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HomeMy WebLinkAboutMINUTES - 06122007 - C.105 C I oS -..sE,L• Contra TO: BOARD OF SUPERVISORS FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR �' Costa DATE: JUNE 12, 2007 County ST't courr SUBJECT: 1700 OAK PARK BLVD AND A PORTION OF 143-230-008, PLEASANT HILL AREA, DISTRICT IV Project No. 4500-6X5028 (Government Code Section §§ 25350, 25363) SPECIFIC REQUFST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: A. DECLARE that this Board on April 10, 2007, approved a Notice of Intention to Purchase Real Property, fixing June 12, 2007 at 9:00 a.m. or thereafter, in its Chambers, Contra Costa County Administration Building, 651 Pine Street, Martinez, California, as the time and place where it would meet to consummate the purchase of real property described therein from Mount Diablo Unified School District (MDUSD). B. APPROVE the Purchase and Sale Agreement and Joint.Escrow Instructions(Agreement),attached hereto as Exhibit"A"for the real property identified as a two acre portion of Assessor's Parcel Number 149-230-008, Pleasant Hill, California between MDUSD and Contra Costa County(County); AUTHORIZE the County Administrator to execute said Agreement on behalf of the County,and CONSUMMATE the purchase of the real property described in the Agreement subject to the Third Party Sale Contingency, and all of the other terms and conditions, set forth in the Agreement. C. ACCEPT the Grant Deed from MDUSD subject to the terms and conditions of said Agreement and DIRECT the Real Property Division to have the Grant Deed recorded upon satisfaction of t Third Party Sale Contingency, and all of the other terms and conditions, set forth ' t e Agreement CONTINUED ON ATTACHMENT: El SIGNATU RECOMMENDATION OF COUNTY ADMINISTRATOR RFC M I NDATI N BOARD COMMITTEE APPROVE OTHER SIGNA,FURE(S): ACTION OF 130AON N q?"7--APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS: 1 HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON UNANIMOUS(ABSI N-l- ) MINUTES OF THE BOARD OF SUPERVISORS ON T14E AYES: NOES: DATE SHOWN. ABSFNT: ABSTAIN: GRc ATTESTED :\ ��.. ' GKalPrup\'_007-FiIcsV3oard Orders\OG-I'�-07 130-Oak Park Purchase and Salc.doc Contact: Karen Laws,Real Property(925)313-2220 JOHN LLEN,CLERK OF THE BOARD OF SUPERVISORS cc: County Administrator Auditor-Controller(via WI') County Recorder(via WP) / PW Accounting BY: DEPUTY/ Real Property Agent / SUBJECT: 1700 Oak Park Blvd and a portion of 143-230-008, Pleasant Hill area, District IV DATE: June 12, 2007 PAGE: 2 of 3 RECOMMENDED ACTION: (continued) D. DECLARE that this Board on April 10, 2007, approved a Notice of Intention to Sell Real Property and Notice of Public Land Sale for the combined 10-acre site identified as APN 143-230-005 and a portion.of APN 143-230-008 (Property), and set May 21, 2007, at 11 :00 a.m., as the date and time when oral bids would be received and considered. E. APPROVE the Option Agreement attached hereto as Exhibit`B"between the County and SummerHill Land Acquisition Company(Optionee), and AUTHORIZE the Public Works Director,or designee,to execute the Option Agreement on behalf of the County. F. CONFIRM the sale of the Property to Optionee, the highest bidder, for the sum of Twenty-two Million dollars ($22,000,000), subject to the terms and conditions set forth in the Option Agreement, and AUTHORIZE the Chair, Board of Supervisors, to execute a Grant Deed to Optionee, or its assignee, upon Optionee's performance of all terms and conditions set forth in the Option Agreement. FISCAL IMPACT: The sales price of Twenty-two Million Dollars($22,000,000)is to be shared by County and MDUSD in accordance with the terms and conditions of the Agreement and the Joint Exercise of Powers Agreement(JEPA)dated June 12, 2006. Said Agreement and JEPA provides that MDUSD will receive ten percent(10%)of the net sales proceeds and the County to receive ninety percent(90%)of the net sales proceeds. Consistent with previous Board direction, the proceeds from the sale will be deposited into the County's General Fund Reserve Designation as a measure to improve the County's fiscal health. Payment of the funds from the Optionee shall be made in accordance with the Option Agreement and as outlined in Summary of Option Agreement Notice and Payment Terms attached hereto as Exhibit "C". REASONS FOR RECOMMENDATIONS AND BACKGROUND: The County owns the 8-acre site at 1700 Oak Park Boulevard in the City of Pleasant Hill that was the former Oak Park Elementary School site. The site has not been used as a public school during the 25 years the County has owned the Property. The Property is surplus and is not required for public use. MDUSD is the owner of an adjacent parcel. The County holds an easement over a 2-acre portion of MDUSD's adjacent parcel. MDUSD has determined that the 2-acre portion of its adjacent parcel is surplus property. On December 12,2006,the Board adopted a Mitigated Negative Declaration and Mitigation Monitoring Program for the project and found that there is no substantial evidence that the project,with the mitigation measures, will have a significant effect on the.environment. The Board determined the parcels to be surplus and not required for public use. On December 12, 2006, the Board also approved a JEPA, a Notice of Intention to Purchase a 2-acre site from MDUSD and a Notice of Intention to sell the combined 10-acre site and set March 20, 2007 for the public auction. At the auction on March 20, 2007, no party posted the required $50,000 option deposit, therefore no auction was held. SUBJECT: 1700 Oak Park Blvd and a portion of 143-230-008, Pleasant Hill area, District IV DATE: June 12, 2007 PAGE: 3 of REASONS FOR RECOMMENDATIONS AND BACKGROUND: (continued) On April 10, 2007, in order to give staff adequate time to remarket the Property under revised terms, the Board re- noticed the intention to purchase and sell, and reset the date of the auction to May 21, 2007, and the date the Board is to meet to consummate the purchase of the 2-acre site and the sale of the combined 10 acres to .l Line 12, 2007. The Notice of Intention to Purchase Real Property and the Notice of Intention to Sell Real Property were duly published in accordance with applicable law. At the auction on May 21,2007, the highest bid received was for the minimum bid amount of Twenty-two Million Dollars($22,000,000)by SummerHill Land Acquisition Company. SummerHill Land Acquisition Company signed the Option Agreement and deposited fifty-thousand ($50,000) as a good faith deposit to secure the transaction. CONSEQUENCES OF NEGATIVE ACTION: The County will be unable to proceed with the joint sale of the County-owned 8-acre parcel and the 2-acre portion of the MDUSD site. Parcel Number. Portion of 149-230-008 Project Name: Oak Park Boulevard Address: 3108 Oak Park Blvd. Project Number: 4500-6X5028 Pleasant Hill, CA PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BETWEEN CONTRA COSTA COUNTY AND MOUNT DIABLO UNIFIED SCHOOL DISTRICT This Purchase and Sale Agreement and Joint Escrow.Instructions("Agreement") is entered into by and between the.County of Contra Costa,.a political subdivision of the State of California (hereinafter"County"), and the Mount Diablo Unified School District, a political subdivision of the State of California (hereinafter"District"). RECITALS County is the owner of an 8-acre site located on Oak Park Boulevard in the.City of Pleasant Hili, Contra Costa County, California,APN 149-230-005, commonly known as 1700 Oak Park Boulevard, that was the former Oak Park Elementary.School site("County Property'), more particularly described on Exhibit"A" attached hereWand incorporated herein. District is the owner of an adjacent 2-acre site that is a portion of APN 149-230-008, more particularly described on Exhibit"B" attached hereto and incorporated herein. The real property, and all improvements thereon,are collectively referred to herein as the"District Property." Each parcel is surplus property to the entity that owns it. County and District would like to dispose of these surplus properties through a joint sale of the County Property and the District Property to a third party. The County Property and the.District Property are.sometimes hereinafter referred to collectively as the"Public Agency Properties." In order to facilitate a joint sale of the Public Agency Properties to a third party, County and District would like County to acquire the District Property at the time County is prepared to consummate the sale of both of the Public Agency Properties to a third party. With this goal in mind,the parties intend.that the.County's.purchase of the District Property be contingent upon County being able to consummate the joint sale of both of the Public Agency Properties to a third party. AGREEMENT NOW THEREFORE,in consideration of the agreements herein contained and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,the parties hereby agree as follows: 1. Effective Date.This Agreement is subject to approval of the governing bodies of County and District. This Agreement shall be effective on the date approved by both parties ("Effective Date"). 2. Purchase and Sale. Subject to the terms and conditions in this Agreement, District agrees to sell and County agrees to purchase the District Property. 3. Purchase Price. The purchase price for the District Property shall be ten percent(10%)of the"Net Sales Proceeds"from the sale of the Public Agency Properties to a third party. The term "Net Sales Proceeds" means the purchase price paid by a third party for the purchase of the Public Agency Properties less all costs of sale (excluding County staff time) including, but not limited to, costs to provide security at the Public Agency Properties prior to conveyance to a third party, escrow closing costs, appraisal, advertising, marketing and other costs of sale(collectively, "Costs of Sale"). To the extent any C.\DOCUME-1\pzaid\LOCALS-1\TempAnotes36F7BZPurchase and Sale-final.doc 1 5131/05 of the Costs of Sale need to be paid prior to the"Close of Escrow,"as defined below, County shall advance such Costs of Sale and District shall not be required to advance any of the Costs of Sale. County shall be reimbursed for all Costs of Sale advanced by County out of the funds paid by a third party prior to distribution of the sales proceeds to District or County. 4. Third Party Sale Contingency. County's purchase of the District Property is contingent upon the simultaneous purchase of the Public Agency Properties by a third party at a price and upon terms satisfactory to County. If County, in County's sole discretion, does not believe it can achieve this goal, County shall have the option to terminate this Agreement for any reason immediately upon written notice to District. If County elects to terminate this Agreement, both parties shall be relieved of all obligations under this Agreement and County shall have no obligation to purchase the District Property, nor be subject to damages or penalties of any kind. 5. Further Conditions to County's Performance. In addition to the third party sale contingency set forth in paragraph 4 above, County's obligation to dose escrow is subject to the following conditions: 5.1. District's representations and warranties in this Agreement being correct as of the date of this Agreement and as of the"Close of Escrow,"as defined below. 5.2. District's performance of all obligations under this Agreement and the Joint Exercise of Powers Agreement entered into by the parties,to which this Agreement is an exhibit("JPA`). 5.3. The vesting of title to the District Property in County, or in any party identified by County, by grant deed in fee simple absolute, free and clear of all liens, encumbrances, assessments, leases (recorded and/or unrecorded), and taxes except the following "Approved Exceptions° as outlined in the Preliminary Report dated as of February 28, 2006, issued by First American Title, 1850 Mt. Diablo Blvd., Suite 300, Walnut Creek, CA, their Order Number NCS-212136-CC ("Title Company"): A. Easements or rights of way of record over said property, listed as exception(s) 6, 7, 8, 9, 10 and 12. B. Other approved exoeption(s) 3,4, 5 and 11. 5.4. Title Company's being prepared to issue a CLTA title.insurance policy in the full amount of the purchase price for the District Property, subject only to the Approved Exceptions("Title Policy"). If County determines that any of these conditions have not been met, County shall have the right to terminate this Agreement by delivering written notice to District and, if applicable,the escrow agent. . 6. Conditions to District's Performance. District's obligation to perform under this Agreement is subject to the following conditions: 6.1 County's representations and warranties in this Agreement being correct as of the date of this Agreement and as of the Close of Escrow. 6.2 County's performance of all obligations under this Agreement and the JPA. 7. Escrow. By this Agreement, County and District establish an escrow("Escrow")with Title Company, for the simultaneous sale of the District Property to County and the sale of the Public Agency Properties to a third party, under Title Company's Order Numbers NCS-212138-CC and NCS-212136-CC. District hereby authorizes County to prepare and deliver to District for review and approval, and file the approved escrow instructions with said Title Company, on behalf of District, consistent with this Agreement. This C.Downw is and se4ligp*F Admi o"000urwt \woik7umhase and sale-rmatdoc 2 5131105 includes authorization of the Title Company to withhold pro rata taxes, liens and assessments on the District Property. 7.1. Fees and Title Insurance. The parties anticipate that the third party purchaser of the Public Agency Properties will pay all escrow fees, recording fees, documentary transfer taxes, broker's commission, if any, and the premium charged for any title insurance desired by the third party purchaser. To the extent any of the closing costs are allocated to County, such amounts shall be deducted from the purchase price paid by the third party purchaser prior to distribution of the Net Sales Proceeds, in accordance with paragraph 3 above. 7.2. District's Deposit into Escrow. At least five (5) days prior to the Close of Escrow, District will deliver into Escrow a grant deed, in recordable form and properly executed on behalf of District .(°District Grant Deed"), in a form approved by County, conveying the District Property in fee simple absolute, subject only to the Approved Exceptions, to County or to the individual or entity identified by County as the third party purchaser of the Public Agency Properties. 7.3 County's Deposit into Escrow. On or before five (5) business days prior to the Close of Escrow, County will deliver into Escrow two (2) grant deeds in recordable form and properly executed on behalf of County("County Grant Deeds"), conveying the County Property and the District Property to the third party purchaser of the Public Agency Properties, subject to the exceptions set forth in Title Company's Preliminary Reports dated as of February 28, 2006, their Order Numbers NCS- 212136-CC and NCS-212138-CC. If the District is to convey the District Property to the County by the District Grant Deed, the County shall also deliver a duly executed certificate of acceptance of the District Grant Deed in recordable form to the Tale Company. 7.4 Close of Escrow. Escrow shall close upon the conveyance of the Public Agency Properties to the third party purchaser ("Close of Escrow"). County shall instruct the Title Company to close Escrow as follows: A. Record the District Grant Deed, marked for return to County care of Karen A. Laws, Principal Real Property Agent(which shall be deemed delivery to County); B. Record the County Grant Deeds, marked for return to the third party purchaser, which shall be deemed delivery to the third party purchaser, C. Issue the Title Policy or policies, if requested to do so by County and/or the third party purchaser; D. Prorate taxes, assessments, rents and other charges as of the Close of Escrow; E. Disburse to County the amount identified by County as the Costs of Sale; F. Disburse to District the Costs of Sale advanced by District, if any; G. Disburse to District ten percent(10%)of the Net Sales Proceeds; H. Disburse to County the remaining ninety percent(90%)of the Net Sales Proceeds; and I. Prepare and deliver to County and to District one signed copy of Titfe Company's closing statement showing all receipts and disbursements of the Escrow. Momnents and SaWnpff Admirdstratorlp6y DocumeftXwo&Vumhese and Sale-finel.doc 3 501105 If Title Company is unable to simultaneously perform all of the instructions contained in County's escrow instructions, including those set forth above, Title Company shall notify County, District and the third party purchaser and retain all funds and documents pending receipt of further instructions from County, District and the third party purchaser. 8. District's Representations and Warranties. District makes the following representations and warranties to the best of District's knowledge with the understanding that these representations and warranties are material and are being relied upon by County. District represents and warrants to County that as of the date of this Agreement and as of the Close of Escrow: 8.1. Marketable Title. To the best of District's knowledge, District is the owner of the District Property and has marketable and insurable fee simple title to the District Property clear of restrictions, leases, liens and other encumbrances, subject only to the Approved Exceptions. To the best of District's knowledge, no leases, licenses, or other agreements allowing any third party rights to use the District Property are or will be in force unless prior consent has been given by County in writing. Commencing with the full execution of this Agreement by both parties and until the Close of Escrow, District shall not permit any liens, encumbrances or easements to be placed on the District Property other than the Approved Exceptions, nor shall District enter into any agreement that would affect the District Property that would be binding on County after the Close of Escrow without the prior written consent of County. 8.2 Condition of District Propefir. District is not aware of having received any notice of any violation of any statute, ordinance, regulation or administrative or judicial order or holding, appearing in public records, with respect to the District Property. District has disclosed to County all information, records and'studies maintained by District in connection with the District Property conceming hazardous substances of which District is aware and District is not concealing any knowledge of the presence of contamination or hazardous substances on, from or under the District Property to the best of District's knowledge. Any information that District has delivered to County either directly or through District's agents is accurate and District has,to the best of District's knowledge, disclosed all material facts with respect to the District Property. 8.3 Other Matters Affectinc District Property. To the best of District's knowledge, there are not presently any actions, suits, or proceedings pending or threatened against or affecting the District Property or the interest of District in the District Property or its use that would affect District's ability to consummate the transaction contemplated by this Agreement. Further, District is not currently aware of any outstanding and unpaid arbitration awards or judgments affecting title to any portion of the District Property. To the best of District's knowledge there are not presently any pending or threatened condemnation, eminent domain or similar proceedings affecting the District Property. District shall promptly notify County of any of these matters arising prior to the Close of Escrow of which it is informed. 8.4 District's Authority. This Agreement and all other documents delivered by District prior to or at the Close of Escrow have been authorized, executed, and delivered by District; are binding obligations of the District; and, to the best of District's knowledge, are collectively sufficient to transfer all of District's rights to the Property. 9. County's Representations and Warranties. County makes the following representations and warranties to the best of County's knowledge with the understanding that these representations and warranties are material and are being relied upon by District. County represents and warrants to District that as of the date of this Agreement and as of the Close of Escrow: 9.1 Liens and Encumbrances. Commencing with the full execution of this Agreement by both parties and until the Close of Escrow, County shall not permit any liens, encumbrances or easements to C:1Docum MandSe%rgsWP AdrY*fstMo"Documertt WiOrkrPurchaseand Sale-fnddoc 4 5/31105 be placed on the District Property other than the Approved Exceptions, nor shall County enter into any agreement that would affect the District Property that would be binding on District after the Close of Escrow without the prior written consent of District,except as authorized under the JPA. 9.2 County's Authority. This Agreement and all documents delivered by County prior to or at the Close of Escrow have been authorized, executed and delivered by County; and are binding obligations of County; and, to the best of County's knowledge, are collectively sufficient to authorize County to perform its obligations hereunder. 10. Survival. All of the terms, provisions, representations, warranties and covenants set forth in paragraphs 8 and 9 of this Agreement shall survive the assignment, expiration or termination of this Agreement and shall not merge in the deed or other documents following the delivery and recordation of said deed or other documents. 11. Assignment and 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. 12. Notices. All notices (including requests, demands, approvals or other communications) under this Agreement shall be in writing. The place for delivery of all notices given under this Agreement shall be as follows: District: Mount Diablo Unified School District 1936 Carlotta Drive Concord, CA 94519-1397 Attn: Richard C. Nicoll, Ph.D,Assistant Superintendent County: Contra Costa County Public Works Department 255 Glacier Drive Martinez, CA 94553 Attn: Karen A. Laws, Principal Real Property Agent or to such other addresses as County and District may respectively designate by written notice to the other. 13. Entire Agreement. This Agreement, including the Recitals and the Exhibits hereto, together with the Joint Exercise of Powers Agreement entered into by the parties to which this Agreement is an exhibit ("JPA"), contains the entire understanding of the parties relating to the subject matter of this Agreement. Any representation or promise of the parties shall not be enforceable unless it is contained in this Agreement or the JPA or in a subsequent written modification of this Agreement or the JPA approved by the governing bodies of both parties. 14. 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. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared it. The parties to this Agreement and their counsel have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement.The Recitals are and shall be enforceable as a part of this Agreement 15. Further Assurances. Whenever requested to do so by the other party, each party shall execute, acknowledge and deliver all further conveyances, assignments, confirmations, satisfactions, releases, O.Ooc uments and SemngsWP Admirftgo"D=mwftWorWkff mw and sale-final doc 5 Faros powers of attorney, instruments of further assurance, approvals, consents and all further instruments and documents as may be necessary, expedient, or proper in order to complete all conveyances, transfers, sales, and assignments under this Agreement, and do all other ads and to execute, acknowledge, and deliver all documents as requested in order to carry out the intent and purpose of this Agreement. 16. Waiver. A waiver or breach of any covenant or provision in this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement, and no waiver shalt be valid unless in writing and executed by the waiving party. 17. Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable,the remainder of this Agreement shall not be affected. 16. Governing Law and Venue. This Agreement shall be governed and construed in accordance with California law. The venue of any litigation pertaining to this Agreement shall be Contra Costa County, California. 19. Time of Essence. Time is of the essence of each provision of this Agreement in which time is an element. 20. No Third Party Beneficiaries. This Agreement is intended solely for the benefit of the parties hereto, and no third party shall have any right or interest in any provision of this Agreement or as a result of any action or inaction of any party in connection therewith. CONTRA C COUNTY MNT DIABLO UNIFIED SCHOOL DISTRICT By By County Administrator ,,,,tl n�,� ATTEST: JUNE 12, 2007 APPROVED AS TO FORM: John Cullen,Cleric of the Board of Miller Brown Dannis Supervisors and County Administrator District Counsel By eputy By Marilyn J. CleveAnd RECOMMENDED FOR APPROVAL: Mauri iu, Date:����,dill }PA 1�� C)-6 Public orks Director (Date of District Board Approval) B aren A. taws Principal Re roperty/Agenf (ames MENDED FOR APPROVAL: ennedy, Deputy irector— velopmerd By Q a and Seffing _/4dm, 'StMk r nn rklPurdiese and Sale-tnal.doc 6 5fb110 APPROVED AS TO f=ORM: Silvano B. Marchesi, County Counsel By Deputy Date: (Date of County Board Approval) NO OBUGATION OTHER THAN THOSE SET FORTH HEREIN AND IN THE JPA WILL BE RECOGNIZED Exhibit A-Legal Description of County Property Exhibit B—Legal Description of District Property QVocumenis and Set ingsV B'AdminWriWWy Dowmems\worWumhase and Sale-final.doc 7 5131105 EXHIBIT"A" Real Property in the City of Pleasant Hill,County of Contra..Costa, State of California, being a portion of the Rancho Las Juntas,described as'follows: Commencing at the northeast corner of the certain parcel of land described in the Deed from Developers Corporation to El Dorado Associates,Inc.,dated April 21, 1947 and recorded July 28, 1947 in Volume 1102 of Official Records,at Page, 196, thence South 30°43' 30"West, 1268.59 feet;thence North 891 09' 05"West, 115.33 feet to the Point of Beginning;thence from said Point of Beginning North 89° 09' 05"West, 714.74 feet; thence South 01 50' 55"West, 641.88 feet to the north right of way line of Oak Park Boulevard;thence along said right of way line easterly along the are of a curve,to the right,with a radius of 4030 feet,through an are distance of 99.41 feet and tangent to said curve South 80° 16'30"East,222.43 feet;thence leaving said right of way line North 301 43' 30"East,796.13 feet to the Point of the Beginning. This real property description has been prepared by me or under my direction in conformance with the Profession rs Act. O 1 l -- f.N D S�! Signature: �� AWE Licensed an urveyor Contra Costa County Public Works Department _+ Exp.i2-31-OB No.59�9 Q Date: Z� D cis 2 � Q OF CPQ-��O APN: 149-230-005 EXHIBIT"B" Real Property in the City of Pleasant Hill,County of Contra Costa, State of California, being a portion of the Rancho Las Juntas,described as follows: Commencing at the northeast comer of the certain parcel of land described in the Deed from Developers Corporation to El Dorado Associates,Inc.,dated April 21, 1947 and recorded July 28, 1947,in Volume 1102 of Official Records, at Page 196, thence South 30°43' 30"West, 1268.59 feet to the Point of Beginning;thence from said Point of. Beginning North 89°09' 05"West, 115.33 feet;thence South 30°43' 30"West, 796.13 feet;thence South 80° 16' 30"East, 107.11 feet;thence North 30143' 30"East, 815.19 .feet to the Point of Beginning. This real property description has been prepared by me or under my direction in conformance with the Professional Land S Zrs Act. Signature: - =5���ZW Licensed Land Surveyor v Op Contra Costa County Public Works Department .! Exp.12-31-01 �` No.5999 e Date: I Z 1 if 114 6 ' Portion of APN: 149-230-008 Parce!Number:APN 149-230-OD5 and Optionee: portion of APN 149-230-008 Project Name: Oak Park Boulevard Optionee Address: Project Number:4500-6X5028 OPTION AGREEMENT BETWEEN CONTRA COSTA COUNTY AND THE OPTIONEE NAMED HEREIN (Not to be Recorded) 1. Recitals. a. CONTRA COSTA. COUNTY, a political subdivision of the State of California ("County"), is the owner of certain real property described in Exhibit "A" attached hereto and made a part hereof, and further identified as A.P.N. 149-230-005. County has entered into a contract to acquire from Mount Diablo Unified School District, a political subdivision of the State of. Califomia ("District'), certain real property described in.Exhibit"B'attached hereto and made.a part hereof, and further identified as a portion of A.P.N. 149-230-008. The real property described on Exhibit "A" and Exhibit"B" and.all improvements thereon are..hereinafter collectively referred to as the"Property." b. County proposes to sell the Property. .. I � �ca►k�111�-► Co+. �-� � (cul (.ju �a�°�-� C. aA ! (Optionee") desires to acquire. the exclusive right to purchase the Property at an agreed price and under the specific terms and conditions below. 2. Effective Date. The effective date of this Option Agreement shall be the date that this Option Agreement is approved by the County Board of Supervisors ("Effective Date"). 3. Grant of Option. County grants to Optionee the exclusive option to purchase the Property on the terms and conditions in this Option Agreement. 4. Initial Term of Option and Consideration. a. Initial Term of Option. The initial term of this option ("Initial Option Term") shall . commence on the Effective Date and shall.expire on August 13, 2007. b. Consideration .for Initial Term of Option. As consideration for the Initial Option Term, Optionee agrees to pay County the nonrefundable sum of Two Hundred Thousand Dollars($200,000.00)("Initial Option Term Consideration')upon the terms and conditions outlined herein. The Initial Option Term Consideration shall be paid by certified check, cashier's check or money order payable to Contra Costa County . as follows: a Fifty Thousand Dollar ($50,000.00) good faith deposit shall be paid on or before May 21, 2007; and the remaining One Hundred Fifty Thousand Dollars ($150,000.00)shall be paid no later than seven (7)days following the,Effective Date of this Option Agreement. The Initial Option Term Consideration shall be paid at the Public Works Department, Real Property Division, 255 Glacier Drive, Martinez, CA 94553, Attn.: Karen A. Laws, Principal Real Property Agent. Notwithstanding the 1 i foregoing, if the County Board- of Supervisors does not approve this Option Agreement, County will refund the Fifty Thousand Dollar ($50,000.00) good faith deposit previously paid by Optionee. At such time as the County Board of i Supervisors approves this Option Agreement, all consideration paid for this option shall be nonrefundable. j 5. Extended Option Terms—General Conditions As long as this Option Agreement remains in effect, Optionee may extend the term of the option,but only at the time and in the manner provided below.. j i a. Notice and Consideration. To extend the term of the option, Optionee must deliver written notice to County, together with payment of the additional consideration specified below, no sooner than thirty (30)days, and no later than fifteen (15)days, prior to the expiration of the then current option term. All consideration for the extended option terms shall be paid by certified check, cashier's check or money order payable to Contra Costa County, and delivered at the Public Works Department, Real Property Division, 255 Glacier Drive, Martinez, CA 94553, Attn.: Karen A. Laws, Principal Real Property Agent. For example, to extend the term beyond the Initial Option Term, Optionee must deliver written notice, together with the consideration for the First Extended Option Term specified below, to County no sooner than thirty (30)days, and no later than fifteen(.15)days, prior to August 13,2007. i b. No Default. Optionee may only extend the term of the option if Optionee is not in default under this Option Agreement. i C. Prior Extension of Option Term. Optionee may only extend the term of the option i for each of the extended option terms set forth in Sections 6 through 9 below if Optionee has properly extended the term for the immediately preceding period. 6. First Extended Option Term and Consideration. I a. First Extended Option Term. . If Optionee enters into the First Extended Option Term,the First Extended Option Term shall expire on December 11, 2007. b. Consideration for First Extended Option Term. As consideration for the First Extended Option Term, Optionee shall deliver to County the nonrefundable sum of Two Hundred.Thousand Dollars ($200,000.00) no sooner than thirty (30) days, and i no tater than fifteen(15)days, prior to August 13,2007. 7. Second Extended Option Term and Consideration. i a. Second Extended Option Term. If Optionee enters into the Second Extended Option Term,the Second Extended Option Term shall expire on June 9, 2008. b. Consideration for Second Extended Option Term. As consideration for the Second Extended Option Term, Optionee shall deliver to County the nonrefundable sum of Two Hundred Thousand Dollars ($200,000.00) no sooner than thirty (30) days, and no later than fifteen(15)days, prior to December 11,2007. 2 8. Third Extended Option Term and Consideration. a. Third Extended Option Term. If Optionee enters into the Third Extended Option Term,the Third Extended Option Term shall expire on December 8, 2008. b. Consideration for Third Extended Option Term. As consideration for the Third Extended Option Term, Optionee shall deliver to County the nonrefundable sum.of Two Hundred Thousand Dollars ($200,000.00) no sooner than thirty (30) days, and no later than fifteen(15)days, prior to June 9, 2008.. 9. Fourth Extended Option Term and Consideration. a. Fourth Extended Option Term. If Optionee enters into the Fourth Extended Option Term,the Fourth Extended Option Term shall expire on June 8,2009. b. . Consideration for Fourth Extended Option Term.As consideration for the Fourth Extended Option Term, Optionee shall deliver to County the nonrefundable sum of Two Hundred Thousand Dollars ($200,000.00) no sooner than thirty (30)days, and no later than fifteen (15)days,prior to December 8,2008. 10. Retention of Consideration for Initial Option Term and Extended Terms. The Initial Option Term Consideration and all consideration paid to County for the Extended Option Terms shall belong to County and be retained by County, whether or not Optionee ultimately exercises its right to purchase the Property. County shall have no obligation to account for the Initial Option Term Consideration, or any of the consideration paid for the- Extended Option Terms,to Optionee. 11. Sale Terms and Purchase Price. a. Escrow. If Optionee exercises its option to purchase the Property, the sale shall be consummated through an escrow at a title company to be selected by County.('Title Company"). : Escrow shall close no later than thirty (30) days following County's receipt of the "Exercise Notice" (as defined below) unless County, in its sole discretion, agrees to extend such 30-day period. Optionee hereby authorizes- County to prepare and file escrow instructions with said Title Company on behalf of Optionee in accordance with this Option Agreement. Notwithstanding the foregoing, Optionee shall be responsible for providing instructions to Title Company:regarding title insurance, if Optionee desires title insurance. Escrow shall be deemed to be closed and the Property shall be deemed to be conveyed on the date the deeds to Optionee are recorded ("Closing Date"). All escrow fees, recording fees, documentary transfer taxes or other real estate transaction taxes or fees, by whatever name known, including broker's commission, if any, and personal property sales taxes where applicable, will be paid solely by Optionee. If Optionee desires title insurance, Optionee will be solely responsible to pay the premium charged therefor. b. Purchase Price. The purchase price ("Purchase Price")for the Property during the Initial Option Term and all Extended Option Terms is the sum of _1Vg1{ r V ti Dollars ($ , b OU,005). The Initial Option Tirm Consideration and all consideration for the Extended Option Terms paid by Optionee shall be credited to the Purchase Price.of the Property. Upon exercise of the option, the Optionee shall deposit the Purchase Price (less the Initial Option Term Consideration and all consideration for the Extended Option Terms previously paid to County) into escrow with the Title Company, and deliver a copy of 3 i the Title Company receipt evidencing the deposit of the Purchase Price to the Public Works Department, Real Property Division, 255 Glacier Drive, Martinez, CA 94553, attn. Karen A. Laws, Principal Real Property Agent. Title Company shall deposit the Purchase Price into an interest-bearing account.All accrued interest shall belong to and be disbursed to County, whether or not Optionee ultimately purchases the Property. C. Title; Grant Deed. The right, title and interest in the Property to be conveyed pursuant to this Option Agreement shall not exceed that vested in County and District. If.Optionee exercises its option,the Property shall be conveyed to Optioriee subject to all title exceptions, restrictions, easements, liens and reservations, whether or not of record. The sale under this Option Agreement is subjecf to the approval of the Contra Costa County Board of Supervisors. Optionee will have the right to enter the Property for specific purposes as described in Section 16 prior to the Closing Date, but Optionee may not take possession of the Property until the deeds from the County-and District have been recorded. If Optionee exercises its option, upon approval by the Board of Supervisors, title to the Property shall be conveyed to Optionee by grant deeds executed by County and District. It 'is understood that Optionee acquires no right, title, interest or equity in or to the Property until grant deeds conveying the entirety of the Property to Optionee are recorded. 12. Exercise of.Option. From and after the Effective Date, Optionee may exercise this option by delivering to County before the expiration of the Initial Option Term or the applicable Extended Option Term, written notice of the exercise ("Exercise Notice") and payment of the Purchase Price to the Title Company on behalf of County. i 13. Termination of Option Agreement. a. Expiration of Option Term. This Option Agreement will automatically terminate upon the expiration of the Initial Option Term or, if Optionee enters into an Extended Option Term, the expiration of the then current Extended Option Term, if Optionee does not exercise the option or timely extend the then current Extended Option Term . strictly in accordance with this Option Agreement I b. Optionee's Breach. Optionee's failure to perform any of its obligations under this Option Agreement shall constitute a breach of the Option Agreement. Upon the occurrence of a breach by Optionee, County may terminate this Option Agreement without further cost or obligation, by giving three (3) days -written notice of . termination to Optionee. I C. Retention of Option Consideration. County will retain the Initial Option Term Consideration and all consideration paid for the Extended Option Terms in the event of termination. 14. Specific Performance. . I Optionee's sole remedy for .breach of 'the Option Agreement by County is specific performance of the Option Agreement. Optionee waives the right to seek damages of any kind in the event of a breach of the Option Agreement by County. 4 15. Condition of the Property. Neither County nor.District, nor any of its agents or employees, have.made any warranty, guarantee or representation concerning any matter or thing affecting or relating to the Property nor does County or District assume any responsibility for the conformance to codes or permit regulations of the city or county within which the Property is located. If Optionee exercises this option; Optionee will accept the Property in an "as is" condition. County and District have not made and do not make any representation as to the physical condition of the Property. 16. Right of Entry. During the Initial Option Term and any applicable Extended Option Term and prior to the Closing Date or earlier termination of this Option Agreement, Optionee, its agents, contractors and employees, shall have the right to enter the Property at all reasonable times for the purpose of performing reasonable tests, engineering studies, surveys, soil and environmental tests and other tests, surveys, studies, and investigations of the Property as Optionee determines necessary or desirable. Optionee will be solely responsible for all. costs incurred In connection with. these activities or Optionee's. investigation of the Property. Optionee shall obtain a public liability insurance policy for at least One Million Dollars ($1,000,000.00). A copy of the declarations page evidencing the insurance that names County and District as named insureds shall be delivered to County on or before the Effective Date of this Option Agreement. The declarations page shall provide that the policy shall not be canceled without at least fifteen (15)days ' prior notice to County. The policy or a renewal or replacement of this policy shall remain in effect during the entire term of this option. Optionee shall keep. the Property free of all mechanic's or similar liens in connection with all activities by or on behalf of Optionee in connection with the Property. County shall also be entitled to record and post notices of.nonresponsibility of any activities of Optionee in connection with the Property. 17. Notices. All notices (including requests, demands, approvals or other communications) under this Option Agreement shall be in writing. a. Notice shall be sufficiently given for all purposes as follows: (1) When delivered by first class mail, postage prepaid, notice shall be deemed delivered three(3) business days after deposit in the United States Mail. (2) When mailed by certified mail with return receipt requested, notice is effective on receipt if delivery is confirmed by a return receipt. (3) When delivered by overnight delivery by a nationally recognized overnight courier, notice shall be deemed delivered one (1) business day after deposit with that courier. (4) When personally delivered to the recipient, notice shall be deemed delivered on the date personally delivered. b. The place for delivery of a)I notices given under this Option Agreement shall be as follows: 5 i County: Real Property Division Public Works Department 255 Glacier Drive j Martinez, CA 94553 Attn.: Karen A. Laws,Principal Real Property Agent j Optionee: S �/�y r � Slh 1-�•t. l�� Q I S�itn vv►-�o F \, C (dress) or such other addresses as Optionee and County may respectively designate by written notice to the other. j I 18. Assignment, Successors and Third-Party Rights. This option and all rights under this Option Agreement shall be freely assignable. This Option Agreement shall be binding on and inure to the benefit of the parties, and their j respective heirs, personal representatives, successors and assigns. Nothing in this Option Agreement, express or implied, is intended to confer on any person, other than the parties and District, and their respective successors and assigns,any rights or remedies under or by reason of this Option Agreement j i .19. Construction. _ I I The section headings and captions of this Option Agreement are, and the arrangement of this instrumentis, for the sole convenience of the parties to this Option 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 Option Agreement.This Option 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. The parties to this Option Agreement and their counsel have read and reviewed this Option Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Option Agreement. 20. Further Assurances. I Whenever requested to do so by the other party, each party shall execute, acknowledge and deliver all further conveyances, assignments, confirmations, satisfactions, releases, powers of attorney, instruments of further assurance,approvals, consents and all further instruments and documents as may be necessary, expedient, or proper in order to complete all conveyances, transfers, sales, and assignments under this Option Agreement, and do all other acts and to execute, acknowledge, and deliver all documents as requested in order to carry out the intent and purpose of this Option Agreement 21. Governing Law. This Option Agreement shall be governed and construed in accordance with California Law. The venue for any legal action pertaining to this Option Agreement shall be Contra Costa County, California. j 22. Severability. Should any term, portion or provision of this Option Agreement be finally decided to be in conflict with any law of the United States or of the State of California, or otherwise to be i 6 unenforceable or ineffectual, the validity of the remaining parts, terms, portions or provisions of this Option Agreement shall be deemed severable and shall not be affected thereby, provided that such remaining parts, terms, portions or provisions can be construed in substance to constitute the Option Agreement that the parties intended to enter into in the first instance. 23. Indemnification. As partial consideration for this Option Agreement, Optionee shall defend, indemnify, protect, save and hold harmless County and District, their officers, agents, and employees, from any and all claims, costs, liability, expense, damage (including consequential damages), action or proceeding, including without limitation, attorneys fees and expenses, to the fullest extent not prohibited by applicable law, arising out of or connected with this Option Agreement, the parties actions or any other activity taken pursuant to this Option Agreement (including any action taken by Optionee, Its contractors, agents.or employees pursuant to the right of entry granted in Section 16 above), the conveyance of the Property to Optionee, the present or future condition of the Property or any use of the Property. If requested by either County or District, Optionee will defend any such suits at the sole cost and expense of Optionee, with counsel approved by County and, if applicable, District Optionee's obligations under this section shall exist regardless of concurrent negligence or willful misconduct on the part of County or District or any other person; provided, however, that Optionee shall not be required to indemnify County for liability that a court determines is attributable to the sole negligence or sole willful misconduct of County, or indemnify District for liability that a court determines is attributable to the sole negligence or sole willful misconduct of District. This indemnification clause shall survive the termination or expiration of this Option Agreement. 23. Survival. All of the terms, provisions, representations, warranties and covenants of the parties under this Option Agreement shall survive the close of escrow of the Property, shall be fully enforceable after the Closing Date in accordance with their terms and shall not merge in the grant deed or other documents following the delivery and recordation of said grant deed or other documents. 24. Negation of Agency or Partnership. No provision of this Option Agreement shall be construed as making either party an agent or partner of the other party. 25. Time of Essence. Time is of the essence for the Option Agreement. if the option is not exercised in the manner provided in Section 12 before the expiration of the Initial Option Term or the applicable Extended Option Term, Optionee shall have no right to purchase the Property for the Purchase Price,or to revive the option by any subsequent payment or further action. 26. Waivers. No waiver of any breach of any covenant or provision in this Option Agreement shall be deemed a waiver of any other covenant or provision in this Option Agreement, and no waiver shall be valid unless in writing and executed by the waiving party. 27. Amendment. j This Option Agreement may not be amended or altered except by a written instrument executed by County and Optionee. i I 28. Entire Agreement. This Option Agreement contains the entire agreement between the parties respecting the r matters set forth, and expressly supersedes all previous or contemporaneous agreements, understandings,representations or statements between the parties respecting this matter, 29. Computation of Time. If the last day for the performance of any act provided or-required by this Option Agreement to be performed within a specified period of.time falls on a Saturday,Sunday or other day on which the County Public Works Department is closed,then such period Is here xtended to and including the next day on which the County Public Works Depa t is open for business. I i CONTRA COSTA CO Y OPTIONE By Maurice Shui; Public Works Director 1 j i RECOMMENDED FOR APPROVAL: By. James Kennedy, (� Deputy irector- ev ment f Its ECO M DED R APPROVAL: aura hiu, j P bli orks Direct ' 1 By Karen A. Laws, r J Principal Real Property Agent 1 I ROVED AS TO FORM: Sllvano B. Marchesi,County Counsel By: Deputy �� r NO OTHER OBLIGATION OTHER THAN THOSE SET FORTH HEREIN WILL BE RECOGNIZED j Exhibit A-Legal Description (APN 149-230-005) Exhibit B —Legal Description (Portion of APN 149-230-008) R Real Property Matters\Grayson\Option Agreement—Auction 04-26-07 8 I EXHIBIT"A" Real Property in the City of Pleasant Hill,County of Contra Costa, State of California, being a portion of the Rancho Las Juntas,described as follows:. Commencing at the northeast corner of the certain parcel of land described in the Deed from Developers Corporation to El Dorado.Associates,Inc.,dated April 21, 1947 and recorded July 28, 1947 in Volume 1102 of Official Records,at Page, 196,thence South 30°43' 30"'West, 1268.59 feet;thence North 89°09' 05"West, 115.33 feet to the Point of Beginning;thence from said Point of Beginning North 890 09' 05"West,714.74 feet, thence South 0° 50' 55"West,641.88 feet to the north right of way line of Oak Park Boulevard;thence.along said right of way line easterly along the arc of a curve,to the right,with a radius of 4030 feet,through an arc distance of 99.41 feet and tangent to said curve South 80° 16'30"East,222.43 feet;thence leaving said right of way line North 300 . 43' 30*"East,796.13 feet to the Point of the Beginning. This real property .description has been prepared by me or under my direction in canformance with the Professional rs Act Signature: S(/ IAcensed urveyor Contra Costa County Public Works Department2 �` ko.5999 Q Date: Z�F,lO cP ��rFOF cap-�F° APN: 145-230-005 I EXH3BIT"B" Real Property in the City of Pleasant Hill,County of Contra Costa,State of California,, c being a portion of the Rancho Las Juntas,described'as follows: Commencing at the northeast corner of the certain parcel of land described in the Deed from Developers Corporation to El Dorado Associates,Inc.,dazed April 21, 1947 and recorded My 28, 1947,in Volume 1102 of Official Records,at Page'196,thence South 300 43'30"West,1268.59 feet to the Point of Beginning,thence from said Point of Beginning North,890 09' 05"West, 115.33 feet;thence South 30°43' 30"West,796.13 feet;thence South 800 16'30"East,107.11 feet;thenoe.North 300 43' 30"East,815.19 feet to the Point of Beginning. i i I This real property description has been prepared by me or under my,direction in conformance with the Professional Land ors Act. I' . _ . W �{{ Signature: � ��. "`�' S ��c ,c. I L ceased Land Surveyor Contra Costa County Public Works Department p,12-31-4 . Ho.50 - I Date: z ,Z I f U —' F F CA i a . I • I i i i I i i i i Portion ofAPN: 149-230-008 i I Exhihil "(7, For Illustration Purposes Only Summary of Option Agreement Notice and Payment Terms Event Date Option Payment Due Initial Option Term June 12,2007-August 13,2007 Auction/Good Faith Deposit Due May 21,2007 $50,000 Board of Supervisors Review of Sale Terms June 12,2007 Remainder of Initial Option Term Consideration Due June 19,2007 $150,000 First Extended Option Term(August 14,2007-December 11,2007 Written Notice to.County Between 7/14/07 and 7/29/07 n/a Consideration for First Extended Option Term Due Between 7/14/07 and 7/29/07 $200,000 Second Extended Option Term December 12,2007-June 9,2008 Written Notice to County Between 11/11/07 and 11/26/07 n/a Consideration for Second Extended Option Term Due Between 11/11/07 and 11/26/07 $200,000 Third Extended Option Term June 10,2008-December 8,2008 Written Notice to County Between 5/10/08 and 5/25/08 n/a Consideration for Third Extended Option Term Due Between 5/10/08 and 5/25/08 $200.000 Fourth Extended Option Term December 9,2008-June 8,2009 Written Notice to County Between 11/8/08 and 11/23/08 n/a Consideration for Fourth Extended Option Term Due Between 11/8/08 and 11/23/08 $200,000 Scheduled date,subject to change. if this date changes all other dates in this outline will change. Note: This chart is provided for illustration purposes only. In the event of a conflict between this chart and the Option Agreement,the Option Agreement is controlling. The effective date of the Option Agreement will be the date the Option Agreement is approved by the County Board of Supervisors.