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08-1118_WATKINS, MARK M._Purchase and Sale AgreementAGREEMENT FOR PURCHASE AND SALE OF - c REAL PROPERTY AND ESCROW INSTRUCTIONS THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND bnCROW IN . TRUCTIONS (the '"Agreement") is made and entered into as of Okbe t; , 2008, by and between the SAN JUAN'CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic ("Buyer") and MARK M. WATKINS ("Seller"), with reference to the following facts: RECITALS A. Seller is the owner of certain unimproved real property comprised of approximately 1.34 acres, located along the west side of San Juan Creek Channel at the westerly terminus of Calle Jardin, City of San Juan Capistrano (the "City"), the County of Orange (the "County") State of California, designated by Assessor's Parcel No. 668-211-20, more particularly described on Exhibit A attached hereto (the "Property") B. Buyer and Seller acknowledge and agree that the purchase and sale of the Property is contingent upon the concurrent exchange of properties by and between Buyer and the Orange County Flood Control District ("OCFCD") the terms of which are set forth hereinbelow. C. Subject to the OCFCD exchange, Seller desires to sell to Buyer and Buyer desires to purchase from Seller the Property, in accordance with the terms and conditions contained in this Agreement. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by Seller, Buyer and Seller hereby agree as follows: 1j&ZJ$] fly9;=1i•Ir�Y� � 1.1. Agreement to Buy and Sell. Subject to the terms and conditions set forth herein, Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to acquire and purchase from Seller, the Property. As used herein the "Property" shall include the real property identified on Exhibit A and all of Seller's right, title and interest in and to any and all entitlements, tenements, hereditaments, easements, easement rights, rights to half -widths of all adjacent public streets and public rights of way, mineral rights, oil and gas rights, water, water rights, air rights, development rights and privileges appurtenant thereto and all improvements located thereon. 1.2. Purchase Price. The purchase price ("Purchase Price") for the Property shall be One Hundred Seventy Five Thousand Dollars and 001100 ($175,000) as PSA -Watkins Parcel Agreement for Purchase and Sale of Real Property and Escrow Instructions established by Summary Appraisal Report prepared by Gary L. Vogt & Associates, dated November 13, 2007. The Purchase Price shall be payable as follows: (a) $8,750 as earnest money deposit pursuant to Section 1.4, (b) an additional $166,250 in cash at closing. 1.3. Deposit. Within five (5) business days after the Opening of Escrow (defined below), Buyer shall deposit with Escrow Holder (defined below) by wire transfer the sum of Eight Thousand Seven Hundred Fifty Dollars and 001100 ($8,750) (the "Deposit"), which Escrow Holder shall invest in an interest bearing account with interest accruing for the benefit of Buyer. If Buyer does not deliver to Seller and Escrow Holder the Feasibility Approval Notice and the Title Approval Notice within the times required herein, then (i) Escrow Holder, with no further instructions from the parties hereto, shall return the First Deposit to Buyer, (ii) the Escrow shall be automatically terminated and of no force and effect, (iii) Buyer and Seller shall each pay one-half (112) of any Escrow termination fees, and (iv) except as otherwise provided herein the parties will have no further obligation or liability to one another. ����•]LTlliil�I�l���91i•E 2.1. Opening of Escrow. Within two (2) business days after execution of this Agreement by the last of Seller or Buyer, Buyer shall open an escrow (the "Escrow") with First American Title Company, at the address set forth in Section 7.12 ("Escrow Holder"), by depositing with Escrow Holder this Agreement fully executed, or executed counterparts hereof. The date this fully executed Agreement is signed and accepted by Escrow Holder on the last page hereof shall be deemed the "Opening of Escrow" and Escrow Holder shall advise Buyer and Seller of such date in writing. The escrow instructions shall incorporate this Agreement as part thereof and shall contain such other standard and usual provisions as may be required by Escrow Holder, provided, however, that no escrow instructions shall modify or amend any provision of this Agreement, unless expressly set forth in writing by mutual consent of Buyer and Seller. In the event there is a conflict between any such standard or usual provisions and the provisions of this Agreement, the provisions of this Agreement shall control. 2.2. Escrow Fees and Other Charges. At the Close of Escrow, (a) Seller shall pay: (i) the cost of the Title Policy (defined below), including a mechanics' lien endorsement and any endorsements thereto reasonably required by Buyer, (ii) one-half (1/2) of the Escrow Holder's fees, and (iii) documentary transfer or similar taxes; (b) Buyer shall pay: (i).one-half (112.) of the Escrow Holder's fees, and (ii) all recording fees; and (c) all other costs related to the transaction shall be paid by the parties in the manner consistent with common practice in the County. 2.3. Closing Date; Conditions Precedent to Close of Escrow. Provided all of the conditions precedent set forth in this Section 2.3 have been satisfied (or are in a position to be satisfied concurrently with the Close of Escrow), the Close of Escrow shall occur on or before , 2008 (the "Closing Date"). As used in this Agreement, the "Close of Escrow" shall mean the date a Grant Deed, as provided in Section 2.4.2(a) hereof ("Grant Deed"), is recorded in the Official Records of the County. PSA -Watkins Parcel Page 2 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions 2.3.1 Conditions to Buyer's Obligations. The Close of Escrow and Buyer's obligation to purchase the Property, are subject to the satisfaction of the following conditions or Buyer's written waiver of Such Conditions on or before the Closing Date. Buyer may waive in writing any or all of such conditions in its sole and absolute discretion. (a) The Purchase Price shall have been determined in accordance with Section 1.2; (b) Seller shall have performed all obligations to be performed by Seller pursuant to this Agreement; (c) No event or circumstance shall have occurred which would make any of Seller's representations, warranties and covenants set forth herein untrue as of the Close of Escrow, (d) There shall have occurred no material adverse change in the physical condition of the Property (such as those caused by natural disasters) which would render the Property unsuitable for Buyer's intended use or which would materially increase the cost or cause a material delay in the schedule for the development of the Property; and (e) The Title Company shall be committed to issue to Buyer, as of the Closing Date, the Title Policy (defined below) covering the Property, subject only, to the Permitted Exceptions; (f) Seller shall cause the Property to be free and clear of all debris, weeds and guardrail structure no less than 10 days prior to the Close of Escrow. Buyer shall deposit written notice to Seller and Escrow Holder that the condition of the Property as relates to weeds, debris and the guardrail structure is acceptable to Buyer and that this condition is satisfied prior to closing; and (g) CONCURRENT AND CONTINGENT CLOSINGS. The parties hereto acknowledge and agree that Buyer's obligation to purchase the property and close escrow thereon is contingent upon the concurrent closing for the property set forth on Exhibit A-1 attached hereto and incorporated herein by way of a separate escrow held by Escrow Holder and pursuant to an Agreement for Exchange of Real Property by and between Buyer and Orange County Flood Control District ("OCFCD Exchange"). In the event that the OCFCD Exchange fails to close for any reason whatsoever regardless of fault concurrently with the subject Escrow, this Escrow and the Agreement shall be terminated and shall be of no further force and effect and Escrow Holder shall refund the Deposit to Buyer together with interest earned thereon less escrow fees and charges without further instruction. 2.3.2 Conditions to Seller's Obligations. The Close of Escrow and Seller's obligation to sell the Property are subject to the satisfaction of the following conditions or Seller's written waiver of such conditions on or before the Closing Date. Seller may waive in writing any or all of such conditions as a condition to the Close of Escrow in its sole and absolute discretion. PSA -Watkins Parcel Page 3 of 19 Agreement for Purchase and Sale of meal Property and Escrow Instructions (a) The Purchase Price shall have been determined in accordance with Section 1.4; (b) Buyer shall have performed all obligations to be performed by Buyer pursuant to this Agreement; and (c) No event or circumstance shall have occurred which would make any of Buyer's representations, warranties and covenants set forth herein untrue as of the Close of. Escrow. 2.3.3 Waiver of a Condition Does Not Excuse Performance. If any condition precedent to the Close of Escrow is expressly waived, in writing, as a condition to the Close of Escrow by the party for whose benefit such condition exists, then, to the extent such condition is capable of being satisfied following the Close of Escrow, such condition shall become a condition subsequent to the Close of Escrow and shall be satisfied by the party whose performance is required to satisfy such condition as soon as reasonably possible following the Close of Escrow. 2.4, Closing Documents. The parties shall deposit the following with Escrow Holder prior to the Close of Escrow: 2.4.1 Buyer's Deposits. Buyer shall deposit: (a) The balance of the cash payment, less the Deposit and all interest accrued thereon (the "Purchase Price Balance"), together with Buyer's escrow and other cash charges; (b) A Certificate of Acceptance for the Grant Deed in the form of Exhibit C on Buyer letterhead; and (c) A letter to Seller indicating that the purchase is in lieu of condemnation. 2.4.2 Seller's Deposits. Seller shall deposit: (a) The Grant Deed in the form of Exhibit B attached hereto, conveying fee title to the Property subject only to the Permitted Exceptions (defined below); (b) Subject to Section 2.5.1 below, an executed Affidavit of Non -foreign Status in the form of Exhibit D attached hereto and such other documentation necessary to exempt Seller from the withholding requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder; (c) Subject to Section 2.5.1 below, a Withholding Exemption Certificate Form 593 as contemplated by California Revenue and Taxation Code §18662 (the "Withholding Affidavit") duly executed by Seller; and PSR -Watkins Parcel Page 4 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions (d) An Assignment and Bill of Sale of all of Seller's right, title and interest in and to any and all entitlements and plans pertaining to the Property, and any personal property comprising the Property, in the form attaches[ hereto as Exhibit E (the "Assignment"); 2.4.3 Deposits of Additional Instruments. Seller and Buyer shall each deposit such other instruments as are reasonably required by Escrow Holder or otherwise required to proceed to the Close of Escrow and consummate the sale of the Property in accordance with the terms of this Agreement. 2.5. Closing. 2.5.1 Withholding. In the event that, pursuant to Section 2.4.2(b) above, Seller fails to deposit with Escrow Holder the executed Affidavit of Non -foreign Taxpayer Status which exempts Seller from the withholding requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder, Seller hereby authorizes Escrow Holder to withhold ten percent (10%) of the Purchase Price of the Property less any applicable closing costs and to report and transmit the withheld amount to the Internal Revenue Service. Additionally, in the event that, pursuant to Section 2.4.2(c) above, Seller fails to deposit with Escrow Holder any applicable tax document which exempts Buyer from California withholding requirements, if any, Seller hereby authorizes Escrow Holder to withhold such additional percentage of the Purchase Price of the Property as is required by California law, and Escrow Holder shall report and transmit the withheld amount in the manner required by California law. By agreeing to act as Escrow Holder hereunder, Escrow Holder expressly agrees to undertake and be responsible for all withholding obligations imposed pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder and under any similar provisions of California law, and shall defend, indemnify and hold Buyer harmless in connection with such obligations. 2.5.2 Necessary Actions of Escrow Holder. On the Close of Escrow, Escrow Holder shall: (i) record the Grant Deed in the Office of the County Recorder of the County, (Ii) pay any transfer taxes, (iii) instruct the County Recorder to return the Grant Deed to Buyer, (iv) distribute to Seller the Purchase Price (inclusive of the Deposit and accrued interest) less Seller's escrow and cash charges and less any amounts required to be withheld by Escrow Holder, and (v) deliver to Buyer the Assignment, the Title Policy covering the Property subject only to the Permitted Exceptions, the Affidavit of Non -foreign Status and the applicable California withholding exemption form, if any. 2.5.3 Taxes and Assessments. Real property taxes and assessments shall be prorated as of the Close of Escrow on the basis of the most recent tax information and such proration shall be final. Said prorations shall be based on a three hundred sixty-five (365) day year. 2.5.4 Title and Possession. Upon the Close of Escrow, title to and exclusive possession of the Property shall be conveyed to Buyer, subject only to the Permitted Exceptions, PSA -Watkins Parcel Page 5 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions 2.6. Failure to Close: Termination. 2.6.1 Neither Party in Default. In the event that any condition set forth in Section 2.3 is not satisfied or waived, in writing, and the Close of Escrow does not occur within the time required herein due to the failure of such condition .or the Close of Escrow does not occur within the time frame required herein for any reason other than Seller's or Buyer's breach of or default of its respective obligations hereunder, or if this Agreement is terminated without default by either party as otherwise set forth herein, then Escrow Holder, with no further instructions from the parties hereto, shall return to the depositor thereof any funds, including the Deposit (including accrued interest), or other materials previously delivered to Escrow Holder, the Escrow shall be automatically terminated and of no force and effect, Buyer and Seller shall each pay one-half (112) of any Escrow termination fees, and except as otherwise provided herein the parties will have no further obligation to one another. 2.6.2 Buyer's Default. In the event of Buyer's failure to purchase the Property due to a default or breach by Buyer of this Agreement after the Feasibility Period, where such default or breach is not cured by Buyer within five (5) business days of Buyer's receipt from Seller of written notice of such default or breach, the portion of the Deposit which has become non-refundable to Buyer at the time of such default in accordance with the terms of Section 1..2 (the "Liquidated Damages Amount") shall constitute liquidated damages as follows: BY PLACING THEIR INITIALS HERE, BUYER AND SELLER EACH AGREE THAT IN THE EVENT OF BUYER'S FAILURE TO PURCHASE THE PROPERTY ON ACCOUNT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, THE DAMAGES TO SELLER WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THEREFORE, IN THE EVENT OF BUYER'S FAILURE TO PURCHASE THE PROPERTY ON ACCOUNT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, WHICH DEFAULT OR BREACH IS NOT CURED WITHIN FIVE (5) BUSINESS DAYS AFTER WRITTEN NOTICE IS GIVEN BY SELLER TO BUYER, THE LIQUIDATED DAMAGES AMOUNT SHALL SERVE AS DAMAGES FOR SUCH BREACH OR DEFAULT BY BUYER, AS A REASONABLE ESTIMATE OF THE DAMAGES TO SELLER, INCLUDING COSTS OF NEGOTIATING AND DRAFTING THIS AGREEMENT, COSTS OF COOPERATING IN SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER, OPPORTUNITY COSTS IN KEEPING THE PROPERTY OUT OF THE MARKETPLACE, AND OTHER COSTS INCURRED IN CONNECTION HEREWITH. DELIVERY TO AND RETENTION BY SELLER OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF BUYER'S FAILURE TO PURCHASE THE PROPERTY ON ACCOUNT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, AND SELLER WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST BUYER, INCLUDING WITHOUT LIMITATION, SPECIFIC PERFORMANCE. THE PAYMENT AND RETENTION OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO.SELLER. UPON BUYER'S FAILURE TO PURCHASE THE PROPERTY ON ACCOUNT OF A PSA -Watkins Parcel Page 6 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, THIS AGREEMENT SHALL BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO RETAIN SUCH LIQUIDATED DAMAGES. 2.6.3 Seller's Default. In the event that the Close of Escrow does not occur within the time required herein due to a breach of this Agreement by Seller, (a) this Agreement shall not be terminated automatically, but only upon delivery to Escrow Holder and Seller of written notice of termination from Buyer, in which event (i) Escrow Holder shall automatically return all sums (including the Deposit) deposited by Buyer, and (ii) Buyer shall be entitled to recover whatever other damages it has sustained on account of Seller's default hereunder, or (b) Buyer shall be entitled to keep this Agreement in effect and pursue any and all other remedies available to it against Seller including the specific performance of this Agreement, and Buyer may record a notice of pendency of action against the Property. 2.6.4 Escrow Fees on Default. If the failure to close is due to the default of one of the parties, the defaulting party shall bear the sole and full. liability for paying any escrow cancellation fee. 2.6.5 Interest on Delinquent Amounts. If any party which owes the other party money hereunder does not pay or return such money to the other party within five (5) business days after written demand therefor, the unpaid amount shall thereafter accrue interest at the lesser of (a) twelve percent (12%) per annum or (b) the highest rate permitted by law, from the date such amount was due under the date it is ;;laid in full. 3. ACTIONS PENDING CLOSING, 3.1. Investigation of the Property. 3.1.1 Delivery of Reports: Not later than the date five (5) days after the Opening of Escrow, Seller shall deliver or cause to be delivered to Buyer legible and complete copies of all studies, reports, agreements, documents, plans, permits and entitlements in Seller's or its agents' possession, or readily obtainable by Seller, pertinent to the Property and its improvement and development (the "Reports"), including, without limitation, studies, reports, correspondence, agreements, documents, affordable housing agreements and materials, plans, maps, CC&Rs, budgets, correspondence or other materials, permits, and entitlements. The Reports include, Without limitation, copies of any and all biological, archeological and environmental reports and materials, if any, relating to the Property that are in Seller's or Seller's agents' possession. 3.1.2 Feasibility Period. With Seller's reasonable cooperation, Buyer shall have until 5:00 P.M. Pacific Time on the date which is thirty (30) days after the date of the fully executed Agreement (the "Feasibility Period") to review the suitability of the Property for Buyer's use and development, including, without limitation, any governmental land regulations, zoning ordinances, all covenants, conditions and restrictions and other contracts, agreements or documents affecting the Property, the PSA -Watkins Parcel Page 7 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions status of the entitlements and permits or development condition of the Property, the physical condition of the Property, including soil and geological assessmerlts and a Phase I environmental audit (the "Feasibility Matters"), and to approve or disapprove of the Feasibility Matters in Buyer's sole and absolute discretion; and to deliver to Seller and Escrow Holder the Feasibility Approval Notice or, alternatively, written notice of Buyer's disapproval. Failure by Buyer to timely give notice of its approval or disapproval of the Feasibility Matters shall be deemed disapproval thereof. If Buyer disapproves (or is deemed to have disapproved) of the Feasibility Matters as provided herein then this Agreement shall automatically terminate and the provisions of Section 2.6.1 shall apply. 3.2. Title Review. 3.2.1 Title Report. Within seven (7) business days after the Opening of Escrow, Seller shall cause First American Title Insurance Company (the "Title Company") to furnish Buyer with an updated Title Commitment on the Property together with legible copies of all documents referenced. therein as exceptions to title and a plot plan for the Property showing all the locations of all easements referenced therein (collectively, the "Title Commitment"). 3.2.2 Title Notices. Buyer shall have fourteen (14) business days after its actual receipt of the Title Commitment to deliver to Seller and Escrow Holder written notice (the "Preliminary Tittle Notice") of Buyer's approval, conditional approval or disapproval of the title matters disclosed in the Title Commitment. All matters not timely approved by Buyer will be deemed disapproved. All such exceptions disapproved by Buyer are referred to herein as "Disapproved Exceptions". (a) Seller shall have five (5) business days after receipt of Buyer's Preliminary Title Notice or Buyer's deemed disapproval of the Title Commitment to (i) commit to cause such Disapproved Exceptions to be released of record or commit to cause the Title Company to endorse over such Disapproved Exceptions pursuant to an endorsement or endorsements acceptable to Buyer in Buyer's sole and absolute discretion, as of or before the Close of Escrow, and to give Buyer and Escrow Holder written notice of those Disapproved Exceptions which have been or will be so released or endorsed over on or before the Close of Escrow, or (ii) elect not to remove or endorse over any Disapproved Exceptions. If Seller fails to deliver its response notice within said five (5) business day period, Seller shall be deemed to have elected to eliminate or endorse over all matters disapproved or conditionally approved by Buyer. Notwithstanding the foregoing, Seller shall be obligated to remove and eliminate as exceptions to title to the . Property as of the Close of Escrow all monetary liens or encumbrances and all claims to fee title or leasehold or other interests in the Property, all of which constitute Disapproved Exceptions. (b) If Seller elects not to commit to remove; or cause the Title Company to endorse over a Disapproved Exception at the Close of Escrow (other than a monetary lien or encumbrance, or claim to fee title or leasehold or other interest in or to the Property, as to which Seller's obligation to remove or. cause the Title Company to endorse over is absolute and a failure to do so is a breach of this Agreement), Buyer shall have the option, to be exercised within five (5) days after PSA -Watkins Parcel Page 8 of 19 Agreement for Purchase and Sale of Real Property and Escrow fnstruct'sons receipt of Seller's notice thereof, to (i) elect to terminate this Agreement, in which case the provisions of Section 2.6.1 shall apply, or (il) waive its objection to the Disapproved Exceptions in question by delivering notice of such waiver to Seller and Escrow Halder, and proceed to the Close of Escrow. If Buyer falls to deliver the waiver notice described in clause (ii) of the preceding sentence, Buyer shall be deemed to have elected to terminate this Agreement. 3.2.3 Permitted Exceptions. "Permitted Exceptions" shall mean all exceptions appearing on the Title Commitment which are: (i) standard printed exceptions in the Title Policy issued by Title Company; (ii) general and special real property taxes and assessments, a lien not yet due and payable; and (lil) any other liens, easements, encumbrances, covenants, conditions and restrictions of record approved, or expressly waived if a Disapproved Exception, by Buyer pursuant to this Section 3.2. 3.2.4 Modified or Additional Exceptions. If any supplement to the Title Commitment is issued prior to the Close of Escrow which shows any new, additional or modified exceptions from the exceptions set forth in the Title Commitment (each a "New Exception") then: (a) if such New Exception was created or arose from acts or omissions of Seller or any third party, unless approved by Buyer, in writing, such New Exception shall constitute a Disapproved Exception, which must -be removed from title by Seller at or before the Close of Escrow in a time and manner acceptable to Buyer, (b) if such New Exception was created or arose from acts or omissions of Buyer, then such New Exception shall constitute a Permitted Exception. , 3.2.5 Seller's Failure to Cure. If, despite Seller's best efforts to remove or to cause the Title Company to endorse over a Disapproved Exception which Seller has committed to cause to be removed or endorsed over, Seiler is unable to do so, Buyer shall have the option, on or before the Close of Escrow to: (i) declare Seller in default hereunder and exercise Buyer's remedies pursuant to Section 2.6.3, or (ii) waive its objection to the Disapproved Exceptions in question by delivering notice of such waiver to Seller and Escrow Halder, and proceed to the Close of Escrow. If Buyer fails to deliver the waiver notice described in clause (ii) of the preceding sentence; Buyer shall be deemed to have elected to declare Seller in default hereunder. 3.3. Title Policy. Buyer's obligation to proceed to the Close of Escrow shall be conditioned upon the commitment by Title Company to issue an ALTA Standard Coverage Owner's Policy of Title Insurance (the "Standard Coverage Policy"), showing title to the Property vested in Buyer with liability equal to the Purchase Price, subject only to the Permitted Exceptions. At Buyer's option, Buyer may require an ALTA Extended Coverage Owner's Policy instead of the Standard Coverage Policy provided that Buyer pays any additional premium on account thereof. The form of title policy selected by Buyer shall be referred to herein as the "Title Policy" 3.4, Access. At any time during the term of this Agreement, Buyer, its agents and employees shall have the right to enter the Property, for the purposes of conducting such investigations, inspections and tests of the Property as Buyer deems necessary to obtain all app ovals and entitlements to enable Buyer to develop the Property as PSA -Watkins Parcel Page 9 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions contemplated by Buyer and to determine the condition and suitability of the Property including, but not limited to, the Feasibility Matters. Buyer shall use care and consideration in connection with. all of its inspections or tests. Prior to any entry on the Property by Buyer prior to the Close of Escrow, Buyer shall secure and maintain a comprehensive general liability and property damage policy in an amount of not less than One Million Dollars ($1,000,000) which will cover the activities of Buyer and its agents and consultants on the Property and shall name Seller an additional insured thereunder. On request by Seller, Buyer shall provide a certificate of insurance to Seller evidencing the insurance required herein. Buyer hereby agrees to indemnify, defend and hold Seller harmless from and against any and all loss, expense, claim, damage and injury to person or property incurred during the term of this Agreement and resulting from the negligence or misconduct of Buyer, Buyer's agents, contractors and/or subcontractors and/or the contractors or subcontractors of such agents on the Property in connection with the performance of any investigation or other activities upon the Property as contemplated herein. The foregoing repair, indemnity and defense obligations do not apply to (a) any loss, liability cost or expense to the extent arising from or related to the acts or omissions of Seller, (b) any diminution in value in the Property arising from or relating to matters discovered by Buyer during its investigation of the Property, (c) any latent defects in the Property discovered by Buyer, (d) any claims or litigation relating to the Property that arises from acts, occurrences, omissions or other matters that took place on or about the Property prior to the Close of Escrow that do not relate to Buyer's investigation activities, and (d) the release or spread of any hazardous materials or regulated substances which are discovered (but not deposited) on or under the Property by Buyer. 3.5. Seller's Covenant Not to Further Encumber the Pro eri . Seller shall not, directly or Indirectly, alienate, encumber, transfer, option, lease, assign, sell, transfer or convey its interest or any portion of its interest in the Property, or any portion thereof, or enter into any agreement to do so, so long as this Agreement is in force. Seller shall timely discharge, prior to the Closing, any and all obligations relating to work performed on or conducted at or materials delivered to or for the Property from time to time by Seller, or at Seller's direction or on its behalf, in order to prevent the filing of any claim or mechanic's lien with respect to such work or materials. 4. REPRESENTATIONS, WARRANTIES AND COVENANTS 4.1. Seller's Representations, Warranties and Covenants. In addition to the representations, warranties and covenants of Seller contained in other sections of this Agreement, Seller hereby represents, warrants and covenants to Buyer as follows, all of which shall survive the Close of Escrow: 4.1.1 Seller's Authority. Seller is an individual, is the sole owner in fee simple absolute of the Property and has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. Seller has not alienated, encumbered, transferred, leased, assigned or otherwise conveyed its interest in the Property or any portion thereof except as set forth in the Title Commitment, nor entered into any Agreement to do so, nor shall Seller do so during the term of this Agreement. The entering into and performance by Seller of the transactions contemplated by this PSA -Watkins Parcel Page 10 of 19 Agreement for Purchase and Sale of meal Property and Escrow Instructions Agreement will not violate or breach any other agreement, covenant or obligation binding on Seller, and there is no consent required from any third party before the Property may be conveyed to Buyer. This Agreement has been duly authorized and executed by Seller, and upon delivery to and execution by Buyer shall be a valid and binding agreement of Seller. 4.1.2 Hazardous Substances. Neither Seller nor any third party has used, generated, manufactured, stored or disposed any Hazardous Substances in, at, on, under or about the Property or transported any Hazardous Substance to or from the Property. Additionally, (a) the Property is not in violation, nor has been or is currently under investigation for violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene, worker health and safety, or to the environmental conditions in, at, on, under or about the Property including, but not limited to, soil or groundwater conditions; (b) the Property has not been subject to, and is not within 2,000 feet of, a deposit of any Hazardous Substance; (c) there has been no discharge, migration or release of any Hazardous Substance from, into, on, under or about the Property, (d) there is not now, nor has there ever been on or in the Property underground storage tanks or surface impoundments, any asbestos -containing materials or any polychlorinated biphenyls used in hydraulic oils, electrical transformers or other equipment, and (e) there is not now, nor has there ever been, debris or refuse buried in or under the Property which would adversely affect the development of the Property. Seller hereby assigns to Buyer as of the Close of Escrow all claims, counterclaims, defenses or actions, whether at common law, or pursuant to any other applicable federal or state or other laws which Seller may have against any third parties relating to the existence of any Hazardous Substance in, at, on, under or about the Property. As used in this Agreement, the term "Hazardous Substances" shall have the meaning set forth on Exhibit F attached hereto. At any time prior to the Close of Escrow, Buyer shall have the right to conduct appropriate tests of water and soil to ascertain the presence of any Hazardous Substances on, in, under and about the Property. In the event Buyer discovers the presence of Hazardous Substances on, in, under or about the Property prior to the Closing Date and Seller fails or refuses to remove and dispose of such Hazardous Substances in accordance with all applicable laws referred to on Exhibit F attached hereto, Buyer may terminate this Agreement, whereupon all of Buyer's Deposit and any interest accrued thereon shall be returned to Buyer. Seller shall defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents, shareholders, attorneys and their respective representatives and successors in interest (collectively, the "Indemnitee") from any liability, loss, cost, damage or expense, including, without limitation, court costs, expert witness fees and attorneys' fees, that Indemnitee may suffer or incur as a result of any claim, demand, action, cost or judgment made or obtained by any individual, partnership, cooperation, entity, governmental agency or person which arises out of or results from the presence or existence of Hazardous Substances above, below or on the Property to the extent that such Hazardous Substances are or were located in such locations prior to the Close of Escrow. 4.13 Endangered red Species. To Seller's knowledge, there are no endangered species or protected natural habitat, flora or fauna located on the Property, nor is any portion of the Property located in what is or may be designated as a wetland. PSA -Watkins Parcel Page 11 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions 4.1.4 Legal Actions. There is no suit, action or arbitration, or legal, administrative, or other proceeding or governmental investigation, formal or informal, including but not limited to eminent domain, condemnation, assessment district or zoning change proceeding, pending or threatened, or any judgment, moratorium or other government policy or practice which affects the Property or Buyer's anticipated development of the Property, or which adversely affects Seller's ability to perform hereunder, nor does Seller know of any fact which might give rise to any such action, investigation or proceeding. 4.1 .5 Mechanic's Liens. There are no mechanics', material men's or other claims or liens presently claimed or which will be claimed against the Property for work performed or commenced prior to the date of this Agreement or relating to the environmental condition of the Property. Seller agrees to hold Buyer harmless from all costs, expenses, liabilities, losses, charges and fees, including without limitation attorneys' fees, arising from or relating to any such lien or any similar lien claimed against the Property and arising from work performed or commenced prior to the Close of Escrow. 4.1.6 Leases/Easements. There are no leases, rental agreements or other such contracts of any kind or nature affecting possession or occupancy of the Property, and Seller shall not enter into any such contracts during the term of this Agreement without the prior consent of Buyer. 4.1.7 Other Facts and Circumstances. There are no other facts or circumstances known to Seller that would preclude, prevent or impair the development of the Property. 4.1.8 No Untrue Statements or Omissions of Fact. Neither this Agreement, nor any of the exhibits hereto, nor any document, certificate, or statement referred to herein or furnished to Brayer in connection with the transaction contemplated herein (whether delivered prior to, simultaneously with, or subsequent to the execution of this Agreement) contains any untrue statement of material fact or, omits to state a material fact in any way concerning the Property, or otherwise affecting or concerning the transaction contemplated hereby. Each of the representations and warranties made by Seller in this Agreement, or in any exhibit, or on any document or instrument delivered pursuant hereto shall be continuing representations and warranties which shall be true and correct in all material respects on the date hereof, and shall be deemed to be made again as of the Close of Escrow and shall then be true and correct in all material respects. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Seller contained in this Agreement, are conditions precedent to the Close of Escrow. Seller shall immediately notify Buyer of any fact or circumstance which becomes known to Seller which would make any of the foregoing representations or warranties untrue. 4.2. Buyer's Representations and Warranties. Buyer represents and warrants to Seller as follows, all of which shall survive the Close of Escrow: PSA -Watkins Parcel Page 12 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions 4.2.1 Buyer's Authority. Buyer has the capacity and full power and authority to enter into and carry out the agreements contained in, and the transactions contemplated by, this Agreement, and that this Agreement has been duly authorized and executed by Buyer and, upon delivery to and execution by Seller, shall be a valid and binding Agreement of Buyer. 4.2.2 No Untrue Statements or Omissions of Pact. Neither this Agreement, nor any of the exhibits hereto, nor any document, certificate, or statement referred to herein or furnished to Seller in connection with the transaction contemplated herein (whether delivered prior to, simultaneously with, or subsequent to the execution of this Agreement) contains any untrue statement of material fact or, omits to state a material fact in any way concerning the Property, or otherwise affecting or concerning the transaction contemplated hereby. Each of the representations and warranties made by Buyer in this Agreement, or in any exhibit or on any document or instrument delivered pursuant hereto, shall be continuing representations and warranties which shall be true and correct in all material respects on the date hereof, and shall be deemed. to be made again as of the Close of Escrow, and shall then be true and correct in all material respects. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Buyer contained in this Agreement, are conditions precedent to the Close of Escrow. Buyer shall notify Seller immediately of any facts or circumstances which are contrary to the foregoing representations and warranties contained in this Section 4.2. 4.3. Mutual Indemnity. Seller and Buyer shall defend, indemnify and hold free and harmless the other from and against any losses, damages, costs and expenses (including attorneys' fees) resulting from any inaccuracy in or breach of any representation or warranty of the indemnifying party or any breach or default by such indemnifying party under any of such indemnifying party's covenants or agreements contained in this Agreement. 5. CONDEMNATION. If prior to the Close of Escrow the Property or any portion thereof is taken by any entity by condemnation or with the power of eminent domain, or if the access thereto is reduced or restricted thereby (or is the subject of a pending taking which has not yet been consummated), Seller shall immediately notify Buyer of such fact. In such event, Buyer shall have the right, in Buyer's sole discretion, to (a) terminate this Agreement and the Escrow upon written notice to Seller and Escrow Holder not later than seven (7) days after receipt of Seller's notice thereof in which case the provisions of Section.2.6.1 shall apply, or (b) Buyer may proceed to consummate the transaction provided for herein at Buyer's sole election, in which event Seller shall assign and turn over, and Buyer shall be entitled to receive and keep, any and all awards made or to be made in connection with such condemnation or eminent domain, and the parties shall proceed to the Close of Escrow pursuant to the terms hereof, without any. reduction in the Purchase Price. 6. BROKERS. Seller and Buyer each represents and warrants to the other that they have not dealt with or been represented by any brokers or finders in PSA -Watkins Parcel Page 13 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions connection with the purchase and sale of the Property and that no commissions or finder's fees are payable in connection with this transaction. Buyer and Seller each agree to indemnify and hold harmless the other against any lass, liability, damage, cost, claim or expense (including reasonable attorneys' fees) incurred by reason of breach of the foregoing representation by the indemnifying party. Notwithstanding anything to the contrary contained herein, the representations, warranties; indemnities and agreements contained in this Section 6 shall survive the Close of Escrow or earlier termination of this Agreement. IRI 92 _ l JIMOM S] -11L 4 7.1. Counterparts: Facsimile Signatures, This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument and any executed counterpart may be deliveredby facsimile transmission with the same effect as if an originally executed counterpart had been delivered. 7.2, Further Assurances. Each of the parties agrees to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be appropriate or necessary to effectuate the agreements of the parties, whether the same occurs before or after the Close of Escrow. 7,3, Entire Agreement, This Agreement, together with all exhibits hereto and documents referred to herein, if any, constitute the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior understandings or agreements. This Agreement may be modified only by a writing signed by both parties. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement whether or not actually attached. 7.4. Headinqs. Headings used in this Agreement are for convenience of reference only and are not intended to govern, limit, or aide in the construction of any term or provision hereof. 7.5. Choice of Law. This Agreement and each and every related document are to be governed by, and construed in accordance with, the laws of the State of California. 7.6. Severability: If any term, covenant, condition or provision of this" Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction or rendered by the adoption of a statute by the State of California or the United States invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby; provided that the invalidity or unenforceability of such provision does not materially adversely affect the benefits accruing to, or the obligations imposed upon, any party hereunder, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. PSA -Watkins Parcel Page 14 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions 7.7. Waiver of Covenants Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise, or of the time for performing any act, under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise, or of the time for performing any other act required, under this Agreement, The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude any other remedies unless they are expressly excluded. 7.8. Legal Advice. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to the fair meaning and not for or against any party based upon any attribution of such party as the sole source of the language in question. 7.9. Relationship of Parties. The parties agree that their relationship is that of seller and buyer, and that nothing contained herein shall constitute either party, the agent or legal representative of the other for any purpose whatsoever, nor shall this Agreement be deemed to create any farm of business organization between the parties hereto, nor is either party granted the right or authority to assume or create any obligation or responsibility on behalf of the other party, nor shall either party be in any way liable for any debt of the other. 7.10. Attorneys' Fees. In the event that any party hereto institutes an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, for an alleged breach or default of, or any other action arising out of, this Agreement, or the transactions contemplated hereby, or in the event any party is in default of its obligations pursuant thereto, whether or not suit is filed or prosecuted to final judgment, the non -defaulting party or prevailing party shall be entitled to its actual attorneys' fees and to any court costs incurred, in addition to any other damages or relief awarded. 7.11. Assignment. Neither Seller nor Buyer shall assign its rights or delegate its obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties to this Agreement. 7.12. Notices. No notice, request, demand, instruction, or other document to be given hereunder to any Party shall be effective for any purpose unless personally delivered to the person at the appropriate address set forth below (in which event such notice shall be deemed effective only upon such delivery), delivered by air courier next - day delivery (e.g. Federal Express), delivered by mail, sent by registered or certified mail, return receipt requested, or sent via telecopier, as follows: PSA -Watkins Parcel Page 15 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions If to Buyer, to: Attn: Douglas D. Dumhart Agency Administrator San Juan Capistrano Community Redevelopment Agency 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Facsimile No.: (949) 493-1053 Telephone No.: (949) 443-6316 With a copy to: Attn: Omar Sandoval, Esq. City Attorney c/o Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Facsimile No.: (714) 835-7787 Telephone No.: (714) 558-7000 If to Seller, to: Attn: Mark M. Watkins Post Office Box 4013 Laguna Beach, CA 92652 Facsimile No.: Telephone No.: With a copy to: Attn: Lynn Jahnke, EA Larsen & Risley 3200 Park Center Drive, Suite 720 Costa Mesa, CA 92626-7149 Facsimile No.: 714-540-1020 Telephone No.: 714-540-1770 If to Escrow Holder, to: Attn: Jeanne Gould, Senior Escrow Officer First American Title Company 5 First American Way Santa Ana, CA 92707 Facsimile No.: (714) 913-6372 Telephone No.: (714) 250-5381 Notices delivered by air courier shall be deemed to have been given the next business day after deposit with the courier and notices mailed shall be deemed to have been given on the second day following deposit of same in any United States Post Office mailbox in the state to which the notice is addressed or on the third day following deposit in any such post office box other than in the state to which the notice is addressed, postage prepaid, addressed as set forth above. Notices sent via telecopy shall be deemed delivered the same business day transmitted. The addresses, addressees, and telecopy numbers for the purpose of this Paragraph, may be changed by giving written notice of such change in the manner herein provided for giving notice. Unless and until such written notice of change is received, the last address, addressee, PSA -Watkins Parcel Page 16 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions and telecopy number stated by written notice, or provided herein if no such written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder. Delivery of a copy of a notice as set forth above is as an accommodation only and is not required to effectuate notice hereunder. 7.13. Survivability. All covenants of Buyer or Seller which are intended hereunder to be performed in whole or in part after Close of Escrow and all representations, warranties, and indemnities by either Party to the other, shall survive Close of Escrow and delivery of the Deed, and be binding upon and inure to the benefit of the respective Parties. 7.14. Release. The total compensation to be paid by Buyer for the Property is the. Purchase Price, which consideration covers all land and improvements, attached or detached furniture, fixtures and equipment, loss of business goodwill, and relocation assistance, and is the full and complete acquisition cost of the Property. Buyer shall have no obligation to Seller under the California Relocation Assistance and Real Property Acquisition statutes and guidelines. Except for any breach of terms or conditions contained in this Agreement, Seller waives and forever releases Buyer, including its successors, officers, employees, attorneys, agents, representatives and anyone else acting on Buyer's behalf, of and from any and all claims, demands, actions or causes of action, obligations, liabilities, or claims for further compensation, known or unknown, based upon or relating to the facts or allegations and circumstances arising from Buyer's acquisition of the Property. By such release, Seller expressly waives its rights, if any, under California Civil Code Section 1542 which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HIS SETTLEMENT WITH THE DEBTOR." IN Seller's Initials 7.15 Agency _Board of Directors Approval of Agreement. This Agreement is subject to the approval of the Agency's Board of Directors. If this Agreement remains unapproved by the Agency's Board then the Parties will have no further obligation under this Agreement. [SIGNATURE PAGE FOLLOWS] PSA -Watkins Parcel Page 17 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. BUYER SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic. SELLER Approved as to form by: WOODRUFF, SPRADLIN & SMART Omar Sandoval, Esq. City Attorney Exhibit List '��4 ly. lame: Mark M. Watkins Exhibit A -- Legal Description of the Property Exhibit A-1 -- Legal Description of the Exchange Property Exhibit B -- Form of Grant Deed Exhibit C -- Form of Certificate of Acceptance Exhibit D -- Affidavit of Non -foreign Taxpayer Status Exhibit E -- Form of Blanket Assignment and Bill of Sale Exhibit F -- Definition of Hazardous Substances PSA -Watkins Parcel Page 18 of 19 Agreement for Purchase and Sale of Real Properly and Escrow Instructions First American Title Company hereby acknowledges that it has received a fully executed counterpart of the foregoing Agreement for Purchase and Sale of Real Property and Escrow Instructions and agrees to act as Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Holder. By agreeing to act as Escrow Holder hereunder, Escrow Holder expressly agrees to undertake and be responsible . for all withholding obligations imposed pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended and the regulations thereunder and California Revenue and Taxation Code §18662 and shall defend, indemnify and held Buyer harmless in connection with such obligations. Escrow Holder acknowledges and agrees to administer the concurrent escrows and closings as that contingency condition is set forth in Section 2.3.1(g) of the Agreement. Date: FIRST AMERICAN TITLE COMPANY By: Name: Its: PSA -Watkins Parcel Page 19 of 19 EXHIBIT A LEGAL DESCRIPTION Real property in the City of San Juan Capistrano, County of Orange, State of California, described as follows: THAT PORTION OF THE NORTHERLY 59-1/2 ACRES OF THAT PART OF THE PRYOR HOMESTEAD TRACT IN RANCHO BOCA DE LA PLAYA, AS SHOWN ON A MAP RECORDED JUNE 29, 1887 IN BOOK 4, PAGES 118 AND 119 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, WHICH WAS ALLOTTED TO ROSA A. DE PRYOR BY FINAL DECREE OF PARTITION RENDERED IN CASE NO. 1210 IN THE SUPERIOR COURT OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWESTERLY CORNER OF SAID 59-1/2 ACRE TRACT ABOVE MENTIONED; THENCE, ALONG THE WESTERLY LINE OF THE LAND SO ALLOTTED TO ROSA A. DE PRYOR, NORTH 17- 57' 30" EAST 300 FEET; THENCE EAST 20 FEET; THENCE NORTH 170 57' 30" EAST 922.08 FEET TO A POINT WHICH IS NORTH 890 45', 20 FEET FROM THE NORTHWESTERLY CORNER OF THE LAND SO ALLOTTED TO ROSA A. DE PRYOR; THENCE NORTH 8911 45' EAST 1560.50 FEET, MORE OR LESS, TO A POINT IN THE WESTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS SAID RIGHT OF WAY IS SHOWN ON A MAP FILED IN BOOK 2, PAGE 33 OF RECORD OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA; THENCE, ALONG THE WESTERLY LINE OF THE RIGHT OF WAY OF SAID RAILWAY COMPANY, SOUTH 320 33' WEST 1608.75 FEET, MORE OR LESS; TO THE INTERSECTION OF THE WESTERLY LINE OF THE RIGHT OF WAY OF SAID RAILWAY COMPANY WITH THE SOUTHERLY LINE OF THE NORTHERLY 59-1/2 ACRES OF THAT TRACT ALLOTTED TO ROSA A. DE PRYOR MENTIONED ABOVE; THENCE, ALONG THE SOUTHERLY LINE OF SAID 59-1/2 ACRE TRACT, NORTH 80° 18' WEST 1107.5 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THE PORTION THEREOF LYING EAST OF THE WEST LINE OF THE LAND CONVEYED TO ORANGE COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED JANUARY 3, 1963 IN BOOK 6380, PAGE 192 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, APN: 668-211-20 PSA -Watkins Parcel EXHIBIT A-1 LEGAL DESCRIPTION OF EXCHANGE PROPERTY Real property in the City of Dana Point, County of Orange, State of California, described as follows: THAT PORTION OF THE PRYOR HOMESTEAD TRACT, IN THE RANCHO BOCA DE LA PLAYA, AS PER MAP OF PARTITION OF SAID TRACT IN THE DECREE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF ORANGE, IN CASE NO. 1210, AS DESCRIBED IN A DEED RECORDED JANUARY 10, 1958 IN BOOK 4161 PAGE 281 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, THAT LIES EASTERLY OF A LINE WHICH IS PARALLEL AND CONCENTRIC WITH AND WESTERLY 145.00 FEET FROM THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE CENTERLINE INTERSECTION OF DEL OBISPO STREET (FORMERLY MC KINLEY AVENUE) AND THE CALIFORNIA STATE HIGHWAY AS SAID INTERSECTION IS SHOWN ON A MAP OF TRACT NO. 932 RECORDED IN BOOK 29 PAGES 18 AND 19 OF. MISCELLANEOUS MAPS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE SOUTH 711 12' 02" EAST, 1480.07 FEET ALONG THE CENTERLINE OF SAID HIGHWAY TO THE TRUE POINT OF BEGINNING; THENCE NORTH 100 56' 12" EAST, 1357.95 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 2000.00 FEET; THENCE .NORTHEASTERLY 324.41 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 9° 17' 37"; THENCE TANGENT TO SAID CURVE NORTH 200 13' 49" EAST, 1972.95 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 4000.00 FEET; THENCE NORTHEASTERLY 601.01 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 81 36' 3231; THENCE TANGENT TO SAID CURVE NORTH 111, 37' 17" EAST, 2223.48 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 2000.00 FEET; THENCE NORTHEASTERLY 267,70 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 70 40' 09" TO A POINT ON THE NORTH LINE OF THE RANCHO BOCA DEL LA PLAYA DISTANT THEREON NORTH 89° 26' 26" WEST, 330.59 FEET FROM THE INTERSECTION OF SAID NORTH LINE WITH THE EAST LINE OF FRACTIONAL SECTION 14, TOWNSHIP 8 SOUTH, RANGE 8 WEST, SAN BERNARDINO MERIDIAN AS SAID INTERSECTION IS SHOWN ON A MAP FILED IN BOOK 2 PAGE 38 OF RECORD OF SURVEYS, IN THE OFFICE OF SAID COUNTY RECORDER (A RADIAL THROUGH SAID POINT BEARS NORTH 700 42'34" WEST). EXCEPT THEREFROM, AN UNDIVIDED 1/3 INTEREST IN AND TO ALL MINERALS, MINERAL DEPOSITS, MINERAL OILS AND NATURAL GASES OF EVERY KIND AND NATURE CONTAINED IN OR UPON SAID LAND, AS RESERVED BY JOHN F. POZAR AND MARTHA E. POZAR, RECORDED JANUARY 10, 1958 IN BOOK 4161, PAGE 281 OF OFFICIAL RECORDS, ALSO EXCEPT THEREFROM, AN UNDIVIDED 1/6 INTEREST IN ALL MINERALS GAS, OIL, PETROLEUM, NAPTHA AND OTHER HYDROCARBON SUBSTANCES BELOW THE DEPTH OF 500 FEET FROM THE SURFACE OF THE ABOVE DESCRIBED PROPERTY, SUBJECT TO THE EXPRESS LIMITATION THAT THE FOREGOING RESERVATION SHALL IN NO WAY BE INTERPRETED TO INCLUDE ANY RIGHT OF ENTRY IN AND UPON THE SURFACE OF THE ABOVE-DESCRIBED PROPERTY, OR THE FIRST 500 FEET OF THE SUBSURFACE THEREOF, AS RESERVED IN THE DEED FROM JOHN F. POZAR AND MARTHA E. POZAR, HUSBAND AND WIFE, RECORDED DECEMBER 12, 1962 IN BOOK 6357 PAGE 140, OFFICIAL RECORDS, APN: 121-34036 PSA -Watkins Parcel EXHIBIT B FORM OF GRANT DEED RECORDING REQUESTED BY First American Title Insurance Company WHEN RECORDED RETURN TO: Atte: Douglas D. Dumhart, Agency Administrator San Juan Capistrano Community Redevelopment Agency CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92675 APN: 668-211-20 SPACE ABOVE. THIS LINE FOR RECORDER'S USE Exempt from recording changes under Government Code § 6103 GRANT DEED Per Tax pursuant to Revenue THE UNDERSIGNED GRANTOR(S) DECLARE(S)' FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, MARK M. WATKINS, a single man, hereby GRANT(S) to: SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic the real property in Orange County, California, more particularly set forth on Exhibit A attached hereto and incorporated herein by this reference. TOGETHER with - 1 . ith:1. All tenements, hereditaments and appurtenances, including easements and water rights, if any, thereto belonging or appertaining, and any reversions, remainders, rents, issues or profits thereof; and 2. All rights, title, and interests of Grantor in and under all covenants, conditions, restrictions, reservations, easements, and other matters of record, including, without limitation, all rights as "Declarant" under any Declarations of Covenants, Conditions and Restrictions ("Declarations") of record. PSA -Watkins Parcel SAID GRANT BEING FURTHER SUBJECT TO: 1. General and special real property taxes for the current fiscal year and all later years. 2. All assessments imposed by a duly empowered governmental entity, whether or not of record. 3. Any and all declarations, covenants, conditions, restrictions, easements, reservations (including, but not limited to, reservations and exceptions to the mineral estate), rights, and, rights of way of record. Date: PSA -Watkins Parcel By: Name: Mark M. Watkins ACKNOWLEDGEMENT STATE OF CALIFORNIA ) )ss' COUNTY OF ) On , before me, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature My Commission Expires: PSA -Watkins Parcel This area for official notarial seal Exhibit "A" to the Grant Deed LEGAL DESCRIPTION OF THE PROPERTY Real property in the City of San Juan Capistrano, County of Orange, State of California, described as follows: THAT PORTION OF THE NORTHERLY 59-1/2 ACRES OF THAT PART OF THE PRYOR HOMESTEAD TRACT IN RANCHO BOCA DE LA PLAYA, AS SHOWN ON A MAP RECORDED JUNE 29, 1887 IN BOOK 4, PAGES 118 AND 119 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, WHICH WAS ALLOTTED TO ROSA A: DE PRYOR BY FINAL DECREE OF PARTITION RENDERED IN CASE NO. 1210 IN THE SUPERIOR COURT OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWESTERLY CORNER OF SAID 59-1/2 ACRE TRACT ABOVE MENTIONED; THENCE, ALONG THE WESTERLY LINE OF THE LAND SO ALLOTTED TO ROSA A. DE PRYOR, NORTH 17- 57' 30" EAST 300 FEET; THENCE EAST 20 FEET; THENCE NORTH 170 57' 30" EAST 922.08 FEET TO A POINT WHICH IS NORTH 89° 45', 20 FEET FROM THE NORTHWESTERLY CORNER OF THE LAND SO ALLOTTED TO ROSA A. DE PRYOR; THENCE NORTH 891 45' EAST 1560.50 FEET, MORE OR LESS, TO A POINT IN THE WESTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS SAID RIGHT OF WAY IS SHOW ON A MAP FILED IN BOOK 2, PAGE 33 OF RECORD OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA; THENCE, ALONG THE WESTERLY LINE OF THE RIGHT OF WAY OF SAID RAILWAY COMPANY, SOUTH 320 33' WEST 1608.75 FEET, MORE OR LESS, TO THE INTERSECTION OF THE WESTERLY LINE OF THE RIGHT OF WAY OF SAID RAILWAY COMPANY WITH THE SOUTHERLY LINE OF THE NORTHERLY 59-1/2 ACRES OF THAT TRACT ALLOTTED TO ROSA A. DE PRYOR MENTIONED ABOVE; THENCE, ALONG THE SOUTHERLY LINE. OF SAID 59-1/2 ACRE TRACT, NORTH 800 18' WEST 1107.5 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THE PORTION THEREOF LYING EAST OF THE WEST .LINE OF THE LAND CONVEYED TO ORANGE COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED JANUARY 3, 1963 IN BOOK 6380, PAGE 192 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY. APN: 668-211-20 PSA -Watkins Parcel EXHIBIT C CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by grant deed from Mark M. Watkins, dated 2008, to the San Juan Capistrano Community Redevelopment Agency, a public body, corporate and politic, is hereby accepted by the undersigned officer or agent on behalf of the San Juan Capistrano Community Redevelopment Agency, pursuant to authority conferred by Resolution of the Board of the San Juan Capistrano Community Redevelopment Agency, and the Grantee consents to recordation thereof by its duly authorized officer. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: Name: Dave Adams Title: Executive Director DATED: k � — )—'" 0 � , 2008 PSA -Watkins Parcel PUBLIC AGENCY FORINT OF ACKNOWLEDGEMENT State of California } County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 1181) On November 25, 2009, before me, Maria Morris, Deputy City. Clerk, personally appeared Dave Adams, CityManager, who proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to ane that he/she/they executed the sane in his/her/their authorized capacity, and that by his/her/there signature on the instrument the person(s), or the entity upon behalf ofwhich the person(s) acted, executed the ihstrument . I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) Capacity Claimed by Signers Officer title City Manager Signers are Representing City of San Juan Capistrano OPTIONAL Description of Attached :Document Title or Type of Document Certificate of Acceptance — Exhibit C Date of Document: November 25, 2008 DO NOT RECORD, DO NOT SEND TO IRS. t CERTIFICATION OF NON -FOREIGN STATUS BY TRANSFEROR TRANSFEREE (BUYER) MUST RETAIN FOR SIX YEARS AFTER THE TRANSACTION. 1. Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of a U. S. real property interest must withhold tax if the transferor (seller) is a foreign person. 2. In order to inform each transferee that withholding of tax is not required upon disposition of a U. S. real property interest by (hereinafter referred to as "the Transferor"), the undersigned hereby certifies, and declares by means of this certification, the following on behalf of the Transferor: A. The one• item marked below is true and correct: (1) The Transferor is not a foreign individual, foreign corporation, foreign partnership, foreign trust, or foreign estate (as these terms are defined in the Internal Revenue Code and Income Tax Regulations). (II) The Transferor is a corporation incorporated under the laws of a foreign jurisdiction but has elected to be treated as a U. S. corporation under Section 897(i) of the Internal Revenue Code, AND HAS ATTACHED TO THIS CERTIFICATE A TRUE AND GENUINE COPY OF THE ACKNOWLEDGMENT OF SUCH ELECTION ISSUED BY THE IRS. B. The Transferor's social security number is C. The Transferor's address is 3. The Transferor understands that this certificate may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained in this certification may be punished by fine or imprisonment (or both). 4. The Transferor understands that each transferee is relying on this certificate in determining whether withholding is required and each transferee may face liabilities if any statement in this certificate is false. PSA -Watkins Parcel 5. The Transferor hereby indemnifies each transferee, and agrees to defend and hold each transferee harmless, from any liability, cost, damage, or expense which such transferee may incur as a result of: A. the Transferor's failure to pay any U. S. Federal income tax which the Transferor is required to pay under applicable U. S. law, or B. any false or misleading statement contained herein, Under penalties of perjury, l declare that ] have examined this certification and to the best of my Knowledge and belief it is true, correct, and complete; I further declare that I have authority to sign this document on behalf of the Transferor. EXECUTED in County, State of on Transferor: By: Title: PSA -Watkins Parol EXHIBIT E BLANKET ASSIGNMENT AND BILL OF SALE MARK M. WATKINS, an individual ("Seller"), and SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic ("Buyer"), have previously entered into that certain Agreement for Purchase and Sale of Real Property and Escrow Instructions dated as of , 2008 (the "Purchase Agreement"), pursuant to which Seller agreed to sell, and Buyer agreed to purchase, that certain property located in the City of San Juan Capistrano, County of Orange, California and described in more detail on Exhibit A attached hereto and made a part hereof and the improvements located thereon and the rights, privileges and entitlements incident thereto (the "Property„) For good and valuable consideration, receipt of which is hereby acknowledged, Seller does hereby, give, grant, bargain, sell, transfer, assign, convey and deliver to Buyer, all of Seller's right, title and interest in all assets, rights, materials and/or claims used, owned or held in connection with the use, management, development or enjoyment of the Property, including, without limitation: (i) all entitlements, subdivision agreements and other agreements relating to the development of Property; (ii) all plans, specifications, maps, drawings and other renderings relating to the Property; (iii) all contract rights, indemnities, warranties, claims and any similar rights relating to and benefiting the Property or the assets transferred hereby; (iv) all intangible rights, goodwill and similar rights benefiting the Property; (v) all development rights benefiting the Property; (vi) all rights, claims or awards benefiting the Property; and (vii) all rights to receive a reimbursement, credit or refund from the applicable agency or entity of any deposits or fees paid in connection with the development of the Property. Seller hereby covenants that it will, at any time and from time to time upon written request therefor, execute and deliver to Buyer, its nominees, successors and/or assigns, any new or confirmatory instruments and do and perform any other acts which Buyer, its nominees, successors and/or assigns, may request in order to fully transfer possession and control of, and protect the rights of Buyer, its nominees, successors and/or assigns in, all the assets of Seller intended to be transferred and assigned hereby. SELLER By. 9' Name: Mark. M. Watkins PSA -Watkins Parcel Exhibit "A" to Blanket Assignment and Bill of Sale LEGAL. DESCRIPTION OF THE PROPERTY Real property in the City of San Juan Capistrano, County of Orange, State of California, described as follows: THAT PORTION OF THE NORTHERLY 59-1/2 ACRES OF THAT PART OF THE PRYOR HOMESTEAD TRACT IN RANCHO BOCA DE LA PLAYA, AS SHOWN ON A MAP RECORDED JUNE 29, 1887 IN BOOK 4, PAGES 118 AND 119 OF PATENTS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, WHICH WAS ALLOTTED TO ROSA A. DE PRYOR BY FINAL DECREE OF PARTITION RENDERED IN CASE NO. 1210 IN THE SUPERIOR COURT OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWESTERLY CORNER OF SAID 59-1/2 ACRE TRACT ABOVE MENTIONED; THENCE, ALONG THE WESTERLY LINE OF THE LAND SO ALLOTTED TO ROSA A. DE PRYOR, NORTH 17- 57' 30" EAST 300 FEET; THENCE EAST 20 FEET; THENCE NORTH 171 57' 30" EAST 922.08 FEET TO A POINT WHICH IS NORTH 890 45', 20 FEET FROM THE NORTHWESTERLY CORNER OF THE LAND SO ALLOTTED TO ROSA A. DE PRYOR; THENCE NORTH 890 45' EAST 1560.50 FEET, MORE OR LESS, TO A POINT IN THE WESTERLY LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS SAID RIGHT OF WAY IS SHOWN ON A. MAP FILED IN BOOK 2, PAGE 33 OF RECORD OF SURVEYS IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA; THENCE, ALONG THE WESTERLY LINE OF THE RIGHT OF WAY OF SAID RAILWAY COMPANY, SOUTH 320 33' WEST 1608.75 FEET, MORE OR LESS, TO THE INTERSECTION OF THE WESTERLY LINE OF THE RIGHT OF WAY OF SAID RAILWAY COMPANY WITH THE SOUTHERLY LINE OF THE NORTHERLY 59-1/2 ACRES OF THAT TRACT ALLOTTED TO ROSA A. DE PRYOR MENTIONED ABOVE; THENCE, ALONG THE SOUTHERLY LINE OF SAID 59.1/2 ACRE TRACT, NORTH 80° 18' WEST 1107.5 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THE PORTION THEREOF LYING EAST OF THE WEST LINE OF THE LAND CONVEYED TO ORANGE COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED JANUARY 3, 1963 IN BOOK 6380, PAGE 192 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY. APN: 668-211-20 PSA -Watkins Parcel EXHIBIT F HAZARDOUS SUBSTANCE DEFINITION The term "Hazardous Substance" as used in this Agreement shall mean any toxic or hazardous substance, material or waste or any pollutant or contaminant or infectious or radioactive material, including but not limited to those substances, materials or wastes regulated now or in the future under any of the statutes or regulations listed below and any and all of those substances included within the definitions of "hazardous substances", "hazardous materials", "hazardous waste", "hazardous chemical substance or mixture", "imminently hazardous chemical substance or mixture" "toxic substances" "hazardous air pollutant" "toxic pollutant" or "solid waste" in the statues or regulations listed below. Hazardous Substances shall also mean any and all other similar terms defined in other federal state and local laws, statutes, regulations, orders or rules and materials and wastes which are, or in the future become, regulated under applicable local, state or federal law for the protection of health or the environment or which are classified as hazardous or toxic substances, materials or waste, pollutants or contaminants, as defined, listed or regulated by any federal, state or local law, regulation or order or by common law decision, including, without limitation, (i) trichloroethylene, tetrachloroethylene, perch loroethylene and other chlorinated solvents, (ii) any petroleum products or fractions thereof, (iii) asbestos, (iv) polychlorinated biphenyls, (v) flammable explosives, (vi) urea formaldehyde, and (vii) radioactive materials and waste. In addition, a Hazardous Substance shall include: (1) a "Hazardous Substance" "Hazardous Material" "Hazardous Waste", or "Toxic Substance" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801, et sec..., or the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq.; (2) "Oil" or a. "Hazardous Substance" listed or identified pursuant to § 311 of the Federal Water Pollution Control Act, 33 U.S.C. § 1321, as well as any other hydrocarbonic substance or by-product; (3) listed by the State of California as a chemical known by the State to cause cancer or reproductive toxicity; (4) a material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures, damages or threatens to damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or public agency requires in order for the property to be put to any lawful purpose; PSA -Watkins Parcel (5) any material the presence of which would require remediation, whether or not the presence of such material resulted from a. leaking underground fuel tank, (6) pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seg.; (7) asbestos, PCBs, and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et (8) any radioactive material including, without limitation, any "source material" "special nuclear material" "by-product material" "low-level wastes" "high- level radioactive waste", "spent nuclear fuel" or "transuranic waste", and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.; or the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101 et sec.. (9) industrial process and pollution control wastes, whether or not "hazardous" within the meaning of the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et All other laws, ordinances, codes, statutes, regulations, administrative rules, policies and orders, promulgated pursuant to said foregoing statutes and regulations or any amendments or replacement thereof, provided such amendments or replacements shall in no way limit the original scope and/or definition of Hazardous Substance defined herein. PSA -Watkins Parcel CRA 11/18/2008 AGENDA REPORT TO: Dave Adams, Executive Director FROM: Douglas D. Dumhart, Economic Development Manager SUBJECT: Consideration of Agreement for Purchase and Sale of Real Property and Escrow Instructions (APN 668-211-20)(Mark Watkins) RECOMMENDATION: By motion, approve the agreement for purchase and sale of real property and escrow instructions for Assessor's Parcel No. 668-211-20 and authorize the Executive Director to execute the agreement. SUMMARY: The San Juan Capistrano Community Redevelopment Agency ("Agency") owns approximately 15.03 acres of vacant unimproved land which is commonly been referred to as the Lower Rosan Ranch. Parcels numbered 121-253-13, 121-253-15, 121-240- 39, and 121-240-73 lie north of Stonehill Drive, south of the Capistrano Valley Mobile Estates (CVME), between the OCTA railroad tracks and Orange County flood control channel. Past development proposals have been constrained by an irregularly shaped triangular parcel located approximately in the center of the Agency's 15 acres. This parcel belongs to the Orange County Flood Control District ("OCFCD") and lies within the City of Dana Point. The Agency has inquired about assembling this parcel with its holdings in the past. Discussions with OCFCD staff have been cooperative in trying to find a mutually acceptable solution. OCFCD has indicated a desire to keep their property in the event they need the land to fight floods but were amenable for exchanging land to help the Agency facilitate good land planning. Mark Watkins is the owner of certain unimproved real property comprised of approximately 1.34 acres, located along the west side of San Juan Creek Channel at the westerly terminus of Calle Jardin, designated by Assessor's Parcel No. 668-211-20. A location map has been provided as Attachment 1 to this report. Mr. Watkins has expressed interest in selling his land to the City or Agency. The Agency believes Mr. Watkins' parcel to be suitable real property to exchange land with OCFCD. The county has tentatively agreed to the concept of a land exchange for Mr. Watkins' parcel. Staff has prepared a purchase and sale agreement for the Watkins' property contingent upon the concurrent exchange of properties by and between the Agency and OCFCD. Agenda Report Page 2 November 18, 2008 The agreement is provided as Attachment 2 to this report. A purchase and sale agreement for the exchange of parcels has been prepared and submitted to the County for their approval. The county is currently reviewing the preliminary title report and exceptions for the Watkins' parcel. When received, the agreement with the County will be agendized for board consideration. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: NIA FINANCIAL CONSIDERATIONS: The purchase price for the property is one hundred seventy-five thousand dollars and 001100 ($175,000) as established by Summary Appraisal Report prepared by Gary L. Vogt & Associates, dated November 13, 2007. The purchase price shall be payable as follows: (a) $8,750 as earnest money deposit, and (b) an additional $166,250 in cash at closing. Funds have been programmed in Fiscal Year 2008-2009 in account no. 26- 65300-4720-RO8. NOTIFICATION: Mark Watkins Lynn Jahnke, Larsen & Risley Catherine Lapid, OCFCD Josephine Alvarez, OCFCD RECOMMENDATION: By motion, approve the agreement for purchase and sale of real property and escrow instructions for Assessor's Parcel No. 668211-20 and authorize the Executive Director to execute the agreement. Attachment(s): 1. Location map 2. Purchase and Sale Agreement with Watkins ATTACHMENT1 AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS (the "Agreement") is made and entered into as of , 2008, by and between the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic.("Buyer") and MARK M. WATKINS ("Seller"), with reference to the following facts: RECITALS A. Seller is the owner of certain unimproved real property comprised of approximately 1.34 acres, located along the west side of San Juan Creek Channel at the westerly terminus of Calle Jardin, City of San Juan Capistrano (the "City") the County of Orange (the "County"), State of California, designated by Assessor's. Parcel No, 668-211-20, more particularly described on Exhibit A attached hereto (the "Property"), B. Buyer and Seller acknowledge and agree that the purchase and sale of the Property is contingent upon the concurrent exchange of properties by and between Buyer and the Orange County Flood Control District ("OCFCD") the terms of which are set forth hereinbelow. C. Subject to the OCFCD exchange, Seller desires to sell to Buyer and Buyer desires to purchase from Seller the Property, in accordance with the terms and conditions contained in this Agreement. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by Seller, Buyer and Seller hereby agree as follows: PURCHASE AND SALE, 1.1. Agreement !Q -Buy and Sell. Subject to the terms and conditions set forth herein, Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to acquire and purchase from Seller, the Property. As used herein the "Property" shall include the real property identified on Exhibit A and all of Seller's right; title and interest in and to any and all entitlements, tenements, hereditaments, easements, easement rights, rights to half -widths of all adjacent public streets and public rights of way, mineral rights, oil and gas rights, water, water rights, air. rights, development rights and privileges appurtenant thereto and all improvements located thereon. 1.2. Purchase Price. The purchase price ("Purchase Price") for the Property shall be One Hundred Seventy Five Thousand Dollars and 00/100 ($175,000) as PSA -Watkins Parcel ATTACHMENT 2 Agreement for Purchase and Sale of Real Property and Escrow instructions established by Summary Appraisal Report prepared by Gary L. Vogt & Associates, dated November 13, 2007. The Purchase Price shall be payable as follows: (a) $8,750 as earnest money deposit pursuant to Section 1.4, (b) an additional $166,250 in cash at closing. 1.3. Deposit. Within five (5) business days after the Opening of Escrow (defined below), Buyer shall deposit with Escrow Holder (defined below) by wire transfer. the sum of Eight Thousand Seven Hundred Fifty Dollars and 001100 ($8,750) (the "Deposit"), which Escrow Holder shall invest in an interest bearing account with interest accruing for the benefit of Buyer. If Buyer does not deliver to Seller and Escrow Holder the Feasibility Approval Notice and the. Title Approval Notice within the times required herein, then (i) Escrow Holder, with no further instructions from the parties hereto, shall return the First Deposit to Buyer, (ii) the Escrow shall be automatically terminated and of no force and effect, (iii) Buyer and Seller shall each pay one-half (1/2) of any Escrow termination fees, and (iv) except as otherwise provided herein the parties will have no further obligation or liability to one another. 2. ESCROW AND CLOSING. 2.1. Opening of Escrow. Within two (2) business days after execution of this Agreement by the last of Seller or Buyer, Buyer shall open an escrow (the "Escrow") with First American Title Company, at the address set forth in Section 7.12 ("Escrow Halder"), by depositing with Escrow Holder this Agreement fully executed, or executed counterparts hereof. The date this fully executed Agreement is signed and accepted by Escrow Halder on the last page hereof shall be deemed the "Opening of Escrow" and Escrow Holder shall advise Buyer and Seller of such date in writing. The escrow instructions shall incorporate this 'Agreement as part thereof and shall contain such other standard and usual provisions as may be required by Escrow Holder, provided, however, that no escrow instructions shall modify or amend any provision of this Agreement, unless expressly set forth in writing by mutual consent of Buyer and Seller. In the event there is a conflict between any such standard or usual provisions and the provisions of this Agreement, the provisions of this Agreement shall control. 2.2. Escrow Fees and Other Charges. At the Close of Escrow, (a) Seller shall pay; (i) the cost of the Title Policy (defined below), including a mechanics' lien endorsement and any endorsements thereto reasonably required by Buyer, (ii) one-half (1/2) of the Escrow Holder's fees, and (iii) documentary transfer or similar taxes; (b) Buyer shall pay: (i) one-half (1/2) of the Escrow Holder's fees, and (ii) all recording fees; and (c) all other costs related to the transaction shall be paid by the parties in the manner consistent with common practice in the County. 2.3. Closing Date; Conditions Precedent to Close of Escrow_. Provided all of the conditions precedent set forth in this Section 2.3 have been. satisfied (or are in a position to be satisfied concurrently with the Close of Escrow), the Close of Escrow shall occur on or before , 2008 (the "Closing Date"). As used in this Agreement, the "Close of Escrow" shall mean the date a Grant Deed, as provided in Section 2.4.2(x) hereof ("Grant Deed"), is recorded in the Official Records of the County. PSA -Watkins Parcel Page 2 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions 2.3.1 Conditions to BuVer's Obligations. The Close of Escrow and Buyer's obligation to purchase the Property, are subject to the satisfaction of the following conditions or Buyer's written waiver of such conditions on or before the Closing Date. Buyer may waive in writing any or all of such conditions in its sole and absolute discretion. (a) The Purchase Price shall have been determined in accordance with Section 1.2; (b) Seller shall have performed all obligations to be performed by Seller pursuant to this Agreement; (c) No event or circumstance shall have occurred which would make any of Seller's representations, warranties and covenants set forth herein untrue as of the Close of Escrow; (d) There shall have occurred no material adverse change in the physical condition of the Property (such as those caused by natural disasters) which would render the Property unsuitable for Buyer's intended use or which would materially increase the cost or cause a material delay in the schedule for the development of the Property; and (e) The Title Company shall be committed to issue to Buyer, as of the Closing Date, the Title Policy (defined below) covering the Property, subject only to the Permitted Exceptions; (f) Seller shalt cause the Property to be free and clear of all debris, weeds and guardrail structure no less than 10 days prior to the Close of Escrow. Buyer shall deposit written notice to Seller and Escrow Holder that the condition of the Property as relates to weeds, debris and the guardrail structure is acceptable to Buyer and that this condition is satisfied prior to closing; and (g) CONCURRENT AND CONTINGENT CLOSINGS. The parties hereto acknowledge and agree that Buyer's obligation to purchase the property and close escrow thereon is contingent upon the concurrent closing for the property set forth on Exhibit A-1 attached hereto and incorporated herein by way of a separate escrow held by Escrow Holder and pursuant to an Agreement for Exchange of Real Property by and between Buyer and Orange County Flood Control District ("OCFCD Exchange"). In the event that the OCFCD Exchange fails to close for any reason whatsoever regardless of fault concurrently with the subject Escrow, this Escrow and the Agreement shall be terminated and shall be of no further force and effect and Escrow Holder shall refund the Deposit to Buyer together with interest earned thereon less escrow fees and charges without further instruction. 23.2 Conditions to Seller's Obligations. The Close of Escrow and Seller's obligation to sell the Property are subject to the satisfaction of the following conditions or Seller's written waiver of such conditions on or before the Closing Date. Seller may waive in writing any or all of such conditions as a condition to the Close of Escrow in its sole and absolute discretion. PSA -Watkins Parcel Page 3 of 19 Agreement for Purchase and sale of Heal Property and Escrow Instructions (a) The Purchase Price shall have been determined in accordance with Section 1.4; (b) Buyer shall have performed all obligations to be performed by Buyer pursuant to this Agreement; and (c) No event or circumstance shall have occurred which would mare any of Buyer's representations, warranties and covenants set forth herein untrue as of the Close of Escrow. 2.3.3 Waiver of a Condition Does Not Excuse Performance. If any condition precedent to the Close of Escrow is expressly waived, in writing, as a condition to the Close of Escrow, by the party for whose benefit such condition exists, then, to the extent such condition is capable of being satisfied following the Close of Escrow, such condition shall become a condition subsequent to the Close of Escrow and shall be satisfied by the party whose performance is required to satisfy such condition as soon as reasonably possible following the Close of Escrow. 2.4. Closing Documents. The parties shall deposit the following with Escrow Holder prior to the Close of Escrow: 2.4.1 Buyer's Deposits. Buyer shall deposit: (a) The balance of the cash payment, less the Deposit and all interest accrued thereon (the "Purchase Price Balance"), together with Buyer's escrow and other cash charges, (b) A Certificate of Acceptance for the Grant Deed in the form of Exhibit C on Buyer letterhead; and (c) A letter to Seller indicating that the purchase is in lieu of condemnation. 2.4.2 Seller's „Deposits. Seller shall deposit: (a) The Grant Deed in the form of Exhibit B attached hereto, conveying fee title to the Property subject only to the Permitted Exceptions (defined below); (b) Subject to Section 2.5.1 below, an executed Affidavit of Non -foreign Status in the form of Exhibit D attached hereto and such other documentation necessary to exempt Seller from the withholding requirements of Section 1445 of the Internal Revenue Code of 1956, as amended, and the regulations thereunder; (c) Subject to Section 2.5.1 below, a Withholding Exemption Certificate Form 593 as contemplated by California Revenue and Taxation Code §18662 (the "Withholding Affidavit") duly executed by Seller; and PSA -Watkins Parcel Page 4 of 19 .Agreement for Purchase and Sale of Real Property and Escrow. Instructions (d) An Assignment and Bill of Sale of all of Seller's right, title and interest in and to any and all entitlements and plans pertaining to the Property, and any personal property comprising the Property, in the form attached hereto as Exhibit E (the ""Assignment"); 2.4.3 Deposits of Additional Instruments. Seller and Buyer shall each deposit such other instruments as are reasonably required by Escrow Holder or otherwise required to proceed to the Close of Escrow and consummate the sale of the Property in accordance with the terms of this Agreement. 2.5. Closing. 2.5.1 Withholding. In the event that, pursuant to Section 2.4.2(b) above, Seller fails to deposit with Escrow Holder the executed Affidavit of Non -foreign Taxpayer Status which exempts Seller from the withholding requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder, Seller hereby authorizes Escrow Holder to withhold ten percent (10%) of the Purchase Price of the Property less any applicable closing costs and to report and transmit the withheld amount to the Internal Revenue Service. Additionally, in the event that, pursuant to Section 2.4.2(c) above, Seiler fails to deposit with Escrow Holder any applicable tax document which exempts Buyer from California withholding requirements, if any, Seller hereby authorizes Escrow Holder to withhold such additional percentage of the Purchase Price of the Property as is required by California law, and Escrow Holder shall report and transmit the withheld amount in the manner required by California law. By agreeing to act as Escrow Holder hereunder, Escrow Holder expressly agrees to undertake and be responsible for all withholding obligations imposed pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, and the regulations thereunder and under any similar provisions of California law, and shall defend, indemnify and hold Buyer harmless in connection with such obligations. 2.5.2 Necessary Actions of Escrow Holder. On the Close of Escrow, Escrow Holder shall: (i) record the Grant Deed in the Office of the County Recorder of the County, (ii) pay any transfer taxes, (iii) instruct the County Recorder to return the Grant Deed to Buyer, (iv) distribute to Seller the Purchase Price (inclusive of the Deposit and accrued interest) less Seller's. escrow and cash charges and less any amounts required to be withheld by Escrow Holder, and (v) deliver to Buyer the Assignment, the Title Policy covering the Property subject only to the Permitted Exceptions, the Affidavit of Non -foreign Status and the applicable California withholding exemption form, if any. 2.5.3 Taxes and Assessments. Real property taxes and assessments shall be prorated as of the Close of Escrow on the basis of the most recent tax information and such proration shall be final. Said prorations shall be based on a three hundred sixty-five (365) day year. 2.5.4 Title and Possession. Upon the Close of Escrow, title to and exclusive possession of the Property shall be conveyed to Buyer, subject only to the Permitted Exceptions. PSA -Watkins Parcel Page 5 of 19 Agreement for Purchase and Sale of Reat Property and Escrow Instructions 2.6, Failure to Close: Termination. 2.6.1 Neither Party in Default. In the event that any condition set forth in Section 2.3 is not satisfied or waived, in writing, and the Close of Escrow does not occur within the time required herein due to the failure of such condition or the Close of Escrow does not occur within the time frame required herein for any reason other than Seller's or Buyer's breach of or default of its respective obligations hereunder, or if this Agreement is terminated without default by either party as otherwise set forth herein, then Escrow Holder, with no further instructions from the parties hereto, shall return to the depositor thereof any funds, including the Deposit (including accrued interest), or other materials previously delivered to Escrow Holder, the Escrow shall be automatically terminated and of no force and effect, Buyer and Seller shall each pay one-half (1f2) of any Escrow termination fees, and except as otherwise provided herein the parties will have no further obligation to one another. 2.6.2 Buyer's Default. In the event of Buyer's failure to purchase the Property due to a default or breach by Buyer of this Agreement after the Feasibility Period, where such default or breach is not cured by Buyer within five (5) business days of Buyer's receipt from Seller of written notice of such default or breach, the portion of the Deposit which has become non-refundable to Buyer at the time of such default in accordance with the terms of Section 1..2 (the "Liquidated Damages Amount") shall constitute liquidated damages as follows: BY PLACING THEIR INITIALS HERE, BUYER AND SELLER EACH AGREE THAT IN THE EVENT OF BUYER'S FAILURE TO PURCHASE THE PROPERTY ON ACCOUNT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, THE DAMAGES TO SELLER WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THEREFORE, IN THE EVENT OF BUYER'S FAILURE TO PURCHASE THE PROPERTY ON ACCOUNT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, WHICH DEFAULT OR BREACH IS NOT CURED WITHIN FIVE (5) BUSINESS DAYS AFTER WRITTEN NOTICE IS GIVEN BY SELLER TO BUYER, THE LIQUIDATED DAMAGES AMOUNT SHALL SERVE AS DAMAGES FOR SUCH BREACH OR DEFAULT BY BUYER, AS A REASONABLE ESTIMATE OF THE DAMAGES TO SELLER, INCLUDING COSTS OF NEGOTIATING AND DRAFTING THIS AGREEMENT, COSTS OF COOPERATING IN SATISFYING CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER, OPPORTUNITY COSTS IN KEEPING THE PROPERTY OUT OF THE MARKETPLACE, AND OTHER COSTS INCURRED IN CONNECTION HEREWITH. DELIVERY TO AND RETENTION BY SELLER OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER IN THE EVENT OF BUYER'S FAILURE TO PURCHASE THE PROPERTY ON ACCOUNT OF A MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, AND SELLER WAIVES ANY AND ALL RIGHT TO SEEK OTHER RIGHTS OR REMEDIES AGAINST BUYER, INCLUDING WITHOUT LIMITATION, SPECIFIC PERFORMANCE. THE PAYMENT AND RETENTION OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER. UPON BUYER'S FAILURE TO PURCHASE THE PROPERTY ON ACCOUNT OF A PSA -Watkins Parcel Page 6 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions MATERIAL DEFAULT OR BREACH HEREUNDER BY BUYER, THIS AGREEMENT SHALL BE TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER, EXCEPT FOR THE RIGHT OF SELLER TO RETAIN SUCH LIQUIDATED DAMAGES. 2.6.3 Seller's Default. In the event that the Close of Escrow does not occur within the time required herein due to a breach of this Agreement by Seller, (a) this Agreement shall not be terminated automatically, but only upon delivery to Escrow Holder and Seller of written notice of termination from Buyer, in which event (i) Escrow Holder shall automatically return all sums (including the Deposit) deposited by Buyer, and (ii) Buyer shall be entitled to recover whatever other damages it has sustained on account of Seller's default hereunder, or (b) Buyer shall be entitled to keep this Agreement in effect and pursue any and all other remedies available to it against Seller including the specific performance of this Agreement, and Buyer may record a notice of pendency of action against the Property. 2.6.4 Escrow Fees on Default. If the failure to close is due to the default of one of the parties, the defaulting party shall bear the sole and full, liability for paying any escrow cancellation fee. 2.6.5 Interest on Delinquent Amounts. If any party which owes the other party money hereunder does not pay or return such money to the other party within five (5) business days after written demand therefor, the unpaid amount shall thereafter accrue interest at the lesser of (a) twelve percent (12%) per annum or (b) the highest rate permitted by law, from the date such amount was due under the date it is paid in full. 3. ACTIONS PENDING CLOSING. 3.1. Investigation of the Property. 3.1.1 Delivery of Reports., Not later than the date five (5) days after the Opening of Escrow, Seller shall deliver or cause to be delivered to Buyer legible and complete copies of all studies, reports, agreements, documents, plans, permits and entitlements in Seller's or its agents' possession, or readily obtainable by Seller, pertinent to the Property and its improvement and development (the "Reports"), including, without limitation, studies, reports, correspondence, agreements, documents, affordable housing agreements and materials, plans, . maps, CC&Rs, budgets, correspondence or other materials, permits, and entitlements. The Reports include, without limitation, copies of any and all biological, archeological and environmental reports and materials, if any, relating to the Property that are in Seller's or Seller's agents' possession. 3.1.2 Feasibilit Period. With Seller's reasonable cooperation, Buyer shall have until 5:00 P.M. Pacific Time on the date which is. thirty (30) days after the date of the fully executed Agreement (the "Feasibility Period") to review the suitability of the Property for Buyer's use and development, including, without limitation, any governmental land regulations, zoning ordinances, all covenants, conditions and restrictions and other contracts, agreements or documents affecting the Property, the PSA -Watkins Parcel Page 7 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions status of the entitlements and permits or development condition of the Property, the physical condition of the Property, including soil and geological assessments and a Phase I environmental audit (the "Feasibility Matters"), and to approve or disapprove of the Feasibility Matters in Buyer's sole and absolute discretion, and to deliver to Seller and Escrow Holder the Feasibility Approval Notice or, alternatively, written notice of Buyer's disapproval. Failure by Buyer to timely give notice of its approval or disapproval of the Feasibility Matters shall be deemed disapproval thereof. If Buyer disapproves (or is deemed to have disapproved) of the Feasibility Matters as provided herein then this Agreement shall automatically terminate and the provisions of Section 2.6.1 shall apply, 3.2, Title Review, 3.2.1 Title Report. Within seven (7) business days after the Opening of Escrow, Seller shall cause First American Title Insurance Company (the "Title Company") to furnish Buyer with an updated Title Commitment on the Property together with legible copies of all documents referenced therein as exceptions to title and a plo.t plan for the Property showing all the locations of all easements referenced therein (collectively, the "Title Corr mitment"). 3.2.2 Title Notices. Buyer shall have fourteen (14) .business days after its actual receipt of the Title Commitment to deliver to Seller and Escrow Halder written notice (the "Preliminary Title Notice") of Buyer's approval, conditional approval or disapproval of the title matters disclosed in the Title Commitment. All matters not timely approved by Buyer will be deemed disapproved. All such exceptions disapproved by Buyer are referred to herein as "Disapproved Exceptions". (a) Seller shall have five (5) business days after receipt of Buyer's Preliminary Title Notice or Buyer's deemed disapproval of the Title Commitment to (i) commit to cause such Disapproved Exceptions to be released of record or commit to cause the Title Company to endorse over such Disapproved Exceptions pursuant to an endorsement or endorsements acceptable to Buyer in Buyer's sole and absolute discretion, as of or before the Close of Escrow, and to give Buyer and Escrow Holder written notice of those Disapproved Exceptions which have been or will be so released or endorsed over on or before the Close of Escrow, or (ii) elect not to remove or endorse over any Disapproved Exceptions, If Seller fails to deliver its response notice within said five (5) business day period, Seller shall be deemed to have elected to eliminate or endorse over all matters disapproved or conditionally approved by Buyer. Notwithstanding the foregoing, Seller shall be obligated to remove and eliminate as exceptions to title to the Property as of the Close of Escrow all monetary liens or encumbrances and all claims to fee title or leasehold or other interests in the Property, all of which constitute Disapproved Exceptions. (b) If Seller elects not to commit to remove, or cause the Title Company to endorse over a Disapproved Exception at the Close of Escrow (other than a monetary lien or encumbrance, or claim to fee title or leasehold or other interest in or to the Property, as to which Seller's obligation to remove or cause the Title Company to endorse over is absolute and a failure to do so is a breach of this Agreement), Buyer "shall have the option, to be exercised within five (5) days after PSA -Watkins Parcef Page 8 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions receipt of Seller's notice thereof, to (i) elect to terminate this Agreement, in which case the provisions of Section 2.6.1 shall apply, or (ii) waive its objection to the Disapproved Exceptions in question by delivering notice of such waiver to Seller and Escrow Holder, and proceed to the Close of Escrow. If Buyer fails to deliver the waiver notice described in clause (ii) of the preceding sentence, Buyer shall be deemed to have elected to terminate this Agreement. 3.2.3 Permitted Exceptions. "Permitted Exceptions" shall mean all exceptions appearing on the Title Commitment which are: (i) standard printed exceptions in the Title Policy issued by Title Company; (ii) general and special real property taxes and assessments, a lien not yet due and payable; and (iii) any other liens, easements, encumbrances, covenants, conditions and restrictions of record approved, or expressly waived if a Disapproved Exception, by Buyer pursuant to this Section 3.2. 3.2.4 Modred or Additional Exception . If any supplement to the Title Commitment is issued prior to the Close of Escrow which shows any new, additional or modified exceptions from the exceptions set forth in the Title Commitment (each a "New Exception") then: (a) if such New Exception was created or arose from acts or omissions of Seller or any third party, unless approved by Buyer, in writing, such New Exception shall constitute a Disapproved Exception, which must be removed from title by Seller at or before the Close of Escrow in a time and manner acceptable to Buyer, (b) if such New Exception was created or arose from acts or omissions of Buyer, then such New Exception shall constitute a Permitted Exception. , 3.2.5 Seller's Failure to Cure. If, despite Seller's best efforts to remove or to cause the Title Company to endorse over a Disapproved Exception which Seller has committed to cause to be removed or endorsed over, Seller is unable to do so, Buyer shall have the option, on or before the Close of Escrow to: (i) declare Seller in default hereunder and exercise Buyer's remedies pursuant to Section 2.6.3, or (ii) waive its objection to the Disapproved Exceptions in question by delivering notice of such waiver to Seller and Escrow Holder, and proceed to the Close of Escrow. If Buyer fails to deliver the waiver notice described in clause (ii) of the preceding sentence, Buyer shall be deemed to have elected to declare Seller in default hereunder. 3.3. Title Policy. Buyer's obligation to proceed to the Close of Escrow shall be conditioned upon the commitment by Title Company to issue an ALTA Standard Coverage Owner's Policy of Title Insurance (the "Standard Coverage Policy"), showing title to the Property vested in Buyer with liability equal to the Purchase Price, subject only to the Permitted Exceptions. At Buyer's option, Buyer may require an ALTA Extended Coverage Owner's Policy instead of the Standard Coverage Policy provided that Buyer pays any additional premium on account thereof. The form of title policy selected by Buyer shall be referred to herein as the "Title Policy„ 3.4. Access. At any time during the term of this Agreement, Buyer, its agents and employees shall have the right to enter the Property, for the purposes of conducting such investigations, inspections and tests of the Property as Buyer deems necessary to obtain all approvals and entitlements to enable Buyer to develop the Property as PSA -Watkins Parcel Page 9 of 19 Agreement for Purchase and Safe of Real Property and Escrow instructions contemplated by Buyer and to determine the condition and suitability of the Property including, but not limited to, the Feasibility Matters. Buyer shall use care and consideration in connection with. all of its inspections or tests. Prior to any entry on the Property by Buyer prior to the Close of Escrow, Buyer shall secure and maintain a comprehensive general liability and property damage policy in an amount of not fess than One Million Dollars ($1,000,000) which will cover the activities of Buyer and its agents and consultants on the Property and shall name Seller an additional insured thereunder. On request by Seller, Buyer shall provide a certificate of insurance to Seller evidencing the insurance required herein. Buyer hereby agrees to indemnify, defend and hold Seller harmless from and against any and all loss, expense, claim, damage and injury to person or property incurred during the term of this Agreement and resulting from the negligence or misconduct of Buyer, Buyer's agents, contractors and/or subcontractors and/or the contractors or subcontractors of such agents on the Property in connection with the performance of any investigation or other activities upon the Property as contemplated herein. The foregoing repair, indemnity and defense obligations do not apply to (a) any loss, liability cost or expense to the extent arising from or related to the acts or omissions of Seller, (b) any diminution in value in the Property arising from or relating to matters discovered by Buyer during its investigation of the Property, (c) any latent defects in the Property discovered by Buyer, (d) any claims or litigation relating to the Property that arises from acts, occurrences, omissions or other matters that took place on or about the Property prior to the Close of Escrow that do not relate to Buyer's investigation activities, and (d) the release or spread of any hazardous materials or regulated substances which are discovered (but not deposited) on or under the Property by Buyer. 3.5. Seller's Covenant Not to Further Encumber the Property, Seller shall not, directly or indirectly, alienate, encumber, transfer, option, lease, assign, sell, transfer or convey its interest or any portion of its interest in the Property, or any portion thereof, or enter into any agreement to do so, so long as this Agreement is in force. Seller shall timely discharge, prior to the Closing, any and all obligations relating to work performed on or conducted at or materials delivered to or for the Property from time to time by Seller, or at Seller's direction or on its behalf, in order to prevent the filing of any claim or mechanic's lien with respect to such work or materials. 4. REPRESENTATIONS, WARRANTIES AND COVENANTS, 4.1. Seller's Representations, Warranties and Covenants. In addition tothe representations, warranties and covenants of Seller contained in other sections of this Agreement, Seller hereby represents, warrants and covenants to Buyer as follows, all of which shall survive the Close of Escrow: 4.1.1 Seller's Authority. Seller is an individual, is the sole owner in fee simple absolute of the Property and has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. Seller has not alienated, encumbered, transferred, leased, assigned or otherwise conveyed its interest in the Property or any portion thereof except as set forth in the Title Commitment, nor entered into any Agreement to do so, nor shall Seller do so during the term of this Agreement. The entering into and performance by Seller of the transactions contemplated by this PSA -Watkins Parcel Page 10 of 19 Agreement for Purchase and Safe of Real Property and Escrow Instructions Agreement will not violate or breach any other agreement, covenant or obligation binding on Seller, and there is no consent required from any third party before the Property may be conveyed to Buyer. This Agreement has been duly authorized and executed by Seller, and upon delivery to and execution by Buyer shall be a valid and binding agreement of Seller. 4.1.2 Hazardous Substances. Neither Seller nor any third party has used, generated, manufactured, stored or disposed any Hazardous Substances in, at, on, under or about the Property or transported any Hazardous Substance to or from the Property. Additionally, (a) the Property is not in violation, nor has been or is currently under investigation for violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene, worker health and safety, or to the environmental conditions in, at, on, under or about the Property including, but not limited to, soil or groundwater conditions; (b) the Property has not been subject to, and is not within 2,000 feet of, a deposit of any Hazardous Substance; (c) there has been no discharge, migration or release of any Hazardous Substance from, into, on, under or about the Property; (d) there is not now, nor has there ever been on or in the Property underground storage tanks or surface impoundments, any asbestos -containing materials or any polychlorinated biphenyls used in hydraulic oils, electrical transformers or other equipment, and (e) there is not now, nor has there ever been, debris or refuse buried in or under the Property which would adversely affect the development of the Property. Seller hereby assigns to Buyer as of the Close of Escrow all claims, counterclaims, defenses or actions, whether at common law, or pursuant to any other applicable federal or state or other laws which Seller may have against any third parties relating to the existence of any Hazardous Substance in, at, on, under or about the Property. As used in this Agreement, the term "Hazardous Substances" shall have the meaning set forth on Exhibit IF attached hereto. At any time prior to the Close of Escrow, Buyer shall have the right to conduct appropriate tests of water and soil to ascertain the presence of any Hazardous Substances on, in, under and about the Property. In the event Buyer discovers the presence of. Hazardous Substances on, in, under or about the Property prior to the Closing Date and Seller fails or refuses to remove and dispose of such Hazardous Substances in accordance with all applicable laws referred to on Exhibit IF attached hereto, Buyer may terminate this Agreement, whereupon all of Buyer's Deposit and any interest accrued thereon shall be returned to Buyer. Seller shall defend, indemnify and hold harmless Buyer and its officers, directors, employees, agents, shareholders, attorneys and their respective representatives and successors in interest (collectively, the "Indemnitee") from any liability, loss, cost, damage or expense, including, without limitation, court costs, expert witness fees and attorneys' fees, that Indemnitee may suffer or incur as a result of any claim, demand, action, cost or judgment made or obtained by any individual, partnership, cooperation, entity, governmental agency or person which arises out of or results from the presence or existence of Hazardous Substances above, below or on the Property to the extent that such Hazardous Substances are or were located in such locations prior to the Close of Escrow. 4.1.3 Endangered Species. To Seller's knowledge, there are no endangered species or protected natural habitat, flora or fauna located on the Property, nor is any portion of the Property located in what is or may be designated as a wetland. PSA -Watkins Parcel Page 11 of 19 Agreement for Purchase and Sale of fteai Property and Escrow Instructions 4.1 .4 Legal Actions. There is no suit, action or arbitration, or legal, administrative, or other proceeding or governmental investigation, formal or informal, including but not limited to eminent domain, condemnation, assessment district or zoning change proceeding, pending or threatened, or any judgment, moratorium or other government policy or practice which affects the Property or Buyer's anticipated development of the Property, or which adversely affects Seller's ability to perform hereunder, nor does Seller know of any fact which might give rise to any such action, investigation or proceeding. 4.1.5 Mechanic's Liens. There are no mechanics', material men's or other claims or liens presently claimed or which will be claimed against the Property for work performed or commenced prior to the date of this Agreement or relating to the environmental condition of the Property. Seller agrees to hold Buyer harmless from all costs, expenses, liabilities, . losses, charges and fees, including without limitation attorneys' fees, arising from or relating to any such lien or any similar lien claimed against the Property and arising from work performed or commenced prior to the Close of Escrow. 4.1.5 Leases/Easements. There are no leases, rental agreements or other such contracts of any kind or nature affecting possession or occupancy of the Property, and Seller shall not enter- into any such contracts during the term of this Agreement without the prior consent of Buyer. 4.1.7 Other Facts and Circumstances. There are no other facts or circumstances known to Seller that would preclude, prevent or impair the development of the Property. 4.1.8 No Untrue Statements or Omissions of Fact. Neither this Agreement, nor any of the exhibits hereto, nor any document, certificate, or statement referred to heroin or furnished to Buyer in connection with the transaction contemplated herein (whether delivered prior to, simultaneously with, or subsequent to the execution of this Agreement) contains any untrue statement of material fact or; omits to state a material fact in any way concerning the Property, or otherwise affecting or concerning the transaction contemplated hereby. Each of the representations and warranties made by Seller in this Agreement, or in any exhibit, or on any document or instrument delivered pursuant hereto shall be continuing representations and warranties which shall be true and correct in all material respects on the date hereof, and shall be deemed to be made again as of the Close of Escrow and shall then be true and correct in all material respects. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Seller contained in this Agreement, are conditions precedent to the Close of Escrow. Seller shall immediately notify Buyer of any fact or circumstance which becomes known to Seller which would make any of the foregoing representations or warranties untrue. 4.2. Buyer's Representations and Warranties. Bayer represents and warrants to Seller as follows, all of which shall survive the Close of Escrow: PSA -Watkins Parcel Page 12 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions 4.2.1 Buyer's Authority. Buyer has the capacity and full power and authority to enter into and carry out the agreements contained in, and the transactions contemplated by, this Agreement, and that this Agreement has been duly authorized and executed by Buyer and, upon delivery to and execution by Seller, shall be a valid and binding Agreement of Buyer, 4.2.2 No Untrue Statements or Omissions of Pact, Neither this ,Agreement, nor any of the exhibits hereto, nor any document, certificate, or statement referred to herein or furnished to Seller in connection with the transaction contemplated herein (whether delivered prior to, simultaneously with, or subsequent to the execution of this Agreement) contains any untrue statement of material fact or, omits to state a material fact in any way concerning the Property, or otherwise affecting or concerning the transaction contemplated hereby. Each of the representations and warranties made by Buyer in this Agreement, or in any exhibit or on any document or instrument delivered pursuant hereto, shall be continuing representations and warranties which shall be true and correct in all material respects on the date hereof, and shall be deemed to be made again as of the Close of Escrow, and shall then be true and correct in all material respects. The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Buyer contained in this Agreement, are conditions precedent to the Close of Escrow. Buyer shall notify Seller immediately of any facts or circumstances which are contrary to the foregoing representations and warranties contained in this Section 4.2. 4.3, Mutual Indemnity. Seller and Buyer shall defend, indemnify and hold free and harmless the other from and against any losses, damages, costs and expenses (including attorneys' fees) resulting from any inaccuracy in or breach of any representation or warranty of the indemnifying party or any breach or default by such indemnifying party under any of such indemnifying party's covenants or agreements contained in this Agreement. 5. CONDEMNATION. If prior to the Close of Escrow the Property or any portion thereof is taken by any entity by condemnation or with the power of eminent domain, or if the access thereto is reduced or restricted thereby (or is the subject of a pending taking which has not yet been consummated), Seller shall immediately notify Buyer of such fact. In such event; Buyer shall have the right, in Buyer's sole discretion, to (a) terminate this Agreement and the Escrow upon written notice to Seller and Escrow Holder not later than seven (7) days after receipt of Seller's notice thereof in which case the provisions of Section 2.6.1 shall apply, or (b) Buyer may proceed to consummate the transaction provided for herein at Buyer's sole election, in which event Seller shall assign and turn over, and Buyer shall be entitled to receive and keep, any and all awards made or to be made in connection with such condemnation or eminent domain, and the parties shall proceed to the Close of Escrow pursuant to the terms hereof, without any reduction in the Purchase Price, 6. BROKERS. Seller and Buyer each represents and warrants to the other that they have not dealt with or been represented by any brokers or finders in PSA -Watkins Parcel Page 13 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions connection with the purchase and safe of the Property and that no commissions or finder's fees are payable in connection with this transaction. Buyer and Seller each agree to indemnify and hold harmless the other against any lass, liability, damage, cost, claim or expense (including reasonable attorneys' fees) incurred by reason of breach of the foregoing representation by the indemnifying party. Notwithstanding anything to the contrary contained herein, the representations, warranties, indemnities and agreements contained in this Section 6 shall survive the Close of Escrow or earlier termination of this Agreement. 7.GENERAL PROVISIONS, 7.1. Counterparts: Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument and any executed counterpart may be delivered by facsimile transmission with the same effect as if an originally executed counterpart had been delivered. 7.2. Further Assurances. Each of the parties agrees to execute and deliver such other instruments and perform such acts, in addition to the matters herein specified, as may be appropriate or necessary to effectuate the agreements of the parties, whether the same occurs before or after the Close of Escrow. 7.3, Entire Agreement. This Agreement, together with all exhibits hereto and documents referred to herein, if any, constitute the entire agreement among the parties hereto with respect to the subject matter hereof, and supersede all prior understandings or agreements. This Agreement may be modified only by a writing signed by both parties. All exhibits to which reference is made in this Agreement are deemed incorporated in this Agreement whether or not actually attached. 7.4. Headings. Headings used in this Agreement are for convenience of reference only and are not intended to govern, limit, or aide in the construction of any term or provision hereof. 7.5. Choice of Law. This Agreement and each and every related document are to be governed by, and construed in accordance with, the laws of the State of California. 7:6. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction or rendered by the adoption of a statute by the State of California or the United States invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby; provided that the invalidity or unenforceability of such provision does not .materially adversely affect the benefits accruing to, or the obligations imposed upon, any party hereunder, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. PSA -Watkins Parcel Page 14 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions 7.7. Waiver of Covenants Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise, or of the time for performing any act, under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise, or of the time for performing any other act required, under this Agreement. The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude any other remedies unless they are expressly excluded. 7.8. Legal Advice. Each party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions hereof. The provisions of this Agreement shall be construed as to the fair meaning and not for or against any party based upon any attribution of such party as the sole source of the language in question. 7,9. Relationship of Parties. The parties agree that their relationship is that of seller and buyer, and that nothing contained herein shall constitute either party, the agent or legal representative of the other for any purpose whatsoever, nor shall this Agreement be deemed to create any form of business organization between the parties hereto, nor is either party granted the right or authority to assume or create any obligation or responsibility on behalf of the other party, nor shall either party be in any way liable for any debt of the other. 7.10. Attorneys' Fees. In the event that any party hereto institutes an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, for an alleged breach or default of, or any other action arising out of, this Agreement, or the transactions contemplated hereby, or in the event any party is in default of its obligations pursuant thereto, whether or not suit is filed or prosecuted to final judgment, the non -defaulting party or prevailing party shall be entitled to its actual attorneys' fees and to any court costs incurred, in addition to any other damages or relief awarded. 7.11. Assignment. Neither Seller nor Buyer shall assign its rights or delegate its obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties to this Agreement. 7.12. Notices. No notice, request, demand, instruction, or other document to be given hereunder to any Party shall be effective for any purpose unless personally delivered to the person at the appropriate address set forth below (in which event such notice shall be deemed effective only upon such delivery), delivered by air courier next - day delivery (e.g. Federal Express), delivered by mail, sent by registered or certified mail, return receipt requested, or sent via telecopier, as follows - PSA -Watkins Parcel Page 15 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions If to Buyer, to: Attn: Douglas D. Dumhart Agency Administrator San Juan Capistrano Community Redevelopment Agency 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Facsimile No.: (949) 493-1053 Telephone No.: (949) 443-6316 With a copy to: Attn: Omar Sandoval, Esq. City Attorney c/o Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Facsimile No.: (714) 835-7787 Telephone No.: (714) 558-7000 If to Seller, to: Attn: Mark M. Watkins Post Office Box 4013 Laguna Beach, CA 92652 Facsimile No.: Telephone No.: With a copy to: Attn: Facsimile No.: Telephone No.: If to Escrow Holder, to: Attn: Jeanne Gould, Senior Escrow Officer First American Title Company 5 First American Way Santa Ana, CA 92707 Facsimile No.: (714) 913-6372 Telephone No.: (714) 250-5381 Notices delivered by air courier shall be deemed to have been given the next business day after deposit with the courier and notices mailed shall be deemed to have been given on the second day following deposit of same in any United States Post Office mailbox in the state to which the notice is addressed or on the third day following deposit in any such post office box other than in the state to which the notice is addressed, postage prepaid, addressed as set forth .above. Notices sent via telecopy shall be deemed delivered the same business day transmitted. The addresses, addressees, and telecopy numbers for the purpose of this Paragraph, may be changed by giving written notice of such change in the manner herein provided for giving notice. Unless and until such written notice of change is received, the last address, addressee, PSA -Watkins Parcel Page 16 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions and telecopy number stated by written notice, or provided herein if no such written notice of change has been received, shall be deemed to continue in effect for all purposes hereunder, Delivery of a copy of a notice as set forth above is as an accommodation only and is not required to effectuate notice hereunder. 7.13. Survi vability. All covenants of Buyer or Seller which are intended hereunder to be performed in whole or in part after Close of Escrow and all representations, warranties, and indemnities by either Party to the other, shall survive Close of Escrow and delivery of the Deed, and be binding upon and inure to the benefit of the respective Parties. 7.14. Release. The total compensation to be paid by Buyer for the Property is the Purchase Price, which consideration covers all. land and improvements, attached or detached furniture, fixtures and equipment, loss of business goodwill, and relocation assistance, and is the full and complete acquisition cost of the Property. Buyer shall have no obligation to Seller under the California Relocation Assistance and Real Property Acquisition statutes and guidelines. Except for any breach of terms or conditions contained in this Agreement, Seller waives and forever releases Buyer, including its successors, officers, employees, attorneys, agents, representatives and anyone else acting on Buyer's behalf, of and from any and all claims, demands, actions or causes of action, obligations, liabilities, or claims for further compensation, known or unknown, based upon or relating to the facts or allegations and circumstances arising from Buyer's acquisition of the Property. By such release, Seller expressly waives its rights, if any, under California Civil Code Section 1542 which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HIS SETTLEMENT WITH THE DEBTOR." IN Seller's Initials 7.15 Agency Board of Direcla[LARproval of Agreement. This Agreement is subject to the approval of the Agency's Board of Directors. If this Agreement remains Unapproved by the Agency's Board then the Parties will have no further obligation under this Agreement. [SIGNATURE PAGE FOLLOWS] PSA -Watkins Parcel Page 17 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions IN WITNESS WHEREOF, the parties have executed this Agreement as of the clay and year first above written. YI01111 SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic. SELLER. P By: Dave Adams Name: Mark M. Watkins Executive Director Attest: Margaret R. Monahan Secretary Approved as to form by: WOODRUFF, SPRADLIN & SMART Omar Sandoval, Esq. City Attorney Exhibit List Exhibit A -- Legal Description of the Property Exhibit A-1 -- Legal Description of the Exchange Property Exhibit B Form of Grant Deed Exhibit C -- Form of Certificate of Acceptance Exhibit D -- Affidavit of Non -foreign Taxpayer Status Exhibit E -- Form of Blanket Assignment and Bill of Sale Exhibit F -- Definition of Hazardous Substances PSA -Watkins Parcel Page 18 of 19 Agreement for Purchase and Sale of Real Property and Escrow Instructions ACCEPTANCE BY ESCROW HOLDER: First American Title Company hereby acknowledges that it has received a fully executed counterpart of the foregoing Agreement for Purchase and Sale of Real Property and Escrow Instructions and agrees to act as Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Halder. By agreeing to act as Escrow Holder hereunder,.; Escrow Holder expressly agrees to undertake and be responsible for all withholding obligations imposed pursuant to Section 1445 of the Internal Revenue Code of 1985, as amended and the regulations thereunder and California Revenue and Taxation Code §18662 and shall defend, indemnify and hold Buyer harmless in connection -with such obligations. Escrow Holder acknowledges and agrees to administer the concurrent escrows and closings as that contingency condition is set forth in Section 2.3.1(8) of the Agreement. Date: FIRST AMERICAN TITLE COMPANY By: Name: lts: IDSA -Watkins Parcel Page 19 of 19 LEGAL DESCRIPTION REAL PROPERTY IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PSA -Watkins Parcel EXHIBIT A-1 LEGAL DESCRIPTION OF EXCHANGE PROPERTY REAL PROPERTY IN THE CITY OF DANA POINT, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS - PSA -Watkins Parcel EXHIBIT B FORM OF GRANT DEED RECORDING REQUESTED BY First American Title Insurance Company WHEN RECORDED RETURN TO: Attn: Douglas D. Dumhart, Agency Administrator San Juan Capistrano Community Redevelopment Agency CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, CA 92575 SPACE ABOVE THIS LINE FOR RECORDER'S USE Exempt from recording changes under Government Code §6103 GRANT DEED A PN : 668-211-20 This transfer is exempt from Documentary Transfer Tax pursuant to Revenue & Taxation Code THE. UNDERSIGNED GRANTOR(S) DECLARE(S): FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, MARK M. WATKINS, a single man, hereby GRANT(S) to: SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic the real property in Orange County, California, more particularly set forth on Exhibit A attached hereto and incorporated herein by this reference, TOGETHER with: 1. All tenements, hereditaments and appurtenances, including easements and water rights, if any, thereto belonging or appertaining, and any reversions, remainders, rents, issues or profits thereof; and 2. All rights, title, and interests of Grantor in and under all covenants, conditions, restrictions, reservations, easements, and other matters of record, including, without limitation, all rights as "Declarant" under any Declarations of Covenants. Conditions and Restrictions ("Declarations") of record. PSA -Watkins Parcel SAID GRANT BEING FURTHER SUBJECT TO: 1. General and special real property taxes for the current fiscal year and all later years. 2. All assessments imposed by a duly empowered governmental entity, whether or not of record. 1 Any and all declarations, covenants, conditions, restrictions, easements, reservations (including, but not limited to, reservations and exceptions to the mineral estate), rights, and rights of way of record. By: Date - Name: Date: I Name: Mark Ni. Watkins PSA -Watkins Parcel ACKNOWLEDGEMENT STATE OF CALIFORNIA } )ss. COUNTY OF } On before me, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the persons), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature My Commission Expires: PSA -Watkins Parce€ This area for official notarial seal Exhibit "A" to the Grant Deed LEGAL DESCRIPTION OF THE PROPERTY REAL PROPERTY IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PSA -Watkins Parcel CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by grant deed from Mark M, Watkins, dated , 2008, to the San Juan Capistrano Community Redevelopment Agency, a public body, corporate and politic, is hereby accepted by the undersigned officer or agent on behalf of the San Juan Capistrano Community Redevelopment Agency, pursuant to authority conferred by Resolution of the Board of the San Juan Capistrano Community Redevelopment Agency, and the Grantee consents to recordation thereof by its'duly authorized officer. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: Name: Dave Adams Title: Executive Director DATED: 2008 PSA -Watkins Parcel ACKNOWLEDGEMENT STATE OF CALIFORNIA r ss COUNTY OF RIVERSIDE ) On before me, Notary Public, personally appeared - , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature My Commission Expires: PSA -Watkins Parcel This area for official notarial seal EXHIBIT D DO NOT RECORD, TRANSFEREE (BUYER) DO NOT SEND MUST RETAIN FOR TO IRS, SIX YEARS AFTER THE TRANSACTION. CERTIFICATION OF NON -FOREIGN STATUS BY TRANSFEROR 1. Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of a U, S. real property interest must withhold tax if the transferor (seller) is a foreign person. 2. In order to inform each transferee that withholding of tax is not required upon disposition of a U. S. real property interest by (hereinafter referred to as "the Transferor"), the undersigned hereby certifies, and declares by means of this certification, the following. on behalf of the Transferor: A. The one item marked below is true and correct: (1) The Transferor is not a foreign individual, foreign corporation, foreign partnership, foreign trust, or foreign estate (as these terms are defined in the Internal Revenue Code and Income Tax Regulations). (11) The Transferor is a corporation incorporated under the laws of a foreign jurisdiction but has elected to be treated as a U. S. corporation under Section 897(i) of the Internal Revenue Code, AND HAS ATTACHED TO THIS CERTIFICATE A TRUE AND GENUINE COPY OF THE ACKNOWLEDGMENT OF SUCH ELECTION ISSUED BY THE IRS. B. The Transferor's social security number is C. The Transferor's address is 3. The Transferor understands that this certificate may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained in this certification may be punished by fine or imprisonment (or both). 4, The Transferor understands that each transferee is relying on this certificate in determining whether withholding is required and each transferee may face liabilities if any statement in this certificate is false. PSA -Watkins Parcel 5. The Transferor hereby indemnifies each transferee, and agrees to defend and hold each transferee harmless, from any liability, cost, damage, or expense which such transferee may incur as a result of: A. the Transferor's failure to pay any U. S, Federal income tax which the Transferor is required to pay under applicable U. S. law, or B. any false or misleading statement contained herein. Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete; I further declare that I have authority to sign this document on behalf of the Transferor. EXECUTED in County, State of on Transferor: By: Title: PSA -Watkins Parcel EXHIBIT E BLANKET ASSIGNMENT AND BILL OF SALE MARK M. WATKINS, an individual ("Seller"), and SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic ("Buyer"), have previously entered into that certain Agreement for Purchase and Sale of Real Property and Escrow Instructions dated as of , 2008 (the "Purchase Agreement"), pursuant to which Seller agreed to sell, and Buyer agreed to purchase, that certain property located in the City of San Juan Capistrano, County of Orange, California and described in more detail on Exhibit A attached hereto and made a part hereof and the improvements located thereon and the rights, privileges and entitlements incident thereto (the "Property"). For good and valuable consideration, receipt of which is hereby acknowledged, Seller does hereby, give, grant, bargain, sell, transfer, assign, convey and deliver to Buyer, all of Seller's right, title and interest in all assets, rights, materials and/or claims used, owned or held in connection with the use, management, development or enjoyment of the Property, including, without limitation: (i) all entitlements, subdivision agreements and other agreements relating to the development of Property; (ii) all plans, specifications, maps, drawings and other renderings relating to the Property; (iii) all contract rights, indemnities, warranties, claims and any similar rights relating to and benefiting the Property or the assets transferred hereby; (iv) all intangible rights, goodwill and similar rights benefiting the Property; (v) all development rights benefiting the Property; (vi) all rights, claims or awards benefiting the Property, and (vii) all rights to receive a reimbursement, credit or refund from the applicable agency or entity of any deposits or fees paid in connection with the development of the Property. Seller hereby covenants that it will, at any time and from time to time upon written request therefor, execute and deliver to Buyer, its nominees, successors and/or assigns, any new or confirmatory instruments and do and perform any other acts which Buyer, its nominees, successors and/or assigns, may request in order to fully transfer possession and control of, and protect the rights of Buyer, its nominees, successors and/or assigns in, all the assets of Seller intended to be transferred and assigned hereby. SELLER �sBy: 6 Name: Mark M. Watkins PSA -Watkins Parcel Exhibit "A" to Blanket Assignment and Bill of Sale LEGAL DESCRIPTION OF THE PROPERTY REAL PROPERTY IN THE CITY OF SAN JUAN CAPISTRANO; COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PSA -Watkins Parce! EXHIBIT F HAZARDOUS SUBSTANCE DEFINITION The term "Hazardous Substance" as used in this Agreement shall mean any toxic or hazardous substance, material or waste or any pollutant or contaminant or infectious or radioactive material, including but not limited to those substances, materials or wastes regulated now or in the future under any of the statutes or regulations listed below . and any and all of those substances included within the definitions of "hazardous substances", "hazardous materials" "hazardous waste", "hazardous chemical substance or mixture", "imminently hazardous chemical substance or mixture" "toxic substances" "hazardous air pollutant" "toxic pollutant" or "solid waste" in the statues or regulations listed below. Hazardous Substances shall also mean any and all other similar terms defined in other federal state and local laws, statutes, regulations, orders or rules and materials and wastes which are, or in the future become, regulated under applicable local, state or federal law for the protection of health or the environment or which are classified as hazardous or toxic substances, materials or waste, pollutants or contaminants, as defined, listed or regulated by any federal, state or local law, regulation or order or by common law decision, including, without limitation, (i) trichloroethylene, tetrachloroethylene, perch loroethylene and other chlorinated solvents, (ii) any petroleum products or fractions. thereof, (iii) asbestos, (iv) polychlorinated biphenyls, (v) flammable explosives, (vi) urea formaldehyde, and (vii) radioactive materials and waste. In addition, a Hazardous Substance shall include: (1) a "Hazardous Substance" "Hazardous Material" "Hazardous Waste", or "Toxic Substance" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et sec.., the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801, et iN., or the Resource Conservation and Recovery Act, 42 U:S.C. §§ 6901, et seg,, (2) "Oil" or a "Hazardous Substance" listed or identified pursuant to § 311 of the Federal Water Pollution Control Act, 33 U.S.C. § 1321, as well as any other hydrocarbonic substance or by-product; (3) listed by the State of California as a chemical known by the State to cause cancer or reproductive toxicity; (4) a material which due to its characteristics or interaction with one or more other substances, chemical compounds, or mixtures, damages or threatens to damage, health, safety, or the environment, or is required by any law or public agency to be remediated, including remediation which such law or public agency requires in order for the property to be put to any lawful purpose; PSA -Watkins Parcel (5) any material the presence of which would require remediation, whether or not the presence of such material resulted from a leaking underground fuel tank; (6) pesticides regulated under the Federal Insecticide, Fungicide and Rodenticide Act; 7 U.S.C. §§ 136 et seg.; (7) asbestos, PCBs, and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq..- (8) eg.; (8) any radioactive material including, without limitation, any "source material", "special nuclear material", "by-product material", "low-level wastes", "high- level radioactive waste", "spent nuclear fuel" or "transuranic waste", and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act, 42 U.S.C. §§ 2011 et seg., or the Nuclear Waste Policy Act, 42 U.S.C. §§ 10101 et sem. . (9) industrial process and pollution control wastes, whether or not "hazardous" within the meaning of the Resource Conservation and Recovery Act, 42 U.S.G. §§ 6901 et seg.; All other laws, ordinances, codes, statutes, regulations, administrative rules, policies and orders, promulgated. pursuant to said foregoing statutes and regulations or any amendments or replacement thereof, provided such amendments or replacements shall in no way limit the Original scope and/or definition of Hazardous Substance defined herein. PSA -Watkins Parcel >- CITY OF SAN JUAN CAPISTRANO c; c. .. San Juan Cuaistraco .. '"' � ;; Coormvoi[ Rcacv [a [A y e pmert gency ; K :........................: t- [=7 ham., it 1: #SffW2ttttfkftttf7lf. f%t� �tifittd8tfttlL � Z C iCITY OF SAN JUAN CAPISTRANO -t NOTIFICATION OF MEETING OF POTENTIAL INTEREST SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY The Board of Directors of San Juan Capistrano Community Redevelopment Agency will meet at 6:30 p.m. on Tuesday November 18, 2008, in the City Council Chamber in City Hall, to consider: "Consideration of Agreement for Purchase and Sale of Real Property and Escrow Instructions - (APN 668-211-20)(Mark Watkins)" — Item No. B3. If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the Board of Directors through correspondence addressed to the Board and/or by attending the meeting and speaking to the Board during the public meeting. Correspondence related to this item must be received at the City Clerk's office by 5:00 p.m. on Monday, November 17, 2008 to allow time for the Board to consider its content. If you would like to speak at the meeting, please complete a yellow "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Chairman when the item is considered. You have received this notice at the request of the City staff member Douglas D. Dumhart, Economic Development Manager. You may contact that staff member at (949) 443-6316 with any questions. The agenda, including agenda reports, is available to you on our web site: www.saniu.a.ncapistrano.org. If you would like to subscribe to receive a notice when agendas are posted to the web site, please make that request by sending an e-mail to: cityclerk(c7sani uancapistrano,org. Meg Monahan, MMC City Clerk cc: Mark Watkins; Lynn Jahnke, Larsen & Risley-, Catherine Lapid, OCFCD; Josephine Alvarez, OCFCD; Douglas D. Durnhart, Economic Development Manager 32400 Paseo A ela to e San Juan Capistrano a California92675 {949} 493.1171 Ci Printed an 1G6% recycled paper November 26, 2008 r CITY OP SAN JUAN CAMTRANO o .. . Cam�vnlEy Redeye€npmeni Agc€�cy .. . � ��,}1iF72#txtt:ttFFiFrs CITY of SAID EUAN Jeanne Gould, Senior Escrow officer Furst American Tine Company 5First American Way Santa Ana, CA 92707 3 Y n �t}F'MFRM. FtFFti ;,� Z CAPISTRANO RE: Escrow for Watkins Parcel APN 668-211-20 Dear Ms. Gould: Enclosed please find a fully executed Agreement Purchase and Sales of Real Property and Escrow Instructions for the aforementioned parcel. Please this letter as a request to open escrow pursuant to the terms of the enclosed agreement. As we have discussed earlier and as indicated in the Agreement this transaction is contingent upon the acquisition and exchange of real property between the Redevelopment Agency and Orange County Flood Control District (oCFCD). We hope to have this pending transaction effectuated shortly after the New Year. Should you need any thing else for this escrow please contact me directly via telephone at 949-443-6316 or e-mail at ddumhart sari'uanca istrano.or . Kind regards, ,� 2,1,,, , t�. 'A Douglas D. Dumhart Economic Development Manager CC: Diego Santana, Woodruff, Spradlin &.Smart Enc. 32400 Paseo Adelanto_ *. San Juan Capistrano • California 92675 (949) 493.1171