HomeMy WebLinkAboutAgenda Packet 5.DPart1 09/13/2010r. ~ a~ALtr ~
DATE: September 13, 2010
~l~~mc~~ It~nv #5.~
' TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Bonne Gaebler, Housing Administrator
SUBJECT: (1) Resolution Of The City Council Of The City Of Petaluma Approving
Termination Of Memorandum Of Understanding With Petaluma Ecumenical
Properties Regarding'The Property At.95`1 Petaluma Boulevard South and
Authorizing. the Execution of the Documents and Further Action in Connection
Therewith
(2) Resolution Of The PCDC Approving A Purchase And Sale Agreement And A
Commercial Lease Agreement By And Between The Petaluma Community
Development Commission And PEP Housing For The Purchase And Leaseback
Of Real Property-Located At 951 Petaluma.Boulevard South And Authorizing
The Execution Of Documents And Further Action In Connection Therewith
RECOMMENDATION
It is recommended that the City Council/.Commission adopt the attached resolutions approving
the termination of a Memorandum Of Understanding. with Petaluma Ecumenical Properties
regarding the property at 951 Petaluma Boulevard South and: approving a Purchase And Sale
Agreement and a Commercial Lease Agreement by and between the Petaluma Community
Development Commission And PEP Housing for the purchase and leaseback of real property
located at 95.1 Petaluma Boulevard South and authorizing the execution of documents and
further action in connection therewith.
BACKGROUND
The ,City of Petaluma has historically acted in partnership with nonprofit developers to address'
the Council and P
CDC's_ goal of providing. safe, decent, affordable housing. for the community's
low=income semors~. As part of that goal, the City assisted Petaluma Ecumenical Properties (PEP
'H'ousing')'in the purchase of property at 951 Petaluma;Boulevard South to serve as a corporate
office facility and a future senior housing development.
The City's initial financial-participation (2006) consisted of a "deferred second loan" in the
amount of $1,431,000. That, loan was secured by a Deed of Trust and evidenced by a Note and a
Memorandum of Understanding (MOU) containing certain conditions regarding future
development of the site. PEP also holds a first mortgage with First Community Bank in the
amount of $965.,9.76. Due to.the economic downturn, a financial restructuring is necessary to
Agenda Review:
City Attorney FinanceDrector_~~ CitylVlan
provide PEP with the financial aid to more efficiently address its primary mission of providing
affordable senior housing. The actions required to achieve that restructuring are to terminate the
existing MOU, pay off PEP's first loan with the bank in the course ofPCDC's purchase of the
property and enter into alease-back agreement between PCDC and PEP.
Public noticing of these actions was conducted; no comments have been received as of the
distribution of this staff report.
DISCUSSION
The payments on PEP's first mortgage to First Community Bank. are beyond PEP's current
capacity to pay. At the outset of PEP's purchase of the site;, a sizeable. portion of those payments
was offset by a commercial tenant. That. tenant vacated the .site at the downturn of the
commercial real estate market and PEP has been unable to locate another tenant. PEP Housing
and City staffs developed. a plan of action, which was initially presented to Council in April.
Step one of the strategy was Council approval of the sale of a PEP property to be utilized to pay
down the first mortgage; that has been completed. Step two was initiated at May budget
hearings when Council approved. a budget allocation to complete the purchase/sale/leaseback
transaction. Approval of "the attached documents will complete that final step.
FINANCIAL IMPACTS
The 2010-2011 low-mod housing budget includes an allocation in the amount of $998,000 to be
utilized. to pay off PEP's first. mortgage as of October 1, '2010. PCDC will then own the property
to be held with the primary goal as a landbanking site for future senior housing. In the
meantime, PCDC will lease the property back to PEP for continued use as their corporate offices.
The lease agreement contains a provision mirroring those that the City charges both COTS and
PPSC for rental of various City properties, $1.00/year. As is the case with the City's other
nonprofit partners, City-subsidized rents allow those agencies. to utilize their scarce resources to
provide the services so valuable to .the community.
ATTACHMENTS
1. Resolution terminating existing MOU
2. Termination of City MO.U
3. Resolution for Purchase, and Leaseback
4. Purchase and Sale Agreement and Lease
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ATTACHMENT #1
Resolution No.
®f the City of Petaluma, California
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA
APPROVING TERMINATION OF MEMORANDUM OF iJNDERSTANDING WITI~
PETALUMA ECUMENICAL .PROPERTIES REGARDING THE PROPERTY AT 951
PETALUMA BOULEVARD: SOUTH AND AUTHORIZING THE EXECUTION OF
DOCUMENTS ANI) FURTHER ACTION IN CONNECTION THEREWITH
WHEREAS, in June 2006 the City ofPetaluma entered into a Memorandum of Understanding
("MOU") with Petaluma Ecumenical Properties, a California nonprofit public benefit
corporation ("PEP") and First Community Bank ("Bank") regarding the purchase by PEP of the
real property located at 951 `Petaluma Boulevard South (the "Property"), located in the Petaluma
Community Development Project Area (the "Project Area"), for development of portions of the
Property as affordable senior housing; and
WHEREAS, the MOU documented Bank's first loan to PEP in the amount of $1,250,000, and
City's second loan to PEP in the amount of $.1,431,000 from the Low and Moderate Income
Housing Fund of the Petaluma. Community Development Commission ("PCDC"), for a portion
of the purchase price and feasibility costs. Both loans were evidenced. by promissory notes and
secured by deeds of trust recorded 'in the Official Records of Sonoma County; and
WHEREAS, as a result of adverse.market conditions, the expected housing development and
other actions contemplated by the 1VIOU have not occurred; and
WHEREAS, PCDC desires to purchase the Property and lease it back to PEP for a term not to
exceed four years, pending development of the Property for affordable housing, and PCDC and
PEP will enter into a Purchase and Sale Agreement and Commercial Lease, whereby the Bank
loan will be paid in full prior to close of escrow.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City'hereby:
Approves the Termination of Memorandum of Understanding"with Petaluma Ecumenical
properties and First Community Bank, attached as Exhibit A, `arid authorizes the City
Manager or his designee to execute it; and to make such changes, with the advice of
counsel, which do not materially or substantially increase the City's obligations
thereunder..
2. Authorizes the City Manager or his designee to sign all documents, including without
limitation a Release and Reconveyance, to make all approvals and to take all actions
necessary or appropriate to implement the Termination of Memorandum of
Understanding and the City's responsibilities thereunder.
ATTACHMENT #2
TERMINATION OF MEMORANDUM O:F U.NDERSTANDING
BETWEEN THE CITY OF PETALUMA AND PETALUMA ECUMENICAL PROPERTIES
REGARDING THE PROPERTY AT 951 PETALUMA BOULEVARD SOUTH
This Termination of Memorandum of Understanding,("Termination Agreement")
is entered into as. of , 2010:("Effecti.ve Date") by .and among
the City of Petaluma, ,a Califomi'a municipal corporation ("City"), Petaluma .Ecumenical
Properties, a California nonprofit corporation, ("PEP"), and First Community Bank (the
"Bank"). City, P:EP and Bank are-referred to herein individually as "Party" and
collectively as the "Parties".
RECITALS
A. On July 25, 2006, City a'nd PE'P entered into that certain Memorandum of
Understanding ("MOU") regard'ing'the purchase by PEP of'the real property located at
951 Petaluma Boulevard South in the City of Petaluma and commonly known as
Sonoma County Assessor's Parcel Number 008-530-007; as more particularly
described in Exhibit A atfiached hereto (thee"Property"). Asset forth in the MOU, PEP
intended to occupy an existing office building and to develop the vacant portion of the
Property as an affordable senior housing development.
B. .Pursuant to Resolution, 20:06-111 N.C.S., adopted by the City Council of the City
on June 5.,.2006, City authorized a loan to PEP in the amount of One Million Four
.Hundred Thirty Two Dollars ($1;432,000) for a portion of the. purchase price. and
feasibility costs for the Property ("City Loan"). Pursuant to the MOU, PEP agreed to
split the Property into an, "Office Parcel" for its use and a "Residential Parcel" for the
housing development. The MOU provided that the City Loan. would. be used solely for
acquisition, feasibility costs and eventual development of the Residential Parcel. The
MOU further provided that within five years, PEP would diminish the. size of the Office
Parcel and transfer the additional available land to the Residential Parcel.
C. Bank agreed to lend PEP approximately One Million Two Hundred Fifty
Thousand Dollars ($1,2'50,000) pursuant to the terms of agreements and documents
between PEP and Bank for acquisition of the Property. Bank executed the MOU solely
for purposes"of agreeing to the future proposed lot line adjustmentand recoriveyance
from the lien of Bank's Deed ofiTrust of the Residential Parcel.
D. Pursuant to the MOU, PEP executed that certain Promissory' Note ("City Note")
and thaf certain Deed of Trust and Assignment ofi Rents ("City Deed of Trust"),
recorded on July 31, 2006;. in the Official. Records of Sonoma County (the `'Official
Records") as Instrument No., 2006094344.
E. As a result of adverse market conditions; the lot line adjustment has not occurred
and the affordable housing project has no been developed by PEP. The Petaluma
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Community Development Commission ("PCDC") desires to purchase the Property from
PEP, and PEP desires to sell the Property to PCDC for such use as it determines, in its
sole and absolute discretion, is appropriate. In the interim, PCDC is willing to lease the
Premises; as defined in a proposed Commercial Lease Agreement, to PEP through
August 30, 2014. Approval of the proposed Purchase .and Sale Agreement and
Commercial Lease Agreement with PEP is scheduled for:consideration by PCDC
following a noticed public hearing on September 13, 2010.
F. Accordingly, the Parties desire to terminate the MOU as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged; the .Parties agree as follows:
1. Recitals. The foregoing Recitals are true and correct and made a part hereof.
2. Termination of MOU. Upon PCDC's approval of the Purchase and Sale
Agreement and Commercial Lease Agreement, the'MOU and all rights and obligations
of the Parties thereunder, except.. such matters as are expressly stated therein to survive
such termination, are and shall be hereby terminated.
3. Forgiveness of City Loan and Release and Reconveyance by City. City agrees
to forgive repayment of the City Loan and to execute and cause. to be recorded in the
Official Records a Release of Note and Reconveyance of Property Interest with respect
to the City Note and City Deed of Trust.
4. Release and Reconveyance by Bank. In connection with the close of escrow for
PCDC's purchase of the Property, Bank's loan shall be fully repaid from PCDC's
purchase price, and upon such payment Bank therefore agrees to execute and cause to
be recorded in the Official Records. a Release of Note and Reconveyance of~Property
with respect to Bank's security interest in the Property.
5. Further Assurances. The Parties agree to execute such other documents and to
take such other and further actions as necessary to effectuate the purposes of this
Agreement.
6. Mutual Release. Except as to Surviving Obligations, .which. are not waived or
relinquished by'the Parties, the Parties hereby release and discharge one another and
their successors and' assigns, agents, employees and representativesfrgm any and all
obligations; claims, actions and liabilities, whether past, .present or future, of whatever
character; known or unknown, by reason of or existing in connection with the MOU (the
"Settled ,Obligations")., The Parties acknowledge that they have read and understand
the terms of Section 1542 of the California Civil Code, which 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
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materially affected his or her settlement wifh the debtor.
The Parties hereby waive-and relinquish all rights and benefits they, and each of them,
may have under Civil Code Section '1542 with respect to the Settled Obligations, and
acknowledge that the consegiaenee of such waiver and relinquishment is that no Party
may make a claim against ,another Party for damages that: may be discovered in the
future with respect to the Settled Obligations.
7. Litigation Costs. If any legal action or other proceeding`, ,including arbitration or
action for declaratory relief; is brought to enforce this Agreement or because of an
alleged breach ordefault in connection with this Agreement, th'e prevailing Party shall
be entitled to recovery reasonable attorneys' fees and other costs of such legal action or
other proceeding, in addition to any other relief to which such Party may be entitled.
8. Non-Liability of Officials; Employees and Agents. No member, official, employee
or agent of City shall be personally liable to Owner or Developer or their successors in
interest in the event of any default or breach by Agency in connection with this
Agreement.
9. Entire Agreement: This Agreement, including Exhibit A attached hereto and
incorporated herein by this reference, contains the entire agreement between the Parties
with respect to the subject matter hereof, and supersedes all prior written or oral
agreements, understandings, representations or statements between the Parties with
respect to the subject matter hereof.
10. Counterparts. This_Agreement may be executed in, one or more counterparts,
each of which shall be an .original and all of which taken together shall constitute one
instrument.
11. Severability. 1f any term, provision, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall continue in `full force and effect unless an essential purpose of this
Agreement is defeated by such invalidity or unenforceability.
12. Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with tfe laws of the State of California without regard to principles of
conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the
'Superior Court of Sonoma County, California or in the Federal District Court for the
Northern District of California.
13. Construction. The Parties ,have had a full and fair opportunity to review and
negotiate the provisions of this Agreement, and therefore any'ambiguities herein shall
not be construed or resolved against the drafting Party.
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IN WITNESS WHEREOF; the Parties have executed this Termination of Memorandum
of Understanding as of the date first written above.
CITY OF PETALUMA
By:
John Brown, City Manager
Attest:
Claire Cooper, City Clerk.
Approved as to form:
Eric W. Danly, City Attorney
PETALUMA ECUMENICAL RROPERTIES
By:
Mary Stompe, Executive _Director
FIRST COMMUNITY BANK
By:
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ATTACHMENT #3
Resolution No.
PETALUMA COMMUNITY REVELOPMENT COMMISSION
RESOLUTION APPROVYNG A PURCHASE AND SALE AGREEMENT AND A
COMMERCIAL LEASE AGREEMENT BY AND BETWEEN THE P.ETALUMA
COMMUNITY DEVELOPMENT COMMISSTON AND PEP HOUSING"FOR THE
PURCHASE AND LEASEBACK OF REAL PROPERTY LOCATED AT 951
PETALIJMA BOULEVARD SOUTH AND. AUTHORIZING THE EXECUTION OF
DOCUMENTS AND FURTHER ACTIONS IN CONNECTION THEREWITH
WHEREAS, the Petaluma Community Development Commission ("PCD:C") is a
redevelopment agency existing pursuant to the Community Redevelopment Law, California
Health and Safety Code Section 33.000 et seq., ("CRL"), and pursuant to the authority granted
thereunder has the responsibility to carry out the Redevelopment Plan ("Redevelopment Plan")
for the Petaluma Community Development Project Area (``Project Area"); and
WHEREAS, Petaluma Ecumenical Properties, a California nonprofit public benefit
corporation ("PEP"), is the owner of real property in Sonoma County, California located at 9.51
Petaluma Boulevard South_in the City ofPeta uma, and more particularly identified as
Assessor's Parcel No. 008-53'0-007 (the: "Property"); and '
WHEREAS, PEP desires to sell the Property and the PCDC desires to acquire the
Property to facilitate development of affordable housing, and in the interim to lease the Property
back to PEP for a term not to exceed four years; and
WHEREAS, the PCDC and PEP have negotiated a purchase and sale agreement
("Purcchase :and' Sale Ag~reemen~t") substantially in the form on file w~i`th the City ~Clenk, for the
purchase of the Property for $ ,which price is supported by market data; and
WHEREAS, the PCDC has funds available from its Low and Moderate. Income Housing
Fund for .the .purchase; and
WHEREAS, the PCDC and PEP have also negotiated a Commercial Lease Agreement
("Lease") pursuant to which PEP can retain its administrative office on the Property fora term
not to exceed four years, pendirig development, of affordable housing; and
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WHEREAS, the Property is located in the Project Area, and the purchase and leaseback
of the Property as provided for in the Purchase and Sale Agreement and in the Lease are
consistent. with and further the goals and objectives of the Redevelopment Plan and the current
Implementation Plan.
NOW, THEREFORE, BE IT RESOLVED TIIAT the Petaluma Community
Development Commission hereby approves the Purchase and Sale Agreement and the Lease,
attached as Exhibit A, and authorizes the City Manager or his designee to execute the Purchase
and Sale Agreement and the Lease, and to make such changes, with the advice of counsel, which
do not materially or substantially increase the PCDC's obligations thereunder, to sign all
documents, to make all approvals and to take all actions necessary or appropriate to implement
the Purchase and Sale Agreement and-.the Lease: and. the PCDC's responsibilities thereunder.
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ATTACI~MENT #4
DRAFT PURCHASE AND SALE AGREEMENT
THIS PURCHASE A,ND ..SALE AG>E2EEMENT (this "Agreement') is entered into
effective as of ; 2;01;0,,(the ".Effective Date") by and between Petaluma
Ecumenical Properties; a California nonprofit public benefit .corporation ("Seller") and the
Petaluma Comrriunity Development Commission, a public body;, corporate and politic
("Buyer"). Seller and Buyer:are'hereinafter referred to individually as "Party" and collectively
as "Parties."
RECITALS
A. Seller is the fee.owner of that certain real property n,Sonoma County, California,
known as Sonoma Assessor's Parcel Number 008-53'0-007, located at 95'1. Petaluma Boulevard
South in the City of Petaluma,, and more particularly described in Exhibit. A attached. hereto and
incorporated herein bythis reference (the "Land").
B. In accordance with the terms and conditions contained herein, Buyer desires to
purchase, and Seller desires to sell, the Land together with all improvements located thereon and
all easements, hereditaments; and; appurtenances: belonging t"o or inuring to -the benefit of Seller
and pertaining to the Land (all,of the foregoing collectively hereinafter„ the "Property").
' C. Buyer is a redevelopment agency existing pursuant to the .Community
Redevelo ment Law, Cali~forni'a Health:and~Safet Code Section 3-300Q et seq., and pursuant to
p Y
the authority granted. thereunder, Buyer has the responsibility to carry out the Redevelopment
Plan ("Redeevelopment Plan") for "the Petaluma Community.Development Project. Area
("Project Area").
D. The Property is located in the Project -Area; and the purchase of the Property as
provided for in tliis.Agreement s.consstentwth and furthers'the^goals and objectives.of the.
RedevelopmentPlan sand Buyer's current Implementation Plan.
E. Concurrently,herewith, Seller and the Cityof Petaluma, a California municipal
corporation (the "City")'have entered or will enter into that certain Termination of Memorandum
of Understanding, "ncorporated herein by this reference, whereby:the City will forgive an
existing loan to Seller in the amourit of One Million Four Hundred Thirty Two Dollars
($1,432,000) (the ",City .Loan") and will execute and record a Release of City Note and
Reconveyance of Property Interest secured by a City Deed of Trust.. Pursuant thereto, Seller shall
be released from and have no further obligation to Buyer or City in connection with the City
Loan.
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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties agree as follows.
1. Agreement to Sell and Purchase. Seller agrees to sell and Buyer agrees to
purchase the Property subject to. the terms and conditions of this Agreement.
2. Purchase Price. The purchase price for the Property shall be Nine Hundred Sixty
Five Thousand, Nine Hundred Severity-Six U.S. Dollars ($965,976) ("Purchase Price").
3. Conveyance of Title. On,September 30, 2010 ("Conveyance Date"), unless
extended in writing by mutual agreement of the Parties, Seller shall. convey by grant deed to
Buyer marketable fee simple title to the Property, free and clear of all recorded and unrecorded
liens, encumbrances, assessments; leases and taxes except:
(A) The provisions and effect ofthe Redevelopment Plan;
(B) Taxes -and assessments for the fiscal year irr which the escrow for this
transaction closes, which shall be prorated as of the Conveyance Date, and all taxes and
assessments for future periods; and
(C) Such other conditions, liens, encumbrances; restrictions and exceptions as
maybe approved in writing by Buyer ("Permitted Exceptions").
4. Escrow; Escrow Instructions. The Parties have established an escrow (the
"Escrow"), Number 0812006465.-JJ, to consummate the purchase and sale of the Property
pursuant to this Agreement at the office of Old Republic Title Company, 201 First Street, Suite
101, CA .94952, to the attention of Julie James ("Title Company" or "Escrow Agent") or such
other title company as maybe mutually agreed upon by the Parties. Within five (5') business
days of the Effective Date of this Agreement, the Parties shal•1 deposit. with the Escrow Agent an
executed copy of thus Agreement, which shall serve as the joint escrow instructions of Buyer and
Seller for this'transaction, together with such additional instructions as may be .executed by the
Parties and delivered to the Escrow Agent.
S. Title Documents. Buyer has caused, or will cause concurrently with the
establishment of escrow pursuant to Section 4, the Title Company to deliver to Buyer and .Seller
a preliminary Yule report ("Preliminary Report") on the Property issued by the Title Company,
setting forth all. liens, encumbrances, easements, restrictions, conditions, pending litigation;
judgments,. administrative proceedings, and other matters of record affecting Seller's` title to the
Property, together with complete and legible copies of all documents relating to exceptions listed
in the Preliminary Report ("Title Exceptions"). Buyer shall approve as a Permitted Exception
or shall disapprove each Title Exception within five (5) calendar days following the Effective
Date of this Agreement. Buyer's failure to object within such period shall be deemed to be an
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approval of the Title. Exceptions. If Buyer objects to any Title Exception, Seller shall use its
commercial best efforts at Seller's sole expense to remove. from title or otherwise satisfy each
such exception no later than five (5) calendar days prior to the Conveyance Date and. in a form
that is reasonably satisfactory to Buyer. If Seller fails to remove or satisfy any Title .Exception to
the satisfaction of Buyer, Buyer shall have the option, in its sole.discretion, to terminate this
Agreement or to accept title subject to such exception.. Tn the event Buyer elects to terminate this
Agreement, all funds and documents deposited.-into escrow by or on behalf of the Parties shall be
returned to the depositing Party, and all rights and obligations hereunder shall terminate except
for those rights and obligations which expressly survive termination pursuant to the terms of this
Agreement.
It shall be a condition to the:purehase ofthe Property amd payment of the Initial Payment
that Title Company issue a CLTA Owner's Title Insurance Policy ("Title Policy") in the amount
of the Purchase Price for the benefit and protection of Buyer, showing title to the Property vested
,, in Buyer, subject only to the Permitted Exceptions, including such endorsements as may
reasonably be requested by Buyer, no later°than the Conueyyance Date; conditioned only upon the
payment of the premium for the Title Policy and all Buyer requested endorsements.
6. Escrow Documen s and .Funds.
(A) .Seller.
(i) N,o dater than wo (2) business. days-prior to the Conveyance Date,
Seller shall deposit into escrow all of `the .following:
(a) a Grant; Deed,. substantially in. the form attached. hereto as
Exhibit B ("Grant Deed"), duly executed and acknowledged,
conveying to Buyer good and marketable fee simple title to the
Property, subject only to the Permitted Exceptions approved
pursuant to this Agreement;
(b) Seller's affidavit.ofnon-foreign status and Seller's
ert~ificatonthat Selleris a resident of California,~each .executed by
Seller under penalty of perjury as required by s"tate~ and federal law;
(c) Rent pursuant to the Lease (defined: below); 'and
(d) Such additional duly executed instruments and documents
as ;the Escrow.Agent may reasonably require to consummate the
transaction contemplated hereby.
(B) Buyer•
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(i) No later than two (2) business days prior to the Conveyance Date,
Buyer shall deposit into escrow all of the following:
(a) A duly executed Certificate of Acceptance in the form
shown in Exhibit C, as required by California Government Code
Section 272$1;
(b) A fully executed lease of the Property from Buyer to Seller
(the "Lease"), substantially in the form of the attached Exhibit D;
and
(c) Such additional duly executed instruments and documents
as the Escrow Agent may reasonably require to consummate the
transaction contemplated hereby.
(ii) No less than one (1) business day prior to the Conveyance Date,
Buyer shall deposit into escrow all ofth~e following:
(a) The Purchase Price, as adjusted by any prorations between
t17e Parties;
(b) As applicable, all governmental conveyance fees, transfer
taxes, escrow fees and recording fees; and
(c) The cost of the Title Policy and any requested
endorsements; and
(d) such additional duly executed instruments and documents
as the, Escrow Agent may reasonably require to consummate the
transaction contemplated hereby.
(C) In the event that Seller elects to have Buyer advance the charges otherwise
due from Seller pursuant to Section 6, Buyer shall deposit such charges and. such, amount. shall .be
deducted from the amount of the Purchase Price otherwise due to Seller.
7. Seller's Leaseback. Buyer agrees that commencing on October 1, 2010 and
continuing through'September 30, 2014 (the "Rental Period"), Buyer will lease' back to Seller
that portion of the Property consisting of the existing buildings thereon but excluding the existing
dock ("Leasehold. Premises"). Thereafter, without limiting Seller's obligations pursuant to the
Lease, Seller's: use and occupancy of the Leasehold Premises will be subject to all of the
following conditions, all' of which shall survive the Conveyance Date, as described more fully in
the form of Lease attached hereto as Exhibit D.
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(A) Seller will pay all costs. an_d expenses related toSeller's use of the
Leasehold Premises which accrue prior to or during the Rental Period. Such costs and expenses
shall include, without limitation, all. costs and expenses attributable to, paid, or incurred in
connection with the operation, repair, and maintenance of the Leasehold ..Premises; all water,
sewer and`utility charges:; all insurance premiums; and all charges for refuse disposal,. janitorial
services, landscape. maintenance and other services provided to the Leasehold Premises.
(B) Seller will pay; prior to delinquency, all real property taxes; possessory
interest taxes; license and permit fees; sales, use or occupancy"taxes; and general and special
assessments pertaining to the Leasehold Premises which accrue prior to or during the Rental
Period.
(C) Seller will-lease the Leasehold Premises in,i s as-is condition as of the
commencement of the Rental Period. Seller acknowledges that Buyer shall have no
.-
responsbility for the repair or maintenance of the Leasehold Premises; and Seller releases.Buyer
from all Claims related in whale or in part, directly or indirectly, fo the condition of the
Leasehold Premises.
(D) Seller-~wil~l not ~u'se or permit Hazardous Materials (as~~ defined in Exhibit E)
to be used in, on or under the .Leasehold Premises. Seller may .use. or permit the use of cleaning
and maintenance supplies used in the ordinary course of Seller's operations and used and
disposed of in compliance with. all state, federal and local laws, rules and regulations including,
without limitation, Environmenta'1 Laws as .defined in Exhibit E.
(E) Seller.shall comply with all state, federal and local laws, rules and
regulations in connection with its use and occupancy of the Leasehold Premises.
(F) Seller shall,indemnify, defend (with counsel reasonably acceptable to
Buyer) and hold harmless Indemntees, from and against all liability, loss,. cost, expense
(including without ].imitation attorneys' fees .and costs of litigation), claim, demand, action; suit,
judicial or administrative proceeding, penalty, deficiency, fine, order and damage. (all o 'tlie
foregoing; collectively`"Claims") which directly or indirectly, in whole, or in part,. are caused'by,.
ari_se in connection w~tl, .resuht from; relate to, or are alleged. to be caused or relatied to: '(i~)
Sell'er's use and occupancy of the. Leasehold Premises, or (ii) any negligence=of Seller or. its
agents; eontracfors; employees or invitees.
(G) Throughout the:Rental Period; Seller shall maintain, at Seller's expense: (i)
Comprehensive General Liability insurance i sued by a carrier authorized to .sell insurance in the
.State of `Califorrta, written on an occurrence basis, and providing coverage for bodily injury,
death and property~damage caused by or occurring. in connection with Seller's use and occupancy
of~the:Leasehold~ Premises with a policy ltriit of at least Two Million U.S, Dollars ($2,000,000)
16
per occurrence; (ii) Workers' Compensation insurance in compliance with the requirements of
law; and (iii) property insurance providing coverage against fire, casualty loss and damage to the
Leasehold Premises. Seller shall provide Buyer with satisfactory evidence of the foregoing
insurance coverage prior to the cornmericement ofthe Rental Period. and, upon Buyer's.request,
of its. continuance in-force throughout the Rental Period. The foregoing insurance policies shall
be primary and.noncontrbuting with respect. to any policies: issued by Buyer and shall name
Buyer and th'e City ofPetaluma as additional insureds Nand/or loss payees, as their interests may
appear.
8. Full and Complete: Settlement: Seller hereby acknowledges. that the Purchase.
Price, and.Buyer's Lease to Seller'as.set.forth herein, constitutes the.fu~ll and complete settlement
of any and allclaims for compensation and damages against Buyer,,by reason of Buyer's
acquisition of-the Property and any dislocation of Seller from sarne'ncludmg without .limitation,
any and all rights to participation in the redevelopment of property:in the Project Area, the value
of the Property; any and all claimsn inverse'. condemnation.. or condemnation, .and any and all
relocation benefits that Seller maybe entitled to, includingwithout Timtation advisory
,,,
assistance, actual and reasonable moving expenses, and reasonable and necessary
reestablishment expenses (collectively, "I2elocatiori Benefits"),pursuant to the California
Relocation Assistance Law (Government Code;Secton 726Q et seq) and implementing
regulations, as the same maybe amended ~(col~lectively; "Relocat~~ion~ Act"), -the nature of which
is fully known by Seller, .and. any and all other claims. that Seller may: have, whether or not
specifically mentioned herein, relating: directly or indirectly tb Buyer's acquisition of the
Property and Seller's subsequent; Pease o;f the Leasehold Premises.
In consideration of Seller's .agreement to purchase thee. Property and lease the Leasehold
Premises to Seller as set forth herein; Seller hereby voluntarily and knowingly waives, releases
and discharges forever any and all rights., demands, liabilities, obligations; claims or causes of
action in law or equity of whatever'kind or nature; whether known or unknown, whethernow
existing or hereinafter'arisng, including without limitation any potential claims for Relocation
Benefits under "the Relocaton.Act, arising from. or relating in any manner to Buyer's acquisition.
,of the Property; the :future:, termination of the Lease, or Seller's future development or use. of the
Propertyor the.Leasehold:Premises; and further waives all attorirneys' fees, costs,. disbursements,
and', expenses ncurred;in connection therewith.
S
'eller is aware of :and familar'with the provisions of Section 1542 of°the California Civil
Code which provides:
A GENERAL RELEASE DOES NOT EXTEND; TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
17
TO EXIST 1N 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.
As such provisions relate to this Section 8, Seller hereby waives and relinquishes all
rights and benefits which it may have under Section 1542 of the California Civil Code.
Seller's Initials By:
Seller acknowledges that it may have sustained damage, loss; costs or expenses which are
presently unknown and unsuspected, and which mat give rise to additional damage, loss, costs or
expenses in the future. Seller ,also acknowledges that changes in law may occur in the future
which may apply retroactively and may allow Seller to be entitled to further claims for damage,
loss, costs or expenses which are presently unknown and unsuspected. Nevertheless, Seller
hereby acknowledges that this Agreement has. been negotiated and agreed upon in light of that,
and hereby expressly waives any and all rights which it inay have under California Civil Code
Section 1542, or under any statute or common law or equitable principle of similar effect.
This acknowledgment and release survives the Conveyance Date and termination of the
Lease.
9. Due Diligence and AS-IS Sale. Seller agrees to make available to Buyer within
five. (5) business days following the Effective Date, any and all information, studies, reports,
investigations, contracts, and other obligations concerning or relating to the Property which are
in Seller's possession or which are reasonably available to Seller, including without limitation
surveys, studies, reports and .investigations concerning the Property's physical, environmental or
geological condition, habitability,. or-the presence or absence of Hazardous Materials in, on or
under the Property and the compliance by the Property with Environmental Laws; as set forth in
Exhibit. E.. ~Durin. g the'period corrimencing on the Effective Date and ending on the
tenth (10 day after the Effective Date ("Due Diligence Period") Buyer may, at
Buyer's expense; undertake an inspection, testing and review of the Property to determine if the
Property is suitable for: Buyer's intended use. During the Due D~iligence~ Period, Buyer or~its
agents. shall have the right, upon.. reasonable notice to Seller, to enter upon- the Property for the
purpose of insp:ectirig, examining, surveying and reviewing the.Property. Buyer shall obtain
Seller's' written consent, which. Seller shall not unreasonably withhold,. to .any proposed physical.
testing of`the Property. Buyer shall repair and return the Property to its. original condition after
such testing, at. Buyer's expense. .
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Should Buyer fail to approve the condition of the Property for its intended use in writing
with five (5) calendar days following the end of the Due Diligence Period, Buyer shall have the
right, exercisable by giving written notice. to Seller,. to cancel the escrow, terminate this
Agreement, and recover any and all amounts paid by Buyer to Seller or deposited with the
Escrow Agent. by or on behalf of Buyer. The exercise of this. right by Buyer shall not.. constitute a
waiver by Buyer of any other:rights Buyer may have at law or equity. Buyer acknowledges and
agrees that: (i) by purchasing the Property; Buyer shall be deemed. to have approved of all legal,
environmental, zoning, land use, seismic, title; survey and physical characteristics and conditions
of the Property; and (ii) the Property:is to be purchased, conveyed°to; and,ac~epted byBuyer in
its condition as of the end of the Due Diligence Period; "AS IS:'' WHERE IS AND WITH ALL
FAULTS, and no patent or latent defect or deficiency.in the condition:of the Property, whether or
not known. or discovered, shall affect the rights of either Seller'or Buyer hereunder, nor shall the
Purchase Price be reduced as a consequence thereof.
10. Conveyance of Title. The Parties intend for conveyance of the Property to occur
as soon. as practicable following the Effective Date, but in any event no later than September 30;
2010, unless extended by mutual agreement of the Parties or unless this Agreement is terminated
pursuant to the terms hereof or extended by mutual agreement of the Parties. The Escrow Agent
shall cause the conveyance to~ occur by: O causing the. Grant Deed to be recorded in the official.
.records of Sonoma County, California; (ii) issuing the Title Policy and delivering same to Buyer;
(iii) delivering to Seller- the monies .constituting the Purchase Price; .and (iv) delivering to Buyer
the original Grant Deed, together with a conformed copy thereof indicating recording
information thereon. Possession of the Property shall be delivered to Buyer on the Conveyance
.Date.
1.1. ,Buyer's Conditions to Conveyance. Buyer's obligation to purchase the Property
is conditioned upon: (i) the performance by Seller of each obligafori,.to be per-formed by Seller
under this Agreement within the:applicable time period, or the waiver by°Buyer of such
obligation; (ii) Seller's representations and warranties, contained„in 'this Agreement being true and
correct as of the Effective Date and the Conveyance Dated -and (iii) the commitment by Title
Company to issue and' deliver the: Title Policy, subject only to the Permitted Exceptions and
payment bf the regularly scheduled premium therefor.
Should any conditon,to closing fail to occur, excepting any such-conditions that have
been waived by Buyer, Buyer shall have the right; exercisable by giving written notice to, Seller,
to cancel; the escrow; terminate this Agreement, and :recover any'and all amounts ,paid by Buyer
,.
to Seller'or deposited with the.-Escrow Agent by or on behalf of Buyer. The exercise of'this right
by Buyer shall' riot constitute a waiver by Buyer of any other rights Buyer may have at law or in
equity.
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12. S'eller's Conditions to Closing. Seller's obligation to sell the Property pursuant
to this Agreement is conditioned upon: (i) the performance by Buyer of each obligation to be
performed by Buyer under this Agreement within the applicable time period, or waiver by
Seller of such obligation; and (ii) Buyer's. representations and warranties contained in this
Agreement being true and correct as of the Effective Date and the Conveyance Date.
13. Seller's Representations and Warranties. Seller hereby represents and warrants
that except as disclosed in writing to Buyer, as of~the Effective Date and as of the Conveyance
Date: (i) to Seller's actual knowledge. there are no buried or partially buried storage tanks
located on the Property; (ii) Seller has received no notice, warning, notice of violation,
administrative complaint, judicialcomplaint, or other formal or informal notice alleging that.
conditions on the Property are or have ever been in violation of any environmental law or
informing Seller that the Property is subject to investigation or inquiry regarding hazardous
materials on the Property or the potential violation of any environmental law; (iii) there is no
monitoring program required by the'Environmental Protection Agency or any other
governmental agency currently in effect concerning the Property; (iv) the Property has never
been used as a dump or landfill; (v) Seller has disclosed to Buyer all information, records, and
studies in Seller's possession`or reasonably available to Seller relating to the Property concerning
hazardous materials; (vi) Seller has not received any notice from any governmental. authority of
any threatened or pending zoning, building, fire, or health code violation or violation of other
governmental regulations- concerning the Property that have not previously been corrected; (vii)
no contracts, licenses, leases or commitments regarding the maintenance. or use of the Property
or allowing any third party rights to use the Property are in force which affect the Property or
which will survive the Conveyance Date; (viii) to Seller's actual knowledge there are no
threatened or pending actions, suits, or administrative proceedings against or affecting the
Property or any portion thereof or the interest of Seller in the Property; (ix) to Seller's actual
knowledge there are no threatened or pending condemnation, eminent domain, or similar
proceedings affecting the Property or any portion thereof; (x) Seller has not received any notice
from any insurer of defects of the Property which have not been corrected; (xi) to .Seller's actual
knowledge all information that Seller has delivered to Buyer, either directly or through Seller's
agents, is accurate and complete; (xii) Seller is not a "foreign person" under Section 1445 of the
Internal Revenue Code; and (xii) Seller has disclosed all material facts concerning the Property
which are actually known ao Seller.
Seller .further represents and warrants that this Agreement-and all other documents
delivered or to be delivered in connection herewith prior to or on the Conveyance Dater (a) have
been duly authorized, executed, and delivered by Seller; (b) are binding obligations of Seller; (c)
are. collectively sufficient to transfer all of Seller's right, title and interest in and to the Property;
and (d) do not violafe the provisions of any agreement to which Seller is a party or which affects
the Property. Seller further represents and warrants that the person(s) who has (have) executed
this Agreement on behalf of Seller is (are) authorized to do, that Seller has the legal right to enter
20
into this. Agreement and to perform all. of its terms and conditions, and that this Agreement is
enforceable against Seller in accordance with its terms.
Seller shall notify Buyer of any facts that would.cause any of the representations
contained in this Agreement to be materially untrue as of the Conveyance Date and which would
adversely affectthe Property. If, before the Conveyance Date, Buyer reasonablybclieves that a
fact so disclosed by Seller materially (i.e., reasonably ..likely to cost in ~eXCess of $100,000 to
correct) acid adversely affects the Property, Buyer shall have the option to terminate this
Agreement by delivering written notice thereof to Seller. In the event Buyer elects to terminate
this Agreement, all funds and documents deposited into escrow by or on behalf of Buyer shall be
returned to Buyer,, and. all rights and obligations hereunder shall. terminate unless expressly stated
herein to survive termination. In the event Buyer elects to proceed. notwithstanding Buyer's
knowledge of the material; .adverse condition, Buyer shall be deemed to have accepted the
subject condition to the. same extent as if Buyer had discovered the condition itself and had
nevertheless approved said condition.
Seller shall indemnify; defend (with. counsel reasonably acceptable to Buyer) and hold
harmless Indemnitees from all loss, cost, liability, expense, damage or other injury, including
without limitation, attorneys' fees and all other costs and expenses incurred by reason of, or in
any manner resulting from the breach of any representation or warranty contained in this Section
13. This indemnification shall survive termination of this Agreement and the Conveyance Date.
14. Seller's Covenants. Seller covenants that from the Effective Date and through
the Conveyance Date, Seller: (i) shall not permit any liens, encumbrances, or easements to be
placed on the Property, other than Permitted Exceptions; (ii) shall not enter into any agreement
regarding the use, sale; rental, management, repair, improvement, or any other matter affecting
the Property that would be binding on Buyer or the Property after the. Conveyance Date other
than-the Lease without the prior written consent of Buyer; (iii) shall riot permit any act of waste
or act that would tend to diminish the value of the Property for any reason, except that caused by
ordinary wear and tear; and (iv) shall maintain the Property in its. condition as of the Effective
Date, ordinary wear and tear excepted, and shall manage the: Property substantially in accordance
with Seller's established practices.
15. Buyer's Representations; Warranties and _Covenants.. Buyer.. represents,
warrants and covenants that this Agreement and all other documents .delivered ,in connection..
herewith, prior to .or on the Conveyance Date: (i) have been duly authorized, executed, and
delivered`'by Buyer;, (ii) are binding obligations of Buyer; and (iii) do not violate the provisions
of any agreement. to which Buyer is a party. Buyer further represents and warrants that the
persons who have executed this Agreement on behalf of Buyer are duly authorized to do, that
Buyer has'the legal right to enter into this Agreement and to perform all of its terms and
conditions, and that this Agreement is enforceable against Buyer in accordance with its terms.
16. Indemnification.
21
(A) Seller Indemnification.. Selleragrees to defend (with counsel reasonably
acceptable to Buyer), indemnify and hold harmless Indemnitees from and against any and all
claims, liens, demands;. losses, damages, liabilities, fines, penalties; charges, administrative and
judicial proceedings and orders, and al'1 costs incurred in connection therewith (including without
limitation actual attorneys-' fees and .costs ofexperts-and- consultants)~~arising from (i) any
obligation of Seller not expressly assumed by the Buyer related to the ownership or operation of
the Property--prior to the Conveyance Date, but excluding any obligation related to existing
hazardous materials; (ii) personal injury or property damage~relati'ng to the Property which
occurred prior to the Conveyance .Date and not .caused. by the acts or omissions of the Buyer or
Buyer's agents, employees or invitees; and (ii'i) the breach of any of~Seller's representations.
made under this Agreement: The indemnity contained in this subsection shall survive the
termination of this Agreement and the Conveyance Date.
(B) Buyer Indemnification. Buyer agrees'to. defend, indemnify and hold Seller
harmless from and against any and all claims, liens, .demands, losses, damages, liabilities, fines,
penalties„charges, adm~inistrative~ and judicial proceedings and orders, and all costs incurred in
connection therewith(including w-ithout limitation actual attorneys' fees and costs. of experts and
consultants) arising from (i) 'any obligation of Buyer related fo Buyer's ownership or operation of
the Property after the Conveyance Date; (ii) personal injury or property damage relating to the
Property which occurred after the Conveyance Date and was not caused bythe acts or omissions
of Seller or Seller's employees, agents, board members; or officers ;and (iii) the-breach of any of
Buyer's representations made under this Agreement. The indemnity .contained in this Section 16
shall survive the termination of this Agreement and the Conveyance Date.
17. Damage and Destruction. hl the event of any damage or other loss to the Property,. or
any portion thereof, caused by fire or other casualty prior to the Conveyance Date in an
amount not exceeding Fifty Thousand Dollars ($50;000);.Buyer~.shall not be entitled to
terminate this Agreement;but shall be obligated to purchase the Property as provided in this
Agreement, without abatement in the Purchase Price, provided that Scller shall: (i) assign and
transfer to Buyer al of Seller's rights under any insurance-:policy coweringtlie damage or
loss; and all claims. for monies payable from Seller's insurer(s) in connection with the damage
or loss, and (ii) pay to Buyer on the Conveyance. Date. the amount of.Seller's deductible under
the insurance policy or policies covering~the damage or loss., In the event. of damage or
destruction of the. Property or any portion thereof prior to. the Conveyance Date in an amount
in excess of Fifty Thousand Dollars ($50,000), Buyer may elect either to terminate this
Agreement upon written. notice to Steller, or to consummate the purchase of the Property, in
which case Seller shall (');assign and transfer to Buyer all of S'eller's rights under any
insurance"policy cowering'the damage. or loss,. and .all claims for monies payable from ,Seller's
insurer(s) in' connection with the. damage: or doss, and (i:i) pay to Buyer on the Conveyance
Date the amount of Sell'er's deductible under the insurance policy or policies covering the
damage or loss. In the event Buyer elects to terminate this Agreement, all funds and
documents deposited into escrow by or on behalf ofBuyer shall be returned to Buyer, and all
rights and obligations,hereunder shall terminate, except such obligations as expressly survive
termination of this Agreement.
18. Brokers: Eacli Party warrants and represents to the other that no person or entity
can properly claim: a right to a real. estate commission, brokerage fee, finder's fee, or other
22
compensation with respect to the transaction contemplated by this Agreement. Each Party agrees
to defend, indemnify and hold harmless the other Party from any claims, expenses, costs or
liabilities arising. in connection with a breach of this warranty .and representation. The terms of
this .Section 18 shall survive the termination of this Agreement and the Conveyance Date.
19. Assignment. Buyer,.sha11 have the right to assign all rights; and obligations under
this Agreement to any party affiliated with' Buyer and. no approval: of any such. assignment shall
be necessary.
20. Notices. Except: as otherwise specified in this Agreement, all notices to be sent
pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective
addresses specified below or to such other address as a Party may designate by written notice
delivered to the other parties in accordarice with-this Section 20. All such notices shall be sent
by:
(A) Personal delivery, in which case notice is effective upon delivery;
(B) Certified or registered real, return receipt requested; in which case notice
shall be deemed delivered on receipt if delivery is confirmed by a return receipt;
(C) Nationally recognized-:overnight courier, with charges. prepaid or charged
to 'the sender's account, in which ease notice is effective on delivery if delivery is confirmed by
the delivery service;
(D) Facsimile transmission, in which. case .notice shall be deemed delivered
upon transmittal, provided that ,(a) a duplicate copy of the notice is promptly delivered by first-
class or certified mail or by overnight delivery; or. (b) a transmissi'ori report is generated
reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered
to have been received on ;the next business day if it 'is received after 5:00 p.m. recipient's time or
on anon-business day.
Buyer: Petaluma Community Development .Commission
11 English Street
Retaluma, CA 94952
Attention: Housing Administrator
Telephone: (707) 778-45:55
Facsimile: (707) 778-4586
:Seller: Petaluma Ecumenical Properties/PEP Housing
951 Petaluma Boulevard South
Petaluma, CA 94952
23
Attention: Executive Director
Telephone: (707) 762-2336
Facsimile: (707) 762-4657
21. I;itigation Costs'. If any legal action or any ;other°proceedng, including;
arbitration or action. for declaratory relief; is brought for the enforcement of this Agreement or
because of an alleged breacfi• oridefault in connection with this Agreement, the prevailing Party
shall be entitled to recover reasonable .attorneys' fees and other costs, in addition to any other
relief to which such Party maybe entitled.
22. Waivers; 1V1['odfcation. No waiver of any breach. of any covenant or provision
ofthis Agreement shall be deemed, a waiver of `any other covenant or'provision hereof; :and no
waiver shall be valid. unless. in writing and .executed by the waiving party. An extension of time
for performance of any obligation or act shall not be deemed an extension of the time,for
performance of any-other obligation or act, and no: extension: shall be valid. unless in writing and
executed bythe waiving party. This Agreement may"be amended or modified only by a written.
instrument executed by the'P'artes.
23. Successors. This Agreement shall bind an'd inure to the benefit of the respective
heirs, personal representatives, successors and assignees "of the Parties.
24. Provisions Not iVlerged With Deeds. None of the provisions, terms,
representations, warranties and:.covenants of this Agreement are intended to or shall be merged
by the Grant Deed, "and neither the Grant. Deed nor any other document shall affect or impair the
provisions, terms, representations, warranties and covenants contained herein. Without limiting
the generality of the foregoing, Seller's representations, warranties and covenants contained
herein shall survive the Conveyance Date.
25. Construction. The section headings .used herein are olely for convenience and
shall not" be"used to interpret. this" Agreement. The Parties aeknowled'ge: that this Agreement is the
product of negotiation. and comprgmise on the part of both Parties; and the Parties agree, that
since~both!~ParEies.have participated in the negotiation and.drafting of this Agreement, this
Agreement shall°not be~construed as if;prepared by one of the Parties, but;:rather according Yo its
fair meaning as= a whole, as "if both Parties had prepared `it.
2b.~ .Action or_Approval. Where action and%or approval by.Buyer is required under
'this Agreement, ;the 'City Manager or designee inay act on and/or approve such matter unless the
City Manager-determines in his. or her discretion that such action or approval requires referral to
Buyer's `Board.for .consideration„ The time periods afforded Buyer for any event, inspection,.
feasibility; due diligence, escrow closing or otherwise shall not be extended. by any such referral
to Buyer's Board.
24
27. Entire Agreement. This Agreement, including Exhibits A through E attached
hereto and incorporated herein by this reference, contains the entire agreement between the
.Parties with respect to the subject matter hereof, and supersedes all prior written or oral
agreements, understandings, representations or statements between the Parties with respect to the
subject matter thereto.
28. Counterparts. This Agreement maybe exeented in one or-.more counterparts,
each of which shall be an original and all of which taken. together shall constitute one and the
same instrument.
29. Severabilty.:If any term;. provision,. or condition of this Agreement is held by a
court of competent jurisdiction to be invalid.or unenforceable, the remainder of this Agreement
shall continue in full force and effect unless the rights and obligations of the Parties have been
materially altered or abridged:thereby.
30. No Third Party Beneficiaries. Nothing in this Agreement: is intended to or shall
confer upon any person, other than the, Parties and their respective successors and assigns, any
rights or remedies hereunder.
31. Parties Not Co-Venturers. Nothing in this Agreement. is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
32. Non-Liability .of Officials, .Employees and Agents. No member,. official;
employee or agent of Buyer hall be personallyaable to. Seller,or its successors in 'interest in the
event of any default or breach by Buyer or for ariy amount which nay become due to .Seller or its
successors in interest pursuant to this Agreement.
33. Time of the.Essence. Time is of the: essence'for eael.condition,.t~rm, obligation
and provision of this Agreement.
34. Governing;Law., This Agreement shall be .governed by and construed iii.
accordance with the laws of"the State of California without regard:to principles of conflicts of
laws.
35. WTime :for Performance. When the time for performance of any obligation under
this Agreement is to be measured from another'event, such time period. shall include the day of
the other event. If.the day of the time for performance is not a regular business. day, then the time.
for such performance shall be by the regular business dayfollowing such day.
SIGNATURES ON-F'OLLO'WING PAGE
25
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
BUYER:
PETALUIVIA COMMUNITY DEVELOPMENT COMMISSION
A public body; corporate and politic
By:
John Brown,. Executive Director
ATTEST:
By:
Claire Cooper, Agency Secretary
APPROVED AS TO FORM:.
By:
Eric W. Danly; Agency Counsel
SELLER:
PETALUMA ECUMENICAL PROPERTIES
A California nonprofit public benefit corporation.
By:
Mary Stompe, Executive Director
26