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CC Resolution No. 7982 RæOWl'ION NO. 7982 A RESOWl'Iæ OF '!HE CI'lY CXJUNCIL OF '!HE CI'lY OF aJPERl'INO AUIH>RIZING EXEaJTION OF AGRE:n!ENT Pœ PORCE\SE OF REAL PROPERI'Y SIMMS PROPERI'Y ON }.fIT'TF.T:r~ roAD WHEREAS, the City Camcil previously approved the purchase of the sinuns Property located north of McClellan Read adjacent to the City's McClellan Ranch Park on the west side of Stevens Creek; am WHEREAS, said acquisition is in accordance with the City's General Plan Open Space element; am WHEREAS, there has been presented to the City Council a proposed agreement providin:J for the purchase of said real property; am WHEREAS, the terms am conditions of said agreement have been reviewed am approved by the Director of Public Works am the City Attorney; NCM, 'IHEREtU1œ, BE IT RæOLVED, that the city Council of the city of CUpertino hereby approves said agreement am authorizes the Mayor am the City Clerk to execute said agreement in behalf of the City of CUpertino. PASSED AND AOOPI'ED at a regular meeting of the City Council of the City of CUpertino this 20th day of November , 1989 by the followin; vote: Vote Members of the Citv Council AYES: Goldman, Koppel, Sorensen, Szabo, Rogers NOES: None ABSENT: None ABSTAIN: None ATI'FST: APPROVED: /s/ Dorothy Cornelius City Clerk /s/ Barbara A. Rogers Mayor, city of CUpertino AGREEMENT FOR PURCHASE OF REAL PROPERTY UNDER THREAT OF CONDEMNATION --- THIS California Clifford J. IS AN AGREEMENT between the City of referred to herein as "City", and the Simms, Sr., Deceased, referred to herein Cupertino, Estate of as "Simms". IT IS AGREED between the parties as follows: 1. Description of Property: In lieu of condemnation, the City agrees to purchase and Simms agrees to sell all, except as otherwise indicated herein, of that certain real property situated in the County of Santa Clara, City of Cupertino, generally described as APN 357-6-12, more particularly described in Exhibit A hereto, referred to herein as the "Property". 2. Purchase Price: The purchase price for the Property shall be One Million One Hundred and Fifty Thousand Dollars ($1,150,000.00), to be paid into escrow at least five (5) days prior to closing thereof. 3. escrow Jose, shall shall shall Escrow: This transaction shall be handled through an with Valley Title Company, 300 South First Street, San California, under an escrow number to be assigned. Escrow close no later than December 18, 1989, or this agreement automatically terminate, time being of the essence. Escrow open by no later than November 23, 1989. 4. Allocations of Costs: Documentary stamps on the Grant Deed and the premiums for the policy of title insurance and escrow fees shall be paid by Simms. The cost of recording the Grant Deed shall be paid by the City. Rents, taxes, interest and other expenses of the property shall be prorated as of the date of close of escrow. 5. Evidence of Title: Evidence of title shall be in the form of a C.T.L.A. policy of title insurance. 6. Conditions of Sale: agreed that this trãnsaction conditions: It is expressly is subject to understood and the follo~ling by Simms builda ble which lot (a) from lot, shall Reserved Buildable Lot. There shall be reserved the Property described in Exhibit A one (1) with two (2) curb-cuts onto Scenic Boulevard, be excluded from this sale. Said "buildable lot" shall be of the approximate size and location delineated in red on the Map attached hereto as Exhibit B, which shall be more particularly described before close of escrow by a survey provided by City, and shall be duly subdivided by the City from the Property being sold hereby at the City's expense and the Final Map recorded within 120 days of close of escrow. (b) Soil Tests. Simms hereby discloses to the City that the Property was used as a tractor yard, and that underground and above-ground fuel tanks have previously been stored and used on the Property, and that from time to time herbicides and other chemicals used by the Simms in their weed- abatement business have been stored on the Property. Simms represents that it has no knowledge or information of or regarding any toxic contamination of the Property, and Simms covenants to notify City if Simms obtains actual knowledge of some fact or circumstance which renders said representations untrue prior to close of escrow. Upon execution of this agreement, the City shall hav~ the right, at its own expense, to go upon the Property at reasonable times and upon reasonable notice to conduct reasonable soil tests, water monitoring tests and an environmental compliance audit, to ascertain whether the Property is suitable for the use and/or improvements that the City proposes to make. The City shall be responsible for the repair and restoration of any damage which may be caused by such tests. The City shall provide Simms at no cost with copies of all test results, studie s, reports and other information resulting from said tests and audits. If, in the reasonable opinion of the soil engineer and/or other experts employed by the City, acting in good faith, the Property is not suitable, because of toxic contamination, for the proposed use and/or development planned by the City, then at the option of either party this agreement may be terminated and any deposits shall be refunded. The City shall have 45 days from date of opening of escrow within which to complete all such tests, audits and reports relating to the Property and to notify Simms in writing of its election to terminate this agreement on the grounds the Property is not suitable because of toxic contamination. Failure of the City to give such a notice within the time indicated shall be deemed to be a waiver of this condition. City is acquiring the Property "As is", based solely on its own investigation of, and determination of the condition of, the Property. (c) Examination of Title. Fifteen (15) calendar days from date of acceptance hereof are allowed the City to examine the title to the property and to report in writing any valid objections thereto. Any objections to the title which would be disclosed by examination of the records shall be deemed to have been accepted unless reported in writing within said fifteen (15) calendar days. If the City objects to any exceptions to the title, Simms shall proceed with due diligence to remove such exceptions at Simms own expense before close of escrow, except 2 , that should it appear before close of escrow that such expenses would exceed $5000.00, Simms shall have the further option to terminate this agreement. In any event, if such exceptions cannot be removed before close of escrow, dispite Simms' reasonable attempts to do so, at the election of either party hereto, all rights and obligations hereunder shall terminate and any depoèits taking reasonable steps to remove exceptions to the title. To the extent reasonably possible, this provision shall be kept confidential so as to enable Simms to remove such exceptions at the lowest possible cost. Escrow shall close no later than December 22, 1989. 7. Encumbrances, Taxes and Assessments: The City shall take title to the Property subject to (i) real estate taxes not yet due, and (ii) encumbrances, conditions, restrictions, rights of way and easements of record which do not materially affect the value or intended use of the Property. Any assessments and/or improvement bonds in existence prior to the date of close of escrow shall be paid by Simms, except that any assessments and/or improvement bonds payable in installments shall be pro-rated as of close of escrow. 8. McClellan Road Construction License: The Property sold hereunder, and the price being paid therefor, expressly include, without limitation, that strip of land contingent to McClellan Road, being a portion of the Property, which is the subject of that certain Temporary Construction License, dated October 13, 1988, whereby Marion Simms Hart, as Conservator of the Estate of Clifford J. Simms, Sr., granted to the City the right to enter upon the Property for purposes of constructing improvements on said strip of land, including but not limited to driveways, curbs, landscaping and irrigation, and drainage inlets. In the event the purchase and sale in lieu of condemnation contemplated by this agreement is not completed, the City shall be indebted to Simms for all damages suffered by Simms from the taking of said strip of land. 9. Lease Warranty: Simms warrants that there are no oral or written leases on all or any portion of the Property exceeding a period of month-to-month. 10. Time of Essence: Time is of the essence as to each and every provision and condition of this agreement. 11. Approval ~ Court: This agreement is contingent upon the approval of this sale, at least five (5) days prior to close of escrow, by the Santa Clara County, California Superior Court, having jurisdiction over the Estate of Clifford J. Simms, Sr., Decedent. 3 · 12. Possession: Subject to the terms of the Temporary Construction License between the parties dated October 13, 1988, Simms shall retain possession of the Property up to and including the date of recording of the Grant Deed conveying title to the Property to the City. Simms shall be entitled to all rents from the Property up to and including the date of transfer of title. All rents collected by Simms applicable to any period after the date of transfer shall be paid to City. Either party to this agreement receiving rents to which the other party is entitled shall forthwith pay that amount to the other as is necessary to comply with the provisions of this paragraph. In no event, however, shall the City be responsible for collection of rents applicable to the period up to and including the date of transfer of title. 13. Entire Agreement: This agreement expresses the entire agreement by and between Simms and the City. If either party to this agreement shall instituté any legal action against the other party to this agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs in addition to any other judgment of the Court. IN WITNESS WHEREOF, City has executed this agreement as of , 1989. CITY OF CUPERTINO by ACCEPTED AND AGREED: DATED: ,1989. Clifford J. Simms, Jr. Marion Simms Hart as Co-Executors of the Will and Estate of Clifford J. Simms, Sr., Decedent 63/7563AGR.K03 4