Exhibit A
1 PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") dated Acyust /6 - 2019 and effective as of the date fully executed by the parties ("Effective Date"), is entered into between the State of California, acting by and through its Department of Transportation (Department") and the City of Union City, a municipal corporation of the State of California ('City").
RECITALS
WHEREAS, the Department is the owner of certain real property located in what is commonly referred to as rescinded Rte. 84 in Union City the "Rte. 84 Excess Properties ) acquired to be used for the purpose of constructing a new alignment of the portion of Rte. 84 between I-880 (Nimitz Freeway) and State Route 238 (Mission Boulevard) in the cities of Fremont and Union City ("Rte. 84 Realignment"); and WHEREAS, the route designation in this portion of the Route 84 corridor was rescinded by Caltrans January 24, 2007 though execution of a Memorandum of Understanding for the Funding and Delivery of the _880/Route 262 (Mission Boulevard)/Warren Avenue/BART Accommodation Project in Fremont and Local Roadway Improvement (Option 2) Project in Fremont and Union City by and Between the Alameda County Transportation Authority, the California Department of Transportation, and the Cities of Union City and Fremont; and
WHEREAS, the Director of the Department has previously determined, in accordance with Section 118 ofthe Streets and Highways Code, and Government Code sections 14528, and following, that the Rte. 84 Excess Properties are no longer needed for highway purposes and have been certified as excess; and WHEREAS, the sale of the excess properties acquired for the Route 84 Realignment Project is the subject of Government Code sections 14528.55, et seq., ("84 LATIP Statutes"); and
WHEREAS, pursuant to the LATIP statutes, the sale of the Rte: 84 Excess Properties are exempt from the priorities and procedures regarding the disposal of residential property under Government Code § 54235 et seq., (Gov. Code § 14528.65(a)(2)) and relocation assistance requirements (Gov. Code § 14528.6(d-f)).; and WHEREAS, the 84 LATIP Statutes require in part that the Department sell the Rte. 84 Excess Properties at fair market value and that all proceeds from those sales, less authorized federal reimbursements and costs of sale, be deposited into a Special Deposit Fund established for use as provided for in the LATIP Statutes to fund certain local alternative transportation improvement projects approved by the CTC; and WHEREAS, pursuant to California Streets and Highways Code section 118, Department is authorized to sell excess property in accordance with the terms, standards, and conditions established by the CTC; and
ADA Notice For individuals with sensory disabilitles, this document is avallable in alternate formats. For alternate format information, contact the Forms Management Unit at(916) 445-1233. TTY 711. or write to Records and Forms Manasement. 1120 N Strept. MS.89. Sarramentn. CA 95814. 2 WHEREAS, CTC Resolution G-98-22 authorizes the direct sale of Department excess property to public agencies for fair market value, subject to the approval of the CTC as provided in Streets and Highways Code section 118, if the intended use of the property is for a public purpose; and
WHEREAS, the City desires to purchase certain Rte. 84 Excess Properties as specified herein (collectively the "Property") from Department by direct sale in order to realize a public purpose and benefit as set forth in a Resolution of Public Purpose to be adopted by City on July 9, 2019; and
WHEREAS, it is the mutual intent and objective of the City and Department that the final sale and transfer of the Property from Department to City proceed expeditiously; and
WHEREAS, City and Department desire to set forth herein the terms and conditions of the sale of the Property by Department to City; NOW THEREFORE, in consideration of the respective agreements contained below, Department and City agree as follows:
1. AGREEMENT OF SALE
1.1. Purchase and Sale. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Department agrees to sell and the City agrees to purchase the Property described in section 1.2 below, under the terms and conditions of this Agreement.
1.2 Description of the Property. The Property to be sold and purchased under this Agreement consists of all right, title and interest in that certain real property situated in the City of Union City and the County of Alameda depicted in Exhibit A, attached hereto and incorporated by reference herein. The Property is expressly sold "AS IS", with no warranties, express or implied, and the conveyance is subject to any and all -special assessments, restrictions, easements and any and all other encumbrances as set forth in sections 7.1 and 7.2.
1.3. Term of Sale. The purchase of the Property shall be an all cash transaction for the Property Purchase Price defined in Section 2.1 below. Subject to the provisions of Section 4, the Property Purchase Price shall be paid over the course of six (6) years or sooner, as the Property is sold by City to a third party or as otherwise paid for by City, with the full Property Purchase Price, due and payable by City to Department by a date no later than six (6) years following the approval of this Purchase and Sale Agreement by the CTC.
ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format Information, contact the Forms Management Unit at/916) 445-1237. TTY 711. or write to Rends and Forms Manapement. 1120 N Strept. M5-84. Sarramento A 95814 3 2. PURCHASE PRICE
2.1. Amount. The Purchase Price for the Property ("Property Purchase Price") shall be determined as follows:
a. The Property Purchase Price shall be the Fair Market Value (as defined in California Code of Civil Procedure section 1263.320) of the Property in its "As Is" condition without vesting or entitlements but taking into account all relevant indicators of value as considered in a standard appraisal process. b. The Property Purchase Price shall be determined on the basis of two (2) appraisals performed by independent MAI appraisers, one selected by City and one selected by Department. The appraisers shall be informed that they are jointly retained by City and Department, and the appraisal costs shall be divided equally between City and Department. City shall invoice Department for its share of the appraisal costs and shall provide Department with supporting documentation for all charges billed and monies actually paid to the appraisers). Department will fuily reimburse City for invoiced amounts supported by the submitted documentation within 45 days of receipt of the invoice and supporting documentation. c. The appraisers shall each make an independent determination of Fair Market Value of the Property based upon instructions prepared jointly by Department and City and following Department's applicable valuation procedures and policies to the extent that they do not conflict with the joint instructions. Representatives of Department and City shall jointly meet with the appraisers prior to commencement of the work to clarify the instructions concerning the assignment, answer any questions and/or provide any necessary information.
d. Any questions either of the appraisers have regarding the instructions for the appraisal shall be submitted in writing to both City and Department, who shall consult and prepare a mutually agreeable response/instruction. Any communications with the appraisers relating to such response or instruction or to the appraisal work to be performed pursuant to this Agreement shall only be held at joint meetings where both Department and City staff are present. e. Each appraiser shall complete, sign, and submit his/her written appraisal setting -forth the Fair Market Value of the Property within 60 days of accepting the appraisal assignment. The written appraisal shall fully and clearly set forth the assumptions, factual information, market data and reasoning upon which the appraiser's professional conclusions are based. Any additional instructions provided by Department and City at the meetings provided for in section (d) above shall be set forth in the appraisal reports.
f. Neither appraiser shall have the power to modify any of the provisions herein regarding the appraisal assignment and each much base his/her valuation on the definitions, standards, assumptions, instructions, and other provisions agreed upon by the parties. In the event one or both of the appraisers fails or refuses to follow the provided assumptions and instructions, whether initial or subsequent, or the submitted appraisal fails to comply with accepted appraisal practices, either party may strike said appraiser/appraisal based solely on those reasons within 10 business days of the submission of said appraisal, in which case Department and ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at/916\445-1232 TTY 711. or write to Records and Forms Managpment. 1120 N Strept. MS-89. Sarrampnto. CA 95814. 4 City shall jointly select another MAI appraiser to replace the one stricken. It is not the intent of this provision that an appraiser/appraisal be stricken based on a party's disagreement with the appraiser's opinion of value of the property. g. In the event the difference between the opinions of value in the two (2) appraisals is within fifteen percent (15%) of each other, the Property Purchase Price shall be the midpoint between the two appraisals.
h. In the event the opinions of value of the two appraisers differs by more than fifteen percent (15%) and the parties are unable to reach agreement on the value of the Property within 10 business days, Department and City shall select a mutually agreeable third MAI appraiser ("Review Appraiser") who will evaluate both prior appraisals and make a determination of value of the Property, which the parties shall accept as the Property Purchase Price. The review appraisal must result in a value determination between the range of the prior two appraisals. The cost of the Review Appraiser shall not exceed $15,000, to be split by the Department and City equally.
2.3. City's Resale. It is understood that after Department's transfer of title to City as provided for herein, City contemplates selling all or a portion of the Property to a third party with the proceeds of such sale to be used to pay the Property Purchase Price and to assist in the entitlement and sale of the remaining Property to the extent provided for herein. It is further agreed and understood that the price at which City resells the Property or portion thereof shall not affect the Property Purchase Price.
2.4. Payment. Payment of the Property Purchase Price shall be made as follows:
a. Proceedstri from Sale of the Property. If the Property is sold by City to a third party for an amount equal to or greater than the Property Purchase Price, the proceeds from such a sale shall first be applied to timely payment of the Property Purchase Price. In such an instance, Department shall execute and deposit a Relinquishment of Power of Termination for the Property into escrow with instructions that said Relinquishment be released and recorded upon payment of the full Property Purchase Price and any other funds owing to Department. City's obligation to timely pay the full Property Purchase Price is an independent obligation and is not contingent upon its sale of the Property to a third party or any other condition.
2.5. Allocation. All proceeds received by Department from the sale of the Property to City, less the Department's costs of such sale as allowed by the LATIP statutes, shall be deposited into the separate account in the Department's Special Deposit Fund established pursuant to the Rte. 84 LATIP Statutes for use as provided for in those statutes, if applicable.
For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit ADA Notice at(91fl 445-1273. TYY 711. or write to Records and Forms Manapement: 1120 N Strept. MS-89. Sacramento. CA 95814. 5 3. DUE DILIGENCE PERIOD
City shall have one hundred and eighty (180) days from the date of the execution of the Agreement (the "Due Diligence Period") to inspect the Property and examine and/or update surveys, obtain engineering and environmental inspections, and undertake such investigations as City deems necessary. Such inspections and investigations may be undertaken by City while Department is still occupying the Property to the extent practicable. City must be satisfied in all respects with the results of such inspections and investigations. If City is not so satisfied, it may terminate the Agreement and shall have no further obligations or liabilities under the Agreement. The information obtained by City pursuant to such inspections and investigations shall be kept confidential and shall not be revealed to third parties other than to its lenders, principals, affiliates, attorneys, consultants or clients, at City's elections, as otherwise required by law, or for any other valid business purposes.
4. TITLE TO THE PROPERTY
4.1 Conveyance of Title. Upon the CT's approval of this Agreement for sale of the Property to City and of the subsequent Property deed prepared therefor, and the City's release of its due diligence contingency pursuant to Section 3, Department will promptly convey marketable title to the Property to City, subject to the Power of Termination below, by duly executed and acknowledged Director's Deed in a form substantially similar to the form attached as Exhibit B, incorporated herein by this reference, which deed shall be recorded by the City in the Official Records of the County of Alameda after approval by the CTC. The date of recordation shall be the "Transfer Date" for the Property.
4.2. Department's Power of Termination. Attached to and as a part of the Parcel deed above, Department shall execute, retain, and record a Power of Termination, in substantially the form set forth in Exhibit C, attached hereto and incorporated herein by this reference, with a certificate of acceptance in a form attached to the form deed in Exhibit B, to assure that City fulfills its obligations herein. Upon full payment of the Property Purchase Price, Department shall execute and deposit a Relinquishment of the Power of Termination for the Property in substantially the form attached as Exhibit D, incorporated herein by this reference, into escrow with instructions that said Relinquishment be released and recorded upon payment of all monies due Department. If required, such deposit of the Relinquishment of Power of Termination shall be made by Department within 10 business days after the Department receives written notice from the City of the opening of an escrow relating to the Property. It is the intention and to the mutual benefit of Department and City that the conditions for Relinquishment of the Power of Termination be satisfied as promptly as possible during the term of this Agreement.
ADA Notice For individuals with sensory disabilitles, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at(016) 445-1222, TTY 711. Or write to Reparis and Forme Management, 1120 N Strppt, MS-89. Sacramento. CA 95814. 6 4.3. Scope. It is expressly understood that the right, title, and interest in the Property conveyed shall not exceed that vested in the Department, that the sale is subject to all title exceptions and reservations of record, and that no policy of title insurance will be furnished by Department in connection with this Agreement.
4.4. Reporting. City will report quarterly to Department as to the status and progress of its sale of the Property to third parties, which shall include all such sales to date and those anticipated in the next quarter. Nothing in this section will require disclosure of confidential information regarding ongoing property negotiations.
5. CITY'S FAILURE TO TIMELY PAY PURCHASE PRICE
5.1. In the event City fails to pay the full Property Purchase Price by the end of the 6-year term, specified in Section 1.3 of this Agreement, Department may, at its option, either:
a. Subject to 4.2, exercise its Power of Termination as to the Property; or b. With the written agreement of City, extend the time for City to pay the Property Purchase Price for a mutually agreeable time period contingent upon City paying Department, subject to the exceptions below, a fee equal to one percent (1%) of the Property Purchase Price for each month payment of the full Property Purchase Price is delayed beyond the 6-year payment due date set forth in Section 1.3. It is understood and agreed that this entire fee, which will be deposited into the LATIP account as applicable, shall not be credited toward the Property Purchase Price and must be paid in full prior to Department's Relinquishment of the Power of Termination. This fee shall not apply if on the 6-year payment due date the Property is either: i) in escrow with instructions reflecting an anticipated date of sale within 90 days of the 6-year payment due date; or il) the subject of a letter of intent to purchase or subject to an option which reflects an anticipated date of sale within 90 days of the 6-year payment due date. If the Property has not closed escrow within 180 days of the 6-year payment due date, the fee shall begin to apply on the 181st day after said due date unless the City surrenders the property to the department before the 181st day described above. c. Prior to exercising its Power of Termination; the Department shall provide the City with a written notice of its intention to exercise its Power of Termination on the Property. The City shall have ninety (90) days from the notice to pay Department the full Property Purchase price and any and all other funds owing. If the City does not pay the Property Purchase Price and any and all other funds owning by the 90th day from Department's notice, Department may exercise its Power of Termination as to the Property without any further notice or concern..
5.2. Return of the Property. In the event that the Department exercises its Power of Termination over the Property, the Property will be returned to the Department and the City shall have no further obligation to pay the Property Purchase Price.
ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at(916) 445-1233. TTY 711. or write to Records and Forms Manappment. 1120 N Street, M5-89, Sarramento, CA 95814. 7 6. POSSESSION AND MAINTENANCE OF THE PROPERTY
6.1. Possession. Commencing on the Transfer Date, City shall have full possession, use, and control of the Property, and all obligations and liabilities pertaining thereto, subject to Department's Power of Termination and the interest of tenants under existing leases.
6.2. Maintenance. Department shall continue and not defer routine maintenance on the Property up to the Transfer Date. Prior to the Transfer Date, the Department shall not commit, suffer, or permit any waste on the Property or commit or allow any acts to be done thereon in violation of any laws or ordinances, and shall not use or permit the use of the Property for any illegal purpose. Commencing on the Transfer Date, City shall be responsible for the maintenance of the Property, which shall include but not be limited to:
a. City at its own expense shall be solely responsible for keeping the Property in a state of good repair.
b. City shall be solely responsible for the management of all rental units on the Property and shall employ good property management practices regarding those rental units. The City shall have no obligation to Department to continue the existing use of the Property, or lease, or Sublease as of the Transfer Date. c. City shall not commit, suffer, or permit any waste on the Property or commit or allow any acts to be done thereon in violation of any laws or ordinances, and shall not use or permit the use of the Property for any illegal purpose.
6.3. Damage to improvements. Upon the Transfer Date, the City agrees to assume all risk of damage to or loss of any improvements on the Property and agrees that no such damage or loss shall constitute a failure of consideration.
6.4. Surrender of Possession. In the event this Agreement is terminated by City's breach or default in any material respect, or the Department exercises its Power of Termination, City agrees, upon demand of Department, to quietly and peaceably surrender to the Department possession of the Property. Surrendering possession shall relieve the City of any obligation(s) under or relating to this agreement including, but not limited to, the payment of the Property Purchase Price. Department, at any time following termination of this Agreement or exercise of its Power of Termination, may sell the Property free and clear of any rights of City in and to the Property.
7. ASSIGNMENT OF TENANCIES
7.1. Assignment. On the Transfer Date, the Department shall transfer to City all of its right, title and interest in and to all existing leases and rental agreements on the Property (collectively, "Leases") by an "Assignment of Leases" in the form attached as Exhibit E, incorporated herein by this reference. A list of all Leases to be assigned is attached as Exhibit F, incorporated herein by this reference. State will provide all ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at(916) 445-1237. TTY 711. orwrite to Records and Forms Manapament. 1120 N Strept. MS-89. Sacramento. CA 95914. 8 existing lessees with a Notice of Assignment in the form attached as Exhibit G, incorporated herein by this reference.
Department's current review of its property management records to date indicates that some or all of the existing leases on the Property are month-to-month and/or can be terminated with 30-days notice and that some or all of the existing leases have tenant waivers of entitlement to certain payments under the State and Federal Uniform Relocation Assistance Act. (Government Code, Section 7260, et seq.; 42 United States Code, Section 4601, et seq.)
7.2. New Leases. Until such time as the Department's Power of Termination is relinquished, any new Leases or Lease extensions entered into by City on the Property shall utilize the Department's standard form lease agreement and include legally enforceable tenant waivers of relocation assistance in a form substantially similar to Exhibit H attached hereto and incorporated by reference herein, and shall be month-to-month.
7.3. Rents.
a. Collected Rents. All rents collected by City after the Transfer Date, except those referred to in subsection (b) below, shall be the property of City. Department shall promptly deliver any rents accrued after the Transfer Date and received by Department to City. If the Transfer Date occurs during the rental period, the rent will be prorated accordingly.
b. Delinquent Rents. All unpaid rents that are due and owed to Department prior to the Transfer Date will remain the property of the Department. Department waives no rights as to the recovery of such delinquent rent or other monies owing by tenants to Department and retains its full rights as to any and all remedies allowed by law to collect such monies.
c. Security Deposits. Within 10 business days following the Transfer Date of the Property, Department shall submit a request with necessary supporting documentation to Caltrans Accounting to process a warrant in accordance with its -policies, practices and procedures, in order to transfer to-City all security deposits as to any Leases on the Property by cash, certified cashier's check or electronic transfer of immediately available funds.
Lease Status. If it has not already done so, within fifteen (15) business days of the Effective Date, Department shall provide City with copies of all Leases listed in Exhibit F, along with the following information: any delinquent rent amounts along with the corresponding time period of delinquency, most recent contact information for Lessees, amount of security deposit, tenant relocation benefit waivers or acknowledgements, and to the extent that the records exist and are reasonably accessible, repairs over the past five years, maintenance schedule for the property, and any other information relevant to the administration of the Leases. The Department agrees to cooperate with the City to furnish any other information relevant to the administration of the Leases and to retain and make all lease files available for ADA Notice For Individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unft at(916) 445-1222. TTY 711. or write to Rerords and Forms Manapement. 1120 N Strept. MS-R9. Sacramento. CA 95814. 9 City review and copying upon request, at no cost to City for the duration of this Agreement.
8. CONDITION OF THE PREMISES
8.1. AS IS SALE, CITY ACCEPTS THE PROPERTY IN ITS "AS IS, WHERE IS, WITH ALL FAULTS" CONDITION, WITH NO RIGHT OF SET OFF OR REDUCTION IN THE
PURCHASE PRICE FOR ANY CONDITION OF THE PROPERTY, AND
ACKNOWLEDGES AND AGREES THAT NEITHER STATE NOR ANY OF ITS
AGENTS HAVE MADE, AND STATE HEREBY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES AS TO THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, WARRANTY OF USE, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE OR USE, AND CITY HEREBY EXPRESSLY DISCLAIMS AND RENOUNCES ANY SUCH REPRESENTATIONS OR WARRANTY.
Department is unaware of the presence of any protected cultural items or human remains on the Subject Property. Pursuant to the "AS IS" sale, Department shall in no event be responsible for any such items or remains subsequently discovered on the Property unless directly caused by the Department after the Transfer Date, or if otherwise allowed by law.
Without limiting the foregoing, this Agreement is made subject to all applicable laws, rules and ordinances governing the use of the Property, and to any and all covenants, conditions, restrictions, easements, encumbrances, claims of title and other title matters affecting the Property, if any, whether foreseen or unforeseen, and whether such matters are of record or not. It is City's sole obligation to conduct an independent investigation of the Property and all matters relating to its condition and use as intended.
8.2. Hazardous Materials. Department will provide City with any studies it has regarding hazardous materials on the Property. Department makes no warranties regarding the presence or absence of hazardous materials on the Property or regarding any responsibility for remediation of the Property that does not otherwise exist at law.
Nothing in this Agreement is intended to alter the parties' respective responsibilities, if any, for any hazardous materials on the Property under State or Federal law, or their respective rights, if any, to seek indemnification and/or contribution under State and Federal law, except as would be precluded or limited by an "As Is" sale of property by and between the parties.
9. EXPENSES AND TAXES
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at/916) 445-1233. TTY 711. orwrite to Records and Forms Management, 1120 N Strapt. MS-R9. Sarrament. CA 95814. 10 9.1 Department Sale to City. City shall be fully and solely responsible for all its costs and expenses, including staff time, associated with its purchase of the Property from Department pursuant to this Agreement. Department may recover its costs associated with its sale of the Property to City pursuant to this Agreement as provided for under the LATIP statutes.
9.2 Department Sale to City. City shall be fully and solely responsible for all recording fees, documentary stamp taxes, or other real estate transaction taxes or fees by whatever name known, including escrow fees or brokers commission, if any, and personal property sales taxes where applicable. In no event shall Department be responsible for such costs and expenses, nor shall they be charged against or recovered from LATIP funds.
9.3 Resale by City. City shall be fully and solely responsible for all expenses and costs associated with City's sale of the Property to any third party, including but not limited to all recording fees, documentary stamp taxes, or other real estate transaction taxes or fees by whatever name known, including escrow fees or brokers commission, if any, and personal property sales taxes where applicable. In no event shall Department be responsible for such costs and expenses, nor shall they be charged against or recovered from LATIP funds.
9.3. Entitlements. City shall bear all costs and expenses associated with any land use approval requirements such as lot line adjustments or other entitlement for sale of the Property by City to any third party if said costs are not recovered from said third parties in the entitlement and development processes. In no event shall Department be responsible for such costs and expenses, nor shall they be charged against or recovered from LATIP funds.
9.4. Taxes and Assessments. Commencing on the Transfer Date, City shall have sole responsibility for all taxes and assessments which are and which may be levied or assessed against the Property.
10. INDEMNIFICATION
10.1. Indemnification (City). The City agrees to defend, indemnify, and save harmless the Department, its officers, agents, and employees against any and all claims, demands, and causes of action of any type or nature that may be made or brought against the Department, its officers, agents, and employees, by any person or entity, including tenants, caused by, arising out of, or in any way related to the condition, control, use, or occupancy of the Property by the City, its assigns, licensees, permittees, invitees, and/or successor purchasers occurring after the Transfer Date.
10.2. Indemnification (Department). The Department agrees to defend, indemnify, and hold the City and its officers, agents, and employees harmless, to the tullest extent allowed by law, from any and all claims, demands, and causes of action of any type or nature ADA Notice For individuals with sensory disabllities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at(916) 445-1233. TTY 711. orwrite to Rerords and Forms Manapement 1170 N Strept. MS-89. Sacramento. CA 95814. 11 that may be made or brought against City, its officers, agents, and employees caused by, arising out of, or in any way related to the condition, control, use, or occupancy of the Property by the Department, its assigns, licensees, permittees, invitees, and/or successor purchasers occurring before the Transfer Date
11. CONTINGENCIES
11.1 City Resolution. This Agreement is contingent on City obtaining a resolution from its governing body approving and authorizing the sale set forth in this Agreement and the City's intended use of the Property for a public purpose.
11.2. California Transportation Commission (CTC) Approval. Department's direct sale of the Property to City by this Agreement is expressly contingent upon the CTC approving and authorizing the manner, terms and conditions of the sale set forth in this Agreement and the subsequent deed prepared for the Property to be conveyed, in accordance with its Guideline(s) governing such sales, including as to the intended use of the Property for a public purpose.
11.3 Notice of Intent to Proceed. The Department's sale of the Property to the City and the City's acceptance of such Property is contingent upon the City conducting its due diligence and delivering a legally binding, written Notice of Intent to Proceed with the purchase and sale of the Property, which shall be delivered to the Department no later than one hundred and eighty (180) days after the Effective Date of this Agreement.
The form of Notice of Intent to Proceed shall be substantially similar to Exhibit H attached hereto and incorporated by reference herein. Upon the City's timely delivery of the written Notice of Intent to Proceed, and completion of all other prerequisites, the Department will prepare the Property deed and proceed with the steps to seek CTC approval of the deed at the next CTC meeting where the deed can be submitted as a timely book item in accordance with applicable Department and CTC procedural deadlines and time constraints. In no circumstance shall Department be obligated to prepare or proceed with seeking approval of the deed where the contingency on the Property has not been released by City by delivery of a Notice of Intent to Proceed as set forth herein: After the one hundred eighty day (180) contingency period, if City has not delivered the requisite Notice of Intent to Proceed, Department shall have no obligation to make the Property available to City for purchase except as Department deems appropriate to do so in its sole discretion, and shall have no obligation to provide City with notice, either formal or informal, of Department's present or future intentions or actions as to the Property.
12. NOTICES
12.1. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon (i) hand delivery with receipt, (i) one (1) day after being deposited with a reliable overnight courier service, or (iii) three (3) days after being deposited in the United States mail, ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at(916) 445-1233. TTY 711 or write to Records and Forms Manappment. 1120 N Street. MS.89. Sacrament. rA 95814 12 registered or certified mail, postage prepaid, return receipt required, and addressed as follows:
City: City of Union City
34009 Alvarado-Niles Rd.
Union City, CA 94587
Attn: Deputy City Manager
With copy to: Office of the City Attorney
34009 Alvarado-Niles Rd.
Union City, CA 94587
Department: Mark L. Weaver
Deputy District Director
Right of Way and Land Surveys
State of California Director of Transportation
P. O. Box 23440
Oakland, CA 94623-0440
Facsimile No.
With copy to: State of California Department of Transportation Legal Division 111 Grand Ave., Suite 11-100
Oakland, CA
Facsimile No.
Attn: Lucille Baca
Or to such other address as either party may from time to time specify in writing to the other upon five (5) days prior written notice in the manner provided above. For convenience of the parties, copies of notices may also be delivered by facsimile, sent to the facsimile number listed above; or such other numbers as may be provided from time to time. However, neither party may give official or binding notice by facsimile.
The effective time of a notice shall not be affected by the receipt, prior to receipt of the original, of a facsimile copy of the notice.
13. GENERAL PROVISIONS
13.1. Entire Agreement. This Agreement and all exhibits referred to in this Agreement constitutes the complete, exclusive, and final statement of the terms of the agreement with respect to the sale of the Property between City and Department and may not be contradicted by evidence of any prior or contemporaneous agreement. This Agreement specifically supersedes any prior written or oral agreements between the parties. The language in all parts of this Agreement will be construed as a whole in ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the forms Management Unit at(916) 445-1223. TTY 711. orwrite to Recorris and Farms Manapement. 1120 N Strept. MS.89. Sarramento. CA 95814. 13 accordance with its fair meaning and without regard to California Civil Code §1654 or similar statutes. Neither party has been induced to enter into this Agreement by, and neither party is relying on, any representation or warranty outside those expressly set forth in this Agreement.
13.2. Amendments and Waivers. No addition to or modification of this Agreement will be effective unless it is made in writing and signed by all parties. A party benefited by any condition or obligation may waive the same, but such waiver will not be enforceable by another party unless it is made in writing and signed by the waiving party.
13.3. Severability. If any provision of this Agreement as applied to either party or to any circumstance is adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, this fact will in no way affect (to the maximum extent permissible by law) any other provision of this Agreement, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of this Agreement as a whole.
13.4 No Merger. This Agreement, each provision of it, and all warranties and representations in this Agreement will survive transfer of title to the City and will not merge in any instrument conveying title to City. All representations, warranties, agreements, and obligations of the parties will survive transfer of title to the City, or to the extent the context requires beyond any termination of this Agreement, and the same will inure to the benefit of and be binding on the parties' respective successors and assigns.
13.5. Interpretation. Unless otherwise indicated section references are to the sections of this Agreement, and, except where otherwise stated, all references to days are to calendar days. Whenever under the terms of this Agreement the time for performance of a covenant or condition falls on a Saturday, Sunday, or California state holiday, such time for performance will be extended to the next business day. "Business Days" means days other than Saturday, Sunday, and California state holidays. Whenever the context so requires, the use of the singular shall be deemed to include the plural and vice versa, and each gender reference shall be deemed to include the other and the neuter. The terms "shall ," "will," "must," "agrees," and "covenants" are each mandatory; "may" is permissive; "or" is not exclusive; and "includes" and "including" are not limiting.
13.6. Governing Law. This Agreement will be governed by the laws of the State of California applicable to contracts made by residents of the State of California and to be performed in California.
13.7. Time. Time is of the essence in the performance of the parties' respective obligations under this Agreement.
ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format Information, contact the Forms Management Unit at/916) 445-1233. TTY 711. ar write to Records and Forms Management. 1120 N Strept. MS-89 Sacramento. CA 95814. 14 13.8. Assignment. This Agreement will inure to the benefit of and be binding on the parties to this Agreement and their respective successors. The City may not assign all or any portion of its interest in this Agreement, by operation of law or otherwise, without the prior written consent of the Department.
13.9. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties to it and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any party to this Agreement or give any third person any right of subrogation or action over against any party to this Agreement.
13.10. Remedies Cumulative. The remedies set forth in this Agreement are cumulative and not exclusive to any other legal or equitable remedy available to a party.
13.11. Construction. This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with herein. In addition, each party has been represented by experienced and knowledgeable legal counsel. Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purposes of the parties and this Agreement. The titles and captions used in this Agreement are for convenience only and do not necessarily define, limit, describe or construe the contents of such sections.
13.12. Counterparts and Copies. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A true and correct copy of this Agreement shall have the same force and effect of an original for all purposes allowed by law.
13.13.Termination. This Agreement may be terminated and the provisions herein may be -modified, altered, changed or amended by the mutual written consent of the Parties.
13.14.Authority to sign. City and Department represent and warrant that the signatories to this Agreement are authorized to enter into this Agreement to convey real property and to legally bind their respective entities to the terms, conditions and obligations set forth herein.
13.15. Effective Date. This agreement shall be effective upon full execution by the parties ("Effective Date").
ADA Notice For individuals with sensory disabilities, this document is avalable in alternate formats. For alternate format Information, contact the Forms Management Unit at1916) 445-1233. TTY 711. Arwrite to Records and Forms Manappment: 1120 N Strept. MS-89. Sacramento. CA 95814. 15 IN WITNESS WHEREOF, the parties have executed this Purchase and Sale Agreement for the Rte.84 Excess Property as of the Effective Date.
CALIFORNIA DEPARTMENT OF
TRANSPORTATION
Dated: August 19,2019
Deputy District Director
Right of Way and Land Surveys
Approved as to Form:
Assistant Chief Counsel
Dept. of Transpiration, Legal Division
CITY OF UNION CITY
But suff fer
City Attorney -5:
3239746.1 ATTEST:
Anualu. Brown
ADA Notice For individuals with sensory disabilities, this document is available in alternate formats. For alternate format information, contact the Forms Management Unit at/916) 445-1233. TTY 711. or write to Records and Forms Manapement. 1120 Strpat MS-89. Sacramento. rA 95814 RAPI
TRANSIT
RAPID TRANSİT
34410 Hang
CITY 39259
SOLARK
KINGLET E FREMONT
UNION
ROAD SALES PARCEL
GREEN
DD-034410-01-01
PERRY
CREATE DO DR. DECOTO ROBERTS STI
EARIPRIVERS MANN $ ST. BEGONTA REYNOLDS
51L5BY
MORE
DAFFODIL PASED STRIF OF CALIYORZIA
OVER! BUSHES AND TRANSPORTATION AFEXET
DEPARTMENT OF TRANSPORTATION
LAHS! _SECONIA • DISTRICT 04
SORELL ROSEB TAUGUS:
DIRECTOR'S DEED
ROYAL DD-034410-01-01
PRAN BY ZE THATS 10-83
PARKWAY CHECKED ST
YAY RET Co. RTE P.M. DR. NO.
LOCKE 238 159x
gok) 2i0s0+
1-032410-0211)
87.99 PARCEL CR
oD CITY AP. FREMONT
: PaRcin THatE
57259
RA
_ 1 | I
Draft.
156.57
SCALE IN.FEEF
30 100 130
STXTE OF CALIFORNIA"
ASIRESS AXD TRÄNSPOATAZION AĞINEY
DEFARTMENT OF TRÁNSPORTATION
DISTRICT 04
SALES PARCEL DIRECTOR'S DEED
DD-034410-01-01 DD-034410-01-01
DRAWK 3Y T DATE 10-83
-CHECKED BY T SCALE ASSTOKT
37.122 Ac. CO. : TRM. DR. NO
RTE,
Aia. -238 759x
EXHIBIT B
RECORDING REQUESTED BY
STATE OF CALIFORNIA
WHEN RECORDED RETURN TO
DEPARTMENT OF TRANSPORTATION
PO BOX 23440, MS-11A
OAKLAND, CA 94623-0440
Attn: R/ Excess Lands
Space above this iine for Recorder's Use
District County Route Postmile Number
DIRECTOR'S DEED
GRANT 04 ALA 238 5.9 DD-034410-01-01
The State of California, acting by and through its Director of Transportation, hereinafter called STATE, hereby grants to
City of Union City,
hereinafter called GRANTEE, that real property in the City of Union City, County of Alameda, State of California, described as follows:
See Exhibit"A", attached
This is to cartify that the State of California, acting by and through the Department of Transportation (according to Section 27281 of the Government Code), accepts for public purposes the real property described in this deed and consents to its recordation.
Transfer Tax Not Applicable: R & T Code 11922
STATE BUSINESS: Free
This is to certify that this document is presented for recordation by the State of California under Government Code 27383 and is necessary to complete the chain of title of the State to property acquired by the State of California.
DISTRICT DIRECTOR
BY
MARK L. WEAVER
Deputy District Director
Right of Way and Land Surveys
D4_Director's_Deed_Rev_2018-06-17
Number
DD..
This conveyance is executed pursuant to the authority vested in the Director of Transportation by law and, in particular, by the Streets and Highways Code.
STATE OF CALIFORNIA
Dated DEPARTMENT OF TRANSPORTATION
APPROVED AS TO FORM AND
PROCEDURE
ATTORNEY LAURIE BERMAN
DEPARTMENT OF TRANSPORTATION Director of Transportation BY MARK L. WEAVER, Attorney in Fact
Deputy District Director
Right of Way and Land Surveys
•
D4_Director's_Deed_Rev_2018-05-17
Number™
DD-
ACKNOWLEDGMENT
notary public or other officer completing this certificate verifies only the Identity of the individual wh aned the document to which this certificate is attached, and not the truthfulness, accuracy, or validity that document.
State of Callfomnia } ss
County of
On before me,
Here insort Name and Title of the Officer
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
D4_Director'8_Deed_Rav_2018-05-17
Number
DD-
Exhibit "A"
This real property description has been prepared by me or under my direction, in conformance with the Professional Land Surveyors Act.
LAND
Signature LICENSED SURVEYOR
Licensed Land Surveyor
JOHN A CARDARELLI
Date * Exp. 12/31/19
No. 7769
CALIFORNIA
OF
D4_Directors_Dood_Rev_2018-05-17
CERTIFICATE OF ACCEPTANCE
THIS IS TO CERTIFY that the interest in real property conveyed by Director's Deed dated the _... day of - 20 from State of California, Department of Transportation to the CITY OF UNION CITY, a municipal corporation, is hereby accepted by insert authorization to acquire property ie: Council Resolution, etc), and the grantee consents to recordation thereof by its duly authorized officer.
Date:_ By:.
AUTHORIZED INDIMDUAL
Individual's Title
CITY OF UNION CITY,
a Municipal Corporation
Exhibit "C"
POWER OF TERMINATION. The Property is being conveyed as part of a rumber of separate conveyances of property by Grantor to the _ pursuant to that certain _ 20_, by and between the State of Callfornia, acting by and though Its Department of Transportation, the (herein, the "Cooperative Agreement"), to achleve the
_ all as more particular described in the _ - All
definitions set forth in the above referenced _are applicable to and incorporated into this deed. To assure the purposes of the → the satisfaction of each of the provisions of subsections (a)(1) and (a)(2), below, is expressly declared to be a condition subsequent for the benefit of Grantor, Should sald conditions not be satisfled, Grantor shall have the power to terminate the fee simple estate in the Property conveyed by this deed, and to reenter and take possession and title to the Property, including without Imitation, all improvements thereon, in the manner provided in subsections (b) and (c) hereof and subject to expiration and relinquishment of the Power of Termination pursuant to subsection (d) hereof. The interest created in Grantor by this paragraph is a "Power of Termination" as defined in California Civil Code Section 885.010.
(a) With respect to the Property conveyed by this deed, the following conditions subsequent:
(1) If the property is sold to a third party by the _ as its successor in interest to the Property, the Gross Sales Proceeds shall be deposited into the Trust Account established pursuant to the Cooperative Agreement prior to or concurrently with the sale of the Property to the third party; and
(2) If the Property is retalned by the or transferred from the for the development of the - the _ shall be
completed by the Project Completion Date or by the date , whichever is sooner. (b) Grantor shall have the right, following not less than thirty days prior written notice to the Grantee or Its successor in interest to the property, to exercise its Power of Termination in each of the following circumstances:
(1) If the Property is sold to a third party by the _ _ as its successor in interest to the property, and the Gross Sales Proceeds are not deposited Into the Trust Account established pursuant to the Cooperative Agreement prior to or concurrently with the sale of the Property to the third party or within thirty days following the written notice form Grantor (or by such later date as shall be specified in such notice); or
(2) If the Property is retained by the _ or transferred from the to the is not completed by the Project Completion Date (as defined in the Cooperative Agreement) or by the Project Completion Date or within thirty days following the written notice form Grantor (or by such later date as shall be specified in such notice). (c) Grantor's Power of Termination under this paragraph shall expire and be relinquished as to the Property, and Grantor agrees to the delivery and recordation of a Relinquishment of Power of EXHIBIT "C"
Termination pursuant to the terms of the Cooperative Agreement, upon receipt of written notice from either the _ - as the case may be, that either:
(1) The Property has been sold by the → as its successor in interest to the property, and the Gross Sales Proceeds have been deposited into the Trust Account established pursuant to the Cooperative Agreement prior to or concurrently with the sale of the Property to the third party; and grantor does not object thereto within thirty days of such notice; or
(2) The Property has been used for the _and elther (a) _ _ has been completed by the Project Completion Date, or (b) _ has commenced; and Grantor dos not object within thirty days of such notice.
(d) Unless specifically agreed to in writing by Grantor, the Power of Termination contained in subsection (b)(2), above, of this paragraph shall be senior to and shall not be limited, defeated, rendered invalid by the terms of, or rights or interests of parties and other provided in: (i) any bond indenture, note, certificate of participation, mortgage, deed of trust, assignment or other security instrument entered into to finance the design and development of the _ ; and/or in (ii) any agreement or contract entered into in furtherance of the financing, design and development of the _
EXHIBIT "C"
EXHIBIT D
FORM OF RELINQUISHMENT OF POWER OF TERMINATION
RECORDING REQUESTED BY
State of California
WHEN RECORDED RETURN TO
Department of Transportation
P. O. Box 23440
Oakland, CA. 94623-0440
Attention: R/W Excess Lands
Documentary Transfer Tax: $ Space above this line for Recorder's Usc District County Route Post Numbor
04 ALA 84
RELINQUISHMENT OF POWER OF TERMINATION
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE STATE OF CALIFORNIA, acting by and through its DEPARTMENT OF TRANSPORATION (the "State"), does hereby REMISE, RELBASE, and QUITCLAIM to CITY OF UNION CITY all of the State's remaining right, title and interest in the real property located in the City of Union City, County of Alameda, State of California, identified as Parcel DD-034410-01-01 and described in Exhibit A attached hereto and made a part hereof, and does further hereby relinquish, release and forever terminate the Power of Termination reserved by the State in its Director's Deed recorded on in the Official Records of the County of Alameda as Instrument No.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
By:
Mark L. Weaver
Deputy District Director
Dated:
EXHIBITE
STATE OF CALIFORNIA • DEPARTMENT OF CONFIPENTIAL EXHIBIT
TRANSPORTATION
ASSIGNMENT OF LEASE 11-EX-H (NEW 7/2005)
(Where State Is Lessor)
(Form #)
ASSIGNMENT OF LEASE
FOR VALUE RECEIVED, the undersigned. _ lessee, does hereby sell, transfer and assign all his right, title and that certain
_ In the City of
_ State of California."
FURTHER, said lessee does hereby sell, transfer and assign to _all right, title and interest in collars ($ deposited by said lessee with the
State of California, Department of Transportation, in accordance with the ferns and conditions of that certain lease Dated:
- Lessee and Assignor
ASSUMPTION OF LEASE *
forgoing as men of that continess number. _ (person assuming the Lease) accepts the _made and entered into on the
Dated:
Assignee of Lease
CONSENT TO ASSIGNMENT OF LEASE: *
The State of Califonia, Department of Transportation, does hereby consent to the assignment to of that certain loase _made and entered into on the
and between the State of California, Department of Transportation, as lessor, and ' as lesso Covering that certain real property located at. .._, in the City of _ State of California.
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
ADA Notice For individuals with disabilities, this document is available in alternate formats. For information call (916) 654-5413 Voice, CRS: 1-800-735-2929, or write Right of Way, 1120 N Street, MS-37, Sacramento, CA 95814.
EXHIBIT F
PARCEL# ADDRESS Land Use TENANT NAME LEASE RATE
Serapia Reynoso,
Elisenda Reynoso,
Samuel Reynoso, and
34410 35261 Alvarado-Niles Rd., Union City Residence Mayte Reynoso $1,500/mo. 34410 35075 Alvarado-Niles Rd., Union City Residence Ron Reynoso $1,800/mo. 34410 35075 Alvarado-Niles Rd, Union City 12.6 acres ag land Seraplo Reynoso $500/mo. surrounding 35261 and 35075 Alvarado-Niles
39259 Rd., Union Clty 20,4 acres ag land Seraplo Reynoso $550/mo.
EXHIBIT G
STATR OF CALIFORNIA-CALIFORNIA STATE TRANSPORTATION AGENCY. EDMUND & BROWN Jr. Govomor
DEPARTMENT OF TRANSPORTATION
DISTRICT 4
Division of Right of Way and Land Surveys
P.O, BOX 23660, MS- 11
OAKLAND, CA 94623-0660 Making Conservation
PHONE (310) 286-3400 a California Way of Life
FAX (510) 286-5366
TTY 711
www.dot.ca.gov
Date
Tenancy#: xx-xxxxxx-xxxx-xx
•
Lessee
Address
City, State ZIP
Dear Tenant:
This lotter is a notification that effective recording date, your rental agreement dated 20_ and as amended, for the property located at
will be assigned to the City of Union City.
Your security deposit of $ _ will be transferred to your new rental account with the City of Union City. Please submit all subsequent monthly rental payments, made payable to the City of Union City, to the address below:
CITY OF UNION CITY
Address
A copy of this letter and a copy of the rental agreement dated , 20_, will be forwarded to the City of Union City.
Sincerely,
GRANT SEMPLE
Senior Right of Way Agent
Department of Transportation
Property Management Services
111 Grand Avenue, 134 Floor MS 11
Oakland, CA 94612-3717
*Provide a safe, sustainable, integrated und efficient transportation systen to enhance California's economy and livability"
EXHIBIT H
NOTICE OF INTENT TO PROCEED
Pursuant to section 11.3 of the Purchase and Sale Agreement ("Agreement") _between the State of California, acting by and through its Department of Transportation ("Department") and the City of Union City, a municipal corporation of the State of California ("City"), the City hereby presents Notice of Intent to Proceed with the acceptance of the Parcel.
. •
CITY OF UNION CITY
By:
City Manager
Dated:
Approved as to form:
Attest;
City Attorney City Clerk