HomeMy WebLinkAboutResolution No. 07-C109i -I
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RESOLUTION NO.07-0109
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA
APPROVING A PURCHASE AND SALE AGREEMENT FOR THE PURCHASE
OF 604 N. AZUSA AVENUE (EDWARDS PROPERTY) WITHIN THE
MERGED CENTRAL BUSINESS DISTRICT AND WEST REDEVELOPMENT
PROJECT AREA
WHEREAS, the Bernice Evelyn Edwards, Trustee of the Bernice Evelyn Trust Under
Trust Agreement dated August 1, 1997 ("Owner") is the owner of certain real properly
located at the northeast corner of Azusa Avenue and 6" Street, commonly known as
604 N. Azusa Avenue (APN: 8611-003-018)("Property"), and more particularly
described in Exhibit A attached hereto and incorporated herein by reference; and
WHEREAS, the Property is currently being leased to the City, on a month-to-
month tenancy basis, for use as a mini -park, pursuant to a proposed Mini -Park
Agreement entered into between the City of Azusa and James Edwards Jr., dated March
6, 1984; and
WHEREAS, the Owner desires to sell the Property to the City and the City desires
to purchase the Property from the Owner in accordance with the negotiated terms and
conditions set forth in the purchase and sale agreement attached hereto as Exhibit B and
incorporated herein by reference ("Agreement"); and
WHEREAS, upon the close of escrow pursuant to this Agreement the City's
lease will be extinguished as the City shall become the new owner in fee; and
WHEREAS, the Agreement is in the best interests of the City and in the public
interest because the City intends to use the rear portion of the parcel near the alley to
accommodate a utility easement which is supportive of the Redevelopment Agency of
the City of Azusa's efforts to assemble and redevelop the Block 36 site; and
WHEREAS, the acquisition of the Property will assist the City's goal to revitalize
and improve the retail opportunities in the Merged Central Business District and West
End Redevelopment Project Area of the City of Azusa and further assist the City's efforts
in transforming the downtown into a transit village that is more prosperous, walkable,
healthy and economically viable; and
WHEREAS, in taking this action, the City has determined that the acquisition of
the property is not a "project" under the provisions of the California Environmental
Quality Act, the California Environmental Quality Act Guidelines (Title 14 C.C.R. § 15004)
and the City of Azusa's environmental procedures.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA,
DOES FIND AND DECLARE THAT:
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SECTION 1. All of the Recitals set forth above are true and correct.
SECTION 2. Based on all of the foregoing, the City hereby approves the
Agreement for the purchase of certain real property generally located at APN: 8611 -
003-018
611-
003-018 more particularly described in Exhibit A and attached hereto and incorporated
herein by reference. The City further authorizes the City Manager to execute said
Agreement.
SECTION 3. A copy of the Agreement shall be kept on file at City Hall. Staff is
directed to do all that is necessary to effectuate the intent of the Agreement and
consummate the purchase of the Property.
SECTION 4. The City Clerk shall certify the adoption of this Resolution.
SECTION 5: City staff is directed to file a Notice of Exemption with the Los
Angeles County Clerk within three (3) days after adoption of this Resolution.
SECTION 6. This Resolution shall become effective upon its adoption.
PASSED AND APPROVED this 17th day of December, 2007.
R. Rocha, Mayor
ATTEST:
Vera Mendoza, City Clerk
APPROVED AS TO FORM:
BEST, BEST & KRIEGER LLP
.-- ft
CityCorney
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES) ss.
CITY OF AZUSA )
I, Vera Mendoza, City Clerk of the City of Azusa, do hereby certify that the foregoing
Resolution No. 07-C109, was duly introduced and adopted at a regular meeting of the City
Council on the 17th day of December, 2007, by the following vote, to wit:
AYES: COUNCILMEMBERS: GONZALES, CARRI LO, MACIAS, HANKS, ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
Vera Mendoza, City Clerk
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2007 REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(604 N. Azusa Avenue)
by and between the
CITY OF AZUSA,
a California municipal corporation,
and
BERNICE EVELYN EDWARDS,
Trustee of the Bernice Evelyn Edwards Trust
Under Trust Agreement Dated August 1, 1997
Dated as of December 18, 2007
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CITY OF AZUSA
2007 REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(604 N. Azusa Avenue)
THIS 2007 REAL PROPERTY PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS (604 N. Azusa Avenue) (this "Agreement') is dated as of
December 18, 2007, for reference purposes only, and is entered into by and between the CITY
OF AZUSA, a California municipal corporation (the "City"), and BERNICE EVELYN
EDWARDS, Trustee of the Bernice Evelyn Edwards Trust Under Trust Agreement Dated
August 1, 1997 ("Seller"). The City and Seller enter into this Agreement with reference to the
following recited facts (each a "Recital"):
RECITALS
A. Seller is the owner of that certain real property located at the northeast corner of
Azusa Avenue and 6th Street in the City of Azusa, County of Los Angeles, State of California,
commonly described as 604 N. Azusa Avenue (Assessor Parcel Number 8611-003-018), and
specifically described in the definition of "Property" in Section 1.1; and
B. The Property is currently being leased to the City, on a month-to-month tenancy
basis, for use as a mini park, pursuant to that certain Proposed Mini -Park Agreement entered into
between the City and James Edward Jr., dated as of March 6, 1984;
C. Close of Escrow pursuant to this Agreement will extinguish that lease as the City
shall become the new owner in fee.
D. The City desires to purchase and acquire the Property from Seller and Seller
desires to sell and convey the Property to the City in fee title pursuant to the terms and conditions
of this Agreement.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE
PROMISES AND COVENANTS OF THE CITY AND SELLER SET FORTH IN THIS
AGREEMENT, THE CITY AND SELLER AGREE, AS FOLLOWS:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. The following words, terms and phrases are used in this
Agreement with the following meanings, unless the particular context of usage of a word, term
or phrase requires another interpretation:
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1.1.1 "CEQA" means the California Environmental Quality Act, Public
Resources Code Sections 21000, et seq.
1.1.2 "CEQA Document' means any applicable exemption determination,
any Negative Declaration (mitigated or otherwise) or any Environmental Impact Report
(including any addendum or amendment to, or subsequent or supplemental Environmental
Impact Report) required or permitted by the City, pursuant to CEQA, to approve this Agreement.
1.1.3 "Cit ' means the City of Azusa, California.
1.1.4 "City Manager" means the City Manager of the City or his or her
designee or successor in function.
1.1.5 "City Parties" means, collectively, the City, its public and elected
officials, employees, agents and attorneys.
1.1.6 "City Party" means, individually, the City, its public and elected
officials, employees, agents or attorneys.
1.1.7 "Claim" means any.claim, loss, cost, damage, expense, liability, lien,
action, cause of action (whether in tort, contract, under statute, at law, in equity or otherwise),
charge, award, assessment, fine or penalty of any kind (including consultant and expert fees and
expenses, Legal Costs of counsel retained by the City Parties, costs of staff time and
investigation costs of whatever kind or nature), and any judgment, including any such matter
relating to or arising from: (i) injury to any Person (including death at any time resulting from
that injury); (ii) loss of, injury or damage to, or destruction of property (including all loss of use
resulting from that loss, injury, damage, or destruction) regardless of where located, including
the property of the City Parties; (iii) any matter described in Section 5.13 (Real Estate
Commissions); (iv) any Environmental Claim; or (v) enforcement of any indemnity obligation
under this Agreement.
1.1.8 "Close of Escrow" means completion of each of the actions set forth in
Section 3.7 by the Escrow Agent for the conveyance of the Property from Seller to the City
through the Escrow, but no later than January 17, 2008.
1.1.9 "Coon " means the County of Los Angeles, California.
1.1.10 "Default" means any Monetary Default or Non -Monetary Default.
1.1.11 "Default Interest" means interest at an annual rate equal to the lesser
of (i) ten percent (10%) per annum; or (ii) the Usury Limit.
1.1.12 "Due Diligence Completion Notice" means a written Notice of the
City delivered to both Seller and the Escrow Agent, prior to the end of the Due Diligence Period,
stating the City's acceptance of the condition of the Property or indicating the City's rejection or
conditional acceptance of the condition of the Property and refusal to accept a conveyance of the
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Property, describing in reasonable detail the actions that the City reasonably believes are
necessary (if any) to allow the City to accept the condition of the Property and conveyance of the
Property.
1.1.13 "Due Diligence Investigations" means the City's due diligence
investigations of the Property to detetnune the suitability of the Property, including, without
limitation, investigations of the environmental and geotechnical conditions of the Property, as
deemed appropriate in the reasonable discretion of the City, all at the sole cost and expense of
the City, except as otherwise specifically provided in this Agreement.
1.1.14 "Due Diligence Period" means the twenty-one (21) calendar day
period commencing on the day immediately following the Effective Date and ending at 5:00 p.m
Pacific Time on the twenty-first (21st) consecutive calendar day thereafter.
1.1.15 "Effective Date" means the first date on which all of the following
have occurred: (i) the City has received three (3) counterpart originals of this Agreement
executed by the authorized representative(s) of Seller; (ii) this Agreement is approved by the
City Council; (iii) this Agreement is executed by the authorized representative(s) of the City and
(iv) one (1) original of this Agreement executed by the authorized representative(s) of the City
has been delivered by the City to Seller.
1.1.16 "Environmental Claims" means any and all claims, demands, damages,
losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits,
proceedings, costs, disbursements and expenses, including Legal Costs and fees and costs of
environmental consultants and other experts, and all foreseeable and unforeseeable damages or
costs of any kind or of any nature whatsoever, directly or indirectly, relating to or arising from
any actual or alleged violation of any Environmental Law or any Hazardous Substance
Discharge occurring during or arising from Seller's ownership, use or occupancy of the Property
or any other actions of or attributable to Seller regarding the Property.
1.1.17 "Environmental Law" means any Law regarding any of the following
at, in, under, above, or upon the Property: (i) air, environmental, ground water, or soil
conditions; or (ii) clean-up, remediation, control, disposal, generation, storage, release,
discharge, transportation, use of, or liability or standards of conduct concerning, Hazardous
Substances.
1.1.18 "Escrow" means an escrow, as defined in Civil Code Section 1057 and
Financial Code Section 17003(a), that is conducted by the Escrow Agent with respect to the
conveyance of the Property from Seller to the City, pursuant to this Agreement.
1.1.19 "Escrow Agent" means Enid Tobias of the Southland Title & Escrow
Company, 300 East Magnolia Blvd. 9400, Burbank, CA 91502, or such other Person mutually
agreed upon in writing by both the City and Seller in writing.
1.1.20 "Escrow Agent Consent" means the Escrow Agent's consent to acting
as Escrow Agent under this Agreement, in substantially the form of Exhibit "B" attached to this
Agreement.
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1.1.21 "Escrow Closing Date" means the earlier of: (i) on or before the fifth
(5th) business day following the Escrow Agent's receipt of written confirmation from both the
City and Seller of the satisfaction or waiver of all conditions precedent to the Close of Escrow;
or (ii) January 17, 2008.
1.1.22 "Escrow Opening Date" means the first date on which a fully executed
copy of this Agreement is deposited with the Escrow Agent.
1.1.23 "Event of Default" means the occurrence of any one or more of the
following:
(a) Monetary Default. A Monetary Default that continues for
seven (7) days after Notice from the non -defaulting Party, specifying in reasonable detail the
amount of money not paid and the nature and calculation of each such payment; or
(b) Non -Monetary Default. Any Non -Monetary Default that is not
cured within thirty (30) days after Notice to the Party alleged to be in Default describing the
Non -Monetary Default in reasonable detail, or, in the case of a Non -Monetary Default that
cannot with reasonable diligence be cured within thirty (30) days after such Notice, if the Party
alleged to be in Default does not do all of the following: (i) within thirty (30) days after Notice
of such Non -Monetary Default, advise the other Party of the intention of the Party alleged to be
in Default to take all reasonable steps to cure such Non -Monetary Default; (ii) duly commence
such cure within such period, and then diligently prosecute such cure to completion; and (iii)
complete such cure within a reasonable time under the circumstances.
1.1.24. "Federal" means the government of the United States of America.
1.1.25 "Final" means, relative to any CEQA Document, when all
administrative appeal periods regarding such matter have expired, all administrative appeals or
challenges regarding such matter (if any) have been resolved to the City's reasonable
satisfaction, all statutory periods for challenging such matter have expired, all referendum
periods have expired, all referenda regarding such matter (if any) have been resolved to the
City's reasonable satisfaction, all litigation or other proceedings (if any) challenging any such
matter have been resolved to the reasonable satisfaction of the City and all appeal periods
relating to any such litigation or other proceedings have expired.
1.1.26 "FIRPTA Certificate" means a certification that Seller is not a "foreign
person" within the meaning of such term under Section 1445 of the United States Internal
Revenue Code, as amended from time to time, and sufficient to exempt the City from the
obligation to withhold any funds from Seller pursuant to Section 1445 of the United States
Internal Revenue Code, as amended from time to time.
1.1.27 "Form 593" means a California Franchise Tax Board Form 593-C or
successor form.
1.1.28 "Government" means each and every governmental agency, authority,
bureau, department, quasi -governmental body, or other entity or instrumentality having or
claiming jurisdiction over the Property (or any activity this Agreement allows), including the
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United States government, the State and County governments and their subdivisions and
municipalities, the City and all other applicable governmental agencies, authorities, and
subdivisions thereof "Government" shall also include any planning commission, board of
standards and appeals, department of buildings, city council, zoning board of appeals, design
review board or committee or similar body having or claiming jurisdiction over the Property or
any activities on or at the Property.
1.1.29 "Grant Deed" means a grant deed in substantially the form of Exhibit
"C" attached to this Agreement.
1.1.30 "Hazardous Substance" means flammable substances, explosives,
radioactive materials, asbestos, asbestos -containing materials, polychlorinated biphenyls,
chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous
wastes, medical wastes, toxic substances or related materials, explosives, petroleum, petroleum
products and any "hazardous" or "toxic" material, substance or waste that is defined by those or
similar terms or is regulated as such under any Law, including any material, substance or waste
that is: (i) defined as a "hazardous substance" under Section 311 of the Water Pollution Control
Act (33 U.S.C. § 1317), as amended; (ii) substances designated as "hazardous substances"
pursuant to 33 U.S.C. § 1321; (iii) defined as a "hazardous waste" under Section 1004 of the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq., as amended; (iv)
defined as a "hazardous substance" or "hazardous waste" under Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended
by the Superfund Reauthorization Act of 1986, 42 U.S.C. § 9601, et seq., or any so-called
"superfund" or "superlien" law; (v) defined as a "pollutant" or "contaminant" under 42 U.S.C.A.
§ 9601(33); (vi) defined as "hazardous waste" under 40 C.F.R. Part 260; (vii) defined as a
"hazardous chemical" under 29 C.F.R. Part 1910; (viii) any matter within the definition of
"hazardous substance" set forth in 15 U.S.C. § 1262; (ix) any matter, waste or substance
regulated under the Toxic Substances Control Act ("TSCA") [15 U.S.C. Sections 2601, et seq.];
(x) any matter, waste or substance regulated under the Hazardous Materials Transportation Act,
49 U.S.C. Sections 1801, et seq.; (xi) those substances listed in the United States Department of
Transportation (DOT)Table [49 CFR 172.101]; (xii) any matter, waste or substances designated
by the EPA, or any successor authority, as a hazardous substance [40 CFR Part 302]; (xiii) any
matter, waste or substances defined as "hazardous waste" in Section 25117 of the California
Health and Safety Code; (xiv) any substance defined as a "hazardous substance" in Section
25316 of the California Health and Safety Code; (xv) any matter, waste, or substance that is
subject to any other Law regulating, relating to or imposing obligations, liability or standards of
conduct concerning protection of human health, plant life, animal life, natural resources, property
or the enjoyment of life or property free from the presence in the environment of any solid,
liquid, gas, odor or any form of energy from whatever source; or (xvi) other substances,
materials, and wastes that are, or become, regulated or classified as hazardous or toxic under
Law or in the regulations adopted pursuant to said Law, including manure, asbestos,
polychlorinated biphenyl, flammable explosives and radioactive material.
1.1.31 "Hazardous Substance Discharge" means any deposit, discharge,
generation, release, or spill of a Hazardous Substance that occurs at on, under, into or from the
Property, or during transportation of any Hazardous Substance to or from the Property, or any
activities conducted at on, under or from the Property or any adjacent or nearby real property, or
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resulting from seepage, leakage, or other transmission of Hazardous Substances from other real
property to the Property, whether or not caused by a Party or whether occurring before or after
the Effective Date.
1.1.32 "Indemnify" means, where this Agreement states that any Indemnitor
shall "indemnify' any Indemnitee from, against, or for a particular Claim, that the Indemnitor
shall indemnify the Indemnitee and defend and hold the Indemnitee harmless from and against
such Claim (alleged or otherwise). "Indemnified" shall have the correlative meaning.
1.1.33 "Indemnitee" means any Person entitled to be Indemnified under the
terms of this Agreement.
1.1.34 "Indemnitor" means a Person that agrees to Indemnify any other
Person under the terms of this Agreement.
1.1.35 "Law" means every law, ordinance, requirement, order, proclamation,
directive, rule, and regulation of any Government applicable to the Property, in any way,
including any development, use, maintenance, taxation, operation, or occupancy of, or
environmental conditions affecting the Property, or relating to any taxes, or otherwise relating to
this Agreement or any Party's rights or remedies under this Agreement, or any transfer of any of
the foregoing, whether in force on the Effective Date or passed, enacted, modified, amended or
imposed at some later time, subject in all cases, however, to any applicable waiver, variance, or
exemption.
1.1.36 "Legal Costs" of any Person means all reasonable costs and expenses
such Person incurs in any legal proceeding (or other matter for which such Person is entitled to
be reimbursed for its Legal Costs), including reasonable attorneys' fees, court costs and expenses
and consultant and expert witness fees and expenses.
1.1.37 "Monetary Default" means any failure by either Party to pay or
deposit, when and as this Agreement requires, any amount of money, any bond or surety or
evidence of any insurance coverage required to be provided under this Agreement, whether to or
with a Party or a third -Person.
1.1.38 "Non -Monetary Default" means the occurrence of any of the
following, except to the extent constituting a Monetary Default: (i) any failure of a Party to
perform any of its obligations under this Agreement; (ii) a Party's failure to comply with any
material restriction or prohibition in this Agreement; or (iii) any other event or circumstance that,
with passage of time or giving of Notice, or both, or neither, would constitute a breach of this
Agreement.
1.1.39 "Notice" means any consent, demand, designation, election, notice, or
request relating to this Agreement, including any Notice of Default. All Notices must be in
writing.
1.1.40 "Notice of Default" means any Notice claiming or giving Notice of a
Default.
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1.1.41 "Noti " means give a Notice.
1.1.42 "Parties" means, collectively, the City and Seller.
1.1.43 "Parff" means, individually, either the City or Seller, as applicable.
1.1.44 "PCO Report' means a preliminary change_ of ownership report
required under California Revenue and Taxation Code Section 480.3.
1.1.45 "Permitted Exceptions" means (i) any and all items shown in Schedule
B of the Preliminary Report, as exceptions to coverage under the proposed Title Policy, that the
City does not disapprove, conditionally approve, or that are otherwise accepted or consented to
by the City; (ii) any exceptions from coverage under the proposed Title Policy resulting from the
City's activities relating to the Property; (iii) any lien for non -delinquent property taxes or
assessments; (iv) any Laws applicable to the Property; (v) this Agreement; and (vii) any other
matter expressly provided for in this Agreement.
1.1.46 "Person" means any association, corporation, governmental entity or
City, individual, joint venture, joint-stock company, limited liability company, partnership, trust,
unincorporated organization, or other entity of any kind.
1.1.47 "Pre -Closing Liquidated Damages Amount" means the amount of Five
Thousand Dollars ($5,000).
1.1.48 "Preliminary Report" means a preliminary report issued by the Title
Company in contemplation of the issuance of the Title Policy, accompanied by copies of all
documents listed in Schedule B of the report, as exceptions to coverage under the proposed Title
Policy.
1.1.49 "Property" means that certain real property specifically described in
the legal description set forth in Exhibit "A" attached to this Agreement, including all
appurtenant rights and interests.
1.1.50 "Purchase Price" means the amount of Three Hundred Fifty Thousand
Dollars and No/Cents ($350,000).
1.1.51 "Real Estate Taxes" means all general and special real estate taxes
(including taxes on personal property, sales taxes, use taxes, and the like), possessory interest
taxes, taxes payable pursuant to California Health and Safety Code Section 33673, special taxes
imposed pursuant to the Mello -Roos Community Facilities District Act, assessments, assessment
district charges or taxes, municipal water and sewer rents, rates and charges, excises, levies,
license and permit fees, fines, penalties and other Governmental charges and any interest or costs
with respect thereto, general and special, ordinary and extraordinary, foreseen and unforeseen, of
any kind and nature whatsoever that may be assessed, levied, imposed upon, or become due and
payable out of or in respect of, or charged with respect to or become a lien on, the Property, or
any vault, passageway or space in, over or under any street, or any other appurtenances of the
Property, or any personal property or facility used in the operation of the Property, or the rent or
income received from the Property, or any use or occupancy of the Property.
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1.1.52 "Record," "recorded," "recording" or '`recordation" each mean
recordation of the referenced document in the official records of the County.
1.1.53 "Seller" means Bernice Evelyn Edwards, Trustee of the Bernice
Evelyn Edwards Trust Under Trust Agreement Dated August 1, 1997.
1.1.54 "Seller Parties" means, collectively, the directors, officers, employees
and agents of Seller.
1.1.55 "Seller Part v" means, individually, the directors, officers, employees
or agents of Seller.
1.1.56 "State" means the State of California.
1.1.57 "Title Company' means Southland Title & Escrow Company or such
other title insurance company mutually agreed upon between both the City and Seller in writing.
1.1.58 "Title Notice" means a written Notice from the City to both Seller and
the Escrow Agent indicating the City's acceptance of the state of the title to the Property, as
described in the Preliminary Report and the Survey, or the City's disapproval or conditional
approval of specific matters shown in: (i) Schedule B of the Preliminary Report, as exceptions to
coverage under the proposed Title Policy, or (ii) in the Survey, describing in suitable detail the
actions that the City reasonably believes are necessary to obtain the City's approval of the state
of the title to the Property.
1.1.59 "Title Notice Response" means the written response of Seller to the
City's Title Notice, in which Seller elects to either: (i) cause the removal from the Preliminary
Report or the Survey of any matter disapproved in the City's Title Notice, (ii) obtain title or other
insurance in a form reasonably satisfactory to the City insuring against the effects of any matters
disapproved or conditionally approved in the City's Title Notice, (iii) otherwise satisfy the City
regarding any matter disapproved or conditionally approved in the City's Title Notice, or (iv) not
take any action described in either (i), (ii) or (iii).
1.1.60 "Title Notice Waiver" means a written Notice from the City to both
Seller and the Escrow Agent waiving the City's previous disapproval or conditional approval in
the City's Title Notice of specific matters shown in: (i) Schedule B of the Preliminary Report, as
exceptions to coverage under the proposed Title Policy, or (ii) the Survey, that Seller has not
agreed to address to the City's reasonable satisfaction in the Title Notice Response.
1.1.61 "Title Policy" means an extended coverage owner's policy of title
insurance issued by the Title Company, with coverage in the amount of the Purchase Price and
insuring title to the Property vested in the City, subject to only the Permitted Exceptions.
1.1.62 "Unavoidable Delay' means a delay in either Party performing any
obligation under this Agreement, except payment of money, arising from or on account of any
cause whatsoever beyond the Party's reasonable control, despite such Party's reasonable diligent
efforts, including industry -wide strikes, labor troubles or other union activities (but only to the
extent such actions do not result from an act or omission of the Party), casualty, war, acts of
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terrorism, riots, litigation, Government action or refusal to act when or as required by Law or
inability to obtain materials. Unavoidable Delay shall not include delay caused by a Party's
financial condition, illiquidity, or insolvency.
1.1.63 - "Usury Limit" means the highest rate of interest, if any, that Law
allows under the circumstances.
ARTICLE 2
CONVEYANCE OF PROPERTY
2.1 Escrow. Seller shall sell and convey fee title to the Property to the City and the
City shall purchase and acquire fee title to the Property from Seller, pursuant to the terms and
conditions of this Agreement. For the purposes of exchanging funds and documents to effect
such purchase and sale of the Property between them, the City and Seller agree to open the
Escrow with the Escrow Agent. The provisions of ARTICLE 3 of this Agreement are the joint
escrow instructions of the Parties to the Escrow Agent for conducting the Escrow. If requested
by the Escrow Agent, Seller and the City shall execute the Escrow Agent's reasonable standard
or general escrow instructions. Any provision in the Escrow Agent's standard or general escrow
instructions that purports to exculpate the Escrow Agent from or require Seller or the City to
indemnify the Escrow Agent against the Escrow Agent's negligence or willful misconduct shall
be deemed "unreasonable" and shall not be included in any standard or general escrow
instructions requested by the Escrow Agent. In the event of any conflict between the provisions
of this Agreement and any standard or general escrow instructions requested by the Escrow
Agent, the provisions of this Agreement shall be controlling.
2.2 Payment of Purchase Price. The City shall deposit the Purchase Price into
Escrow in immediately available funds, at least, one (1) day prior to the Escrow Closing Date, if
required.
2.3 Title Approval.
2.3.1 Title Notice. Within ten (10) days after the Escrow Opening Date,
Seller shall obtain the Preliminary Report from the Title Company, and deliver a copy of the
Preliminary Report to the City. Within seven (7) days following the City's receipt of the
Preliminary Report, the City shall deliver the Title Notice to both Seller and the Escrow Agent.
2.3.2 Failure to Deliver Title Notice. If the City fails to deliver the Title
Notice to Seller and the Escrow Agent, within seven (7) days following the City's receipt of the
Preliminary Report, the City will be deemed to disapprove the status of title to the Property and
refuse to accept conveyance of the Property and both the City and Seller shall have the right to
cancel the Escrow and terminate this Agreement, in their respective sole and absolute discretion,
until such time (if ever) as the City sends the Title Notice.
2.3.3 Title Notice Response. Within seven (7) days following the earlier of.
(i) Seller's receipt of the Title Notice or (ii) expiration of the time period provided in this Section
2.3 for delivery of the Title Notice, Seller shall deliver the Title Notice Response to both the City
and the Escrow Agent. If the Title Notice does not disapprove or conditionally approve any
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matter in the Preliminary Report or the City fails to deliver the Title Notice, Seller shall not be
required to deliver the Title Notice Response. If Seller does not deliver the Title Notice
Response, if necessary, within seven (7) days following its receipt of the Title Notice, Seller
shall be deemed to elect not to take any action in reference to the Title Notice. If Seller elects in
the Title Notice Response to take any action in reference to the Title Notice, Seller shall
complete such action, prior to the Escrow Closing Date or as otherwise specified in the Title
Notice Response.
2.3.4 Title Notice Waiver. If Seller elects or is deemed to have elected not
to address one or more matters set forth in the Title Notice to the City's reasonable satisfaction,
then within seven (7) days after the City's receipt of the Seller's Title Notice response or the last
date for the Seller to deliver its Title Notice Response, the City shall either: (i) refuse to accept
the title to and conveyance of the Property, or (ii) waive its disapproval or conditional approval
of all such matters set forth in the Title Notice by delivering the Title Notice Waiver to both
Seller and the Escrow Agent. Failure by the City to timely deliver the Title Notice Waiver,
where the Title Notice Response or Seller's failure to deliver the Title Notice Response result in
Seller's election not to address one or more matters set forth in the Title Notice to the City's
reasonable satisfaction, will be deemed the City's continued refusal to accept the title to and
conveyance of the Property, in which case both the City and Seller shall have the right to cancel
the Escrow and terminate this Agreement, in their respective sole and absolute discretion, until
such time (if ever) as the City sends the Title Notice Waiver.
2.3.5 Disapproval of Encumbrances Securing Seller Obligations.
Notwithstanding any other provision of this Agreement, the City disapproves any and all
encumbrances against the Property securing monetary or performance obligations of Seller. All
such encumbrances shall be removed from the Property prior to the Close of Escrow by Seller, at
its sole cost and expense.
2.3.6 No Termination Liability. Any termination of this Agreement and
cancellation of the Escrow pursuant to this Section 2.3 shall be without liability to the other Party
or any other Person, and shall be accomplished by delivery of a written Notice of termination to
both the other Party and the Escrow Agent, in which case the Parties and.the Escrow Agent shall
proceed pursuant to Section 3.14.
2.4 Due Diligence Investigations.
2.4.1 License to Enter. Seller licenses the City and its contractors to enter
the Property for the purpose of undertaking the Due Diligence Investigations as the City deems
necessary and appropriate. The City may sub -license appropriate contractors and consultants to
enter the Property for the purpose of conducting Due Diligence Investigations under the license
given in this Section 2.4.1, subject to all of the provisions of this Section 2.4.1 applicable to the
City. The license given in this Section 2.4.1 shall only be effective until the earlier of: (i) the end
of the Due Diligence Period or (ii) the date of the City's delivery of its Due Diligence
Completion Notice. The City shall conduct all Due Diligence Investigations during the Due
Diligence Period and at its sole cost and expense. The City shall abide by any reasonable
condition(s) of entry onto the Property required by Seller, whether or not set forth in this
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Agreement. Any Due Diligence Investigations by the City shall not unreasonably disrupt any
then existing use or occupancy of the Property.
2.4.2 Limitations. The City shall not conduct any intrusive or destructive
testing of any portion of the Property, other than low volume soil samples, without Seller's prior
written consent. Following the conduct of any Due Diligence Investigations on the Property, the
City shall restore the Property to substantially its condition prior to the conduct of such Due
Diligence Investigations.
2.4.3 Indemnity. The activities of the City directly or indirectly related to
the Due Diligence Investigations shall be. subject to the City's indemnity, obligations under
Section 4.6 of this Agreement.
2.4.4 Due Diligence Completion Notice. The City shall deliver a Due
Diligence Completion Notice to both Seller and the Escrow Agent, prior to the end of the Due
Diligence Period. If the City does not accept the condition of the Property by delivery of its Due
Diligence Completion Notice stating such acceptance, prior to the end of the Due Diligence
Period, the City shall be deemed to have rejected the condition of the Property and refused to
accept conveyance of the Property. If the condition of the Property is rejected or deemed
rejected by the City, then either the City or Seller shall have the right to cancel the Escrow and
terminate this Agreement, in their respective sole and absolute discretion, until such time (if
ever) as the City delivers the Due Diligence Completion Notice stating the City's acceptance of
the condition of the Property. Any termination of this Agreement and cancellation of the
Escrow, pursuant to this Section 2.4, shall be without liability to the other Party or any other
Person, and shall be accomplished by delivery of a written Notice of termination to the other
Party and the Escrow Agent, in which case the Parties and the Escrow Agent. shall proceed
pursuant to Section 3.14. Notwithstanding any other provision of this Agreement, the City may
reject the condition of the Property at any time during the Due Diligence Period for any reason or
no reason, in the City's sole and absolute discretion.
2.5 Eminent Domain. If any portion of the Property or any interest in any portion of
the Property, becomes the subject of any eminent domain proceeding prior to Close of Escrow
other than such a proceeding by the City, including, without limitation, the filing of any notice of
intended condemnation or proceedings in the nature of eminent domain, commenced by any
governmental authority, other than the City, Seller shall immediately give the City Notice of
such occurrence, and the City shall have the option, exercisable within ten (10) business days
after receipt of such Notice from Seller, to either: (i) cancel the Escrow and terminate this
Agreement or (ii) continue with this Agreement in accordance with its terms, in which event
Seller shall assign to the City any right of Seller to receive any condemnation award attributable
to the Property.
2.6 Seller Covenants Regarding Maintenance of the Property.
2.6.1 •Covenants.. Seller covenants and agrees with the City that between the
Effective Date and the Escrow Closing Date:
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0 •
(a) No Changes to Agreements. Seller shall not modify or amend
any lease or any service contract respecting the Property, or enter into any new lease or contract
respecting the Property, without the City's prior written approval;
(b) Normal Maintenance. Seller shall maintain the Property in
accordance with the same standards Seller has customarily observed in its ownership and
management of the Property;
(c) Maintenance of Insurance. Seller shall maintain in force all
insurance policies currently maintained by Seller with respect to the Property;
(d) No Title Exceptions. Seller shall not cause, permit, allow or
suffer any additional exception to the title to the Property;
2.6.2 No Merger. Seller's covenants in this Section 2.6 shall not be merged
with the Grant Deed, shall survive the Close of Escrow for the full statutory period, and shall
automatically be deemed made for the benefit of, and enforceable by the City and its successors
and assigns.
2.7 Seller Representations and Warranties.
2.7.1 Litigation. There is no pending or threatened private or governmental
litigation by any governmental authority or person against Seller relating to the Property that
might, if it and all other pending and threatened litigation were adversely determined, result in a
material adverse change in.the Property or its operation or that challenges the validity of or
otherwise materially adversely affects the transactions contemplated by this Agreement.
2.7.2 Other Proceedings. No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other
proceedings are pending or threatened against Seller or Seller's interest in the Property, nor are
any such proceedings contemplated by Seller.
2.7.3 Governmental Action. Seller has no knowledge of, nor has Seller
received written notice of, any plan, study, or effort by any Person that in any way would
materially affect the use of the Property or any portion of it for its current use or of any intended
public improvements that would result in any charge being levied against, or any lien assessed
on, the Property.
2.7.4 Condemnation. Seller has received no notice of any presently pending
or contemplated special assessments or proceedings to condemn or demolish the Property or any
part of it or any proceedings to declare the Property or any part of it a nuisance.
2.7.5 Development Rights. Neither Seller nor any previous owner of the
Property has, except by operation of law, sold, transferred, conveyed, or entered into any
agreement regarding "air rights," "excess floor area ratio," or other development rights or
restrictions relating to the Property, except as otherwise expressly set forth in the Preliminary
Report.
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2.7.6 Title to the PrMerty. Seller has good and marketable title to the
Property. Seller has no actual knowledge of any unrecorded or undisclosed legal or equitable
interest in the Property owned or claimed by anyone other than Seller. Seller has no knowledge
that anyone will, at the Close of Escrow, have any right to possession of the Property, except as
disclosed by this Agreement or otherwise in writing to the City. There are no unsatisfied
mechanics' or materiahnen's lien rights on the Property. No assessment lien or bond encumbers
the Property, and no governmental authority has undertaken any action that could give rise to an
assessment lien affecting the Property. Seller hereby acknowledges and agrees that upon the
Close of Escrow pursuant to this Agreement the Lease between Seller and the City will be
extinguished and of no further force or effect.
2.7.7 No Hazardous Substances. There are no environmental, health or
safety hazards on, under, or about (including any area surrounding the Property) the Property,
including but not limited to soil and groundwater conditions. Neither Seller nor any third -Person
(including but not limited to Seller's predecessors in title to the Property) has used or installed
any underground tank, or used, generated, manufactured, treated, stored, placed, deposited, or
disposed of on, under, or about the Property or transported to or from the Property any
Hazardous Substance.
2.7.8 No Notice of Violation of Environmental Laws. The Property is not in
violation of any Environmental Law and Seller has not received any Notice from any
Government that the Property or any adjoining property contains or may contain any Hazardous
Substance in violation of any Environmental Law or that Seller has stored, used or maintained
any Hazardous Substance or suffered, permitted, allowed or acquiesced in any storage, use or
maintenance of any Hazardous Substance on, in or under the Property in violation of any
Environmental Law.
2.7.9 No Other Representations or Warranties. Other than the express
representations and warranties contained in this Agreement, Seller makes no warranty or
representation, express, or implied to the City regarding the Property.
ARTICLE 3
JOINT ESCROW INSTRUCTIONS
3.1 Opening of Escrow. The City and Seller shall cause the Escrow to be opened
within seven (7) days following the Effective Date. The Escrow Agent shall promptly confirm
the Escrow Opening Date in writing to each of the Parties, with a copy of the Escrow Agent
Consent executed by the authorized representative(s) of the Escrow Agent. The provisions of
this ARTICLE 3 are the joint escrow instructions of the City and Seller to the Escrow Agent for
conducting the Escrow.
3.2 Escrow Agent Authority. The City and Seller authorize the Escrow Agent to:
3.2.1 Charges. Pay and charge the City and Seller for their respective shares
of the applicable fees, taxes, charges and costs payable by either the City or Seller regarding the
Escrow;
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3.2.2 Settlement/Closing Statements. Release each Party's Escrow
settlementiclosing statement to the other Party; and
3.2.3 Document Recording. File any documents delivered for recording
through the Escrow with the office of the Recorder of the County for recordation in the official
records of the County, pursuant to the joint instructions of the Parties.
3.2.4 Counterpart Documents. Utilize documents that have been signed by
the City and Seller in counterparts.
3.3 City's Conditions to Close of Escrow. Provided that the failure of any such
condition to be satisfied is not due to a Default under this Agreement by the City, the City's
obligation to purchase and acquire fee title to the Property from Seller pursuant to this
Agreement on the Escrow Closing Date shall be subject to the satisfaction or waiver of each of
the following conditions precedent, each of which can only be waived in writing by the City:
3.3.1 Title. The City agrees to accept conveyance of the Property, pursuant
to Section 2.3;
3.3.2 Due Diligence. The City delivers its Due Diligence Completion
Notice to both Seller and the Escrow Agent stating the City's acceptance of the condition of the
Property;
3.3.3 Title Policy. The Title Company is, upon payment of the Title
Company's standard premium for an insurance policy such as the Title Policy, irrevocably and
unconditionally committed to issue the Title Policy to the City, at the Close of Escrow;
3.3.4 CEOA Documents. Final adoption, approval or certification of the
CEQA Documents;
3.3.5 Consistency Finding. The City has determined that the acquisition of
fee title to the Property by the City pursuant to this Agreement is consistent with the City's
General Plan, in accordance with Government Code Section 65402;
3.3.6 Real Estate Taxes. All Real Estate Taxes are paid current by Seller;
3.3.7 Seller Escrow Deposits. Seller deposits all of the items into the
Escrow required by Section 3.6;
3.3.8 Settlement/Closing Statement. The City approves the Escrow Agent's
estimated Escrow closing/settlement statement; and
3.3.9 Seller Pre -Closing Obligations. Seller performs all of its material
obligations required to be performed by Seller under this Agreement prior to the Close of
Escrow.
3.4 Seller's Conditions to Close of Escrow. Provided that the failure of any such
condition to be satisfied is not due to a Default under this Agreement by Seller, Seller's
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obligation to sell and convey fee title to the Property to the City pursuant to this Agreement on or
before the Escrow Closing Date shall be subject to the satisfaction or waiver of each of the
following conditions precedent, each of which can only be waived in writing by Seller:
3.4.1 Title. The City agrees to accept the conveyance of the Property,
pursuant to Section 2.3;
3.4.2 Due Diligence. The City delivers its Due Diligence Completion
Notice to both Seller and the Escrow Agent stating the City's acceptance of the condition of the
Property;
3.4.3 Title Policy. The Title Company is, upon payment of the Title
Company's standard premium for an insurance policy such as the Title Policy, irrevocably and
unconditionally committed to issue the Title Policy to the City, at the Close of Escrow;
3.4.4 CEOA Documents. Final adoption, approval or certification of the
CEQA Documents;
3.4.5 City Escrow Deposits. The City deposits all of the items into the
Escrow required by Section 3.5;
3.4.6 Settlement/Closing Statement. Seller approves the Escrow Agent's
estimated Escrow closing/settlement statement; and
3.4.7 City Pre -Closing Obligations. The City performs all of its material
obligations required to be performed by the City under this Agreement prior to the Close of
Escrow.
3.5 City's Escrow Deposits. At least one (1) business day prior to the Escrow
Closing Date scheduled by the Escrow Agent in a writing delivered to both of the Parties, the
City shall deposit the following described funds and documents into the Escrow and,
concurrently, provide a copy of each such document to Seller:
3.5.1 Purchase Price. The Purchase Price;
3.5.2 Certificate of Acceptance. A certificate of acceptance of the Grant
Deed, in substantially the form attached to the Grant Deed, executed by the authorized
representative(s) of the City in recordable form;
3.5.3 PCO Report. A PCO Report completed and signed by the authorized
representative(s) of the City,
3.5.4 Other Funds and Documents. Such other funds or documents required
from the City under the terms of this Agreement to close the Escrow or by the Escrow Agent in
the performance of the Escrow Agent's contractual or statutory obligations relating to the
Escrow.
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3.6 Seller's Escrow Deposits. At least one (1) business day prior to the Escrow
Closing Date scheduled by the Escrow Agent in a writing delivered to both of the Parties, Seller
shall deposit the following described funds and documents into the Escrow and, concurrently,
provide a copy of each such document to the City:
3.6.1 Grant Deed. The Grant Deed executed by the authorized
representative(s) of Seller, in recordable form;
3.6.2 FIRPTA Certificate. The FIRPTA Certificate completed and signed
by the authorized representative(s) of Seller;
3.6.3 Form 593. A Form 593 completed and signed by the authorized
representative(s) of Seller;
3.6.4 Other Funds and Documents. Such other funds or documents required
from Seller under the terms of this Agreement to close the Escrow or by the Escrow Agent in the
performance of the Escrow Agent's contractual or statutory obligations regarding the Escrow.
3.7 Closing Procedure. When each of the City's Escrow deposits, as set forth in
Section 3.5, and each of Seller's Escrow deposits, as set forth in Section 3.6, are deposited.into
the Escrow, the Escrow Agent shall request confirmation in writing from both the City and Seller
that each of their respective conditions to the.Close of Escrow, as set forth in Sections 3.3 and
3.4, respectively, are satisfied or waived. Upon the Escrow Agent's receipt of written
confirmation from both the City and Seller that each of their respective conditions to the Close of
Escrow are either satisfied or waived, the Escrow Agent shall schedule the Escrow Closing Date
by written Notice to both Parties and, thereafter, shall close the Escrow on or before the Escrow
Closing Date by doing all of the following:
3.7.1 Recordation and Distribution of Recorded Documents. The Escrow
Agent shall file the following documents with the office of the Recorder of the County for
recording in the official records of the County, in the following order, at the Close of Escrow: (i)
the Grant Deed, with the City's original certificate of .acceptance attached, and (ii) any other
documents to be recorded through the Escrow upon the joint instructions of the Parties. The
Escrow Agent shall deliver conformed copies of all documents filed for recording in the official
records of the County through the Escrow to the City, Seller and any other Person designated in
the written joint escrow instructions of the Parties to receive an original or conformed copy of
each such document. Each copy of a document filed for recording shall show all recording
information. The Parties intend and agree that this Section 3.7.1 shall establish the relative
priorities of the documents to be recorded in the official records of the County through the
Escrow, by providing for recordation of senior interests prior in time to junior interests, as
provided in this Section 3.7.1;
3.7.2 Distribution of Other Documents. The Escrow Agent shall deliver
copies of all documents delivered through the Escrow to the City, Seller and any other Person
designated in the written joint escrow instructions of the Parties to receive an original or copy of
each such document;
3.7.3 Title Policy. Obtain and deliver the Title Policy to the City;
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3.7.4 Funds. Deliver the Purchase Price to Seller, less any amount required
to be withheld and paid to the State Franchise Tax Board pursuant to Revenue and Taxation
Code Section 18662 (see Section 3.9), any amount required to be paid to satisfy any
encumbrances against the Property securing monetary obligations of Seller and any other charges
to the account of Seller pursuant to the terms of this Agreement, and return all remaining funds
held by the Escrow Agent for the account of the City to. the City, less the City's share of the
Escrow closing costs, and less any other charges to the account of the City pursuant to the terms
of this Agreement;
3.7.5 FIRPTA Certificate. File the FIRPTA Certificate with the United
States Internal Revenue Service;
3.7.6 Form 593. File the Form 593 with the State of California Franchise
Tax Board; and
3.7.7 PCO Report. File the PCO Report with the County Assessor.
3.7.8 Report to IRS. Following the Close of Escrow and prior to the last
date on which such report is required to be filed with the United States Internal Revenue Service,
if such report is required pursuant to Section 6045(e) of the United States Internal Revenue
Code, the Escrow Agent shall report the gross proceeds of the sale of the Property pursuant to
this Agreement to the United States Internal Revenue Service on Form 1099-B, Form W-9 or
such other form(s) as may be specified by the United States Internal Revenue Service pursuant to
Section 6045(e) or its associated Federal regulations. Upon the filing of such reporting form
with the United States Internal Revenue Service, the Escrow Agent shall deliver a copy of the
filed form to both the City and Seller.
3.8 Close of Escrow. The Close of Escrow shall occur on or before the Escrow
Closing Date. The Parties may mutually agree to change the Escrow Closing Date by joint
written instruction to the Escrow Agent. If for any reason the Close of Escrow has not occurred
on or before the Escrow Closing Date, then any Party not then in Default under this Agreement
may cancel the Escrow and terminate this Agreement, without liability to the other Party or any
other Person for such cancellation and termination, by delivering written'Notice of termination to
both the other Party and the Escrow Agent. Following any such Notice of termination of this
Agreement and cancellation of the Escrow, the Parties and the Escrow Agent shall proceed
pursuant to Section 3.14. Without limiting the right of either Party to cancel the Escrow and
terminate this Agreement, pursuant to the first sentence of this Section 3.8, if the Escrow does
not close on or before the Escrow Closing Date and neither Party has exercised its contractual
right to cancel the Escrow and terminate this Agreement under this Section 3.8 before the first
date on which the Escrow Agent Notifies both Parties that the Escrow is in a position to close,
then the Escrow shall close as soon as reasonably possible following the first date on which the
Escrow Agent Notifies both Parties that the Escrow is in a position to close, pursuant to the terms
and conditions of this Agreement.
3.9 Withholding Requirements. The Parties acknowledge that California Revenue
and Taxation Code Section 18662 requires the City to withhold from funds otherwise payable to
Seller at the Close of Escrow an amount equal to three and one-third percent (3 1/3%) of the total
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Purchase Price for the Property and submit such amount to the California Franchise Tax Board,
unless the City is relieved of such withholding requirements in accordance with the provisions of
California Revenue and Taxation Code Section 18662.
3.10 Taxes and Prorations. All Real Estate Taxes and other items of income and
expense regarding the Property shall be pro -rated as of midnight on the day preceding the Close
of Escrow. Seller shall be responsible for any supplemental Real Estate Taxes assessed pursuant
to California Revenue and Taxation Code Section 75, et seq., applicable to any period prior to
the Close of Escrow.
3.11 Possession; Risk of Loss. The City shall be entitled to sole possession of the
Property immediately upon Close of Escrow. All risk of loss or damage to the Property will pass
from Seller to the City at the Close of Escrow. In the event that material loss or damage occurs
to the Property prior to the Close of Escrow, the City may terminate this Agreement and cancel
the Escrow by written Notice of Termination.
3.12 Escrow Closing Costs, Taxes and Title Policy Premium. The City and Seller
shall each pay one-half (1/2) of the Escrow fees and such other costs as the Escrow Agent may
charge for conducting the Escrow. Seller shall pay the premium charged by the Title Company
for the Title Policy, exclusive of any endorsements or other supplements to the coverage of the
Title Policy that may be requested by the City. The City shall pay any and all recording fees,
any documentary transfer tax, taxes levied by any Government arising from or relating to the sale
of the Property pursuant to this Agreement and through the Escrow (exclusive of any income
taxes and any property taxes to be paid by Seller pursuant to Section 3.9) the cost of any
endorsements or supplements to the coverage of the Title Policy requested by the City. The
Escrow Agent shall notify the City and Seller of the costs to be home by each of them at the
Close of Escrow by delivering the Escrow Agent's estimated Escrow closing/settlement
statement to both the City and Seller, at least two (2) business days prior to the Escrow Closing
Date.
3.13 Escrow Cancellation Charges. If the Escrow fails to close due to an Event of
Default attributable to the City, the City shall pay all customary and reasonable cancellation
charges regarding cancellation of the Escrow and the Title Policy order, if any. If the Escrow
fails to close due to an Event of Default attributable to Seller, Seller shall pay all customary and
reasonable cancellation charges regarding cancellation of the Escrow and the Title Policy order,
if any. If the Escrow fails to close for any reason other than an Event of Default attributable to
either the City or Seller, the City and Seller shall each pay one-half (1/2) of all customary and
reasonable cancellation charges regarding cancellation of the Escrow and the Title Policy order,
if any.
3.14 Escrow Cancellation. If the Escrow is cancelled and this Agreement is
terminated pursuant to a contractual right granted to a Party in this Agreement to cancel the
Escrow and terminate this Agreement, the Parties shall pay any associated cancellation charges
in accordance with Section 3.12 and do each of the following:
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3.14.1 Cancellation Instructions. The Parties shall, within three (3) business
days following receipt of the Escrow Agent's written request, execute any reasonable Escrow
cancellation instructions requested by the Escrow Agent; and
3.14.2 Return of Funds and Documents. Within seven (7) days following
receipt by the Parties of a settlement statement from the Escrow Agent of cancellation charges
regarding cancellation of the Escrow and the Title Policy order, if any: (i) Seller or the Escrow
Agent, respectively, shall return to the City any documents previously delivered by the City to
Seller or the Escrow Agent regarding this Agreement, the Property or the Escrow, (ii) the City or
the Escrow Agent, respectively, shall return to Seller all documents previously delivered by
Seller to the City or the Escrow Agent regarding this Agreement, the Property or the Escrow;
(iii) the Escrow Agent shall return to the City any funds deposited into the Escrow by the City,
less the City's share of any customary and reasonable cancellation charges regarding cancellation
of the Escrow and the Title Policy order, if any, in accordance with Section 3.12; and (iv) the
Escrow Agent shall return to Seller any funds deposited into the Escrow by Seller, less Seller's
share of any customary and reasonable cancellation charges regarding cancellation of the Escrow
and the Title Policy order, if any, in accordance with Section 3.12.
3.15 Escrow Notices. All Notices from the Escrow Agent to the Parties shall be given
in the manner provided in Section 5.3 of this Agreement.
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ARTICLE 4
REMEDIES AND INDEMNITY
4.1 PRE-CLOSING LIQUIDATED DAMAGES TO SELLER. IN THE EVENT
OF DEFAULT PROVIDED ALL CURE PERIODS HAVE RUN BY THE CITY UNDER THIS
AGREEMENT, PRIOR TO THE CLOSE OF ESCROW, SELLER MAY CANCEL THE
ESCROW AND TERMINATE THIS AGREEMENT. A SINGLE EVENT MAY TRIGGER
THIS SECTION 5.1 SO LONG AS THERE ARE NO CURE PERIODS LEFT TO BE
EXHAUSTED. UPON CANCELLATION OF THE ESCROW AND TERMINATION OF
THIS AGREEMENT, SELLER SHALL BE RELIEVED OF ANY OBLIGATION UNDER
THIS AGREEMENT TO SELL AND CONVEY THE PROPERTY TO THE CITY. ANY
SUCH ESCROW CANCELLATION AND TERMINATION OF THIS AGREEMENT SHALL
BE WITHOUT ANY LIABILITY OF SELLER TO THE CITY OR ANY OTHER PERSON.
SELLER AND THE CITY ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND
IMPRACTICAL TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE
SUFFERED BY SELLER, IN THE EVENT OF A CANCELLATION OF THE ESCROW AND
TERMINATION OF THIS AGREEMENT DUE TO THE OCCURRENCE OF AN EVENT OF
DEFAULT BY THE CITY UNDER THIS AGREEMENT, PRIOR TO THE CLOSE OF
ESCROW. HAVING MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO
ASCERTAIN THE ACTUAL DAMAGES THAT SELLER WOULD SUFFER, IN THE
EVENT OF A CANCELLATION OF THE ESCROW AND TERMINATION OF THIS
AGREEMENT DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE CITY
UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, SELLER AND THE
CITY AGREE THAT A REASONABLE ESTIMATE OF SELLER'S DAMAGES IN SUCH
EVENT IS THE PRE-CLOSING LIQUIDATED DAMAGES AMOUNT. THEREFORE,
UPON THE CANCELLATION OF THE ESCROW AND TERMINATION OF THIS
AGREEMENT BY SELLER DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT
BY THE CITY UNDER THIS AGREEMENT, PRIOR TO THE CLOSE OF ESCROW, THE
PARTIES AND THE ESCROW AGENT SHALL PROCEED PURSUANT TO SECTION 3.14
TO CANCEL THE ESCROW. THE ESCROW HOLDER SHALL IMMEDIATELY CANCEL
THE ESCROW. THE CITY SHALL PAY THE PRE-CLOSING LIQUIDATED DAMAGES
AMOUNT TO SELLER, UPON ESCROW CANCELLATION. RECEIPT OF THE PRE-
CLOSING LIQUIDATED DAMAGES AMOUNT SHALL BE SELLER'S SOLE AND
EXCLUSIVE REMEDY ARISING FROM THE CANCELLATION OF THE ESCROW AND
TERMINATION OF THIS AGREEMENT DUE TO THE OCCURRENCE OF AN EVENT OF
DEFAULT BY THE CITY UNDER THIS AGREEMENT, PRIOR TO THE CLOSE OF
ESCROW.
AAg ' _
In' ials of Authorized
City Representative
Initials of Authorized
Seller Representative
4.2 Seller Event of Default Remedies of City. The City shall have all remedies
available to the City at law or in equity under the laws of the State for any Event of Default by
Seller under this Agreement.
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4.3 Legal Actions. Any controversy or claim arising out of or relating to'this
contract or the breach thereof will be settled by non-binding arbitration or mediation in
accordance with the rules of the Judicial Arbitration Mediation Services in Los Angeles County
(JAMS), and judgment upon the award rendered by the arbitrator(s) may be entered into if so
desired by both parties. The cost of arbitration or mediation shall be borne by the losing party or
in such proportions as the arbitrator(s) or mediator(s) decides.
4.4 Prevailing Party. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the
prevailing party will be entitled to reasonable attorney's fees, which may be set by the court or
arbitrator in the same action or in a separate action brought for that purpose in addition to any
other relief to which that party may be entitled. These fees shall include Legal Costs as further
defined in Section 5.11 below.
4.5 Rights and Remedies are Cumulative. Except as .otherwise expressly stated in
this Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same Default
or the same rights or remedies for any other Default.
4.6 Indemnification.
4.6.1 Obligations. The City shall Indemnify the Seller Parties against any
wrongful intentional act or negligence of the City Parties and for any other matter for which the
City is specifically obligated to indemnify Seller pursuant to this Agreement. Seller shall
Indemnify the City Parties against any wrongful intentional act or negligence of the Seller Parties
and for any other matter for which Seller is specifically obligated to indemnify the City pursuant
to this Agreement. Notwithstanding anything to the contrary in this Agreement, no Indemnitor
shall be required to Indemnify any Indemnitee to the extent of the Indemnitee's wrongful
intentional acts or negligence. Nothing in this Section 4.6 or any other provision of this
Agreement is intended to modify any claim requirements or limitations periods provided for in
the California Government Code Sections 800, et seq. or Sections 900, et seq.
4.6.2 Independent of Insurance Obligations. Each Party's obligation to
Indemnify any Person under this Agreement .is independent of any insurance carried by such
Party, any insurance shall not in any way restrict, limit, or modify a Party's obligation to
Indemnify a Person under this Agreement and such indemnity obligation is independent of each
Party's other obligations under this Agreement.
4.6.3 Survival of Indemnification and Defense Obligations. The indemnity
and defense obligations of the Parties under this Agreement shall survive the expiration or earlier
termination of this Agreement, until all Claims against any of the Indemnitees are fully, finally,
absolutely and completely barred by applicable statutes of limitations.
4.6.4 Duty to Defend. The duty to defend any Indemnitee applies upon
Notice of any Claim, regardless of whether the issues of negligence, liability, fault, default or
other obligation on the part of the Indemnitor or the Indemnitee have been determined. The duty
21
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to defend any Indemnitee applies immediately, regardless of whether the Indemnitee has paid
any amounts or incurred any detriment arising out of or relating (directly or indirectly) to any
Claim. It is the express intention of the Parties that an Indemnitee be entitled to obtain summary
adjudication or summary judgment regarding an Indemnitor's duty to defend the Indemnitee, at
any stage of any Claim within the scope of the Indemnitor's indemnity obligations under this
Agreement.
4.7 Indemnification Procedures. Wherever this Agreement requires any Indemnitor
to Indemnify any Indemnitee:
4.7.1 Prompt Notice. The Indemnitee shall promptly Notify the Indemnitor
of any Claim. To the extent, and only to the extent, that the Indemnitee fails to give prompt
Notice of a Claim and such failure materially prejudices the Indemnitor in providing indemnity
for such Claim, the Indemnitor shall be relieved of its indemnity obligations for such Claim.
4.7.2 Selection of Counsel. The Indemnitor shall select counsel reasonably
acceptable to the Indemnitee. Counsel to Indemnitor's insurance carrier that is providing
coverage for a Claim shall be deemed reasonably satisfactory. Even though the Indemnitor shall
defend the Claim, Indemnitee may, at its option and its own expense, engage separate counsel to
advise it regarding the Claim and its defense. The Indemnitee's separate counsel may attend all
proceedings and meetings. The Indemnitor's counsel shall actively consult with the
Indemnitee's separate counsel. The Indemnitor and its counsel shall, however, fully control the
defense, except to the extent that the Indemnitee waives its rights to indemnity and defense for
such Claim.
4.7.3 Cooperation. The Indemnitee shall reasonably cooperate with the
Indemnitor's defense of the Indemnitee, provided the Indemnitor reimburses the Indemnitee's
actual out of pocket expenses (including Legal Costs) of such cooperation.
4.7.4 Settlement. The Indemnitor may, with the Indemnitee's consent, not
to be unreasonably withheld, settle a Claim. The Indemnitee's consent shall not be required for
any settlement by which all of the following occur: (i) the Indemnitor procures (by payment,
settlement, or otherwise) a release of the Indemnitee from the subject Claim(s) by which the
Indemnitee need not make any payment to the claimant; (ii) neither the Indemnitee nor the
Indemnifor on behalf of the Indemnitee admits liability; (iii) the continued effectiveness of this
Agreement is not jeopardized in any way; and (iv) the Indemnitee's interest in this Agreement is
not jeopardized in any way.
ARTICLE 5
GENERAL PROVISIONS
5.1 Incorporation of Recitals. The Recitals of fact set forth preceding this
Agreement are true and correct and are incorporated into this Agreement in their entirety by this
reference.
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5.2 City Manager Implementation. The City shall implement this Agreement
through its City Manager. The City Manager is hereby authorized by the City to issue approvals,
interpretations, waivers and enter into certain amendments to this Agreement on behalf of the
City, to the extent that any such action(s) does/do not cause the City to incur additional
obligations. All other actions shall require the consideration and approval of the City Council,
unless expressly provided otherwise by action of the City Council. Nothing in this Section 5.2
shall restrict the submission to the City Council of any matter within the City Manager's
authority under this Section 5.2, in the City Manager's sole and absolute discretion, to obtain the
City Council's express and specific authorization on such matter. The specific intent of this
Section 5.2 is to authorize certain actions on behalf of the City by the City Manager, but not to
require that such actions be taken by the City Manager, without consideration by the City
Council.
5.3 Notices, Demands and Communications Between the Parties.
5.3.1 Notices. Any and all Notices submitted by either Party to the other
Party or to the Escrow Agent pursuant to or as required by this Agreement shall be proper, if in
writing and transmitted to the address of the City, or Seller, as applicable, set forth in Section
5.3.2, or to the Escrow Agent's address set forth in the Escrow Agent's Consent, by one or more
of the following methods: (i) messenger for immediate personal delivery, (ii) a nationally
recognized overnight (one-night) delivery service (i.e., Federal Express, United Parcel Service,
etc.) or (iii) registered or certified United States mail, postage prepaid, return receipt requested.
Such Notices may be sent in the same manner to such other addresses as either Party may
designate, from time to time, by Notice. Any Notice shall be deemed to be received by the
addressee, regardless of whether or when any return receipt is received by the sender or the date
set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of
delivery by a nationally recognized overnight courier service (or when delivery has been
attempted twice, as evidenced by the written report of the courier service) or four (4) calendar
days after it is deposited with the United States Postal Service for delivery, as provided in this
Section 5.3. Rejection, other refusal to accept or the inability to deliver a Notice because of a
changed address of which no Notice was given or other action by a Person to whom Notice is
sent, shall be deemed receipt of the Notice.
5.3.2 Addresses. The following are the authorized addresses for the
submission of Notices to the Parties, as of the Effective Date:
To Seller: Newport Center Management Co.
359 San Miguel Drive
Suite 104
Newport Beach, CA 92660
23
P V Pt IMPV Mll 11727A I
Art: Bernice Edwards
To City: City of Azusa
Attn: City Manager
213 East Foothill Boulevard
Azusa, CA 91702
Facsimile: (626) 334-5464
With Copy to: Best Best & Krieger
5 Park Plaza, Suite 1500
Irvine, CA 92614
5.4 Warranty Against Payment of Consideration for Agreement. Seller
represents and warrants that: (i) Seller has not employed or retained any Person to solicit or
secure this Agreement upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee, excepting bona fide employees of Seller; and (ii) no gratuities, in
the form of entertainment, gifts or otherwise have been or will be given by Seller or any of its
agents, employees or representatives to any elected or appointed official or employee of either
the City or the City in an attempt to secure this Agreement or favorable terms or conditions for
this Agreement. Breach of the representations or warranties of this Section 6.5 shall
automatically terminate this Agreement, without further Notice to or action by either Party and,
upon any such termination of this Agreement, Seller shall immediately refund any payments
made to or on behalf of Seller by the City or the City pursuant to this Agreement or otherwise
related to the Property, prior to the date of any such termination.
5.5 Relationship of Parties. The Parties each intend and agree that the City and
Seller are independent contracting entities and do not intend by this Agreement to create any
partnership, joint venture, or similar business arrangement, relationship or association between
them.
5.6 Survival of Agreement. All of the provisions of this Agreement shall be
applicable to any dispute between the Parties arising from this Agreement, whether prior to or
following expiration or termination of this Agreement, until any such dispute is finally and
completely resolved between the Parties, either by written settlement, entry of a non -appealable
judgment or expiration of all applicable statutory limitations periods and all terms and conditions
of this Agreement relating to dispute resolution and limitations on damages or remedies shall
survive any expiration or termination of this Agreement.
5.7 Non -liability of Officials, Employees and Agents. No City Party shall be
personally liable to Seller, or any successor in interest of Seller, in the event of any Default or
breach by the City under this Agreement or for any amount that may be or become due to Seller
or any successor in interest of Seller, on any obligations under the terms or conditions of this
Agreement.
5.8 Calculation of Time Periods. Unless otherwise specified, all references to time
periods in this Agreement measured in days shall be to consecutive calendar days, all references
to time periods in this Agreement measured in months shall be to consecutive calendar months
and all references to time periods in this Agreement measured in years shall be to consecutive
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calendar years. Any reference to business days in this Agreement shall mean consecutive
business days of the City.
5.9 Principles of Interpretation. No inference in favor of or against any Party shall
be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have
both participated substantially in the negotiation, drafting, and revision of this Agreement, with
advice from legal and other counsel and advisers of their own selection. A word, term or phrase
defined in the singular in this Agreement may be used in the plural, and vice versa, all in
accordance with ordinary principles of English grammar, which shall govern all language in this
Agreement. The words "include" and "including" in this Agreement shall be construed to be
followed by the words: "without limitation." Each collective noun in this Agreement shall be
interpreted as if followed by the words "(or any part of it)," except where the context clearly
requires otherwise. Every reference to any document, including this Agreement, refers to such
document, as modified from time to time (excepting any modification that violates this
Agreement), and includes all exhibits, schedules, addenda and riders to such document. The
word "or" in this Agreement includes the word "and." Every reference to a law, statute,
regulation, order, form or similar governmental requirement refers to each such requirement as
amended, modified, renumbered, superseded or succeeded, from time to time.
5.10 Governing Law. The Laws of the State shall govern the interpretation and
enforcement of this Agreement, without application of conflicts of laws principles. The Parties
acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates
to real property located in the City of Azusa, Los Angeles County, State of California. All legal
actions arising from this Agreement shall be filed in the Superior Court of the State in and for the
County or in the United States District Court with jurisdiction in the County.
5.11 City Attorney Fees and Costs. For the purposes of this Agreement, all
references to Legal Costs in reference to the City are intended to include the salaries, benefits
and costs of the City Attorney, as City Attorney, and the lawyers employed in the Office of the
City Attorney who provide legal services regarding the particular matter, adjusted to or billed at
an hourly rate and multiplied by the time spent on such matter rounded to increments of 1/10`h of
an hour, in addition to Legal Costs of outside counsel retained by the City for any matter.
5.12 Unavoidable Delay; Extension of Time of Performance.
5.12.1 Notice. Subject to any specific provisions of this Agreement stating
that they are not subject to Unavoidable Delay or otherwise limiting or restricting the effects of
an Unavoidable Delay, performance by either Party under this Agreement shall not be deemed,
or considered to be in Default, where any such Default is due to the occurrence of an
Unavoidable Delay. Any Party claiming an Unavoidable Delay shall Notify the other Party: (i)
within ten (10) days after such Party knows of any such Unavoidable Delay; and (ii) within five
(5) days after such Unavoidable Delay ceases to exist. To be effective, any Notice of an
Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The extension of
time for an Unavoidable Delay shall commence on the date of receipt of written Notice of the
occurrence of the Unavoidable Delay by the Party not claiming an extension of time to perform
due to such Unavoidable Delay and shall continue until the end of the condition causing the
Unavoidable Delay. The Party claiming an extension of time to perform due to an Unavoidable
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Delay shall exercise its commercially reasonable best efforts to cure the condition causing the
Unavoidable Delay, within a reasonable time.
. 5.12.2 Assumption of Economic Risks. EACH PARTY EXPRESSLY
AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER PARTY
SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET
CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC ASSUMPTIONS OF
EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR ENTERING INTO THIS
AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY THE PERFORMANCE
OF EACH AND EVERY ONE OF EACH PARTY'S OBLIGATIONS AND COVENANTS
ARISING UNDER THIS AGREEMENT. ANYTHING IN THIS AGREEMENT TO THE
CONTRARY NOTWITHSTANDING, THE PARTIES EXPRESSLY ASSUME THE RISK OF
UNFORESEEABLE CHANGES IN ECONOMIC CIRCUMSTANCES AND/OR MARKET
DEMAND/CONDITIONS AND WAIVE, TO THE GREATEST EXTENT ALLOWED BY
LAW, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION BASED IN WHOLE OR IN PART
ON ECONOMIC NECESSITY, IMPRACTICABILITY, CHANGED ECONOMIC
CIRCUMSTANCES, FRUSTRATION OF PURPOSE, OR SIMILAR THEORIES. THE
PARTIES AGREE THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, EITHER
OF THE PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN
MARKET CONDITIONS OR DEMANDS, SHALL NOT OPERATE TO EXCUSE OR
DELAY THE STRICT OBSERVANCE OF EACH AND EVERY ONE OF THE
OBLIGATIONS, COVENANTS, CONDITIONS AND REQUIREMENTS OF THIS
AGREEMENT. THE PARTIES EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE
ECONOMIC OR MARKET CHANGES, WHETHER OR NOT FORESEEABLE AS OF THE
EFFECTIVE DATE.
InA ials of Authorized Initials of Authorized
City Representative(s) Seller Representative(s)
5.13 Real Estate Commissions. The City shall not be responsible for any real estate
brokerage or sales commissions, finder fees or similar charges that may arise from or be related
to this Agreement or the purchase, sale or conveyance of the Property pursuant to this
Agreement. Seller shall be solely responsible for any real estate brokerage or sales commissions,
finder fees or similar charges that may arise from or be related to this Agreement or the purchase,
sale or conveyance of the Property pursuant to this Agreement that are claimed by any Person
engaged by Seller relating to the Property, this Agreement, or the purchase, sale or conveyance
of the Property pursuant to this Agreement. Further, Seller shall Indemnify the City against any
claims for such real estate brokerage or sales commissions, finder fees or similar charges, in
accordance with Section 4.6.
5.14 Binding on Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective legal representatives, successors and
assigns.
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5.15 No Other Representations or Warranties. Except as expressly set forth in this
Agreement, no Party makes any representation or warranty material to this Agreement to any
other Parry.
5.16 Tax Consequences. Seller acknowledges and agrees that it shall bear any and all
responsibility, liability, costs, and expenses connected in any way with any tax consequences
experienced by Seller related to this Agreement or the purchase, sale or conveyance of the
Property pursuant to this Agreement.
5.17 No Third -Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement on any Person
other than the Parties and their respective permitted successors and assigns, nor is anything in
this Agreement intended to relieve or discharge any obligation of any third -Person to any Party
or give any third -Person any right of subrogation or action over or against any Party.
5.18 Execution in Counterparts. This Agreement may be executed in multiple
counterpart originals, each of which shall be deemed to be an original, but all of which together
shall constitute one and the same document.
5.19 Entire Agreement.
5.19.1 Integrated Agreement. This Agreement includes thirty-six (36) pages
and three (3) exhibits, that constitute the entire understanding and Agreement of the Parties
regarding the Property and the other subjects addressed in this Agreement. This Agreement
integrates all of the terms and conditions mentioned in this Agreement or incidental to this
Agreement, and supersedes all negotiations or previous agreements between the Parties with
respect to the Property and the other subjects addressed in this Agreement.
5.19.2 No Merger. None of the terms, covenants, restrictions, agreements or
conditions set forth in this Agreement shall be deemed to be merged with any deed conveying
title to any portion of the Property, and this Agreement shall continue in full force and effect
before and after any such instruments, in accordance with its terms.
5.19.3 Waivers Must be in Writing. All waivers of the provisions of this
Agreement and all amendments to this Agreement must be in writing and signed by the
authorized representative(s) of both the City and Seller.
5.20 Exhibits. All of the Exhibits attached to this Agreement are described as follows:
5.20.1 Exhibit "A" Property Legal Description (Exhibit "A");
5.20.2 Exhibit `B." Form of Escrow Agent Consent (Exhibit `B");
5.20.3 Exhibit "C." Form of Grant Deed (Exhibit "C"); and
5.21 Time Declared to be of the Essence. As to -the performance of any obligation
under this Agreement of which time is a component, the performance of such obligation within
the time specified is of the essence.
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•
5.22 No Waiver. Failure to insist on any one occasion upon strict compliance with
any term, covenant, condition, restriction or agreement contained in this Agreement shall not be
deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall any
waiver or relinquishment of any rights or powers under this Agreement, at any one time or more
times, be deemed a waiver or relinquishment of such right or power at any other time or times.
[Signatures on following page]
Oil
RV PUB%PKNOX\737874.3
i
�J
SIGNATURE PAGE
TO
1997 REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(604 N. Azusa Avenue)
IN WITNESS WHEREOF, the City and Seller have executed this 2007 Real Property
Purchase and Sale Agreement and Joint Escrow Instructions (604 N. Azusa Avenue) by and
through the signatures of their authorized representative(s) set forth below:
CITY:
CITY OF AZUSA, a California municipal
corporation
By. 'J/� y� "Z; m
Francis Delach, City Manager
Attest:
By:
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
By:
CAY Attorney
nvnna�ov>,tnv��a�s�a a
Seller:
BERNICE EVELYN EDWARDS, Trustee of
the Bernice Evelyn Edwards Trust Under Trust
Agreement Dated August 1, 1997
B C.e"Edwos,
Be nice Evelyn Trustee
0
0
EXHIBIT "A"
TO
2007 REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(604 N. Azusa Avenue)
PROPERTY LEGAL DESCRIPTION
[To be attached behind this cover page]
Exhibit "A"
Property Legal Description
RV PUB\PKNOX\737874.3
PROPERTY LEGAL DESCRIPTION
The subject property is located in the City of Azusa, County of Los Angeles, State of
California, and is described as follows:
10 feet of Lot 30, all of lots 31 and 32, Block 36, Map of Azusa Miscellaneous
Records as recorded in Book 15 Pages 93 through 96
EXHIBIT "B"
TO
2007 REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(604 N. Azusa Avenue)
FORM OF ESCROW AGENT CONSENT
[To be attached following this cover page]
Exhibit `B"
Form Of Escrow Agent Consent
RV PU13TKNOX\737874.3
0
EXHIBIT `B"
TO
2007 REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(604 N. Azusa Avenue)
ESCROW AGENT CONSENT
SOUTHLAND TITLE AND ESCROW COMPANY accepts that certain 2007 Real
Property Purchase and Sale Agreement and Joint Escrow Instructions, dated
2007, by and between the CITY OF AZUSA, a California municipal corporation, and BERNICE
EVELYN EDWARDS, Trustee of the Bernice Evelyn Edwards Trust Under Trust Agreement
Dated August 1, 1997, agrees to act as "Escrow Agent' pursuant to such agreement and agrees to
be bound by all provisions of such agreement applicable to it as the Escrow Agent.
ESCROW AGENT:
SOUTHLAND TITLE COMPANY
to
Dated:
Notice Address:
Exhibit `B"
Form Of Escrow Agent Consent
R V PLB\PKNOX\737874.3
0
Ll
EXHIBIT "C"
TO
2007 REAL PROPERTY PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
(604 N. Azusa Avenue)
FORM OF GRANT DEED
[To be attacbed following this cover page]
Exhibit "C"
Form of Grant Deed
RV PUB\PKNOX\737874.3
•
TABLE OF CONTENTS
i
Page
ARTICLE1
DEFINITIONS.................................................................................................
1
1.1
Defined Terms.......................................................................................................
1
ARTICLE 2
CONVEYANCE OF PROPERTY ................................................
I................. 9
2.1
Escrow....................................................................................................................9
2.2
Payment of Purchase Price.....................................................................................
9
2.3
Title Approval........................................................................................................
9
2.4
Due Diligence Investigations...............................................................................
10
2.5
Eminent Domain..................................................................................................11
2.6
Seller Covenants Regarding Maintenance of the Property ..................................
12
2.8
Seller Representations and Warranties................................................................
12
ARTICLE 3
JOINT ESCROW INSTRUCTIONS.............................................................
13
3.1
Opening of Escrow..............................................................................................
13
3.2
Escrow Agent Authority......................................................................................
13
3.3
City's Conditions to Close of Escrow..................................................................
14
3.4
Seller's Conditions to Close of Escrow...............................................................
15
3.5
City's Escrow Deposits........................................................................................
15
3.6
Seller's Escrow Deposits.....................................................................................
16
3.7
Closing Procedure................................................................................................
16
3.8
Close of Escrow...................................................................................................17
3.9
Withholding Requirements..................................................................................18
3.10
Taxes and Prorations............................................................................................
18
3.11
Possession; Risk of Loss......................................................................................
18
3.12
Escrow Closing Costs, Taxes and Title Policy Premium ....................................
18
3.13
Escrow Cancellation Charges..............................................................................
18
3.14
Escrow Cancellation............................................................................................
19
3.15
Escrow Notices....................................................................................................
19
ARTICLE 4
REMEDIES AND INDEMNITY..................................................................
20
4.1
PRE-CLOSING LIQUIDATED DAMAGES TO SELLER ...............................
20
4.2
Seller Event of Default Remedies of City............................................................
20
4.3
Legal Actions.......................................................................................................
21
RVPUB\PKNOXV37874. 3 -i-
TABLE OF CONTENTS
(continued)
Page
4.4
Attorney's Fees....................................................................................................
21
4.5
Rights and Remedies are Cumulative..................................................................
21
4.6
Indemnification... .................................................................................................
21
4.66
Indemnification Procedures.................................................................................
22
ARTICLE 5
GENERAL PROVISIONS...........................................................:................
22
5.1
Incorporation of Recitals......................................................................................
22
5.2
City Manager Implementation.............................................................................
23
5.3
Notices, Demands and Communications Between the Parties ............................
23
5.4
Warranty Against Payment of Consideration for Agreement ..............................
24
5.5
Relationship of Parties...........................:.............................................................24
5.6
Survival of Agreement.........................................................................................
24
5.7
Non -liability of Officials, Employees and Agents ...............................................
24
5.8
Calculation of Time Periods................................................................................
24
5.9
Principles of Interpretation..................................................................................
25
5.10
Governing Law....................................................................................................
25
5.11
City Attorney Fees and Costs..............................................................................
25
5.12
Unavoidable Delay; Extension of Time of Performance .....................................
25
5.13
Real Estate Commissions.....................................................................................
26
5.14
Binding on Successors and Assigns.....................................................................
26
5.15
No Other Representations or Warranties.............................................................
27
5.16
Tax Consequences...............................................................................................
27
5.17
No Third -Party Beneficiaries...............................................................................
27
5.18
Execution in Counterparts....................:...............................................................
27
5.19
Entire Agreement.................................................................................................
27
5.20
Exhibits................................................................................................................
27
5.21
Time Declared to be of the Essence.....................................................................
27
5.22
No Waiver............................................................................................................
28
EXHIBIT "A"
— PROPERTY LEGAL DESCRIPTION
EXHIBIT `B"
— FORM OF ESCROW AGENT CONSENT
EXHIBIT "C"
— FORM OF GRANT DEED
RVPU13\PKN0XV37874. 3 -n-