Loading...
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) 0 4 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. I-IR/419478.5 Page 1 of 18 SO 9 0 (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. Page 2 of 18 1-IR/419478.5 0 0 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 Page 3 of 18 1-IR/419478.5 0 0 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: Page 4 of 18 1 IR/40478.5 (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. Page 5 of 18 I-IR/419478.5 0 • 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. Page 6 of 18 1-IR/4I9478.5 0 0 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 Page 7 of 18 I-IR/419478.5 (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 Page 8 of 18 IW4i947s.s 9 0 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. Page 9 of 18 1 -IR/ 19478.5 0 0 (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 Page 10 of 18 1-aU 19478.5 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 0 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 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. Page 1 of 18 — ATTACHMENTI 1-IR/419478.5 9 0 (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. Page 2 of 18 1-IR/A19A78.5 • 0 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 Page 3 of 18 t-nL419478.5 • 0 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: Page 4 of 18 I-Iw419478.5 0 0 (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. Page 5 of 18 1-_M/45478 5 0 0 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. Page 6 of 18 _/ 1-nU419478.5 0 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 Page 7 of 18 1-IR/419478.5 0 0 (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 Page 8 of 18 TW419478.5 0 • 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. Page 9 of 18 LIR/4t9478.5 0 0 (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 Page 10 of 18 HI 419478.5 0 0 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 0 0 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 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 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 0 0 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 • a \ �cy�F ••,•• •dQ . 10. ' •Q \ 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 0 Printed.n 100%Recycled Paper