HomeMy WebLinkAboutFoster - Irish Hills APN 067-221-034, 035, 036I 2001 Foster lrish Hills 704- 06 Agreements/Cor
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AGREEMENT FOR AMENDMENT OF CERTAIN TERMS
FOR PURCHASE AND SALE
OF REAL PROPERTY
This AGREEMENT FOR EXTENSION OF OPTION AND AMENDMENT OF CERTAIN
TERMS FOR PURCHASE AND SALE OF REAL PROPERTY is entered into by and between
the CITY OF SAN LUIS OBISPO ("Buyer"), a California Charter Municipal Corporation, and
JACK SLOAN FOSTER AND CHARLOTTE PATRICIA FOSTER ("Seller"), pursuant to the
following
REGITALS
WHEREAS, Buyer is a California charter Municipal Corporation; and
WHEREAS, Buyer, acting through its City Council and through adopted public
procedures, has determined that certain lands surrounding the city of San Luis Obispo are
important to the scenic character, healthy natural environment, and economic and social well
being of the community and its citizens; and
WHEREAS, Buyer seeks to preserve and conserve characteristics such as visual
quality, wildlife habitat, and other attributes where appropriate surrounding the City; and
WHEREAS, Seller is owner of certain lands within the City which are of scenic and
ecological value to the City of San Luis Obispo; and
WHEREAS, Seller wishes to preserve, protect and restore the scenic and ecological
values which exist or may exist on the Property, and
WHEREAS, the purchase of said land in the judgment of Buyer would act to preserve
the values indicated above and serve an important municipal purpose; and
WHEREAS, Buyer and Seller did enter into an Agreement of Option for Purchase and
Sale of Real Property on February 1, 2000, which Option was for ONE YEAR, to January 31,
2001 (the "Original Option") and did by subsequent Agreement extend said Option for an
additional SIX MONTHS, to July 31 ,2001 (the "Extension Agreement"); and
WHEREAS, both Buyer and Seller recognize that additional time is needed to finalize
certain details of the transaction, and for other matters related thereto.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS
1. AMENDMENT OF PURCHASE PRIGE AND TERMS
The parties agree that the full Purchase Price of ONE MILLION, TWO HUNDRED
FORTY-FIVE THOUSAND DOLLARS ($1,245,000) shall be payable in full, in cash at the
close of escrow.
2. ALL OTHER TERMS AND CONDITIONS REMAIN IN FULL FORCE AND EFFECT
All other terms and conditions of the "Original Agreement" dated February 1,2000,
and the "Extension Agreement" dated December 14,2000, between Buyer and Seller remain
in full force and effect except as modified by this Agreement, and are hereby incorporated
into this Agreement by reference.
.SELLER'
SL FOSTER C OTTE TRICIA F TER
Date:xeP r Date:V-/,t /z -7 azt I
..BUYER'
CITY OF SAN LUIS OBISPO
by:
ALLEN K ETTLE,R
Date
Lee P CMC
City Clerk
APPROVED AS TO FORM
d/
A
AGREEMENT OF OPTION FOR PURCHASE AND SALE
OF REAL PROPERTY
This AGREEMENT OF OPTION FOR PURCHASE AND SALE OF REAL PROPERTY
is entered into by and between the CITY OF SAN LUIS OBISPO ("Buyer"), a Califoinia
Charter Municipal Corporation, and JACK SLOAN FOSTER AND CHARLOTTE PATRICIA
FOSTER ("Seller"), pursuant to the following
RECITALS
WHEREAS, Buyer is a California charter Municipal Corporation; and
WHEREAS, Buyer, acting through its City Council and through adopted public
procedures, has determined that certain lands surrounding the city of San Luis Obispo are
important to the scenic character, healthy natural environment, and economic and social well
being of the community and its citizens; and
WHEREAS, Buyer seeks to preserve and conserve characteristics such as visual
quality, wildlife habitat, and other community attributes where appropriate surrounding the
City; and
WHEREAS, Seller is owner of certain lands adjacent to the City which are of scenic
and ecological value to the City of San Luis Obispo; and
WHEREAS, Seller wishes to preserve, protect and restore the scenic and ecological
values which exist or may exist on the Property, and
WHEREAS, the purchase of said land in the judgment of Buyer would act to preserve
the values indicated above and serve an important municipal purpose; and
WHEREAS, both Buyer and Seller recognize that time will be required to secure the
funds necessary for the transaction, and for other matters related thereto.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS
1. OPTION AND OPTION TERM.
Seller, for valuable consideration, hereby grants to Buyer an exclusive Option to
purchase the Property identified as San Luis Obispo County APNs 067-221-034, 067-221-
035, and 067-221-036 and commonly referred to as Parcels 2, 3, and 4 of Tract 1626 in the
County of San Luis Obispo, (shown on Exhibit A attached hereto) totaling approximately 154
acres ("the Property"). Buyer and Seller agree that the term of this Option shall commence
on February 1 , 2000, and continue for ONE YEAR, to Janu ary 31,2001. Buyer may exercise
the Option at any time within that period by sending written notice to Seller.
2. OPTION PAYMENT; RETURN OF OPTION PAYMENT.
(a) ln consideration of the Option and Option Term described above, Buyer shall
pay Seller the sum of twenty thousand dollars ($20,000) as an Option Payment.
This payment shall not be refundable. lf the Option is exercised on or before
August 1, 2000, the full Option Payment shall apply to the purchase price. lf
the option is exercised at any time between August 2, 2000 and January 31,
2001, one-half of the Option Payment shall apply to the purchase price.
(b) ln the event that Seller is unable to deliver clear title to the Property to Buyer, or
in the event that hazardous materials are found to exist on the site such that
completion of the Purchase and close of escrow or extension thereof as
described herein cannot take place, then Seller shall refund the full Option
payment to Buyer.
3. PURCHASE PRICE
(a) lf and when the Option is exercised, the total purchase price for the property
shall be $1 ,150,000.00, payable as described in Section (b) below.
(b) Seller desires to receive a secure cash flow from the sale of the property,
generating a tax-exempt income equal to six percent (6%) of the purchase price
less the Option Payment. The parties agree to use their best efforts to
establish a legal mechanism for such income as a part of this transaction. lf the
parties are unable to do so, Seller shall have no obligation to complete the
transaction.
4. GONVEYANCE
Title to the Property shall be conveyed by Grant Deed and shall be insured by a CLTA
(or at Buyer's election, an ALTA) owners' policy of title insurance in the amount of the
purchase price, showing title vested in Buyer, subject only to those exceptions listed in the
Preliminary Title Report and/or Supplemental Report approved or deemed approved by
Buyer.
5. CONDITIONS PREGEDENT FOR BENEFIT OF BUYER
After exercise of the Option, Buyer's obligation to purchase the Property is expressly
conditioned upon the satisfaction, deemed approval, or Buyer's waiver of each of the
following conditions, each of which is deemed exclusively for the benefit of Buyer:
(a) Title Report. Buyer's approval of the exceptions to title set forth in a preliminary
title report for the Property (the "Preliminary Title Report"). Buyer shall have thirty (30) days
after the receipt of the Preliminary Title Report and copies of all documents referenced
therein, to provide to Seller and Escrow Holder written notice of Buyer's disapproval of any
specific title exception. Any title exception not so disapproved shall be deemed approved,
provided that if a Supplemental Title Report is issued showing any exception not shown in
the Preliminary Title Report, Buyer shall have an additional ten (10) calendar days after
receipt of such Supplemental Report to similady disapprove any new title exception. lf Buyer
disapproves any title exception, Seller shall have no obligation to cure such disapproval
(except that Seller shall be obligated to remove any liens) but Seller may elect, by written
notice to Buyer within ten (10) calendar days after receipt by Seller of such notice of
disapproval, to attempt to remove such disapproved items. lf Seller is unable within a
reasonable time to accomplish such cure or removal, or if Seller elects not to attempt to so
cure or remove (which election shall be communicated to Buyer within ten (10) calendar days
after receipt by Seller of such notice of disapproval), then Buyer may elect to (i) terminate its
obligations under this Agreement, (ii) waive its objections to such exception, or (iii) elect to
correct any such disapproved exception itself, in which case Seller will provide reasonable
assistance to Buyer to cure the same.
(b) lnspection and Approval of Propertv and of Any_Testing Thereon. Buyer's
inspection and approval of the Property and all improvements thereon, including (at Buyer's
option and expense), any surveys or studies deemed necessary in Buyer's sole judgement.
Access to the property shall be given to Buyer, its agents and authorized representatives
during normal business hours upon at least one (1) business day's notice to Seller, at
Buyer's own cost and risk, for any purposes relating to Buyer's conditions. Buyer shall
indemnify and defend Seller against and hold Seller harmless "from all losses, costs,
damages, liabilities, and expenses, including, without limitation, reasonable attorney fees
arising out of Buyer's entry onto the Property or any activity thereon by Buyer or its agents,
or authorized representatives 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 Seller. lf Buyer discovers through its investigations any defects on the Property or
improvements thereon which it disapproves of, Seller shall have no obligation to cure such
disapproval (except that Seller shall be obligated to remove any liens) but Seller may elect,
by written notice to Buyer within ten (10) calendar days after receipt by Seller of such notice
of disapproval, to attempt to remove such disapproved items. lf Seller is unable within a
reasonable time to accomplish such cure or removal, or if Seller elects not to attempt to so
cure or remove (which election shall be communicated to Buyer within ten (10) calendar days
after receipt by Seller of such notice of disapproval), then Buyer may elect to (i) terminate its
obligations under this Agreement, (ii) waive its objections to such exception, (iii) elect to
correct any such disapproved exception itself, in which case Seller will provide reasonable
assistance to Buyer to cure the same. The parties may also enter into additional
negotiations, as may be mutually acceptable, concerning adjustment of the purchase price,
allocation of risk, or contribution to the costs to cure or other matters, and the Escrow shall
be extended for a reasonable time of effect such negotiations.
6. ESCROW
(a)Escrow Holder. Bu yer and Seller will establish an escrow ("Escrow") with
Escrow Holder within ten (10) business days of execution of this Agreement, subject to the
provisions of the standard conditions for acceptance of escrow and the terms and conditions
in this Agreement, with a signed counterpart of this document to be delivered as escrow
instructions to Escrow Holder. ln the event of any conflict between the terms of this
Agreement and the standard conditions for acceptance of escrow, the terms of this
Agreement shall control. The Escrow Holder shall be First American Title lnsurance
Company, 899 Pacific Street, San Luis Obispo, CA. 93449.
(b)Prorations and Fees.
(i) Real property taxes and rental income shall be prorated to the close of
escrow.
(ii) Seller shall pay (1) the documentary transfer tax, (2) the premium for a
CLTA policy of title insurance, and (3) recording fees. lf Buyer elects an ALTA
policy of title insurance, Buyer shall pay the portion of the premium that
exceeds the premium for a CLTA policy of title insurance.
(iii) All Escrow fees and costs shall be allocated according to custom in San
Luis Obispo County.
(c) Closinq Date. Escrow shall close within thirty (30) days of exercise of the
Option by Buyer.
7. REPRESENTATIONS,WARRANTIES,ANDAGREEMENTS
(a) Authorized Representative. Buyer and Seller hereby represent and warrant to
each other that the persons who sign this agreement and any other documents required to
be executed by such party to perform its obligations hereunder, shall have all requisite power
and authority to have entered into this Agreement, and that all authorizations required to be
obtained by or on the part of such party to execute and perform this Agreement have been
obtained.
(b)Proof of Citizenship. Seller is not a fore ign person as such term is used in
Section 1445 of the lnternal Revenue Code. Prior to the Close of Escrow, Seller shall
deposit in Escrow a non-foreign affidavit as provided under said Section 1445. Failure to do
so shall entitle Buyer to withhold from the purchase price such sums as are required by said
Section 1445.
(c)Delivery of Propertv. Possession of the Property shall be delivered by Seller to
Buyer upon the close of Escrow. Seller may remove, at Seller's expense, prior to the Close
of Escrow, all personal property and trade fixtures on the property, provided that the property
is left in a safe, sound and usable condition.
(d)Leqal Actions Seller represents and warrants to Buyer that there are no
actions, suits, or legal proceedings related to the ownership, use, operation or sale of the
Property to which Seller is a party nor has Seller received any notice that any such actions
are pending or threatened.
(e) Seller's Knowledqe of Environmental Conditions of the Property. To the best of
Seller's knowledge, there are not now nor have there been any hazardous or toxic wastes
(as said terms are defined in applicable Federal, State, or County laws or regulations)
located on or within any portion of the property; nor have there been any enforcement,
cleanup, removal or other governmental or regulatory actions instituted, contemplated, or
threatened pursuant to any applicable Federal, Statb, or local laws or regulations relating to
any hazardous materials and affecting the property; nor have there been any claims made or
threatened by any third party against Seller or the property, relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from any hazardous materials.
(f)Extinquishment of Access Easement. The parties recognize that an easement
for access to Parcels 3 and 4 crosses portions of another property owned by Seller,
commonly called Lot 13 of Tracl No. 1438 in the City of San Luis Obispo. Said easement is
referred to as Easement "C" in the Tract Map for Tract 1438. The parties further recognize
that an alternative access on the edge of said Lot 13 (referred to as Easement "B" in the
Tract Map for Tract 1438) and on Parcel 2 is available to serve as the access to Parcels 2, 3,
and 4. Therefore, the parties agree that, in the event of completion of the purchase of the
property by Buyer, the parties shall cooperate to extinguish the access easement (Easement
"C") on said Lot 13, and Buyer will exclusively utilize the alternative access on Easement "B"
on said Lot 13 and on Parcel 2for access to Parcels 2,3, and 4.
8. NOTICES
All notices, communications, consents, approvals and disapprovals required or
permitted hereunder must be in writing and shall be delivered by personal delivery, facsimile,
or deposited in the United States mail, postage prepaid and addressed as follows:
TO BUYER:City of San Luis Obispo
Dr. Neil Havlik, Natural Resources Manager
990 Palm Street
San Luis Obispo, CA 93401
Telephone (805) 781-7211
TO SELLER:Jack Sloan Foster and Charlotte Patricia Foster
P. O. Box 1161
San Luis Obispo, CA. 93406
Telephone (805) 238-5033
The foregoing addresses may be changed by written notice. lf served personally, or
by facsimile, service shall be conclusively deemed made at the time of service. lf served by
mail, service shall be conclusively deemed made seventy-two (72) hours after deposit thereof
in the United States mail.
9. BROKERS
Buyer and Seller each represent to the other that it knows of no claim for broker's or finder's
fees or other commissions in connection with this transaction other than as provided in this
paragraph. ln the event any other broker or finder asserts a claim for a commission or
finder's fee, the party through whom the broker or finder makes this claim shall indemnify the
other party for any and all costs and expenses (including attorney's fees) incurred by the
other party in defending the same.
10. SURVIVAL
The warranties, representations, and agreements made in this Agreement shall survive the
close of escrow.
11. MISCELLANEOUS
(a)Entire Aqreement This Agreement, and the exhibits hereto, contains the
entire agreement between the parties hereto. No modification or addition to any term or
provision hereof shall be effective unless made in writing and signed by both parties hereto.
The captions and headings in this Agreement are for reference only and shall not be deemed
to define or limit the scope or intent of any of the terms, covenants, conditions or agreements
contained herein.
(b) Attornevs' Fees. lf litigation is commenced between the parties, the prevailing
party in that litigation shall be entitled to recover from the non-prevailing party all reasonable
attorney fees and costs.
(c) 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.
(d) Governinq Law.
accordance with California law.
This Agreement shall be governed and construed in
(e)Time of Essence Time is of the essence in this Agreement.
(f)Offer and Acceptance. This Agreement shall be of no force or effect
whatsoever until signed by authorized representatives of both Buyer and Seller
(g) Exhibits. Exhibit A. Map
"Seller"
SLOAN FOSTER CHARLOTTE PATRICIA FOS
Date: /',,.--r,^
"E_uygf"
CITY OF SAN LUIS OBI
by:
ALLEN S
ATTES
Lee P , cMc
City Clerk
R
Date:
APPROVED AS TO FORM
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