HomeMy WebLinkAboutAgr 2021-08-03 (Ben Argov Bryn Argov)PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of 7 , 2021 (the "Effective Date"), by and between Ben Argov and Bryn
Argov, husban and wife ("Seller"), and the Town of Tiburon, a municipal corporation
("Purchaser"). Seller and Purchaser may be referred to collectively below as "Parties".
RECITALS
A. Seller is the owner of the land and improvements thereon, located at 2 Palmer
Court, Tiburon California 94920, APN 055-201-34, as more specifically described on Exhibit A
(the "Property").
B. Purchaser desires to purchase from Seller for the benefit of Pacific Gas & Electric
Company, a California corporation ("PG&E"), and Seller desires to convey to PG&E a non-
exclusive permanent easement ("Easement") on, over and across the approximately 89 square foot
portion of the Property adjacent to Palmer Court, which area is more specifically described on
Exhibit B ("Easement Area"), for the purpose of undergrounding existing overhead utilities as
part of the Hawthorne Utility Undergrounding District Project ("Project").
C. On March 12, 2021, Purchaser sent Seller an offer to purchase the Easement
pursuant to Government Code section 7627.2(a).
NOW, THEREFORE, in consideration of the foregoing recitals and the representations,
warranties, agreements, covenants and conditions herein contained, and other good and valuable
consideration, Seller and Purchaser hereby agree as follows:
AGREEMENT
1. Sale and Purchase of Easement Area. Seller agrees to sell to Purchaser and convey
the Easement to PG&E, and Purchaser agrees to purchase the Easement from Seller on the terms
and conditions set forth herein.
2. Purchase Price. The purchase price (the "Purchase Price") for the Easement shall
be Five Thousand Dollars ($5,000), payable by Purchaser to Seller within ten (10) days of
Purchaser's receipt of the documents listed in Paragraph 3 below.
3. Conveyance of Easement. Within five (5) days of execution of this Agreement,
Seller shall execute, acknowledge where appropriate, and deliver to Purchaser at the address
provided in Paragraph 11 below each of the following instruments and documents:
(a) The Non -Foreign Transferor Declaration in the form of Exhibit C;
(b) The Easement Deed in the form of Exhibit D ("Easement Deed"); and
(c) Such other documents or instruments as may reasonably be required of
Seller to effect the transactions contemplated in this Agreement.
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Purchaser shall promptly upon receipt of such documents execute, acknowledge
and record the Grant of Easement.
4. Use of the Easement Area and Facilities.
(a) PG&E shall have the right, pursuant to the Easement Deed, from time to
time to excavate for, construct, reconstruct, install, replace (of initial or any other size), remove,
maintain, inspect and use facilities of the type hereinafter specified, together with a right of way
therefor, within the Easement Area as hereinafter set forth, and also ingress thereto and egress
therefrom, over and across the lands of Seller. Purchaser shall provide Seller at least ten (10)
business days' written notice prior to commencement of construction. Additionally, Purchaser
will require Purchaser's contractor (the "Contractor") to maintain access to the existing driveway
on Seller's Property. If access to the driveway will be restricted for an extended period of time,
Purchaser will notify, or will require Contractor to notify, Seller in writing at least five (5) business
days and again forty-eight (48) hours in advance of the commencement of work that will result in
such restricted access. Purchaser shall require Contractor to avoid damage to existing facilities
and landscaping on Seller's Property. Any damage to such facilities or landscaping will be
reasonably restored, at no cost to Seller.
(b) Pursuant to the Easement Deed, the facilities and Easement Area shall
include the following: Such underground conduits, pipes, manholes, service boxes, wires, cables,
and electrical conductors; underground switches, fuses, terminals, and transformers with
associated concrete pads; and fixtures and appurtenances necessary to any and all thereof, as
PG&E deems necessary for the distribution of electric energy and communication purposes located
within the Easement Area (the "Facilities").
(c) Seller shall grant to PG&E, pursuant to the Easement Deed, the right, from
time to time, to trim or to cut down, without Purchaser paying compensation, any and all trees and
brush now or hereafter within said Easement Area, and shall grant the further right, from time to
time, to trim and cut down trees and brush along each side of the Easement Area which now or
hereafter in the opinion of PG&E may interfere with or be a hazard to the Facilities installed
hereunder, or as PG&E deems necessary to comply with applicable state or federal regulations.
(d) Seller shall grant to PG&E, pursuant to the Easement Deed, the right to use
such portion of Seller's lands contiguous to the Easement Area as may be reasonably necessary in
connection with the excavation, construction, reconstruction, replacement, removal, maintenance
and inspection of the Facilities.
(e) Seller covenants and agrees, pursuant to the Easement Deed, not to place or
construct, nor allow a third party to place or construct, any building or other structure, or store
flammable substances, or drill or operate any well, or construct any reservoir or other obstruction
within the Easement Area, or diminish or substantially add to the ground level within said
Easement Area, or construct any fences that will interfere with the maintenance and operation of
the Facilities.
(f) Seller shall further grant to PG&E, pursuant to the Easement Deed, the right
to apportion to another public utility (as defined in Section 216 of the California Public Utilities
SF #4823-8338-6612 vl 2
Code) the right to construct, reconstruct, replace, remove, maintain, inspect, and use the
communications facilities within Easement Area including ingress thereto and egress therefrom.
(g) If Seller finds that a change in the location of the Easement is necessary,
Seller shall first grant PG&E a suitable new easement acceptable to the PG&E and Purchaser, and
Seller shall pay the full costs of relocating the Easement and the Facilities located within the
Easement Area.
5. Seller's Waiver of Property Rights and Interests.
(a) Upon receipt by Seller of the Purchase Price, Seller for itself and for its
agents, successors and assigns fully releases, acquits and discharges Purchaser and its officers,
officials, council members, employees, attorneys, accountants, insurers, and agents, and all
entities, boards, commissions, and bodies related to any of them from all claims that Seller, its
agents, successors and assigns has or may have arising out of or related to Purchaser's acquisition
of the Easement Area including, without limitation, all of Seller's property rights and interests in
the Easement Area, including but not limited to (i) any improvements, including improvements
pertaining to the realty, furniture, fixture, and equipment, (ii) business goodwill and lost income
(past or future) relating to the Property, (iii) relocation benefits, (iv) severance damages,
(v) economic or consequential damages, (vi) professional consultant fees and attorney's fees and
costs, and (vii) all other costs, and any and all compensable interests, and/or damages, and/or
claims, of any kind and nature, claimed or suffered, by Seller, its agents, successors and assigns
by reason of Purchaser's acquisition of the Easement Area.
In connection with this Paragraph 5, Seller expressly waives all rights
under California Civil Code Section 1542, which provides that:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
(Seller's Initials)
(b) Seller acknowledges that Purchaser is relying on Seller's representation and
warranty that Purchaser has not executed any leases, tenancies, subleases, or occupancy
agreements affecting the Easement Area ("Seller's Occupancy Representation"). In the event
that Seller's Occupancy Representation is untrue, then without limiting Purchaser's recourse for
Seller's breach of Seller's Occupancy Representation, if any tenants or occupants shall be entitled
to relocation benefits, Seller shall have the sole and exclusive responsibility for providing all such
relocation benefits and paying all relocation costs required to comply with all applicable federal
and state laws, rules, and regulations and satisfying all claims of such parties. Seller hereby agrees
to indemnify, defend, protect and hold the Town of Tiburon and its officers, officials, council
members, employees, attorneys, accountants, insurers, and agents, and all entities, boards,
commissions, and bodies related to any of them, harmless from and against any claims arising out
of its breach of the Seller's Occupancy Representation.
SF #4823-8338-6612 v1 3
6. Warranties, Representations, and Covenants of Seller. Except as expressly set forth
and disclosed in the Property Documents, Seller hereby warrants, represents, and/or covenants to
Purchaser that:
(a) Pending Claims. To the best of Seller's knowledge, there are no actions,
suits, claims, legal proceedings, or any other proceedings affecting the Easement Area or any
portion thereof, at law, or in equity before any court or governmental agency.
(b) Encroachments. To the best of Seller's knowledge, there are no
encroachments onto the Easement Area by improvements on the Property, nor do any
improvements located on the Easement Area encroach on adjacent property.
(c) Seller's Title. Seller shall not intentionally do anything which would impair
Seller's title to the Easement Area without Purchaser's prior written consent, which consent may
be withheld in Purchaser's sole and absolute discretion.
(d) Authorily. Seller is the owner of and has the full right, power, and authority
to sell to Purchaser and convey and grant to PG&E the Easement Area as provided herein and to
carry out Seller's obligations hereunder.
(e) Condition of Easement Area. To the best of Seller's knowledge, there are
no substances, materials or conditions on the Easement Area that qualify as a Hazardous Material
(as defined below) or otherwise violate any Environmental Law (as defined below). For the
purposes of this Agreement, the following items have the following meanings:
(i) "Environmental Law" means any law, statute, ordinance or
regulation pertaining to health, industrial hygiene or the environment including, without limitation,
CERCLA (Comprehensive Environmental Response, Compensation and Liability Act of 1980)
and RCRA (Resources Conservation and Recovery Act of 1976).
(ii) "Hazardous Material" means any substance, material or waste
which is or becomes designated, classified or regulated as being "toxic" or "hazardous" or a
"pollutant" or which is or becomes similarly designated, classified or regulated, under any
Environmental Law, including asbestos, petroleum and petroleum products.
To the extent that Purchaser discovers Hazardous Materials on or under the Easement Area
subsequent to conveyance of the Easement pursuant to Paragraph 3 above ("Conveyance"), the
Parties understand and agree that Purchaser shall have no responsibility for environmental
remediation.
Seller's covenant set forth in this Paragraph 6 shall survive the Conveyance.
7. Warranties, Representations, and Covenants of Purchaser. Purchaser hereby
represents, warrants and covenants to Seller that Purchaser has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions contemplated hereby
pursuant to the terms and conditions hereof. Purchaser's covenant set forth in this Paragraph 7
shall survive the Conveyance.
SF #4823-8338-6612 v] 4
8. Expenses. Each Party agrees to pay its own expenses (including the fees and
expenses of its own attorneys, accountants and other advisers) in connection with negotiating this
Agreement and any related agreements, obtaining any required approvals and otherwise preparing
for the Conveyance. The Parties agree to cooperate with one another to prepare and file, or cause
to be prepared and filed, with the relevant governmental authorities all transfer tax returns,
affidavits and other similar instruments, if any, required in connection with the payment of the
foregoing expenses. The provisions of this Paragraph 8 shall survive the Conveyance.
9. Seller's Indemnification. Seller hereby agrees to indemnify, hold harmless and
defend Purchaser from and against any and all demands, losses, damages, claims, costs and
expenses and any other liability whatsoever, including, without limitation, reasonable accountants'
and attorneys' fees, charges and costs (i) incurred by Purchaser by reason of Seller's breach of any
covenants, representations or warranties of Seller contained in this Agreement or (ii) relating to or
arising from Seller's ownership, management or use of the Easement Area prior to the
Conveyance. Seller's obligations set forth in this Paragraph 9 shall survive the Conveyance.
10. Purchaser's Indemnification. Purchaser hereby agrees to indemnify, hold harmless
and defend Seller from and against all losses, damages, claims, costs and expenses and any other
liability whatsoever, including, without limitation, reasonable accountants' and attorneys' fees,
charges and costs incurred by Seller by reason of Purchaser's breach of any covenants,
representations and warranties of Purchaser contained in this Agreement; provided, however, this
covenant shall not apply in those instances where such losses, damages, claims, costs and expenses
and any other liabilities are caused by the negligence of Seller. Purchaser's obligations set forth
in this Paragraph 10 shall survive the Conveyance.
11. Notices. All notices or other communications required or permitted hereunder shall
be in writing, and shall be personally delivered, sent by fax or email, reputable overnight courier,
or sent by registered or certified mail, postage prepaid, return receipt requested, and shall be
deemed received upon the earlier of. (i) if personally delivered, the date of delivery to the address
of the person to receive such notice; (ii) if mailed, three (3) business days after the date of posting
by the United States post office; or (iii) if delivered by Federal Express or other overnight courier
for next business day delivery, the next business day; or (iv) if sent by facsimile or email, with the
original sent on the same day by overnight courier, the date on which the facsimile or email is
received, provided it is before 5:00 P.M. Pacific Time. Notice of change of address shall be given
by written notice in the manner described in this Paragraph 11. Rejection or other refusal to
accept or the inability to deliver because of a change in address of which no notice was given shall
be deemed to constitute receipt of the notice, demand, request or communication sent. Unless
changed in accordance herewith, the addresses for notices given pursuant to this Agreement shall
be as follows:
If to Seller: Ben Argov and Bryn Argov
2 Palmer Court
Tiburon, CA 94920
Telephone:
Facsimil : (� `
Email: % t� �e" pk
SF #4823-8338-6612 v1 5
with a copy to:
Telephone: 1�
Facsimile: (_) -
Email: KAI..tN G
If to Purchaser: Town of Tiburon
1505 Tiburon Blvd.
Tiburon, CA 94920
Attention: Town Manager
Telephone: (415) 435-7373
Facsimile: () -
Email: gchanis@townoftiburon.org
with a copy to: Burke, Williams & Sorensen, LLP
181 Third Street, Suite 200
San Rafael, CA 94901
Attention: Benjamin Stock, Esq.
Telephone: (415) 755-2600
Facsimile: (415) 482-7542
Email: bstock@bwslaw.com
12. Miscellaneous.
(a) Entire Agreement. This Agreement contains all of the covenants,
conditions and agreements between the Parties and shall supersede all prior correspondence,
agreements and understandings, both oral and written.
(b) Attorneys' Fees. Should either parry employ attorneys to enforce any of the
provisions hereof or to protect its interest in any manner arising under this Agreement, or to recover
damages for breach of this Agreement, or to enforce any judgment relating to this Agreement and
the transaction contemplated hereby, the prevailing parry shall be entitled to reasonable attorneys'
fees and costs.
(c) Governing Law. This Agreement shall be governed in all respects by and
construed in accordance with the laws of the State of California.
(d) Further Assurances. Seller or Purchaser shall promptly perform, execute
and deliver or cause to be performed, executed and/or delivered at or after the Conveyance any
and all acts, deeds and assurances as either Parry may reasonably require in order to carry out the
intent and purpose of this Agreement.
(e) Counterparts; Electronic copies. This Agreement may be executed in one
or more counterparts, and all the counterparts shall constitute one and the same agreement. Duly
executed counterparts of this Agreement delivered by email or fax shall be deemed originals for
all purposes.
SF #4823-8338-6612 vl 6
(f) Nonwaiver. No delay or omission in the exercise of any right or remedy
accruing to Seller or Purchaser upon any breach under this Agreement shall impair such right or
remedy or be construed as a waiver of any such breach theretofore or thereafter occurring. The
waiver by Seller or Purchaser of any breach of any term, covenant or condition herein stated shall
not be deemed to be a waiver of any other term, covenant or condition.
(g) Captions. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extent or describe the scope
of this Agreement.
(h) Brokers. The Parties represent and warrant to each other that no broker or
finder was instrumental in arranging or bringing about this transaction and that there are no claims
or rights for brokerage commissions or finder's fees in connection with the transactions
contemplated by this Agreement. If any person brings a claim for a commission or finder's fee
based upon any contact, dealings or communication with Purchaser or Seller, then the party
through whom such person makes his claim shall defend the other parry (the "Indemnified
Party") from such claim, and shall indemnify the Indemnified Party and hold the Indemnified
Party harmless from any and all costs, damages, claims, liabilities or expenses (including, without
limitation, reasonable attorneys' fees and disbursements) incurred by the Indemnified Party in
defending against the claim. The provisions of this Paragraph 12(h) shall survive the Conveyance
or, if the purchase and sale is not consummated, any termination of this Agreement.
(i) Survival. Any covenants, agreements, and indemnifications that this
Agreement does not require to be fully performed prior to the Conveyance shall survive the
Conveyance and shall be fully enforceable after the Conveyance in accordance with their terms.
0) Time of Essence. Time is of the essence of each provision of this
Agreement.
(k) Drafts Not An Offer. The Parties agree that the submission of a draft of this
Agreement by one Party to another is not intended by either Party to be an offer to enter into a
legally binding contract with respect to the purchase and sale of the Property pursuant to the terms
of this Agreement. The parties shall be legally bound with respect to the purchase and sale of the
Easement Area pursuant to the terms of this Agreement only if (i) Seller and the Town Manager
of Tiburon (on behalf of Purchaser) have fully executed and delivered to each other a counterpart
of this Agreement, and (ii) the Town Council of Tiburon has approved this Agreement at a public
meeting by adoption of a resolution or minute action Seller agrees that this offer shall be not be
revoked for a period of thirty (30) days following presentation to Purchaser by Seller.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
[SIGNATURES ON FOLLOWING PAGE]
SF #4823-8338-6612 vl 7
SELLER:
PURCHASER:
Town
ATTEST:
By:
By:
Lea 90 i, Town Clerk
1 1 7 -
By:�
enjamin Stock, Town Attorney
SF #4823-8338-6612 vl
ed
F.XHTRTT A
LEGAL DESCRIPTION OF THE PROPERTY
The parcel of land described and designated PARCEL TWO in the deed from Douglas K.
McVickar and Nancy McVickar, husband and wife, to Ben Argov and Bryn Argov dated June 8,
2011 and recorded as Document Number 2011-0029440, Marin County Records.
Exhibit A
1
SF 44823-8338-6612 v1
EXHIBIT B
DESCRIPTION OF THE EASEMENT AREA
RANCHO CORTE MADERA DEL PRESIDIO
A.P.N.
055-171-13
�
A.P.N.
I
055-201-01
6 6� �iy� "
Pq�M
`�G0��S GQ r
AD)
1 �!
.
�C.,\ ` �'
055-2A.P01-35
SPG&E EASEMENT DETAIL
(AREA= 89±SQFf)
BENARGOV � 9
/
and _
BRYNARGOV 012
2
Deed Dated June 8, 2011
Doc. No. 2011-0029440
PARCEL ONE, TWO --
/
Marin County Records
APN. 055-201-34
UNLESS OTHERWISE SHOWN ALL COURSES EXTEND TO OR ALONG BOUNDARIES OR LINES
Applicant;
2 PALMER COURT, TIBURON
SCALE
1°=40,
DATE
6/9/21
SECTION
(NW NW)
TOWNSHIP
(1N)
RANGE
(6W)
MERIDIAN
(NORM
COUNTY OF: MARIN CITY OF: TIE RON
3off
F.B.:
DR.BY: KX]M CH.BY: DAK8
PLAT MAP VV -3401
REFERENCES 6 M 67; 29 OS 83, 2012 M 9
PG&E
NORTH BAY
I DIVISION
31320249
I AlTHORIZ
31320249F REV1
DRAWING NO.
Exhibit B
1
SF #4823-8338-6612 vI
EXHIBIT C
FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1954, as amended ("Code"), provides that a
transferee of a U. S. real property interest must withhold tax if the transferor is a foreign person.
To inform the transferee that withholding of tax is not required upon the disposition of a U. S. real
property interest by Ben Argov and Bryn Argov, husband and wife, as Transferor, the undersigned
hereby certifies the following:
1. The Transferor is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated
thereunder);
2. The Transferor's U. S. employer identification number or social security number is
3. The Transferor's office/home address or mailing address is 2 Palmer Court,
Tiburon, CA 94920.
The Transferor understands that this Certification may be disclosed to the Internal Revenue
Service by the Transferee and that any false statement contained herein could be punished by fine,
imprisonment, or both.
Under penalty of perjury the undersigned declares --11
Certification and to the best of his/her knowledge and belief it iso
further declares /that he/she has authority to sighis do non
Date: V" I" l °a � , 2021 By:
or A « s
Date: , 2021 By: r
Argov
Exhibit C
1
SF #4823-8338-6612 v1
he/she has examined this
, correct, and complete, and
alf of the Transferor.
EXHIBIT D
EASEMENT DEED
EXHIBBIT D
SF #4823-8338-6612 vl