Loading...
13-0319_ACCRETIVE REALTY INVESTMENTS, LLC_Purchase and Sale AgreementPURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of March 9, 2013 ("Effective Date"), by and between CITY OF SAN JUAN CAPISTRANO, a California municipal corporation ("City"), and ACCRETIVE REALTY INVESTMENTS, LLC, a California limited liability company ("Buyer"). In consideration of the mutual agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City desires to sell, and Buyer desires to purchase, the Property described below, for the Purchase Price and upon the terms and conditions set forth below: ARTICLE 1 CERTAIN DEFINITIONS AND FUNDAMENTAL PROVISIONS This Article 1 sets forth certain definitions and fundamental provisions for purposes of this Agreement. 1.1 "Buyer's Address" means: Accretive Realty Investments, LLC 19752 MacArthur Blvd, Suite 240 Irvine, CA 92612 Attention: Thomas LeBeau Telephone: (949) 856-1044 E -Mail: tlebeau@aceretiverealty.com Facsimile: (949) 856-1045 1.2 "City's Address" means: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California Attention: Karen P. Brust, City Manager Telephone: (949) 443-6314 E-mail: kbrust@sanjuancapistrano.org Facsimile: (949) 493-1053 With copy to: Newmeyer & Dillion LLP 895 Dove Street, 5th Floor Newport Beach, CA 92660 Attention: Jane M. Samson, Esq. Telephone: (949) 271-72 09 E -Mail: jane.samson@ndlf.com Facsimile: (949) 854-7099 With copy to: Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 Attention: Hans Van Ligten, Esq. Telephone: (714) 641-5100 E-mail: hvanligten@rutan.com Facsimile: (714) 546-9035 1.3 "Closing Date" means fifteen (15) business days following the expiration of the Due Diligence Period. The terms the "Close of Escrow", and/or the "Closing" are used herein to mean the time the Grant Deed is recorded in the Office of the County Recorder of Orange County, California. 22021028428.0002 5028827.6 a03113/13 1.4 "Deposit" means: One Hundred Twenty Thousand Dollar ($120,000.00) earnest money deposit made by Buyer in accordance with the terms of Section 2.2 below, together with any interest earned thereon. 1.5 "Opening of Escrow" means: The date upon which Escrow Holder receives a fully executed copy of this Agreement, which date shall be identified by Escrow Holder by written notice delivered to City and Buyer. The Opening of Escrow shall take place within three (3) business day of the execution of this Agreement by Buyer and City. 1.6 "Escrow Holder" means First American Title Company whose address is: First American Title Company 5 First American Way Santa Ana, CA 92707 Attn: Jeanne Gould, Senior Escrow Officer Tel: (714) 250-5381 Email : jmm agould0firsta.co Facsimile: (714) 913-6372 Escrow No.: 1.7 "Due Diligence Period" means the period commencing upon the Effective Date and continuing for a period of one hundred twenty (120) days thereafter. The Due Diligence Period may be extended pursuant to Section 10.2 below. 1.8 "Purchase Price" means Three Million Six Hundred Thousand Dollars ($3,600,000.00). 1.9 "Title Company" means First American Title Company, whose address is: First American Title Company 1250 Corona Pointe Court, Ste. 201 Corona, CA 92879 Attn: Steven Clark, Senior Title Officer Telephone: (951) 256-5878 email: sclark@fmtam.com Facsimile: (951) 280-9060 Title Order No.: 1.10 "Property" means that certain real property comprised of approximately 4.79 acres of vacant land, located in the City of San Juan Capistrano, County of Orange, more particularly described on Exhibit "A" attached hereto, together with all right, title and interest that City may have in and to all easements in or upon such land and all other rights, privileges and appurtenances pertaining thereto. ARTICLE 2 CONSIDERATION 2202/028428-0002 5028827.6 &03/13/13 -2- 2.1 Purchase Price. The Purchase Price to be paid by Buyer to City for the sale and conveyance of the Property is specified in Section 1.8, and shall be payable in cash to City at the Closing, subject to prorations and adjustments at the Closing Date as provided in this Agreement, which funds must be delivered in a manner to permit Escrow Holder to deliver good funds to the City or its designee on the Closing Date. 2.2 Deposit. Within one (1) business day of the Opening of Escrow, Buyer shall deposit with Escrow Holder in "good funds" the Deposit, to be held in an interest bearing account. The Deposit shall be fully refundable during the Due Diligence Period, except in the case of a Buyer Default (defined in Section 7.1 below) under Section 10.1 of this Agreement during the Due Diligence Period. Unless this Agreement has been terminated on or before the expiration of the Due Diligence Period pursuant to Section 3.1.5 below, the Deposit shall be (i) non-refundable from and after the expiration of the Due Diligence Period (except as otherwise provided in this Agreement) and (ii) applicable to the Purchase Price at Closing. 2.3 Disposition of Deposit Following Due Diligence Period. Notwithstanding anything to the contrary set forth in this Agreement, in the event Buyer has delivered unconditional written notice to Escrow Holder and City confirming completion of Buyer's due diligence and its decision to close pursuant to Section 3.1.5 below, then (i) the Deposit shall be retained by City as liquidated damages in the event the Closing fails to occur due to a Buyer Default under this Agreement, and (ii) the Deposit shall be returned to Buyer in the event the Closing fails to occur as a result of a City Default (defined in Section 7.1 below) under this Agreement, or the failure of one of the conditions to Buyer's obligations as provided in Section 4.12 below (except in the case of a failure of condition due solely to a Buyer Default in which case the City shall retain the Deposit as liquidated damages) or the termination of this Agreement pursuant to Section 9 below. 2.4 Termination of Agreement. Subject to Section 2.5 below, if Buyer does not confirm in writing its completion of its due diligence and decision to proceed with the close prior to expiration of the Due Diligence Period, this Agreement shall automatically terminate without fixrther notice and Escrow Holder shall return the Deposit to Buyer upon Buyer executing cancellation escrow instructions confirming termination of this Agreement and termination of the Escrow. Buyer's failure to confirm termination of this Agreement by executing cancellation escrow instructions within five (5) business days following written notice to do so shall constitute a material default under this Agreement. 2.5 Independent Contract Consideration. Notwithstanding anything to the contrary set forth in this Agreement, City and Buyer agree that One Hundred Dollars ($100.00) of the Deposit ("Independent Contract Consideration") has been bargained for as consideration for City's execution and delivery of this Agreement and Buyer's right to approve or disapprove any Buyer contingencies set forth in this Agreement. The Independent Contract Consideration is in addition to and independent of any other consideration or payment provided for in this Agreement and is non-refundable in all events. ARTICLE 3 2202/028428.0002 _3_ 5028827,6 a03/13/13 CONDITIONS PRECEDENT; FEASIBILITY PERIOD AND TITLE 3.1 Due Diligence Period. During the Due Diligence Period specified in Section 1.7 and subject to compliance with the requirements of this Section 3. 1, Buyer shall have the right to inspect the Property, to have the Property inspected by its engineers, to undertake environmental surveys and assessments of the Property and to conduct such other due diligence, at Buyer's sole cost and expense, all as Buyer deems appropriate, provided however that any invasive testing of the Property shall be subject to City's prior written consent, which consent may be withheld or provided, at City's sole discretion. Buyer shall use care and consideration in connection with all of its inspections and testing and restore the Property to substantially its same physical condition as existed prior to such testing and inspections. 3.1.1 Prior to any entry on the Property by Buyer for any invasive testing, Buyer shall secure and maintain: (a) a comprehensive general liability and property damage policy in an amount of not less than Two Million Dollars ($2,000,000.00) which will cover the activities of Buyer and its agents, employees, consultants and contractors on the Property and shall name City as an additional insured thereunder, and (b) workers' compensation and employer's liability insurance in accordance with the provisions of California law. On request by City, Buyer shall provide a certificate of insurance evidencing the insurance required in this Section. 3.1.2 Buyer shall conduct all inspections and studies at its sole cost and expense and in accordance with all applicable laws. 3.1.3 Buyer shall defend, reimburse, indemnify and hold City harmless (with counsel satisfactory to City) from all liability, damage, cost and expense (including reasonable attorneys' fees) arising from the negligence or willful misconduct of Buyer, Buyer's agents, contractors and/or subcontractors on the Property, and/or from any and all investigation, assessment, testing, monitoring or inspection, or other activities conducted upon the Property by Buyer, Buyer's agents, contractors and/or subcontractors as contemplated herein. Buyer shall take all steps, including filing appropriate bonds if necessary, to keep the Property free of mechanic's liens as a result of Buyer's activities contemplated herein. The indemnity under this Section shall survive the Closing or the termination of this Agreement for any reason. 3.1.4 Buyer shall deliver to City a copy of all third party reports, materials, studies and investigations conducted by Buyer on or concerning the Property, excluding those prepared by Buyer's counsel (collectively, "Buyer Reports") within three (3) business days following the termination or deemed termination of this Agreement by Buyer. True and complete copies of the Buyer Reports shall be delivered by Buyer to City, at no cost to City and lien -free, but without any representation or warranty by Buyer as to the quality, completeness or accuracy of the contcnts of the Buyer Reports. 3.1.5 During the Due Diligence Period, Buyer may, in its sole discretion for any reason, terminate this Agreement; provided City and Escrow Holder are notified of such termination in writing on or before expiration of the Due Diligence Period, whereupon Buyer shall pay all reasonable escrow fees, Escrow Holder shall deliver the Deposit to 2202MS428-M -4- 5028827.6 a03113113 Buyer pursuant to Section 2.2 above and neither parry shall have any further liability to the other, except for Buyer's indemnity of City under this Section 3.1, Buyer's delivery to City of the "Buyer Reports" (as defined above) and any other obligations which expressly survive the termination of this Agreement. If Buyer wishes to proceed with this Agreement, it will deliver written notice to City and Escrow Holder prior to expiration of the Due Diligence Period. Buyer's failure to provide an unconditional written notice to Escrow Holder and City confirming completion of Buyer's due diligence and its decision to close shall automatically terminate this Agreement. 3.1.6 During the Due Diligence Period, Buyer shall review the "Title Documents" and inform the Escrow Holder and City in writing of whether Buyer will accept title subject to the Permitted Exceptions (defined below) pursuant to Section 3.2 below. 3.1.7 Commencing upon the occurrence of the following: (i) the Opening of Escrow and (ii) Buyer's delivery of the Deposit to Escrow Holder, and thereafter until the Close of Escrow, City shall make available at City Hall , to Buyer for Buyer's review (and copying at Buyer's expense, should Buyer so elect) copies of all other environmental reports, surveys, maps, tests, plans, studies and other reports pertaining to the physical condition of the Property, title to the Property and its improvement and development which are in City's possession to the extent obtained by City as a result of City's ownership of the Property and not in City's capacity as a regulatory agency (collectively "City's Documents"). Buyer shall provide City with reasonable prior notice of its election to review City's Documents. City's Documents shall exclude any information which may be in the possession of a third party consultant, engineer or other person, but which is not also in City's actual possession or control. City makes no representation or warranty regarding the accuracy or completeness of any information contained in City's Documents, all such information being made available on an "AS -IS" basis. If Buyer elects to proceed with the purchase of the Property pursuant to Section 3.1.5 above, Buyer shall be deemed to have acquired the Property subject to all information and matters referenced in City's Documents and made available to Buyer as provided above whether or not Buyer has elected to review City's Documents. If this Agreement is terminated for any reason other than a City Default, Buyer shall, within five (5) days following such termination, return to City all information, surveys, studies, documents, reports and data obtained by Buyer hereunder, and Buyer shall thereafter keep and hold all such information respecting the Property in strict confidence (and Buyer's obligation to keep all such information confidential shall survive such termination). Buyer acknowledges that City will deliver some or all of City's Documents to Buyer during the Due Diligence Period, that such delivery shall be made as an accommodation only, and that City's delivery of such informatiop shall in no way constitute a representation or warranty by City that it is delivering all of City's Documents, or any portion thereof. In such event, such information shall have been provided on an "AS -IS" basis without representation or warranty, and Buyer acknowledges that if Buyer desires to review the entirety of City's Documents, Buyer must do so by reviewing such information at City's offices. 22021029428.0002 -5- 5028827.6 a03/13/13 3.2 Title Review and Survey. Title to the Property shall be conveyed by City to Buyer at the Closing free and clear of all liens, restrictions, easements, encumbrances and title objections, except for the Permitted Exceptions as defined below. 3.2.1 Substantially concurrent with the Opening of Escrow, Buyer and City shall request that Escrow Holder (also referred to herein from time to time as "Title Company") prepare and promptly deliver to Buyer a preliminary title report ("Preliminary Report") describing the state of title of the Property, together with copies of all recorded instruments specified therein (collectively, the "Title Documents'). 3.2.2 Buyer shall review the Title Documents, and within forty (40) days from the Opening of Escrow deliver to City in writing its approvals and objections with regard to anything contained or set forth therein. Any items not expressly objected to by Buyer on or before such date, shall be deemed approved. All items so approved or deemed approved by Buyer shall be referred to as "Permitted Exceptions". Notwithstanding anything to the contrary set forth in this Section 3.2, at or prior to the Close of Escrow, City shall cause to be removed any monetary liens imposed upon the Property other than non -delinquent real property taxes and assessments (including any CFD or similar assessments) and any matters caused or permitted by Buyer and such monetary liens shall not constitute Permitted Exceptions. 3.2.3 If City is unable or unwilling, within three (3) business days after notice of Buyer's objections, to cure such defects expressly objected to by Buyer pursuant to Section 3.2.2 above, then Buyer, within an additional three (3) business days, may (a) terminate this Agreement upon three (3) business days' written notice to City (in which event Escrow Holder shall deliver the Deposit in accordance with Section 2.2 above), or (b) notify City that Buyer will close subject to such uncured objections as Permitted Exceptions. Buyer's failure to elect either alternative within the prescribed 3 business day period shall be deemed an election to terminate this transaction in accordance with Clause (a) above. 3.2.4 On or prior to the Closing, City shall use reasonable efforts to deliver to the Title Company, any and all documentation reasonably required by the Title Company to commit to issue to Buyer at Closing a CLTA standard coverage owner's title policy, subject only to the Permitted Exceptions, in the amount of the Purchase Price showing title vested in Buyer (the "Owner's Policy"). Buyer may elect to obtain an ALTA extended coverage owner's policy of title insurance (provided Buyer shall be responsible for any survey and policy costs associated therewith). The issuance of ALTA extended coverage shall not be a condition precedent to Buyer's obligation to Closing, and Buyer shall not object to the Closing based upon an inability to obtain, or any delays in obtaining, such coverage. 3.2.5 Upon the issuance of any amendment or supplement to the Preliminary Report which adds additional exceptions ("Additional Exceptions"), Buyer shall have the right to review and approve such amendment or supplement within five (5) business days of Buyer's receipt thereof. Any items not expressly objected to by Buyer within said five (5) business day period shall be deemed approved. In the event Buyer 2202102842MW2 $028827.6 a03/13/13 disapproves of any Additional Exceptions within said five (5) business day period, Buyer shall have the right to terminate this Agreement and obtain a return of its Deposit. Notwithstanding the preceding sentence, Buyer shall allow City at least three (3) business days following written notice of termination to either remove or commit in writing to remove such disapproved title matter to Buyer's reasonable satisfaction. If City removes such matters or commits in writing to do so within said three (3) business day period, Buyer's termination notice shall be of no force or effect and Escrow Holder shall proceed with the Closing as contemplated herein (provided that removal of such objectionable item at or prior to the Closing shall be a condition precedent for Buyer's benefit). If City does not either remove such matters or commit in writing to do so within said three (3) business day period, the Deposit shall be returned to Buyer and this Agreement shall terminate as provided for above. ARTICLE 4 CLOSING 4.1 Closing Date. The Closing of the purchase and sale contemplated hereby shall be held at the offices of Escrow Holder on the Closing Date. Notwithstanding anything to the contrary set forth in this Agreement, in the event the Closing does not occur on or before September 19, 2013 (the "Outside Closing Date"), then either Buyer or City may, in its sole and absolute discretion and by delivery of written notice to the other, thereafter terminate this Agreement. In the event of such termination, Buyer shall be entitled to the return of the Deposit, and all interest accrued thereon, and Buyer and City shall be released from all further liability and obligation hereunder (except for such obligations which expressly survive termination of this Agreement). 4.2 City Deliveries.• At least one (1) business day prior to the Closing Date, City shall execute and/or deliver (or cause to be delivered) to Escrow Holder the following: 4.2.1 One (1) original grant deed in the form of Exhibit "B" ("Grant Deed") executed and acknowledged by City. 4.2.2 One (1) original California Form 593-C Real Estate Withholding Exemption Certificate ("California Residency Affidavit"). 4.3 City Costs and Expenses. At Closing, City shall pay the following costs and expenses: (i) any documentary transfer taxes on the Grant Deed and any other conveyancing instruments; (ii) the premium for the Owner's Policy; and (iii) one=half (1/2) of the customary escrow charges. 4.4 Buyer Deliveries. At least one (1) business day prior to the Closing Date, Buyer shall execute and/or deliver (or cause to be delivered) to Escrow Holder the following: 4.4.1 One (1) original Preliminary Change of Ownership Statement. 4.4.2 Such funds and other items and instruments as may be necessary in order for Escrow Holder to comply with this Agreement. 2202/028428.0002 -7- 5028827.6 43/13/13 4.5 Buyer's Costs and Expenses. At Closing, Buyer shall pay the balance of the Purchase Price, one-half (1/2) of the customary escrow charges, and the recording and filing fees for the Grant Deed and any financing placed on the Property by Buyer, all title charges for any extended coverage, ALTA survey, title endorsements or other title protections selected by Buyer. 4.6 Property Taxes. City is exempt from the payment of property taxes and will not be required to pay any taxes for the Property. Buyer shall pay all property taxes and assessments for the Property from and after the Closing Date. 4.7 Escrow Holder's Actions. Upon the Closing Date, when Escrow Holder holds the items required to be deposited by City and Buyer as described above and Title Company is prepared to issue and deliver to Buyer the applicable Owner's Policy, Escrow Holder is instructed and authorized to (a) record the Grant Deed in the Office of the County Recorder of the County of Orange; (b) pay any transfer taxes; (c) instruct the County Recorder to return the original of the Grant Deed to Buyer; (d) disburse to City from the funds deposited into Escrow by Buyer the Purchase Price less the Deposit and less City's escrow costs and expenses; (e) disburse from funds deposited by Buyer amounts toward payment of all other items chargeable to the account of Buyer hereunder, and disburse the balance of such funds, if any, to Buyer; (f) deliver to Buyer one duplicate original of the California Residency Affidavit and the Owner's Policy and (g) deliver to City one duplicate original of the California Residency Affidavit. 4.8 Escrow Cancellation Charges. If the Closing does not occur due to a default by one of the parties, the defaulting party shall bear all Escrow Cancellation Charges. If the Closing does not occur for any reason other than the default of a party, then Buyer and City shall each pay one-half ('/2) of any Escrow Cancellation Charges. As used herein, "Escrow Cancellation Charges" means all fees, charges and expenses incurred by Escrow Holder or third parties engaged by Escrow Holder, as well as all expenses related to the services of the Title Company in connection with the issuance of the Preliminary Report and other title matters. 4.9 Possession Upon Closing. Upon Closing, City shall deliver possession of the Property to Buyer. 4.10 City Conditions: The following conditions are conditions precedent to City's obligation to close the purchase of the Property: 4. 10.1 There shall exist no pending or threatened actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, against the Buyer that would materially and adversely affect the Buyer's ability to unconditionally perform its obligations under this Agreement. 4.10.2 All of Buyer's representations and warranties in this Agreement shall be true and correct in all material respects. 4.10.3 Buyer shall have delivered the funds required hereunder and all of the documents to be executed by Buyer set forth in Section 4.4 and shall not be in default under this Agreement. 22021028428.0002 -8- $028827.6 a03/13/13 In the event any of the foregoing conditions are not either satisfied on or before the date specified for satisfaction of each respective condition, or expressly waived by City in writing, City shall have the right to terminate this Agreement in accordance with Section 4.12. 4.11 Buyer Conditions. The following conditions are conditions precedent to Buyer's obligation to close the purchase of the Property: 4.11.1 City shall have delivered all of the documents and other items required pursuant to Section 4.2 and not be in default under this Agreement; 4.11.2 All of City's representations and warranties set forth in Section 6.5 shall be true and correct in all material respects. 4.11.3 The Title Company has irrevocably committed to issue the Owner's Policy as required by Section 3.2.4. In the event any of the foregoing conditions are not either satisfied on or before the date specified for satisfaction of each respective condition, or expressly waived by Buyer in writing, Buyer shall have the right to terminate this Agreement in accordance with Section 4.12. 4.12 Failure of Conditions. In the event any condition to the obligation of Buyer or City to purchase the Property has not been satisfied on or before the dates specified therein or, if no date has been specified, on or before the Closing Date, Buyer (if such condition is for the benefit of Buyer) or City (if such condition is for the benefit of City) shall have the right to terminate this Agreement and the Escrow by delivery of written notice to the other party and to Escrow Holder. In the event of such termination, the Deposit shall be returned to Buyer along with all interest earned thereon while held in Escrow (except in the case of a failure of condition due solely to a Buyer Default in which case City shall retain the Deposit as liquidated damages pursuant to Section 7.2). In the event of such termination, neither party shall thereafter have any obligations to, or rights against, the other under this Agreement, except for the indemnity obligations of Buyer under Section 3.1.3 above and any other obligations that expressly survive the termination of this Agreement. Notwithstanding anything to the contrary in the foregoing, this Section 4.12 shall not apply in the event of the Closing failing to occur due to a City Default or a Buyer Default, in which event the provisions of Article 7 shall instead apply. ARTICLE 5 NATURAL HAZARD DISCLOSURE 5.1 Natural Hazard Disclosure. Buyer and City acknowledge that City is required to disclose if the Property lies within the following natural hazard areas or zones: (a) a special flood hazard area designated by the Federal Emergency Management Agency; (b) an area of potential flooding; (c) a very high fire hazard severity zone; (d) a wild land area that may contain substantial forest fire risks and hazards; (e) an earthquake fault or special studies zone; or (f) a seismic hazard zone. Buyer and City hereby instruct Escrow Holder, or an affiliate thereof (who, in such capacity, is herein called the "Natural Hazard Expert") to examine the maps and other 2202/028428.0002 -9- $028827.6 a03/13/13 information specifically made available to the public by government agencies for the purposes of enabling City to fulfill its disclosure obligations with respect to the natural hazards referred to above and to report the results of its examination to Buyer and City in writing. Escrow Holder shall provide a written report prepared by the Natural Hazard Expert regarding the results of its examination no later than twenty (20) days prior to the expiration of the Due Diligence Period. The written report prepared by the Natural Hazard Expert regarding the results of its examination fully and completely discharges City from its disclosure obligations referred to herein, and, for the purposes of this Agreement, the provisions of Civil Code Section 1103.4 regarding the non - liability of City for errors and/or omissions not within its personal knowledge shall be deemed to apply, and the Natural Hazard Expert shall be deemed to be an expert dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above. ARTICLE 6 REPRESENTATIONS, DISCLAIMERS. RELEASE AND INDEMNITY. 6.1 Buyer Representations. Buyer hereby represents and warrants to City that the following statements are true and correct now and as of the date of the Closing, and shall thereafter expire and be of no further force or effect: 6.1.1 Buyer is duly organized and existing in good standing under the laws of the state in which is it organized. Buyer has the power to own property and to carry on its business as now being conducted and is duly qualified to do business and is in good standing in every jurisdiction in which the nature of its business makes such qualification necessary. Buyer is duly and legally authorized to enter into this Agreement and carry out and perform all covenants to be performed by it hereunder and its right to execute this Agreement is not limited by the existence of any other contracts or agreements whatsoever. 6.1.2 Buyer represents and warrants that, except for City's express representations and warranties set forth in Section 6.5 below, neither City, nor any of them, or their employees, agents or representatives have made any representations, warranties or agreements to or with Buyer as to any matters concerning the Property, the present use thereof, or the suitability of Buyer's intended or contemplated use of the Property, or the availability of government permits or approvals of any kind. Buyer further represents and warrants to City that it and its representatives and employees have made or will make their own independent inspection and investigation of the Property and further acknowledge and agree the Property shall be purchased, conveyed and accepted by Buyer in its present condition, AS -IS, and that no patent or latent physical condition of the Property, whether or not known or discovered shall affect the rights of either party hereto. 6.2 Disclaimer. It is understood and agreed that, except for City's express representations and warranties set forth in Section 6.5 below, City has not at any time made and is not now making, and City specifically disclaims, any warranties or representations of any kind or character, express or implied, with respect to the Property, or any improvements thereon, 2202!028428.0002 -10- 5028827.4 aO3/13f13 including, but not limited to, warranties or representations as to (a) matters of title, (b) environmental matters relating to the Property or any portion thereof, including, without limitation, the existence or lack thereof of Hazardous Materials (as defined below) in, on, under or in the vicinity of the Property, or migrating to or from the Property, either in soil, vapors or surface water or groundwater, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Property or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Property or any portion thereof may be subject, (i) the availability of any utilities to the'Property or any portion thereof including, without limitation, water, sewage, gas and electric, 0) the permitted uses and restrictions on uses on the Property, (k) usages of adjoining property, (1) access to the Property or any portion thereof, (m) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Property or any part thereof, (n) the condition or use of the Property or compliance of the Property with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws, (o) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (p) the merchantability of the Property or fitness of the Property for any particular purpose, (q) tax consequences, or (r) any other matter or thing with respect to the Property. 6.3 Sale "AS IS WHERE IS. WITH ALL FAULTS." Buyer acknowledges and agrees that City is selling and conveying to Buyer, the Property, "AS IS, WHERE IS, WITH ALL FAULTS," and that, except for City's express representations and warranties set forth in Section 6.5 below, Buyer has not relied on and will not rely on, and City has not made and is not liable for or bound by, any express or implied warranties, guarantees, statements, representations or information pertaining to the Property or relating thereto, made or furnished by City or any real estate broker, agent or third party representing or purporting to represent City, to whomever made or given, directly or indirectly, orally or in writing. Buyer represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate and that, Buyer is relying solely on its own expertise and that of Buyer's consultants and representatives in purchasing the Property, and shall make an independent verification of the accuracy of any documents and information provided by City. Buyer will conduct such inspections and investigations of the Property as Buyer deems necessary, including, but not limited to, the physical and environmental conditions thereof, and shall rely solely upon the same. By failing to terminate this Agreement prior to the expiration of the Due Diligence Period, Buyer acknowledges that City has afforded Buyer a full opportunity to conduct all such investigations of the Property as Buyer deemed necessary to satisfy itself as to the condition of the Property and the existence or non-existence or removal or remediation action to be taken with respect to any Hazardous Materials in, on, within or migrating to or from the Property, and that Buyer will rely solely upon the same and not upon any information provided by or on behalf of City or its agents or employees with respect thereto. 2202/028429 -OM —1 1- 3028827.6 a03/13/13 Upon Closing, Buyer shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction defects, or adverse environmental or health and safety conditions, may not have been vealed by Buyer's inspections, assessments, investigations, and/or testing. BUYER'S INITIALS: 6.4 Release. By failing to terminate this Agreement prior to the expiration of the Due Diligence Period, Buyer hereby acknowledges that it will have had full opportunity to investigate, assess, test, and inspect the Property during the Due Diligence Period, and that during such period, to observe the physical and environmental characteristics and existing conditions, including but not limited to, the opportunity to conduct such investigation, assessment, testing, monitoring and study on and of the Property and of adjacent areas, as Buyer deems necessary, in accordance with law. Except with respect to City's indemnification obligations set forth in Section 8.1 of this Agreement and City's express representations and warranties set forth in Section 6.5 below, Buyer, therefore, individually and collectively, for itself and its members, partners, officers, directors, employees, agents, successors, assigns, and all entities related to any of the foregoing, and on behalf of all persons claiming any interest in the Property or this Agreement, including but not limited to any and all future owners, lessees, and/or operators, of the Property and their successors, and effective upon the Closing Date, hereby expressly waives, releases, discharges and forever relinquishes any and all claims, rights of action, causes of action, rights and/or remedies Buyer has or hereafter may have, whether known or unknown, fixed or contingent, against City and City's affiliates, directors, officers, attorneys, employees, partners, members, shareholders and agents (a) regarding any matters affecting the Property and any condition of the Property whatsoever; and (b) regarding: (i) the existence or potential existence of any Hazardous Materials in, on, under, within or migrating to or from the Property, either in soil, vapor, surface water or groundwater, and (ii) any violations or alleged violations of any Environmental Laws regarding the Property. BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 ("SECTION 1542"), WHICH IS SET FORTH BELOW: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICII IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR" BUYER ACKNOWLEDGES AND AGREES THAT IT MAY HEREAFTER DISCOVER FACTS OR LAW DIFFERENT FROM OR IN ADDITION TO THOSE WHICH IT NOW BELIEVES TO BE TRUE WITH RESPECT TO THE RELEASE OF CLAIMS. BUYER ACKNOWLEDGES AND AGREES THAT THE RELEASE IT IS PROVIDING SHALL REMAIN EFFECTIVE IN ALL RESPECTS NOTWITHSTANDING SUCH DIFFERENT OR ADDITIONAL FACTS OR LAW OR ANY PARTIES' DISCOVERY THEREOF. BUYER 220M&Q aro2 -12- 'M882i.6WM13/n SHALL NOT BE ENTITLED TO ANY RELIEF IN CONNECTION THEREWITH, INCLUDING BUT NOT LIMITED TO ANY DAMAGES OR ANY RIGHT OR CLAIM TO SET ASIDE OR RESCIND THIS AGREEMENT. BY INITIALING BELOW, BUYER HEREBY WAIVES AND RELEASES ANY AND ALL RIGHTS PROVIDED UNDER THE PROVISIONS OF SECTION 1542 AND ALL SIMILAR OR RELATED STATUTES THERETO, IN CONNECTION WITH T ESE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WfPS AND RELEASES: BUYER'S INITIALS: 6.5 City's Representations. Except with respect to matters discovered by Buyer during the Due Diligence Period, City represents and warrants to Buyer that to City's "actual knowledge", there is no litigation pending or threatened against the City that arises out of the ownership of the Property or that might materially and detrimentally affect the ability of City to perform its obligations under this Agreement. The representations set forth in this Section 6.5 shall be accurate as of the execution of this Agreement and shall survive the Closing for a period of six (6) months, and shall thereafter expire and be of no further force or effect. For purposes of this Section 6.5, the term City's "actual knowledge" shall mean the current actual knowledge of Karen P. Brust only, acting in her capacity as City Manager of the City, without independent investigation or inquiry of any kind, and without the obligation to undertake any such investigations or inquiry, and shall expressly exclude any imputed or constructive knowledge of any other party or person. 6.6 Integral Part of Agreement. Buyer acknowledges and agrees that the disclaimers, waivers and releases along with the other agreements set forth in this Section 6, are all an integral part of this Agreement, and City would not have agreed to enter into this Agreement without such terms, and that all such terms shall survive the Close of Escrow. 6.7 Definitions. 6.7.1 As used in this Agreement, the term "Hazardous Material(s)" includes, without limitation, any hazardous or toxic material, substance, irritant, chemical, or waste, including without limitation (a) any material defined, classified, designated, listed or otherwise considered under any Environmental Law, including, without limitation, as defined in California Health & Safety Code Section 25260, as a "hazardous waste," "hazardous substance," "hazardous material," "extremely hazardous waste," "acutely hazardous waste," "radioactive waste," "biohazardous waste," "pollutant," "toxic pollutant," "contaminant," "restricted hazardous waste," "infectious waste," "toxic substance," or any other term or expression intended to define, list, regulate or classify substances by reason of properties harmful to health, safety or the indoor or outdoor environment, (b) any material, substance or waste which is toxic, ignitable, corrosive, reactive, explosive, flammable, infectious, radioactive, carcinogenic or mutagenic, and which is or becomes regulated by any local governmental authority, any agency of the State of California or any agency of the United States Government, (c) asbestos, and asbestos containing material, (d) oil, petroleum, petroleum based products and petroleum 22021028428.0002 -13- 5028827.6 103113/13 additives and derived substances, (e) urea formaldehyde foam insulation, (f) polychlorinated biphenyls (PCBs), (g) freon and other chlorofluorocarbons, (h) any drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources, (i) mold, fungi, viruses or bacterial matter, and 6) lead-based paint. 6.7.2 For the purposes of this Agreement, the term "Environmental Laws" means any and all federal, state and local laws, statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental authorizations, or any other requirements of governmental authorities, as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling, assessment, investigation, study, monitoring, removal, remediation, cleanup, treatment, storage, transportation or disposal of Hazardous Materials, or the protection of the environment or human, plant or animal health, including, without limitation, the following statutes and their underlying regulations, as they have been amended from time to time, and the following referenced common laws: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et see.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 It gN.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et see.), the Clean Air Act (42 U.S.C. § 7401 et seg.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seg.), the Oil Pollution Act (33 U.S.C. § 2701 et g .), the Emergency Planning and Community Right -to -Know Act (42 U.S.C. § 11001 et M.), the Porter -Cologne Water Quality Control Act (Cal. Wat. Code § 13000 et seg.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et Na.), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65 — Cal. Health & Safety Code § 25249.5 et see.), the California Hazardous Waste Control Law (Cal. Health & Safety Code § 25100 et se .), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et see.), the Carpenter -Presley - Tanner Hazardous Substances Account Act (California Health and Safety Code, Section 25300 et seq.), the California Underground Storage of Hazardous Substances Laws (Chapter 6.7 of Division 20 of the Cal. Health and Safety Code, §25280 et Eq.) and the California common laws of nuisance, trespass, waste and ultra -hazardous activity. ARTICLE 7 DEFAULT; REMEDIES, 7.1 Default. The term "City Default" shall mean: (a) the failure of City to perform in any material respect, any material act to be performed by City, or to refrain from performing in any material respect any material act prohibited hereby, if such failure has not been remedied by City within five (5) business days following receipt of written notice from Buyer to City and Escrow Holder identifying such failure. The term "Buyer Default' shall mean the failure of Buyer to perform in any material respect any material act -to be performed by Buyer if such failure has not been remedied by Buyer within five (5) business days following receipt of written notice from City identifying such failure. 2202!028428-0002 -14- 5028827.6 s03/UM 7.2 Liquidated Damages. 7.2.1 Default of Citv: Waiver of Damages: Specific Performance. IN THE EVENT THE CLOSE OF ESCROW AND THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DO NOT OCCUR BY REASON OF A "CITY DEFAULT" AS DEFINED IN SECTION 7.1 ABOVE, BUYER, AS ITS SOLE AND EXCLUSIVE REMEDY WILL BE ENTITLED TO, AT BUYER'S SOLE OPTION, (1) A RETURN OF ITS DEPOSIT, TOGETHER WITH ANY INTEREST EARNED THEREON WHILE HELD BY ESCROW HOLDER, AND (II) AN ACTION FOR SPECIFIC PERFORMANCE OF THIS AGREEMENT. BUYER HEREBY WAIVES ANY RIGHT TO PURSUE AN ACTION OR CLAIM FOR DAMAGES RESULTING FROM SUCH CITY DEFAULT, AND IN NO EVENT SHALL CITY BE LIABLE FOR DAMAGES FOR A BREACH OF CITY'S OBLIGATION TO SELL THE PROPERTY TO BUYER, ALL OF WHICH RIGHTS ARE HEREBY WAIVED AND RELINQUISHED BY BUYER. BUYER AGREES THAT THE FOREGOING LIMITATION ON ITS REMEDIES AND MEASURE OF DAMAGES IS REASONABLE UNDER ALL OF THE CIRCUMSTANCES OF THIS AGREEMENT, AND IS MATERIAL CONSIDERATION FOR CITY ENTERING INTO THIS AGREEMENT, WITHOUT WHICH CITY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE FOREGOING SHALL NOT APPLY TO OR OTHERWISE LIMIT ANY RECOVERY BY BUYER UNDER ANY INDEMNITIES MADE BY CITY UNDER SECTION 8.1 HEREIN OR WFIH RESPECT TO CITY'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 6.5 BELOW OR TO ANY ATTQjRNEYSl FEES OR COSTS RECOVERABLE BYBEREUNDER. INITIALS: CITY BUYER: —L 7.2.2 BUYER'SFF ULT. IN THE EVENT THE CLOSE OF ESCROW AND THE CONSUMM ION OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DO NOT OCCUR BY REASON OF A "BUYER DEFAULT" AS DEFINED IN SECTION 7.1 ABOVE, THE DEPOSIT AND ANY ACCRUED INTEREST SHALL BE PAID TO CITY AS LIQUIDATED DAMAGES. THE PARTIES AGREE THAT (a) PAYMENT OF THE DEPOSIT TO CITY IS INTENDED TO COMPENSATE CITY FOR DAMAGES IT WILL SUFFER AS A RESULT OF BUYER'S BREACH HEREOF AND NOT AS A PENALTY OR FORFEITURE; (b) CITY'S DAMAGES IN THE EVENT OF A BUYER'S DEFAULT ARE IMPOSSIBLE OR EXTREMELY DIFFICULT TO ACCURATELY ASCERTAIN AND THAT PROOF OF SUCH AMOUNT WOULD BE COSTLY, TIME-CONSUMING AND INCONVENIENT; (c) THE AMOUNT OF THE DEPOSIT IS FAIR AND REASONABLE IN LIGHT OF ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT AND AT THE TIME OF PAYMENT, INCLUDING THE RELATIONSHIP OF SUCH AMOUNT TO THE RANGE OF HARM TO CITY THAT REASONABLY COULD BE ANTICIPATED; (d) THIS CLAUSE HAS noL 8e'8A -15- 501882)60W/15/p BEEN THE SUBJECT OF SPECIFIC NEGOTIATION; (e) EACH PARTY HAS HAD THE OPPORTUNITY TO HAVE COUNSEL FULLY EXPLAIN THE CONSEQUENCES OF THE CLAUSE; (1) EACH PARTY FULLY UNDERSTANDS THE CONSEQUENCES OF THIS CLAUSE; AND (g) SUCH LIQUIDATED DAMAGES SHALL BE CITY'S SOLE AND EXCLUSIVE REMEDY FOR BUYER'S DEFAULT AND BUYER SHALL HAVE NO OTHER OR FURTHER OBLIGATION OR LIABILITY UNDER THIS AGREEMENT TO CITY ON ACCOUNT OF SUCH DEFAULT OR BREACH. NOTWITHSTANDING THE FOREGOING, THE FOREGOING SHALL NOT APPLY TO OR OTHERWISE LIMIT ANY RECOVERY BY CITY BASED UPON BUYER'S BREACH OF SECTIONS 3.1 OR 8.1 OF THIS AGREEMENT, BUYER'S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT AND/OR ANY POST -CLOSING OBLIGATIONS OF BUYER PURSUANT TO THIS AGREEMENT AND/OR ANY ATTORNEYS' FEES OR COSTS RECOVERABLE BY CITY HEREUNDER. THE PAYMENT AND RETENTION OF THE DEPOSIT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO CITY PURSUANT TO CALIFORNIA CIVILSECTIONS 1671, 1 AND 1677. INITIALS: CITY BUYER: ARTICLE 8 COMMISSION 8.1 Buyer is represented by Madison Street Partners ("Buyer's Broker") and City is represented by CBRE, Inc. ("City's Broker") in connection with the sale contemplated in this Agreement and City shall be responsible for and shall pay a commission to (i) City's Broker pursuant to separate written agreement between City and City's Broker and (ii) upon the Close of Escrow, Buyer's Broker in an amount equal to two percent (2%) of the Purchase Price, the total amount of (i) and (ii) shall not exceed five (S%). Buyer and City represent and warrant to each other that other than City's Broker and Buyer's Broker, they have not dealt with any other real estate or business broker, agent, finder, or other person that may be entitled to a finder's fee or commission for this transaction. City and Buyer each agrees to pay and protect, indemnify, defend and hold harmless the other from and against all liability, damages, attorneys' fees, court costs and expenses from causes of action, suits, claims, demands and judgments of any nature whatsoever arising put of or in any way connected with its dealings with any other real estate brokers or others pertaining to this transaction (other than City's Broker and Buyer's Broker). This Section 8.1 shall survive the Closing. ARTICLE 9 '028827.60LI 3113 RISK OF LOSS. 9.1 Condemnation. If, at any time on or before the Closing, any action or proceeding is filed or threatened under which the Property or any portion thereof may be taken pursuant to any law, ordinance or regulation or by condemnation, the right of eminent domain or by deed -in -lieu, then at the sole option of Buyer (a) this Agreement shall be null and void and the Deposit shall be promptly returned to Buyer by Escrow Holder, or (b) this Agreement shall remain in full force and effect and City, at the time of Closing hereunder, shall transfer and assign all of City's rights, title and interests in and to any proceeds received or which may be received by reason of such taking, or a sale in lieu thereof, which option shall be exercisable by Buyer by delivering to City written notice on or before the fifth business day following the date on which Buyer receives notice that such suit has been filed or is threatened. If such five - business -day period extends beyond the date of Closing, as herein provided, Buyer shall have the right to extend the date of Closing, to allow Buyer the full five business days in which to exercise his options hereunder. Buyer's failure to respond in such five (5) business day period shall conclusively constitute Buyer's election of the option described in clause (b) above in this Section 9.1. 9.2 Casualty, With respect to any casualty that occurs to the Property after the date hereof, and either (i) the casualty is an uninsured casualty and City, in its sole and absolute discretion, does not elect (within thirty (30) days after such casualty) to cause the damage to be repaired or restored or give Buyer a credit at Closing for such repair or restoration, or (ii) the portion of the Property that is damaged or destroyed has a cost of repair that is in excess of $100,000, as reasonably determined by Buyer and City, this Agreement shall automatically terminate. If this Agreement is terminated pursuant to this Section 9.2, the Deposit shall be returned to Buyer and, thereafter, this Agreement shall terminate and neither party to this Agreement shall have any further rights or obligations hereunder other than any arising under any section herein which expressly provides that it shall survive the termination of this Agreement. City shall promptly give notice to Buyer of the occurrence of any such casualty. ARTICLE 10 ADDITIONAL BUSINESS TERMS 10.1 Buyer's Application for Governmental Approvals. During the Due Diligence Period, Buyer intends to submit Buyer's site plan and elevations for approval by the City's Planning Commission and if applicable, approval by the City Council (collectively, the "Governmental Applications") in connection with Buyer's planned development of a single structure medical building on the Property. For purposes of this Agreement, the Governmental Applications shall be deemed approved upon the occurrence of the following (the "Government Approval"): (i) the City's Planning Commission and if applicable, the City Council has approved the Governmental Applications subject to terms and conditions acceptable to Buyer and (ii) the period in which to appeal such Government Application approvals has expired without any appeal having been filed. Buyer hereby covenants to use its commercially reasonably good faith efforts to seek, at Buyer's sole cost and expense, the Governmental Approvals within the initial Due Diligence Period set forth in Section 1.7 above which commences on the Effective Date and expires one hundred and twenty (120) days following the 22021028428.0002 -17- 5028827.6 a03/13/13 Effective Date (the "Application Period"). Buyer shall be deemed to have used its commercially reasonably good faith efforts to seek such Governmental Approvals pursuant to this Section 10.1 if Buyer submits its Governmental Applications to the City (for approval by the City's Planning Commission and if applicable, approval by the City Council) within sixty (60) days after the Effective Date, and Buyer thereafter continues to use commercially reasonable good faith efforts to seek such Governmental Approvals within the Application Period. 10.2 Extension of Due Diligence Period. Provided that a Buyer Default does not exist and Buyer has submitted the Governmental Applications to the City Planning Commission, and if applicable, to the City Council before the expiration of the Application Period, Buyer may extend the Due Diligence Period solely for the purposes of obtaining the Government Approval, by providing City with written notice thereof prior to the expiration of the initial Due Diligence Period. Notwithstanding the foregoing, in no event shall the extension of the Due Diligence Period pursuant to this Section 10.2 extend the Outside Closing Date and the Government Approval shall not be a condition precedent to the Closing. In the event Buyer does not obtain the Government Approval on or before the expiration of the Due Diligence Period, Buyer has the right to terminate this Agreement on or before the expiration of the Due Diligence Period as provided for in Section 3.1.5 (in which event Section 2.2 will be applicable). 10.3 Reservation of Discretion. Buyer is aware, understands, and acknowledges that the City is by law required to exercise its sole unfettered discretion in approving or denying certain land use, development or permit approvals required for the Property. Neither this Agreement nor any other agreement with Buyer obligates the City to approve, disapprove or consider any such land use, development or permit approvals for the Property in any particular manner. ARTICLE 11 MISCELLANEOUS 11.1 Non-Liabilily of Officials -and Employees of City. No officer, official, member, employee, agent, representative, or volunteer of City shall be personally liable to Buyer or any successor in interest, in the event of any City Default or for any amount which may become due to Buyer or its successors, or on any obligations, in each case, under the terms of this Agreement. 11.2 Relationship Between City and Buyer. It is hereby acknowledged that the relationship between City and Buyer is not that of a partnership or joint venture and that City and Buyer shall not be deemed or construed for any purpose to be the agent of the other. 11.3 City Approvals and Actions. This Agreement shall be administered by the City Manager, or his designated representative, following approval of this Agreement by City. The City Manager or his authorized representative shall have the authority to issue interpretations, waive provisions and enter into amendments of this Agreement on behalf of City. 11.4 Further Assurances. Each of the Parties shall execute and deliver any and all additional papers and documents, as may be reasonably necessary and required by Escrow Holder to comply with this Agreement. 2202r028429 -M2 -18- 3028827.6 a03/UM 11.5 Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, legal representatives, successors and assigns. 11.6 Applicable Laws. This Agreement shall be governed by the laws of the state in which the Property is located. 11.7 Assignment Of Agreement. Buyer shall have no right to assign their rights and obligations under this Agreement except to a limited liability company or corporation controlled by Buyer or in which Buyer has a controlling interest, and only if City is promptly notified in writing thereof prior to the assignment and the assignee assumes Buyer's obligations under this Agreement in writing. Subject to the foregoing limitations, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, administrators and assigns. Notwithstanding the foregoing, no assignment shall relieve the assigning party from its liability under this Agreement. 11.8 Time Of Essence. Time is of the essence in the performance of all obligations hereunder. 11.9 Counterparts. This Agreement may be executed in counterparts each of which shall constitute an original and all of which together shall have the same full and binding effect as a single executed copy. Photocopy, facsimile, electronic, or other copies shall have the same effect for all purposes as an ink -signed original. 11.10 Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and must be delivered either by personal service or by first-class mail, registered or certified, postage prepaid, return receipt requested, or by such expedited courier service where receipt by addressee can be confirmed by said courier service in writing (Federal Express, Express Mail, telecopy, etc.), and properly addressed specified in Section 1.1 and Section 1.2. Notices shall be deemed received by the addressee upon the earlier to occur of (i) actual receipt; (ii) two (2) business days after mailing by registered or certified mail; (iii) one (1) business day after sending by overnight courier for next business day delivery; or (iv) the same day if sent by telecopy, all in accordance with the terms of this paragraph. Either party may change its address for notice purposes by giving written notice of such new address to the other party. 11.11 Validity; Waiver. The invalidity of any provision of this Agreement shall not affect the validity of the remainder of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver or be binding unless executed in writing by the waiving party. 11.12 Construction. Each party and its counsel have reviewed and revised this Agreement. The normal rule of construction that ambiguities are resolved against the drafting party shall not be employed in interpreting this Agreement or any amendments or exhibits thereto. 2202!028428.0002 5028827.6 603/13/13 -19- 11. 13 Attorneys' Fees. In the event of a dispute between the parties hereto relating to this Agreement, its enforcement or its interpretation, the prevailing party shall be entitled to recover all reasonable attorneys' fees, and all costs and expenses incurred in connection with such dispute. 11.11 Incorporation Of Exhibits. All exhibits attached and referred to herein are by such reference incorporated herein and made part hereof. The Exhibits attached hereto which state "Insert to Follow" or "To Be Attached" shall be completed and approved by the parties hereto prior to expiration of the Due Diligence Period and, as completed and approved, shall thereupon become a part of this Agreement. 11.15 Entire Agreement. All prior understandings and agreements between the parties respecting this transaction are merged in this Agreement and the exhibits attached hereto, which fully and completely express the agreement of the parties. No change, addition to or modification of this Agreement or any part hereof shall be valid unless in writing and signed by or on behalf of all of the parties. [Signature Page Follows] 22021628428.0002 _2Q_ $028827.6 a03113/13 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. CITY: CITY OF SAN JUAN CAPISTRANO By: Attest: By: `s, City lerk Approved as to fork: BUYER: ACCRETN TY INVESTMENTS, LLC, a Califomi 'ability company By: Name: Title: II63N381380 2 - signature page - I 5038817.6 43/13/13 gn P g ACCEPTANCE BY ESCROW HOLDER The undersigned hereby acknowledges and agrees to act as Escrow Holder thereunder and to be bound by and perform the terms thereof as such terms apply to Escrow Holder. Dated: , 2013 FIRST AMERICAN TITLE COMPANY 07 Jeanne Gould, Escrow Holder 2202X2312"002 5028827.6 a03/13/13 signature page - 2 LIST OF EXHIBITS Exhibit A - Legal Description Exhibit B - Grant Deed 220208428-0002 3028827.6 a03113113 EXHIBIT "A" LEGAL DESCRIPTION All that certain real property situated in the County of Orange, State of California, described as follows: (INSERT LEGAL DESCRIPTION PRIOR TO OPENING OF ESCROW) APN: 650-592-01 and 650-592-02 EXHIBIT "A" PURCHASE AND SALE AGREEMENT AND 2202/02U28 -=2 502N27.6 a03/13/13 JOINT ESCROW INSTRUCTIONS EXHIBIT "B" GRANT DEED f see attachedl EXHIBIT "B" PURCHASE AND SALE AGREEMENT AND $028827.6a01113113 JOINT ESCROW INSTRUCTIONS RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: AND ALL TAX STATEMENTS TO: SAME AS ABOVE DOCUMENTARY TRANSFER TAXIS NOT OF PUBLIC RECORD SPACE ABOVE THIS LINE AND IS SHOWN ON A SEPARATE SHEET ATTACHED TO THIS DEED FOR RECORDER'S USE GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY OF SAN JUAN CAPISTRANO, a California municipal corporation ("Grantor"), hereby grants to ("Grantee"), the real property located in the City of San Juan Capistrano, County of Orange, State of California, described on Exhibit I attached hereto and made a part hereof (the "Real Property"). GRANTOR: CITY OF SAN JUAN CAPISTRANO, a Calithmia municipal corporation 0 EXHIBIT "B„ PURCHASE AND SALE AGREEMENT AND o92,omv87eru JOINT ESCROW INSTRUCTIONS State of California ) County of ) On , before me, . Notary Public, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California ) County of ) On , before me, , Notary Public, (here insert name and title of the officer) personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) EXHIBIT "B" PURCHASE AND SALE AGREEMENT AND $028822 6a03/13 833/13 JOINT ESCROW INSTRUCTIONS Exhibit 1 to Grant Deed Legal Description Real property in the City of San Juan Capistrano, County of Orange, State of California, described as follows: 22021028428.0002 5028827.6 003/13/13