13-0816_ACCRETIVE REALTY INVESTMENTS, LLC_C13_Agenda Report 8/6/2013
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City of San Juan Capistrano
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TO: Karen P. Brust, Cityn r
FROM: Hans Van Ligten, City Attorney
DATE: August 6, 2013
SUBJECT: Consideration of an Amendment to the Purchase and Sale Agreement
Relating to Lot 217 (Parcel No. 650-592-02) (Accretive Realty
Investments, LLC).
RECOMMENDATION:
By motion, approve an Amendment to the Purchase and Sale Agreement with Accretive
Realty Investments, LLC, extending the due diligence period and the closing date
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 (Accretive Realty), for the sale of Lot 217 (Parcel No. 650-592-
02), comprised of approximately 4.79 acres of land. Accretive Realty would like to
reinstate and amend the Purchase and Sale Agreement to extend the due diligence
period and the closing date to allow Accretive Realty additional time to process its land
use applications. Staff recommends the City Council consider the 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.
DISCUSSION/ANALYSIS:
Accretive Realty has requested an extension of the due diligence period and closing
date under the original Purchase and Sale Agreement in order for Accretive Realty to
process its entitlements prior to closing. The due diligence period under the Purchase
and Sale Agreement expired on July 24, 2013. In addition, the Purchase and Sale
Agreement had an outside closing date of September 19, 2013. Because they could
not meet their deadlines, the Purchase and Sale Agreement terminated on July 24,
2013, pursuant to Accretive Realty's written notice. However, if the Amendment is
approved, the Purchase and Sale Agreement would be reinstated and be in full force
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FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS (this "First Amendment") is dated as of August_, 2013,
between CITY OF SAN JUAN CAPISTRANO, as Seller, ("City") and ACCRETIVE REALTY
INVESTMENTS, LLC, a California limited liability company, as Buyer('Buyer").
RECITAL
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 (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. Buyer elected to terminate the Original Agreement pursuant to Section 3.1.5 of
the Original Agreement.
C. The parties desire to reinstate the Original Agreement, as amended by the terms
and provisions contained herein.
D. The Original Agreement as amended by this First Amendment is referred to in
this First Amendment as the "Agreement." Any capitalized terms used but not defined in this
First 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:
1. Reinstatement of Purchase Agreement. Buyer and City hereby reinstate the
Original Agreement and agree that, except as modified by this First Amendment, the terms and
provisions of the Original Agreement shall be in full force and effect.
2. Approval of Due Diligence. Pursuant to Section 3 of the Original Agreement,
Buyer hereby approves its due diligence investigation of the Property with the exception of its
due diligence with respect to the Governmental Applications and Governmental Approval.
3. Definition of Governmental Applications. Notwithstanding anything to, the
contrary set forth in the Original Agreement, "Governmental Applications" shall mean,
collectively, Buyer's site plan and elevations, Architectural Control (AC) 13-19, Grading Plan
Modification (GPM) 13-0 and any variances required by the City for Buyer's desired project, all
for approval by the City's Planning Commission and if applicable, by the City Council.
4. Limited Due Diligence Period Extension. Notwithstanding anything to the
contrary set forth in the Original Agreement and solely for the purposes of Buyer's due diligence
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ATTACHMENT 1
this First 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 First
Amendment. This First Amendment also constitutes an amendment to the escrow instructions in
the Original Agreement. This First 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 First 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.
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