HomeMy WebLinkAboutOrdinance 2161 N.C.S. 09/15/2003
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1 ±®C~ 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
11 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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l6 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 1
1 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 8`" day of September 2003.
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Ordinance No. 2161 N.C.S. Page 2
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ADOPTED this 15t" 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
P
avid Glass, Mayor
ATTEST: APPROVED AS TO FORM:
Gayle P rs~, City Clerk Richard R. Rudn ns y, Ci ttorney
Ordinance No. 2161 N.C.S.
Page 3
lEXli-1I1I3IT 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 NgNCY FREITAS, husband and wife, and
SHAINSKY, SHAINSKY TRUST, (collectively "Sellers"), on the one
hand, and the CITY OF PETAL Uiv1A, a public entity ("Purchaser"l. 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.Ol7-010-002, consisting of approximately 261.33 acres, more or less, as more
particularly described. in the attached Exhibit A, acid the unprovemeiits 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, Enhanc,~ment 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 PetaluT-na Marsh
(herein the "Wetlands Parcel").
Ordinance Nc. 216i Iv.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 tiie 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 th.e 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, file receipt and adequacy of which are
aclcnowIedged, Sellers agree to sell and Purchaser agrees to purchase the Real Property subject
to the terms and conditions in this Agreement.
Section ~. rurchase trice.
(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:
Ordulai:ce iv'e. 2161 N.C.S. Page 5
(1) The purchase price for the Plant Site Parcel shall be Two Million Two
Hundred Thirty-Three Thousand ($2;233,000) Dollars;
(2) The purchase price for the Wetlands Parcel shall be One Million Seven
Hundred Sixty-Seven Thousand ($1.,767,000) Dollars.
(b) The purchase price for the Plant Site Parcel of $2,233.000 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 triis A greeme~it.
Section 3. Escrow.
(a) An escrow shall be opened to consurrunate the safe of the Purchased Property
pursuant to this Agreement at the office of Old Relaublic Title Company ("Title Company"j, b
Petaluma Boulevard North, Suite A-2, Petaluma, California 94952 ("Escrow Agent") within five
(5) days from Sellers' acceptance of this Agreement, The parties shall deliver sib ed escrow
instructions to Escrow Agent within thirty (30) days of Sellers' acceptance. The instructions
shall not modify or amend this Agreement; provided, however, that t11e parties shall execute any
additional instructions requested by Escrow Agent in a. manner ccnsistent with. th.e Agreement.
(b) Unless the parties otherwise mutually agree in writing to an extension, t1~e 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 often (10) days from November ? 1, 2003. If further extension of the Close of Escrow is
r.~cessary because of the failure of a condition to such close, the parties vrih discuss it 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 HiQh;vay (tire "lot Line Adjustment"). Tl~e intent
of the parties is to reconfigure the two said Assessor's parcel numbers, thereby creating the Plant
Ordinance Nn. ? 3 6? P~T.C.S. Page 5
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 waranties concerning any environmental contamination of tl•.e
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 flee and harmless
from any costs, expense or loss .resulting from such environmental contamination.
Section 6. Sellers' ~'enants
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 I, 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 sha13 assume the responsibility
for, pay and hold Purchaser free and harmless from any cosi 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.
(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 indemnity 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 Reai Property or any
activity thereon by Purchaser ar its agents, employees, or contractors prior to the Close of
Escrow except to the extent any such lasses, costs, damages, liabilities, and expenses arise out of
the gross negligence or willful acts of Sellers. Any ens, % 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 ant its agents,
employees, or contractors in the inspection of tl-ie Reai. 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, monitorng
results, and related documentation.
Section 8. Sellers Cooperatian 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 hefore the Close of Escrow,
the Funding Agreements with the Coastal Conservancy and Open Space District and tl~e grant of
a conservation. easement to the Wetlands Parcel to the Open Space District and the Coastal
Conservancy.
Section 9. Title
`LLf 111111 Lid1LLL1.d1,' 1V 11V V.V 1116 t11V VAVVLL L,on V1 t, 1lJ 1~-lreme:ll VJ' VVtll rl L~lrlr.l lr ~], PUrc11KUe1
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 ("Preiin~_inan,? R eport"), together with copies bf all
documents relating to title exceptions referred to in the Preliminary Report.
Ordinance iva. 21ui N,:~.~. Pagti 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 witlun 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 Agert
shall be promptly refunded or returned, as the case may he, by Fscrow
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:
(i) 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 mo(b) aitd ~(C), abvve.
(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.
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Oriiii~dace N~. 21 G 1 •!.C.S. rage 9
(iii) Purchaser's execution of Funding Agreements with the California Coastal
Conservancy 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
this Agreement by Purchaser and its performance.
(vil Sellers' performance of each obligation of Sellers 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 ua-itten notice to the
escrow agent and tc Sellers, to cancel the escrow, terminate tlus Agreement, andrec,over any
amounts paid by Purchaser to Sellers or to the Title Company cn account of the Purchase Price_
.: he exercise of this power by Purchaser shal.'• not, however, constitute a waiver bti~ Purchaser of
any otl-ier rights Purchaser may have against Sellers for breach of il,.1s Agreement.
(b) Sellers' Conditions. The Close of Escrow and Sellers' obligation to sell the heal
Prcpert~~ pursuant to this Agreement are conditioned or. the perfornance by Ptzrcha~:er of each
obligation of Purr.haser under this Agreement, inciu3irrg, ~vitl~out iiirita.tion, _Purch;~ser's
obligation to make payment 'describ'ed in Section 2 witi~in th.e titrte pe:-iod designated. Should
these conditions fail to occur, then Sellers shall have the right, oxe?"czsable by the hiving of
written notice to Title Company anal to Purchaser, to cancel the escro~=~ and terminatF this
Agreement.
Section ? 1. Prorations.
Title Company shall prorate the fallowing costs at the Close of Escrow:
(a) Sellers shall pay:
(i) ali governmental conveyancing fees and taxes due upon transfer of the
Real. Property.
(b) Purchaser hail pay:
?rd:~a;~ceN~. X161 rd.C'.S. Page 1i?
(i) the recording charges iln connection with recordation of the Deed;
(ii) ail charges ir, connection wiih 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) Real Property taxes shall be prorated at the Close of Escrow based on the most
current real property tax bill available, including any additional property taxes t11at may be
assessed after the Close of Escrow but that .relate to a period prior to the -Close of Escrow,
regardless of when notice of those ta?;.e,, i.rec.•i~~=ed or v,~ho receives the notice..~~ll installnerits
of any bond or assessment that constitutes a lien on the Real Property at the Close of Escrow
shall be paid'oy Seller.
Section 12. Possession
Possession ~fthe Reai Prop~:ty shall be delivered to Purchaser at the Close efEscrow.
Section 13. Brokers' Carrimissions.
Sellers and Purchaser each warrant to the aiher that ro person or entity can properly
claim a right to a c~minission, iinder'~ fee, or other cc~mpensatit~ri with respect to the transaction
contemplated by this Agreement.
.Section 1~. Disclaimer of ;Representations
and Warranties by Seller.
(a) There are no representa'eions, agreers7ents, arrai~gemeni~s, or circumstances, oral or
written, between the pariies relatinb to th.e subject platter contained in this Agreement that are
not fully expressed in the .Agreement, and Sellers have not made and do pat make any
representation or wa.iranty~ concerning any matter or thing affecting or relating to the Real
Prvpertynvt expresso°d ii this ii5ieern°vnt,
(b) Purchaser warrants that Purchaser is a sophisticated owner of real property,
familiar and experienced with requirements far the development of real property. Except for the
rental residence at 41 Q4 Lal~eville highway, Purc:~aser pas e:~amined the Reap Prope~-t~r, is
familiar with its physical condition, and accepts such Real Property in an as is condition. Except
Ordinance No. ~iul N.C.S. Page ? 1
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, ar~d regulations of all
governmental authorities having jurisdiction over the I2ea1 Property, and the use and
improvement of the Rea; Property, and Sellers have net made representations to Purchaser oli
any of these matters.
Section 15. Damabe and Destruction
(a.) If any portion of the Real Property is damaged by earthquake, mudslide, *ire,
rei.ease of or exposure to any Hazardous Substances, or any other casualtt~ (other than ary
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 ~3ne
J=indred Tlousand Dollars (5100,000.0), Purchaser and Sellers shall cons~amrnat;> this
Agreement ,but she' cash portion of the Purchase Price payab':e zt the Close of ;/~scrow shall be
reduced by an amou.it necessa:-y to fully repair or correct ary damage to the Peal Proper'}.
(b) If airy portion of the Real Property is ~.anaaged ley eartl~qualce,rr_udsiiclo, fare,
release o_f or exposure to any Iazardous Substances, or any other casualty f other: titan ar~y
ciarnage caned by ?'urchaser or .its employees, agents,. or contractors), prior to th:~ Ciese of
Escrow, sack that the c~~st of fully repairing or correcting such. damage exceeds One Plundred
Thousand Dollars 15100,000.!0), Purchaser may elect either (i) to terrizinate this AgroPaiont
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) fo proceed with. the
purchase of the Property, in which event this Ao eemer..t shall remain in fuli force and effect, and
Sollers shall pad or assign tc Purchaser (A) any amount due from er 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 suciz darr~age not covered by
insurance shall be credited against the cash portion of the Purchase Price and shall reduce the.
a11YV Ul1L payaVll. 6L 1.,1VSC of 1:5lrro VV purJU4111 Lv U~.:.~L1V 11 11ereV1, prV Vided, ho ~.Y ever, LL at th+`:
amount of any credit against the Purchase Price pursuant to this clause (ii) shall not exceed One
Hundred Thousand Dollars (5100,000.00).
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Ordinance Nc~. 211 ''.~:,5, t'age 12
Section 16. Condemnation.
(a) If, prior to the Close cf Lscrow, ail of the Real Property is taken by eminent
domain, or is the subject of a pendir_g 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, ary escrow canceliation fees in connection with the
termination shall be shared fifty perc,:nt (S!J° o) by Purchaser arld faf<y p;;rcent (j0°io) by Sellers.
(b) If, prior to t'~e Close of Escrow, a material portion but not all of the Real
Property is taken by eminent domain; ar is the subject of a pending takin¢ which has not been
consummated, Sellers shall immediately notify Purchaser of this event. Purchaser shall then
have the rigl-it to terminate t'lis Agreerrier~t by written notice to the Sellers delivered within ten
(10) business days after Purchaser's rereipt 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 interAd:°d use of the Real Property. If Purchaser elect not to F~xercise the right to
terminate pursuant io this Section, Sellers shall assign and deliver to Purchaser, and Purchaser
shall be entitled to receive, all a~~~ards, other-~vise payable to Sellers, for the takinng by eminent
domain. The par dies shall proceed to the Close of Escrow pursuant to t_he terrr~s of this
Agreement, without modification of this ~igreemer~t, except as necessitated by eminent domain
action, and without awry reduction in the Purclias~; Price. If I'ur~chaser tel-7ninate pursuant to this
Section, then neither party shall have any rights or responsibilities to the other. ~'u~y es:.:row
cancellation fees connected with this termination shad be shared fi~y percent (50 ~o) by
Purchasers and fifty percent (50%) by Sellers.
Section 1.7. Sellers' Cavenants
Coml-nencing with the full execution of this Agreement by 'noth parties and until the
Close of Escrow:
(a) Sellers shall not permit any liens, encumbrances, or easements to be placed on the
1?eal property other t}lar' the Approved Exceptions, nor shat? Seller enter irate a~:y agrleerr:ent
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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 shad not permit any act of waste or act that would tend to diminish the
Jrdir4aiice. i~lo. 21t;1 i~i.C.~. Page 13
value of the Real Property for any reason, except that caused by ordinary wear and tea..
Section IS. Sellar' Representations and V~arraniies
To the best of Sellers' knowledge, Sellers represent and warrant to Purchaser that as of
the date of this A~~emerit and as of the date of Close of Escrovl:
(a) Leases. Exceht for the tenants described in Recital F a*~d Section d, abevF,
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 Iitigaticn, administrative
proceeding, or other legal or governmertal action with respect to the Real Prap;,rry.
Section 19. Authority of the Parf:ies.
(a Sell''°rs ~;,~ara3~t that this Agreement and all other documents delivered prior tc or
at the Close of Escrow:
(i? hay=e beers autherized, executed, and delivered by Seliors;
(ii) are bindizig obligations of Sellers; and
(iii) do not violate the provisions of any agreernert t.o w:ilich Sellers is a parry
or which affects the Real Property, nor violate the provisions of the
Shainsky Trust, subject, however, io applicably
bankruptcy, insolvency, and other similar laws aff?ctinn the enforcement
of creditors' rights and to principles of equitable remedies.
(b j Purchaser ws_rrants that Eris Agreement and all other documents delivered prior to
or on the Close of Escrow
O have been authorized, executed, and delivered bit Purchaser;
(ii) are binding obligations of Purchaser; and
(iii) do not violate the provisions of any agreement to which each of :he parties
Cirdi~.ance~lu.~161 :~-1.C.S. ~ r~~~a i4
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 ~n-Writing a~~d either:
(a) Sent by certiried mail, return receipt requested, in .which case notice shall be
deemed delivered three (3) business days after deposit, postage prepaid in the United States
Mail,
(b) Sent .by a nationally recogtuzed overnight tourer, in ~~hich case notice shall be
deemed delivered one (T) business day after deposit with this tourer, or
(c) By telecopy or sim.iiar means, if a ropy of the notice is also sent by TJniied States
Certified Mail, in which ;ase notice sl~.all be deemed delivered on transmittal by teleco~ier or
other similar means. provided that a transmission report is generated by reflecting the accurate
transmission of the notices, as follows:
City ofPetaluma
Attn:
l l English Street
P.O. Box 61
Petaluma, CA 94952
Telephone: (707)
Darrel rreitas &. Nancy Freitas
'T'elephone: (707)
Shainsky
David Martinelli & Teresa L. Martinelli __ Shainshy Trust
Telephone: (707)
Telephone: (707)
:)refinance No. 2ioi N.~';.S. i'a~~ lj
These addresses may be changed by wrtten notice to the other party, provided that no
notice of a change of address shall be effective until_ actual receipt by t<~ie parties of the notice.
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 judg;nent, shall be entitled to recover attorri~~y fees :i:~d
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 Iixnitation, a part}' who successfully brings an action against the other
party for sums allegedly due or performance of covenants allegedly breached, or that party wl~o
obtains substantially the relief sought in the action.
Section 22, Entire Agreement
This Agreement and the documents referenced herein contail-~ the er_tire as*reemeni
between the parties; to this Agreement and shall n.ot be modii ed. in any ma~,ner except by an
instrument in writing executed by the parties or their respective .successors in interest.
Section 23. Severability
If'any Term or provision of this Agreement shall, to any extent, be held invalid car
unenforceable, the remainder of this Agreement shall not be affected.
Section 24. Waivers
A waiver or breach of covenant er 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 ~r act.
/////
Ordinance iJu. ~16i Iti'.C.~. 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. T1^.e 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 :Wore counterpavT-ts. Each shall be deemed an
original and all taken together shall constitute one ar_d 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. ~'ime 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.
U///
/////
ordnance No. 2161 N.i`.5. i=age 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 .~.~''
~y~,;.
J' r
.~"",.J FJ"' ~h
+` '.a
r ~~t,
SELLERS : ' ~' ~", ';> „~
v~'~`h 'y
Darrel Freitas ~'~ ~`"` '~~.;' s
'k ~ ; r,
Nancy Freitas
SELLERS:
Shainslcy
Trustee of the
Shainsky Trust
Ordinance No. 2161 N.C.S. Fagr. 18
~~c~.s~~
CITY OF PETxI,LJMA
By
Print Name
Title:
Ordinance No.2s61 iv'.C.S.
Page 19
EXHIB~'~' A.
~C~
P~CI3.~S~ .A.1VD SA.I.~ AG~ElV~El~'~
Property Description of ~P Nos. 068-a10-0?6 and 017-014-002
Ordinance No. 2151 N.C.S. Page 20