STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS
FOR PURCHASE OF REAL ESTATE
(NonResidenƟal)
Dated:
1. Buyer.
1.1 City of Fremont ,( "Buyer") hereby offers to purchase the real property, hereinaŌer described, from the owner thereof (" Seller") (collecƟvely, the "ParƟes" or individually, a "Party"), through an escrow (" Escrow") to close 30 or days aŌer the waiver or sa ƟsfacƟon of the Buyer's ConƟngencies, (" Expected Closing Date") to be held by Fidelity National Title ("Escrow Holder") whose address is , Phone No. , Facsimile No. upon the terms and condi Ɵons set forth in this agreement (" Agreement"). Buyer shall have the right to assign Buyer's rights hereunder, but any such assignment shall not relieve Buyer of Buyer's obliga Ɵons herein unless Seller expressly releases Buyer .
1.2 The term "Date of Agreement"a s used herein shall be the date when by execuƟon and delivery (as defined in paragraph 20.2) of this document or a subsequent counteroffer thereto, Buyer and Seller have reached agreement in wri Ɵng whereby Seller agrees to sell, and Buyer agrees to purchase, the Property upon terms accepted by both ParƟes.
2. Property.
2.1 The real property (" Property") that is the subject of this o ffer consists of (insert a brief physical descripƟon) the land and improvements thereon is located in the County of Alameda , is commonly known as (street address, city, state, zip) 39180 Liberty Street, Fremont, CA 94538 and is legally described as: (APN: 501-1130-050 ).
2.2 If the legal descrip Ɵon of the Property is not complete or is inaccurate, thi s Agreement shall not be invalid and the legal descrip Ɵon shall be completed or corrected to meet the requirements of Fidelity National Title ("Title Company"), which shall issue the Ɵtle policy hereinaŌer described.
2.3 The Property includes , at no addiƟonal cost to Buyer, the permanent improvements thereon, including those items which pursuant to applicable law are a part of the property, as well as the following items, if any, owned by Seller and at present located on the Property: electrical distribu Ɵon systems (power panel, bus ducƟng, conduits, disconnects, lighƟng fixtures); telephone distribuƟon systems (lines, jacks and connecƟons only); space heaters; heaƟng, venƟlaƟng, air condiƟoning equipment ("HVAC"); air lines; fire sprinkler systems; security and fire detecƟon systems; carpets; window coverings; wall coverings; and (collecƟvely, the "Improvements").
2.4 The fire sprinkler monitor: is owned by Seller and included in the Purchase Price, is leased by Seller, and Buyer will need to nego Ɵate a new lease with the fire monitoring company, ownership will be determined during Escrow, or there is no fire sprinkler monitor .
2.5 Except as provided in Paragraph 2.3, the Purchase Price does not include Seller's personal property, furniture and furnishings, and all of which shall be removed by Seller prior to Closing.
3. Purchase Price.
3.1 The purchase price (" Purchase Price") to be paid by Buyer to Seller for the Property shall be Six Million Five Hundred Forty Thousand Dollars ($6,540,000.00) ,p a y a b l ea sf o l l o w s :
(Strike any not applicable)
(a) Cash down payment, including the Deposit as de fined in paragraph 4.3 (or if an all cash transac Ɵon, the Purchase Price):
$195,000.00
(b) Amount of "New Loan" as de fined in paragraph 5.1, if any:
(c) Buyer shall take Ɵtle to the Property subject to and/or assume the following exis Ɵng deed(s) of trust (" ExisƟng Deed(s) of Trust") securing the exisƟng promissory note(s) ("ExisƟng Note(s)"):
(i) An Exis Ɵng Note ("First Note") with an unpaid principal balance as of the Closing of approximately:
Said First Note is payable at per month, including interest at the rate of % per annum unƟl paid (and/or the en Ɵre unpaid balance is due on ). (ii) An Exis Ɵng Note ("Second Note") with an unpaid principal balance as of the Closing of approximately:
Said Second Note is payable at per month, including interest at the rate of % per annum unƟl paid (and/or the en Ɵre unpaid balance is due on ). (d) Buye r shall give Seller ad e ed of trust ("Purchase Money Deed of Trust") on the property, to secure the promissory note of Buyer to Seller described in paragraph 6 (" Purchase Money Note") in the amount of:
Total Purchase Price: $6,540,000.00
3.2 If Buyer is taking Ɵtle to the Property subject to, or assuming, an ExisƟng Deed of Trust ands u ch deed of trust permits the beneficiary to demand payment of fees including, but not limited to, points, processing fees, and appraisal fees as a condi Ɵon to the transfer of the Property, Buyer agrees to pay such fees up to a $6,540,000
maximum of 1.5% of the unpai d principal balance of the applicable Exis Ɵng Note.
4. Deposits.
4.1 Buyer has delivered to Broker a check in the sum of , payable to Escrow Holder, to be delivered by Broker to Escrow Holder within 2 or business days aŌer both ParƟes have executed this Agreement and the executed Agreement has been delivered to Escrow Holder, or within 2o r five (5) business days aŌer both ParƟes have executed this Agreement and the executed Agreement has been delivered to Escrow Holder Buyer shall deliver to Escrow Holder a check in the sum of One Hundred Ninety Five Thousand Dollars ($195,000.00) .I f s a i d c h e c k is not received by Escrow Holder within said Ɵme period then Seller may elect to unilaterally terminate this transacƟon by giving wriƩen noƟce of such elecƟon to Escrow Holder whereupon neither Party shall have any further liability to the other under this Agreement. Should Buyer and Seller not enter into an agr eement for purchase and sale, Buyer's check or funds shall, upon request by Buyer, be promptly returned to Buyer.
4.2 Addi Ɵonal deposits:
(a) Within 5 business days a Ōer the Date of Agreement, Buyer shall deposit with Escrow Holder the addi Ɵonal sum of to be applied to the Purchase Price at the Closing.
(b) Withi n 5b u s i n e ss days aŌer the conƟngencies discussed in paragraph 9.1 (a) through (m) are approved or waived, Buyer shall deposit with Escrow Holder the addiƟonal sum of to be applied to the Purchase Price at the Closing. (c) If an Addi Ɵonal Deposit is not received by Escrow Holder within the Ɵme period provided then Seller may no Ɵfy Buyer, Escrow Holder , and Brokers, in wriƟng that, unless the AddiƟonal Deposit is received by Escrow Holder within 2b u s i n e ss days following said noƟce, the Escrow shall be deemed terminated without further noƟce or instrucƟons.
4.3 Escro w Holder shall deposit the funds deposited with it by Buyer pursuant to paragraphs 4.1 and 4.2 (collecƟvely the "Deposit"), in aS t a t eor Federally chartered bank in an interest bearing account whose term is appropriate and consistent with the Ɵming requirements of this transac Ɵon. The interest therefrom shall accrue to the benefit of Buyer, who hereby acknowledges that there may be penalƟes or interest forfeitures if the applicable instrument is redeemed prior to its specified maturity. Buyer's Federal Tax Iden ƟficaƟon Number is . NOTE: Such interest bearing account cannot be opened un Ɵl Buyer's Federal Tax IdenƟficaƟon Number is provided.
4.4 Notwithstanding the foregoing, within 5 days a Ōer Escrow Holder receives the monies described in paragraph 4.1 above, Escrow Holder shall release $100 of said monies to Seller as and for independent consideraƟon for Seller's' execuƟon of this Agreement and the granƟng of the conƟngency period to Buyer as herein provided. Such independent considera Ɵon is nonrefundable to Buyer but shall be credited to the Purchase Price in the event that the purchase of the Property is completed.
4.5 Upon waiver of all of Buyer's con Ɵngencies the Deposit shall become non refundable but applicable to the Purchase Price except in the event of a Seller breach, or in the event that the Escrow is terminated pursuant to the provisions of Paragraph 9.1(n)( D e s t r u cƟon, Damage or Loss) or 9.1(o) (Material Change).
5. Financing Con Ɵngency. (Strike if not applicable)
5.1 Thi s offer is conƟngent upon Buyer obtaining from an insurance company, financial insƟtuƟon or other lender, ac o m m i t m e nt to lend to Buyer a sum equal to at least % of the Purchase Price, on terms acceptable to Buyer. Such loan (" New Loan") shall be secured by a fir s td e e d o ft r u s to r m o r t g a g eo nt he Property. If thi s Agreement provides for Seller to carry back junior financing, then Seller shall have the right to approve the terms of the New Loan.S e l l er shall have 7 days following receipt of the commitment seƫng forth the proposed terms of the New Loan to approve or disapprove of such proposed terms. If Seller fails to no Ɵfy Escrow Holder, in wriƟng, of the disapproval within said 7d a ys it shall be conclusively presumed that Seller has approved the terms of the New Loan.
5.2 If Buyer shall fail to no Ɵfy its Broker, Escrow Holder and Seller, in wriƟng within days following the Date of Agreement, that the New Loan has not been obtained, it shall be conclusively presumed that Buyer has either obtained said New Loan or has waived this New Loan conƟngency.
5.3 If Buyer shall no Ɵfy its Broker, Escrow Holder and Seller, in wriƟng, within the Ɵme specified in paragraph 5.2 hereof, that Buyer has not obtained said New Loan, this Agreement shall be terminated, and Buyer shall be enƟtled to the prompt return of the Deposit, plus any interest earned thereon, less only Escrow Holder and Title Company cancellaƟon fees and costs, which Buyer shall pay.
6. Seller Financing. (Purchase Money Note). (Strike if not applicable)
6.1 If Seller approves Buyer's financials (see paragraph 6.5) the Purchase Money Note shall provide for interest on unpaid principal at the rate of % per annum, with principal and interest paid as follows: . The Purchase Money Note and Purchase Money Deed of Trust shall be on the current forms commonly used by Escrow Holder, and be junior and subordinate only to the ExisƟng Note(s) and/or the New Loan expressly called for by this Agreement.
6.2 The Purchase Money Note and/or the Purchase Money Deed of Trust shall contain provisions regarding the following (see also paragraph 10.3 (b)):
(a) Prepayment.P r i n c i p a l m a y b e p r e p a id in whole or in part at any Ɵme without penalty, at the opƟon of the Buyer. (b) Late Charge. A late charge of 6% shall be payable with respect to any payment of principal, interest, or other charges, not made within 10 days a Ōer it is due.
(c) Due On Sale. In the event the Buyer sells or transfers Ɵtle to the Property or any porƟon thereof, then the Seller may, at Seller's op Ɵon, require the enƟre unpaid balance of said Note to be paid in full.
6.3 If the Purchase Money Deed of Trust is to be subordinate to other financing, Escrow Holder shall, at Buyer's expense prepare and record on Seller's behalf a request for noƟce of default and/or sale with regard to each mortgage or deed of trust to which it will be subordinate.
6.4 WARNING: CALIFORNIA LAW DOES NOT ALLOW DEFICIENCY JUDGEMENTS O N SELLER FINANCING. IF BUYER ULTIMATELY DEFAULTS ON THE LOAN, SELLER'S SOLE REMEDY IS TO FORECLOSE ON THE PROPERTY.
6.5 Seller's obliga Ɵon to provide financing is conƟngent upon Seller's reasonable approval of Buyer's financial condiƟon. Buyer to provide a current financial statement and copies of its Federal tax returns for the last 3y e a rs to Seller within 10 days following the Date of Agreement.S e l l er has 10 days following receipt of such documentaƟon to saƟsfy itself with regard to Buyer's financial condiƟon and to noƟfy Escrow Holder as to whether or not Buyer's financial condiƟon is acceptable. If Selle r fails to noƟfy Escrow Holder, in wriƟng, of the disapproval of this conƟngency within said Ɵme period, it shall be conclusively presumed that Seller has approved Buyer's financial condiƟon. If Seller is not sa Ɵsfied with Buyer's financial condiƟon or if Buyer fails to deliver the required documenta Ɵon then Seller may noƟfy Escrow Holder in wriƟng that Seller Financing will not be available, and Buyer shall have the opƟon, within 10 days of the receipt of such noƟce, to either terminate this transacƟon or to purchase the Property without Seller financing. If Buyer fails to no Ɵfy Escrow Holder within said Ɵme period of its elecƟon to terminate this transacƟon then Buyer shall be conclusively presumed to have elected to purchase the Property withou t Seller financing.I f B u y er elects to terminate, Buyer's Deposit shall be refunded less Title Company and Escrow Holder cancella Ɵon fees and costs, all of which shall be Buyer's obliga Ɵon.
7. Real Estate Brokers.
7.1 Each Party acknowledges receiving a Disclosure Regarding Real Estate Agency Rela Ɵonship, confirms and consents to the following agency rela Ɵonships in this transacƟon with the following real estate broker(s) ("Brokers") and/or their agents (“Agent(s)”):
Seller's Brokerage Firm Jones Lang LaSalle, Inc. L i c e n s eN o . i st h eb r o k e r o f( c h e c ko n e ) : t h eS e l l e r ;o r b o t ht h e Buyer and Seller (dual agent).
Seller's Agent Sofi Choi, Steven Chon, and Trent Barmby License No. 01445024 is (check one): the Seller' s Agent (salesperson or broker associate); or both the Seller's Agent and the Buyer's Agent (dual agent).
Buyer's Brokerage Firm DCG Strategies, Inc. License No. is the broker of (check one): the Buyer; or both the Buyer and Seller (dual agent).
Buyer's Agent Landis Graden License No. is (check one): the Buyer's Agent (salesperson or broker associate); or both the Buyer's Agent and the Seller's Agent (dual agent).
The ParƟes acknowledge that other than the Brokers and Agents listed above, there are no other brokers or agents represen Ɵng the ParƟes or due any fees and/or commissions under this Agreement. Buye r shall use the service s of Buyer's Broker exclusively in connecƟon with any and all negoƟaƟons and offers with respect to the Property for a period of 1 year from the date inserted for reference purposes at the top of page 1.
7.2 Buyer and Seller each represent and warrant to the other that he/she/it has had no dealings with any person, firm, broker, agent or finder in connecƟon with the negoƟaƟon of this Agreement and/or the consummaƟon of the purchase and sale contemplated herein, other than the Brokers and Agents named in paragraph 7.1, and no broker, agent or other person, firm or enƟty, other than said Brokers and Agents is/are enƟtled to any commission or finder's fee in connecƟon with this transacƟon as the result of any dealings or acts of such Party. Buyer and Seller do each hereby agree to indemnify, defend, protect and hold the other harmless from and against any costs, expenses or liability for compensaƟon, commission or charges which may be claimed by any broker, agent, finder or other similar party, other than said named Brokers and Agents by reason of any dealings or act of the indemnifying Party.
8. Escrow and Closing.
8.1 Upon acceptance hereof by Seller, this Agreement, including any countero ffers incorporated herein by the ParƟes, shall consƟtute not only the agreemen t of purchase and sale between Buyer and Seller, but also instrucƟons to Escrow Holder for the consummaƟon of the Agreement through the Escrow. Escro w Holder shall not prepare any further escrow instrucƟons restaƟng or amending the Agreement unless speci fically so instructed by the ParƟes or a Broker herein. Subject to the reasonable approval of the ParƟes, Escrow Holder may, however, include its standard general escrow provisions. I n the event that there is any conflict between the provisions of the Agreement and the provisions of any addi Ɵonal escrow instrucƟons the provisions of the Agreement shall prevail as to the Par Ɵes and the Escrow Holder .
8 . 2 A ss o o n a sp r a cƟcal aŌer the receipt of this Agreement and any relevant countero ffers, Escrow Holder shall ascertain the Date of Agreement as de fined in paragraphs 1.2 and 20.2 and advise the ParƟes and Brokers, in wriƟng, of the date ascertained.
8.3 Escrow Holder is hereby authorized and instructed to conduct the Escrow in accordance with this Agreement, applicable law and custom and prac Ɵce of the community in which Escrow Holder is located, including any reporƟng requirements of the Internal Revenue Code. I n the event of a conflict between the law of the state where the Property is located and the law of the state where the Escrow Holder is located, the law of the state where the Property is located shal lp r e v a i l .
8.4 Subject to saƟsfacƟon of the conƟngencies herein described, Escrow Holder shall close this escrow (the "Closing") by recording a general warranty deed (a grant deed in California) and the other documents required to be recorded, and by disbursing the funds and documents in accordance with this Agreement .
8.5 Buyer and Seller shall each pay onehalf of the Escrow Holder's charges and Seller shall pay the usual recording fees and any required documentary transfer taxes. Selle r shall pay the premium fo r a standard coverage owner's or joint protecƟon policy of Ɵtle insurance. (See als o paragraph 11.)
8.6 Escrow Holder shall verify that all of Buyer's con Ɵngencies have been saƟsfied or waived prior to Closing. The ma Ʃers contained in paragraphs 9.1 subparagraphs (b), (c), (d), (e), (g), (i), (n), and (o), 9.4, 12, 13, 14, 16, 18, 20, 21, 22, and 24 are, however, maƩers of agreement between the ParƟes only and are not instrucƟons to Escrow Holder .
8.7 If this transacƟon is terminated for nonsaƟsfacƟon and nonwaiver of a Buyer's ConƟngency, as defined in paragraph 9.2 or disapproval of any othe r maƩer subject to Buyer's approval, then neither of the Par Ɵes shall thereaŌer have any liability to the other under this Agreement, except to the extent of a breach o f any affirmaƟve covenant or warranty in this Agreement. I n the event of such terminaƟon, Buyer shall, subject to the provisions of paragraph 8.10, be promptly refunded all funds deposited by Buyer with Escrow Holder, less only the $100 provided for in paragraph 4.4 and the Title Company and Escrow Holder cance llaƟon fees and costs, all of which shall be Buyer's obligaƟon. If thi s transacƟon is terminated as ar e s u lt of Seller's breach of this Agreement then Seller shall pay the Title Company and Escrow Holder cancellaƟ on fees and costs.
8.8 The Closin g shall occur on the Expected Closing Date, or as soon thereaŌer as the Escrow is in condiƟon for Closing; provided, however, that if the Closing does not occur by the Expected Closing Date and said Date is not extended by mutual instruc Ɵons of the ParƟes, a Party not then in default under this Agreement ma y noƟfy the other Party, Escrow Holder, and Brokers, in wriƟng that, unless the Closing occurs within 5b u s i n e ss days following said noƟce, the Escrow shall be deemed terminated without further noƟce or instrucƟons.
8.9 Except as otherwise provided herein, the terminaƟon of Escrow shall not relieve or release either Party from any obligaƟon to pay Escrow Holder's fees and costs or consƟtute a waiver, release or discharge of any breach or default that has occurred in the performance of the obligaƟ ons, agreements, covenants or warranƟes contained therein.
8.10 If this Escrow is terminated for any reason other than Seller's breach or default, then as a condi Ɵon to the return of Buyer's deposit, Buyer shall within 5 days aŌer wriƩen request deliver to Seller, at no charge, copies of all surveys, engineering studies, soil reports, maps, master plans, feasibility studies and other similar items prepared by or for Buyer that pertain to the Property. 9 . ConƟngencies to Closing.
9.1 IF, BEFORE EXPIRATION OF THE APPLICABLE TIME, BUYER FAILS TO PROVIDE ESCROW HOLDER WRITTEN NOTICE OF BUYER'S DISAPPROVAL OF ANY OF
BUYER'S CONTINGENCIES OR ANY OTHER MATTER THAT IS SUBJECT TO BUYER'S APPROVAL IN THIS AGREEMENT , THEN BUYER SHALL BE CONCLUSIVELY DEEMED TO HAVE SATISFIED SUCH BUYER'S CONTINGENCIES AND/OR APPROVED OF SUCH OTHER MATTERS . If a number of days is completed in any of the op Ɵonal spaces in subparagraphs 9.1 (a) through (m), then such number shall apply and override the preprinted number, even if the preprinted number is not stricken. The Closin g of this transacƟon is conƟngent upon the saƟsfacƟon or waiver of the following conƟngencies:
(a) Disclosure.S e l l er shall make to Buyer, through Escrow, all of the applicable disclosure s required by law (See AIR CRE ("AIR") standard form enƟtled "Seller's Mandatory Disclosure Statement" ) a n dp r o v i d eB u y e r w i t ha c o m p l e t e dP r o p e r t yI n f o r m aƟon Sheet ("Property InformaƟon Sheet") concerning the Property, duly executed by or on behalf of Seller in the current form or equivalent to that published by the AIR within 10 or three (3) days following the Date of Agreement. Buyer has 10 days from the receipt of said disclosures to approve or disapprove the ma
Ʃ
ers disclosed.
(b) Physical InspecƟon. Buyer has 10 or thirty (30) days following the receipt of the Property InformaƟon Sheet or the Date of Agreement, whichever is later, to saƟsfy itself with regard to the physical aspects and size of the Property. (c) Hazardous Substance CondiƟons Report. Buyer has 30 or days following the receipt of the Property InformaƟon Sheet or the Date of Agreement,w h i c h e v e ri s l a t e r ,to saƟsfy itself with regard to the environmental aspects of the Property. Seller recommends that Buyer obtain a Hazardous Substance CondiƟons Report concerning the Property and relevant adjoining properƟes. Any suc h report shall be paid for by Buyer. A " Hazardous Substance"f or purposes of this Agreement is defined as any substance whose nature and/or quan Ɵty of existence, use, manufacture, disposal or e ffect, render it subject to Federal, state or local regulaƟon, invesƟgaƟon, remediaƟon or removal as potenƟally injurious to public health or welfare. A " Hazardous Substance CondiƟon"f or purposes of this Agreement is defined as the existence on, under or relevantly adjacent to the Property of a Hazardous Substance that would require remedia Ɵon and/or removal under applicable Federal, state or local law.
(d) Soil InspecƟon. Buyer has 30 or days following the receipt of the Property InformaƟon Sheet or the Date of Agreement,w h i c h e v e r i s later, to saƟsfy itself with regard to the condiƟon of the soils on the Property. Seller recommends that Buyer obtain a soil test report. Any such report shall be paid for by Buyer. Selle r shall provide Buyer copies of any soils report that Seller may have within 10 days following the Date of Agreement. (e) Governmental Approvals. Buyer has 30 or days following the Date of Agreement to sa Ɵsfy itself with regard to approvals and permits from governmental agencies or departments which have or may have jurisdicƟon over the Property and which Buyer deems necessary or desirable in connecƟon with its intended use of the Property, including, but not limited to, permits and approvals required with respect to zoning, planning, building and safety , fire, police, handicapped and Americans with DisabiliƟes Act requirements, transportaƟon and environmental maƩers. (f) CondiƟons of Title. Escrow Holder shall cause a current commitment for Ɵtle insurance ("Title Commitment") concerning the Property issued by th e Title Company, as well as legible copies of all documents referred to in the Title Commitment ("Underlying Documents"), and as c a l ed and dimensioned plot showing the locaƟon of any easements to be delivered to Buyer within 10 or days following the Date of Agreement. Buyer has 10 days from the receipt of the Title Commitment, the Underlying Documents and the plot plan to saƟsfy itself with regard to the condiƟon of Ɵtle. The disapproval by Buye r of any monetary encumbrance, which by the terms of this Agreement is not to remain against the Property a Ōer the Closing, shall not be considered a failure of this con Ɵngency, as Seller shall have the obliga Ɵon, at Seller's expense, to saƟsfy and remove such disapproved monetary encumbrance at or before the Closing. (g) Survey. Buyer has 30 or days following the Date of Agreement receipt of the Title Commitment and Underlying Documents to saƟsfy itself with regard to any ALTAƟtle supplement based upon a survey prepared to American Land Title AssociaƟon ("ALTA") standards for an owner's policy by a license d surveyor, showing the legal descripƟon and boundary lines of the Property, any easements of record, and any improvements, poles, structures and things located within 10 feet of either side of the Property boundary lines. Any suc h survey shall be prepared at Buyer's direc Ɵ on and expense. If Buye r has obtained as u r v e ya nd approved the ALTAƟtle supplement, Buyer may elect within the period allowed for Buyer' s approval of a survey to have an ALTA extended coverage owner's form o f Ɵtle policy, in which event Buyer shall pay any addi Ɵonal premium aƩributable thereto. (h) ExisƟng Leases and Tenancy Statements. Seller shall within 10 or three (3) days following the Date of Agreement provide both Buyer and Escrow Holder with legible copies of all leases, subleases or rental arrangements (collecƟvely, "ExisƟng Leases") affecƟng the Property,a nd with a tenancy statement (" Estoppel Cer Ɵficate") in the latest form or equivalent to that published by the AIR, executed by Seller and/or each tenant and subtenant of the Property. Seller shall use its best efforts to have each tenant complete and execute an Estoppel CerƟficate. If any tena ntf a i ls or refuses to provide an Estoppel CerƟficate then Seller shall complete and execute an Estoppel CerƟficate for that tenancy. Buyer has 10 days from the receipt of said Exis Ɵng Leases and Estoppel CerƟficates to saƟsfy itself with regard to the ExisƟng Leases and any other tenancy issues. (i) Owner's Associa Ɵon. Seller shall within 10 or days following the Date of Agreement provide Buyer with a statement and transfer package from any owner's associaƟon servicing the Property. Such transfer package shall at a minimum include: copies of the associa Ɵon's bylaws, arƟcles of incorporaƟon, current budget and financial statement.B u y er has 10 days from the receipt of such documents to saƟsfy itself with regard to the associaƟon. (j) Other Agreements. Seller shall within 10 or three (3) days following the Date of Agreement provide Buyer with legible copies of all other agreements ("Other Agreements") known to Seller that will affect the Property aŌer Closing. Buyer ha s 3010 days from the receipt of said Other Date of Agreements to saƟsfy itself with regard to such Agreements.
(k) Financing. If paragrap h 5 hereof dealing with a financing conƟngency has not been stricken, the saƟsfacƟon or waiver of such New Loan conƟngency. (l) ExisƟng Notes. If paragraph 3.1(c) has not been stricken, Seller shall within 10 or days following the Date of Agreement provide Buyer with legible copies of the ExisƟng Notes, ExisƟng Deeds of Trust and related agreements (collecƟvely, "Loan Documents") to which the Property will remain subject aŌer the Closing. Escrow Holder shall promptly request from the holders of the Exis Ɵng Notes a beneficiary statement ("Beneficiary Statement") confirming: (1) the amount of the unpaid principal balance, the current interest rate, and t h ed a t eto which interest is paid, and (2) the nature and amount of any impounds held by the beneficiary in connecƟon with such loan. Buyer has 10 or days following the receipt of the Loan Documents and Bene ficiary Statements to saƟsfy itself with regard to such financing. Buyer' s obligaƟon to close is condiƟoned upon Buyer being able to purchase the Property without acceleraƟon or change in the terms of any ExisƟng Notes or charges to Buyer except as otherwise provided in this Agreement or approved by Buyer, provided, however, Buyer shall pay the transfer fe e referred to in paragraph 3.2 hereof. Likewise if Seller is to carry back a Purchase Money Note then Seller shall within 10 or days following the Date of Agreement provide Buyer with a copy of the proposed Purchase Money Note and Purchase Money Deed of Trust. Buyer has 10 or days following the receipt of such documents to saƟsfy itself with regard to the form and content thereof. (m) Personal Property. In the event that any personal property is included in the Purchase Price, Buyer has 10 or thirty (30) days following the Date of Agreement to saƟsfy itself with regard to the Ɵtle condiƟon of such personal property. Selle r recommends that Buyer obtain aU CC1r e p o r t . A n ys u ch report shall be paid for by Buyer . Seller shall provide Buyer copies of any liens or encumbrances a ffecƟng such personal property that it is aware of within 10 or three (3) days following the Date of Agreement.
(n) DestrucƟon, Damage or Loss. Subsequen t to the Date of Agreement and prior to Closing there shall not have occurred ad e s t r u cƟon of, or damage or loss to, the Property or any porƟon thereof, from any cause whatsoever, which would cost more than $10,000.00 to repair or cure. If the cost of repair or cure is $10,000.00 or less, Seller shall repair or cure the loss prior to the Closing. Buye r shall have the opƟon, within 10 days aŌer receipt of wriƩen noƟce of a loss cosƟng more than $10,000.00 to repair or cure, to either terminate this Agreement or to purchase the Property notwithstanding such loss, but without deduc Ɵon or offset against the Purchase Price. If the cos t to repair or cure is more than $10,000.00, and Buyer does not elect to terminate this Agreement, Buyer shall be enƟtled to any insurance proceeds applicable to such loss. Unless otherwise no Ɵfied in wriƟng, Escrow Holder shall assume no such destruc Ɵon, damage or loss has occurred prio r to Closing.
(o) Material Change. Buyer shall have 10 days following receipt of wri Ʃen noƟce of a Material Change within which to sa Ɵsfy itself with regard to such $100,000
$100,000
$100,000
$100,000
change. " Material Change"s h a l lm e an as u b s t a nƟal adverse change in the use, occupancy, tenants, Ɵtle, or condiƟon of the Property tha t occurs aŌer the date of this offer and prior to the Closing. Unless otherwise no Ɵfied in wriƟng, Escrow Holder shall assume that no Material Change has occurred prior to the Closing. (p) Seller Performance. The delivery of all document s and the due performance by Seller of each and every undertaking and agreement to be performed by Seller under this Agreement.
(q) Brokerage Fee.P a y m e nt at the Closing of such brokerage fee as is specified in this Agreement or later wriƩen instrucƟons to Escrow Holder executed by Seller and Brokers ("Brokerage Fee"). It is agreed by the Par Ɵes and Escrow Holder that Brokers are a third party bene ficiary of this Agreement insofar as the Brokerage Fee is concerned, and that no change shall be made wit h respect to the payment of the Brokerage Fee specified in this Agreement, without the wriƩen consent of Brokers.
9.2 The conƟngencies specified in subparagraphs 9.1(a) through (m) are for the benefit of, and may be waived by, Buyer, and are referred to collecƟvely as "Buyer's ConƟngencies" and individually as a " Buyer's ConƟngency."
9.3 Buyer' s Ɵmely and wriƩen disapproval or condiƟonal approval of a Buyer' s ConƟngency or any other maƩer that is subject to Buyer's approval in this Agreement shall consƟtute disapproval thereof ("Disapproved Item(s)"). Concurrent with no Ɵce of a Disapproved Item, Buyer may make a request to Seller regarding such Disapproved Item ("Buyer's Request"). If Buye r fails to make a Ɵmely and wriƩen Buyer's Request, then this Agreement shall terminate due to the nonsaƟsfacƟon and nonwaiver of a conƟngency. Seller may respond to a Buyer's Request with in 10 days following Seller's receipt thereof (" Seller's Response").
Seller's acceptance of a Buyer' s Request shall amend this Agreement accordingly. If Selle r fails to provide a Ɵmely and wriƩen Seller's Response, then Seller's Response shall be deemed to be a rejec Ɵon of Buyer's Request. Buyer may, within 10 days following the earlier of Buyer's receipt of a Seller's Response (which is not an acceptance of Buyer's Request) or the date of Seller' s deemed rejecƟon of a Buyer's Request ("Buyer's Reply Period"), reply to a Seller's Response ("Buyer's Reply") and elect to (i) terminate this Agreement due to the non saƟsfacƟon and nonwaiver of the applicable con Ɵngency, (ii) accept the Seller's Response in which event this Agreement shall be amended accordingly, or (iii) withdraw Buyer's Request and waive the Disapproved Item in which event Buyer shall accept the Property subject to the Disapproved Item. If Buyer fails to provide a Ɵmely and wriƩen Buyer's Reply, then Buyer shall be deemed to have elected to terminate this Agreement as of the end of the Buyer's Reply Period. The date Buye r accepts aS e l l e r 's Response or withdraws aB u y e r 's Request and waives aD i s a p p r o v ed Item shall be the date of Buyer's approval of the Disapproved Item. A Party shall provide to Escrow Holder copy of all no Ɵces of a Disapproved Item, Buyer's Request, Seller's Response and Buyer's Reply and Escrow Holder shall promptly provide copies thereof to the other Party. Unles s theP a rƟes in wriƟng agree otherwise, if the Expected Closing Date is a specific calendar date and a Buyer's Reply Period expires a Ōer such specific calendar date, then notwithstanding paragraph 1.1, the Expected Closing Date shall be extended to be 3 business days aŌer the earlier of the date Buyer withdraws aB u y e r 's Request and waives the applicable Disapproved Item or Buyer accepts the applicable Seller's Response.
9.4 The Par Ɵes acknowledge that extensive local, state and Federal legisla Ɵon establish broad liability upon owners and/or users of real property for the invesƟgaƟon and remediaƟon of Hazardous Substances. The determina Ɵon of the existence of a Hazardous Substance CondiƟon and the evaluaƟon of the impact of such a condiƟon are highly technical and beyond the exper Ɵse of Brokers. The Par Ɵes acknowledge that they have been advised by Brokers to consult their own technical and legal experts with respect to the possible presence of Hazardou s Substances on the Property or adjoining properƟes, and Buyer and Seller are not relying upon any invesƟgaƟon by or statement of Brokers with respect thereto. The Par Ɵes hereby assume all responsibility for the impact of such Hazardous Substances upon their respecƟve interests herein.
10. Documents and Other Items Required at or Before Closing.
10.1 Five day s prior to the Closing date Escrow Holder shall obtain an updated Title Commitment concerning the Property from the Title Company and provide copies thereof to each of the ParƟes.
10.2 Seller shall deliver to Escrow Holder in Ɵme for delivery to Buyer at the Closing:
(a) Grant or general warranty deed, duly executed and in recordable form, conveying fee Ɵtle to the Property to Buyer . (b) If applicable , the Beneficiary Statements concerning ExisƟng Note(s). (c) If applicable, the Exis Ɵng Leases and Other Agreements together with duly executed assignments thereof by Seller and Buyer. The assignment of ExisƟng Leases shall be on the most recent Assignment and AssumpƟon of Lessor's Interest in Lease form published by the AIR or its equivalent. (d) An a ffidavit executed by Seller to the e ffect that Seller is not a "foreign person" within the meaning of Internal Revenue Code Sec Ɵon 1445 or successor statutes. If Selle r does not provide such affidavit in form reasonably saƟsfactory to Buyer at least 3b u s i n e ss days prior to the Closing , Escrow Holder shall at the Closing deduct from Seller's proceeds and remit to the Internal Revenue S ervice such sum as is required by applicable Federal law with respect to pu rchases from foreign sellers.
(e) If the Property is located in California, an a ffidavit executed by Seller to the effect that Seller is not a ''nonresident" within the meaning of California Revenue and Tax Code SecƟon 18662 or successor statutes. If Selle r does not provide such affidavit in form reasonably saƟsfactory to Buyer at least 3b u s i n e ss days prior to the Closing, Escrow Holder shall at the Closing deduct from Seller's proceeds and remit to the Franchise Tax Board such sum as is required by suc hs t a t u t e . (f) If applicable , a bill of sale, duly executed, conveying Ɵtle to any included personal property to Buyer . (g) If the Seller is a corpora Ɵon, a duly executed corporate resoluƟon authorizing the execuƟon of this Agreement and the sale of the Property.
10.3 Buye r shall deliver to Seller through Escrow:
(a) The cash por Ɵon of the Purchase Price and such addi Ɵonal sums as are required of Buyer under this Agreement shall be deposited by Buyer with Escrow Holder, by federal funds wire transfer, or any other method acceptable to Escrow Holder in immediately collectable funds, no later than 2:00 P. M . on the business day prior to the Expected Closing Date provided, however, that Buyer shall not be required to deposit such monies into Escrow if at the Ɵme set for the deposit of such monies Seller is in default or has indicated that it will not perform any of its obligaƟons hereunder . Instead, in such circumstances in order to reserve its rights to proceed Buyer need only provide Escrow with evidence establishing that the required monies were available. (b) If a Purchase Money Note an d Purchase Money Deed of Trust are called for by this Agreement, the duly executed originals of those documents, the Purchase Money Deed of Trust being in recordable form, together with evidence of fire insurance on the improvements in the amount of the full replacement cost naming Seller as am o r t g a g el o ss payee, and a real estate tax service contract (at Buyer's expense), assuring Seller of noƟce of the status of payment of real property taxes during the life of the Purchase Money Note.
(c) The Assignmen t and AssumpƟon of Lessor's Interest in Lease form specified in paragraph 10.2(c) above, duly executed by Buyer . (d) Assump Ɵons duly executed by Buyer of the obliga Ɵons of Seller that accrue a Ōer Closing under any Other Agreements. (e) If applicable , aw r iƩen assumpƟon duly executed by Buyer of the loan documents with respect to ExisƟng Notes. (f) If the Buyer is a corpora Ɵon, a duly executed corporate resoluƟon authorizing the execuƟon of this Agreement and the purchase of the Property.
10.4 At Closing, Escrow Holder shall cause to be issued to Buyer as t a n d a rd coverage (or ALTA extended, if elected pursuant to 9.1(g)) owner's form policy of Ɵtle insurance effecƟve as of the Closing, issued by the Title Company in the full amount of the Purchase Price, insuring Ɵtle to the Property vested in Buyer, subject only to the excepƟons approved by Buyer . In the event there is aP u r c h a s eM o n e y D e ed of Trust in this transacƟon, the policy of Ɵtle insurance shall be a join t protecƟon policy insuring both Buyer and Seller.
IMPORTANT: IN AP U R C H A S EOR EXCHANGE OF REAL PROPERTY , IT MAY BE ADVISABLE TO OBTAIN TITLE INSURANCE IN CONNECTION WITH THE CLOSE OF ESCROW SINCE THERE MAY BE PRIOR RECORDED LIENS AND ENCUMBRANCES WHIC H AFFECT YOUR INTEREST IN THE PROPERTY BEING ACQUIRED. A NEW POLICY OF TITLE INSURANCE SHOULD BE OBTAINED IN ORDER TO ENSURE YOUR INTEREST IN THE PROPERTY THAT YOU ARE ACQUIRING.
11. Prora Ɵons and Adjustments.
11.1 Taxes. Applicable real property taxe s and special assessment bonds shall be prorated through Escrow as of the date of the Closing , based upon the latest tax bill available. The Par Ɵes agree to prorate as of the Closing any taxes assessed against the Property by supplemental bill levied by reason of events occurring prio r to the Closing. Paymen t of the prorated amount shall be made promptly in cash upon receipt of a copy of any supplemental bill.
11.2 Insurance. WARNING: Any insurance which Seller may have maintained will terminate on the Closing. Buyer is advised to obtain appropriate insurance t o cover the Property.
11.3 Rentals, Interest and Expenses. Scheduled rentals, interest on Exis Ɵng Notes, uƟliƟes, and operaƟng expenses shall be prorated as of the date of Closing.
The ParƟes agree to promptly adjust between themselves outside of Escrow any rents received aŌer the Closing.
11.4 Security Deposit. Security Deposits held by Seller shall be given to Buyer as a credit to the cash required of Buyer at the Closing.
11.5 Post Closing MaƩers.A n y i t e m to be prorated that is not determined or determinable at the Closing shall be promptly adjuste d by the ParƟes by appropriate cash payment outside of the Escrow when the amount due is determined.
11.6 VariaƟons in ExisƟng Note Balances.I n the event that Buyer is purchasing the Property subject to an ExisƟng Deed of Trust(s), and in the event that a Beneficiary Statement as to the applicable ExisƟng Note(s) discloses that the unpaid principal balance of such Exis Ɵng Note(s) at the closing will be more or less than the amount set forth in paragraph 3.1(c) hereof ("ExisƟng Note VariaƟon"), then the Purchase Money Note(s) shall be reduced or increased by an amount equal to such ExisƟng Note VariaƟon. If there is to be no Purchase Money Note, the cash required at the Closing per paragraph 3.1(a) shall be reduced or increased by the amount of such ExisƟng Note VariaƟon.
11.7 VariaƟons in New Loan Balance . In the event Buyer is obtaining a New Loan and the amount ul Ɵmately obtained exceeds the amount set forth in paragraph 5.1, then the amount of the Purchase Money Note , if any, shall be reduced by the amount of such excess.
11.8 Owner's Associa Ɵon Fees. Escrow Holder shall: (i) bring Seller's account with the associa Ɵon current and pay any delinquencies or transfer fees from Seller's proceeds, and (ii) pay any up front fees required by the associaƟon from Buyer's funds.
12. Representa Ɵons and WarranƟes of Seller and Disclaimers.
12.1 Seller' s warranƟes and representaƟons shall survive the Closing and delivery of the deed for ap e r i od of 3 years, and any lawsuit or acƟon based upon them must be commenced within such Ɵme period. Seller' s warranƟes and representaƟons are true, material and relied upon by Buyer and Brokers in all respects.S e l l er hereby makes the following warranƟes and representaƟons to Buyer and Brokers:
(a) Authority of Seller.S e l l er is the owner of the Property and/or has the full right, power and authority to sell, convey and transfer the Property to Buyer as provided herein, and to perform Seller's obliga Ɵons hereunder. (b) Maintenance During Escrow and Equipment CondiƟon At Closing.E x c e pt as otherwise provided in paragraph 9.1(n) hereof, Seller shall maintain the Property unƟl the Closing in its present condi Ɵon, ordinary wear and tear excepted. (c) Hazardous Substances/Storage Tanks.S e l l er has no knowledge, except as otherwise disclosed to Buyer in wriƟng, of the existence or prior existence on the Property of any Hazardous Substance, nor of the existence or prior existence of any above or below ground storage tank. (d) Compliance.E x c e pt as otherwise disclosed in wriƟng, Seller has no knowledge of any aspec t or condiƟon of the Property which violates applicable laws, rules, regulaƟons, codes or covenants, condiƟons or restricƟons, or of improvements or alteraƟons made to the Property without a permit where one was required, or of any unfulfilled order or direcƟve of any applicable governmental agency or casualty insurance company requiring any invesƟgaƟon, remediaƟon, repair, maintenance or improvement be performed on the Property. (e) Changes in Agreements.P r i or to the Closing, Seller will not violate or modify any ExisƟng Lease or Other Agreement, or create any new leases or other agreements affecƟng the Property, without Buyer's wriƩen approval, which approval will not be unreasonably withheld. (f) Possessory Rights. Selle r has no knowledge that anyone will, at the Closing, have any right to possession of the Property, except as disclosed by this Agreement or otherwise in wri Ɵng to Buyer .
(g) Mechanics' Liens.T h e r e a r e no unsaƟsfied mechanics' or materialmens' lien rights concerning the Property. (h) AcƟons, Suits or Proceedings. Seller has no knowledge of any ac Ɵons, suits or proceedings pending or threatened before any commission, board, bureau, agency, arbitrator, court or tribunal that would affect the Property or the right to occupy or uƟlize same. (i) NoƟce of Changes. Seller will promptly no Ɵfy Buyer and Brokers in wriƟng of any Material Change (see paragraph 9.1(o)) a ffecƟng the Property that becomes known to Seller prior to the Closing.
(j) No Tenant Bankruptcy Proceedings.S e l l e r h a s n o n oƟce or knowledge that any tenant of the Property is the subject of a bankruptcy or insolvency proceeding.
(k) No Seller Bankruptcy Proceedings. Seller is not the subject of a bankruptcy, insolvency or probate proceeding. (l) Personal Property.S e l l er has no knowledge that anyone will, at the Closing, have any right to possession of any personal property include d in the Purchase Price nor knowledge of any liens or encumbrances a ffecƟng such personal property, except as disclosed by this Agreement or otherwise in wri Ɵng to Buyer .
12.2 Buyer hereby acknowledges that, except as otherwise stated in this Agreement, Buyer is purchasing the Property in its exisƟng condiƟon and will, by the Ɵme called for herein, make or have waived all inspec Ɵons of the Property Buyer believes are necessary to protect its own interest in, and its contemplated use of, the Property. The Par Ɵes acknowledge that, except as otherwise stated in this Agreement, no representaƟons, inducements, promises, agreements, assurances, oral or wriƩen, concerning the Property, or any aspect of the occupa Ɵonal safety and health laws, Hazardous Substance laws, or any other act, ordinance or law, have been made by either Party or Brokers,o r relied upon by either Party hereto.
12.3 In the event that Buyer learns that a Seller representa Ɵon or warranty might be untrue prior to the Closing, and Buyer elects to purchase the Property anyway then, and in that event, Buyer waives any right that it may have to bring an acƟon or proceeding against Seller or Brokers regarding said representaƟon or warranty.
12.4 Any environmental reports, soils reports, surveys, and other similar documents which were prepared by third party consultants and provided to Buyer by Seller or Seller's representaƟves, have been delivered as an accommoda Ɵon to Buyer and without any representaƟon or warranty as to the su fficiency, accuracy, completeness, and/or validity of said documents, all of which Buyer relies on at its own risk. Selle r believes said documents to be accurate, but Buyer is advised to retain appropriate consultants to review said documents and invesƟgate the Property.
13. Possession.
Possession of the Property shall be given to Buyer at the Closing subject to the rights of tenants under Exis Ɵng Leases. the period set forth in the Addendum.
^
14. Buyer's Entry.
At any Ɵme during the Escrow period, Buyer, and its agents and representa Ɵves, shall have the right at reasonable Ɵmes and subject to rights of tenants, to enter upon the Property for the purpose of making inspecƟons and tests specified in this Agreement. N o destrucƟve tesƟng shall be conducted, however, without Seller's prior approval which shall not be unreasonably withheld. Following any such entry or work, unless otherwise directed in wri Ɵng by Seller, Buyer shall return the Property t o the condiƟon it was in prior to such entry or work, including the recompacƟon or removal of any disrupted soil or material as Seller may reasonably direct. All suc h inspecƟons and tests and any other work conducted or materials furnished with respect to the Property by or for Buyer shall be paid for by Buyer as and when due and Buyer shall indemnify, defend, protect and hold harmless Seller and the Property of and from any and all claims, liabiliƟes, losses, expenses (including reasonable aƩorneys' fees), damages, including those for injury to person or property, arising out of or rela Ɵng to any such work or materials or the acts or omissions of Buyer, its agents or employees in connecƟon therewith.
15. Further Documents and Assurances .
The ParƟes shall each, diligently and in good faith, undertake all acƟons and procedures reasonably required to place the Escrow in condiƟon for Closing as and when required by this Agreement. The Par Ɵes agree to provide all further informa Ɵon, and to execute and deliver all further documents, reasonably required by Escrow Holder or the Title Company.
16. A Ʃorneys' Fees.
If any Party or Broker brings an acƟon or proceeding (including arbitraƟon) involving the Property whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereaŌer defined) in any such proceeding, ac Ɵon, or appeal thereon, shall be en Ɵtled to reasonable aƩorneys' fees and costs. Such fees may be awarded in the same suit or recovered in as e p a r a t es u i t, whether or not such acƟon or proceeding is pursued to decision or judgment. The term "Prevailing Party" shall include, without limita Ɵon, a Party or Broker who substanƟally obtains or defeats the relief sought, as the case may be, whether by compromise, seƩlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The a Ʃorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all a Ʃorneys' fees reasonably incurred.
17. Prior Agreements/Amendments.
17.1 This Agreement supersedes any and all prior agreements between Seller and Buyer regarding the Property.
17.2 Amendments to this Agreement are effecƟve only if made i n wriƟng and executed by Buyer and Seller .
18. Broker's Rights.
18.1 If thi s sale is not consummated due to the default of either the Buyer or Seller, the defaulƟng Party shall be liable t o and shall pay to Brokers the Brokerage Fee that Brokers would have received had the sale been consummated.I f B u y er is the defaulƟng party, payment of said Brokerage Fee is in addiƟon to any obligaƟon with respect to liquidated or other damages.
18.2 Upon the Closing, Brokers are authorized to publicize the facts of this transacƟon.
19. No Ɵces.
19.1 Wheneve r any Party, Escrow Holder or Brokers herein shall desire to give or serve any noƟce, demand, request, approval, disapproval or other communicaƟon, each such communicaƟon shall be in wri Ɵng and shall be delivered personally, by messenger, or by mail, postage prepaid, to the address set forth in this agreement or by facsimile transmission, electronic signature, digital signature, or email.
19.2 Service of any such communica Ɵon shall be deemed made on the date of actual receipt if personally delivered, or transmi Ʃed by facsimile transmission, electronic signature, digital signature, or email. Any suc h communicaƟon sent by regular mail shall be deemed given 48 hours aŌer the same is mailed.
CommunicaƟons sent by United States Express Mail or overnight courier that guarantee next day delivery shall be deemed delivered 24 hours a Ōer delivery of the same to the Postal Service or courier. If suc h communicaƟon is received on aS a t u r d a y, Sunday or legal holiday, it shall be deemed received on the next business day.
19.3 Any Party or Broker hereto may from Ɵme to Ɵme, by noƟce in wriƟng, designate a di fferent address to which, or a different person or addiƟonal persons to whom, all communicaƟons are thereaŌer to be made.
20. Dura Ɵon of Offer.
20.1 If this offer is not accepted by Seller on or before 5:00 P.M. according to the Ɵme standard applicable to the city of on the date o f , it shall be deemed automa Ɵcally revoked.
20.2 The acceptance of this offer, or of any subsequent counteroffer hereto, that creates an agreement between the ParƟes as described in paragraph 1.2, shall be deemed made upon delivery to the other Party or either Broker herein of a duly executed wriƟng uncondiƟonally accepƟng the last outstanding o ffer or counteroffer.
21. LIQUIDATED DAMAGES. (This Liquidated Damages paragraph is applicable only if ini Ɵaled by both ParƟes).
THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT , THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. THEREFORE, IF, AFTER THE SATISFACTION OR WAIVER O
F ALL CONTINGENCIES PROVIDED FOR THE BUYER'S BENEFIT , BUYER BREACHES THIS AGREEMENT, SELLER SHALL BE ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF . UPON PAYMENT OF SAID SUM TO SELLER, BUYER SHALL BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, AND ANY ESCROW
CANCELLATIO
N FEES AND TITLE COMPANY CHARGES SHALL BE PAID BY SELLER.
Buyer's IniƟals Seller's IniƟals
22. ARBITRATION OF DISPUTES. (This ArbitraƟon of Disputes paragraph is applicable only if ini Ɵaled by both ParƟes.)
22.1 ANY CONTROVERSY AS TO WHETHER SELLER IS ENTITLED TO LIQUIDATED DAMAGES AND/OR BUYER IS ENTITLED TO THE RETURN OF THE DEPOSI T SHALL BE DETERMINED BY BINDING ARBITRATION ADMINISTERED BY THE JUDICIAL ARBITRATION &M E D I A T I ON SERVICES, INC. ("JAMS") IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES ("COMMERCIAL RULES"). ARBITRATION HEARINGS SHALL BE HELD IN THE COUNTY WHERE THE PROPERTY IS LOCATED.
SUCH CONTROVERSY SHALL BE ARBITRATED BY A SINGLE ARBITRATOR, APPOINTED UNDER THE COMMERCIAL RULES WHO HAS HAD AT LEAST 5 YEARS OF EXPERIENCE IN THE TYPE OF REAL ESTATE THAT IS THE SUBJECT OF THIS AGREEMENT. THE ARBITRATOR SHALL HEAR AND DETERMINE SAID CONTROVERSY IN
ACCORDANCE WITH APPLICABLE LAW OF THE JURISDICTION WHERE THE PROPE RTY IS LOCATED, THE INTENTION OF THE PARTIES AS EXPRESSED IN THIS AGREEMENT AND ANY AMENDMENTS THERETO, AND UPON THE EVIDENCE PRODUCED AT AN ARBITRATION HEARING. PREARBITRATION DISCOVERY SHALL BE PERMITTED IN ACCORDANCE WITH THE COMMERCIAL RULES OR STATE LAW APPLICABLE TO ARBITRATION PROCEEDINGS. THE ARBITRATOR SHALL RENDER AN AWARD WITHIN 30 DAYS AFTER THE CONCLUSION OF THE HEARING, WHICH MAY INCLUDE ATTORNEYS' FEES AND COSTS TO THE PREVAILING PARTY PER PARAGRAPH 16 HEREOF AND SHALL BE ACCOMPANIED BY A REASONED OPINION. THE FAILURE OR REFUSAL OF A PARTY TO PAY SUCH PARTY'S REQUIRED SHARE O
F THE DEPOSITS FOR ARBITRATOR COMPENSATION OR ADMINISTRATIVE CHARGES SHALL CONSTITUTE A WAIVER BY SUCH PARTY TO PRESENT EVIDENCE OR CROSSEXAMINE WITNESSES, BUT SUCH WAIVER SHALL NOT ALLOW FOR A DEFAULT JUDGMENT AGAINST THE NON PAYING PARTY IN THE ABSENCE OF EVIDENCE AND LEGAL ARGUMENT AS THE ARBITRATOR MAY REQUIRE FOR MAKING AN AWARD. JUDGMENT MAY BE ENTERED ON THE AWARD IN ANY COURT OF COMPETENT JURISDICTION NOTWITHSTANDING THE FAILURE OF A PARTY DULY NOTIFIED OF THE ARBITRATION HEARING TO APPEAR THEREAT.
22.2 BUYER'S RESORT TO OR PARTICIPATION IN SUCH ARBITRATION PROCEEDINGS SHALL NOT BAR SUIT IN A COURTO F COMPETENT JURISDICTION BY THE
BUYER FOR DAMAGES AND/OR SPECIFIC PERFORMANCE UNLESS AND UNTIL THE ARB ITRATION RESULTS IN AN AWARD TO THE SELLER OF LIQUIDATED DAMAGES, IN WHICH EVENT SUCH AWARD SHALL ACT AS A BA R AGAINST ANY ACTION BY BUYER FOR DAMAGES AND/OR SPECIFIC PERFORMANCE.
22.3 NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LA W AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL
, UNLESS SUCH RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION O F DISPUTES" PROVISION. IF YO U REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMEN T TO THIS ARBITRATION PROVISION IS VOLUNTARY .
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES A RISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO NEUTRAL ARBITRATION.
Buyer's IniƟals Seller's IniƟals
23. Miscellaneous.
23.1 Binding Effect.T h is Agreement shall be binding on the ParƟes without regard to whether or notp a r a g r a p hs 21 and 22 are iniƟaled by both of the ParƟes.
Paragraphs 21 and 22 are each incorporated into this Agreement only if ini Ɵaled by both ParƟes at the Ɵme that the Agreement is executed. Signatures to this Agreement accomplished by means of electronic signature or similar technology shall be legal and binding.
23.2 Applicable Law. This Agreement shall be governed by, and paragraph 22.3 is amended to refer to, the laws of the state in which the Property is located.
Any liƟgaƟon or arbitraƟon between the ParƟes hereto concerning this Agreement shall be iniƟated in the county in which the Property is located.
23.3 Time of Essence. Time is of the essence of this Agreement.
23.4 Counterparts.T h is Agreement may be executed by Buyer and Seller in counterparts, each of which shall be deemed an original, and all of which together shall consƟtute one and the same instrument. Escrow Holder , a Ōer verifying that the counterparts are iden Ɵcal except for the signatures, is authorized and instructed to combine the signed signature pages on one of the counterparts, which shall then consƟtute the Agreement.
23.5 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.
23.6 Conflict.A n y c o nflict between the printed provisions of this Agreement and the typewri Ʃen or handwriƩen provisions shall be controlled by the typewriƩen or handwriƩen provisions. Seller and Buyer must iniƟal any and all handwriƩen provisions.
23.7 1031 Exchange. Both Seller and Buyer agree to cooperate with each other in the event that either or both wish to par Ɵcipate in a 1031 exchange. Any party iniƟaƟng an exchange shall bear all costs of such exchange. The coopera Ɵng Party shall not have any liability (special o r otherwise) for damages to the exchanging Party in the event that the sale is delayed and/or that the sale otherwise fails to qualify as a 1031 exchange.
23.8 Days.U n l e ss otherwise speci fically indicated to the contrary, the word "days" as used in this Agreement shall mean and refer to calendar days.
24. Disclosures Regarding The Nature of a Real Estate Agency Rela Ɵonship.
24.1 The Par Ɵes and Brokers agree that their relaƟonship(s) shall be governed by the principles set forth in the applicable secƟons of the California Civil Code , as summarized in paragraph 24.2.
24.2 When entering into a discussion with ar e a le s t a t e a g e nt regarding ar e a le s t a t e t r a n s a cƟon, aB u y er or Seller should from the outset understand what type of agency relaƟonship or representaƟon it has with the agent or agents in the transac Ɵon. Buyer and Seller acknowledge being advised by the Brokers in this transacƟon, as follows:
(a) Seller's Agent. A Seller's agent under a lis Ɵng agreement with the Seller acts as the agent for the Seller only. A Seller's agent or subagent has the following affirmaƟve obligaƟons: (1) To the Seller: A fiduciary duty of utmos t care, integrity, honesty, and loyalty in dealings with the Seller. (2) To the Buyer and the Seller: a. Diligent exercise of reasonable skills and care in performance of the agent's du Ɵes. b. A duty of honest and fair dealing and good faith. c. A duty to disclos e all facts known to the agent materially affecƟng the value or desirability of the property that are not known to, or within the diligent aƩenƟon and observaƟon of, the ParƟes. An agent is not obligated to reveal to either Party any con fidenƟal informaƟon obtained from the other Party which does not involve the a ffirmaƟve duƟes set forth above.
(b) Buyer's Agent. A selling agent can, with a Buyer's consent, agree to act as agent for the Buyer only. In these situa Ɵons, the agent is not the Seller's agent, even if by agreement the agent may receive compensaƟon for services rendered, either in full or in part from the Seller. A n agent acƟng only for aB u y er has the following affirmaƟve obligaƟons. (1) To the Buyer: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Buyer . (2) To the Buyer and the Seller: a. Diligent exercise of reasonable skills and care in performance of the agent's duƟes. b. A duty of hones t and fair dealing and good faith. c. A duty t o disclose all facts known to the agent materially a ffecƟng the value or desirability of the property that are not known to, or within the diligent a ƩenƟon and observaƟon of, the ParƟes. A n agent is not obligated to reveal to either Party any confidenƟal informaƟon obtained from the other Party which does not involve the affirmaƟve duƟes set forth above.
(c) Agent RepresenƟng Both Seller and Buyer. A real estate agent , either acƟng directly or through one or more associate licensees, can legally be the agent of both the Seller and the Buyer in a transac Ɵon, but only with the knowledge and consent of both the Seller and the Buyer . (1) In a dual agency situa Ɵon, the agent has the following affirmaƟve obligaƟons to both the Seller and the Buyer: a. A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Seller or the Buyer. b. Other du Ɵes to the Seller and the Buyer as stated above in their respec Ɵve secƟons (a) or (b) of this paragraph 24.2. (2) In represen Ɵng both Seller and Buyer, the agent may not, without the express permission of the respecƟve Party, disclose to the other Party confidenƟal informaƟon, including, but not limited to, facts relaƟng to either Buyer's or Seller's financial posiƟon, moƟvaƟons, bargaining posiƟon, or other personal informaƟon that may impact price, including Seller's willingness to accept a price less than the lis Ɵ ng price or Buyer's willingness to pay a price greater than the price o ffered. (3) The above du Ɵes of the agent in ar e a l e s t a t et r a n s a cƟon do not relieve a Seller or Buyer from the responsibility t o protect their own interests. Buye r and Seller should carefully read all agreements to assure that they adequately express their understanding of the transac Ɵon. A real estate agent is a person quali fied to advise about real estate. If legal or tax advice is desired, consult ac o m p e t e nt professional. Buye r has the duty to exercise reasonable care to protect Buyer, including as to those facts about the Property which are known to Buyer or within Buyer's diligent a ƩenƟon and observaƟon. Both Seller and Buyer should strongl y consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transacƟon can be complex and subject to change. (d) Further Disclosures. Throughout this transac
Ɵ
on Buyer and Seller may receive more than one disclosure, depending upon the number of agents assisƟng in the transacƟon. Buye r and Seller should each read its contents each Ɵme it is presented, considering the relaƟonship between them and the real estate agent in this transacƟon and that disclosure. Buyer and Seller each acknowledge receipt of a disclosure of the possibility of mul Ɵple representaƟon by the Broker represenƟng that principal. Thi s disclosure may be part of a lisƟng agreement, buyer representaƟon agreement or separate document. Buye r understands that Broker represenƟng Buyer may also represent other poten Ɵal buyers, who may consider, make offers on or ul Ɵmately acquire the Property. Seller understands that Broker represen Ɵ ng Seller may also represent other sellers with compe Ɵ ng properƟes that may be of interest to this Buyer . Brokers have no responsibility with respect to any default or breach hereof by either Party. The Par Ɵes agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relaƟng to this transacƟon may be brought against Broker more than one year aŌer the Date of Agreement and that the liability (including court costs and aƩorneys' fees), of any Broker with respect to any breach of duty, error or omission rela Ɵng to this Agreement shall not exceed the fee received by such Broker pursuant to this Agreement; provided, however, that the foregoing limitaƟon on each Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker .
24.3 ConfidenƟal InformaƟon.B u y er and Seller agree to idenƟfy to Brokers as "Confiden Ɵ al" any communicaƟon or informaƟon given Brokers that is considered by such Party to be confidenƟal.
25. ConstrucƟon of Agreement. In construing this Agreement, all headings and Ɵtles are for the convenience of the Par Ɵes only and shall not be considered ap a rt of this Agreement. Whenever required by the context, the singular shall include the plural and vice versa. This Agreement shall not be construed as if p repared by one of the ParƟes, but rather according to its fair meaning as aw h o l e, as if both ParƟes had prepared it.
26. Addi Ɵonal Provisions.
AddiƟonal provisions of this o
ff
er, if any, are as follows or are aƩached hereto by an addendum or addenda consis Ɵng of paragraphs through . (If there are no addi Ɵonal provisions write "NONE".) ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY AIR CRE OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY , LEGAL EFFECT , OR TAX CONSEQUENCES OF THIS AGREEMENT OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS AGREEMENT.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PROPERTY. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY , THE INTEGRITY AND CONDITION OF ANY STRUCTURES AND OPERATING SYSTEMS, AND THE SUITABILITY OF THE PROPERTY FOR BUYER'S INTENDED USE.
WARNING: IF THE PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THIS AGREEMENT MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS O F THE STATE IN WHICH THE PROPERTY IS LOCATED.
NOTE:
1. THIS FORM IS NOT FOR USE IN CONNECTION WITH THE SALE OF RESIDENTIAL PROPERTY.
2. IF EITHER PARTY IS A CORPORATION, IT IS RECOMMENDED T HAT THIS AGREEMENT BE SIGNED BY TWO CORPORATE OFFICERS.
The undersigned Buyer offers and agrees to buy the Property on the terms and condiƟons stated and acknowledges receipt of a copy hereof.
BROKER
D
CG Strategies, Inc.
AƩn: Landis Graden
Title: Senior Vice President
Address: 4085 Campbell Avenue, Suite 150,
Menlo Park, CA 94025
Phone: 650.480.2235
Fax:
Email:
Federal ID No.:
Broker DRE License #:
Agent DRE License #:
Date:
BUYER
City of Fremont
By:
Name Printed:
Title:
Phone:
Fax:
Email:
By:
Name Printed:
Title:
Phone:
Fax:
Approved as to form:
City Attorney
Attest:
_______________
City Clerk
Email:
Address:
Federal ID No.:
27. Acceptance.
27.1 Seller accepts the foregoing o ffer to purchase the Property and hereby agrees to sell the Property to Buyer on the terms and condi Ɵons therein specified.
27.2 In consideraƟon of real estate brokerage service rendered by Brokers, Seller agrees to pay Brokers a real estate Brokerage Fee in a sum equal to % of the Purchase Price to be divided between the Brokers as follows: Seller's Broker % and Buyer's Broker %. This Agreement shall serve as an irrevocable instrucƟon to Escrow Holder to pay such Brokerage Fee to Brokers out of the proceeds accruing to the account of Seller at the Closing as per separate agreement .
27.3 Selle r acknowledges receipt of a copy hereof an d authorizes Brokers to deliver as i g n ed copy to Buyer .
NOTE: A PROPERTY INFORMATION SHEET IS REQUIRED TO BE DELIVERED TO BUYER BY SELLER UNDER THIS AGREEMENT.
BROKER
Jones Lang LaSalle, Inc.
AƩn: Sofi Choi
Title:
Address:
Phone:
Fax:
Email:
Federal ID No.:
Broker DRE License #:
Agent's DRE License #: 01445024
Date:
SELLER
By:
Name Printed: Marilyn Jayne Gordon
Title: Trustee of the Robert B. Gordon and
Marilyn J. Gordon Declaration of Trust
dated January 31, 1996
Phone: (480)419-4219 (H); (480)652-8611 (C)
Fax:
Email: [email protected]
By:
Name Printed: Shirley Ann Abreu
Title: Trustee of the Abreu Living Trust dated
November 3, 1988
Phone: (510)797-1849
Fax:
Email: [email protected]
Address:
Federal ID No.:
B
y:
Name Printed: Gregory Krause
Title:C o-Trustees of the Bishop 2001 Living Trust
Phone:( 4 15)706-2332
Fax:
Email:: [email protected]
By:
Name Printed: Eu gene Roeben
Title:C o-trustee of the Bishop 2001 Living Trust
Phone:( 5 59)688-1030
Fax:
Email: [email protected]
AIR CRE * h Ʃps://www.aircre.com * 213 6878777 * [email protected] NOTICE: No part of these works may be reproduced in any form without permission in wriƟng.