open space conveyance agreement with conservation …

OPEN SPACE CONVEYANCE AGREEMENT WITH CONSERVATION EASEMENT;JOINT ESCROW INSTRUCTIONS

(BUTTE STREET PROPERTY)

THIS OPEN SPACE CONVEYANCE AGREEMENT WITH CONSERVATIONEASEMENT; JOINT ESCROW INSTRUCTIONS(this "Agreement"), dated foridentification purposes only as of June 1, 2016 (the "Date of Agreement"), is entered by andbetween the City of Sausalito, a municipal corporation (the "City") and Open Space Sausalito, aCalifornia corporation ("Transferee' ). The City and Transferee are collcctively referred toherein as the '"Parties."

RECITALS

The following recitals are a substantive part of this Agreement:

A.The City is the owner of an undivided one-half interest in real property located inthe general vicinity of Butte Street in the City of Sausalito comprising approximately 2.012 acresand generally identified as APN 64-321-01 (the "Butte Street Property").

B.The Transferee has entered into that certain Option Agreement dated April 6,2015(the "Option Agreement") to acquire the other undivided one-half interest in the ButteStreet Property from Rodney D. Hunt, Trustee of the Raymond L. Hunt Trust dated January 27,1983 (the "Hunt Property Interest").

C.The Butte Street Property is legally described on the Butte Street Property LegalDescription attached hereto and incorporated herein by referenced as Exhibit "A" and depictedon the Butte Street Property Map attached hereto and incorporated herein by reference asExhibit "B".

NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUALPROMISES, COVENANTS AND CONDITIONS CONTAINED HEREIN, CITY ANDTRANSFEREE AGREE AS FOLLOWS:

ARTICLE 1CONVEYANCE AGREEMENT AND ESCROW INSTRIJCTIONS

1.1Conveyance. Subject to the terms and conditions set forth in this Agreement, Cityagrees to convey its one-half interest in the Butte Street Property to Transferee,and Transfereeagrees to accept the City's one-half interest in the Butte Street Property.

1.2Quitclaim Deed. City agrees to convey the City's one-half interest in the ButteStreet Property to Transferee, at the Closing, by execution and delivery of a quitclaimdeed in theform attached hereto and incorporated herein by reference as Exhibit "C" (the "QuitclaimDeed").

1.3Conservation Easement. The parties have agreed to devote the Butte StreetProperty to open space and conservation purposes in perpetuity. In order to ensure such use.

Open Space Conveyance Agreement with Conservation Easement Joint Escrow Instructions O61616.docx

Item 6B Attachment 4 6/28/16 of 15

Transferee shall coordinate with a non-profit organization dedicated to holding and maintainingconservations properties and easements to serve as the "grantee" of a recordable "conservation

easement," such grantee to be approved in writing by the City. The conservation easement shallbe fully executed in recordable form and shall be recorded prior to, or concurrent with, theClosing, and be substantially in the form attached hereto and incorporated herein by reference asExhibit "D" (the "Conservation Easement").

1.4 Closing. The terms "Closing" and "Close of Escrow" as used in this Agreementmeans therecording in the Office of the County Recorder of Marin County, California, of thefollowing documents in the following order of recordation: (i) the Quitclaim Deed conveying toTransfereethe City's right, title and interest in and to the Butte Street Property and, followingsuch recordation; (ii) the Conservation Easement. Subject to any termination of this Agreement asmay be permitted hereunder, the date of the Closing (the "Closing Date") shall be no later thansixty (60) days following the Effective Date. If the last day to close is a Saturday, Sunday,Monday or government holiday, the Closing Date will be the next business day thereafter or such,other date as agreed to by the written consent of the parties.

1.4.1Transferee's Conditions to Close. The obligations of Transferee underthis Agreement shall be subject to the satisfaction or written waiver, in whole or in part, byTransferee of each of the following conditions precedent:

1.4.1.1City shall not be in default under this Agreement.

1.4.1.2Escrow Holder holds and will deliver to Transferee the instrumentsand funds, if any, accruing to Transferee pursuant to thisAgreement.

1.4.1.3Title Company is irrevocably committed to issue the QuitclaimDeed Title Policy (as defined in Section 1.7.1 below).

1.4.1.4The closingfor the conveyance of the Hunt Property Interest toTransferee shall be completed or concurrent with the Closinghereunder.

1.4.1.5City shall have delivered to Escrow the Quitclaim Deedinrecordable form.

1.4.2City's Conditions to Close. The obligations of City under this Agreementshall be subject to the satisfaction or written waiver, in whole or in part, by City of each of thefollowing conditions precedent:

1.4.2.1Transferee shall not be in default under this Agreement.

1.4.2.2Escrow Holder holds and will deliver to City the instruments andfunds, if any, accruing to City pursuant to this Agreement.

Item 6B Attachment 4 6/28/16 Page 2 of 15

1.4.2.3The closing for the conveyance of the Hunt Property Interest toTransferee shall be complete or concurrent with the Closinghereunder.

1.4.2.4Transferee shall have (i) demonstrated that the ConservationEasement has been previously recorded inthe official records ofMarin County, State of California, or alternatively (ii) deliveredthe Conservation Easement to Escrow in recordable form.

1.5Termination- In the event that the Option Agreement is terminated or otherwiseexpires before the Hunt Property Interest is conveyed to Transferee, City shall have the right toterminate this Agreement in its sole and absolute discretion and the parties shall have noobligations hereunder.

1.6Transferee's Investigation of the Butte Street Property. City previously grantedTransferee a Right of Entry that was effective for a period of one year. Upon the Effective Dateuntil the Closing, Transferee and its agentshave an additional limited license (the "License") tomake such investigations of the Butte Street Property as it deems necessary or appropriate in theexercise of due diligence, including without limitation inspections and examinations of the ButteStreet Property as to its physical condition, condition of title, surveys, and environmentalinspections; provided, however, to the extent not previously provided to Transferee, atTransferee's request, City shall deliver or make available to Transferee copies of any plans andspecifications, surveys, zoning reports, geotechnical reports, soils reports and Phase I and PhaseII environmental reports regarding the Butte Street Property , to the extent the same are in City'spossession or control and are neither privileged nor confidential. Transferee shall have until July31, 2016 ("Due Diligence Period") to review and approve all aspects of the Butte StreetProperty.Transferee shall give City written notice on or before expiration of the Due DiligencePeriod approving or disapproving the Butte Street Property in Transferee's sole and absolutediscretion. If Transferee disapproves of the Butte Street Property prior to the expiration of theDue Diligence Period, Transferee may cancel this Agreement and the parties shall have nofurther obligations under this Agreement. Consent to the Closing under this Agreement signifiesthat Transferee was satisfied with the results of its investigations of the Butte Street Property andthe information provided by City.Consequentially, upon the Closing, Transferee does herebyacknowledge, represent, warrant and agree to and with City that (a) Transferee is purchasing theButte Street Property in an "AS IS,""WITH ALL FAULTS" condition as of the Closing withrespect to any facts, circumstances, conditions and defects (including, but not limited to, anypatent or latent defects or conditions affecting the Butte Street Property and condition of title);(b) City has no obligation to repair or correct any such facts, circumstances, conditions or defects(including, without limitation, any patent or latent defects or conditions affecting the Butte StreetProperty) or to compensate Transferee for same; (c)by the Closing, Transferee shall haveundertaken all such physical inspections and examinations of the Butte Street Property (and anyadjoining property) as Transferee deems necessary or appropriate under the circumstances and,that based upon its inspection and examination of the Butte Street Property, Transferee is andwill be relying strictly and solely upon such inspections and examinations; (d) based on theadvice and counsel of its agents, employees and contractors, Transferee is and will be fullysatisfied at the Closing that the consideration provided herein, including the burden of theConservation Easement, is fair and adequate consideration for the Butte Street Property; and


(e) by reason of all of the foregoing. Transferee shall assume the Ml risk of any loss or damageoccasioned by any fact, circumstance, condition or defect pertaining to the physical or financialcondition of the Butte Street Property or any surrounding property, including, but not limited to,the presence of power lines and/or any hazardous or toxic substance, material, waste, gas, solidor liquid which is or becomes regulated by any governmental authority ("HazardousMaterials") in, on, under or about the Butte Street Property. Transferee shall be solelyresponsible for the costs incurred by Transferee in the performance of its due diligenceinvestigation of the Butte Street Property. Transferee shall obtain any necessary approvals fromthe Hunts in order to enter onto the Butte Street Property.

1.7Expenses and Closing Costs. At the Closing, Transferee shall be responsible forall title insurance premiums, documentary transfer taxes and other closing costs ("ClosingCosts") as follows:

1.7.1Transfereeshall pay the premium for aStandardCoverage Owner's Policyof Title Insuranceissued by Old Republic Title Company or such other reputable title companyselected by the Transferee ("Title Company") showing fee simple title to the Butte StreetPropertyvested in Transferee or Transferee's assignee or nominee (the "Quitclaim Deed TitlePolicy") along the cost for any endorsements requested by Transferee. Transfereealso shall paythe fee for recording the Quitclaim Deed, the Conservation Easement and any escrow fees orcharges by the Escrow Holder.

1.7.2Transferee shall pay all sales, excise and transfer taxes attributable to theconveyance of the Butte Street Property.

1.7.3Transferee shall pay the cost of recording any deed of trust or financingdocuments to be recorded at the Closing.

1.7.4If authorized by Transferee, Transferee shall pay for any structural reportsor pest control reports of or concerning the Butte Street Property.

1.7.5Notwithstanding that the Butte Street Property has been exempt from realestate taxes while owned by City with respect to the City's half of the property, Transferee shallbe allocated real estate taxes applicable to Transferee's period of ownership or applicable toCity's period of ownership (if any), respectively, even if such taxes and assessment installmentpayments are not yet due and payable.

1.7.6All other Closing Costs shall be allocated to Transferee.

1.8The Escrow. The Closing shall be effected through the Quitclaim Deedin theform attached and money escrow held by Old Republic Title Company or such other reputableescrow company selected by the Transferee ("Escrow Holder"). This Agreement, together withthe general form escrow instructions of Escrow Holder, to the extent that they are consistent withthis Agreement, shall be the escrow instructions for the Escrow.At Escrow Holder's request, Cityand Transferee shall execute such supplemental or amended escrow instructions as EscrowHolder may reasonably require and which are consistent with this Agreement.


1.9Deposits into the Escrow.At least one (1) business day prior to the Closing Date,each party to this Agreement shall deposit with Escrow Holder the items set forth below in thisSection for that respective party.

1.9.1City shall deposit or cause to be deposited with the Escrow Holder thefollowing, all in form and substance reasonably acceptable to Transferee and its counsel:

1.9.1.1An executed and acknowledged Quitclaim Deed conveying theCity's title to the Butte Street Property to Transferee;

1.9.1.2An affidavit executed by City, establishing that the City is not aforeign person within the meaning of Section 1445 of the Internal Revenue Code and the rulesand regulations promulgated thereunder, sufficient to excuse Transferee from the obligation towithhold a portion any funds under Section 1445 of the Internal Revenue Code;

1.9.1.3A California Form 590 RE or other document executed by City,legally sufficient to excuse Transferee from the obligation to withhold monies under the relevantprovisions of the California Revenue and Taxation Code;

1.9.1.4An executed closing statement (the "Closing Statement"),prepared in conformity with the provisions of this Agreement; and

1.9.1.5Such other documents and instruments as may reasonably berequired by the Escrow Holder in order to consummate the conveyance of the City's one-halfinterest in the Butte Street Property to Transfereeincluding an Owner's affidavit.

1.9.2Transferee shall deposit or cause to be deposited with the Escrow Holderthe following, all documents in form and substance reasonably acceptable to City and itscounsel:

1.9.2.1Unless previously recorded, an executed and acknowledgedConservation Easement;

1.9.2.2A Preliminary Change of Ownership Report fully completed byTransferee (the "PCOR");

1.9.2.3An executed Closing Statement; and

1.9.2.4Such funds, documents and instruments as may reasonably berequired by Escrow Holder in order to consummate the conveyance of the City's one-halfinterest in the Butte Street Property.

1.10Actions to be Taken by Escrow Holder at Closing.Upon the Close of Escrow,Escrow Holder shall do the following:

1.10.1 Record the Quitclaim Deed from City to Transferee and concurrentlysubmit the PCOR for recordation;


1.10.2Record the Conservation Easement (if not previously recorded);

1.10.3Cause the Title Company to issue the Quitclaim Deed Title Policy toTransferee; and

1.10.4Deliver to Transferee any non-foreign person affidavit and California590RE form executed and deposited in escrow by City.

1.11Brokerage.If any person claims a brokerage commission, finder's fee or othercompensation arising out of the conveyance of the Butte Street Property or otherwise pursuant tothis Agreement, based on the alleged agreement or promise of Transferee or City, the party uponwhose alleged agreement or promise the claim is based shall indemnify, defend and holdharmless the other party to this Agreement from and against such claim, which indemnificationshall include the payment of the other party's reasonable legal fees and costs of defense.

1.12Remedies. If, prior to the Closing, Transferee defaults in its obligation under thisAgreement to Close Escrow, then, subject to Section 2.8 hereof. City's sole remedy shall be to(i)terminate this Agreement by delivery of written notice to Transferee and Escrow Holder, inwhich event neither party shall have any rights or obligations with respect to the other, or(ii)seek the remedy of specific performance to enforce Transferee's obligation to acquire theButte Street Property from City.

ARTICLE 2GENERAL PROVISION

2.1 Notices. All notices hereunder must be in writing and, unless otherwise providedherein, shall be sent by registered or certified mail, postage prepaid, return receipt requested,overnight courier or telecopy and shall be deemed received upon the earlier of (i) if mailed, four(4) business days after the date of posting by the United States post office, or (ii) if sent byovernight courier for next business day delivery, upon such next business day and otherwiseupon receipt by the person to receive such notice. Any notice, request, demand, direction orother communication sent by telecopy must be confirmed within forty-eight (48) hours by lettermailed in accordance with the foregoing. The Parties agree that their respective counsel isauthorized to give notices on their behalf. Notices shall be addressed as follows (or to any othermailing address which the entity to be notified may designate by such notice; should Transfereeor City have a change of address, the other entity shall immediately be notified as provided inthis Section of such change):

To Transferee:

If to City, to:

Open Space SausalitoAttn: William E. Monnet132 Lower Anchorage RoadSausalito, CA 94065

City of SausalitoAttention:City Manager420 Litho StreetSausalito, CA 94965


2.2Time is of the Essence. Transferee and City mutually agree that time is of theessence throughout the term of this Agreement and every provision hereof in which time is anelement.No extension of time for performance of any obligations or acts shall be deemed anextension of time for performance of any other obligations or acts.If any date for performance ofany of the terms, conditions or provisions hereof shall fall on a Saturday, Sunday or legalholiday, then the time of such performance shall be extended to the next business day thereafter.

2.3Section Headings. The section headings contained in this Agreement are forconvenience only and shall in no way enlarge or limit the scope or meaning of the various andseveral sections hereof.

2.4Interpretation. Whenever used in this Agreement, the singular number shallinclude the plural, the plural the singular, and the use of any gender shall include all genders.

2.5Applicable Law and Venue. This Agreement shall be governed by and construedin accordance with the laws of the State of California in effect at the time of the execution of thisAgreement. The Parties consent to the jurisdiction of the California courts with venue in MarinCounty.

2.6Successors and Assigns. This Agreement shall be binding upon and inure to thebenefit of the Parties hereto and their respective successors and permitted assigns. ThisAgreement shall be freely assignable by Transferee but Transferee shall not be released from anyliability hereunder following assignment.

2.7Amendments. All amendments and/or supplements to this Agreement must be inwriting and executed by each party hereto. However, such amendments and/or supplements maybe executed in counterparts, all of which shall be deemed to constitute one document.

2.8Default. If either Transferee or City fails to perform an obligation it has underthis Agreement, or breaches one of its covenants under this Agreement ,and the obligationremains unperformed or the breach remains uncured five (5) business days after the other partygives the defaulting party written notice of the failure to perform or breach of covenant, then thedefaulting party will be deemed to be in material breach of contract, and the non-defaulting partymay resort to any or all remedies provided under this Agreement at law or equity, subject to thelimitations and restrictions contained in Section 1.12.

2.9No Third Party Rights. No right or action shall be deemed to accrue for thebenefit of any third party other than the City by reason of this Agreement.

2.10Attorneys' Fees. In the event of default hereunder by either party, if the non-defaulting party engages an attorney to prepare a notice or notices or to otherwise communicatewith the defaulting party, then the defaulting party shall be liable to the other party for itsreasonable attorneys' fees incurred by it for such services.If either party commences an actionagainst the other party arising out of or in connection with this Agreement, the prevailing partyshall be entitled to have and recover from the losing party reasonable attorneys' fees and costs ofsuit.


2.11Effective Date. The Effective Date of this Agreement shall be the date theAgreement is signed by both Parties.

2.12Entire Agreement. The Parties acknowledge and agree that at all times they haveintended that none of the preliminary negotiations concerning this transaction would be bindingon either party, and that they would be bound to each other only by a single, formal,comprehensive document, and any and all exhibits and/or supplements thereto, containing thissection and all of the agreements of the Parties, in final form, which has been executed anddelivered by Transferee and City.The Parties acknowledge that no prior oral agreements betweenthem (and none of the representations on which either of them has relied) relating to the subjectmatter of this Agreement shall have any force or effect whatever, except as and to the extent thatsuch agreements and representations have been incorporated in this Agreement.

2.13Counterparts. This Agreement may be executed in counterparts, all of whichcounterparts taken together shall be deemed to be but one original.Signature pages may beseparated from counterparts and attached to a copy of this Agreement in order to form a singlephysical document containing the signatures of both Parties.

[Remainder of page intentionally left blank; signatures appear on next page.]


IN WITNESS WHEREOF, CITY AND TRANSFEREE HAVE EXECUTED THISAGREEMENT AS OF THE RESPECTIVE DATES SET FORTH BELOW.

"CITY"

CITY OF SAUSALITO,a municipal corporation

Date: By:Adam W. Politzer, City Manager

ATTEST:

By:City Clerk

APPROVED AS TO FORM:

By:City Attorney

"TRANSFEREE"

OPEN SPACE SAUSALITO,a California corporation

Date: By:Name:_

Title:

Date: By:Name:_

Title:


EXHIBIT "A"

BUTTE STREET PROPERTY LEGAL DESCRIPTION

Beginning at the intersection of the Southeasterly line of Butte Street and the Southwesterly boundary line ofBuena Vista Heights, Unit Two, as said Street and boundary Sine are shown on the Map of Buena Vista HeightsUnit Two, recorded April 29, 1959 in Book 10 of Maps at Page 20, Marin County Records, running thence alongsaid Southwesterly boundary line South 39° 42' East 253.201 feet to a point on the Northwesterly line of Lot72, according to the Map of Buena Vista Heights Unit Three recorded December 1st, 1961 in Book 11 of Mapsat Page 4, Marin County Records, thence along the Northwesterly line of Lots 72, 73 and 74, according to saidMap of Buena Vista Heights Unit Three, South 46° 34' 00" West 103 feet, thence along the Northwesterly lineof Lots 74 and 75, according to the said Map of Buena Vista Heights Unit Three, South 19° 28' 03" West139.613 feet, thence along the Southwesterly Ifne of said Lot 75, South 81° 50' 51" East, 58.000 feet, thenceSouth 36° 12' 43" West 45.328 feet to the Northerly line of Lot 76, according to the said Map of Buena VistaHeights Unit Three, thence along said last named tine North 81° 50' 50" West 92.858 feet, thence along theNorthwesterly line of said Lot 76, South 08° 09'09" West SI feet to the Northerly line of Lot 77, according tosaid Map of Buena Vista Heights Unit Three, thence along said last named lot line North 81° 34' 17" West119.050 feet to a line which bears South 17° 22! 04" West, thence along said last named line North 17° 22'04" East 114.170 feet, thence Noith 0° 03' 46" West 262.40 feet to the point distant North 79c, 52' 59" East245.21 feet from Engineer's Station 38+81.93 on tiie "DSL" line of the Department of Public Yfcrks Suivey forthe State Freeway in Marin County, between Waldo and the Golden Gate Bridge Road IV-Mrn-l-D, said pointalso being on the said Southeasterly line of Butte Street, and thence along said line of Butte Street, North 50°3ff East 156.402 feet to the point of beginning.

Being the lands of Harney, Perego & Teague as shown on the Map of "Buena Vista Heights, Unit Three,Saiisalito, Marin Co., Cat.", filed December 1,1961 in Map Book 11 at Page 4, Marin County Records, but not apart of said Subdivision Map.

ARM: 064-321-01

Exhibit "A" - Page 1Item 6B Attachment 4 6/28/16 of 15

EXHIBIT "B"

BUTTE STREET PROPERTY MAP

TssAresCWe9~ogo 64-32

Exhibit "B"-Page 1


EXHIBIT "C"

FORM OF QUITCLAIM DEED

Recording Requested by:OPEN SPACE SAUSALITO

WHEN RECORDED MAIL TO:

OPEN SPACE SAUSALITOAttn: William E. Monnet

132 Lower Anchorage RoadSausalito, CA 94065

MAIL CONFORMED COPY TO:

CITY CLERKCITY OF SAUSALITO

420 Litho StreetSausalito, CA 94965

EXEMPT FROM RECORDING FEE -GOVERNMENT AGENCY BUSINESS Per Gov'tCodes 6103 and 27383

SPACE ABOVE THIS LINE FOR RECORDER'S USE

DOCUMENTARY TRANSFER TAX $

Computed on full value of property conveyed, or

Computed on full value less liens & encumbrances remaining thereon at time of sale.

Signature of declarant or agent determining tax, firm name

QUITCLAIM DEEDFOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITYOF SAUSALITO, a municipal corporation ("Grantor"), hereby REMISES, RELEASES ANDFOREVER QUITCLAIMS to OPEN SPACE SAUSALITO, a California corporation("Grantee"), all right, title and interest Grantor has in, under and to that certain real propertysituated in the County of Marin, State of California, described as follows:

See Exhibit A attached hereto and incorporated by reference herein (the "Real Property")

EXCEPTING THEREFROM all public improvements, facilities and fixtures owned by Grantorand located on the Real Property as of the date this Quitclaim Deed is recorded, if any.

Exhibit "C"- Page 1Item 6B Attachment 4 6/28/16 of 15

AND ALSO RESERVING THEREFROM an easement for public utilities in favor of the City ofSausalito for existing electric and water facilities located within the boundaries of the RealProperty as of the date this Quitclaim Deed is recorded, if any.

CITY OF SAUSALITO, a municipal corporation

Dated: By:Its: Mayor

Exhibit "C"- Page 2


EXHIBIT A TO QUITCLAIM DEED

LEGAL DESCRIPTION OF REAL PROPERTY

[To be inserted]

Exhibit A to Quitclaim Deed - Page 1Item 6B Attachment 4 6/28/16 of 15

EXHIBIT "D"

FORM OF CONSERVATION EASEMENT

[To be attached]

Exhibit A to Conservation Easement - Page 1


open space conveyance agreement with conservation …

Documents