ,000.00), in which event the amount of claims in excess of such amount shall be actionable, subject to the Cap (defined below), and (iii) written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller prior to the expiration of the Survival Period, and an action shall have been commenced by Buyer against Seller within thirty (30) days after the termination of the Survival Period, and (iv) the recourse of Buyer and its successors and assigns against Seller with respect to Buyer’s Post -Closing Claims shall be limited to an amount not to exceed the Purchase Price (the “Cap”) in the aggregate. The provisions of this Section shall survive Closing and any earlier termination of this Agreement.
Section 11. Seller’s Covenants
A. Commencing with the full execution of this Agreement by both parties and until the Close of Escrow:
1. Seller shall not permit any liens, encumbrances, or easements to be placed on the Property, other than the Approved Exceptions, nor shall Seller enter into any agreement regarding the sale, rental, management, repair, improvement, or any other matter affecting the Property that would be binding on City or the Property after the Close of Escrow without the prior written consent of City.
2. Seller shall not knowingly permit any act of waste or act that would tend to diminish the value of the Property for any reason, except that caused by ordinary wear and tear.
Section 12. Authority of Parties
A. Seller warrants that this Agreement and all other documents delivered prior to or at the Close of Escrow:
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2. Are binding obligations of Seller; and
3. Are collectively sufficient to transfer all of Seller’s rights to the property.
B. City warrants that this Agreement and all other documents delivered prior to or on the Close of Escrow:
1. Have been authorized, executed, and delivered by City; and
2. Are binding obligations of City.
C. The parties warrant that the persons executing this Agreement on their behalf are authorized to do so, and on execution of this Agreement, this Agreement shall be valid and enforceable against City or Seller in accordance with this Agreement.
Section 12. Reserved
Section 13. Notices
A. All notices to be given under this Agreement shall be in writing and sent by:
1. Certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the United States Mail;
2. A nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit with that courier;
3. Hand delivery, in which case notice shall be deemed delivered upon receipt; or
4. E-mail or similar means if a copy of the notice is also sent by United States Mail, in which case notice shall be deemed delivered on transmittal by e-mail or other similar means, provided that a transmission record is generated that reflects the accurate transmission of the notice.
B. Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
TO CITY: Brian Stark, COSCA Administrator
City of Thousand Oaks
2100 Thousand Oaks Blvd.
Thousand Oaks, CA 91362
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TO SELLER: Hillsides
940 Avenue 64
Pasadena, California 91105
Attn: Stacey Roth
Email: [email protected]
Phone: (323) 254-2274
With a copy to :
Buchalter, P.C.
1000 Wilshire, Blvd, 15
th Floor
Los Angeles, CA 90017
Attn: J. David Hitchcock
Email: [email protected]
Phone: (213) 891-5355
Any notice or other communication will be deemed received only upon delivery to the address provided for in this Section or rejection of delivery at such address. Notice may be given by (i) a national overnight delivery service in which event delivery shall be deemed to occur the next Business Day after depositing the notice with such delivery service, or (ii) by facsimile transmission or electronic mail transmission in which event notice shall be deemed to occur the same day if given before 5:00 p.m. (Los Angeles County, California time) on a Business Day and, if not so received, the next Business Day. The addresses and addressees to which notice is to be given may be changed by written notice given in the manner specified in this Section and actually received by the addressee. Counsel to any party to this Agreement may, on behalf of its client, give any notice which may be, or is required to be, given by its client under this Agreement (and any notice so given by such counsel shall be as effective as if given by its client).
Section 14. Entire Agreement
This Agreement and the documents referenced herein contain the entire agreement between the parties to this Agreement and shall not be modified in any manner except by an instrument in writing executed by the parties or their respective successors in interest.
Section 15. Miscellaneous
A. Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected.
B. Waivers. A waiver or breach of covenant or provision in this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement and no waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act.
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C. Construction. The Section headings and captions of this Agreement are, and the arrangement of this instrument is, for the sole convenience of the parties to this Agreement. The Section headings, captions, and arrangement of this instrument do not in any way affect, limit, amplify, or modify the terms and provisions of this Agreement. The singular form shall include plural, and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all references to Sections are to this Agreement. All exhibits referred to in this Agreement are attached to it and incorporated in it by this reference.
D. Merger. All of the terms, provisions, representations, warranties, and covenants of the parties under this Agreement shall survive the Close of Escrow and shall not be merged in the Deed or other documents, subject to the Seller’s representations and warranties, which shall only survive the Close of Escrow until the expiration of the Survival Period.
E. Counterparts. This Agreement may be executed in one or more counterparts. Each shall be deemed an original and all, taken together, shall constitute one and the same instrument.
F. Successors. This Agreement shall inure to the benefit of and shall be binding upon the parties to this Agreement and their respective heirs, successors, and assigns.
G. Governing Law. This Agreement shall be governed and construed in accordance with California law.
H. Attorneys’ Fees. If litigation is commenced by City or Seller against the other party in connection with this Agreement or the Property, the party prevailing in the litigation will be entitled to collect from the other party the expense (including fees, costs and disbursements of attorneys, experts and other professionals and court costs) incurred in connection with the litigation, both prior to and during any appellate proceedings. If the City utilizes in -house attorney’s in connection with any matter subject to this provision, the attorney rate will be the market rate within the Los Angeles metropolitan area for similar services from attorney’s with similar experience and skill. In no circumstances will the City’s in -house attorney rate be less than the customary rate for similar services charged by the Seller’s firms without discount for government or non- profit work. The terms and conditions of this Section shall survive Closing and any termination of this Agreement.
I. Parties Bound. This Agreement will be binding upon and will inure to the benefit of City and Seller and their respective successors and permitted assigns. Any indemnity in favor of a party or its affiliates also will benefit each person who holds a direct or indirect ownership interest in such party or affiliate and the respective officers, directors, trustees, agents, employees and affiliates of such party or affiliate and such owners, and all such persons are third-party beneficiaries of this Agreement to the extent of their rights to indemnity under the related provision and may enforce that provision against City or Seller, as applicable. Neither the Title Purchase Agreement – APN 676-0-070-070Page 15 of 18
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Company nor any broker is a third- party beneficiary of this Agreement, nor may the Title Company or any broker enforce this Agreement or any obligation under this Agreement.
J. Invalidity. The determination that any provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of the remaining provisions or of that provision under other circumstances. Any invalid or unenforceable provision will be enforced to the maximum extent permitted by law.
K. Assignment. City shall not sell, transfer, convey, encumber or otherwise dispose of all or any part of this Agreement without the prior written consent of Seller, which consent may be withheld in Seller’s sole and absolute discretion.
L. No Liability of Related Parties. No Related Entity (defined below) of Seller or City, nor any person who holds a direct or indirect ownership interest in Seller or City or any Related Entity of Seller or City, nor any of the respective officers, directors, trustees, agents and employees of any such person shall have any liability, directly or indirectly, under or in connection with this Agreement, any document or certificate executed in connection with this Agreement (including the a ny closing documents) or any amendment of any of the foregoing made at any time, whether prior to, contemporaneous with or after this Agreement. City and Seller and their successors and assigns, as well as all other persons, may look solely to the other party’s asset s for the payment of any claim or any performance, and City and Seller, each on behalf of itself and its successors and assigns, hereby waives any and all other claims, demands, causes of action and liability. “Related Entities” or a “Related Entity” means , with respect to any Person, all direct and indirect affiliates and subsidiaries thereof, all entities related thereto and all partners, shareholders, members, directors, officers, trustees, managers, authorized agents and employees thereof.
M. Time. Time is of the essence in the performance of this Agreement.
N. No Recordation. Without the prior written consent of Seller, there shall be no recordation of either this Agreement or any memorandum hereof, or any affidavit pertaining hereto, and any such recordation of this Agreement or memorandum or affidavit by City without the prior written consent of Seller shall constitute a default hereunder by City.
O. Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute and deliver, but without any obligation to incur any additio nal liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the Property to City. This Section expressly survives the Closing.
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P. Natural Hazards Disclosure. City and Seller acknowledge that Seller may be required under California law to disclose if the Property lies within the following natural hazard areas or zones: (i) a special flood hazard area designated by the Federal Emergency Management Agency; (ii) an area of potential flooding; (iii) a very high fire hazard severity zone; (iv) a wild land area that may contain substantial forest fire risks and hazards; (v) an earthquake fault zone; or (vi) a seismic hazard zone. City ack nowledges that Seller will employ the services of the Title Company or another third party selected by Seller (“Natural Hazard Expert”) to examine the maps and other information specifically made available to the public by government agencies for the purposes of enabling Seller to fulfill Seller’s disclosure obligations, and to report the result of the Natural Hazard Expert’s examination to City and Seller in writing. The written reports prepared by the Natural Hazard Expert regarding the results of the Na tural Hazard Expert’s examination fully and completely discharge Seller from Seller’s disclosure obligations referred to herein, if and to the extent any such obligations exist, and, for the purpose of this Agreement, the provisions of Civil Code Section 1103.4 regarding non-liability of Seller for errors or omissions not within Seller’s personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of the Natural Hazard Exper t’s expertise with respect to the examination and written report regarding the natural hazards referred to above.
Q. Electronic Signatures. The facsimile, email, PDF signature or electronic signature (including, without limitation, DocuSign or similar electronic signature technology) of any party on this Agreement will be deemed an original for all purposes. The contract formation pursuant to this Agreement and record- keeping of this Agreement though electronic means shall have the same legal validity and enforceability as a manually executed or paper-based recordkeeping system to the fullest extent permitted by applicable law, including, without limitation, the Federal Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act or any similar state law, and the parties to this Agreement hereby waive any objection to the contrary.
LEVINE ACT (California Government Code § 84308):
This item is subject to the Levine Act. City Councilmembers who have received a campaign contribution of more than $250 (aggregated) within the preceding 12 months from a party or their agent/representative, or a financially interested participant involved in this proceeding may do either of the following: (1) disclose the contribution on the record and recuse themselves from this proceeding; or if applicable (2) return the portion of the contribution that exceeds $250 within 30 days from the time the official knew or should have known about the contribution, and participate in the proceeding.
All parties and their agents/representatives must disclose on the record of this proceeding any aggregated contribution of more than $250 made to any City Councilmember within the preceding 12 months. City Councilmembers are prohibited Purchase Agreement – APN 676-0-070-070Page 17 of 18
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from accepting, soliciting, or directing a campaign contribution of more than $250 (aggregated) from a party, their agent/representative, or a financially-interested participant during a proceeding and for 12 months following the date a final decision is made. In addition, a party, their agent/representative, or a financially interested participant is prohibited from contributing more than $250 (aggregated) to a City Councilmember during a proceeding and for 12 months following the date a final decision is made.
The Seller shall complete the Levine Act Disclosure Form attached as Exhibit B.
The parties have executed this Agreement as of the date first written above.
SELLER:
Hillsides, a California non-profit public benefit corporation, formerly known as Church Home for Children of the Protestant Episcopal Church of the Diocese of Los Angeles
By:___________________
Name: ________________
Its: ___________________
CITY OF THOUSAND OAKS
_______________________
Andrew P. Powers, City Manager
ATTEST:
____________________
Laura B. Maguire, City Clerk
APPROVED AS TO FORM:
Office of the City Attorney
______________________
Joseph Brick, Assistant City Attorney
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EXHIBIT A – PROPERTY MAP