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13-1001_ACCRETIVE REALTY INVESTMENTS, LLC_Agenda Report 10/1/2013 '; ,,,.o A ditianal [tem after 'Elposting of the Agenda City of San Juan Capistrano Agen port TO: Karen P. Brust, City r FROM. flans Van Ligten; City Attorney DATE: October 1, 2013 SUBJECT: Consideration of a Second Amendment to the Purchase and Sale Agreement Relating to Lot 217 (Parcel No. 650-592-02) (Accretive Realty Investments, LLC). RECOMMENDATION: By motion, approve a Second Amendment to the Purchase and Sale Agreement with Accretive Realty Investments, LLC (Accretive Realty), to clarify Accretive Realty's post- closing obligations relating to Lot 217 (Parcel No. 650-592-02); and, authorize the Mayor to execute the Amendment. EXECUTIVE SUMMARY: The City Council previously entered into a Purchase and Sale Agreement with Accretive Realty Investments, LLC, for the sale of Lot 217 (Parcel No. 650-592-02), comprised of approximately 4.79 acres of land (the "Property"). The parties would like to amend the Purchase and Sale Agreement to clarify Accretive Realty's post-closing obligations relating to the Property. Staff recommends the City Council consider the Second Amendment to the Purchase and Sale Agreement (Attachment 1) and if found appropriate, authorize the Mayor to execute the Agreement on the City's behalf. DISCUSSIONfANALYSIS: If approved, the Second Amendment to the Purchase and Sale Agreement will amend the Purchase and Sale Agreement between the City and Accretive Realty to: (1) Clarify that, to the extent existing utility dedications and easements recorded against the Property in favor of City do not already grant the City access rights to such easements, then, at City's request, Buyer shall execute any and all documents necessary to grant City such access rights; and SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND;JOINT ESCROW INSTRUC71ONS THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this "Second Amendment")is dated as of October 1, 2013, between CITY OF SAN JUAN CAPISTRANO, as Setter, ("City") and ACCRETIVE REALTY rNVESTMENTS, LLC,a California limited liability company,as Buyer("Buyer"). REQj A. Prior to the date hereof, Buyer and City executed that certain Purchase and Sale Agreement and Joint Escrow Instructions dated as of March 26,2013,as amended by that.certain First Amendment to Purchase and Sale Agreement and Joint Escrow Instructions dated August 6, 20113 (as amended, the "Original Agreement"), pursuant to which City agreed to sell to Buyer and Buyer agreed to buy from City the "Property" as defined and on the terms and conditions set forth therein. B. The parties desire to amend the Originsi Agreement pursuant to the terms and conditions set forth below, C. The Original Agreement as amended by this Second Amendment is referred to in this Second Amendment as the "Agreement," Any capitalized terms used but not defined in this Second Amendment shall have the meanings assigned to such terms in the Original Agreement, AGREEMENT NOW,THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows- I I Access Egernents Buyer acknowledges that there- are several existing utility dedications and easements recorded against the Property in favor of City that run with the land, and as of the Close of Escrow, shall be binding on Buyer and its successive owners. To the extent such easements do not already grant the City access rights to such easements, then, at City's request, Bayer shall execute any and all documents necessary to grant City such access rights; provided,however, that such access rights shall be reasonable and consistent Aith Buyer's planned development on the Property as shown on that certain Site Plan approved by the Planning Commission of the City on September 24, 2013, The documents executed by Buyer pursuant to this Section 'I shall be in recordable form,and shall be delivered by Buyer to Escrow Holder at least one (1)business day prior to the Closing.. Escrow Holder is instructed. to record such documents in the Office of the County Recorder of the County of Orange following the recordation of the Grant Deed, 1 Buygfs Post-Closing..Qhfig_ation, Prior to the issuance of a grading permit for the Property, Buyer shall, at Buyer's sole cost and expense, (A) replace those certain.existing non- operational gate valves GV-DS-50, 49, and 49; (B) add those certain new gat-, valves with expander/redu"r at GV-D8-48;(C) add new air vac at GV-1 8-48; and (D) add new blow off at GV-D8-49, the locations of which are shown on Exhibit"I"attached hereto and incorporated by this reference. Buyer's obligations set forth in this Section 2 shall survive the Close of Escrow. 3. Miscellaneous. This Second Amendment shall be governed and construed in accordance with the laws of the State of California. The parties acknowledge that, with respect to the transactions contemplated herein, each party and its counsel have reviewed and revised this Second Amendment and the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Second Amendment. This Second Amendment also constitutes an amendment to the escrow instructions in the Original Agreement. This Second Amendment may be executed in counterparts, each of which will be deemed a duplicate original and all of which taken together shall constitute one document. The parties may execute and deliver this Second Amendment by forwarding electronically transmitted copies hereof, which shall have the same binding effect as original signatures, and the parties hereby waive any defense to validity based on any such copies or signatures. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS 'V HEREOP) the parties have executed this Second Amendment as of the dates set forth seer thea sutures below. Com'• CI i Y OF SAN JUAN C:APIS I RANO a municipal corporation By: John Taylor,Mayor Date: Attest: By: Maria Morris,City Clerk Approved as to Conn: By: ., Hans Van Ligten, City Attorney Buyer. ACCRETIVE A.LTY rNVESTMENTS,LLC, a California li # t3'company By: Name: Title: Date: f I f,fir N)N, ReptaCeGV1;i6Age ..&_ f a$ had air-vac at GV- r�rys r `•. vcx% i ' C�$-dA:add- NOW a1T at � i r ,�,�„'� ri�..._...•+'. � � 1 .. -..,t ''� awr�� � � t t ies ��_ . x,.• � �[ ✓-f � f! rv01+iE isQlailgr8 to perform i+/txi �f °k _.•.. wM \"e"t t '� J� F Y - GV-M-212. t54:9FV-08rA..0 44 L fr �� ,�, °""" � • _ ..,F ��'�•.� R�rno�au tees 't4 r 1-1129 BEV-Di5-201 dF `�•••su�a"�� irr ,� � b�a,�j� c: �1� wilhir 39-fOCi of .. � �� .....__.._._ t 46�,,�",,•"��'.- Via. 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