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21-1102_R&H LAND PARTNERS_D1_Supplementary ReportCity of San Juan Capistrano Supplementary Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Benjamin Siegel, City Manager SUBMITTED BY: Charlie View, Assistant City Manager PREPARED BY: Matisse Reischl, Senior Management Analyst DATE: November 2, 2021 SUBJECT: Purchase and Sale Agreement with R&H Land Partners, LLC for City-owned Property Located at Calle Arroyo and Rancho Viejo Road; and Hearing of Any Protests to the Disposition of the City- owned Property (Assessor Parcel Number: 666-232-08) RECOMMENDATIONS: Approve and authorize the City Manager to execute a Purchase and Sale Agreement for the sale of a 1.09-acre City-owned parcel located at Calle Arroyo and Rancho Viejo Road to R&H Land Partners, LLC. SITUATION: When the agenda report was published on October 27, 2021, a placeholder was inserted for Attachment 3 – Proposed Purchase and Sale Agreement, which was in the process of being finalized. The Purchase and Sale Agreement is now complete and is attached to this supplemental agenda report. ATTACHMENT: Attachment 3 – Proposed Purchase and Sale Agreement NOTIFICATIONS: Robert Socci, R&H Land Partners OTRA, Inc. 11/2/2021 D1 Supplementary Agenda Report November 2, 2021 Page 2 of 2 St. Margaret’s Episcopal School Interested Parties Notification List 61147.00310\34503815.2 2021 PURCHASE AND SALE AGREEMENT between THE CITY OF SAN JUAN CAPISTRANO a California municipal corporation and R&H LAND PARTNERS, LLC a California limited liability company 61147.00310\34503815.2 -1- This 2021 PURCHASE AND SALE AGREEMENT (“Agreement”) is dated as of __________, 2021 (“Date of Agreement”), for reference purposes only, and is entered into by and between the City of San Juan Capistrano, a California municipal corporation (“City”) and R&H Land Partners, LLC, a California limited liability company (“Purchaser”). The City and the Purchaser are sometimes referred to in this Agreement, each individually, as a “Party,” or collectively, as the “Parties.” RECITALS This Agreement is entered into with reference to the following recitals of fact (“Recitals”) that City and Purchaser believe to be true as of the Effective Date of this Agreement: A. The City is the owner of that certain real property located at Calle Arroyo (APN 666-232-08), in San Juan Capistrano, more specifically described in Exhibit A attached hereto and incorporated herein by this reference (“Property”). B. The City and Purchaser are not parties to an exclusive right to negotiate agreement for potential development of the Property, and the Purchaser has not proposed any particular project for redevelopment of the Property upon acquisition. The Parties understand and are in agreement that any future development of the Property by Purchaser or otherwise would require its own review process. C. Notwithstanding the lack of specific development project, the Purchaser’s proposed acquisition of the Property is in the best interest of the City and the health, safety and welfare of the City’s taxpayers and residents and is in accordance with the public purposes set forth in applicable law. Implementation of this Agreement will further the goals and objectives of the City’s general plan by: (i) strengthening the City’s land use and social structure and (ii) alleviating economic and physical blight on the Property. D. The City desires to sell the Property to the Purchaser, and the Purchaser desires to purchase the Property from the City. NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by City and Purchaser, the Parties agree as follows: TERMS AND CONDITIONS ARTICLE I DEFINITIONS; REPRESENTATIONS AND WARRANTIES; EFFECTIVE DATE 1.1 Definitions. All initially capitalized terms not otherwise defined in this Agreement shall have the following meanings: 1.1.1 [intentionally deleted] 61147.00310\34503815.2 -2- 1.1.2 “Affiliate” means and refers to any person or entity, directly or indirectly, Controlling or Controlled by or under common Control with the Purchaser, whether by direct or indirect ownership of equity interests, by contract or otherwise. 1.1.3 “CEQA” means the California Environmental Quality Act, Public Resources Code Sections 21000, et seq. 1.1.4 [intentionally deleted] 1.1.5 “City” means the City of San Juan Capistrano, California, a California municipal corporation. 1.1.6 “City Manager” means the City Manager of the City or his or her designee or successor in function. 1.1.7 [intentionally deleted] 1.1.8 “City’s Title Notice Response” means the written response of the City to the Purchaser’s Title Notice, in which the City either (i) elects to cause the removal from the Preliminary Report of any matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that were objected to in the Purchaser’s Title Notice, or (ii) elects not to cause the removal from the Preliminary Report of any matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that were objected to in the Purchaser’s Title Notice. 1.1.9 “Close of Escrow” or “Closing” means the recording of the Grant Deed for the Property in the Official Records of the Recorder of the County, and completion of each of the actions set forth in ARTICLE III by the Escrow Holder for the City to sell the Property to the Purchaser and the Purchaser to purchase the Property from the City. 1.1.10 [intentionally deleted] 1.1.11 [intentionally deleted] 1.1.12 [intentionally deleted] 1.1.13 [intentionally deleted] 1.1.14 [intentionally deleted] 1.1.15 “Control” means and refers to possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether by ownership of equity interests, by contract or otherwise. 1.1.16 “Controlling” and “Controlled” mean and refer to exercising or having Control. 1.1.17 “County” means the County of Orange, California. 61147.00310\34503815.2 -3- 1.1.18 “Purchaser’s Title Notice” means a written notice from the Purchaser to the City indicating the Purchaser’s acceptance of the state of the title to the Property, as described in the Preliminary Report, or the Purchaser’s objection to specific matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy for the Property, describing in suitable detail the actions that the Purchaser reasonably believes are indicated to cure or correct each of the Purchaser’s objections. 1.1.19 “Purchaser’s Title Notice Waiver” means a written notice from the Purchaser to the City waiving the Purchaser’s previous objection in the Purchaser’s Title Notice to specific matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy for the Property. 1.1.20 “Due Diligence Investigations” means the Purchaser’s due diligence investigations of the Property, including, without limitation, investigations of the environmental and geotechnical suitability of the Property, as deemed appropriate in the reasonable discretion of the Purchaser, all at the sole cost and expense of the Purchaser. 1.1.21 “Due Diligence Investigation Conclusion Notice” means a written notice of the Purchaser delivered to the City and the Escrow Holder, prior to the end of the Due Diligence Period, indicating the Purchaser’s acceptance of the condition of the Property or indicating the Purchaser’s rejection of the condition of the Property and refusal to accept a conveyance of fee title to the Property, describing in reasonable detail the actions that the Purchaser reasonably believes are indicated to allow the Purchaser to accept the condition of the Property. 1.1.22 “Due Diligence Period” means the date commencing on the Effective Date and ending at 5:00 p.m. on the ninetieth (90th) day following the Effective Date. 1.1.23 “Earnest Money Deposit” means Twenty-Five Thousand Dollars ($25,000.00) payable in cash or other immediately available funds. 1.1.24 “Effective Date” has the meaning ascribed to the term in Section 1.3. 1.1.25 [intentionally deleted] 1.1.26 “Environmental Claims” has the meaning ascribed to the term in Section 5.10. 1.1.27 “Environmental Laws” means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability of standards of conduct concerning any hazardous substance (as later defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) [42 USC Section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (“RCRA”) [42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (“FWPCA”) [33 USC 61147.00310\34503815.2 -4- Section 1251 et seq.]; the Toxic Substances Control Act (“TSCA”) [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [California Health & Safety Code Section 25288 et seq.]; the California Hazardous Substances Account Act [California Health & Safety Code Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [California Health & Safety Code Section 24249.5 et seq.] the Porter-Cologne Water Quality Act [California Water Code Section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use. 1.1.28 “Environmental Matters” has the meaning ascribed to the term in Section 5.10. 1.1.29 “Escrow” has the meaning ascribed to the term in Section 2.1. 1.1.30 “Escrow Closing Date” has the meaning ascribed to the term in Section 3.6. 1.1.31 “Escrow Holder” means Fidelity National Title Insurance Company. 1.1.32 “Escrow Opening Date” has the meaning ascribed to the term in Section 3.1. 1.1.33 “Event of Default” has the meaning ascribed to the term in Section 7.1.1. 1.1.34 [intentionally deleted] 1.1.35 “FIRPTA Affidavit” means an affidavit complying with Section 1445 of the United States Internal Revenue Code. 1.1.36 “Grant Deed” means a deed in the form of Exhibit D to this Agreement, conveying all of the City’s interest in the Property to the Purchaser. 1.1.37 “Governmental Agency” means any and all courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, or otherwise) whether now or later in existence. 61147.00310\34503815.2 -5- 1.1.38 “Governmental Requirements” means all codes, statutes, ordinances, laws, permits, orders, and any rules and regulations promulgated thereunder of any Governmental Agency. 1.1.39 “Hazardous Substances” means, without implied limitation, substances defined as “hazardous substances,” “hazardous material,” “toxic substance,” “solid waste,” or “pollutant or contaminate” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the Toxic Substances Control Act (“TSCA”) [15 U.S.C. Sections 2601, et seq.]; the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the EPA, or any successor authority, as hazardous substances [40 CFR Part 302]; and those substances defined as “hazardous waste” in Section 25117 of the California Health and Safety Code or, as “hazardous substances” in Section 25316 of the California Health and Safety Code; other substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws, and shall also include manure, asbestos, polychlorinated biphenyl, flammable explosives, radioactive material, petroleum products, and substances designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317. 1.1.40 “Indemnified Parties” has the meaning ascribed to the term in Section 5.10. 1.1.41 [intentionally deleted] 1.1.42 [intentionally deleted] 1.1.43 [intentionally deleted] 1.1.44 [intentionally deleted] 1.1.45 [intentionally deleted] 1.1.46 “Normal Business Hours” means the normal business hours of the City. As of the Effective Date, the City’s normal business hours are Monday through Thursday, between the hours of 7:30 a.m. and 5:30 p.m. Pacific Time. 1.1.47 “Notice of Agreement” means the notice in the form of Exhibit E to this Agreement to be recorded against the Property at the opening of Escrow to provide constructive record notice of the existence and application of this Agreement to the Property. 1.1.48 “Party” means, individually, the City or the Purchaser, as applicable. 1.1.49 “Parties” means, collectively, the City and the Purchaser. 1.1.50 “PCO Statement” means a preliminary change of ownership statement provided for in California Revenue and Taxation Code Section 480.3. 61147.00310\34503815.2 -6- 1.1.51 “Permitted Exceptions” means (i) any and all items shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that the Purchaser accepts, pursuant to Section 2.4; (ii) any exceptions from coverage under the proposed Title Policy resulting from the Purchaser’s activities on the Property; (iii) non-delinquent property taxes and assessments; (iv) this Agreement; or (v) the Grant Deed. 1.1.52 “Permitted Transfer” means and refers to any of the following types of Transfers by the Purchaser, where the person or entity to which such Transfer is made expressly assumes the obligations of the Purchaser under this Agreement in a written instrument satisfactory to the City. 1.1.52.1 Any Transfer of stock or equity of the Purchaser that does not change management or operational Control of the Property; 1.1.52.2 Any Transfer of any interest in the Purchaser or the Property or any portion thereof irrespective of the percentage of ownership (i) to any other owner of any interest in the Purchaser; or (ii) to any Affiliate, or (iii) to any other person or entity in which any holder of an interest (including any beneficial interest) in the Purchaser is a manager, officer or partner or in which any of the aforementioned is a shareholder, member or partner (including a beneficial owner), or (iv) to immediate family members or to entities (including trusts) owned by such family members for estate planning purposes; and 1.1.53 [intentionally deleted] 1.1.54 “Preliminary Report” means a preliminary report issued by the Title Company in contemplation of the issuance of the Title Policy, accompanied by legible copies of all documents listed in Schedule B of the report as exceptions to coverage under the proposed Title Policy. The Parties acknowledge that they may prepare one (1) or more Preliminary Reports for each parcel, or group of parcels, comprising the Property. In such case, all reports, notices, and objection letters which pertain to the Preliminary Report for the entirety of the Property shall apply separately to each Preliminary Report associated with a parcel or a group of parcels. 1.1.55 [intentionally deleted] 1.1.56 [intentionally deleted] 1.1.57 “Property” means that real property, and all current and future improvements thereon, legally described in Exhibit A. 1.1.58 “Property Transfer” means and refers to any “change in ownership,” as defined in Revenue and Taxation Code Sections 60, et seq., of all or any portion of the Property. 1.1.59 “Purchase Price” means the amount of One Hundred Fifty Thousand Dollars ($150,000.00), in cash or immediately available funds. 1.1.60 “Record”, “recorded”, “recording” or “recordation” each mean and refer to recordation of the referenced document in the official records of the Recorder of the County of Orange, California. 61147.00310\34503815.2 -7- 1.1.61 [intentionally deleted] 1.1.62 “SLA” means the Surplus Land Act, Government Code Sections 54220, et seq. 1.1.63 “SLA Restrictive Covenant” means the restrictive covenant, a form of which is attached to this Agreement as Exhibit C, required to be recorded under Section 54233 of the SLA at or before the Close of Escrow, as described in Section 5.1. 1.1.64 “Title Company” means Fidelity National Title Company. 1.1.65 “Title Policy” means a standard CLTA owners’ policy of title insurance issued by the Title Company, with coverage in the full amount of the Purchase Price and insuring fee title to the Property, subject only to the Permitted Exceptions. However, at Purchaser’s option, Purchaser may acquire an ALTA extended coverage policy. City shall pay for the standard CLTA policy. Purchaser shall pay for any additional or ALTA extended coverage policy. 1.1.66 “Transfer” means any of the following: 1.1.66.1 Any total or partial sale, assignment, conveyance, trust, power, or transfer in any other mode or form, by the Purchaser of more than a 49% interest in the Purchaser’s interest in this Agreement, the Property, or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest in the Purchaser’s interest in this Agreement or the Property; or 1.1.66.2 Any total or partial sale, assignment, conveyance, or transfer in any other mode or form, of or with respect to any interest in the Purchaser or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest in any interest in the Purchaser; or 1.1.66.3 Any merger, consolidation, sale, or lease of all or substantially all of the assets of the Purchaser or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest of all or substantially all of the assets of the Purchaser; or 1.1.66.4 Any Property Transfer. 1.1.67 “Unavoidable Delay” means any delay that is caused by the exclusively by the other party or that is beyond the control of the City or the Purchaser, including delay caused by strikes, acts of God, weather, inability to obtain labor or materials, inability to obtain governmental permits or approvals, governmental restrictions, civil commotion, fire or similar causes, but excluding circumstances subject to Section 8.7.2. 1.2 Representations and Warranties. 1.2.1 City Representations and Warranties. The representations and warranties of City contained in this Section 1.2.1 shall be based upon the actual knowledge of the City Manager as of the Effective Date. All representations and warranties contained in this Section 61147.00310\34503815.2 -8- 1.2.1 are true and correct as of the Effective Date. City’s liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. City hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by Purchaser has been made in material reliance by Purchaser on such covenants, representations and warranties: 1.2.1.1 City is a California municipal corporation, duly formed and operating under the laws of the State of California. City has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby. 1.2.1.2 The persons executing any instruments for or on behalf of City have been authorized to act on behalf of City and this Agreement is valid and enforceable against City in accordance with its terms and each instrument to be executed by City pursuant hereto or in connection therewith will, when executed, shall be valid and enforceable against City in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by City. 1.2.1.3 City has taken all requisite action and obtained all requisite consents for agreements or matters to which City is a party in connection with entering into this Agreement and the instruments and documents referenced herein and in connection with the consummation of the transactions contemplated hereby. 1.2.1.4 If the City becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by the City under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based upon the City’s knowledge and/or belief as of a certain date, the City will give immediate written notice of such changed fact or circumstance to the Purchaser. 1.2.2 Purchaser Representations and Warranties. The representations and warranties of Purchaser contained in this Section 1.2.2 shall be based upon the actual knowledge of Robert J. Socci as of the Effective Date. All representations and warranties contained in this Section 1.2.2 are true and correct as of the Effective Date. Purchaser’s liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. Purchaser hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by City has been made in material reliance by City on such covenants, representations and warranties: 1.2.2.1 Purchaser is a California limited liability company, lawfully entitled to do business in the State of California and the City. Purchaser has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein and to consummate the transactions contemplated hereby. The persons executing this Agreement and the instruments referenced herein on behalf of Purchaser hereby represent and warrant that such persons have the power, right and authority to bind Purchaser. 61147.00310\34503815.2 -9- 1.2.2.2 Purchaser has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for Purchaser’s authorization to enter into Agreement. 1.2.2.3 Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument or other obligation to which Purchaser is a party or by which Purchaser may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to Purchaser or to the Property. 1.2.2.4 This Agreement is, and all agreements, instruments and documents to be executed by Purchaser pursuant to this Agreement shall be, duly executed by and shall be valid and legally binding upon Purchaser and enforceable in accordance with their respective terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of in compliance with this Agreement by Purchaser. 1.2.2.5 If the Purchaser becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by the Purchaser under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based upon the Purchaser’s knowledge and/or belief as of a certain date, the Purchaser will give immediate written notice of such changed fact or circumstance to the City. 1.3 Effective Date. This Agreement is dated _______, 2021 for reference purposes only. This Agreement shall not become effective until the date on which all of the following are true (“Effective Date”): (i) this Agreement is approved and executed by the appropriate authorities of Purchaser and delivered to City; (ii) Purchaser has delivered to City a certified copy of the official action taken by all of the members of the Purchaser approving this Agreement, in the form attached to this Agreement as Exhibit F; (iii) following all legally required notices and hearings, this Agreement is approved by the City Council; and (iv) this Agreement is executed by the authorized representatives of City. 1.4 Exhibit List. The following is a list of the Exhibits attached to this Agreement. Each of the Exhibits is incorporated by this reference into the text of this Agreement. Exhibit A Legal Description of Property Exhibit B [Intentionally Deleted] Exhibit C Form of SLA Restrictive Covenant Exhibit D Form of Grant Deed Exhibit E Form of Notice of Agreement Exhibit F Form of Official Action of Purchaser Exhibit G [Intentionally Deleted] 61147.00310\34503815.2 -10- ARTICLE II PROPERTY DISPOSITION 2.1 Purchase and Sale. In exchange for the Purchase Price and the Purchaser’s other covenants and undertakings set forth in this Agreement, the City shall sell the Property to the Purchaser and the Purchaser shall purchase the Property from the City pursuant to the terms and conditions of this Agreement. For the purposes of exchanging funds and documents to complete the sale from the City to the Purchaser and the purchase by the Purchaser from the City of the Property pursuant to the terms of this Agreement, the City and the Purchaser agree to open an escrow (“Escrow”) with the Escrow Holder. ARTICLE III of this Agreement constitutes the joint escrow instructions of the Parties to the Escrow Holder for completion of the Escrow for the sale of the Property, as contemplated by this Agreement. The Purchaser and the City shall execute such further escrow instructions, consistent with the provisions of this Agreement, as may be reasonably requested by the Escrow Holder. In the event of any conflict between the provisions of this Agreement and any other escrow instructions requested by the Escrow Holder, the provisions of this Agreement shall control. 2.2 Payment of Purchase Price. The Purchaser shall deposit the Purchase Price into Escrow, subject to credit to the Purchaser for the Earnest Money Deposit. 2.3 Earnest Money Deposit. Concurrent with its opening of the Escrow, the Purchaser shall deposit into Escrow the Earnest Money Deposit. The Escrow Holder shall deposit the Earnest Money Deposit into an interest bearing account. All interest earned on such funds shall be added to the original principal amount of the Earnest Money Deposit and be considered part of the same. The Earnest Money Deposit shall be nonrefundable upon the conclusion of the Due Diligence Period. Upon the Close of Escrow, the Earnest Money Deposit shall be credited to the Purchaser toward the Purchase Price and paid to the City as part of the Purchase Price. Should Escrow fail to close as a result of a default by Purchaser, the Earnest Money Deposit shall be forfeited by Purchaser and shall be paid to the City upon the cancelation of Escrow in accordance with Section 3.10. 2.4 Title Approval. As soon as practicable following the opening of the Escrow, the City shall obtain from Title Company the Preliminary Report and deliver a copy of the Preliminary Report to the Purchaser. Within thirty (30) days following the Purchaser’s receipt of a Preliminary Report for the entire Property, the Purchaser shall deliver the Purchaser’s Title Notice to the City. If the Purchaser fails to deliver the Purchaser’s Title Notice to the City within thirty (30) days following the Purchaser’s receipt of the Preliminary Report, the Purchaser will be deemed to disapprove the status of title to the Property and refuse to accept title to the Property, in which case the City shall have the right, subject to Section 2.4.2, to cancel the Escrow and terminate this Agreement, in the City’s sole discretion, without liability to the Purchaser or any other person, by delivery of a written notice of termination to the Purchaser and Escrow Holder. Within twenty (20) days following receipt by the City of Purchaser’s Title Notice, if any, the City shall serve City’s Title Notice Response. If Purchaser’s Title Notice does not object to any matter in the Preliminary Report, the City shall not be required to serve City’s Title Notice Response. If the City does not serve City’s Title Notice Response, if necessary, within twenty (20) days following its receipt of Purchaser’s Title Notice, the City shall be deemed to elect not to remove any matter objected to in 61147.00310\34503815.2 -11- Purchaser’s Title Notice, if any, from the Preliminary Report. If the City elects in City’s Title Notice Response to cause the removal of any matter objected to in Purchaser’s Title Notice from the Preliminary Report, the City shall cause the removal of each such objectionable matter from the Preliminary Report within sixty (60) days following receipt by the Purchaser of City’s Title Notice Response or such other period of time that may be agreed to in writing by both the City and the Purchaser. If the City is unwilling or unable to cause the removal of any matter objected to in Purchaser’s Title Notice from the Preliminary Report, then, within ten (10) days following the Purchaser’s receipt of City’s Title Notice Response stating that the City is unwilling to remove or cause the removal of any matter objected to in Purchaser’s Title Notice or upon the expiration of the above sixty (60) day time period during which the City elected to remove such objectionable matters from the Preliminary Report and was unable to do so, the Purchaser may either (1) refuse to accept the title to and conveyance of the Property, in which case the Parties shall have the right, subject to Section 2.4.2, to cancel the Escrow and terminate this Agreement without liability to either Party or any other person, by delivery of a written notice of termination to the Escrow Holder, or (2) waive its objection to any items set forth in Purchaser’s Title Notice by delivering Purchaser’s Title Notice Waiver to the City. Failure by the Purchaser to deliver Purchaser’s Title Notice Waiver, where City’s Title Notice Response or the City’s failure to serve City’s Title Notice Response indicates the City’s election not to cause the removal of any matter objected to in Purchaser’s Title Notice from the Preliminary Report, for the City to deliver City’s Title Notice Response under this Agreement, will be deemed the Purchaser’s continued refusal to accept the title to and conveyance of the Property, in which case the City shall have the right, subject to Section 2.4.2, to cancel the Escrow and terminate this Agreement, in the City’s sole discretion, without liability to the Purchaser or any other person, by delivery of a written notice of termination to the Purchaser and Escrow Holder. 2.4.1 If at any time prior to the Close of Escrow the Title Company issues an updated Preliminary Report containing any previously undisclosed matter affecting title to the Property, or the City becomes aware of any previously undisclosed matter affecting title to the Property, following the delivery of the Purchaser’s Title Notice, the City shall provide written notice to the Purchaser of such matter, together with any updated Preliminary Report related to such matter. The City and the Purchaser shall have such rights and obligations with respect to such previously undisclosed title matters as they did with respect to any title matters set forth in the original Preliminary Report as set forth in this Section 2.4. 2.4.2 Before exercising any right a Party may have under this Section 2.4 to cancel the Escrow and terminate this Agreement, such Party shall notify the non-terminating Parties in writing of its election to terminate and shall, upon a non-terminating Party’s request, which must be delivered, if at all, within three (3) days following its receipt of the terminating Party’s notice of election to terminate, meet and confer with the non-terminating Parties for a period of thirty (30) days. During such time, the Parties shall meet as often as reasonably requested by any Party to negotiate, in good faith, methods and means by which the objectionable title matter may be eliminated or mitigated. Nothing herein shall constitute an agreement, representation, or warranty by any Party that an acceptable resolution of the objectionable title matter will be achieved, nor shall any Party be obligated to expend any funds or undertake any other action whatsoever with respect to such title matter unless such agreement is reduced to a writing which is approved by all Parties, in their sole and absolute discretion. If, at the end of such thirty (30) day period, the Parties have not been able to agree on a mutually acceptable method of resolving such 61147.00310\34503815.2 -12- title matter, or if any proposed agreement is disapproved by the City Council, the Escrow shall be cancelled, this Agreement shall be terminated without liability to any Party, and the Parties shall proceed pursuant to Section 3.9. 2.5 Purchaser Investigations. 2.5.1 The Purchaser shall have until the expiration of the Due Diligence Period to complete all of its Due Diligence Investigations with respect to the entirety of the Property. The Purchaser shall complete all of its Due Diligence Investigations within the Due Diligence Period and shall conduct all of its Due Diligence Investigations at its sole cost and expense. The Purchaser shall rely solely and exclusively upon the results of its Due Diligence Investigations of the Property, including, without limitation, investigations regarding geotechnical soil conditions, compliance with applicable laws pertaining to the use of the Property by the Purchaser and any other matters relevant to the condition or suitability of the Property for any particular project or development, as the Purchaser may deem necessary or appropriate. City makes no representation or warranty to the Purchaser relating to the condition of the Property or suitability of the Property for any intended use or development by the Purchaser. The Purchaser shall deliver a Due Diligence Investigation Conclusion Notice to the City and the Escrow Holder prior to the end of the Due Diligence Period. If the Purchaser does not unconditionally accept the condition of the Property by delivery of its Due Diligence Investigation Conclusion Notice indicating such acceptance prior to the end of the Due Diligence Period, the Purchaser shall be deemed to have rejected the condition of the Property and refused to accept conveyance of title to the Property. If the condition of the Property is rejected or deemed rejected by the Purchaser, then the City shall have the right, subject to Section 2.5.2, to cancel the Escrow and terminate this Agreement, in the City’s sole discretion, without liability to the Purchaser or any other person, by delivery of a written notice of termination to the Purchaser and Escrow Holder. The Purchaser shall accept all conditions of the Property, without any liability of the City whatsoever, upon the Purchaser’s acceptance of the condition of the Property indicated in its Due Diligence Investigation Conclusion Notice. The Purchaser’s delivery of its Due Diligence Investigation Conclusion Notice indicating the Purchaser’s unconditional acceptance of the condition of the Property shall evidence the acceptance of the condition of the Property by the Purchaser in its existing “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS” condition, as of the last day of the Due Diligence Period. In its sole discretion, the Purchaser may accept the Property in its “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS” condition at any time before the end of the Due Diligence Period. The Purchaser shall conduct during the Due Diligence Period such environmental assessment(s) of the Property as the Purchaser deems appropriate. If such assessment(s) do not reveal the presence of any Hazardous Substances on the Property in levels that exceed applicable Governmental Requirements, then the City shall promptly and at its sole cost and expense install security fencing around the Property. If such assessment(s) do reveal the presence of any Hazardous Substances on the Property in levels that exceed applicable Governmental Requirements, then the City and the Purchaser shall negotiate in good faith in an effort to reach agreement as to the allocation of responsibility and cost of remediation thereof. 2.5.2 Any Due Diligence Investigations of the Property by the Purchaser shall not unreasonably disrupt any then-existing use or occupancy of the Property or the operations of the City. The Purchaser shall be liable for any damage or injury to any person or property arising from the acts of the Purchaser, its employees, agents or representatives during the course of any 61147.00310\34503815.2 -13- Due Diligence Investigations on the Property and the Purchaser shall indemnify, defend with counsel reasonably acceptable to the City and hold harmless the City and its elected officials, officers, directors, attorneys, contractors, agents and employees from any and all actual or alleged liens, claims, demands or liability arising from any Due Diligence Investigations by the Purchaser on the Property. Prior to commencing any Due Diligence Investigations on the Property, the Purchaser shall deliver copies of policies or certificates of insurance to the City evidencing compliance by the Purchaser with the insurance requirements of Section 5.11. 2.5.3 Before exercising any right a Party may have under this Section 2.5 to cancel the Escrow and terminate this Agreement, such Party shall notify the non-terminating Parties in writing of its election to terminate and shall, upon a non-terminating Party’s request, which must be delivered, if at all, within three (3) days following its receipt of the terminating Party’s notice of election to terminate, meet and confer with the non-terminating Parties for a period of thirty (30) days. During such time, the Parties shall meet as often as reasonably requested by any Party to negotiate, in good faith, methods and means by which the objectionable Due Diligence matter may be eliminated or mitigated. Nothing herein shall constitute an agreement, representation, or warranty by any Party that an acceptable resolution of the objectionable Due Diligence matter will be achieved, nor shall any Party be obligated to expend any funds or undertake any other action whatsoever with respect to such Due Diligence matter unless such obligation is reduced to a writing which is approved by all Parties, in their sole and absolute discretion. If, at the end of such thirty (30) day period, the Parties have not been able to agree on a mutually acceptable method of resolving the objectionable Due Diligence matter, or if any proposed agreement is disapproved by the City Council, the Escrow shall be cancelled, this Agreement shall be terminated without liability to any Party, and the Parties shall proceed pursuant to Section 3.10. 2.6 [INTENTIONALLY DELETED]. ARTICLE III ESCROW INSTRUCTIONS 3.1 Opening of Escrow. For purposes of this Agreement, the opening of Escrow shall be the first date on which a fully executed copy of this Agreement and Earnest Money Deposit are deposited with Escrow Holder (“Escrow Opening Date”). The Purchaser shall cause the Escrow to be opened within five (5) days following the Effective Date. Escrow Holder shall promptly confirm in writing to each of the Parties the date of the Escrow Opening Date. This ARTICLE III shall constitute the joint escrow instructions of the City and the Purchaser to Escrow Holder for conduct of the Escrow to complete the purchase and sale of the Property between them, as contemplated in this Agreement. 3.2 Conditions to Close of Escrow. The conditions set forth below shall be satisfied or waived in writing by the respective benefited Party on or before the Escrow Closing Date or the Party benefited by any unsatisfied condition shall not be required to proceed to close Escrow. 3.2.1 Purchaser’s Conditions to Close of Escrow. The Purchaser’s obligation to purchase the Property from the City on the Escrow Closing Date shall be subject to 61147.00310\34503815.2 -14- the satisfaction of the following conditions precedent, each of which can only be waived in writing by the Purchaser: 3.2.1.1 The Purchaser agrees to accept the title to and conveyance of the Property, pursuant to Section 2.4; 3.2.1.2 The Purchaser delivers its Due Diligence Investigation Conclusion Notice to both the City and Escrow Holder indicating the Purchaser’s unconditional acceptance of the condition of the Property, prior to the expiration of the Due Diligence Period; 3.2.1.3 The City’s Planning Commission finds, pursuant to Government Code Section 65402, that the sale of the Property is consistent with the City’s General Plan; 3.2.1.4 The Title Company is unconditionally committed to issue the Title Policy for the Property, subject to any Permitted Exceptions, to the Purchaser; 3.2.1.5 The City deposits the items into the Escrow required by Section 3.4; 3.2.1.6 The representations, warranties and covenants of the City set forth in Section 1.2.1 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date; 3.2.1.7 [intentionally deleted] 3.2.1.8 The City has completed all of its material obligations required by this Agreement to be completed prior to the Close of Escrow. 3.2.2 City’s Conditions to Close of Escrow. The City’s obligation to sell the Property to the Purchaser on or before the Escrow Closing Date shall be subject to the satisfaction of the following conditions precedent, which can only be waived in writing by the City: 3.2.2.1 The Purchaser has deposited the Purchase Price less the Earnest Money Deposit into Escrow; 3.2.2.2 The Purchaser agrees to accept the title to and conveyance of the Property, pursuant to Section 2.4; 3.2.2.3 The Purchaser delivers its Due Diligence Investigation Conclusion Notice to both the City and Escrow Holder indicating the Purchaser’s unconditional acceptance of the physical condition of the Property, prior to the expiration of the Due Diligence Period; 3.2.2.4 The City’s Planning Commission finds, pursuant to Government Code Section 65402, that the sale of the Property is consistent with the City’s General Plan; 3.2.2.5 The Title Company is unconditionally committed to issue the Title Policy for the Property, subject to any Permitted Exceptions, to the Purchaser; 61147.00310\34503815.2 -15- 3.2.2.6 [intentionally deleted] 3.2.2.7 [intentionally deleted] 3.2.2.8 [intentionally deleted] 3.2.2.9 The Purchaser has completed all of its material obligations required by this Agreement to be completed prior to the Close of Escrow; 3.2.2.10 The representations, warranties and covenants of the Purchaser set forth in Section 1.2.2 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date; and 3.2.2.11 The Purchaser deposits the funds and items into the Escrow required by Section 3.3 for the Escrow. 3.3 Purchaser’s Escrow Deposits. Following satisfaction or waiver of each of the Purchaser’s conditions to Close of Escrow set forth in Sections 3.2.1, as applicable, the Purchaser shall deposit the following funds and documents into Escrow at least two (2) business days prior to the Escrow Closing Date in a writing delivered to the Parties: 3.3.1 Purchase Price and Other Funds. Purchase Price, less the amount of the Earnest Money Deposit, plus any additional funds required to be deposited into Escrow by the Purchaser under the terms of this Agreement to close the Escrow, all in immediately available funds. 3.3.2 PCO Statement. A PCO Statement executed by the authorized representative(s) of the Purchaser. 3.3.3 Acceptance of Grant Deed. The Certificate of Acceptance of the Deed, in the form attached to the Grant Deed, executed by the authorized representative(s) of the Purchaser in recordable form. 3.3.4 Notice of Agreement. The Notice of Agreement executed by the authorized representative(s) of the Purchaser in recordable form. 3.4 City’s Escrow Deposits. Following satisfaction or waiver of each of the City’s conditions to Close of Escrow set forth in Sections 3.2.2, as applicable, the City shall deposit the following documents into Escrow at least two (2) business days prior to the Escrow Closing Date: 3.4.1 Grant Deed. The Grant Deed executed by the authorized representative(s) of the City in recordable form. 3.4.2 SLA Restrictive Covenant. The SLA Restrictive Covenant executed by the authorized representative(s) of the City in recordable form. 3.4.3 FIRPTA Affidavit (City). The FIRPTA Affidavit completed and executed by the authorized representative(s) of the City. 61147.00310\34503815.2 -16- 3.4.4 Notice of Agreement. The Notice of Agreement executed by the authorized representative(s) of the City in recordable form. 3.5 Closing Procedure. When each of the Purchaser’s Escrow required deposits, as set forth in Section 3.3, and each of the City’s Escrow required deposits, as set forth in Section 3.4, are deposited into Escrow, Escrow Holder shall request confirmation in writing from both the City and the Purchaser that each of their respective conditions to the Close of Escrow, as set forth in Section 3.2, are satisfied or waived. Upon Escrow Holder’s receipt of written confirmation from both the City and the Purchaser that each of their respective conditions to the Close of Escrow are either satisfied or waived, Escrow Holder shall close the Escrow for the Property by doing all of the following: 3.5.1 Recordation of Documents. File the following with the Office of the Recorder of the County, for recordation in the order set forth in Section 3.7, (i) the Grant Deed, with the Purchaser’s certificate of acceptance attached, (ii) the Notice of Agreement, and (iii) the SLA Restrictive Covenant. 3.5.2 Distribution of Recorded Documents. Distribute each recorded document to the Party or person designated for such distribution in Section 3.7. 3.5.3 PCO Statement. File the PCO Statement with the Office of the Recorder of the County. 3.5.4 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States Internal Revenue Service. 3.5.5 Title Policy. Obtain and deliver the Title Policy to the Purchaser. 3.5.6 Purchase Price. Deliver the Purchase Price to the City, less the City’s share of Escrow closing costs, and less any other charges to the account of the City, and return any remaining funds held by Escrow Holder for the account of the Purchaser to the Purchaser, less the Purchaser’s share of Escrow closing costs, and less any other charges to the account of the Purchaser. 3.6 Close of Escrow. Close of Escrow shall occur no later than the earlier of: (1) the tenth (10th) business day following Escrow Holder’s receipt of written confirmation from both the City and the Purchaser of the satisfaction or waiver of all conditions precedent to the Close of Escrow for the Property, or (2) thirty (30) days from the end of the Due Diligence Period (the “Escrow Closing Date”). If for any reason the Close of Escrow has not occurred by the Escrow Closing Date, then any Party not then in default of this Agreement may cancel the Escrow and terminate this Agreement, subject to the notice and cure provisions of Section 7.1 (to the extent applicable), without liability to any other Party or any other person for such termination and cancellation, by delivering written notice of termination to the other Party(ies) and Escrow Holder and, thereafter, the Parties shall proceed pursuant to Section 3.10 if the non-terminating Party is not in default or pursuant to Section 7.2 or 7.3 (as applicable) if the non-terminating Party is in default. Without limiting the right of any Party to terminate this Agreement, pursuant to the preceding sentence, if Escrow does not close on or before the Escrow Closing Date, and no Party has exercised its contractual right to cancel Escrow and terminate this Agreement before such time, 61147.00310\34503815.2 -17- then Escrow shall close as soon as reasonably possible following the first date on which Escrow Holder is in a position to close the Escrow pursuant to the terms and conditions of this Agreement. 3.7 Recordation and Distribution of Documents. As applicable, Escrow Holder shall cause the following documents to be recorded in the official records of the Recorder of the County in the following order of priority at the Close of Escrow: (i) the Grant Deed, with the Purchaser’s certificate of acceptance attached, (ii) the Notice of Agreement, and (iii) the SLA Restrictive Covenant, and (iv) any other documents to be recorded through Escrow upon the joint instructions of the Parties. All recorded documents shall provide that they are to be returned to Escrow Holder after recordation. When originals of such recorded documents are returned to Escrow Holder, Escrow Holder shall deliver: (i) the original Grant Deed, with the Purchaser’s original certificate of acceptance attached, to the Purchaser and copies to the City, each showing all recording information, (ii) the original of the Notice of Agreement to the City, with copies to the Purchaser, each showing all recording information, (iii) the SLA Restrictive Covenant to the City, with copies to the Purchaser , each showing all recording information, and (iv) the original of any other document recorded at the close of Escrow to the Party or other person designated in the joint escrow instructions of the Parties for such recordation and a copy of each such document to the other Party or Parties, each showing all recording information. 3.8 Escrow Closing Costs, Taxes and Title Policy Premium. The City and the Purchaser shall each pay one-half (1/2) of the Escrow fees and such other costs as Escrow Holder may charge for the conduct of the Escrow. Escrow Holder shall notify the Purchaser and the City of the costs to be borne by each of them at the Close of Escrow by delivering the Escrow Holder’s estimated closing/settlement statement to both the City and the Purchaser at least four (4) business days prior to the Escrow Closing Date. The City shall pay the premium charged by the Title Company for the standard Title Policy for the Property, exclusive of any endorsements or other supplements to the coverage of such Title Policy that may be requested by the Purchaser, as well as documentary transfer taxes and any and all other charges, fees and taxes levied by a Governmental Authority relative to the conveyance of any portion of the Property through the Escrow transaction contemplated in this Agreement. The Purchaser shall pay any and all recording fees relative to the conveyance of any portion of the Property through the Escrow transaction contemplated in this Agreement. 3.9 Escrow Cancellation Charges. If the Escrow fails to close due to the City’s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, the City shall pay all ordinary and reasonable Escrow and title order cancellation charges. If the Escrow fails to close due to the Purchaser’s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, the Purchaser shall pay all ordinary and reasonable Escrow and title order cancellation charges. If the Escrow fails to close for any reason other than the material default of either the Purchaser or the City and the Escrow is cancelled and this Agreement is terminated, the Purchaser and the City shall each pay one-half (1/2) of any ordinary and reasonable Escrow and title order cancellation charges. 3.10 Escrow Cancellation. If this Agreement is terminated and the Escrow cancelled pursuant to a contractual right granted to a Party in this Agreement to terminate this Agreement and cancel the Escrow, other than due to the material default of another Party, the Parties shall do each of the following: 61147.00310\34503815.2 -18- 3.10.1 Cancellation Instructions. The Parties shall, within three (3) business days of receipt of Escrow Holder’s written request, execute any reasonable Escrow cancellation instructions requested by Escrow Holder. 3.10.2 Return of Funds and Documents. Within ten (10) days of receipt by the Parties of a settlement statement of Escrow and title order cancellation charges from Escrow Holder: (i) the Purchaser or Escrow Holder shall return to the City any documents previously delivered by the City to the Purchaser or Escrow Holder, (ii) the City or Escrow Holder shall return to the Purchaser all documents previously delivered by the Purchaser to the City or Escrow Holder; (iii) Escrow Holder shall return to the Purchaser any funds deposited by Purchaser into Escrow, including the Earnest Money Deposit, less the Purchaser’s share of customary and reasonable Escrow and title order cancellation charges, if any; and (iv) Escrow Holder shall return to the City any funds deposited by City into Escrow if it has already been deposited, less the City’s share of customary and reasonable Escrow and title order cancellation charges, if any. 3.11 Report to IRS. Following the Close of Escrow and prior to the last date on which such report is required to be filed with the Internal Revenue Service, if such report is required pursuant to Section 6045(e) of the Internal Revenue Code, Escrow Holder shall report the gross proceeds of the purchase and sale of the Property to the Internal Revenue Service on Form 1099- B, W-9 or such other form(s) as may be specified by the Internal Revenue Service pursuant to Section 6045(e). Upon the filing of such reporting form with the Internal Revenue Service, Escrow Holder shall deliver a copy of the filed form to the City and the Purchaser. ARTICLE IV [INTENTIONALLY DELETED] ARTICLE V PURCHASER COVENANTS 5.1 Surplus Land Act Affordable Housing Inclusionary Covenant. Pursuant to Section 54233 of the SLA, the parties agree that a restrictive covenant substantially in the form of Exhibit C shall be recorded in the Official Records of the Recorder of the County at or before the Close of Escrow 5.2 No Conveyance to Tax Exempt Entity. The Purchaser for itself, its successors and assigns to all or any part or portion of the Property, covenants and agrees that: 5.2.1 Notwithstanding anything in this Agreement to the contrary, the Purchaser shall not use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Property or any portion of any of the foregoing to any entity or person, or for any use of the Property or any portion of any of the foregoing, that is partially or wholly exempt from the payment of real or personal property taxes or that would cause the exemption of the payment of all or any portion of real or personal property taxes otherwise assessable regarding the Property, or any portion of any of the foregoing, without the prior written consent of the City, which may be withheld in the City’s sole and absolute discretion. 61147.00310\34503815.2 -19- 5.2.2 If the Property, or any portion of the Property, shall be conveyed, transferred or sold to any entity or person that is partially or wholly exempt from the payment of real or personal property taxes otherwise assessable against the Property, or any portion thereof, without the prior written consent of the City, then, at the City’s election and in addition to all other remedies available to the City under this Agreement or at law or in equity, the Purchaser shall pay to the City a fee in lieu of payment of such taxes each year in an amount determined by the City to be one percent (1%) of the “full cash value” of the Property, or portion thereof, as may be subject to such exemption from payment of real or personal property taxes. The City’s determination of “full cash value” for in-lieu payment purposes under this Section 5.2.2 shall be established by the City each year, if necessary, by reference to the real or personal property tax valuation principles and practices generally applicable to a county property tax assessor under Section 1 of Article XIIIA of the California Constitution. The City’s determination of “full cash value” and that an in-lieu payment is due shall be conclusive on such matters. If the City determines that an amount is payable as an in-lieu payment under this Section 5.2.2 in any tax year, then such amount shall be paid to the City for that tax year within forty-five (45) days following transmittal by the City to the Purchaser of an invoice for payment of the in-lieu amount. 5.2.3 The covenants of this Section 5.2 shall run with the land of the Property, shall be enforceable against the Purchaser and its successors and assigns, and shall be covenants set forth in the Grant Deed. 5.3 [intentionally deleted] 5.4 [intentionally deleted] 5.5 Obligation to Refrain from Discrimination. The Purchaser for itself, its successors and assigns to all or any part or portion of the Property, covenants and agrees that: 5.5.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Purchaser, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property. The covenant of this Section 5.5 shall run with the land of the Property and shall be enforceable against the Purchaser and its successors and assigns in perpetuity and be a covenant in the Grant Deed and the Notice of Agreement. 5.5.2 The covenant of this Section 5.5 shall run with the land of the Property in perpetuity, shall be enforceable against the Purchaser and its successors and assigns, and shall be covenants set forth in the Grant Deed. 5.6 Form of Non-Discrimination and Non-Segregation Clauses. The Purchaser for itself, its successors and assigns to all or any part or portion of the Property, covenants and agrees that: 5.6.1 The Purchaser, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the 61147.00310\34503815.2 -20- Property (or any portion thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants: 5.6.1.1 In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.” 5.6.1.2 In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.” 5.6.1.3 In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub-lessees, sub-tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. 5.6.2 The covenant of this Section 5.6 shall run with the land of the Property in perpetuity, shall be enforceable against the Purchaser and its successors and assigns, and shall be covenants set forth in the Grant Deed. 5.7 Prohibited Uses. No portion of the Property shall be used for a junkyard, adult entertainment, adult movie theater, adult bookstore, massage parlor, pawn shop, dollar store, check cashing center (the foregoing shall in no event prohibit banking facilities within a grocery store or a walk up ATM), payday loan or other similar business, laundromat (not including full service dry cleaners), business engaged in any commercial cannabis activity, tattoo parlor or fortuneteller, or for the sale of narcotics paraphernalia, or for the long term treatment, storage or disposal of Hazardous Materials. 61147.00310\34503815.2 -21- 5.8 Survival of Special Development Covenants. All of the covenants set forth in ARTICLE V, inclusive, shall be a covenant running with the land of the Property and each such special development covenant shall survive the Close of Escrow, execution and recordation of the Grant Deed, and issuance and recordation of any Certificate of Completion for the time period specifically set forth in each such special development covenant. The Parties acknowledge that although the special development covenants apply to the entirety of the Property, portions of the Property may, in accordance with the Permitted Transfer requirements, be sold or otherwise transferred to various successors and assigns of the Purchaser. Accordingly, the City agrees that with respect to enforcement of any of the special development covenants, it is understood and agreed that, in the event of a breach of any of the special development covenants, the City will seek to enforce those covenants only against the then-current owner(s) of that portion of the Property which is not in compliance with any one or more the special development covenants. No owner of any portion of the Property which is in compliance with the special development covenants shall be liable for the breach of any of the special development covenants by any other owner of any other portion of the Property; provided, however, that the foregoing shall not preclude City from seeking damages against any prior owner of any portion of the Property if, during the tenure of such owner’s ownership, such owner’s portion of the Property was not in compliance with any one or more of the special development covenants. 5.9 Purchaser Covenant to Defend this Agreement. The Purchaser acknowledges that the City is a “public entity” and/or “public agency” as defined under applicable California law. Therefore, the City must satisfy the requirements of certain California statutes relating to the actions of public entities and public agencies including, without limitation, CEQA and SLA. Also, as a public body, the City’s action in approving this Agreement may be subject to proceedings to invalidate this Agreement or mandamus. The Purchaser assumes the risk of delays and damages that may result to the Purchaser from any third-party legal actions related to the City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, even in the event that an error, omission or abuse of discretion by the City is determined to have occurred. If a third- party files a legal action regarding the City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, either the City may terminate this Agreement on thirty (30) days written notice to the Purchaser of the City’s intent to terminate this Agreement, referencing this Section 5.9, without any further obligation to perform the terms of this Agreement and without any liability to the Purchaser resulting from such termination, unless the Purchaser unconditionally agrees to indemnify and defend the City, with legal counsel acceptable to the City, against such third-party legal action, as provided in the next sentence. Within thirty (30) days of receipt of the City’s notice of intent to terminate this Agreement, as provided in the preceding sentence, the Purchaser may offer to defend the City, with legal counsel reasonably acceptable to the City, in the third-party legal action and pay all of the court costs, attorney fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the legal action. Any such offer from the Purchaser must be in writing and reasonably acceptable to the City in both form and substance. Nothing contained in this Section 5.9 shall be deemed or construed to be an express or implied admission that the City is liable to the Purchaser or any other person or entity for damages alleged from any alleged or established failure of the City to comply with any statute, including, without limitation, CEQA or SLA. The Purchaser’s defense of such third party actions as described in this Section 5.9 shall constitute an Unavoidable Delay. 61147.00310\34503815.2 -22- 5.10 Environmental Indemnity of the City by the Purchaser. The Purchaser agrees, at its sole cost and expense, to fully indemnify, protect, hold harmless, and defend (with counsel selected by the Purchaser and approved by the City) the City and its commissions, agents, attorneys, officers, employees, and authorized representatives (collectively, the “Indemnified Parties”), from and against any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever (collectively, “Environmental Claims”) that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, the Indemnified Parties, directly or indirectly relating to or arising from any of the following “Environmental Matters” occurring during or arising from the Purchaser’s ownership of the Property or construction or operation of any particular project or development: 5.10.1 The presence of Hazardous Materials on, in, under, from or affecting all or any portion of the Property. 5.10.2 The storage, holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Materials on, in, under, from or affecting the Property. 5.10.3 The violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by the Purchaser, its agents or contractors, relating to or governing in any way Hazardous Materials on, in, under, from or affecting the Property. 5.10.4 The failure of the Purchaser, its agents or contractors, to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like in connection with the Purchaser’s activities on or regarding the Property. 5.10.5 The implementation and enforcement by the Purchaser, its agents or contractors of any monitoring, notification or other precautionary measures that may, at any time, become necessary to protect against the release, potential release or discharge of Hazardous Materials on, in, under, from or affecting the Property. 5.10.6 The failure of the Purchaser, its agents or contractors, in compliance with all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of any Hazardous Materials existing, stored or generated on, in, under or from the Property. 5.10.7 Any investigation, inquiry, order, hearing, action or other proceeding by or before any governmental agency in connection with any Hazardous Materials on, in, under, from or affecting the Property or the violation of any Environmental Law relating to the Property. 5.10.8 The Purchaser shall pay to the Indemnified Parties all costs and expenses including, without limitation, reasonable attorneys' fees and costs, incurred by the Indemnified Parties in connection with enforcement of the aforementioned environmental indemnity. 61147.00310\34503815.2 -23- ARTICLE VI [INTENTIONALLY DELETED] ARTICLE VII DEFAULTS, REMEDIES AND TERMINATION 7.1 Defaults - General. 7.1.1 Subject to any extensions of time provided for in this Agreement, failure or delay by any Party to perform any term or provision of this Agreement shall constitute an “Event of Default” under this Agreement; provided, however, that if a Party otherwise in default commences to cure, correct or remedy such default, within thirty (30) calendar days after receipt of written notice from the injured Party specifying such default, and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits), such Party shall not be deemed to be in default under this Agreement and no Event of Default shall be deemed to have occurred. 7.1.2 The injured Party shall give written notice of default to the Party in default, specifying the default complained of by the non-defaulting Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. 7.1.3 Any failure or delays by any Party in asserting any of their rights and/or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by any Party in asserting any of its rights and/or remedies shall not deprive that Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies. 7.1.4 In addition to other acts or omissions of the Purchaser that may legally or equitably constitute a default or breach of this Agreement, the occurrence of any of the following specific events shall constitute an “Event of Default” under this Agreement and shall not be subject to the notice and cure provisions of Section 7.1.1: 7.1.4.1 Any material default by the Purchaser under any Loan Documents for any purpose or reason that remains uncured following any applicable notice and expiration of any applicable cure period under such Loan Documents. 7.1.4.2 Any representation, warranty or disclosure made to the City by the Purchaser in this Agreement is materially false or misleading,. 7.1.4.3 The Purchaser fails to make any payment or deposit of funds required under this Agreement or to pay any other charge set forth in this Agreement, following seven (7) days’ written notice to the Purchaser from the City of such failure. 7.1.4.4 [intentionally deleted]. 61147.00310\34503815.2 -24- 7.1.4.5 There occurs any event of dissolution, reorganization or termination of the Purchaser that adversely and materially affects the operation or value of the Property, and such event is not corrected within five (5) days following written notice of such event from the City to the Purchaser. 7.1.4.6 The Purchaser Transfers its interest in this Agreement or the Property, or any portion thereof, whether voluntarily or involuntarily or by operation of law, in violation of the terms and conditions of this Agreement and such action is not cured within the period prescribed in Section 8.2.2. 7.1.4.7 The Purchaser becomes insolvent or a receiver is appointed to conduct the affairs of the Purchaser under state or federal law. 7.1.4.8 The Purchaser’s legal status as a California limited liability company authorized by the Secretary of State of the State of California to transact business in California is suspended or terminated. 7.2 LIQUIDATED DAMAGES TO THE CITY. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE PURCHASER UNDER THIS AGREEMENT WHICH IS NOT CURED WITHIN FIVE (5) DAYS AFTER WRITTEN NOTICE PRIOR TO THE CLOSE OF ESCROW, THE CITY MAY CANCEL THE ESCROW PURSUANT TO SECTION 3.10, AND UPON CANCELLATION OF THE ESCROW, THE CITY SHALL BE RELIEVED OF ANY OBLIGATION UNDER THIS AGREEMENT TO SELL OR CONVEY THE PROPERTY OR ANY PORTION THEREOF AND ANY SUCH ESCROW CANCELLATION SHALL BE WITHOUT ANY LIABILITY OF THE CITY TO THE PURCHASER OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. THE CITY AND THE PURCHASER ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICAL, IF NOT IMPOSSIBLE, TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY THE CITY IN THE EVENT OF A CANCELLATION OF THE ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE PURCHASER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE CITY WOULD SUFFER IN THE EVENT OF A CANCELLATION OF THE ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE PURCHASER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, THE CITY AND THE PURCHASER AGREE THAT A REASONABLE ESTIMATE OF THE CITY’S DAMAGES IN SUCH EVENT IS THE TOTAL SUM OF TWENTY-FIVE THOUSAND DOLLARS ($25,000) (THE “LIQUIDATED DAMAGES AMOUNT”). THEREFORE, UPON THE CANCELLATION OF THE ESCROW BY THE CITY DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE PURCHASER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF THE ESCROW, ESCROW HOLDER SHALL IMMEDIATELY CANCEL THE ESCROW AND PAY THE LIQUIDATED DAMAGES AMOUNT TO THE CITY, IN PART, FROM THE EARNEST MONEY DEPOSIT WITHIN FIVE (5) DAYS OF ESCROW CANCELLATION. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE CITY’S SOLE AND EXCLUSIVE REMEDY UPON THE CANCELLATION OF THE ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE PURCHASER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW. 61147.00310\34503815.2 -25- CITY’S INITIALS: _____ PURCHASER’S INITIALS: _____ 7.3 PURCHASER’S ELECTION RE: SPECIFIC ENFORCEMENT OF AGREEMENT OR WAIVER OF RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON RECOVERY OF DAMAGES PRIOR TO CLOSE OF ESCROW. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT PERTAINING TO THE CONVEYANCE OF THE PROPERTY BY THE CITY UNDER THIS AGREEMENT PRIOR TO CLOSE OF ESCROW, THE PURCHASER SHALL, AS ITS SOLE AND EXCLUSIVE REMEDY, HAVE THE RIGHT TO EXERCISE ONE OF THE ALTERNATIVE REMEDIES DESCRIBED IN SECTIONS 7.3.1 AND 7.3.2. THE PURCHASER’S ELECTION, ONCE MADE, SHALL BE IRREVOCABLE. 7.3.1 WAIVER OF RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON RECOVERY OF DAMAGES. THE PURCHASER MAY WAIVE THE REMEDIES SET FORTH IN SECTION 7.3.2 AND MAY CANCEL THE ESCROW PURSUANT TO SECTION 3.10, AND UPON CANCELLATION OF THE ESCROW, THE PURCHASER SHALL BE RELIEVED OF ANY OBLIGATION UNDER THIS AGREEMENT TO PURCHASE OR ACCEPT TITLE TO THE PROPERTY AND ANY SUCH ESCROW CANCELLATION SHALL BE WITHOUT ANY LIABILITY OF THE PURCHASER TO THE CITY OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. THE PURCHASER SHALL BE LIMITED TO RECOVERING ANY AMOUNTS ACTUALLY EXPENDED BY THE PURCHASER IN REASONABLE RELIANCE ON THIS AGREEMENT PRIOR TO THE DATE OF THE OCCURRENCE OF THE EVENT OF DEFAULT BY THE CITY, NOT TO EXCEED TEN THOUSAND DOLLARS ($10,000). THE PURCHASER WAIVES ANY RIGHT TO RECOVER ANY OTHER SUMS FROM THE CITY ARISING FROM AN EVENT OF DEFAULT BY THE CITY PRIOR TO THE CLOSE OF ESCROW. THE PURCHASER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 7.3.1, WHICH CIVIL CODE SECTION READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY.” BY INITIALING BELOW, THE PURCHASER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 7.3.1. PURCHASER’S INITIALS ____________ IN CONNECTION WITH THE WAIVERS OF THIS SECTION 7.3.1, THE PURCHASER FURTHER WAIVES THE RIGHT TO RECORD A NOTICE OF PENDENCY OF ACTION AGAINST ALL OR ANY PORTION OF THE PROPERTY EXCEPT 61147.00310\34503815.2 -26- PURCHASER MAY RECORD SUCH A NOTICE IN CONNECTION WITH ANY SUIT FOR SPECIFIC PERFORMANCE PERMITTED HEREUNDER IN THE EVENT PURCHASER ELECTS NOT TO WAIVE ITS RIGHT TO SEEK SPECIFIC PERFORMANCE UNDER SECTION 7.3.2. 7.3.2 SPECIFIC PERFORMANCE. THE PURCHASER MAY WAIVE THE REMEDIES SET FORTH IN SECTION 7.3.1 AND, IN ACCORDANCE WITH CIVIL CODE SECTION 3384, ET SEQ., INSTITUTE AN ACTION AGAINST THE CITY FOR SPECIFIC PERFORMANCE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT WHICH WERE TO HAVE BEEN COMPLETED BY THE CITY PRIOR TO THE CLOSE OF ESCROW. 7.4 Legal Actions. 7.4.1 Except as otherwise provided by Section 7.3, any Party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy available to that Party under this Agreement or at law or in equity. Such legal actions must be instituted in the Superior Court of the State of California in and for the County of Orange, California, in any other appropriate court within the County of Orange, California. 7.4.2 The procedural and substantive laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflicts of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the City of San Juan Capistrano, County of Orange, California. 7.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this ARTICLE VII are non- exclusive and cumulative, and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party(ies). 7.6 [intentionally deleted] 7.7 Purchaser Indemnification of the City. In addition to any other specific indemnification or defense obligations of the Purchaser set forth in this Agreement, the Purchaser agrees to indemnify, defend (upon written request by the City and with counsel reasonably acceptable to the City) and hold harmless the Indemnified Parties, from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney’s fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature, that are in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, through any act, omission, fault or negligence, whether active or passive, of the Purchaser or the Purchaser’s officers, agents, employees, independent contractors or subcontractors of any tier, relating in any manner to this Agreement, any work to be performed by the Purchaser related to this Agreement, the Property, or any authority or obligation exercised or undertaken by the Purchaser under this Agreement. Without limiting the generality of the 61147.00310\34503815.2 -27- foregoing, the Purchaser’s obligation to indemnify the Indemnified Parties shall include injury or death to any person or persons, damage to any property, regardless of where located, including the property of the Indemnified Parties, any workers’ compensation or prevailing wage determination, claim or suit or any other matter arising from or connected with any goods or materials provided or services or labor performed regarding the Property on behalf of the Purchaser by any person or entity. ARTICLE VIII GENERAL PROVISIONS. 8.1 Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 8.2 Restrictions on Transfers. 8.2.1 The Purchaser acknowledges that the qualifications and identity of the Purchaser are of particular importance to the City. The Purchaser further recognizes and acknowledges that the City has relied and is relying on the specific qualifications and identity of the Purchaser in entering into this Agreement with the Purchaser and, as a consequence, Transfers are permitted only as expressly provided in this Agreement. The Purchaser shall promptly notify the City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in control of the Purchaser, as well as any and all changes in the interest or the degree of control of the Purchaser by any such person, of which information the Purchaser or any of its partners, members or officers are notified or may otherwise have knowledge or information. 8.2.2 Except as expressly permitted in this Agreement, the Purchaser represents to the City that it has not made and agrees that it will not make or create, or suffer to be made or created, any Transfer other than a Permitted Transfer, either voluntarily, involuntarily or by operation of law, until after the recordation of a Certificate of Completion for the project subject to the Transfer; provided, however, that the City may approve in its reasonable discretion, Transfers other than Permitted Transfers prior to the recordation of a Certificate of Completion. In deciding whether to approve or disapprove any proposed Transfer, the City may consider the proposed transferee’s financial strength and the experience of the proposed transferee and its senior management in undertaking and successfully completing projects of a similar type and size as the project or that portion of the project proposed to be transferred. Any Transfer made in contravention of this Section 8.2 shall be voidable at the election of the City and this Agreement may be terminated by the City or the City may exercise any other remedy available to the City under the terms of this Agreement, provided, however, that (i) the City shall first notify the Purchaser in writing of its intention to terminate this Agreement or to exercise any other remedy, and (ii) the Purchaser shall have twenty (20) calendar days following its receipt of such written notice to commence and, thereafter, diligently and continuously proceed to cure the default of the Purchaser and submit evidence of the initiation and satisfactory completion of such cure to the City, in a form and substance reasonably satisfactory to the City. 61147.00310\34503815.2 -28- 8.2.3 The Purchaser shall provide the City no less than thirty (30) days prior written notice of any proposed Permitted Transfer which the Purchaser desires to enter into prior to the recordation of a Certificate of Completion for the project subject to the Transfer, other than a Permitted Transfer for which no notice shall be required. The Purchaser shall have the burden of demonstrating to the City’s reasonable satisfaction that the proposed Permitted Transfer meets the conditions and requirements of this Agreement with respect to Permitted Transfers. 8.2.4 In connection with the City’s review of any request for approval of any proposed Transfer under this Section 8.2, the Purchaser agrees to reimburse the City for those third party costs and expenses incurred by the City in connection with its review of the Purchaser’s request for approval, including, without implied limitation, the reasonable fees and costs of those outside consultants and legal counsel retained by the City to assist it in its review of the Purchaser’s request, including the City Attorney. 8.2.5 [intentionally deleted]. 8.3 Notices, Demands and Communications Between the Parties. 8.3.1 Any and all notices, demands or communications submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper, if in writing and dispatched by messenger for immediate personal delivery, by a nationally recognized overnight courier service or by registered or certified United States Mail, postage prepaid, return receipt requested, to the principal office of the City or the Purchaser, as applicable, as designated in Section 8.3.2. Such written notices, demands or communications may be sent in the same manner to such other addresses as either Party may from time to time designate. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service or three (3) calendar days after it is placed in the United States Mail, as provided in this Section 8.3. 8.3.2 The following are the authorized addresses for the submission of notices, demands or communications to the Parties: TO PURCHASER: R & H LAND PARTNERS, LLC c/o Robert J. Socci 30591 Steeplechase Drive San Juan Capistrano, CA 92675 rsocci@voitco.com COPY TO: Robert J. Socci 30591 Steeplechase Drive San Juan Capistrano, CA 92675 rsocci@voitco.com 61147.00310\34503815.2 -29- TO CITY: COPY TO: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attention: City Manager (T) 949-493-1171 (F) Best Best & Krieger, LLP 18101 Von Karman Ave, Suite 1000 Irvine, CA 92614 Attention: Elizabeth Wagner Hull (T) 949-263-2600 (F) 949-260-0972 8.4 Conflict of Interest. No member, official or employee of the City, having any conflict of interest, direct or indirect, related to this Agreement or the Property shall participate in any decision relating to this Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest. 8.5 Warranty Against Payment of Consideration for Agreement. The Purchaser warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section 8.5, shall not include persons to whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by the Purchaser. 8.6 Non-liability of City, Officials and Employees. No member, official or employee of the City shall be personally liable to the Purchaser, or any successor in interest of the Purchaser, in the event of any default or breach by the City under this Agreement or for any amount that may become due to the Purchaser or to its successor, or on any obligations under the terms of this Agreement, except as may arise from the gross negligence or willful acts of such member, official or employee. 8.7 Unavoidable Delay; Extension of Time of Performance. 8.7.1 Subject to specific provisions of this Agreement, performance by any Party under this Agreement shall not be deemed, or considered to be, in default where any such default is due to an Unavoidable Delay that is not attributable to the fault of the Party claiming an extension of time to perform. An extension of time for any Unavoidable Delay shall be for the period of the Unavoidable Delay and shall commence to run from the date of occurrence of the Unavoidable Delay, if the Party asserting the existence of the Unavoidable Delay provides the other Parties with written notice of the occurrence of the Unavoidable Delay, within ten (10) days of the commencement of such asserted Unavoidable Delay. Otherwise, the extension of time for an Unavoidable Delay shall commence on the date of receipt of written notice of the occurrence of the Unavoidable Delay by the Parties not requesting an extension of time to perform due to such 61147.00310\34503815.2 -30- Unavoidable Delay. 8.7.2 The Parties expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of either of them that may have provided a basis for entering into this Agreement and that occur at any time after the execution of this Agreement, do not constitute an Unavoidable Delay and do not provide any Party with grounds for asserting the existence of an Unavoidable Delay in the performance of any covenant or undertaking arising under this Agreement. Each Party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such Party under this Agreement. 8.8 [intentionally deleted] 8.9 Real Estate Commissions. The City shall not be liable for any real estate commissions, brokerage fees or finder fees that may arise from or be related to this Agreement. The Purchaser shall pay any fees or commissions or other expenses related to its retention or employment of real estate brokers, agents or other professionals. 8.10 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors, and assigns. 8.11 Entire Agreement. 8.11.1 This Agreement shall be executed in three (3) duplicate originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. All pages of this Agreement (exclusive of signature pages) and all exhibits constitute the entire understanding and agreement of the Parties regarding the Property and the other subjects addressed in this Agreement. 8.11.2 This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Property and the other subjects addressed in this Agreement. 8.11.3 None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with any deed conveying title to the Property and this Agreement shall continue in full force and effect before and after such conveyances. 8.11.4 All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of all Parties. 8.12 Execution of this Agreement. Following execution of three (3) originals of this Agreement by the authorized representative(s) of the Purchaser and prompt delivery of such originals, thereafter, to the City, accompanied by an official action of the governing body of the Purchaser authorizing the individuals executing this Agreement on behalf of the Purchaser to execute and perform this Agreement, in form and substance acceptable to the City, this Agreement 61147.00310\34503815.2 -31- shall be subject to the review and approval by the City Council, in their sole and absolute discretion, no later than forty-five (45) calendar days after such date of delivery to the City. If the City have not approved, executed, and delivered an original of this Agreement to the Purchaser within the foregoing time period, then no provision of this Agreement shall be of any force or effect for any purpose. 8.13 Survival of Indemnity Obligations. All general and specific indemnity and defense obligations of the Parties set forth in this Agreement shall survive the expiration or termination of this Agreement, the execution or recordation of the Grant Deed, and/or the issuance and recordation of any Certificate of Completion. 8.14 Time Declared to be of the Essence. As to the performance of any obligation hereunder as to which time is a component thereof, the performance of such obligation within the time provided is of the essence. [Signatures on Following Pages] 61147.00310\34503815.2 SIGNATURE PAGE TO 2021 PURCHASE AND SALE AGREEMENT CITY: THE CITY OF SAN JUAN CAPISTRANO a California municipal corporation Dated:_________________, 2021 By: City Manager ATTEST: ____________________________ City Clerk APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP By: _______________________ City Attorney 61147.00310\34503815.2 SIGNATURE PAGE TO 2021 PURCHASE AND SALE AGREEMENT PURCHASER: R&H LAND PARTNERS, a California limited liability company Dated:_____________________ By: [TITLE] 61147.00310\34503815.2 EXHIBIT A EXHIBIT A TO 2021 PURCHASE AND SALE AGREEMENT Legal Description of the Property The land situated in the City of San Juan Capistrano, County of Orange, State of California, described as follows: LOT “G” AS SHOWN ON A MAP FILED FEBRUARY 7, 1980 IN BOOK 143, PAGES 1 THROUGH 8 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA AND AS AMENDED BY A MAP FILED NOVEMBER 22, 1982 IN BOOK 176, PAGES 1 THROUGH 8 OF SAID PARCEL MAPS. EXCEPTING THERE FROM A PORTION THEREOF, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE OR SUBSURFACE ENTRY TO A DEPTH OF 500 FEET FROM THE PRESENT SURFACE OF SAID LAND, AS RESERVED BY HOWARD L. KRUM AND WIFE BY DEED RECORDED JANUARY 18, 1961 IN BOOK 5593, PAGE 537 OF OFFICIAL RECORDS. Assessor’s Parcel Number: 666-232-08 61147.00310\34503815.2 EXHIBIT B EXHIBIT B TO 2021 PURCHASE AND SALE AGREEMENT [Intentionally Deleted] 17236.00000\34324647.1 - 2 - EXHIBIT C TO 2021 PURCHASE AND SALE AGREEMENT SLA Restrictive Covenant 17236.00000\34324647.1 - 3 - RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Clerk EXEMPT FROM RECORDING FEES (Government Code §§6103 & 27383) Space Above Line for Recorder’s Use Only APN: 666-232-08 The undersigned grantor(s) declare(s) documentary transfer tax is $0.00. DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (“Restrictive Covenant”) is made this ___ day of _______, 20__ by the CITY OF SAN JUAN CAPISTRANO, a California municipal corporation (hereinafter “Declarant”), with reference to the following facts: R E C I T A L S A. Declarant is the sole owner in fee simple of that certain parcel consisting of approximately 1 acre located at Calle Arroyo and Rancho Viejo Road, in the City of San Juan Capistrano, County of Orange, State of California, commonly referred to as Assessor’s Parcel Number 666-232-08 as more fully described in Exhibit A and depicted in Exhibit B (the “Parcel”). B. In anticipation of the sale of the Parcel, Declarant complied with the terms of the Surplus Land Act (Government Code § 54220 et seq.) (the “Act”). C. On June 15, 2021, Declarant’s City Council adopted Resolution No. 21-06-15-06, which, among other things, declared the Parcel as non-exempt surplus land pursuant to Section 54221(b)(1) of the Act. D. Subsequently, Declarant issued a Notice of Availability of the Parcel to all statutorily entitled entities, and Declarant received no Notices of Interest within the statutory period of availability. COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS In consideration of the above recitals, Declarant hereby declares the Parcel shall be held, transferred, conveyed, leased, occupied or otherwise disposed of, and used subject to the following restrictive covenants: If ten (10) or more residential units are developed on the Parcel, not less than 15 percent of the total number of residential units developed on the Parcel shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable 17236.00000\34324647.1 - 4 - rent, as defined in Section 50053 of the California Health and Safety Code, to lower income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower income households for a period of 55 years for rental housing and 45 years for ownership housing from the date of recordation of this Restrictive Covenant. The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of Section 65915 of the California Government Code. These requirements shall be covenants or restrictions running with the land and shall be enforceable against any owner who violates a covenant or restriction and each successor-in-interest who continues the violation by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the California Government Code. IN WITNESS WHEREOF Declarant has executed this Restrictive Covenant the day and year first above written and agrees to be bound by the terms and provisions hereof. DECLARANT: CITY OF ___________, a California municipal corporation Date: By: _________________, City Manager 61147.00310\34503815.2 EXHIBIT C Exhibit A Legal Description 61147.00310\34503815.2 EXHIBIT C Exhibit B Legal Depiction 61147.00310\34503815.2 EXHIBIT D EXHIBIT D TO 2021 PURCHASE AND SALE AGREEMENT Form of Grant Deed [Attached Behind This Page] 61147.00310\34503815.2 EXHIBIT D RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: _____________ THE CITY OF SAN JUAN CAPISTRANO GRANT DEED PART ONE FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF SAN JUAN CAPISTRANO, a California municipal corporation (“Grantor”), hereby grants to R&H Land Partners, a California limited liability company (“Grantee”), that certain real property located in the City of San Juan Capistrano, County of Orange, State of California, specifically described in Exhibit “A” attached to this Grant Deed (“Property”) and made a part of this Grant Deed by this reference. PART TWO The conveyance of the Property by the Grantor to the Grantee in Part One is subject to the following community development terms, conditions, covenants and restrictions: Section 1. Conveyance Subject to Terms of a Purchase and Sale Agreement. The Property is conveyed subject to that certain 2021 Purchase and Sale Agreement, dated as of _______, 2021, between the Grantor and the Grantee (the “Agreement”). The provisions of the Agreement are incorporated into this Grant Deed by this reference and are deemed to be a part of this Grant Deed, as though fully set forth in this Grant Deed. Section 2. Condition of Property. The Grantee acknowledges and agrees that the Property is conveyed by the Grantor to the Grantee in its “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS CONDITION,” as of the date of recordation of this Grant Deed, with no warranties, expressed or implied, as to the environmental or other physical condition of the Property, the presence or absence of any patent or latent environmental or other physical condition on or in the Property, or any other matters affecting the Property. Section 3. Obligation to Refrain from Discrimination. The Grantee for itself, its successors and assigns to all or any part or portion of the Property, covenants and agrees that: 3.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Grantee, itself or any person claiming under or through it, establish or permit any 61147.00310\34503815.2 EXHIBIT D such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property. The covenant of this Section 3 shall run with the land of the Property and shall be enforceable against the Grantee and its successors and assigns in perpetuity and be a covenant in the Grant Deed and the Notice of Agreement. 3.2 The covenant of this Section 3 shall run with the land of the Property in perpetuity, shall be enforceable against the Grantee and its successors and assigns, and shall be covenants set forth in the Grant Deed. Section 4. Form of Non-Discrimination and Non-Segregation Clauses. The Grantee for itself, its successors and assigns to all or any part or portion of the Property, covenants and agrees that: 4.1 The Grantee, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any portion thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants: (a) In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.” (b) In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.” (c) In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub-lessees, sub-tenants, or vendees of the premises herein transferred.” The foregoing 61147.00310\34503815.2 EXHIBIT D provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. 4.2 The covenants of this Section 4 shall run with the land of the Property in perpetuity. Section 5. [intentionally deleted] Section 6. No Conveyance to Tax Exempt Entity. The Grantee for itself, its successors and assigns to all or any part or portion of the Property, covenants and agrees that: 6.1 The Grantee shall not use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Property, or any portion of any of the foregoing to any entity or person, or for any use of the Property, or any portion of any of the foregoing, that is partially or wholly exempt from the payment of real or personal property taxes or that would cause the exemption of the payment of all or any portion of real or personal property taxes otherwise assessable regarding the Property, or any portion of any of the foregoing, without the prior written consent of the Grantor, which may be withheld in the Grantor’s sole and absolute discretion. 6.2 If the Property, or any portion of the Property, shall be conveyed, transferred or sold to any entity or person that is partially or wholly exempt from the payment of real or personal property taxes otherwise assessable against the Property, or any portion thereof, without the prior written consent of the Grantor, then the Grantee shall pay to the Grantor a fee in lieu of payment of such taxes each year in an amount determined by the Grantor to be one percent (1%) of the “full cash value” of the Property, or portion thereof, as may be subject to such exemption from payment of real or personal property taxes. The Grantor’s determination of “full cash value” for in-lieu payment purposes under this Section 6 shall be established by the Grantor each year, if necessary, by reference to the real or personal property tax valuation principles and practices generally applicable to a county property tax assessor under Section 1 of Article XIIIA of the California Constitution. The Grantor’s determination of “full cash value” and that an in-lieu payment is due shall be conclusive on such matters. If the Grantor determines that an amount is payable as an in-lieu payment under this Section 6 in any tax year, then such amount shall be paid to the Grantor for that tax year within forty-five (45) days following transmittal by the Grantor to the Grantee of an invoice for payment of the in-lieu amount. 6.3 The covenants of this Section 6 shall run with the land of the Property, shall be enforceable against the Grantee and its successors and assigns of the Property. Section 7. [Intentionally deleted] Section 8 [Intentionally deleted] Section 9. [Intentionally Deleted]. Section 10. Covenants Run with the Land of the Property. Each of the covenants and agreements contained in this Grant Deed touch and concern the Property and each of them is 61147.00310\34503815.2 EXHIBIT D expressly declared to be a community development covenant that runs with the land for the benefit of the Grantor or the City of San Juan Capistrano, as the successor public agency to the Grantor, and such covenants run with the land in favor of the Grantor for the entire period that such covenants are in full force and effect, regardless of whether the Grantor is or remains an owner of any land or interest in land to which such covenants relate. The Grantor, in the event of any breach of any such covenants, has the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach, as provided in the Agreement or by law. The covenants contained in this Grant Deed are for the benefit of and are enforceable only by the Grantor or the City of San Juan Capistrano, as the successor public agency to the Grantor, and shall survive the execution and recordation of this Grantor Deed and the issuance and recordation of each and every Certificate of Completion, for the time period set forth above for each covenant. Section 11. Costs and Attorneys’ Fees for Enforcement Proceeding. If legal proceedings are initiated to enforce the rights, duties or obligations of any of the covenants set forth in this Grant Deed, then the prevailing party in such proceeding shall be entitled to collect its reasonable attorney fees and costs from the other party in addition to any other damages or relief obtained in such proceedings. Section 12. Effect of Unlawful Provision; Severability. In the event that any provision of this Grant Deed is held to be invalid or unlawful by a final judgment of a court of competent jurisdiction, such invalidity shall not affect the validity of any other provision of this Grant Deed. 61147.00310\34503815.2 EXHIBIT D IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed by its authorized representative(s) on this ____ day of _____________, 2021. GRANTOR: THE CITY OF SAN JUAN CAPISTRANO a California municipal corporation By: ___________________________ City Manager [ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED] 61147.00310\34503815.2 EXHIBIT D EXHIBIT A TO GRANT DEED Property Legal Description The land situated in the City of San Juan Capistrano, County of Orange, State of California, described as follows: LOT “G” AS SHOWN ON A MAP FILED FEBRUARY 7, 1980 IN BOOK 143, PAGES 1 THROUGH 8 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA AND AS AMENDED BY A MAP FILED NOVEMBER 22, 1982 IN BOOK 176, PAGES 1 THROUGH 8 OF SAID PARCEL MAPS. EXCEPTING THERE FROM A PORTION THEREOF, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE OR SUBSURFACE ENTRY TO A DEPTH OF 500 FEET FROM THE PRESENT SURFACE OF SAID LAND, AS RESERVED BY HOWARD L. KRUM AND WIFE BY DEED RECORDED JANUARY 18, 1961 IN BOOK 5593, PAGE 537 OF OFFICIAL RECORDS. Assessor’s Parcel Number: 666-232-08 61147.00310\34503815.2 EXHIBIT D CERTIFICATE OF ACCEPTANCE OF GRANT DEED The undersigned hereby acknowledges acceptance by R&H Land Partners, LLC, a California limited liability company, the Grantee in the within Grant Deed, of the delivery of the subject Property described in the within Grant Deed from the City of San Juan Capistrano. GRANTEE: R&H Land Partners, LLC, a California limited liability company Dated: _____________________ By: _________________________ [TITLE] [ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED] 61147.00310\34503815.2 EXHIBIT E EXHIBIT E TO 2021 PURCHASE AND SALE AGREEMENT Form of Notice of Agreement [Attached Behind This Page] 61147.00310\34503815.2 EXHIBIT E RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: The City of San Juan Capistrano 32400 Paseo Adelanto. San Juan Capistrano, California 92675 Attn: City Manager Exempt from Recording fee pursuant to Gov’t Code § 27383 NOTICE OF AGREEMENT 2021 Purchase and Sale Agreement TO ALL INTERESTED PERSONS PLEASE TAKE NOTICE that R&H Land Partners, LLC, a California limited liability company (the “Purchaser”) and the City of San Juan Capistrano, a California municipal corporation (the “City”) entered into an agreement entitled 2021 Purchase and Sale Agreement, dated as of ______, 2021 (the “Agreement”). A copy of the Agreement is on file with the City and is available for inspection and copying by interested persons as a public record of the City at the City’s offices located at 32400 Paseo Adelanto., San Juan Capistrano, California 92675, during the City’s regular business hours. The Agreement affects the real property described in Exhibit A attached to this Notice of Agreement (the “Property”). The meaning of defined terms, indicated by initial capitalization, used in this Notice of Agreement shall be the same as the meaning ascribed to such terms in the Agreement. PLEASE TAKE FURTHER NOTICE that the Agreement contains certain development covenants running with the land of the Property and other agreements between the Purchaser and the City affecting the Property, as set forth below (all section references are to the Agreement): Section 5.1 of the Agreement provides: 5.1 [intentionally deleted] Section 5.2 of the Agreement provides: 5.2 No Conveyance to Tax Exempt Entity. The Purchaser for itself, its successors and assigns to all or any part or portion of the Property, covenants and agrees that: 5.2.1 The Purchaser shall not use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Property, or any portion of any of the foregoing to any entity or person, or for any use of the Property, or any portion of any of the foregoing, that is partially or wholly exempt from the payment of real or personal property taxes or that would cause the exemption of the payment of all or any portion of real or personal property taxes otherwise assessable regarding the Property, or any portion of any of the foregoing, without the prior written 61147.00310\34503815.2 EXHIBIT E consent of the City, which may be withheld in the City’s sole and absolute discretion for a period of 20 years from the Effective Date. Section 5.3 of the Agreement provides: 5.3 [intentionally deleted] Section 5.4 of the Agreement provides: 5.4 [intentionally deleted] Section 5.5 of the Agreement provides: 5.5 Obligation to Refrain from Discrimination. The Purchaser for itself, its successors and assigns to all or any part or portion of the Property, covenants and agrees that: 5.5.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Purchaser, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property. The covenant of this Section 5.5 shall run with the land of the Property and shall be enforceable against the Purchaser and its successors and assigns in perpetuity and be a covenant in the Grant Deed and the Notice of Agreement. 5.5.2 The covenant of this Section 5.5 shall run with the land of the Property in perpetuity, shall be enforceable against the Purchaser and its successors and assigns, and shall be covenants set forth in the Grant Deed. 61147.00310\34503815.2 EXHIBIT E This NOTICE OF AGREEMENT is dated as of _________________, 2021, and has been executed on behalf of the Purchaser and the City by and through the signatures of their authorized representative(s) set forth below. This Notice of Agreement may be executed in counterparts and when fully executed each counterpart shall be deemed to be one original instrument. CITY: THE CITY OF SAN JUAN CAPISTRANO a California municipal corporation Dated: _________________, 2021 By: _______________________________ City Manager ATTEST: ____________________________ City Clerk APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP By: _______________________ City Attorney 61147.00310\34503815.2 EXHIBIT E PURCHASER: R&H LAND PARTNERS, LLC, a California limited liability company Dated: _____________________ By: _________________________ Robert J. Socci [ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED] 61147.00310\34503815.2 EXHIBIT E EXHIBIT A TO NOTICE OF AGREEMENT Legal Description of Property The land situated in the City of San Juan Capistrano, County of Orange, State of California, described as follows: LOT “G” AS SHOWN ON A MAP FILED FEBRUARY 7, 1980 IN BOOK 143, PAGES 1 THROUGH 8 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA AND AS AMENDED BY A MAP FILED NOVEMBER 22, 1982 IN BOOK 176, PAGES 1 THROUGH 8 OF SAID PARCEL MAPS. EXCEPTING THERE FROM A PORTION THEREOF, ONE-HALF OF ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE OR SUBSURFACE ENTRY TO A DEPTH OF 500 FEET FROM THE PRESENT SURFACE OF SAID LAND, AS RESERVED BY HOWARD L. KRUM AND WIFE BY DEED RECORDED JANUARY 18, 1961 IN BOOK 5593, PAGE 537 OF OFFICIAL RECORDS. Assessor’s Parcel Number: 666-232-08 61147.00310\34503815.2 EXHIBIT F EXHIBIT F TO 2021 PURCHASE AND SALE AGREEMENT Form of Official Action of Purchaser CERTIFICATION OF LLC AUTHORITY The undersigned members of R&H Land Partners, LLC, a California limited liability company (the “LLC”), do certify that we are all of the members of the LLC and that there are no other members. We further certify that any one (1) of the following named persons, individually: [INSERT NAMES] be, and they are, authorized and empowered for and on behalf of and in the name of the LLC to execute and deliver that certain 2021 Purchase and Sale Agreement, dated ______, 2021, between the City of San Juan Capistrano, a California municipal corporation, (“City”) and the LLC (the “Agreement”), to purchase certain real property located in the City of San Juan Capistrano, California, as specifically described in the Agreement, and all other documents to be executed by the LLC in connection with the transactions contemplated in the Agreement, and to take all actions that may be considered necessary to conclude the transactions contemplated in the Agreement and perform the other obligations of the LLC pursuant to the Agreement. The authority conferred shall be considered retroactive, and any and all acts authorized in this document that were performed before the execution of this Certificate are approved and ratified. The authority conferred shall continue in full force and effect until the City of San Juan Capistrano, a California municipal corporation shall have received notice in writing from the LLC of the revocation of this Certificate. We further certify that the activities covered by the foregoing certifications constitute duly authorized activities of the LLC; that these certifications are now in full force and effect; and that there is no provision in any document under which the LLC is organized and/or that governs the LLC’s continued existence, limiting the power of the undersigned to make the certifications set forth in this certificate, and that such certifications are in conformity with the provisions of all such documents. LLC Members: ____________________________ ____________________________ 61147.00310\34503815.2 EXHIBIT G TO 2021 PURCHASE AND SALE AGREEMENT [Intentionally Deleted]