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ED 750 Grand Avenue Purchase & Sale Agr.AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (INCLI-DING ESCROW INSTRUCTIONS) This PURCHASE AND SALE AND SETTLEMENT AGREEMENT (this "Agreement") is made and entered into as of (C4 / , 2016 (the "Effective Date"), by and between the MICHAEL GEISTER AND JOAN JOHNSON, CO -TRUSTEES OF THE SECOND AMENDED GEISTER FAMILY TRUST OF 1991 ("Seller"), and the CITY OF SAN RAFAEL, a California municipal corporation ("Purchaser"). Seller and Purchaser may collectively be referred to as the "Parties." RECITALS A. Seller is the owner of the land and improvements located at APN 014-132-10, commonly known as 750 Grand Avenue, San Rafael, California, 94901. B. Purchaser desires to purchase from Seller, and Seller desires to convey to Purchaser APN No. 014-132-10, commonly known as 750 Grand Avenue, San Rafael, CA, 94901, as more specifically described on Exhibit A (the "Property"), in order to construct the Grand Avenue Improvement Project (the "Project"). C. On June 2, 2015, the Purchaser sent Seller an offer to purchase the Property pursuant to Government Code section 7267.2. D. On August 15, 2016, Purchaser adopted a Resolution of Necessity authorizing the acquisition of the Property by eminent domain for the Project. E. In lieu of proceeding with eminent domain proceedings for the acquisition of the Property, the Parties desire to enter into this Agreement. IT IS HEREBY MUTUALLY AGREED BETWEEN THE PARTIES AS FOLLOWS: 1. Sale and Purchase of the Pronertv. Seller agrees to sell and convey the Property to Purchaser, and Purchaser agrees to purchase the Property from Seller, on the terms and conditions set forth herein. 2. Purchase Price. The total purchase price for the Property shall be $495,000.00 ("Purchase Price"). The parties acknowledge and agree the Purchase Price specifically includes full compensation for any interest in Seller's business operations, loss of business goodwill, relocation damages or benefits, severance damage, attorneys' fees or any other compensation of any nature whatsoever. 2.1 Waiver of PrODertv Rights and Interests. Upon receipt by Seller of the Purchase Price, Seller for itself and for its agents, successors and assigns fully releases, acquits and discharges Purchaser and its officers, officials, council members, employees, attorneys, accountants, other professionals, insurers, and agents, and all entities, boards, commissions, and bodies related to any of them (collectively, the "Released Parties") from all claims that Seller, OAK #4820-9433-1184 v3 its agents, successors and assigns has or may have against the Released Parties arising out of or related to Purchaser's acquisition of the Property and the grant of any right -of -entry, including, without limitation, all of Seller's property rights and interests in the Property, including but not limited to (i) any improvements, including improvements pertaining to the realty, furniture, fixture, and equipment, (ii) business goodwill and lost income (past or future) relating to the Property, (iii) lost income, (iv) relocation benefits, (v) severance damages, if any, (vi) any and all rights pertaining to the Eminent Domain Law contained in the Code of Civil Procedure sections 1230.010 et seq., including, but not limited to the Code of Civil Procedure section 1245.245, and (vii) economic or consequential damages, (viii) professional consultant fees and attorney's fees and costs, and (ix) all other costs, and any and all compensable interests, and/or damages, and/or claims, of any kind and nature, claimed or to be claimed, suffered or to be suffered, by Seller, its agents, successors and assigns by reason of Purchaser's acquisition of the Property, provided that nothing herein shall release Purchaser from any liability resulting from Purchaser's breach of any agreement, warranty, or covenant for which it is responsible under this Agreement. 2.2 Waiver of Civil Code Section 1542. Seller, on behalf of itself and its agents, successors and assigns, expressly waives all rights under Section 1542 of the Civil Code of the State of California ("Section 1542"), or any other federal or state statutory rights or rules, or principles of common law or equity, or those of any jurisdiction, government, or political subdivision thereof, similar to Section 1542 (hereinafter referred to as a "Similar Provision"). Thus, Seller and its agents, successors and assigns, and any business, enterprise, or venture in which they are involved, may not invoke the benefits of Section 1542 or any Similar Provision in order to prosecute or assert in any manner the matters released in Section 2.1 above. Section 1542 provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Seller's Initials: O� L/ 2.3 Payment of Purchase Price. On or before the Close of Escrow, Purchaser shall deposit with Escrow Agent the Purchase Price, in immediately available funds, which shall be paid to Seller at Close of Escrow. 3. Conveyance of Title/Title Policy. Subject to the fulfillment of the Conditions Precedent described below, at the Close of Escrow, Seller shall grant to Purchaser the Property by Grant Deed in the form attached as Exhibit B and incorporated herein by reference. Seller shall grant the Property free and clear of all recorded and unrecorded liens, encumbrances, assessments, other property, leases, including any and all unrecorded leases, taxes, and exceptions to title, except (i) County and City taxes not yet due and payable; (ii) such other exceptions of which Purchaser may indicate in writing its acceptance prior to Close of Escrow; and (iii) matters created by, through, or under Purchaser (collectively, the "Permitted Exceptions"). Seller shall provide Purchaser with an updated Preliminary Title Report for the Property as soon as possible, and in any event, no later than ten business days prior to Close of 2 OAK #4820-9433-1184 v3 Escrow. Escrow Agent shall at Close of Escrow provide Purchaser with a standard CLTA or ALTA (as the City may request in its sole discretion) policy of title insurance in the amount of the Purchase Price issued by the title company, together with any endorsements reasonably requested by the Purchaser, showing the Property vested in Purchaser, subject only to the Permitted Exceptions set forth above and the printed exceptions and stipulations in the policy. Purchaser shall pay the title policy premium. If Seller is unable to deliver the Property in the condition described herein, this Agreement may be terminated by Purchaser and neither party shall have any liability to the other with respect to the subject matter hereof. 4. Escrow. Purchaser and Seller have opened or shall, within five days of the Effective Date of this Agreement, open an escrow ("Escrow") in accordance with this Agreement at Stewart Title of California, Inc. ("Escrow Agent"). This Agreement, together with any supplementary escrow instructions prepared by Escrow Agent and executed by Purchaser and Seller, constitutes the joint escrow instructions of Purchaser and Seller, and Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all acts necessary to close this Escrow in the shortest possible time. 4.1 Documents and Funds. Prior to the Close of Escrow Seller shall execute, acknowledge and deliver into Escrow the Grant Deed, as defined herein. The Certificate of Acceptance attached to the Grant Deed shall be executed, acknowledged and delivered into Escrow by Purchaser on or before the Close of Escrow. Purchaser and Seller agree to deposit with Escrow Agent any additional funds and/or instruments as may be necessary to complete this transaction. 4.2 Escrow Account. All funds received in the Escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other escrow trust account in any state or national bank doing business in the State of California. All disbursements shall be made by check from such account. Escrow Aizent Authorization. Escrow Agent is authorized to, and shall: 5.1 Pav and Charize Seller. Pay and charge Seller to place title in the condition necessary to satisfy Section 3 and for any Escrow fees, recording fees, and other costs and expenses of Escrow payable under Section 5.8, below. 5.2 Pav and Charlie Purchaser. Pay and charge Purchaser for any Escrow fees, recording fees, title insurance premium and any endorsements thereto, and other costs and expenses of Escrow payable under Section 5.8, below. 5.3 Disbursement. Disburse funds, including the Purchase Price to Seller; record the Grant Deed and Certificate of Acceptance in that order; deliver the title policy, the Non -Foreign Transferor Declaration to Purchaser; and deliver conformed copies of the Grant Deed and Certificate of Acceptance to Purchaser and Seller when conditions of the Escrow have been fulfilled by Purchaser and Seller. 5.4 Close of Escrow. The term "Close of Escrow," if and where written in these instructions, shall be deemed to have occurred on the date the Grant Deed and other OAK #4820-9433-1184 v3 necessary instruments of conveyance are recorded in the office of the Marin County Recorder. Recordation of instruments delivered through this Escrow is authorized, if necessary or proper in the issuance of the policy of title insurance. 5.5 Time Limits. All time limits within which any matter specified is to be performed may be extended by mutual agreement of the parties. Any amendment of, or supplement to, any instructions must be in writing. 5.6 Time of the Essence. TIME IS OF THE ESSENCE IN THESE INSTRUCTIONS AND, EXCEPT AS OTHERWISE PROVIDED BELOW, ESCROW IS TO CLOSE ON OR BEFORE DECEMBER 1, 2016, UNLESS SAID DATE IS EXTENDED BY THE MUTUAL WRITTEN AGREEMENT OF THE PARTIES. If this Escrow is not in condition to close by such date, then any party who has fully complied with this Agreement may, in writing, demand the return of its money or property; provided, however, no demand for return shall be recognized until five days after Escrow Agent shall have mailed copies of demand to all other parties at the respective addresses shown in the notice provisions below, and if any objections are raised within such five-day period, Escrow Agent is authorized to hold all money, papers and documents until instructed by a court of competent jurisdiction or mutual instructions. 5.7 Escrow Anent Responsibility.. The responsibility of the Escrow Agent under this Agreement is expressly limited to Sections 1 through 9 of this Agreement and to its liability under any policy of title insurance issued in regard to this Escrow. 5.8 Escrow Fees. Charizes and Costs. Recording fees and all usual fees, charges, and costs which arise in this Escrow shall be paid in accordance with standard and customary procedures in the County of Marin. 5.9 FIRPTA. Seller and Purchaser agree to execute and deliver as directed by Escrow Agent any instrument, affidavit, and statement, including without limitation the Non - Foreign Transferor Declaration which is attached hereto as Exhibit C. if applicable, and to perform any act reasonably necessary to comply with the provisions of FIRPTA and any similar state act and regulation promulgated thereunder. 5.10 Tax Reauirements. Escrow Agent shall prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement and tax withholding forms, including an IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or required by law. 5.11 Transfer Taxes. No transfer tax shall be due because Purchaser is a public entity. 6. Feasibilitv. 6.1 The "Feasibility Period" shall commence on the Effective Date of this Agreement first written above and shall terminate at 5:00 p.m. California Time on the date that is ten business days following such date. 0 OAK #4820-9433-1184 v3 6.2 Feasibility Continl?encv. During the Feasibility Period, Purchaser shall conduct all inspections, tests and studies of the Property as Purchaser deems necessary or desirable in connection with Purchaser's anticipated use of the Property. If Purchaser disapproves in its sole and absolute discretion any condition of the Property or the feasibility of Purchaser's intended use of the Property, Purchaser shall have the right at any time during the Feasibility Period to terminate this Agreement by written notice to Seller and Escrow Agent for any reason or for no reason whatsoever. If Purchaser so terminates this Agreement, Escrow Agent shall promptly return any portion of the Purchase Price deposited to Purchaser, Escrow Agent shall promptly deliver all documents deposited with Escrow Agent to the party that deposited such documents, Purchaser and Seller shall split all escrow and title cancellation fees and neither party shall have any further rights or obligations hereunder. 6.3 License to Enter Upon Land. Seller hereby grants to Purchaser and its agents and employees a license to enter upon the Property during the term of this Agreement for the purpose of conducting feasibility studies and physical examinations of the Property, including soils and environmental tests. Purchaser shall not unreasonably interfere with Seller's Property. Purchaser agrees to indemnify, protect, defend and hold Seller and the Property free and harmless from and against any and all damages, claims, losses, liabilities, costs and expenses arising from such activities of Purchaser, its agents and employees, and from all mechanic's, materialmen's and other liens resulting from any such conduct. 6.4 Property Documents. To facilitate Purchaser's due diligence efforts, Seller shall deliver the Property Documents (as hereinafter defined) to Purchaser no later than five business days after the Effective Date. The term "Property Documents" shall mean and refer to all maps, drawings, surveys, plans, tests, studies, reports, records, permits, insurance notices and certificates, and other documents in the possession of Seller, or readily available to Seller, which refer or relate to the Property in any way. Seller shall deliver a letter to Purchaser setting forth a detailed list of the Property Documents actually delivered to Purchaser. Seller's failure to deliver the Property Documents within said five-day period, shall extend the Feasibility Period for each day until Seller has complied with this requirement. If Close of Escrow fails to occur for any reason other than breach by Seller, Purchaser shall return all Property Documents to Seller. 7. Conditions Precedent to Close of Escrow. 7.1 Purchaser's Conditions Prior to Closinl?. The obligation of the Purchaser to complete the purchase of the Property is subject to the satisfaction of the following conditions: (i) Seller shall deliver through Escrow the executed, acknowledged and recordable Grant Deed. (ii) Seller shall deliver through Escrow an executed Tenant Waiver and Release, in the form of Exhibit D. from each tenant and/or lessee occupying or owning an interest in the Property under a lease or rental agreement with Seller. Seller shall not be required to deliver an executed Tenant Waiver and Release from Marin Auto and Peter and Victoria Mozaffari. 5 OAK 44820-9433-1184 v3 (iii) Seller shall deliver through Escrow a Non -Foreign Transferor Declaration, if applicable. (iv) Seller shall deliver through Escrow such other documents as are necessary to comply with Seller's obligations under this Agreement. (v) Seller shall not be in default of any of its obligations under the terms of this Agreement, and all of Seller's representations and warranties made as of the date of this Agreement shall continue to be true and correct as of the Close of Escrow. (vi) Escrow Agent shall have committed to deliver to Purchaser an owners title insurance policy as required by Section 3 hereof. On failure of any of the conditions set forth above, Purchaser may terminate its obligations under this Agreement with no further liability to Seller by giving notice to Seller on or before the expiration of the time allowed for each condition. In the event of such termination by the Purchaser, the Escrow Agent shall return any portion of the Purchase Price already deposited, to Purchaser. Purchaser's failure to elect to terminate its obligations shall constitute a waiver of the condition by Purchaser. 7.2 Seller's Conditions Precedent to Closing,. The obligation of Seller to complete the sale of the Property is subject to the satisfaction of the following conditions: (i) Purchaser shall not be in default of any of its obligations under the terms of this Agreement, and all of Purchaser's representations and warranties made as of the date of this Agreement shall continue to be true and correct as of the Close of Escrow. (ii) Purchaser shall have deposited with the Escrow Agent the duly executed and acknowledged Certificate of Acceptance and other documents required to close Escrow, the Purchase Price in immediately available funds, and the Purchaser's share of closing costs described herein. On failure of any of the conditions set forth above, Seller may terminate its obligations under this Agreement with no further liability to Purchaser by giving notice to Purchaser on or before the expiration of the time allowed for each condition. Seller's failure to elect to terminate its obligations shall constitute a waiver of the condition by Seller. 8. Closing Statement. Seller instructs Escrow Agent to release a copy of Seller's closing statement to Purchaser. 9. Loss or Damage to Propertv. Loss or damage to the Property, by fire or other casualty, occurring prior to the recordation of the Grant Deed, shall be at the risk of Seller. In the event that loss or damage to the Property, by fire or other casualty, occurs prior to the recordation of the Grant Deed, Purchaser may elect to either terminate this Agreement or waive the right to terminate and close Escrow without any offset to the Purchase Price or any rights to insurance proceeds, if any. 3 OAK 44820-9433-1184 0 10. Warranties, Representations, and Covenants of Seller. Seller hereby warrants, represents, and/or covenants to Purchaser that: 10.1 Pending Claims. To the best of Seller's knowledge, there are no actions, suits, claims, legal proceedings, or any other proceedings affecting the Property or any portion thereof, at law, or in equity before any court or governmental agency, domestic or foreign, except as disclosed in Recital D. 10.2 Encroachments. To the best of Seller's knowledge, there are no encroachments onto the Property by improvements on any adjoining property, nor do any improvements located on the Property encroach on other properties, except for the private light poles that encroach onto the City's right of way. 10.3 Seller's Title. Until the Close of Escrow, Seller shall not intentionally do anything which would impair Seller's title to any of the Property. 10.4 Condition of Land. To the best of Seller's knowledge, there are no substances, materials or conditions on the Land that qualify as a Hazardous Material (as defined below) or otherwise violate any Environmental Law (as defined below). For the purposes of this Agreement, the following items have the following meanings: (i) "Environmental Law" means any law, statute, ordinance or regulation pertaining to health, industrial hygiene or the environment including, without limitation, CERCLA (Comprehensive Environmental Response, Compensation and Liability Act of 1980) and RCRA (Resources Conservation and Recovery Act of 1976). (ii) "Hazardous Material" means any substance, material or waste which is or becomes designated, classified or regulated as being "toxic" or "hazardous" or a "pollutant" or which is or becomes similarly designated, classified or regulated, under any Environmental Law, including asbestos, petroleum and petroleum products. 10.5 Conflict with Other Obliaation. To the best of Seller's knowledge, neither the execution of this Agreement nor the performance of the obligations herein will conflict with, or breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease, covenants, conditions and restrictions, or other agreement or instrument to which Seller or the Property may be bound. 10.6 Authoritv. Seller is the owner of and has the full right, power, and authority to sell, convey, and grant the Property to Purchaser as provided herein and to carry out Seller's obligations hereunder. If Seller is a trust, corporation, partnership, limited liability company or other similar entity, each party executing this Agreement on behalf of Seller represents and warrants that such person is duly and validly authorized to do so on behalf of Seller. 10.7 Bankruntcv. Neither Seller nor any related entity is the subject of a bankruptcy proceeding, and permission of a bankruptcy court is not necessary for Seller to be able to transfer the Property as provided herein. 7 OAK #4820-9433-1184 0 10.8 Governmental Compliance. To the best of Seller's knowledge, Seller has not received any notice from any governmental agency or authority alleging that the Property is currently in violation of any law, ordinance, rule, regulation or requirement applicable to its use and operation. If any such notice or notices are received by Seller following the date this Agreement is signed by Purchaser, Seller shall notify Purchaser within ten days of receipt of such notice. Seller then, at its option, may either elect to perform the work or take the necessary corrective action prior to the Close of Escrow or refuse to do so, in which case Seller shall notify Purchaser of such refusal and Purchaser shall be entitled to either close Escrow with knowledge of such notice(s) or terminate this Agreement. 10.9 Tenant Waiver and Release. As of the Close of Escrow, every tenant or lessee that has any possessory or ownership interest in the Property, whether by lease, license or other agreement has provided a Tenant Waiver and Release. 10.10 Non -Foreign Transferor. Seller is not a "foreign person" within the meaning of the Foreign Investment in Real Property Act or any similar state statute, and Seller will comply with all of the requirements of the Foreign Investment in Real Property Act and any similar state statute in connection with this transaction. 10.11 Chante of Situation. Until the Close of Escrow, Seller shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 10 not to be true as of the Close of Escrow, immediately give written notice of such fact or condition to Purchaser. 11. Survival. Any covenants, agreements, and indemnifications that this Agreement does not require to be fully performed prior to Close of Escrow shall survive Close of Escrow and shall be fully enforceable after Close of Escrow in accordance with their terms. 12. Broker's Commission. Seller and Purchaser each warrants and represents that it has not engaged the services of any agent, finder or broker in connection with the transaction which is the subject of this Agreement, and that it is not liable for any real estate commissions, broker's fees or finder's fees which may accrue by means of the sale of the Property. Seller and Purchaser agree to and do hereby indemnify and hold the other harmless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from any broker, agent or finder, licensed or otherwise, which it has employed in connection with the transaction covered by this Agreement. 13. Waiver, Consent and Remedies. Each provision of this Agreement to be perfornied by Purchaser and Seller shall be deemed both a covenant and a condition and shall be a material consideration for Seller's and Purchaser's performance hereunder, as appropriate, and any breach thereof by Purchaser or Seller shall be deemed a material default hereunder. Either party may specifically and expressly waive in writing any portion of this Agreement or any breach thereof, but no such waiver shall constitute a further or continuing waiver of a preceding or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require further compliance by the other party with any breach or provision so waived. The consent by one party to any act by the other for which such consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or 8 OAK 44820-9433-1184 0 any similar acts in the future. No waiver or consent shall be implied from silence or any failure of a party to act, except as otherwise specified in this Agreement. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement shall be cumulative and no one of them shall be exclusive of any other. Except as otherwise specified herein, either party hereto may pursue any one or more of its rights, options or remedies hereunder or may seek damages or specific performance in the event of the other party's breach hereunder, or may pursue any other remedy at law or equity, whether or not stated in this Agreement. 14. Attomevs' Fees. In the event any declaratory or other legal or equitable action is instituted between Seller, Purchaser and/or Escrow Agent in connection with this Agreement, then as between Purchaser and Seller, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses, including court costs and reasonable attorneys' fees, and all fees, costs and expenses incurred on any appeal or in collection of any judgment. 15. Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by reputable overnight courier, or sent by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed received upon the earlier of. (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if mailed, three business days after the date of posting by the United States post office; or (iii) if delivered by Federal Express or other overnight courier for next business day delivery, the next business day. Notice of change of address shall be given by written notice in the manner described in this Section. Rejection or other refusal to accept or the inabilitv to deliver because of a change in address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Unless changed in accordance herewith, the addresses for notices given pursuant to this Agreement shall be as follows: If to Seller: The Second Amended Geister Family Trust of 1991 C/O Joan Johnson 2180 Magnolia Avenue Petaluma, CA 94952 with a copy to: Daniel A. Gamer, Esq. Attorney at Law 55 Professional Center Parkway #H San Rafael, CA 94903 Telephone: (415) 472-6655 If to Purchaser: City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 Attention: Thomas Adams Telephone: (415) 485-3134 6 OAK 44820-9433-1184 v3 with a copy to: Burke, Williams & Sorensen, LLP 1901 Harrison Street, 9th Floor Oakland, CA 94612-3501 Attention: Benjamin Stock Telephone: (510) 273-8780 16. Default. Failure or delay by either party to perform any covenant, condition or provision of this Agreement within the time provided herein constitutes a default under this Agreement. The injured party shall give written notice of default to the party in default, specifying the default complained of. The defaulting party shall immediately commence to cure such default and shall diligently complete such cure within ten days from the date of the notice. The injured party shall have the right to terminate this Agreement by written notice to the other party in the event of a default which is not cured within such ten-day period. 17. Interpretation. In this Agreement (unless the context requires otherwise), the masculine, feminine and neuter genders and the singular and the plural shall be deemed to include one another, as appropriate. The words "include" and "including" shall be interpreted as though followed by the words "without limitation." This Agreement shall be interpreted as though jointly prepared by both parties. 18. Entire Aareement. This Agreement and its exhibits constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and the final. complete and exclusive expression of the terms and conditions thereof. All prior agreements, representations, negotiations and understanding of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein. 19. Captions. The captions used herein are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof. 20. Governin:? Law. This Agreement and the exhibits attached hereto have been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California without reference to its choice of laws rules. 21. Invaliditv of Provision. If any provision of this Agreement as applied to any party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way effect (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. 22. Amendments. No addition to or modification of any provision contained in this Agreement shall be effective unless fully set forth in writing by Purchaser and Seller. 23. Counterparts. This Agreement may be executed in any number of identical counterparts and each counterpart shall be deemed to be an original document. All executed counterparts together shall constitute one and the same document, and any counterpart signature pages may be detached and assembled to form a single original document. This Agreement may 10 OAK 44820-9433-1184 v3 be executed by signatures transmitted by facsimile, adobe acrobat or other electronic image files and these signatures shall be valid, binding and admissible as though they were ink originals. 24. Time of Essence. Time is of the essence of each provision of this Agreement. 25. Bindina Upon Successors. The terms and conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties hereof. 26. Offer. Any delivery of unsigned copies of this Agreement is solely for the purpose of review by the party to whom delivered, and neither the delivery nor any prior communications between the parties, whether oral or written, shall in any way be construed as an offer by Purchaser or Seller, nor in any way imply that Purchaser or Seller is under any obligation to enter the transaction which is the subject of this Agreement. The signing of this Agreement by Seller constitutes an offer which shall not be deemed accepted by Purchaser unless and until this Agreement has been executed on behalf of Purchaser by its City Manager or his/her designee after adoption of a resolution or minute action by the City Council of the City of San Rafael. Seller agrees that this offer shall be acceptable and cannot be revoked for a period of 30 days following presentation by Seller. 27. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in sections 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time. 28. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 29. Cooperation. Each party agrees to cooperate with the other in the closing of this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement. 30. Reservation of Citv's Riaht to File Suit. Seller understands and acknowledges that if for any reason this Agreement is terminated, Purchaser expressly reserves its rights to bring an action in the Superior Court of the State of California, County of Marin, pursuant to the requirements set forth in the eminent domain statutes of the State of California. Ii OAK #4820-9433-1184 v3 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. SELLER: THE SECOND AMENDED GEISTER FAMILY TRUST OF 1991 7 By: Michael Geister Its: Co -Trustee By: t 3--a'l"' Joan Johnson Its: Co -Trustee 12 OAK #4820-9433-1184 v3 PURCHASER: CITY OF SAN RAFAEL, a California municipal corporation By: Name: Its: AA if •^ approved as to P rnu EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Exhibit A OAK 44820-9433-1184 v3 p�F Recording Requested by and After Recordation Mail to: 1ha la �c S� +e,nne yrk io City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 Attention: Tom Adams, Economic Development lt'eN# 01O -13a-tV I Illlllllllllllll IIIIIIIIIIIIIIIIII�IIII 2016-0064.964 Recorded I REC FEE Official Records I County of I Harin I RICHARD 11. BEHSOH I Assessor -Recorder I County Clerk I la 09:05AII 28 -Hou -2016 I Page 1 of 4 This document is exempt fi•onz the payment of a recording fee pursuant to Government Code § 27383 GRANT DEED For good and valuable consideration, receipt of which is hereby acknowledged, Michael Geister and Joan G. Johnson, Co -Trustees of the Second Amended Geister Family Trust of 1991, hereby grants to the City of San Rafael for right-of-way purposes, all of grantor's right, title, and interest in and to the real property located in San Rafael, Marin County, California, described in Attachment No. 1 attached hereto, including but not limited to any easements, rights, and privileges appurtenant thereto and any improvements located thereon. Michael Geister and Joan G. Johnson, Co -Trustees of the Second Amended Geister Family Trust of 1991 By: 2e Geister Its: Co -Trustee By:4` J n�son l Its: Co -Trustee THE UNDERSIGNED GRANTOR D CLARES: Documentary Transfer Tax $ k/ Pii' IA31 COUNTY $ CITY [ ] Computed on full value of property conveyed, or [ ] Computed on full valueless liens and encumbrances remaining at time of sale (applicable to County tax only) [ ] Unincorporated area [A City of Sd n PA6ei 0.00 GENERAL CALIFORNIA ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document. State of California } )ss. County of r )'LGc�i,(w } On L -t' Ll % gr i c before me -J 0-01AX.." - '6 0 L'- L -id -ax Notary Public (here insert name and title of the officer) personally appeared _ _i�L (,�!IV Cr• ,�I�Gt�'Yl. ),i"YtJ who proved to me on the basis of satisfactory evidence to be the persont&s whose name(, is/aresubscribed to the within instrument and acknowledged to me that he/she/th" executed the same in Pais/her/their authorized capacity(i*, and that by Pais/her/tba4 -- signature(k on the instrument the person or the entity upon behalf of which the person 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. LL 1 Signature - r, A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of that document. State of California } )ss. County of f -'(k r/';vv } (Seal) != \ JACKIE L. BOCCABELLA � COMM #2.100322 : < ;� j� NOTARY PUSLIC - CALIFORtdIA MAP.IN COUNTY !4,10'.6 My Ctnm Expires rete 10 2D19 On U before me � � �� l -z� � s, �-��� t ; /U �� 1� y P" � Notary Public (here insert 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 File No.: 01180-233831 CA Notary Acknowledgement HIROKO SUZUKI Commission No.2065412 A ' NOTARY PUBLIC -CALIFORNIA MARIN COUNTY My Comm. Expires MAY 21, 2018 (Seal) Atlaclhment No I LEGAL DESCRIPTION OF THE PROPERTY The land referred to herein is situated in the State of California, County of Marin, City of San Rafael and described as follows: Beginning at the Northeasterly corner of the parcel of land conveyed to Marin Municipal Water District by Deed recorded July 22, 1927 in Book 123, Page 242, Official Records of Marin County; thence along the Easterly line of said parcel South 80 41' 59" West 193.89 feet to the Southerly line of said parcel; thence along last said line North 75° 03' 56" West 44.96 feet; thence North 15° 06' 53 East 190.12 feet to the Northerly line of said parcel; thence along last said line South 81' 29' 39" East 23.45 feet to the point of beginning. APN: 014-132-10 (End of Legal Description) Attachment No. 1 OAK #4820-9433-1184 v3 Certificate of Acceptance I This is to c rtify that the interests in real property conveyed by Grant Deed dated 2016, from Michael Geister and Joan Johnson, Co -Trustees of the Second Amended Geister amily Trust of 1991, as grantor, to the City of San Rafael, a municipal corporation, as grantee, are hereby accepted by the City Manager of the City of San Rafael pursuant to authority conferred by Resolution No. 1-4-a jq of the City Council adopted on Or , 2016, and the City of San Rafael, as grantee, consents to recordation of said Grant Deed. Date: d2 , 2016 By: bimShut;,—City an ger Certificate of Acceptance OAK #4820-9433-1184 v3 EXHIBIT C FIRPTA AFFIDAVIT Section 1445 of the Internal Revenue Code of 1954, as amended ("Code"), provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon the disposition of a U. S. real property interest by Michael Geister and Joan Johnson, Co -Trustees of the Second Amended Geister Family Trust of 1991, as Transferor, the undersigned hereby certifies the following: 1. The Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder); 2. The Transferor's U. S. employer identification number or social security number is 47-6853947 The Transferor's office address or mailing address is Joan Johnson, 2180 Magnolia Avenue, Petaluma CA 94952. The Transferor understands that this Certification may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both. Under penalty of perjury the undersigned declares that he/she has examined this Certification and to the best of his/her knowledge and belief it is true, correct, and complete, and fiu-ther declares that he/she has authority to sign this document on behalf of the Transferor. Dated: a� �?,O 2016 OAK 44820-9433-1184 v3 Michael Geister and Joan Johnson, Co -Trustees of the Second Amended Geister Family Trust of 1991 By: Com- Mich� ael Geister Its: Co -Trustee By: ��-``L---- Joan Joh6son Its: Co -Trustee Exhibit C TENANT WAIVER AND RELEASE O' z 14 16'CO ✓ e ("Tenant"), for itself and for its agents, successors and assigns, fully releases, acquits and discharges the City of San Rafael and its officers, officials, council members, employees, attorneys, accountants, insurers, and agents, and all entities, boards, commissions, and bodies related to any of them from any and all claims, actions, demands, liabilities or costs ("Claims") arising out of or related to the City of San Rafael's acquisition of 750 Grand Avenue, San Rafael, California (the "Property") for the Grand Avenue Improvement Project (the "Project"), including, without limitation, Claims for compensation, business goodwill and lost income (past or future), relocation costs or benefits, severance damages, economic or consequential damages, and other Claims of any kind and nature, claimed by Tenant, its agents, successors and assigns, by reason of the City of San Rafael's acquisition of the Property. In connection with this Waiver and Release, Tenant expressly waives all rights under California Civil Code Section 1542, which provides that: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WMCH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." f1 ( ANT'S INITIALS) TENANT: .619X1z'/1- �RQt✓,✓� , a Date: c9lZ '2016 By: Name: x? ��111R.yc �j/1✓,/� Its: Exhibit D CONSENT OF ESCROW AGENT Escrow Agent hereby acknowledges receipt of this Agreement, which has been executed by the parties. Escrow Agent hereby agrees (i) to be and serve as Escrow Agent pursuant to this Agreement; and (ii) subject to further supplemental escrow instructions mutually agreeable to the parties and Escrow Agent, to be bound by the Agreement in the performance of its duties as Escrow Agent and to hold and disburse all funds received by Escrow Agent in accordance with the provisions of this Agreement; provided, however, Escrow Agent shall have no obligation, liability, or responsibility under any amendment to the Agreement unless and until the same is accepted by Escrow Agent in writing. Escrow Agent further agrees to immediately deliver to each of Seller and Purchaser's counsel one original counterpart of this Agreement executed by the Parties and Escrow Agent. Escrow Agent has assigned this Agreement file number STEWART TITLE COMPANY By: Name: _ Its: OAK #4920-9433-1184 v3