06-0801_CENTRA REALTY CORPORATION_Purchase Agreement6 0
CITY CLERK'S DEPARTMENT - ACTION REMINDER
TO: Douglas Dumhart, Economic Development Manager + o
FROM: Christy Swanson, Secretary DATE: January 30, 2008
SITUATION:
On August 1, 2006, the City of San Juan Capistrano entered into a License and Indemnity
Agreement with Centra Realty Corporation for the unimproved real property located at the
northwest corner of the intersection of Rancho Viejo Road and Golf Club Drive. (Lot 217 of
Tract 12954)
ACTION REQUESTED:
Said Agreement states services shall be revocable by licensor at any time, effective
immediately upon notice from Licensor to Licensee. The revocation shall in no way
prejudice any of the rights and remedies available to licensor at law or in equity, and
licensee acknowledges and agrees that all of the obligations and responsibilities of
Licensee under the agreement shall continue and survive such termination.
Please notify our office if agreement has been completed or will be extended.
• ACTION TO BE TAKEN:
DATE WHEN NEXT ACTION (S) SHOULD BE TAKEN:
SIGNATURE OF OFFICIAL TAKING ACTION:, e.a (l
" "74-
DATE SIGNED: /s/('z /�
***FOR CITY CLERK'S DEPARTMENT USE ONLY***
Tickler Date: 01/30/2008
Deadline Date:
(600.301centra)
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PURCHASE AGREEMENT
This Purchase Agreement is made and entered into as of August 1, 2006, by and between the
CITY OF SAN JUAN CAPISTRANO, a municipal corporation, ("Seller"), and CENTRA REALTY
CORPORATION, a California corporation ("Buyer").
RECITALS
A. Seller is fee owner of approximately three and four tenths (3.4) acres of unimproved land
known as Lot 217 of Tract 12954, Assessor's parcel number 650-592-02, (the "Real Property")
located in the City of San Juan Capistrano, County of Orange, California.
B. Buyer desires to purchase the Property from Seller, and Seller desires to sell the same to
Buyer, all in accordance with the terms of this Agreement.
C. The Parties acknowledge that the sale of the property is contingent upon Buyer securing from
the City of San Juan Capistrano ("City") required land use and California Environmental Quality Act
("CEQA") approvals as further provided for in this Agreement with respect to any proposed project
Buyer desires to construct upon the Property,
NOW, THEREFORE, Seller and Buyer mutually agree as follows:
1. Definitions. For purposes of this Agreement, the terms set forth below shall have the
following meanings:
(a) "Authorities" means all applicable governmental and quasi -governmental entities,
divisions, departments, authorities, agencies, officers, commissions and the like having jurisdiction
over the Property or the development thereof, including, without limitation, the City and the County
of Orange.
(b) "Buyer's Title Notice" is defined in Paragraph 7(a)(i) below.
(c) "Cash Equivalent" means a wire transfer of funds or a certified or bank cashier's
check drawn on a bank licensed to do business in the State.
(d) "Close of Escrow" means the date all required documents have been approved,
executed deliver and recorded (including the Grant Deed recorded in the Official Records) and the
Purchase Price paid.
(e) "Closing Date" means not later than January 30, 2008, subject to extensions of time
permitted under Paragraph 7(a)(iii) or otherwise agreed upon by the parties.
(f) "Deposit" is defined in Paragraph 4(a) below.
(g) "Development applications" is defined in Section 7(a) (iii) below.
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(h) "Effective Date" shall mean the later of the date on which this Agreement has been
executed by Buyer and Seller and the date on which Seller's City Council has approved Seller's entry
into this Agreement.
(i) "Escrow" means the above -referenced escrow opened with Escrow Holder for the
consummation of the transaction described in this Agreement.
0) "Governmental Regulations" means any and all laws, ordinances, rules, requirements,
resolutions, policy statements and regulations (including, without limitation, those relating to density,
land use, traffic and utilities circulation and migration, subdivision, zoning, environmental, toxic or
hazardous waste, occupational health and safety, water, earthquake hazard reduction, and building
and fire codes) of the Authorities bearing on the development, construction, alteration, rehabilitation,
maintenance, use, operation, lease or sale of the Property as contemplated by Buyer.
(k) "Grant Deed" means a grant deed in a form customarily used by the Escrow Holder
for transactions related to property in the County.
(1) "Hazardous Substances", as used in this Agreement, means any hazardous or toxic
substance, material or waste which is or becomes regulated by any local governmental authority, the
State of California, or the United States Government, including but not limited to any (a) petroleum
and petroleum products, (b) substances defined as hazardous under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, the California Water Code Section 13050, the Federal Water Pollution Control Act, 33 U.S.C.
Section 1317, and California Health and Safety Code Section 25316 and (c) materials defined as
"hazardous waste" in the Resource Conservation and Recovery Act, 42 U.S.C. Section 6903 and the
Hazardous Waste Control Law, California Health and Safety Code Section 25117.
(m) "Official Records" means the Official Records of the County of Orange.
(n) "Opening of Escrow" means the date on which a fully executed copy of this
Agreement is delivered to Escrow Holder by Buyer and Seller.
(o) "Property" means, collectively, (1) the Real Property described in Recital A above, (2)
any improvements thereon, and (3) all right, title and interest of Seller in and to all streets, alleys,
appurtenances, easements and rights-of-way in, on, across, in front of, abutting and/or adjoining the
Real Property
(p) "Seller's Title Notice" is defined in Paragraph 7(a)(i) below.
(q) "Title Policy" is defined in Paragraph 10 below.
(r) "To the best of Seller's knowledge" or other references herein to Seller's knowledge
mean the knowledge a party would be expected to have by reason of continued involvement with the
Property as owner.
2. Purchase and Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller,
the Property, on the terms and conditions set forth in this Agreement.
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3. Purchase Price. The Purchase Price (the "Purchase Price") for the Property shall be Four
Million Four Hundred Fifty Thousand Dollars ($4,450,000.00).
4. Payment of Purchase Price. The Purchase Price shall be payable as follows:
(a) Deposit. Upon the Opening of Escrow, Buyer shall deposit into Escrow cash or Cash
Equivalent in the amount of One Hundred Fifty Thousand Dollars ($150,000.00) (the "Deposit").
The Deposit shall be invested by Escrow Holder in an interest-bearing account at a federally insured
bank or institution approved by Buyer, with any interest accruing thereon to be paid or credited to
Buyer. Except as provided herein, the Deposit shall be refundable to Buyer should Buyer validly
terminate this Agreement or should Seller breach this Agreement.
(b) Cash Balance. On or before the Closing Date, Buyer shall deposit into Escrow cash or
Cash Equivalent in the amount of the balance of the Purchase Price.
5. Condition of Title. (a) City acquired fee title to the Property via a formal dedication of the
parcel to the City through the City's approval of Final Subdivision Map Tract 12594, recorded in the
County Recorder's Office in 1988. The subdivision map dedication provision contained in Final Map
12594 with respect to the Property states: "Dedicated to the City of San Juan Capistrano for Public
Institutional Purposes, in fee simple" The City Council of the City of San Juan Capistrano adopted
Resolution No. 05-10-18-03 on October 18, 2005, declaring that there was no need for public use of
the Property, and further thereby declaring Parcel 217 to be "surplus property"; (b) At the Close of
Escrow, Seller shall convey fee simple title to the Property to Buyer by a Grant Deed, subject to this
fee title history and further subject to (1) liens for real property taxes not then delinquent; (2) matters
of title respecting the Property approved by Buyer in accordance with Paragraph 7(a)(i) below; (3)
matters affecting the condition of title to the Property created by or with the written consent of Buyer;
and (4) reservations for public facilities or utility easements for a water booster station and related
lines, SDGE meter facilities and a 20 -foot equestrian trail (the location of all such reserved easements
are generally depicted on Exhibit A attached hereto, and the exact reservation language to be
reasonably agreed upon by the parties prior to the Closing Date).
6. Escrow.
(a) Opening of Escrow/Escrow Costs. Buyer and Seller shall open an escrow for the
property upon a mutually agreeable date by delivering a fully executed copy of this Agreement to
Escrow Holder. Escrow Holder shall immediately notify Buyer and Seller in writing of the date of
the Opening of Escrow.
All escrow costs shall be split 50-50 between Seller and Buyer. The parties hereby agree to
designate and use First American Title (Attn: Jeanne Gould) ("Escrow Holder") as the
escrow company to handle this transaction.
(b) Close of Escrow. The Close of Escrow shall occur on the Closing Date, unless Seller
and Buyer mutually agree in writing to amend or otherwise extend the Closing Date.
(c) Escrow Instructions. This Agreement shall serve as Escrow Instructions to Escrow
Holder. Buyer and Seller hereby authorize their respective attorneys to execute and deliver to
Escrow Holder any additional or supplementary instructions as Escrow Holder may reasonably
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request and/or which may be necessary or convenient to implement the terms of this Agreement and
close the transaction contemplated hereby. In the event of any conflict or inconsistency between said
additional or supplementary instructions and this Agreement, including without limitation, any
printed or typed form prepared by Escrow Holder, the terms of this Agreement shall control; and
nothing in said additional or supplementary instructions shall be deemed to change the terms,
provisions or conditions of this Agreement unless the Parties expressly so state in writing. In
addition, in the event of any conflict or inconsistency between the provisions of this Agreement
constituting instructions to Escrow Holder (including the provisions of this Paragraph 6) and the
provisions of this Agreement constituting the agreement of the Parties to purchase and sell the
Property, the latter provisions shall control.
(d) Indemnification of Escrow Holder. If this Agreement or any matter relating hereto
shall become the subject of any litigation or controversy, then Buyer and Seller agree, jointly and
severally, to hold Escrow Holder free and harmless from any loss or expense, including attorneys'
fees, that may be suffered by it by reason thereof; provided, that the foregoing shall not release
Escrow Holder from any liability for negligence or misconduct or the breach of any of the provisions
of the Escrow instructions contained herein, including any liability for court costs and professional
fees as provided in Paragraph 6(e) below. If conflicting demands are made or notices served upon
Escrow Holder with respect to this Agreement, then Buyer and Seller expressly agree that Escrow
Holder shall be entitled to file a suit in interpleader and obtain an order from the court requiring
Buyer and Seller to interplead and litigate their several claims and rights among themselves. Upon
the filing of the action in interpleader, Escrow Holder shall be fully released and discharged from any
obligations imposed upon it by this Agreement; provided, that the foregoing shall not release Escrow
Holder from any liability for negligence or misconduct or the breach of any of the provisions of the
Escrow instructions contained herein.
(e) Non -liability of Escrow Holder. Escrow Holder shall not be liable for the sufficiency
or correctness as to form, manner, execution or validity of any instrument deposited with it, nor as to
the identity, authority or rights of any person executing such instrument, nor for failure to comply
with any of the provisions of any agreement, contract or other instrument filed with Escrow Holder or
referred to herein; provided, that Escrow Holder shall be liable for the correctness, genuineness,
sufficiency and validity of any document prepared by Escrow Holder and shall also be liable for
insuring the proper execution and identity of the executing party with respect to any document
executed in the presence of any of Escrow Holder's agents. Escrow Holder's duties hereunder shall
be limited to the safekeeping of such money, instruments or other documents received by it as
Escrow Holder, and for their disposition in accordance with the terms of this Agreement.
Notwithstanding the foregoing, if Escrow Holder is also acting as the Title Company under the terms
of this Agreement, then nothing in this Paragraph 6(e) shall limit Escrow Holder's liability under the
Title Policy.
7. Conditions to the Close of Escrow.
(a) Conditions Precedent to Buyer's Obligations. The Close of Escrow and Buyer's
obligations with respect to the transaction contemplated by this Agreement are subject to the
satisfaction, not later than the Closing Date (unless otherwise specified below), of the following
conditions, and the obligations of the Parties with respect to such conditions are as follows:
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(i) Title. Buyer shall have approved the legal description of the Real Property
attached hereto as Exhibit "A" and any matters of title respecting the Property, including those
matters disclosed by the following documents and instruments (collectively, the "Title Documents"):
(A) a preliminary title report for a CLTA Owner's Policy of title insurance dated as of or after the
Effective Date and issued by the Title Company with respect to the Property; and (B) legible copies
of all documents, whether recorded or unrecorded, referred to as exceptions to title in the preliminary
title report; and (C) Final Subdivision Tract Map 12594, which dedicated the Property in fee to the
City of San Juan Capistrano, and all documents and resolutions respecting the matters discussed in
Paragraph 6 above.
Seller shall within 30 days of the Effective Date of this Agreement, or as reasonably soon thereafter,
deliver to Buyer the above stated title documents. Within 90 days prior to close of escrow, Buyer
shall give Seller and Escrow Holder written notice (the "Buyer's Title Notice") of Buyer's
disapproval of the legal description of the Real Property, any Title Document and/or any matter of
title respecting the Property. Buyer's failure to give the Buyer's Title notice shall constitute approval
of the Title Documents and the title matters shown thereon.
Seller shall, within ten (10) days after receipt of the Buyer's Title Notice, either (i) eliminate the
matters set forth therein from the Title Policy as exceptions to title to the Property, and/or (ii) give
Buyer written notice (the "Seller's Title Notice") of those matters set forth in the Buyer's Title
Notice, if any, which Seller shall not so eliminate.
If either Seller fails timely to eliminate any matter set forth in the Buyer's Title Notice but not in the
Seller's Title Notice; or Buyer gives Seller written notice of Buyer's disapproval of the Seller's Title
Notice within five (5) days after delivery of the same to Buyer, then this condition shall be deemed to
have failed, unless subsequently waived by Buyer in writing.
(ii) Inspection. Buyer shall be satisfied, at Buyer's sole cost and expense, with the
condition of the Property, including the results of any "Phase 1" environmental study and
geotechnical studies desired by Buyer. Should Buyer fail to be satisfied with the condition of the
Property, then Buyer may, by delivery of written notice to Seller, terminate this Agreement by
delivering to Seller a notice of dissatisfaction with the Property, whereupon the Deposit, less one-half
(1/2) of any Escrow and title fees and costs, shall be refunded to Buyer and this Agreement shall be
deemed null and void and of no further force or effect with Buyer and Seller having no further rights,
obligations or liabilities hereunder except as otherwise set forth herein. If third party investigative
reports, excepting any appraisals or similar economic analysis, have been prepared, then a copy of
such reports shall be promptly delivered to Seller for Seller's review. It is further provided that if
Buyer shall have failed to deliver written notice pursuant to this Paragraph 7(a)(ii) by not later than
ninety (90) days after the Opening of Escrow, then Buyer shall be deemed to be satisfied with the
physical condition of the Property and to have waived this Paragraph 7(a)(ii).
(iii) (iii) Land Use Approvals. As a part of the purchase process, Buyer proposes in
concept to construct a commercial office building project on the Property. As a condition precedent
to the Closing Date, Buyer shall have obtained (including the running of any applicable appeals
periods) to the Buyer's satisfaction all applicable land use building, grading and other entitlements,
approval and permits and other requirements from all applicable Authorities for the project.
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Buyer shall file, complete, and diligently prosecute with City of San Juan Capistrano planning
officials all of the necessary development review applications, architectural and engineering plans,
documents, reports, technical studies, exhibits, displays, fixture specifications, landscaping plans,
water -quality management plans, and filing and deposit fees as required by the City or any other
Authorities. The parties agree that the following milestone dates shall be followed in order to
complete close of escrow date:
-Within 120 days after the Effective Date, Buyer shall submit an
application to the Planning Department, including a conceptual plan,
grading plan, and building elevations, for a pre -application conference on
the proposed development project. City shall schedule this application for
review by the Development Advisory Board within 30 days from receipt
of a complete pre -application conference submittal package, and shall
provide written comments to Buyer regarding City requirements for the
project.
-Within 60 days after the receipt of city's written comments regarding
City requirements for the project, Buyer shall submit formal approvals to
the Planning Department for all required land use applications for the
project (including applications for rezoning, subdivision, and architectural
control, as applicable), which shall incorporate City requirements as
conveyed during the pre -application conference. Within 30 days from
receipt of land use applications, City shall schedule this submittal for
review by the Development Advisory Board to determine completeness
and shall identify, in writing, any additional information required to
complete the applications. Within 30 days of receipt of written
notification of incomplete submittal items, Buyer shall submit all
information required for City to deem the application complete.
-Within 30 days of deeming the applications complete, City shall
determine whether the project requires preparation of an environmental
impact report. This period may be extended up to 15 days with the
consent of Buyer and City.
-City shall schedule public hearings on the land use applications within
120 days after completion of required environmental documents. City and
Buyer anticipate that the total time needed for entitlement processing may
take up to 16 to 18 months, depending on public input, traffic analysis,
special studies required, or public comments made on environmental
documents.
The parties intend that this schedule of performance shall be followed in order to complete the close
of escrow process by not later than January 30, 2008. The close of escrow date shall be extended for
a reasonable time if buyer needs additional time to complete the land use process, providing Buyer
has otherwise diligently prosecuted the processing of the land use entitlements in accordance with the
above stated schedule of performance.
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Accordingly, Seller agrees to process the subject land use entitlements and other approvals in a
reasonably timely manner, subject to normal processing procedures, and to provide any information
needed by Buyer to process the entitlement applications in a timely manner.
Buyer shall bear all processing costs, including any required CEQA analysis, associated with
securing required land use and other approvals for the project.
(iv) No Adverse Changes. At the Closing Date, there shall have been no adverse
changes in the physical, legal or financial condition of the Property.
(v) Seller's Deliveries. Seller shall have delivered the items described in this
Paragraph 7(a), and in Paragraphs 8(a) and 9 below, and Seller shall have otherwise timely performed
Seller's obligations hereunder.
(vi) Title Insurance. As of the Close of Escrow, the Title Company shall have
issued or shall have committed to issue the Title Policy to Buyer.
The conditions set forth in this Paragraph 7(a) are solely for Buyer's benefit and may be waived only
by Buyer. Buyer shall at all rimes have the right to waive any condition. Such waiver or waivers
shall be in writing to Seller. The waiver by Buyer of any condition shall not relieve Seller of any
liability or obligation with respect to any representation, warranty, covenant or agreement of Seller.
Except as otherwise provided herein, all approvals given by Buyer under this Paragraph 7(a) shall be
in writing and, except as provided herein, the failure of Buyer to disapprove any matter requiring its
approval under this Paragraph 7(a) by the time therefore shall be deemed approval thereof by Buyer.
Neither Seller nor Buyer shall act or fail to act for the purpose of permitting or causing any condition
to fail (except to the extent Buyer, in its own discretion, exercises its right to disapprove any such
items or matters).
(b) Conditions Precedent to Seller's Obligations. The Close of Escrow and Seller's
obligations with respect to the transactions contemplated by this Agreement are subject to the
satisfaction, by the dates specified below, of the following conditions:
(i) Buyer's Deliveries. On or before the Closing Date, Buyer shall have delivered
to Escrow Holder for disbursement as provided herein, the Purchase Price and the documents and
materials described in Paragraph 8(b) below.
(c) Failure of Conditions to Close of Escrow. If any of the conditions set forth in
Paragraphs 7(a) or 7(b) above are not timely satisfied or waived, for any reason other than the default
of Buyer or Seller under this Agreement, then:
(i) This Agreement, the Escrow and all of Buyer's and Seller's rights and
obligations hereunder, shall terminate, except as otherwise provided herein; provided, that no such
termination shall occur until the party for whose benefit such condition exists (A) has had the
opportunity to waive such condition within three (3) business days after receipt of written notice from
the other party, and (B) does not elect to waive such condition; and
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(ii) Seller, Buyer and Escrow Holder shall promptly return all documents and
funds which are held by them on the date of said termination to the party who delivered or deposited
them hereunder, including return by Escrow Holder of the Deposit and interest thereon to Buyer (less,
in the case of the party otherwise entitled to such funds, however, the amount of any cancellation
charges required to be paid by such party under Paragraph 7(d) below).
(d) Cancellation Fees and Expenses. If Escrow terminates because of the non -satisfaction
of any condition for a reason other than the default of Buyer or Seller under this Agreement, then the
cancellation charges required to be paid by and to Escrow Holder and the Title Company shall be
borne one-half (1/2) by Seller and one-half (1/2) by Buyer and all other charges shall be borne by the
party incurring same.
8. Deliveries to Escrow Holder.
(a) By Seller. Seller hereby covenants and agrees to deliver or cause to be delivered to
Escrow Holder on or prior to the Closing Date, the following instruments and documents, the
delivery of each of which shall be a condition to the performance by Buyer of its obligations under
the terms of this Agreement:
(i) Grant Deed. The Grant Deed, duly executed and acknowledged in recordable
form by Seller, conveying the Property to Buyer subject only to the Approved Title Conditions
(ii) Proof of Authority. Such proof of Seller's authority and authorization to enter
into this Agreement and consummate the transactions contemplated hereby and such proof of the
power and authority of the individual(s) executing and/or delivering any instruments, documents and
other certificates on behalf of Seller to act for and bind Seller as may be reasonably required by Title
Company and/or Buyer.
(iii) Lien Affidavits. Any lien affidavits or mechanic's lien indemnifications as
may be reasonably requested by the Title Company in order to issue the Title Policy.
(b) By Buyer. Buyer hereby covenants and agrees to deliver or cause to be delivered to
Escrow Holder on or prior to the Closing Date the following instruments and documents, the delivery
of each of which shall be a condition to the Close of Escrow:
(i) Purchase Price. The Purchase Price in accordance with Paragraphs 3 and 4
above
(ii) Prorations. The amount due Seller, if any, after the prorations are computed in
accordance with Paragraph 12 below.
9. Delivery to Buyer upon Close of Escrow. Seller hereby covenants and agrees to deliver to
Buyer, on the Closing Date, exclusive possession of the Property.
10. Title Insurance. At the Close of Escrow, Seller shall cause the Title Company to issue or
commit to issue to Buyer an CLTA Owner's Policy of Title Insurance with any title endorsements
reasonably requested by Buyer showing fee title to the Property vested in Buyer subject only to the
Approved Title Conditions ("Title Policy"). The Title Policy shall be issued with liability in an
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amount equal to the Purchase Price. Buyer shall have the right to, at Buyer's cost, increase the policy
amount or to upgrade the policy type.
11. Costs and Expenses. On close of Escrow, all costs and expenses charged by or through the
escrow, including without limitation, the premium for the title policy, all endorsements thereon, and
escrow holder fees, with the exception of the proration in paragraph 12 hereof, shall be borne by the
Seller. Each party shall bear all their own respective costs and expenses, including without
limitation, such party's attorney's fees, incurred by such party in negotiating and performing this
Agreement.
12. Prorations.
(a) General. Subject to the provisions of Paragraphs 12(b) and 12(c) below, all expenses,
if any, affecting the Property shall be paid or shall be prorated as of 11:59 P.M. on the day of the
Close of Escrow. For purposes of calculating prorations, Seller shall be deemed to be in the title to
the Property, and therefore responsible for the expenses, for the entire day upon which the Close of
Escrow occurs. Any apportionments and proration which are not expressly provided for herein shall
be made in accordance with customary practice in the County. Such adjustments, if and to the extent
known and agreed upon as of the Close of Escrow, shall be paid by Buyer to Seller (if the prorations
result in a net credit to the Seller) or by Seller to Buyer (if the proration result in a net credit to the
Buyer), by increasing or reducing the cash or Cash Equivalent to be paid by Buyer at the Close of
Escrow. Any such adjustments not determined or not agreed upon as of the Close of Escrow shall be
paid by Buyer to Seller, or by Seller to Buyer (if the prorations result in a net credit to the Buyer), by
increasing or reducing the cash or Cash Equivalent to be paid by Buyer at the Close of Escrow. Any
such adjustments not determined or not agreed upon as of the Close of Escrow shall be paid by Buyer
to Seller, or by Seller to Buyer, as the case may be, in cash or Cash Equivalent as soon as practicable
following the Close of Escrow.
(b) Taxes and Assessments. Notwithstanding the provisions of Paragraph 12(a) above to
the contrary, all non -delinquent real estate taxes and assessments on the Property shall be prorated
based on the actual current tax and assessment bills; provided, however, if the real estate tax bill has
not yet been received by Seller by the Closing Date, then current year's real estate taxes shall be
deemed to be one hundred two percent (102%) of the amount of the previous year's tax bill. If, after
the Close of Escrow, any supplemental real estate taxes are assessed against the Property pursuant to
Chapter 3.5 of Part 0.5 of Division 1 of the California Revenue and Taxation Code (§§ 75 through
75.890, inclusive) by reason of any event occurring prior to the Close of Escrow, then Seller shall pay
such taxes to Buyer within ten (10) days after demand by Buyer therefor. All liens, all delinquent
taxes and all delinquent installments of assessments on the Property shall be paid for by Seller at the
Close of Escrow from funds accruing to Seller without contribution or proration from Buyer.
13. Disbursements and Other Actions by Escrow Holder. At the Close of Escrow, Escrow Holder
shall promptly undertake all of the following in the manner herein below indicated:
(a) Funds. Disburse all funds deposited with Escrow Holder by Buyer in payment of the
Purchase Price as follows:
(i) Deduct and pay all items chargeable to the account of Seller pursuant to
Paragraph 11 above.
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(ii) If, as the result of the prorations and credits pursuant to Paragraph 12 above,
amounts are to be charged to account of Seller, deduct and/or pay the total amount of such charges.
(iii) Disburse the balance of the Purchase Price to Seller promptly upon the Close
of Escrow.
(iv) Disburse the remaining balance of the funds, if any, to Buyer upon the Close of
Escrow.
(b) Recording. Cause to be recorded in the Official Records of the County of Orange,
State of California, in the following order, the Grant Deed (with documentary transfer tax
information to be affixed after recording), and any other documents which the Parties hereto may
mutually direct to be recorded in the Official Records; and obtain conformed copies thereof for
distribution to Buyer and Seller.
(c) Title Policy. Direct the Title Company to issue the Title Policy to Buyer.
(d) Disbursement of Documents to Seller. Disburse to Seller all documents (or copies
thereof) deposited into Escrow by Buyer pursuant hereto.
(e) Disbursement of Documents to Buyer. Disburse to Buyer all documents (or copies
thereof) deposited into Escrow by Seller pursuant hereto.
14. Seller's Representations and Warranties. In addition to any express agreements of Seller
contained herein, the following constitute representations, warranties and covenants of Seller to
Buyer.
(a) Authority. Seller, as a municipal corporation, has the legal power, right and authority
to enter into this purchase and sale Agreement and the instruments referenced herein. The
individuals executing this Agreement and the instruments referenced herein on behalf of Seller have
the legal power, right and actual authority to execute this Agreement and bind Seller to the terms and
conditions hereof and thereof.
(b) Requisite Action. All requisite action (including but not limited to governmental
authorities and notices) has been taken by Seller in connection with the entering into this Agreement
and the instruments referenced herein, and the consummation of the transactions contemplated
hereby.
(c) Validity. This Agreement and all documents required hereby to be executed by Seller
shall be valid, legally binding obligations of and enforceable against Seller in accordance with their
terms. Neither the execution nor delivery of this Agreement and documents referenced herein, nor
the consummation of the transactions contemplated herein, conflict with or shall result in the breach
of any terms or provisions of any contract, loan, or other agreement to which Seller is a party or
affecting the Property. Seller has not sold, conveyed or entered into any contract for the sale of all or
any portion of the Property or any rights incident thereto, nor do there exist any options to purchase
the Property. All consents, approvals and authorizations necessary for the execution of this
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Agreement and the consummation of the transactions contemplated herein by Seller have been
obtained.
(d) In the event any person or entity files a legal action to contest the validity of this
Agreement, or any aspect thereof, Seller's right to convey title to the Property hereunder or any of the
land use entitlements or other approvals associated with this Agreement, including an environmental
challenges under CEQA or related statutes, Seller agrees to provide a legal defense on behalf of
Seller and Buyer to defend such legal actions. However, Buyer agrees and understands that in the
event that this Agreement cannot be completed due to such legal actions, Buyer shall nevertheless be
solely responsible for its costs incurred in processing land use entitlements and other approvals and
environmental documentation required for Buyer's proposed project for this subject property. This
Paragraph 14(d) is not intended to obligate Seller or Buyer to expend substantial time in connection
with any defense of legal actions, and the parties hereby agree that Seller and Buyer shall each have
the right to terminate this Agreement in the event that such defense is reasonably anticipated by
Seller and Buyer to take longer than twenty-four (24) months to complete. The Closing Date shall be
extended for a reasonable time to settle or adjudicate any legal challenges. In the event either party
elects to terminate this Agreement under this Paragraph 14(d), then the Deposit shall be returned to
Buyer. Further, in the event any resolution or settlement of any legal action places any restrictions or
requirements on Buyer, the Property or Buyer's proposed project, then Buyer shall have the right to
review and approve the same as a condition precedent hereunder (and the same shall be subject to
Buyer's termination rights under Paragraph 7(c) above).
(e) Recitals. The information contained in the Recitals is true and correct.
(f) No Brokers. Seller has not discussed this Agreement or the subject matter hereof
with, and has not engaged in any fashion or any connection with this transaction the services of, any
real estate broker, agent, or salesman, so as to create any legal right in any such broker, agent, or
salesman to claim a real estate commission or similar fee with respect to the conveyance of the
Property or the other transactions contemplated by this Agreement. Seller shall indemnify and hold
Buyer harmless from and against any and all claims (including without limitation, court costs and
reasonable attorneys' fees actually incurred in connection with any such claims) for any real estate
commissions or similar fees arising out of or in any way connected with any breach of the foregoing
representation.
(g) Lawsuits and Claims. As of the effective date of this Agreement to the best of Seller's
knowledge, there are no existing, threatened or contemplated actions, lawsuits, claims or proceedings
affecting the Property or this transaction.
(h) Bankruptcy. There are, and at the Close of Escrow there will be, no attachments,
execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings pending against Seller, and to the best of Seller's knowledge, no
such proceedings are or will be threatened or contemplated against Seller.
(i) Condition of Property. Seller has no knowledge, and Seller has received no notice, of
any violation of Governmental Regulations relating to the Property, any existing or contemplated
plan to widen or modify any street or highway contiguous to the Property or any other plan, study or
effort of the Authorities affecting the Property.
Page 11 of 18
-IRA F9478.5
0 0
0) Taxes and Assessments. Other than the amounts disclosed try the tax bills delivered to
Buyer by Seller, no other real property taxes have been or will be assessed against the Property for
the current tax year: To the best of Seller's knowledge, no special assessments or charges have been
or will be levied against the Property for any existing public Improvements or otherwise or will result
from work, activities or improvements done to the Property by Seller.
(k) Title. Seller is the legal fee simple titleholder of the Real Property and has good,
marketable and insurable title to the Property, free and clear of all liens, encumbrances, claims,
covenants, conditions, restrictions, easements, rights-of-way, options, judgments or other matters,
except as disclosed by the Title Documents. Except for the easement reservations described in
Section 5 above, there shall be no adverse change in the ownership, operation or control of Seller or
the Property from the date hereof until the Close of Escrow.
(1) Utilities. Buyer shall be responsible for the cost of construction of all utility
extensions required to serve the Property (including, without limitation, the relocation of any existing
utilities).
(m) Hazardous Materials. Seller has conducted no operations on the Property. To the best
of Seller's knowledge, there has been no dumping, discharge, disposal, storage, releasing, spillage or
leakage (whether legal or illegal, accidental or intentional) of Hazardous Material on or about the
Property or any portion thereof.
(n) Leases and Contracts. There are, and, prior to the Close of Escrow, will be, no oral or
written leases, subleases, licenses, occupancies or tenancies in effect pertaining to the Property, and
no persons or entities occupy or have the right to occupy or use all or any portion of the Property.
There are no service or maintenance contracts, warranties, guarantees, bonds, insurance policies or
other agreements (whether oral or written) which will affect or be obligations of the Buyer or the
Property following the Close of Escrow, other than the Contracts and Title Documents approved
herein. At the Close of Escrow, Seller shall deliver possession of the Property to Buyer free of actual
occupancy and any right of occupancy by any party, and, except as otherwise provided in Paragraph
7(a) above, all Contracts and Title Documents disapproved by Buyer will be terminated by Seller, at
Seller's sole cost and expense, at or prior to the Close of Escrow.
(o) Operation of Property. Seller hereby agrees, through and including the Close of
Escrow and at the Seller's sole cost and expense, that Seller will: (1) keep all existing insurance
policies affecting the Property in full force and effect; (2) comply with all Governmental Regulations
and operate, use and maintain the Property in first class condition; (3) not enter Into leases or any
other obligations, contracts or agreements affecting the Property without the prior written consent of
Buyer, which consent Buyer may withhold in its sole discretion; (4) not subject the Property to any
liens, encumbrances, covenants, conditions, easements, rights-of-way or similar matters after the date
of this Agreement which will not be eliminated prior to the Close of Escrow, (5) not make any
alterations to the Property; and (6) pay in full, prior to the Close of Escrow, all bills and invoices for
current financing, labor, goods, materials and services of any kind relating to the Property for the
period prior to the Close of Escrow.
(p) Changes. Seller shall promptly notify Buyer of any change in any condition with
respect to the Property or of any event or circumstance which makes any representation or warranty
of Seller under this Agreement untrue, misleading, or any covenant of Buyer under this Agreement
Page 12 of 18
WJ419478.5
0 0
incapable or less likely of being performed, it being understood that the Seller's obligation to provide
notice to Buyer shall in no way relieve Seller of any liability for a breach by Seller of any of Its
representations, warranties or covenants under this Agreement.
(q) General Representation. No representation, warranty or statement of Seller in this
Agreement or in any document, certificate or schedule furnished or to be furnished to Buyer pursuant
hereto contains or will contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statement or facts contained therein not misleading.
Seller's representations and warranties made in this Paragraph 14 shall be continuing and shall be
true and correct as of the Close of Escrow with the same force and effect as if remade by Seller in a
separate certificate at that time. The truth and accuracy of Seller's representations and warranties
made herein shall; constitute a condition for the benefit of Buyer to the Close of Escrow (as
elsewhere provided herein) and shall survive, and shall not merge into, the Close of Escrow and the
recording of the Grant Dead in the Official Records.
15. Buyer's Representations and Warranties. In addition to the express agreements of Buyer
contained herein, the following constitute representations and warranties of Buyer to Seller:
(a) Power and Authority. Buyer has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein. The individuals executing this Agreement and the
instruments referenced herein on behalf of Buyer have the legal power, right and actual authority to
bind Buyer to the terms and conditions hereof and thereof.
(b) Requisite Action. All requisite action (including but not limited to governmental
authorities and notices) has been taken by Buyer in connection with the entering into this Agreement
and the instruments referenced herein, and the consummation of the transactions contemplated
hereby.
(c) Validity. This Agreement and all documents required hereby to be executed by Buyer
are and shall be valid, legally binding obligations of and enforceable against Buyer in accordance
with their terms. Neither the execution nor delivery of this Agreement and documents referenced
herein, nor the consummation of the transactions herein contemplated conflict with or results in the
breach of any terms, conditions or provisions of any contract, loan, or other agreements to which
Buyer is a party. All consents, approvals and authorizations necessary for the execution of this
Agreement and the consummation of the transactions contemplated herein by Buyer have been
obtained.
(d) No Brokers. Buyer has not discussed this Agreement or the subject matter hereof
with, and has not engaged in any fashion or any connection with this transaction the services of, any
real estate broker, agent, or salesman, so as to create any legal right in any such broker, agent, or
salesman to claim a real estate commission or similar fee with respect to the conveyance of the
Property or the other transactions contemplated by this Agreement. Buyer shall indemnify and hold
Seller harmless from and against any and all claims (including without limitation, court costs and
reasonable attorneys' fees actually incurred in connection with any such claims) for any real estate
commissions or similar fees arising out of or in any way connected with any breach of the foregoing
representation.
Page 13 of 18
1-IR/40478.5
(e) General Representation. No representation, warranty or statement of Buyer in this
Agreement or in any document, certificate or schedule furnished or to be furnished to Seller pursuant
hereto contains or will contain any untrue statement or a material fact, omits or will omit to state a
material fact necessary to make the statements or facts contained therein not misleading.
Buyer's representations and warranties made in this Paragraph 15 shall be continuing and shall be
true and correct as of the Close of Escrow with the same force and effect as if remade by Buyer in a
separate certificate at that time. The truth and accuracy of Buyers representations and warranties
made herein shall constitute a condition for the benefit of Seller to the Close of Escrow and shall
survive, and shall not merge into, the Close of Escrow or the recordation of the Grant Deed in the
Official Records.
16. Notices. All notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered (including by means of professional messenger service) or
sent by registered or certified mail, postage prepaid, return receipt requested or by facsimile
transmission (provided a complete copy is transmitted by another acceptable method by 5:00 p.m. on
the next following business day), and shall be deemed received upon the date of receipt thereof (if by
personal delivery), seventy-two (72) hours after deposit into the U.S. Mail (if by U.S. Mail), or upon
electronic confirmation of successful transmission (if sent by facsimile).
To Seller: City of San Juan Capistrano
Attn: Douglas D. Dumhart, Economic Development Manager.
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Facsimile 949/488-3874
To Buyer: c/o Centra Realty Corporation
3 Park Plaza, Suite 1490
Irvine, CA 92614
Attn: George Peterson
Facsimile: 949.476.8520
To Escrow Holder: First American Title Company
8105 Irvine Center Drive, Suite 450
Irvine, CA 92618
Attn: Jeanne Gould
Facsimile: 714.800.5379
Notice of change of address shall be given by written notice in the manner detailed in this Paragraph
17.
17. No Broker Commission. Seller shall not pay any broker commission as a part of this
transaction.
18. Required Actions of Buyer and Seller. Buyer and Seller agree to execute all such instruments
and documents and to take all actions pursuant to the provisions hereof in order to consummate the
Page 14 of 18
1-IR/46478.5
0 0
purchase and sale herein contemplated and shall use their best efforts to accomplish the Close of
Escrow in accordance with the provisions hereof.
19. Entry. Buyer and Buyer's representatives, agents and designees shall have the right, at
reasonable times and upon reasonable notice to Seller to enter upon the Property, at Buyer's own
cost, for any purpose in connection with its proposed purchase, and the right to make such
inspections, investigations and tests as Buyer may elect to make or obtain. The exercise by Buyer of
any of the preceding or any other act of Buyer shall not negate any representation, warranty or
covenant of Seller or modify any of Buyer's rights or Seller's obligations under this Agreement.
Buyer hereby indemnifies Seller from any and all liabilities and losses (including mechanics' liens)
arising out of any such entry by Buyer or its agents, designees or representatives, excepting liabilities
and losses resulting from the mere discovery of a condition or from Seller's negligence or intentional
misconduct.
20. Legal and Equitable Enforcement of this Agreement.
(a) Default by Seller. In the event of the default or breach by Seller of any of its
obligations, covenants, representations or warranties under this Agreement, Buyer shall have the right
to pursue any remedy available to it at law or equity.
(b) Default by Buyer. BUYER AND SELLER HEREBY ACKNOWLEDGE AND
AGREE THAT, IN THE EVENT THE CLOSING FAILS TO OCCUR DUE TO BUYER'S
DEFAULT (ALL OF THE CONDITIONS TO BUYER'S OBLIGATIONS TO CLOSE HAVING
BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT
WHICH WILL, DUE TO THE SPECIAL NATURE OF THE TRANSACTION CONTEMPLATED
BY THIS AGREEMENT AND THE SPECIAL NATURE OF THE NEGOTIATIONS WHICH
PRECEDED THIS AGREEMENT, BE IMPRACTICAL OR EXTREMELY DIFFICULT TO
ASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON
THE POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THE CLOSING FAILS
TO OCCUR DUE TO A BUYER DEFAULT, AND WISHES TO INDUCE SELLER TO WAIVE
OTHER REMEDIES WHICH SELLER MAY HAVE IN THE EVENT OF A BUYER DEFAULT.
BUYER AND SELLER, AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND
AGREE THAT THE AMOUNT OF THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE
OF THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER
DEFAULT. BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE EVENT
THE CLOSING FAILS TO OCCUR DUE TO A BUYER DEFAULT, TERMINATE THIS
AGREEMENT BY WRITTEN NOTICE TO BUYER AND RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES (AND, TO THE EXTENT NOT ALREADY DELIVERED TO
ESCROW HOLDER, BUYER SHALL IMMEDIATELY DELIVER THE DEPOSIT TO SELLER).
SUCH RETENTION OF THE DEPOSIT BY SELLER IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF
THE CALIFORNIA CIVIL CODE AND SELLER'S SOLE REMEDY ON ACCOUNT OF THE
CLOSING FAILING TO OCCUR DUE TO A BUYER DEFAULT, AND SHALL NOT BE
DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF
SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR
PROVISION.
Page 15 of 18
1-IR/40478.5
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SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS PARAGRAPH 20(b) AND BY THEIR INITIALS
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
SELLER'S INITIALS: BUYER'S INITIALS
21. Assignment. This Agreement shall be binding upon and shall inure to the benefit of Buyer
and Seller and their respective heirs, personal representatives, successors and assigns. Buyer shall
not have the right to assign this Agreement or any interest or right hereunder without the prior written
consent and approval of Seller, which consent shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, Buyer shall be entitled to assign its rights under this
Agreement without Seller's consent to one or more entities that are managed and controlled by
Buyer; provided that Buyer promptly notifies Seller in writing of such assignment. In the event of
any assignment of this Agreement by Buyer, the assignee shall expressly assume and agree to be
bound by the terms and conditions of this Agreement, provided, however, that no such assignment
shall release Buyer from its obligations under this Agreement.
22. Miscellaneous.
(a) Partial Invalidity. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder
of this Agreement, or the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term
and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
(b) Waivers. No waiver of any breach of any covenant or provision herein contained shall
be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or
provision herein contained. No extension of time for performance of any obligation or act shall be
deemed an extension of the time for performance of any other obligation or act.
(c) Survival of Representations. The covenants, agreements, representations and
warranties; made herein shall survive the Close of Escrow and shall not merge into the Grant Deed
and the recordation thereof in the Official Records.
(d) Term. This Agreement shall remain in full force and effect until mutually rescinded
by the Parties.
(e) Professional Fees. In the event of the bringing of any action or suit by Seller, Buyer
and/or Escrow Holder against another party hereunder by reason of any breach of any of the
covenants, agreements or provisions on the part of the other party arising out of this Agreement, then
in that event the prevailing party shall be entitled to have and recover of and from the other party all
costs and expenses of the action or suit, including actual attorneys' fees, accounting and engineering
fees, and any other professional fees resulting there from.
(f) Entire Agreement. This Agreement (including any Exhibits attached hereto) is the
final expression of, and contains the entire agreement between the Parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto, This Agreement may not
Page 16 of 18
I-IR/4I9498.5
be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived,
except by written instrument signed by the party to be charged or by Its agent duly authorized in
writing or as otherwise expressly permitted herein. The Parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the Parties hereto.
(g) Time of Essence. Seller and Buyer hereby acknowledge and agree that time is strictly
of the essence with respect to each and every term, condition, obligation and provision hereof and
that failure to timely perform any of the terms, conditions, obligations or provisions hereof by either
party shall constitute a material breach of and a nondurable (but waivable) default under this
Agreement by the party so failing to perform.
(h) Construction. Headings at the beginning of each paragraph and subparagraph are
solely for the convenience of the Parties and are not a part of the Agreement. Whenever required by
the context of this Agreement, the singular shall include the plural and the masculine shall include the
feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of
the Parties, but rather as it both Parties had prepared the same. Unless otherwise indicated, all
references to paragraphs and subparagraphs are to this Agreement. All exhibits referred to in this
Agreement are attached and incorporated by this reference.
(i) Governing Law. The Parties hereto acknowledge that this Agreement has been
negotiated and entered into in the State of California. The Parties hereto expressly agree that this
Agreement shall be governed by, interpreted under, and construed and enforced in accordance with
the laws of the state of California.
0) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall constitute one and the same
instrument.
(k) Negotiated Transaction. The provisions of this Agreement were negotiated, drafted
and prepared by all the Parties hereto and no party shall be deemed to have been the author of any
particular term or conditions contained herein.
(1) Amendment. Neither this Agreement nor any provision hereof may be changed,
amended, modified, waived or discharged orally or by any course of dealing, but only by an
instrument in writing signed by the party against which enforcement of the change, amendment,
modification, waiver or discharge is sought.
(m) Captions. All captions, headings, paragraph and subparagraph numbers and letters are
solely for reference purposes and shall not be deemed to be supplementing, limiting, or otherwise
varying the text of this Agreement.
(n) Severability. The invalidity or unenforceability of a particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
(o) Date for Performance. If the time period by which any right, option or election
provided under this Agreement must be exercised, or by which any act required hereunder must be
performed, or by which the Closing must be held, expires on a Saturday, Sunday or legal or bank
Page 17 of 18
TIR/40478.5
0
E
holiday, then such time period shall be automatically extended through the close of business on the
next regularly scheduled business day.
(p) Force and Effect. The submission of this Agreement to Buyer for examination or
consideration does not constitute an offer to sell the Property, and this Agreement shall become
effective, if at all, only upon the full and mutual execution and delivery thereof by Seller and Buyer.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and
year hereinabove written.
"Seller"
City of San Juan Capistrano
ATTEST:
AS TO FORM:
City Attorney
R. Monahan, City Clerk
1-IR/419478.5
"Buyer"
Centra Realty Corporation,
Page 18 of 18
0 0
EXHIBIT A
DEPICTION OF RESERVED EASEMENT LOCATIONS
(Attached)
1 W419478.5
1
�1
Approximate Location of Pump Station, Sewer
Lines, Stormdrains, Water Lines, Electrical Lines
and combined Equestrian, Emergency Access,
Landscape, and Bike Path Easement, In and Around
O Lot 217
A,
PRV
N
Pump Station E
O Sewer Structures S
vs .# Sewer
Water
Stromdrain
Electric
\ Equestrian, Emergency Access, Bike Path Easement
0 Lot 2n 0 50 100 Feet
E:]\ � Parcels
\ I`- --- - - - -- - -- - ----
as 1 D' ,mer The City of San Juan Capistrano mak pre t fon or anamantees of any kind
win reseed to Me accuracy or completeness of the information furnishing! on this map ' \
Copyright 1999, All Rights Raiumn,d The information Contained herein is the popnelary proWeM of the following ovmers
supplied under hoards, and may not be reproduced except as licensed by Digital Map products. Orange County, and The Gas Company. t
f;
000
PRV
N
Pump Station E
O Sewer Structures S
vs .# Sewer
Water
Stromdrain
Electric
\ Equestrian, Emergency Access, Bike Path Easement
0 Lot 2n 0 50 100 Feet
E:]\ � Parcels
\ I`- --- - - - -- - -- - ----
as 1 D' ,mer The City of San Juan Capistrano mak pre t fon or anamantees of any kind
win reseed to Me accuracy or completeness of the information furnishing! on this map ' \
Copyright 1999, All Rights Raiumn,d The information Contained herein is the popnelary proWeM of the following ovmers
supplied under hoards, and may not be reproduced except as licensed by Digital Map products. Orange County, and The Gas Company. t
0
32400 PASEO AOELANYO
�� F7
MEMBERS OF THE CITY COUNCIL
SAN JUAN CAPISTRANO, CA 92675
/!�, �L(��
� �
SAM LEVATO
(949) 493-1171
DIANE BATHG ATE
(949)493-1053 FAX
[SIIuISXm
196I
WYATT HART
www.sanjuancapistrano.org
1776
JOE SOTO
•
DAVID M. SWERDLIN I
it
TRANSMITTAL
TO:
c/o Centra Realty Corporation
3 Park Plaza, Ste 1490
Irvine, CA 92614
Att: George Peterson
FROM: Meg Monahan, MMC — City Clerk (949) 443-6308
RE: Purchase Agreement — Lot 217, Tract 12954
The referenced purchase agreement was approved by the City Council at their regular meeting
of August 1, 2006. An original, executed agreement is enclosed for your records.
If you have questions regarding the agreement, please contact Douglas Dumhart, Economic
Development Manager (949) 443-6316.
Copy of transmittal and agreement forwarded to:
First American Title Company
8105 Irvine Center Drive, Ste 450
Irvine, CA 92618
Att: Jeanne Gould
Cc: Douglas Dumhart, Economic Development Manager
San Juan Capistrano: Preserving the Past to Enhance the Future
:D Primed on 100% Recycled Paper
Today's Date: 7'2s-69
• Transmittal Routing
(Check All That Apply)
City Attorney
City Manager
® City Clerk
CONTRACT TRANSMITTAL
4 �tsc Q
CIP No. (if any): CVT Z/7
Project Manager's Last Name: Phone Extension: 314
Council or CRA Meeting Date (if applicable):
APPROVING AUTHORITY: (Check One)
91 Mayor
❑ CRA Chair
❑ City Manager
Provide (1) executed original contract for each signing party, including the City. If the agreement is to
recorded — only (1) original will be recorded with certified copies going to other parties.
Please provide the mailing address of any party to receive an agreement — unless the mailing address
included within the body of the agreement:
Names
Street
City
St
zip
Centra Realty
3 Park Plaza, Ste. 1490
Irvine
CA
92614
OTHER INSTRUCTIONS:
Form Date: 01-2004 D-7
• 811/2006
AGENDA REPORT G 1 a
TO: Dave Adams, City Manager
FROM: Douglas D. Dumhart, Economic Development Manager
SUBJECT: Consideration of Purchase and Sale Agreement for Surplus Property
known as Lot 217 of Tract 12954 (APN 650-592-02) with Centra -Realty in
the amount of $4.45M *City Council Priority #16*
RECOMMENDATION:
By motion, approve the Purchase and Sale Agreement for Lot 217 of Tract 12954 with
Centra -Realty in the amount of $4.45M and authorize the Mayor to execute the
agreement.
SUMMARY:
At their June 20, 2006 meeting, the City Council selected Centra -Realty as the preferred
proposal for disposition and development of Lot 217 and directed staff to prepare a
Purchase and Sale Agreement for their consideration. A Purchase and Sale Agreement
has been negotiated and completed with Centra -Realty for City Council consideration.
The Agreement is provided as Attachment 1 to this report. Important purchase
agreement provisions include:
• Purchase Price is $4,450,000.00 with a Deposit of $150,000.00. [Section 3]
• The agreement provides that the Buyer will propose an office complex
on the property by applying for and securing appropriate land use approvals.
The land use approval process is projected to take 16-18 months. A schedule of
performance for projected timelines for the entitlement process is incorporated
into the agreement. [Section 7(a)(iii)]
• Escrow Costs to be borne 50-50 between Buyer and Seller. [Section 6(a)]
• A pre -condition to close of escrow requires Buyer's ability to secure Land Use
Approvals satisfactory to Buyer for an approximate 38,500 sf office project.
Escrow close date is set for no later than January 30, 2008. [Sections 7(a)(iii),
1(e)]
• Buyer is responsible for all development processing costs and is required to
submit a initial development application within 120 days following approval of the
agreement. [Section 7(a)(iii)]
• The close of escrow is contingent upon full compliance with the environmental
quality act (CEQA). [Recital "C", page 1]
• Due diligence periods are established with respect to examination of fee
Title issues and soils testing for the property. [Section 7 (a)(i), (ii)]
Agenda Report
Page 2 August 1, 2006
BACKGROUND:
The City is fee simple owner of Lot 217 of Tract 12954, a vacant lot on the northwest
corner of Rancho Viejo Road and Golf Club Drive. On October 18, 2005, the City
Council adopted Resolution No. 05-10-18-03 declaring the property surplus. Pursuant
to Government Code Sec. 54222 a sixty (60) day notice of availability was distributed on
October 23, 2005. On January 13, 2006; the City published Request for Proposal
Concepts with proposals due by April 27, 2006. On June 20, 2006, results of the
proposals were presented to the City Council with the Council selecting Centra -Realty's
proposal for approximately 38,500 sf of commercial office development housed in three
separate buildings as the preferred proposal.
Property Description:
The size of the property is approximately 3.39 acres or 147,668 square feet. It is a
triangular shaped lot with a slope ranging from 50-60 feet. The west property line fronts
the 1-5 freeway; the east has approximately 550 linear feet of frontage along Rancho
Viejo Road; and the south property line fronts Golf Club Drive. There is a cross -lot
easement encumbering the southerly portion of the parcel, which is in favor of the San
Diego Gas and Electric (SDG&E) Company.
Land Use:
The property is currently zoned Planned Community (PC); with a Comprehensive
Development Plan (CDP) 84-6 designation, as Institutional and Public (IP) use. The
General Plan has a land use designation of Public and Institutional. The Public and
Institutional land use designation allows for schools, churches, fire stations, community
centers, utility substations, office complexes and assisted care facilities.
The CDP 84-6 IP designation has a narrower definition of uses to fire station,
community center or cultural center. The proposed commercial office development will
require an amendment to the CDP, and Architectural Control (AC) application and
environmental review. The CDP Amendment, AC application, and environmental review
process is approximately 9 -12 months to complete.
FINANCIAL CONSIDERATIONS:
An appraisal prepared on October 6, 2005 estimated the fair market value as either a
commercial retail or commercial office development compatible with the adjacent
Marbella development at $4,450,000. Centra -Realty's offer is all cash for the appraised
amount upon building permit issuance.
Agenda Report • •
Page 3 August 1, 2006
NOTIFICATION:
As a courtesy a meeting notice of this item was sent by the City Manager's office to all
property owners in the Marbella Development.
Centra -Realty*
* Provided with copy of staff report.
COMMISSION/BOARD REVIEW AND RECOMMENDATIONS:
None at this time.
RECOMMENDATION:
By motion, approve the Purchase and Sale Agreement for Lot 217 of Tract 12954 with
Centra -Realty in the amount of $4.45M and authorize the Mayor to execute the
agreement.
Respectfully submitted,
fart-74-
art
9
Economic Development Manager
Attachment 1: Purchase and Sale Agreement.
PURCHASE AGREEMENT
This Purchase Agreement is made and entered into as of August 1, 2006, by and between the
CITY OF SAN JUAN CAPISTRANO, a municipal corporation, ("Seller'), and CENTRA REALTY
CORPORATION, a California corporation ("Buyer").
RECITALS
A. Seller is fee owner of approximately three and four tenths (3.4) acres of unimproved land
known as Lot 217 of Tract 12954, Assessor's parcel number 650-592-02, (the "Real Property")
located in the City of San Juan Capistrano, County of Orange, California.
B. Buyer desires to purAase the Property from Seller, and Seller desires to sell the same to
Buyer, all in accordance with the terms of this Agreement.
C. The Parties acknowledge that the sale of the property is contingent upon Buyer securing from
the City of San Juan Capistrano ("City") required land use and California Environmental Quality Act
("CEQA") approvals as further provided for in this Agreement with respect to any proposed project
Buyer desires to construct upon the Property,
NOW, THEREFORE, Seller and Buyer mutually agree as follows:
1. Definitions. For purposes of this Agreement, the terms set forth below shall have the
following meanings:
(a) "Authorities" means all applicable governmental and quasi -governmental entities,
divisions, departments, authorities, agencies, officers, commissions and the like having jurisdiction
over the Property or the development thereof, including, without limitation, the City and the County
of Orange.
(b) "Buyer's Title Notice" is defined in Paragraph 7(a)(i) below.
(c) "Cash Equivalent" means a wire transfer of funds or a certified or bank cashier's
check drawn on a bank licensed to do business in the State.
(d) "Close of Escrow" means the date all required documents have been approved,
executed deliver and recorded (including the Grant Deed recorded in the Official Records) and the
Purchase Price paid.
(e) "Closing Date" means not later than January 30, 2008, subject to extensions of time
permitted under Paragraph 7(a)(iii) or otherwise agreed upon by the parties.
(f) "Deposit" is defined in Paragraph 4(a) below.
(g) "Development applications" is defined in Section 7(a) (iii) below.
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(h) "Effective Date" shall mean the later of the date on which this Agreement has been
executed by Buyer and Seller and the date on which Seller's City Council has approved Seller's entry
into this Agreement.
(i) "Escrow" means the above -referenced escrow opened with Escrow Holder for the
consummation of the transaction described in this Agreement.
0) "Governmental Regulations" means any and all laws, ordinances, rules, requirements,
resolutions, policy statements and regulations (including, without limitation, those relating to density,
land use, traffic and utilities circulation and migration, subdivision, zoning, environmental, toxic or
hazardous waste, occupational health and safety, water, earthquake hazard reduction, and building
and fire codes) of the Authorities bearing on the development, construction, alteration, rehabilitation,
maintenance, use, operation, lease or sale of the Property as contemplated by Buyer.
(k) "Grant Deed" means a grant deed in a form customarily used by the Escrow Holder
for transactions related to property in the County.
(1) "Hazardous Substances", as used in this Agreement, means any hazardous or toxic
substance, material or waste which is or becomes regulated by any local governmental authority, the
State of California, or the United States Government, including but not limited to any (a) petroleum
and petroleum products, (b) substances defined as hazardous under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, the California Water Code Section 13050, the Federal Water Pollution Control Act, 33 U.S.C.
Section 1317, and California Health and Safety Code Section 25316 and (c) materials defined as
"hazardous waste" in the Resource Conservation and Recovery Act, 42 U.S.C. Section 6903 and the
Hazardous Waste Control Law, California Health and Safety Code Section 25117.
(m) "Official Records" means the Official Records of the County of Orange.
(n) "Opening of Escrow" means the date on which a fully executed copy of this
Agreement is delivered to Escrow Holder by Buyer and Seller.
(o) "Property" means, collectively, (1) the Real Property described in Recital A above, (2)
any improvements thereon, and (3) all right, title and interest of Seller in and to all streets, alleys,
appurtenances, easements and rights-of-way in, on, across, in front of, abutting and/or adjoining the
Real Property
(p) "Seller's Title Notice" is defined in Paragraph 7(a)(i) below
(q) "Title Policy" is defined in Paragraph 10 below.
(r) "To the best of Seller's knowledge" or other references herein to Seller's knowledge
mean the knowledge a party would be expected to have by reason of continued involvement with the
Property as owner.
2. Purchase and Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller,
the Property, on the terms and conditions set forth in this Agreement.
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3. Purchase Price. The Purchase Price (the "Purchase Price") for the Property shall be Four
Million Four Hundred Fifty Thousand Dollars ($4,450,000.00).
4. Payment of Purchase Price. The Purchase Price shall be payable as follows:
(a) Deposit. Upon the Opening of Escrow, Buyer shall deposit into Escrow cash or Cash
Equivalent in the amount of One Hundred Fifty Thousand Dollars ($150,000.00) (the "Deposit").
The Deposit shall be invested by Escrow Holder in an interest-bearing account at a federally insured
bank or institution approved by Buyer, with any interest accruing thereon to be paid or credited to
Buyer. Except as provided herein, the Deposit shall be refundable to Buyer should Buyer validly
terminate this Agreement or should Seller breach this Agreement.
(b) Cash Balance. On or before the Closing Date, Buyer shall deposit into Escrow cash or
Cash Equivalent in the amount of the balance of the Purchase Price.
5. Condition of Title. (a) City acquired fee title to the Property via a formal dedication of the
parcel to the City through the City's approval of Final Subdivision Map Tract 12594, recorded in the
County Recorder's Office in 1988. The subdivision map dedication provision contained in Final Map
12594 with respect to the Property states: "Dedicated to the City of San Juan Capistrano for Public
Institutional Purposes, in fee simple." The City Council of the City of San Juan Capistrano adopted
Resolution No. 05-10-18-03 on October 18, 2005, declaring that there was no need for public use of
the Property, and further thereby declaring Parcel 217 to be "surplus property'; (b) At the Close of
Escrow, Seller shall convey fee simple title to the Property to Buyer by a Grant Deed, subject to this
fee title history and further subject to (1) liens for real property taxes not then delinquent; (2) matters
of title respecting the Property approved by Buyer in accordance with Paragraph 7(a)(i) below; (3)
matters affecting the condition of title to the Property created by or with the written consent of Buyer;
and (4) reservations for public facilities or utility easements for a water booster station and related
lines, SDGE meter facilities and a 20 -foot equestrian trail (the location of all such reserved easements
are generally depicted on Exhibit A attached hereto, and the exact reservation language to be
reasonably agreed upon by the parties prior to the Closing Date).
6. Escrow.
(a) Opening of Escrow/Escrow Costs. Buyer and Seller shall open an escrow for the
property upon a mutually agreeable date by delivering a fully executed copy of this Agreement to
Escrow Holder. Escrow Holder shall immediately notify Buyer and Seller in writing of the date of
the Opening of Escrow.
All escrow costs shall be split 50-50 between Seller and Buyer. The parties hereby agree to
designate and use First American Title (Attn: Jeanne Gould) ("Escrow Holder") as the
escrow company to handle this transaction.
(b) Close of Escrow. The Close of Escrow shall occur on the Closing Date, unless Seller
and Buyer mutually agree in writing to amend or otherwise extend the Closing Date.
(c) Escrow Instructions. This Agreement shall serve as Escrow Instructions to Escrow
Holder. Buyer and Seller hereby authorize their respective attorneys to execute and deliver to
Escrow Holder any additional or supplementary instructions as Escrow Holder may reasonably
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request and/or which may be necessary or convenient to implement the terms of this Agreement and
close the transaction contemplated hereby. In the event of any conflict or inconsistency between said
additional or supplementary instructions and this Agreement, including without limitation, any
printed or typed form prepared by Escrow Holder, the terms of this Agreement shall control; and
nothing in said additional or supplementary instructions shall be deemed to change the terms,
provisions or conditions of this Agreement unless the Parties expressly so state in writing. In
addition, in the event of any conflict or inconsistency between the provisions of this Agreement
constituting instructions to Escrow Holder (including the provisions of this Paragraph 6) and the
provisions of this Agreement constituting the agreement of the Parties to purchase and sell the
Property, the latter provisions shall control.
(d) Indemnification of Escrow Holder. If this Agreement or any matter relating hereto
shall become the subject of any litigation or controversy, then Buyer and Seller agree, jointly and
severally, to hold Escrow Holder free and harmless from any loss or expense, including attorneys'
fees, that may be suffered by it by reason thereof; provided, that the foregoing shall not release
Escrow Holder from any liability for negligence or misconduct or the breach of any of the provisions
of the Escrow instructions contained herein, including any liability for court costs and professional
fees as provided in Paragraph 6(e) below. If conflicting demands are made or notices served upon
Escrow Holder with respect to this Agreement, then Buyer and Seller expressly agree that Escrow
Holder shall be entitled to file a suit in interpleader and obtain an order from the court requiring
Buyer and Seller to interplead and litigate their several claims and rights among themselves. Upon
the filing of the action in interpleader, Escrow Holder shall be fully released and discharged from any
obligations imposed upon it by this Agreement; provided, that the foregoing shall not release Escrow
Holder from any liability for negligence or misconduct or the breach of any of the provisions of the
Escrow instructions contained herein.
(e) Non -liability of Escrow Holder. Escrow Holder shall not be liable for the sufficiency
or correctness as to form, manner, execution or validity of any instrument deposited with it, nor as to
the identity, authority or rights of any person executing such instrument, nor for failure to comply
with any of the provisions of any agreement, contract or other instrument filed with Escrow Holder or
referred to herein; provided, that Escrow Holder shall be liable for the correctness, genuineness,
sufficiency and validity of any document prepared by Escrow Holder and shall also be liable for
insuring the proper execution and identity of the executing party with respect to any document
executed in the presence of any of Escrow Holder's agents. Escrow Holder's duties hereunder shall
be limited to the safekeeping of such money, instruments or other documents received by it as
Escrow Holder, and for their disposition in accordance with the terms of this Agreement.
Notwithstanding the foregoing, if Escrow Holder is also acting as the Title Company under the terms
of this Agreement, then nothing in this Paragraph 6(e) shall limit Escrow Holder's liability under the
Title Policy.
Conditions to the Close of Escrow.
(a) Conditions Precedent to Buyer's Obligations. The Close of Escrow and Buyer's
obligations with respect to the transaction contemplated by this Agreement are subject to the
satisfaction, not later than the Closing Date (unless otherwise specified below), of the following
conditions, and the obligations of the Parties with respect to such conditions are as follows:
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(i) Title. Buyer shall have approved the legal description of the Real Property
attached hereto as Exhibit "A" and any matters of title respecting the Property, including those
matters disclosed by the following documents and instruments (collectively, the "Title Documents"):
(A) a preliminary title report for a CLTA Owner's Policy of title insurance dated as of or after the
Effective Date and issued by the Title Company with respect to the Property; and (B) legible copies
of all documents, whether recorded or unrecorded, referred to as exceptions to title in the preliminary
title report; and (C) Final Subdivision Tract Map 12594, which dedicated the Property in fee to the
City of San Juan Capistrano, and all documents and resolutions respecting the matters discussed in
Paragraph 6 above.
Seller shall within 30 days of the Effective Date of this Agreement, or as reasonably soon thereafter,
deliver to Buyer the above stated title documents. Within 90 days prior to close of escrow, Buyer
shall give Seller and Escrow Holder written notice (the "Buyer's Title Notice") of Buyer's
disapproval of the legal description of the Real Property, any Title Document and/or any matter of
title respecting the Property. Buyer's failure to give the Buyer's Title notice shall constitute approval
of the Title Documents and the title matters shown thereon.
Seller shall, within ten (10) days after receipt of the Buyer's Title Notice, either (i) eliminate the
matters set forth therein from the Title Policy as exceptions to title to the Property, and/or (ii) give
Buyer written notice (the "Seller's Title Notice") of those matters set forth in the Buyer's Title
Notice, if any, which Seller shall not so eliminate.
If either Seller fails timely to eliminate any matter set forth in the Buyer's Title Notice but not in the
Seller's Title Notice; or Buyer gives Seller written notice of Buyer's disapproval of the Seller's Title
Notice within five (5) days after delivery of the same to Buyer, then this condition shall be deemed to
have failed, unless subsequently waived by Buyer in writing.
(ii) Inspection. Buyer shall be satisfied, at Buyer's sole cost and expense, with the
condition of the Property, including the results of any "Phase 1" environmental study and
geotechnical studies desired by Buyer. Should Buyer fail to be satisfied with the condition of the
Property, then Buyer may, by delivery of written notice to Seller, terminate this Agreement by
delivering to Seller a notice of dissatisfaction with the Property, whereupon the Deposit, less one-half
(1/2) of any Escrow and title fees and costs, shall be refunded to Buyer and this Agreement shall be
deemed null and void and of no further force or effect with Buyer and Setter having no further rights,
obligations or liabilities hereunder except as otherwise set forth herein. If third party investigative
reports, excepting any appraisals or similar economic analysis, have been prepared, then a copy of
such reports shall be promptly delivered to Seller for Seller's review. It is further provided that if
Buyer shall have failed to deliver written notice pursuant to this Paragraph 7(a)(ii) by not later than
ninety (90) days after the Opening of Escrow, then Buyer shall be deemed to be satisfied with the
physical condition of the Property and to have waived this Paragraph 7(a)(ii).
(iii) (iii) Land Use Approvals. As a part of the purchase process, Buyer proposes in
concept to construct a commercial office building project on the Property. As a condition precedent
to the Closing Date, Buyer shall have obtained (including the running of any applicable appeals
periods) to the Buyer's satisfaction all applicable land use building, grading and other entitlements,
approval and permits and other requirements from all applicable Authorities for the project.
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Buyer shall file, complete, and diligently prosecute with City of San Juan Capistrano planning
officials all of the necessary development review applications, architectural and engineering plans,
documents, reports, technical studies, exhibits, displays, fixture specifications, landscaping plans,
water -quality management plans, and filing and deposit fees as required by the City or any other
Authorities. The parties agree that the following milestone dates shall be followed in order to
complete close of escrow date:
-Within 120 days after the Effective Date, Buyer shall submit an
application to the Planning Department, including a conceptual plan,
grading plan, and building elevations, for a pre -application conference on
the proposed development project. City shall schedule this application for
review by the Development Advisory Board within 30 days from receipt
of a complete pre -application conference submittal package, and shall
provide written comments to Buyer regarding City requirements for the
project.
-Within 60 days after the receipt of city's written comments regarding
City requirements for the project, Buyer shall submit formal approvals to
the Planning Department for all required land use applications for the
project (including applications for rezoning, subdivision, and architectural
control, as applicable), which shall incorporate City requirements as
conveyed during the pre -application conference. Within 30 days from
receipt of land use applications, City shall schedule this submittal for
review by the Development Advisory Board to determine completeness
and shall identify, in writing, any additional information required to
complete the applications. Within 30 days of receipt of written
notification of incomplete submittal items, Buyer shall submit all
information required for City to deem the application complete.
-Within 30 days of deeming the applications complete, City shall
determine whether the project requires preparation of an environmental
impact report. This period may be extended up to 15 days with the
consent of Buyer and City.
-City shall schedule public hearings on the land use applications within
120 days after completion of required environmental documents. City and
Buyer anticipate that the total time needed for entitlement processing may
take up to 16 to 18 months, depending on public input, traffic analysis,
special studies required, or public comments made on environmental
documents.
The parties intend that this schedule of performance shall be followed in order to complete the close
of escrow process by not later than January 30, 2008. The close of escrow date shall be extended for
a reasonable time if buyer needs additional time to complete the land use process, providing Buyer
has otherwise diligently prosecuted the processing of the land use entitlements in accordance with the
above stated schedule of performance.
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Accordingly, Seller agrees to process the subject land use entitlements and other approvals in a
reasonably timely manner, subject to normal processing procedures, and to provide any information
needed by Buyer to process the entitlement applications in a timely manner.
Buyer shall bear all processing costs, including any required CEQA analysis, associated with
securing required land use and other approvals for the project.
(iv) No Adverse Changes. At the Closing Date, there shall have been no adverse
changes in the physical, legal or financial condition of the Property.
(v) Seller's Deliveries. Seller shall have delivered the items described in this
Paragraph 7(a), and in Paragraphs 8(a) and 9 below, and Seller shall have otherwise timely performed
Seller's obligations hereunder.
(vi) Title Insurance. As of the Close of Escrow, the Title Company shall have
issued or shall have committed to issue the Title Policy to Buyer.
The conditions set forth in this Paragraph 7(a) are solely for Buyer's benefit and may be waived only
by Buyer. Buyer shall at all times have the right to waive any condition. Such waiver or waivers
shall be in writing to Seller. The waiver by Buyer of any condition shall not relieve Seller of any
liability or obligation with respect to any representation, warranty, covenant or agreement of Seller.
Except as otherwise provided herein, all approvals given by Buyer under this Paragraph 7(a) shall be
in writing and, except as provided herein, the failure of Buyer to disapprove any matter requiring its
approval under this Paragraph 7(a) by the time therefore shall be deemed approval thereof by Buyer.
Neither Seller nor Buyer shall act or fail to act for the purpose of permitting or causing any condition
to fail (except to the extent Buyer, in its own discretion, exercises its right to disapprove any such
items or matters).
(b) Conditions Precedent to Seller's Obligations. The Close of Escrow and Seller's
obligations with respect to the transactions contemplated by this Agreement are subject to the
satisfaction, by the dates specified below, of the following conditions:
(i) Buyer's Deliveries. On or before the Closing Date, Buyer shall have delivered
to Escrow Holder for disbursement as provided herein, the Purchase Price and the documents and
materials described in Paragraph 8(b) below.
(c) Failure of Conditions to Close of Escrow. If any of the conditions set forth in
Paragraphs 7(a) or 7(b) above are not timely satisfied or waived, for any reason other than the default
of Buyer or Seller under this Agreement, then:
(i) This Agreement, the Escrow and all of Buyer's and Seller's rights and
obligations hereunder, shall terminate, except as otherwise provided herein; provided, that no such
termination shall occur until the party for whose benefit such condition exists (A) has had the
opportunity to waive such condition within three (3) business days after receipt of written notice from
the other party, and (B) does not elect to waive such condition; and
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(ii) Seller, Buyer and Escrow Holder shall promptly return all documents and
funds which are held by them on the date of said termination to the party who delivered or deposited
them hereunder, including return by Escrow Holder of the Deposit and interest thereon to Buyer (less,
in the case of the party otherwise entitled to such funds, however, the amount of any cancellation
charges required to be paid by such parry under Paragraph 7(d) below).
(d) Cancellation Fees and Expenses. If Escrow terminates because of the non -satisfaction
of any condition for a reason other than the default of Buyer or Seller under this Agreement, then the
cancellation charges required to be paid by and to Escrow Holder and the Title Company shall be
borne one-half (1/2) by Seller and one-half (1/2) by Buyer and all other charges shall be borne by the
party incurring same.
8. Deliveries to Escrow Holder.
(a) By Seller. Seller hereby covenants and agrees to deliver or cause to be delivered to
Escrow Holder on or prior to the Closing Date, the following instruments and documents, the
delivery of each of which shall be a condition to the performance by Buyer of its obligations under
the terms of this Agreement:
(i) Grant Deed. The Grant Deed, duly executed and acknowledged in recordable
form by Seller, conveying the Property to Buyer subject only to the Approved Title Conditions
(ii) Proof of Authority. Such proof of Seller's authority and authorization to enter
into this Agreement and consummate the transactions contemplated hereby and such proof of the
power and authority of the individual(s) executing and/or delivering any instruments, documents and
other certificates on behalf of Seller to act for and bind Seller as may be reasonably required by Title
Company and/or Buyer.
(iii) Lien Affidavits. Any lien affidavits or mechanic's lien indemnifications as
may be reasonably requested by the Title Company in order to issue the Title Policy.
(b) By Buyer. Buyer hereby covenants and agrees to deliver or cause to be delivered to
Escrow Holder on or prior to the Closing Date the following instruments and documents, the delivery
of each of which shall be a condition to the Close of Escrow:
(i) Purchase Price. The Purchase Price in accordance with Paragraphs 3 and 4
above.
(ii) Prorations. The amount due Seller, if any, after the proration are computed in
accordance with Paragraph 12 below.
9. Delivery to Buyer upon Close of Escrow. Seller hereby covenants and agrees to deliver to
Buyer, on the Closing Date, exclusive possession of the Property.
10. Title Insurance. At the Close of Escrow, Seller shall cause the Title Company to issue or
commit to issue to Buyer an CLTA Owner's Policy of Title Insurance with any title endorsements
reasonably requested by Buyer showing fee title to the Property vested in Buyer subject only to the
Approved Title Conditions ("Title Policy"). The Title Policy shall be issued with liability in an
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amount equal to the Purchase Price. Buyer shall have the right to, at Buyer's cost, increase the policy
amount or to upgrade the policy type.
11. Costs and Expenses. On close of Escrow, all costs and expenses charged by or through the
escrow, including without limitation, the premium for the title policy, all endorsements thereon, and
escrow holder fees, with the exception of the proration in paragraph 12 hereof, shall be home by the
Seller. Each party shall bear all their own respective costs and expenses, including without
limitation, such party's attorney's fees, incurred by such party in negotiating and performing this
Agreement.
12. Prorations.
(a) General. Subject to the provisions of Paragraphs 12(b) and 12(c) below, all expenses,
if any, affecting the Property shall be paid or shall be prorated as of 11:59 P.M. on the day of the
Close of Escrow. For purposes of calculating prorations, Seller shall be deemed to be in the title to
the Property, and therefore responsible for the expenses, for the entire day upon which the Close of
Escrow occurs. Any apportionments and prorations which are not expressly provided for herein shall
be made in accordance with customary practice in the County. Such adjustments, if and to the extent
known and agreed upon as of the Close of Escrow, shall be paid by Buyer to Seller (if the prorations
result in a net credit to the Seller) or by Seller to Buyer (if the prorations result in a net credit to the
Buyer), by increasing or reducing the cash or Cash Equivalent to be paid by Buyer at the Close of
Escrow. Any such adjustments not determined or not agreed upon as of the Close of Escrow shall be
paid by Buyer to Seller, or by Seller to Buyer (if the prorations result in a net credit to the Buyer), by
increasing or reducing the cash or Cash Equivalent to be paid by Buyer at the Close of Escrow. Any
such adjustments not determined or not agreed upon as of the Close of Escrow shall be paid by Buyer
to Seller, or by Seller to Buyer, as the case may be, in cash or Cash Equivalent as soon as practicable
following the Close of Escrow.
(b) Taxes and Assessments. Notwithstanding the provisions of Paragraph 12(a) above to
the contrary, all non -delinquent real estate taxes and assessments on the Property shall be prorated
based on the actual current tax and assessment bills; provided, however, if the real estate tax bill has
not yet been received by Seller by the Closing Date, then current year's real estate taxes shall be
deemed to be one hundred two percent (102%) of the amount of the previous year's tax bill. If, after
the Close of Escrow, any supplemental real estate taxes are assessed against the Property pursuant to
Chapter 3.5 of Part 0.5 of Division I of the California Revenue and Taxation Code (§§ 75 through
75.890, inclusive) by reason of any event occurring prior to the Close of Escrow, then Seller shall pay
such taxes to Buyer within ten (10) days after demand by Buyer therefor. All liens, all delinquent
taxes and all delinquent installments of assessments on the Property shall be paid for by Seller at the
Close of Escrow from funds accruing to Seller without contribution or proration from Buyer.
13. Disbursements and Other Actions by Escrow Holder. At the Close of Escrow, Escrow Holder
shall promptly undertake all of the following in the manner herein below indicated:
(a) Funds. Disburse all funds deposited with Escrow Holder by Buyer in payment of the
Purchase Price as follows:
(i) Deduct and pay all items chargeable to the account of Seller pursuant to
Paragraph 11 above.
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(ii) If, as the result of the proration and credits pursuant to Paragraph 12 above,
amounts are to be charged to account of Seller, deduct and/or pay the total amount of such charges.
(iii) Disburse the balance of the Purchase Price to Seller promptly upon the Close
of Escrow.
(iv) Disburse the remaining balance of the funds, if any, to Buyer upon the Close of
Escrow.
(b) Recording. Cause to be recorded in the Official Records of the County of Orange,
State of California, in the following order, the Grant Deed (with documentary transfer tax
information to be affixed after recording), and any other documents which the Parties hereto may
mutually direct to be recorded in the Official Records; and obtain conformed copies thereof for
distribution to Buyer and Seller.
(c) Title Policy. Direct the Title Company to issue the Title Policy to Buyer.
(d) Disbursement of Documents to Seller. Disburse to Seller all documents (or copies
thereof) deposited into Escrow by Buyer pursuant hereto.
(e) Disbursement of Documents to Buyer. Disburse to Buyer all documents (or copies
thereof) deposited into Escrow by Seller pursuant hereto.
14. Seller's Representations and Warranties. In addition to any express agreements of Seller
contained herein, the following constitute representations, warranties and covenants of Seller to
Buyer.
(a) Authority. Seller, as a municipal corporation, has the legal power, right and authority
to enter into this purchase and sale Agreement and the instruments referenced herein. The
individuals executing this Agreement and the instruments referenced herein on behalf of Seller have
the legal power, right and actual authority to execute this Agreement and bind Seller to the terms and
conditions hereof and thereof.
(b) Requisite Action. All requisite action (including but not limited to governmental
authorities and notices) has been taken by Seller in connection with the entering into this Agreement
and the instruments referenced herein, and the consummation of the transaction contemplated
hereby.
(c) Validity. This Agreement and all documents required hereby to be executed by Seller
shall be valid, legally binding obligations of and enforceable against Seller in accordance with their
terms. Neither the execution nor delivery of this Agreement and documents referenced herein, nor
the consummation of the transactions contemplated herein, conflict with or shall result in the breach
of any terms or provisions of any contract, loan, or other agreement to which Seller is a party or
affecting the Property. Seller has not sold, conveyed or entered into any contract for the sale of all or
any portion of the Property or any rights incident thereto, nor do there exist any options to purchase
the Property. All consents, approvals and authorizations necessary for the execution of this
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Agreement and the consummation of the transactions contemplated herein by Seller have been
obtained.
(d) In the event any person or entity files a legal action to contest the validity of this
Agreement, or any aspect thereof, Seller's right to convey title to the Property hereunder or any of the
land use entitlements or other approvals associated with this Agreement, including an environmental
challenges under CEQA or related statutes, Seller agrees to provide a legal defense on behalf of
Seller and Buyer to defend such legal actions. However, Buyer agrees and understands that in the
event that this Agreement cannot be completed due to such legal actions, Buyer shall nevertheless be
solely responsible for its costs incurred in processing land use entitlements and other approvals and
environmental documentation required for Buyer's proposed project for this subject property. This
Paragraph 14(d) is not intended to obligate Seller or Buyer to expend substantial time in connection
with any defense of legal actions, and the parties hereby agree that Seller and Buyer shall each have
the right to terminate this Agreement in the event that such defense is reasonably anticipated by
Seller and Buyer to take longer than twenty-four (24) months to complete. The Closing Date shall be
extended for a reasonable time to settle or adjudicate any legal challenges. In the event either party
elects to terminate this Agreement under this Paragraph 14(d), then the Deposit shall be returned to
Buyer. Further, in the event any resolution or settlement of any legal action places any restrictions or
requirements on Buyer, the Property or Buyer's proposed project, then Buyer shall have the right to
review and approve the same as a condition precedent hereunder (and the same shall be subject to
Buyer's termination rights under Paragraph 7(c) above).
(e) Recitals. The information contained in the Recitals is true and correct.
(f) No Brokers. Seller has not discussed this Agreement or the subject matter hereof
with, and has not engaged in any fashion or any connection with this transaction the services of, any
real estate broker, agent, or salesman, so as to create any legal right in any such broker, agent, or
salesman to claim a real estate commission or similar fee with respect to the conveyance of the
Property or the other transactions contemplated by this Agreement. Seller shall indemnify and hold
Buyer harmless from and against any and all claims (including without limitation, court costs and
reasonable attorneys' fees actually incurred in connection with any such claims) for any real estate
commissions or similar fees arising out of or in any way connected with any breach of the foregoing
representation.
(g) Lawsuits and Claims. As of the effective date of this Agreement to the best of Seller's
knowledge, there are no existing, threatened or contemplated actions, lawsuits, claims or proceedings
affecting the Property or this transaction.
(h) Bankruptcy. There are, and at the Close of Escrow there will be, no attachments,
execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings pending against Seller, and to the best of Seller's knowledge, no
such proceedings are or will be threatened or contemplated against Seller.
(i) Condition of Property. Seller has no knowledge, and Seller has received no notice, of
any violation of Governmental Regulations relating to the Property, any existing or contemplated
plan to widen or modify any street or highway contiguous to the Property or any other plan, study or
effort of the Authorities affecting the Property.
Page 1 I of 18
1-IW419478.5
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6) Taxes and Assessments. Other than the amounts disclosed try the tax bills delivered to
Buyer by Seller, no other real property taxes have been or will be assessed against the Property for
the current tax year: To the best of Seller's knowledge, no special assessments or charges have been
or will be levied against the Property for any existing public Improvements or otherwise or will result
from work, activities or improvements done to the Property by Seller.
(k) Title. Seller is the legal fee simple titleholder of the Real Property and has good,
marketable and insurable title to the Property, free and clear of all liens, encumbrances, claims,
covenants, conditions, restrictions, easements, rights-of-way, options, judgments or other matters,
except as disclosed by the Title Documents. Except for the easement reservations described in
Section 5 above, there shall be no adverse change in the ownership, operation or control of Seller or
the Property from the date hereof until the Close of Escrow.
(1) Utilities. Buyer shall be responsible for the cost of construction of all utility
extensions required to serve the Property (including, without limitation, the relocation of any existing
utilities).
(m) Hazardous Materials. Seller has conducted no operations on the Property. To the best
of Seller's knowledge, there has been no dumping, discharge, disposal, storage, releasing, spillage or
leakage (whether legal or illegal, accidental or intentional) of Hazardous Material on or about the
Property or any portion thereof.
(n) Leases and Contracts. There are, and, prior to the Close of Escrow, will be, no oral or
written leases, subleases, licenses, occupancies or tenancies in effect pertaining to the Property, and
no persons or entities occupy or have the right to occupy or use all or any portion of the Property.
There are no service or maintenance contracts, warranties, guarantees, bonds, insurance policies or
other agreements (whether oral or written) which will affect or be obligations of the Buyer or the
Property following the Close of Escrow, other than the Contracts and Title Documents approved
herein. At the Close of Escrow, Seller shall deliver possession of the Property to Buyer free of actual
occupancy and any right of occupancy by any party, and, except as otherwise provided in Paragraph
7(a) above, all Contracts and Title Documents disapproved by Buyer will be terminated by Seller, at
Seller's sole cost and expense, at or prior to the Close of Escrow.
(o) Operation of Property. Seller hereby agrees, through and including the Close of
Escrow and at the Seller's sole cost and expense, that Seller will: (1) keep all existing insurance
policies affecting the Property in full force and effect; (2) comply with all Governmental Regulations
and operate, use and maintain the Property in first class condition; (3) not enter Into leases or any
other obligations, contracts or agreements affecting the Property without the prior written consent of
Buyer, which consent Buyer may withhold in its sole discretion; (4) not subject the Property to any
liens, encumbrances, covenants, conditions, easements, rights-of-way or similar matters after the date
of this Agreement which will not be eliminated prior to the Close of Escrow, (5) not make any
alterations to the Property; and (6) pay in full, prior to the Close of Escrow, all bills and invoices for
current financing, labor, goods, materials and services of any kind relating to the Property for the
period prior to the Close of Escrow.
(p) Changes. Seller shall promptly -notify Buyer of any change in any condition with
respect to the Property or of any event or circumstance which makes any representation or warranty
of Seller under this Agreement untrue, misleading, or any covenant of Buyer under this Agreement
Page 12 of 18
1-TW414478.5
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incapable or less likely of being performed, it being understood that the Seller's obligation to provide
notice to Buyer shall in no way relieve Seller of any liability for a breach by Seller of any of Its
representations, warranties or covenants under this Agreement.
(q) General Representation. No representation, warranty or statement of Seller in this
Agreement or in any document, certificate or schedule famished or to be famished to Buyer pursuant
hereto contains or will contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statement or facts contained therein not misleading.
Seller's representations and warranties made in this Paragraph 14 shall be continuing and shall be
true and correct as of the Close of Escrow with the same force and effect as if remade by Seller in a
separate certificate at that time. The truth and accuracy of Seller's representations and warranties
made herein shall; constitute a condition for the benefit of Buyer to the Close of Escrow (as
elsewhere provided herein) and shall survive, and shall not merge into, the Close of Escrow and the
recording of the Grant Dead in the Official Records.
15. Buyer's Representations and Warranties. In addition to the express agreements of Buyer
contained herein, the following constitute representations and warranties of Buyer to Seller:
(a) Power and Authority. Buyer has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein. The individuals executing this Agreement and the
instruments referenced herein on behalf of Buyer have the legal power, right and actual authority to
bind Buyer to the terms and conditions hereof and thereof.
(b) Requisite Action. All requisite action (including but not limited to governmental
authorities and notices) has been taken by Buyer in connection with the entering into this Agreement
and the instruments referenced herein, and the consummation of the transactions contemplated
hereby.
(c) Validity. This Agreement and all documents required hereby to be executed by Buyer
are and shall be valid, legally binding obligations of and enforceable against Buyer in accordance
with their terms. Neither the execution nor delivery of this Agreement and documents referenced
herein, nor the consummation of the transactions herein contemplated conflict with or results in the
breach of any terms, conditions or provisions of any contract, loan, or other agreements to which
Buyer is a party. All consents, approvals and authorizations necessary for the execution of this
Agreement and the consummation of the transactions contemplated herein by Buyer have been
obtained.
(d) No Brokers. Buyer has not discussed this Agreement or the subject matter hereof
with, and has not engaged in any fashion or any connection with this transaction the services of, any
real estate broker, agent, or salesman, so as to create any legal right in any such broker, agent, or
salesman to claim a real estate commission or similar fee with respect to, the conveyance of the
Property or the other transactions contemplated by this Agreement. Buyer shall indemnify and hold
Seller harmless from and against any and all claims (including without limitation, court costs and
reasonable attorneys' fees actually incurred in connection with any such claims) for any real estate
commissions or similar fees arising out of or in any way connected with any breach of the foregoing
representation.
Page 13 of 18
1 -IRA 9478.5
0
(e) General Representation. No representation, warranty or statement of Buyer in this
Agreement or in any document, certificate or schedule furnished or to be furnished to Seller pursuant
hereto contains or will contain any untrue statement or a material fact, omits or will omit to state a
material fact necessary to make the statements or facts contained therein not misleading.
Buyer's representations and warranties made in this Paragraph 15 shall be continuing and shall be
true and correct as of the Close of Escrow with the same force and effect as if remade by Buyer in a
separate certificate at that time. The truth and accuracy of Buyers representations and warranties
made herein shall constitute a condition for the benefit of Seller to the Close of Escrow and shall
survive, and shall not merge into, the Close of Escrow or the recordation of the Grant Deed in the
Official Records.
16. Notices. All notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered (including by means of professional messenger service) or
sent by registered or certified mail, postage prepaid, return receipt requested or by facsimile
transmission (provided a complete copy is transmitted by another acceptable method by 5:00 p.m. on
the next following business day), and shall be deemed received upon the date of receipt thereof (if by
personal delivery), seventy-two (72) hours after deposit into the U.S. Mail (if by U.S. Mail), or upon
electronic confirmation of successful transmission (if sent by facsimile).
To Seller: City of San Juan Capistrano
Attn: Douglas D. Dumhart, Economic Development Manager.
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Facsimile 949/488-3874
To Buyer: c/o Centra Realty Corporation
3 Park Plaza, Suite 1490
Irvine, CA 92614
Attn: George Peterson
Facsimile: 949.476.8520
To Escrow Holder: First American Title Company
8105 Irvine Center Drive, Suite 450
Irvine, CA 92618
Attn: Jeanne Gould
Facsimile: 714.800.5379
Notice of change of address shall be given by written notice in the manner detailed in this Paragraph
17.
17. No Broker Commission. Seller shall not pay any broker commission as a part of this
transaction.
18. Required Actions of Buyer and Seller. Buyer and Seller agree to execute all such instruments
and documents and to take all actions pursuant to the provisions hereof in order to consummate the
Page 14 of 18
W419478.5
purchase and sale herein contemplated and shall use their best efforts to accomplish the Close of
Escrow in accordance with the provisions hereof.
19. Entry. Buyer and Buyer's representatives, agents and designees shall have the right, at
reasonable times and upon reasonable notice to Seller to enter upon the Property, at Buyer's own
cost, for any purpose in connection with its proposed purchase, and the right to make such
inspections, investigations and tests as Buyer may elect to make or obtain. The exercise by Buyer of
any of the preceding or any other act of Buyer shall not negate any representation, warranty or
covenant of Seller or modify any of Buyer's rights or Seller's obligations under this Agreement.
Buyer hereby indemnifies Seller from any and all liabilities and losses (including mechanics' liens)
arising out of any such entry by Buyer or its agents, designees or representatives, excepting liabilities
and losses resulting from the mere discovery of a condition or from Seller's negligence or intentional
misconduct.
20. Legal and Equitable Enforcement of this Agreement.
(a) Default by Seller. In the event of the default or breach by Seller of any of its
obligations, covenants, representations or warranties under this Agreement, Buyer shall have the right
to pursue any remedy available to it at law or equity.
(b) Default by Buyer. BUYER AND SELLER HEREBY ACKNOWLEDGE AND
AGREE THAT, IN THE EVENT THE CLOSING FAILS TO OCCUR DUE TO BUYER'S
DEFAULT (ALL OF THE CONDITIONS TO BUYER'S OBLIGATIONS TO CLOSE HAVING
BEEN SATISFIED OR WAIVED), SELLER WILL SUFFER DAMAGES IN AN AMOUNT
WHICH WILL, DUE TO THE SPECIAL NATURE OF THE TRANSACTION CONTEMPLATED
BY THIS AGREEMENT AND THE SPECIAL NATURE OF THE NEGOTIATIONS WHICH
PRECEDED THIS AGREEMENT, BE IMPRACTICAL OR EXTREMELY DIFFICULT TO
ASCERTAIN. IN ADDITION, BUYER WISHES TO HAVE A LIMITATION PLACED UPON
THE POTENTIAL LIABILITY OF BUYER TO SELLER IN THE EVENT THE CLOSING FAILS
TO OCCUR DUE TO A BUYER DEFAULT, AND WISHES TO INDUCE SELLER TO WAIVE
OTHER REMEDIES WHICH SELLER MAY HAVE IN THE EVENT OF A BUYER DEFAULT.
BUYER AND SELLER, AFTER DUE NEGOTIATION, HEREBY ACKNOWLEDGE AND
AGREE THAT THE AMOUNT OF THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE
OF THE DAMAGES WHICH SELLER WILL SUSTAIN IN THE EVENT OF SUCH BUYER
DEFAULT. BUYER AND SELLER HEREBY AGREE THAT SELLER MAY, IN THE EVENT
THE CLOSING FAILS TO OCCUR DUE TO A BUYER DEFAULT, TERMINATE THIS
AGREEMENT BY WRITTEN NOTICE TO BUYER AND RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES (AND, TO THE EXTENT NOT ALREADY DELIVERED TO
ESCROW HOLDER, BUYER SHALL IMMEDIATELY DELIVER THE DEPOSIT TO SELLER).
SUCH RETENTION OF THE DEPOSIT BY SELLER IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF
THE CALIFORNIA CIVIL CODE AND SELLER'S SOLE REMEDY ON ACCOUNT OF THE
CLOSING FAILING TO OCCUR DUE TO A BUYER DEFAULT, AND SHALL NOT BE
DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF
SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR
PROVISION.
Page 15 of 18
—L-IR/49478
0
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND
UNDERSTAND THE PROVISIONS OF THIS PARAGRAPH 20(b) AND BY THEIR INITIALS
IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
SELLER'S INITIALS: BUYER'S INITIALdAS
7
21. Assignment. This Agreement shall be binding upon and shall inure to the benefit of Buyer
and Seller and their respective heirs, personal representatives, successors and assigns. Buyer shall
not have the right to assign this Agreement or any interest or right hereunder without the prior written
consent and approval of Seller, which consent shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, Buyer shall be entitled to assign its rights under this
Agreement without Seller's consent to one or more entities that are managed and controlled by
Buyer; provided that Buyer promptly notifies Seller in writing of such assignment. In the event of
any assignment of this Agreement by Buyer, the assignee shall expressly assume and agree to be
bound by the terms and conditions of this Agreement, provided, however, that no such assignment
shall release Buyer from its obligations under this Agreement.
22. Miscellaneous.
(a) Partial Invalidity. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder
of this Agreement, or the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term
and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
(b) Waivers. No waiver of any breach of any covenant or provision herein contained shall
be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or
provision herein contained. No extension of time for performance of any obligation or act shall be
deemed an extension of the time for performance of any other obligation or act.
(c) Survival of Representations. The covenants, agreements, representations and
warranties; made herein shall survive the Close of Escrow and shall not merge into the Grant Deed
and the recordation thereof in the Official Records.
(d) Term. This Agreement shall remain in full force and effect until mutually rescinded
by the Parties.
(e) Professional Fees. In the event of the bringing of any action or suit by Seller, Buyer
and/or Escrow Holder against another party hereunder by reason of any breach of any of the
covenants, agreements or provisions on the part of the other party arising out of this Agreement, then
in that event the prevailing parry shall be entitled to have and recover of and from the other party all
costs and expenses of the action or suit, including actual attorneys' fees, accounting and engineering
fees, and any other professional fees resulting there from.
(f) Entire Agreement. This Agreement (including any Exhibits attached hereto) is the
final expression of, and contains the entire agreement between the Parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto, This Agreement may not
Page 16 of 18
1 IW419478.5
9 0
be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived,
except by written instrument signed by the party to be charged or by Its agent duly authorized in
writing or as otherwise expressly permitted herein. The Parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the Parties hereto.
(g) Time of Essence. Seller and Buyer hereby acknowledge and agree that time is strictly
of the essence with respect to each and every term, condition, obligation and provision hereof and
that failure to timely perform any of the terms, conditions, obligations or provisions hereof by either
party shall constitute a material breach of and a nondurable (but waivable) default under this
Agreement by the party so failing to perform.
(h) Construction. Headings at the beginning of each paragraph and subparagraph are
solely for the convenience of the Parties and are not a part of the Agreement. Whenever required by
the context of this Agreement, the singular shall include the plural and the masculine shall include the
feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of
the Parties, but rather as it both Parties had prepared the same. Unless otherwise indicated, all
references to paragraphs and subparagraphs are to this Agreement. All exhibits referred to in this
Agreement are attached and incorporated by this reference.
(i) Governing Law. The Parties hereto acknowledge that this Agreement has been
negotiated and entered into in the State of California. The Parties hereto expressly agree that this
Agreement shall be governed by, interpreted under, and construed and enforced in accordance with
the laws of the state of California.
0) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall constitute one and the same
instrument.
(k) Negotiated Transaction. The provisions of this Agreement were negotiated, drafted
and prepared by all the Parties hereto and no party shall be deemed to have been the author of any
particular term or conditions contained herein.
(1) Amendment. Neither this Agreement nor any provision hereof may be changed,
amended, modified, waived or discharged orally or by any course of dealing, but only by an
instrument in writing signed by the party against which enforcement of the change, amendment,
modification, waiver or discharge is sought.
(m) Captions. All captions, headings, paragraph and subparagraph numbers and letters are
solely for reference purposes and shall not be deemed to be supplementing, limiting, or otherwise
varying the text of this Agreement.
(n) Severability. The invalidity or unenforceability of a particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
(o) Date for Performance. If the time period by which any right, option or election
provided under this Agreement must be exercised, or by which any act required hereunder must be
performed, or by which the Closing must be held, expires on a Saturday, Sunday or legal or bank
Page 17 of 18
LIRA 9478.5
9 0
holiday, then such time period shall be automatically extended through the close of business on the
next regularly scheduled business day.
(p) Force and Effect. The submission of this Agreement to Buyer for examination or
consideration does not constitute an offer to sell the Property, and this Agreement shall become
effective, if at all, only upon the full and mutual execution and delivery thereof by Seller and Buyer.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and
year hereinabove written.
"Seller"
City of San Juan Capistrano
M. Swerdlin, Mayor
AS TO FORM:
LE
City Attorney
ATTEST:
Margaret R. Monahan, City Clerk
"Buyer"
Centra Realty Corporation,
Page 18 of 18
LIRA 19478.5
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EXHIBIT A
DEPICTION OF RESERVED EASEMENT LOCATIONS
(Attached)
t -[R/419478.5
Approximate Location of Pump Station, Sewer
\ ; Lines, Stormdrains, Water Lines, Electrical Lines
1 '• and combined Equestrian, Emergency Access,
1 Landscape, and Bike Path Easement, In and Around
1 Lot 217
1 '
1 '
1 '
1
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\ CT.
1 '
1 '
1 '
1 b
1 '
- -
\ 0 • i PRV
• N �
Pump Station W E
•" Q Sewer Structures S
• •• .Sewer
\ _ 'Water
• ZV Stromdrain
\ Electric
\ Equestrian, Emergency Access, Bike Path Easement
0 Lot 217 0 50 100 Feet
lop low\ 0 Parcels
�f
Disclaimer The" of San Juan Capistrano kesno rapressentationo 1 sol any kind ro '•
1 lh rasped the e acwrac, orc pletn fine -folio furnished on gas map.
Copyright
1999 Ad Rights Reserved The l bo Ma amain thepopnelary imprints, fthe behaving
\
ppl ld under license and may not be reproduced except as licensed by Digital Map Produ ts, Orange County d Th Gas Company. .
••
as as
32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAx
www.sanjuancapistrano.org
19611lf4
• fslnnlse" � 1961
1776
MEMBERS OF THE CITY COUNCIL
NOTIFICATION OF MEETING OF POTENTIAL INTEREST
OF THE SAN JUAN CAPISTRANO CITY COUNCIL
SAM ALLEVATO
DIANE BATHGATE
WYATT HART
JOE SOTO
DAVID M. SWERDLIN
The City Council of San Juan Capistrano will meet at 7:00 p.m. on August 1, 2006 in the
City Council Chamber in City Hall, to consider: "Consideration of Purchase and Sale
Agreement for Surplus Property known as lot 217 of Tract 12954 (APN 650-592-03)
with Centra -Realty in the amount of $4.45M *City Council Priority #16*" — Item No.
Gla.
If you have specific thoughts or concerns regarding this item, you are encouraged to
participate in this decision making process. You can communicate with the City Council
through correspondence addressed to the Council and/or by attending the meeting and
speaking to the Council during the public meeting.
Correspondence related to this item must be received at the City Clerk's office by 5:00
p.m. on Monday, July 31, 2006 to allow time for the Council to consider its content.
If you would like to speak at the meeting, please complete a yellow "Request to Speak"
form found inside the entrance to the Council Chamber. This form is turned in at the
staff table, just in front of the Council dais. You will be called to speak by the Mayor
when the item is considered.
You have received this notice at the request of the City staff member Douglas Dumhart,
Economic Development Manager. You may contact that staff member at (949) 949-
443-6316 with any questions.
The agenda, including agenda reports, is available to you on our web site:
www.san*uancapistrano.org. If you would like to subscribe to receive a notice when
agendas are posted to the web site, please make that request by sending an e-mail to:
council -agendas gasanivancaaistrano.org.
Meg Monahan, CMC
City Clerk
cc: Centra Realty*; Douglas Dumhart, Economic Development Manager
* Received staff report
San Juan Capistrano: Preserving the Past to Enhance the Future
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