HomeMy WebLinkAboutOrdinance 2161 N.C.S. 09/15/2003\
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1 +®CT 1 m" ORDINANCE NO. 2161 N.C.S.
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4 Introduced By Seconded By
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7 Council Member Torliatt Council Member Healy
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10 ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE ALL
I 1 DOCUMENTS RELATING TO THE PURCHASE OF REAL PROPERTY DESCRIBED
12 AS SONOMA COUNTY ASSESSOR'S PARCEL NOS. 068-010-026 AND 017-010-002,
13 CONSISTING OF APPROXIMATELY 261.33 ACRES
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16 BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS FOLLOWS:
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18 Section 1.
19 The City of Petaluma (City) is purchasing certain real property (Real Property) located in the
20 4000 block of Lakeville Highway in the unincorporated area of the County of Sonoma, at
21 Petaluma, California, more particularly described as Sonoma County Assessor's Parcel Nos.
22 068-010-026 and 017-010-002, consisting of approximately 261.33 acres, more or less, and the
23 improvements thereon consisting of a single family residence and out -buildings.
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25 Section 2.
26 The 1989 Sonoma County General Plan identifies the Real Property as Land Extensive
27 Agriculture (LEA). The update to the Sonoma County General Plan (GP 2020) acknowledges
28 that the City's proposed use of the Real Property is of substantial public benefit and proposes to
29 amend the land use designation of the Real Property to Public Facilities (PF) and Public Quasi-
30 public (PQP) if the City acquires the Real Property.
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32 Section 3.
33 The Real Property is owned by David Martinelli and Teresa Martinelli, Darrel Freitas and Nancy
34 Freitas, and the Shainsky Trust (Sellers).
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Ordinance No. 2161 N.C.S. Page I
I Section 4.
2 The City is purchasing the Real Property for a necessary public purpose as a site for the
3 construction of a new water recycling facility and development of the Petaluma Marsh
4 Acquisition, Enhancement and Access Project, which includes, among other items, preservation
5 of open space and tidal wetlands, restoration of upland and riparian habitat, and extension of
6 existing marsh/river trails.
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8 Section 5.
9 The City Council, on August 5, 2002, authorized City Management to seek grant funding from
10 the State Coastal Conservancy and the Sonoma County Agricultural Preservation and Open
11 Space District in support of the Petaluma Marsh Acquisition, Enhancement and Access Project,
12 including the acquisition to fee title to the properties located in the 4000 block of Lakeville
13 Highway in the unincorporated area of the County of Sonoma, at Petaluma, California, more
14 particularly described as Sonoma County Assessor's Parcel Nos. 068-010-026 and 017-010-002,
15 consisting of approximately 261.33 acres, more or less, and the improvements thereon consisting
16 of a single family residence and out -buildings. The State Coastal Conservancy grant was
17 approved in the amount of $2,000,000 on October 31, 2002. The Sonoma County Agricultural
18 Preservation and Open Space District's Authority Board approved the grant in the amount of
19 $2,006,000 on October 25, 2002. The Sonoma County Board of Supervisors is scheduled to
20 consider the grant request on, or soon after, September 16, 2003.
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22 Section 6.
23 City Management, in consultation with the Sellers, has prepared a draft purchase agreement,
24 which is included as Exhibit A
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26 Section 7.
27 The City Manager is authorized to execute all documents related to this action of purchasing the
28 Real Property.
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30 INTRODUCED and ordered posted this 81" day of September 2003.
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Ordinance No. 2161 N.C.S. Page 2
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ADOPTED this 151" day of September 2003 by the following vote:
AYES: Canevaro, Mayor Glass, Harris, Healy, Moynihan, Vice Mayor O'Brien, Torliatt
NOES: None
ABSENT: None
ABSTAIN: None
l
avid Glass, Mayor
ATTEST: APPROVED AS TO FORM:
4k'owe�j '--� --
Gayle P rs&, City Clerk Richard R. Rudn ns y, Ci ttoi
Ordinance No. 2161 N.C.S.
Page 3
(EXHIBIT A
This Purchase and Sale Agreement ("Agreement") is entered into as of
2003, between, DAVID MARTINELLI and TERESA L. MARTINELLI,
husband and wife, DARREL FREITAS and K4= FREITAS, husband and wife, and
SHAINSKY, SHAINSKY TRUST, (collectively "Sellers"), on the one
hand, and the CITY OF PETALUiv1A, a public entity ("Purchaser"). It is entered into and made
in consideration of each of the following Recitals:
RECITALS
A. Sellers are the owners of that certain real property ("Real Property") located in
the 4000 block of Lakeville Highway in the unincorporated area of the County of Sonoma, at
Petaluma, California, more particularly described as Sonoma County Assessor's Parcel Nos.
068-010-026 and .017-010-002, consisting of approximately 261.33 acres, more or less, as more
particularly described in the attached Exhibit A, and the unproverrinits thereon consisting of a
single family residence and out -buildings.
B. Purchasers are purchasing the Real Property for a necessary public purpose as a
site, among other things, for the relocation and construction of a new water recycling facility and
attendant facilities, and for development of the Petaluma Marsh Acquisition, Enhancnment and
Access project ("Marsh Project"), which includes protection of the existing tidal marsh and open
space, restoration of upland and riparian habitat, and extension of the existing river/marsh trails;
the Real Property is to be used by Purchaser in conjunction with. Purchaser's present ownership
and use of the adjoining property presently owned by Purchaser.
C. Sellers are .in the process of assisting Purchaser to obtain a lot line adjustment
from the County of Sonoma of the two Assessor's Parcels Nos. 068-010-026 and 017-010-002,
for the purpose of creating one parcel of approximately 40 acres, more or less, at the northerly
side of the real property bordering upon Lakeville Highway (the "Plant Site Parcel"). Once said
lot line adjustment is obtained creating the Plant Site Parcel, the balance of the Real Property
will be a single parcel of approximately 221.33 acres, more or less, used by Purchaser for a
necessary public purpose consisting, among other things, of polishing treatment wetlands, to be
used in conjunction with the water recycling facility; and public access to the Petalur-na Marsh
(herein the "Wetlands Parcel").
Ordinance Nc. 2161 N.C.S. Page 4
D. Purchaser is in negotiations with the State Coastal Conservancy ("Coastal
Conservancy") and the Sonoma County Agricultural Preservation & Open Space District ("Open
Space District") for agreements to provide Purchaser's necessary grant funding ("Funding
Agreements") to assist in Purchaser's acquisition of some or all of the Real Property and the
development of the Marsh Project. Such negotiations are intended to include the grant of a
conservation easement in the Wetlands Parcel to the Open Space District and the Coastal
Conservancy.
E. Sellers are entering this Agreement under a threat of eminent domain by
Purchaser of the Plant Site Parcel.
F. There is evidence of possible contamination of the Real Property. It is the intent
of the parties that Purchaser acquire the property in an "as is" condition and assume
responsibility for any environmental contamination of the Real Property.
G. Sellers presently have two tenants on the Real Property; one in the single family
residence at 4104 Lakeville Highway, and the other ranching the Real Property. It is the intent
of the parties that Sellers shall cause such tenants to be removed from the Real Property by
December 1, 2003.
H. Purchaser desires to purchase and Sellers desire to sell the Real Property on the
terms and conditions in this Agreement.
IT IS, THEREFORE, AGREED THAT:
Section 1. Purchase and Sale.
(a) For good and valuable consideration, the receipt and adequacy of which are
acknowledged, Sellers agree to sell and Purchaser agrees to purchase the Real Property subject
to the terms and conditions in this Agreement.
Section 2. Purchase Price.
(a) The total purchase price for the Real Property shall be the sum of Four Million
($4,000,000) Dollars, allocated between the Plant Site Parcel and the Wetlands Parcel, as
follows:
Orduiar.cc No. 2161 N.C.S. Page 5
(1) The purchase price for the Plant Site Parcel shall be Two Million Two
Hundred Thirty -Three Thousand (S2,233,000) Dollars;
(2) The purchase price for the Wetlands Parcel shall be One Million Seven
Hundred Sixty -Seven Thousand (S1,767,000) Dollars.
(b) The purchase price for the Plant Site Parcel of S2.233.000 is being paid by
Purchaser to Sellers under a threat of eminent domain by Purchaser for the Plant Site Parcel.
(c) The total purchase price of Four Million Dollars shall be paid by Purchaser to
Sellers in cash on the Close of Escrow as provided in this Agreement.
Section 3. Escrow.
(a) . An escrow shall be opened to consurrunate the sale of the Purchased Property
pursuant to this Agreement at the office of Old Republic Title Company ("Title Company"), 6
Petaiuma Boulevard North, Suite A-2, Petaluma, California 94952 ("Escrow Agent") within five
(5) days from Sellers' acceptance of this Agreement, The parties shall deliver signed escrow
instructions to Escrow Agent within thirty (30) days of Sellers' acceptance. The instructions
shall not modify or amend this Agreement; provided, however, that the parties shall execute any
additional instructions requested by Escrow Agent in a. manner consistent with. the Agreement.
(b) Unless the parties otherwise mutually agree in writing to an extension, the escrow
shall close ("Close of Escrow") by November 21, 2003. in the event that the parties are not then
able to close escrow because of the failure of a condition to the Close of Escrow as set forth
herein, the parties hereby agree to extend the Close. of Escrow, without other consideration, for a
period of ten (10) days from November 21, 2003. If further extension of the Close of Escrow is
necessary because of the failure of a condition to such close, the parties will discuss in good faith
a reasonable extension of the Close of Escrow (collectively the "Escrow Period").
Section 4. Lot Line Adjustment
(aj Sellers, in cooperation with Purchaser, are in the process of obtaining a lot line
adjustment with the County of Sonoma of Sonoma County Assessor's Parcel Nos. 068-010-026
and 017-010-002 to create an approximate 40 acre parcel, more or less, on the northerly end of
each said Assessor's Parcel abutting Lakeville High.vay (tire "Lot Line Adjustment"). The intent
of the parties is to reconfigure the two said Assessor's parcel numbers, thereby creating the Plant
Ordinance No. 2161 N.C.S. Page 6
Site Parcel and the Wetlands Parcel.
('a) Purchaser's responsibility to purchase the Real Property is conditioned upon its
receipt and approval of the terms and conditions of the Lot Line Adjustment creating the Plant
Site Parcel and the Wetlands Parcel.
(c) Sellers shall undertake all such acts and execute all such documents as reasonably
necessary to assist Purchaser in obtaining, in an expeditious fashion before the Close of Escrow,
the Lot Line Adjustment.
Section 5. Environmental Contamination
Purchaser and Sellers are aware of the potential of environmental contamination of the
Real Property as evidenced by a Phase I environmental site assessment of Brown & Caldwell in
September, 1997, and a Phase II investigation report of January, 1998. Sellers make no
assurances, representations or warranties concerning any environmental contamination of the
Real Property. Purchaser is .purchasing the Real Property in an "as is" condition for such
purposes and in reliance upon its own investigation and analysis of any environmental
contamination. Purchaser shall assume responsibility for, pay and hold Sellers free and harmless
from any costs, expense or loss resulting from such environmental contamination.
Section 6. Sellers' Tenants
Sellers shall cause the tenants of the Real Property to vacate and be removed from the
Real Property, without cost or expense to Purchaser, on or before December 1, 2003, or the
Close of Escrow, whichever occurs first. Sellers represent that as of the date of this Agreement,
the rental house at 4104 Lakeville Highway is habitable. Sellers shall assume the responsibility
for, pay and hold Purchaser free and harmless from any cost or expense relating to the existence
or removal of such tenants and any damage to the property caused by such tenants during the
Escrow Period.
S�cti;,n ". neCCsS
(a) Access to the Real Property during the Escrow Period shall be given to Purchaser,
its agents, employees, or contractors during normal business hours upon at least one (1) business
day's notice to David Martinelli, at Purchaser's own costs and risk, for purposes of Purchaser's
inspection, investigation and review of the Real Property, including, if necessary, taking samples
Ordinance No. 2161 N.C.S. Page 7
of the soil, conducting wetlands and special status species surveys, conducting property surveys,
and other activities in support of development of the water recycling facility and the Petaluma
Marsh Acquisition, Enhancement and Access project. Purchaser shall keep the Real Property
free of liens during the Escrow Period and shall indemnify and defend Sellers against and hold
Sellers harmless from all losses, costs, damages, liabilities, and expenses, including, without
Iimitation, reasonable attorney fees arising out of Purchaser's entry onto the Real Property or any
activity thereon by Purchaser or its agents, employees, or contractors prior to the Close of
Escrow except to the extent any such losses, costs, damages, liabilities, and expenses arise out of
the gross negligence or willful acts of Sellers. Any enrl , onto the Real Property by Purchaser or
its agents, employees, or contractors shall be at reasonable times. The provisions of this Section
shall survive the Close of Escrow.
(b) In addition to the provisions of Section 7(a), Purchaser and its agents, employees,
or contractors shall have the right, from the date of this Agreement until the Close. of Escrow, to
contact any federal, state, or local governmental authority or agency to investigate any matters
relating to the Real Property. Sellers agree to cooperate reasonably with Purchaser and its agents,
employees, or contractors in the inspection of the Real. Property and agree to deliver to Purchaser
all information in Seller's possession or control pertaining to the ownership and condition of the
Real Property, including engineering and environmental reports, studies, tests, monitorna
results, and related documentation.
Section 8. Sellers Cooperation With Funding Sources
Sellers shall undertake all such acts and execute all such documents as reasonably
necessary to assist Purchaser in obtaining, in an expeditious fashion before the Close of Escrow,
the Funding Agreements with the Coastal Conservancy and Open Space District and the grant of
a conservation easement to the Wetlands Parcel to the Open Space District and the Coastal
Conservancy.
Section 9. Title
`LLf 1111m Lid1LLL1.d1,' 1V 11V V.V 1116 t11V ex-c ..union V1 th1J 1�-I-eemenl VJ' VVtll rlartl l.r �], PUr c11KUe1
shall cause Title Company to issue to Purchaser (with a copy to Sellers) a preliminary report for
an ALTA Owner's Policy for the Real Property, setting forth all liens, encumbrances, easements,
restrictions, conditions, pending litigation, judgments, administrative proceedings, and other
matters affecting Seller's title to the Property ("PrehmIna—. Report"), together with copies 'of all
documents relating to title exceptions referred to in the Preliminary Report.
Ordinance No. 2161 N.C.S. Page 8
(b) Purchaser shall approve or disapprove each exception shown on the Preliminary
Report within seven (7) days following receipt of the Preliminary Report. Purchaser's failure to
object within the seven (7) days period shall be deemed to be an approval of the Exceptions.
(c) If an Exception is disapproved (a "Disapproved Exception"), Sellers shall, within
thirty (30) days following expiration of the seven (7) day period provided under Section 8(b),
above, use its best efforts to cause each Disapproved Exception to be discharged, satisfied,
released, or terminated, as the case may be, of record, and in a form that is reasonably
satisfactory to Purchaser and Escrow Agent, all at Sellers' sole cost and expense. If Sellers are
unable to obtain a discharge, satisfaction, release, or termination within the period specified
above, or conclude that .the cost of doing so is, in Sellers' sole discretion, too high, Purchaser
shall have the right to:
(i) waive the Disapproved Exception and proceed with Closing, accepting
title to the Property subject to the Disapproved Exception, or,
(ii) terminate this Agreement, in which event both Purchaser and Sellers shall
be relieved of all. further obligation and liability to each other unless this
Agreement and all the funds and documents deposited with Escrow Agent
shall be promptly refunded or returned, as the case may be, by Escrow
Agent to the depositing party.
Section-10. Conditions of Escrow
(a) Purchaser's Conditions. The Close of Escrow and Purchaser's obligation to
purchase the Real Property pursuant to this Agreement are conditioned on:
(1) The conveyance to Purchaser of title to the Real Property, as evidenced by
a standard form California Land Title Association (CLTA) title insurance
policy, issued by Title Company, in the full amount of the purchase price,
subject only to the exceptions to. title approved by Purchaser pursuant to
(Section Yb) and J(c), above.
(ii) Purchaser's review and approval of the Lot Line Adjustment from the
County of Sonoma creating the Plant Site Parcel and the Wetlands Parcel.
Ordii-'.a ice No. 21G1 I.C.S. rage 9
(iii) Purchaser's execution of Funding Agreements with the California Coastal
Conservancv and the Sonoma County Agricultural Preservation and Open
Space District.
(ivi) Sellers' removal of the tenants from the property.
(v) The approval by the City Council of the City of Petaluma of the entry of
tills Agreement by Purchaser and its performance.
(vil Sellers' performance of each obligation of Sell rs under this Agreement.
Should any of the conditions specified in this Section 9(a) fail to occur before the Close
of Escrow, Purchaser shall have the right, exercisable by the giving of written notice to the
escrow agent and to Sellers, to cancel the escrow, terminate this Agreement, and recover any
amounts paid by Purchaser to Sellers or to the Title Company on account of the Purchase• Price_
The exercise of tlds'power by Purchaser shall not, however, constitute a waiver by Purchaser of
any other rights Purchaser may have against Sellers for breach of it~,1s Agreement.
(b) Sellers' Conditions. The Close of Escrow and Sellers' obligation to sell the Real
Prcperty pursuant to this Agreement are conditioned on the perfo—nuance by Purchaser of each
obligation of Purchaser under this Agreement, including, without liiritation, Purchaser's
obligation to make payrnent described in Section 2 within the time pellod designated. Should
these conditions fail to occur, then Sellers shall have the right, exercisable by the giving of
written notice to Title Company and to Purchaser, to cancel the escrow and terminate this
Agreement.
Section 11. Prorations.
Title Company shall prorate the following costs at the Close of Escrow:
(a) Sellers shall pay:
(i) all governmental conveyancing fees and taxes due upon transfer of the
Real Property.
(b) Purchaser shall pay:
?rd:na;�ceN�.161 rd.C'.S. .Page 1i)
(i) the recording charges iln connection with recordation of the Deed;
(ii) all charges in connection with issuance of a CLTA Standard Policy of
Title Insurance in the amount of the Purchase Price;
(iii) the escrow fee charged by Escrow Agent.
(c) Reap Property taxes shall be prorated at the Close of Escrow based on the most
current real property tax bill available, including any additional property taxes that may be
assessed after the Close of Escrow but that relate to a period prior to the Close of Escrow,
regardless of when netice of those ta?;.e.. , is recF; held or who receives the notice. All installnerits
of any bond or assessment that constitutes a lien on the Real Property at the Close of Escrow
shall be paid by Seller.
SectioD 12. Possession
Possession of the Real Property shall be delivered to Purchaser at the Close of Escrow.
Section 13. Brokers' Commissions.
Sellers and Purchaser each warrant to the other that no person or entity can properly
claim a right to a commission, finder's fee, or other compensation with respect to the transaction
contemplated by this Agreement.
.Section 14. Disclaimer of Representations
and Warranties by Seller.
(a) There are no representaiions, agreements, arrangemenis, or circumstances, oral or
written, between the parties relating to the subject matter contained in this Agreement that are
not fully expressed in the Agreement, and Sellers have not made and do not make any
representation or warranty concerning any matter or thing affecting or relating to the Real
Property not e xpressed rn this � 5. eeiirent,
(b) Purchaser warrants that Purchaser is a sophisticated owner of real property,
familiar and experienced with requirements for the development of real property. Except for the
rental residence at 41104 Lakeville Highway, Purchaser has examined the Real Property. is
familiar with its physical condition, and accepts such Real Property in an as is condition. Except
Ordinance No. 2'iu1 N.C.S. Page 11
as set forth in Section 6, above, Sellers have not made and do not make any representations as to
the physical condition of the Real Property.
(c) Purchaser has conducted or will conduct an independent investigation with
respect to zoning and subdivision laws, ordinances, resolutions, and regulations of all
governmental authorities having jurisdiction over the Real Property, and the use and
improvement of the Rea: Property, and Sellers have not made representations to Purchaser on
any of these matters.
Section 15. Damage and Destruction
(a.) If any portion of the Real Property is damaged by earthquake, mudslide, fire,
release of or exposure to any Hazardous Substances, or any other casualty (other than any
damage caus --d by Purchaser or - its employees, agents, or contractors) prior to the Close of
Escrow, such that the cost of fully repairing and correcting such damage is less than One
Hundred Thousand Dollars (S100,000.00), Purchaser and Sellers shall consumrnatt> this
Agreement , but thecash portion of the Purchase Price payable 'at the Close of 1✓;scrow shall be
reduced by an amount necessary to fully repair or correct any damage to the Real Property.
(b) If airy portion of the Real Property is damaged by earthquake, rr_udslide, fire,
release of or exposure to any Hazardous Substances, or any other casualty (other: than any
damage caused by Purchaser or its employees, agents, or contractors), prior to the Close of
Escrow, such that the cost of fully repairing or correcting such damage exceeds One Hundred
Thousand Dollars (S100,000.��0), Purchaser may elect either (i) to terrizinate this AgreParent
upon written notice to Sellers, in which, event neither party shall have any furtler obligations
under this Agreement except as otherwise provided in this Agreement; or (ii) to proceed with the
purchase of the Property, in which event this Agreement shall remain in full force and effect, and
Sellers shall pay or assign to Purchaser (A) any amount due from or paid by any insurance
company or any other party as a result of the damage and (B) the amount of any deductible under
Sellers' insurance policy and/or the cost of repairing or correcting such darnage not covered by
insurance shall be credited against the cash portion of the Purchase Price and shall reduce the
amount jJayaV11. at 1.,1Vsc of 1:5lrrV VV pursU4111 to Section 11ereV1, prv, hoevir, t th `oidedwLLa
arnount of any credit against the Purchase Price pursuant to this clause (ii) shall not exceed One
Hundred Thousand Dollars (S100,000.00).
Ordinance No. 2161 ' .C.S. Page 12
Section 16. Condemnation.
(a) If, prior to the Close of Escrow, all of the Real Property is taken by eminent
domain, or is the subject of a pending taking which has not been consummated, Sellers shall
immediately notify Purchaser of the event. In tlis event, this Agreement shall be immediately
terminated. On termination of this Agreement, neither party shall have any rights or
responsibilities to the other. In this event, any escrow canceliation fees in connection with the
termination shall be shared fifty percent (501lo) by Purchaser and fif<y percent (50%) by Sellers.
(b) If, prior to the Close of Escrow, a material portion but not all of the Real
Property is taken by eminent domain; or is the subject of a pending taking which has not been
consummated, Sellers shall immediately notify Purchaser of this event. Purchaser shall then
have the right to terminate this Agreement by written notice to the Sellers delivered within ten
(10) business days after Purchaser's receipt of this notice, if Purchaser reasonably believes that
the portion of the Real Property subject to being taken would materially and adversely affect
Purchaser's intended use of the Real Property. If Purchaser elect not to exercise the right to
terminate pursuant to this Section, Sellers shall assign and deliver to Purchaser, and Purchaser
shall be entitled to receive, all awards, otherwise payable to Sellers, for the takia-ig by eminent
domain. The parties shall proceed to the Close of Escrow pursuant to the terms of this
Agreement, without modification of this /igreerr_ent, except as necessitated by eminent domain
action, and without any reduction in the Purchase Price, If Purchaser terr-runate pursuant to this
Section, then neither party shall have any rights or responsibilities to the other_ A A--iy escrow
cancellation fees' connected with this termination shall be shared fifty percent (50 110) by
Purchasers and fifty percent (50%) by Sellers.
Section 1.7. Sellers' Covenants
Corm-nencing with the full execution of this Agreement by both parties and until the
Close of Escrow:
(a) Sellers shall not permit any liens, encumbrances, or easements to be placed on the
Real property other t}lar' the I ppro`: ed Exceptions, nor steal? Seller enter irate -,.Y s6r—A.—
regarding the sale, rental, management, repair, improvement, or any other matter affecting the
Property that would be binding on Purchaser or the Real Property after the Close of Escrow
without the prior written consent of Purchaser.
(b) Sellers shall not permit any act of waste or act that would tend to diminish the
Ordinance. No. 2161 N.C.S. Page 13
value of the Real Property for any reason, except that caused by ordinary wear and tea:.
Section 18. Seller' Representations and 'Warranties
To the best of Sellers' knowledge, Sellers represent and warrant to Purchaser that as of
the date of this Agreement and as of the date of Close of Escrow:
(a) Leases. Except for the tenants described in Recital F and Section 6, abovF,
no leases, licenses, or other agreements allowing any third party rights tc use the Property are or
will be in force.
(b) Litigation. There is no pending or threatened litigation, administrative
proceeding, or other legal or governmental action with respect to the Real Property.
Section 19. Authority of the Parties.
(a) Sell' rs warrant that this Agreement and all other documents delivered prior to or
at the Close of Escrow:
(i) have been authorized, executed, and delivered by Sellers;
(ii) are binding obligations of Sellers; and
(iii) do not violate the provisions of any agreement to w.iiich Sellers is a party
or which affects the Real Property, nor violate the provisions of the
Shainsky Trust, subject, however, to applicable
bankruptcy, insolvency, and other similar laws affecting the enforcement
of creditors' rights and to principles of equitable remedies.
(b) Purchaser warrants that t lis Agreement and all other documents delivered prior to
or on the Close of Escrow
O have been authorized, executed, and delivered by Purchaser;
(ii) are binding obligations of Purchaser; and
(ill) do not violate the provisions of any agreement to which each of the parties
Ordinance No. 2,161 IN.C.S. Pave 14
is a party subject, however, to applicable bankruptcy, insolvency, and
other similar laws for enforcement of creditors' rights and to principles of
equitable remedies.
(c) The parties warrant that the persons executing this Agreement on their behalf are
authorized to do so, and on execution of this Agreement, this Agreement shall be valid and
enforceable against Purchaser or Sellers in accordance with this Agreement.
Section 20. Notices.
All notices to be given under this Agreement shall_ be in writing and either:
(a) Sent by certified mail, return receipt requested, in which case notice shall be
deemed delivered three Q) business days after deposit, postage prepaid in the United States
Mail,
(b) Sent .bv a. nationally recognized overnight courier, in which case notice shall be
deemed delivered one (1) business day after deposit with this courier, or
(c) By telecopy or similar means, if a ropy of the notice is also sent by United States
Certified Mail, in which ,ase notice shall be deemed delivered on transmittal by telecopier or
other similar means provided that a transmission report is generated by reflecting the accurate
transmission of the notices, as follows:
City of Petaluma
Attn:
11 English Street
P.O. Box 61
Petaluma, CA 94952
Telephone: (707)
Darrel Freitas &. Nancy Freitas
Telephone: (707)
Shainsky
David Martinelli & Teresa L. Martinelli Shainsky Trust
Telephone: (707)
Telephone: (707)
Ordinance No. 216i N.f—..S. Pa9c 15
These addresses may be changed by written notice to the other party, provided that no
notice of a change of address shall be effective until_ actual receipt by the parties of the notic'..
Copies of notices are for informational purposes only, and a failure to give or receive copies of
any notice shall not be deemed a failure to give notice.
Section 21. Attorney Fees.
If either party commences an action against the other to enforce this Agreement, or
because of the breach by either party of this Agreement, the prevailing party in this action
whether or not brought to trial or final judgment, shall be entitled to recover attorney fees wid
costs incurred in connection with the prosecution or defense of this action, including any appeal
of the action, in addition to all other relief. Prevailing party within the meaning of this Section
shall include, without limitation, a party who successfully brings an action against the other
party for sums allegedly due or performance of covenants allegedly breached, or that party who
obtains substantiall, the relief sought in the action..
Section 22. Entire Agreement
This Agreement and the documents referenced herein contail-t the entire af*reemeni
between the parties to this Agreement and shall not be modified. in any mariner except by an
instrament in writing executed by the parties or their respective successors in interest.
Section 23. Severability
If any term or provision of tlus Agreement shall, to any extent, be held invalid or
unenforceable, the remainder of this Agreement shall not be affected.
Section 24. Waivers
A waiver or breach of covenant or provision in this Agreement shall not be deemed a
waiver of any other covenant or provision in this Agreement, and no waiver shall be valid unless
in writing and executed by the waiving party. An extension of time for performance of any
obligation or act shall not be deemed an extension of the time for performance of any other
obligation or act.
Ordinance No, 2161 N.C.S. Page 16
Section 25. Construction
The section headings and captions of this Agreement are, and the arrangement of this
instrument is, for the sole convenience of the parties to this Agreement. The section headings,
captions, and arrangement of this instrument do not in any way affect, limit, amplify, or modify
the terms and provisions of this Agreement. The singular form shall include plural, and vice
versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but
rather as if both parties have prepared it. Unless otherwise indicated, all references to sections
are to this Agreement. All exhibits referred to in this Agreement are attached to it and
incorporated in it by this reference.
Section 26. Merger
All of the terms, provisions, representations, warranties, and covenants of the parties
under this Agreement shall survive the Close of Escrow and shall not be merged in the Deed or
other documents.
Section 27. Counterparts.
This Agreement may be executed in one or more counterparts, Each shall be deemed an
original and all taken together shall constitute one and the same instrument. The execution of
this Agreement is deemed to have occurred, and this Agreement shall be enforceable and
effective only on the complete execution of this Agreement by the parties.
Section 28. Thine of the Essence
Time is of the essence in this Agreement.
Section 29. Successors
This Agreement shall inure to the benefit of and shall be binding upon the parties to this
Agreement and their respective heirs, successors, and assigns.
Ordinance No. 2161 N.C.S.Page 17
Section 30. Governing Law
This Agreement shall be governed and construed in accordance with California law.
Section 31. Offer and Acceptance
. This Agreement as executed by Purchaser constitutes an offer to purchase the Real
Property on the terms and conditions contained in this Agreement. If Sellers fail to execute a
copy of this Agreement and return it to Purchaser by ------------, 2003 at 5:00 p.m., this
Agreement shall be void.
The parties have executed this Agreement as of the date first written above.
SELLERS:
David Martinelli
Teresa L. Martinelli
J' r
SELLERS:
r �t,
Darrel Freitas`"`
SELLERS:
Nancy Freitas
Trustee of the
Shainsky
Shainsky Trust
Ordinance No. 2161 N.C.S. Page. 18
CITY OF PETALUMA
By
Print Name
Title:
Ordinance No. 2161 N.C.S.
Page 19
EXHIBIT A.
TO
PURCHASE AND SALE A GREEN INT
Property Description of AP Nos. 068-010-026 and 017-010-002
Ordinance No. 2161 N.C.S. Page 20