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ADDENDUM TO STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
THIS ADDENDUM dated as of July __, 2023 (this “ Addendum”), hereby supplements and amends that certain Standard Offer, Agreement and Escrow Instructions For Purchase of Real Estate (the “Form Agreement”) between the City of Fremont, a municipal corporation (“Buyer”), and Marilyn Jayne Gordon, as Trustee of the Robert B. Gordon and Marilyn J. Gordon Declaration of Trust dated January 31, 1996, Shirley Ann Abreu as Trustee of the Abreu Living Trust dated November 3, 1988, and Gregory Krause and Eugene Roeben as co -trustees of the Bishop 2001 Living Trust (“Seller”), covering that certain property located at 39180 Lib erty Street, Fremont, CA 94538 (the Form Agreement, as supplemented and amended by this Addendum, is referred to herein and in the Form Agreement as the "Agreement"). To the extent there is any inconsistency between the terms of this Addendum and the term s of the Form Agreement, the terms of this Addendum shall supersede and control in all respects.
28. Property. In addition to the items described in Section 2 of the Form Agreement, the Property specifically includes all of Seller’s right, title and interest in: (i) all rights, privileges and easements appurtenant to the real property described in Section 2.1 of the Form Agreement (the “Real Property”), which Real Property is more fully described on Exhibit A attached hereto, including without limitation interest in any development rights, entitlements, air rights, water, water rights and water stock relating to the Real Property; (ii) any and all intangible property (the “Intangible Property ”) arising out of or in connection with the ownership or operation of the Real Property, including all licenses, permits, approvals, certificates of occupancy and franchises issued by federal, state or local municipal authorities relating to the use, maintenance, occupancy or operation of the Real Property; (iii) all tangible personal property (the “ Personal Property”) located in, on, arising out of or in connection with the ownership or operation of the Real Property, including all equipment and machinery, but excluding personal property owned by tenants of the Real Property.
29. The following sentence is added to the end of Section 8.5 of the Form Agreement:
No recording fees or documentary transfer tax shall be due because Buyer is a public entity.
30. Due Diligence; Inspections.
At any time during Buyer’s 30-day inspection period set forth in Paragraph 9.1(a) through (e), 9.1(g),
9.1(h), 9.1(j), and 9.1(m) of the Form Agreement , as these periods may be extended pursuant to Section 30.f (the “ Contingency Period ”), Buyer, its agents and representatives (“ Buyer’s Representatives”), shall have the right at reasonable times and subject to rights of tenants, to enter upon the Property for the purpose of making non -intrusive inspections and tests specified in this agreement, pursuant to this Paragraph. No invasive or destructive tes ting shall be conducted, however, without Seller’s prior approval , which shall not be unreasonably withheld . Buyer shall pay all costs arising from any inspections of the Property and shall provide Seller with no less than forty eight (48) hour’s notice pr ior to entering the Property, and Seller shall have the right to have a representative present. Prior to any access of the Property by Buyer or any of Buyer’s Representatives, Buyer shall provide Seller with a certificate of insurance from Buyer and Buyer ’s Representatives accessing the Property or performing inspections (from an insurance carrier reasonably acceptable to Seller) evidencing the existence of (i) commercial general liability insurance, in an amount not less than $2,000,000 combined limits for any injuries, deaths or property damage sustained as a result of any one accident or occurrence, (ii) worker’s compensation insurance at statutory limits, and (iii) employer’s liability insurance in an amount not less than $1,000,000 for each accident, d isease per employee and disease policy limit. The commercial general liability insurance shall name Seller and any other designees as additional insured.
Additionally, Buyer, on behalf of Buyer and Buyer’s Representatives, hereby waives any claims against the Seller and Seller’s officers, members, directors, partners, employees, agents, contractors, and affiliates (collectively, “ Seller Parties ”), and their respective partners, members, officers, directors, employees, contractors, asset managers, agents, attorneys, beneficiaries, predecessors, successors and assigns for any injury to persons or damage to property arising out of any inspections, including, without limitation, any damage to the tools and equipment of Buyer or Buyer’s Representatives, all of which shall be brought onto the Property at the sole risk and
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responsibility of Buyer and Buyer’s Representatives; provided, however, the foregoing shall not apply to the extent of claims arising from the negligence or willful misconduct of Seller or the Seller Parties.
Buyer shall, at its cost and expense, comply with all applicable federal, state and local laws, rules, statutes, regulations, ordinances or policies in conducting any inspections. Buyer shall permit Seller’s consultants, agents, engineers, inspectors, contractors or employees to accompany Buyer and Buyer’s Representatives during all such inspections.
a. If Buyer fails to notify Seller and Escrow Holder of its approval or disapproval of the matters set forth in Section 9.1 (a) through ( e ), (g), (h), (j) and (m) prior to the expiration of the Contingency Period (an “Approval Notice” or “Disapproval Notice,” respectively), Seller shall provide notice to Buyer of its failure to provide an Approval Notice or Disapproval Notice, and Buyer shall have two (2) business days from receipt of Seller’s notice to provide an Approval Notice or Disapproval Notice to Seller and Escrow Holder. If Buyer provides a Disapproval Notice prior to the expiration of the Contingency Period or within the time set forth in the preceding sentence, or fails to timely respond to Seller’s notice described in the preceding sentence (which shall be deemed B uyer’s disapproval of the Property), such disapproval shall act to terminate this Agreement and the Escrow created pursuant hereto, in which event Buyer and Seller hereby direct Escrow Holder to pay the Deposit (together with accrued interest thereon) to Buyer and this Agreement shall have no further force and effect (except for any provision hereof expressly providing that the provision survives termination hereof), and Buyer and Seller shall have no liability or obligation hereunder whatsoever, except as otherwise expressly provided for herein. Buyer shall also have the right, on or before the expiration of the Contingency Period, to request in writing that Seller cure, to Buyer’s reasonable satisfaction prior to the Close of Escrow, any condition related to the Property to which Buyer objects, and in the event that Seller notifies Buyer in writing that Seller is unable or unwilling to cure any such disapproved condition, Buyer shall have five (5) days after receipt of Seller’s notice to either waive Buyer’s prior objection to the disapproved condition or terminate this Agreement. If, prior to the expiration of the Contingency Period, Buyer delivers an Approval Notice to Seller and Escrow Holder, such approval shall satisfy this condition and the Deposit shall be nonrefundable to Buyer.
b. 9.1(f) of the Form Agreement is deleted and replaced with the following:
“Escrow Holder shall cause a current commitment for title insurance or preliminary report (" Title Commitment") concerning the Property issued by the Title Company, as well as legible copies of all documents referred to in the Title Commitment (" Underlying Documents "), and a scaled and dimensioned plot showing the location of any easements to be delivered to Buyer within five (5) days following the Date of Agreement. Buyer has ten (10) days from the Date of Agreement or receipt of the Title Commitment, the Underlying Documents and the plot plan, whichever is later ( “Title Approval Date”), to give Seller and Escrow Holder written notice (“Buyer’s Title Notice”) of Buyer’s approval, disapproval or conditional approval of any matters shown on the Title Commitment. If Buyer does not timely provide Buyer’s Title Notice, Seller shall provide notice to Buyer of its failure to provide Buyer’s Title Notice and Buyer shall have two (2) business days from receipt of Seller’s notice to provide Buyer’s Title Notice. If Buyer fails to timely respond to Seller’s notice (which shall be deemed Buyer’s disapproval of the condition of title of the Property), such disapproval shall act to terminate this Agreement. If Buyer’s Title Notice disapproves or conditionally approves any matter of title shown in the Title Commitment, Seller shall give Buyer written notice (“Seller’s Title Notice”) not later five (5) days after Seller’s receipt of Buyer’s Title Notice of those disapproved or conditionally approved title matters, if any, which Seller agrees to either eliminate from the Title Commitment as exceptions to title to the Property or to ameliorate to Buyer’s satisfaction by the Closing Date. If Seller does not elect to eliminate or ameliorate to Buyer’s satisfaction any disapproved or conditionally approved title matters, or if Buyer disapproves of Seller’s Title Notice, or if Seller is unable to eliminate or ameliorate to B uyer’s satisfaction all such disapproved matters prior to the Closing Date, then Buyer shall elect by written notice to Seller and Escrow Holder on or before the date which is two (2) business days after Buyer’s receipt of Seller’s Title Notice, to: (1) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; or (2) terminate this Agreement and the Escrow created pursuant hereto, in which event, Escrow Holder shall disburse the then amount of the Deposit together with a ny interest accrued thereon (less the $100 independent consideration) to Buyer. At Closing, title to the Property shall be conveyed to Buyer by
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Seller subject only to the following matters: (i) a lien to secure payment of real estate taxes and assessments, not delinquent; (ii) the lien of supplemental real estate taxes; and (iii) all exceptions that are disclosed in the Title Commitment which are approved by Buyer in writing in accordance with this Agreement. The disapproval by Buyer of any monetary encum brance, which by the terms of this Agreement is not to remain against the Property after the Closing, shall not be considered a failure of this contingency, as Seller shall have the obligation, at Seller's expense, to satisfy and remove such disapproved monetary encumbrance at or before the Closing.” c. Buyer shall indemnify, defend with counsel reasonably acceptable to Seller and hold Seller harmless from all claims (including claims of liens for work or labor performed or materials or supplies furnished), demands, liabilities, losses, damages, costs, fees and expenses, including Seller’s reasonable attorneys’ fees, costs and expenses, incurred by Seller .and arising out of the acts or activities of Buyer or Buyer’s Representatives in, on or about the Proper ty or arising in connection with any inspections performed under this Agreement, or otherwise from the exercise by Buyer or Buyer’s Representatives of the right of access under this Agreement. Without limiting the generality of the foregoing, Buyer shall p romptly repair, at its sole cost and expense, any damage to the Property to the extent directly caused by any inspection or entry in, on or around the Property, provided, however, Seller shall have the right to supervise any such repair. Notwithstanding anything contained in this Agreement, in no event shall Buyer be liable for, and no indemnification obligation of Buyer contained in this Agreement shall apply to any claims, losses, injuries, damages, liabilities, liens, costs or expenses to the extent arising out of (i) pre-existing conditions, (ii) the mere discovery of adverse matters by Buyer or Buyer’s Representatives, and/or (iii) the fraud, negligence or willful misconduct of Seller or any of the Seller Parties. Buyer’s obligations under this Paragra ph shall survive the Closing or the earlier termination of this Agreement. d. Buyer acknowledges that Seller has provided Buyer with copies of certain due diligence documents in Seller’s possession and control by way of a Box link (collectively, the " Property Documents"), which Property Documents are more fully described on Exhibit B attached hereto . Except as expressly stated herein, Seller makes no representation or warranty as to the truth or accuracy of any materials, data or information contained in any opinions, reports, documents, or data generated by any third party ("Third Party Materials") and delivered by Seller to Buyer in connection with the transaction contemplated hereby. Buyer acknowledges and agrees that all such Third Party Materials delivered by Seller to Buyer in connection with the transaction contemplated hereby are provided to Buyer as a convenience only and that any reliance on or use of such Third Party Materials by Buyer shall be at the sole risk of Buyer, except as otherwise expressly stated herein. Without limiting the generality of the foregoing provisions, Buyer acknowledges and agrees that (a) any environmental or other Third Party Materials with respect to the Property which are delivered by Seller to Buyer shall be for general informational purposes only, (b) Buyer shall not have any right to rely on any such Third Party Materials delivered by Seller to Buyer, but rather will rely on its own inspections and investigations of the Property and any reports commissioned by Buyer with respect thereto, and (c) neither Seller, any affiliate of Seller nor the person or entity which prepared any such Third Party Materials delivered by Seller to Buyer shall have any liability to Buyer for any inaccuracy in or omission from any Third Party Materials.
e. Buyer shall have the right to extend the Contingency Period for a period of fifteen (15) days if Buyer discovers a Major Defect (as defined below) during the performance of its inspections or if its Phase 1 environmental report documents a recognized environmental condition (“ REC”) and recommends further testing to evaluate such REC. As used herein, “Major Defect” means a defect in the physical condition of the Building or any building component or system which is reasonably expected to cost more than fifty thousand dollars ($50,000) to repair. If Buyer wishes to extend the Contingency Period pursuant to the foregoing, Buyer must deliver written notice of such extension on or prior to expiration of the Contingency Period.
f. If Closing occurs, Buyer shall be entitled to a credit in the amount of Forty Thousand Dollars ($40,000.00) (the “ Credit”) which may be applied toward the out of pocket costs and expenses of Buyer’s diligence and inspection costs, including without limitation its Phase 1 report, as evidenced by invoices submitted to Escrow. Any remaining balance of such Credit shall be applied toward the
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commission due to Buyer’s Broker, if and only if, Closing occurs. If Closing does not occur, Buyer shall not be entitled to any Credit.
31. AS-IS SALE. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 12 OF THE FORM AGREEMENT, SELLER HAS NOT MADE ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUAR ANTEES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING WITHOUT LIMITATION, THE WATER, SOIL, AND GEOLOGY, AND ANY IMPROVEMENTS THEREON; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USE S WHICH BUYER MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE
PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (F) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (G) THE COST TO DEVELOP THE PROPERTY; (H) COMPLIANCE WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVER NMENTAL AUTHORITY OR BODY, INCLUDING
WITHOUT LIMITATION ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS,
RULES, REGULATIONS, ORDERS OR REQUIREMENTS, OR THE DISPOSAL OR EXISTENCE, IN OR ON THE PROPERTY, OF ANY HAZARDOUS SUBSTANCES OR MATERIALS ; OR (I) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY . BUYER FURTHER ACKNOWLEDGES AND AGREES
THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, BUYER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER AND AGREES THAT ANY INFORMATION PROVIDED
OR TO BE PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE PROPERTY, WAS
OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 12 OF THE FORM AGREEMENT MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMA TION. SELLER IS NOT LIABLE OR BOUND IN
ANY MANNER BY ANY OR AL OR WRITTEN STATEM ENTS, REPRESENTATIONS OR INFO RMATION
PERTAINING TO THE PR OPERTY, OR THE OPERA TION THEREOF, FURNIS HED BY ANY REAL ESTATE BROKER, AGENT , EMPLOYEE OR OTHER REPRESENTATIVE. EXC EPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN PARAGRAPH 12 OF THE FORM
AGREEMENT, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN “AS-IS” CONDITION AND BASIS WITH A LL FAULTS. ADDITIONALLY, PARAGRAPH 12.1 IS HEREBY AMENDED TO REPLACE 3 YEARS WITH EIGHTEEN (18) MONTHS.
a. Buyer hereby agrees that Seller and Seller Parties, and their respective partners, members, officers, directors, employees, contractors, asset managers, agents, attorneys, beneficiaries, predecessors, successors and assigns (collectively, the “ Released Parties”) shall be, and are hereby, fully and forever released and discharged from any and all liabilities, losses, claims (including third party claims), demands, damages (of any nature whatsoever), causes of action, costs, penalties, fines, judgments, attorneys’ fees, consultants’ fees and costs and experts’ fees (collectively, the “Claims”) with respect to any and all Claims, whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with the Property, this Agreement or the transactions contemplated hereby. Buyer hereby waives and agrees not to commence any action, legal proceeding, cause of action or suits in law or equity, of whatever kind or nature, directly or indirectly, against the Released Parties or their agents in connection with Claims described above and expressly waives the provisions of Section 1542 of the California Civil Code which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER,
WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
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and all similar provisions or rules of law. Buyer elects to and does assume all risk for such Claims heretofore and hereafter arising, whether now known or unknown by Buyer. Seller has given Buyer material concessions regarding this transaction in exchan ge for Buyer agreeing to the provisions of this Section. Buyer has initialed this Section to further indicate its awareness and acceptance of each and every provision hereof. The provisions of this Section shall survive the Closing and shall not be deemed merged into any instrument or conveyance delivered at the Closing.
Buyer’s Initials: _________
Notwithstanding anything contained in this Agreement, in no event shall Buyer disclaim, waive or release Seller from any (i) fraud, gross negligence or wil lful misconduct, (ii) breach of an express representation, warranty or covenant which survives the closing or termination of this Agreement, or (iii) covenant or obligation contained in any document, agreement or instrument delivered by Seller at or through Closing.
b. When “Seller’s knowledge”, or comparable language is used in Paragraph 12 of the Form Agreement or in this Addendum, the same shall be deemed to refer to the knowledge of Jennifer Bishop-Krause (“Seller’s Representative ”), or matters of which Seller’s Representative should have knowledge after a reasonable inquiry; provided that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of Seller’s Representative, or any other partner, officer or employee of Seller, on account of any breach of any representation or warranty made by Seller herein. .
32. POST CLOSING LIABILI TY. SELLER SHALL HAVE NO LIABILITY FOR, BUYER AND ITS
SUCCESSORS AND ASSIGNS SHALL BE DEEMED TO HAVE WAIVED AND RELEASED SELLER FROM
AND AGAINST ANY AND ALL CLAIMS ARISING FROM ANY BREACH OR ALLEGED BREACH BY OR ON THE PART OF SELLER (COLLECTIVELY, “ BUYER’S POST-CLOSING CLAIMS”), UNLESS BUYER
HAS DELIVERED TO SELLER WRITTEN NOTICE TH AT BUYER IS SEEKING RECOURSE WITH RESPECT THERETO (THE “ RECOURSE NOTICE ”) AFTER THE CLOSE OF ESCROW BUT ON OR BEFORE THE DATE THAT IS TWELVE (12) MONTHS FOLLOWING THE CLOSE OF ESCROW AND BUYER HAS FILED SUIT WITH RESPECT THERETO ON OR BEFORE SUCH DATE. THE RECOURSE OF BUYER AND ITS SUCCESSORS OR ASSIGNS AGAINST SELLER WITH RESPECT TO BUYER’S
POST-CLOSING CLAIMS SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED FIVE HUNDRED THOUSAND ($ 500,000.00) IN THE AGGREGATE (PLUS ANY AWARD FOR PROFESSIONAL FEES),
PROVIDED HOWEVER, BUYER SHALL HAVE NO RIGHT TO FILE SUIT FOR RECOURSE WITH RESPECT TO BUYER’S POST-CLOSING CLAIMS UNLESS AND UNTIL THE AGGREGATE AMOUNT OF SUCH RECOURSE EXCEEDS TWENTY THOUSAND DOLLARS ($20,000) (IN WHICH EVENT THE FULL AMOUNT OF SUCH CLAIMS SHALL BE ACTIONABLE). In no event shall Seller be liable to Buyer for any consequential, exemplary, punitive, or any other type of damages (other than dir ect damages) or for unrealized expectations or other similar claims in respect of any such claims, and in every case Buyer’s recovery for any claims shall be net of any insurance proceeds and any indemnity, contribution, or other similar payment recovered or recoverable by Buyer from any insurance company or other third party.
33. Natural Hazard Disclosure. Buyer and Seller acknowledge that Seller may be required to disclose if any of the Property lies within the following natural hazard areas or zones: (i) a special flood hazard area designated by the Federal Emergency Management Agency; (ii) an area of potential flooding; (iii) a very high fire hazard severity zone; (iv) a wild land area that may contain substantial forest fire risks and hazards; (v) an earthquake fault or special studies zone; or (vi) a seismic hazard zone. Buyer acknowledges that Seller will employ the services of Disclosure Source (“ Natural Hazard Expert ”) to examine the maps and other information specifically made available to the public by government agencies and to report the results of its examination to Buyer in writing. The written report prepared by the Natural Hazard Expert regarding the results of its examination fully and completely discharges Seller from its disclosu re obligations referred to herein, and, for the purposes of this Agreement, the provisions of Civil Code Section 1103.4 regarding the non-liability of Seller for errors and/or omissions not within its personal knowledge shall be deemed to apply, and the Natural Hazard Expert shall be deemed to be an expert dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above.
34. The following shall be inserted at the end of Paragraph 9.1(h) of the Form Agreement:
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At least ten (10) days prior to the expiration of the Contingency Period, Seller shall provide Buyer with an Estoppel Certificate, 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 Certificate. If any tenant fails or refuses to provide an Estoppel Cer tificate then Seller shall complete and execute an Estoppel Cer tificate for that tenancy.
35. The following shall be inserted as the first sentence of Paragraph 9.1(o) of the Form Agreement:
“There shall have been no Material Change, or Seller shall have satisfied itself with respect to any Material Change.”
36. The following shall be inserted as Paragraph 9.1(q) of the Form Agreement:
“There shall have been no Material Representation Change, or Seller shall have satisfied itself with respect to any Material Representation Change.”
37. All closing costs shall be allocated in accordance with the custom and practice of the county in which the Property is located. Rents shall be prorated as of the close of escrow and all security deposits shall be transferred to Buyer through escrow.
38. The following shall be inserted at the end of Section 10.2(a) of the Form Agreement : The grant deed shall be in the form of the Grant Deed attached hereto as Exhibit C (“Grant Deed”).
39. Section 10.2(b) and (c) of the Form Agreement are deleted and replaced with the following:
“(b) Intentionally deleted.
(c) An assignment of any Existing Leases and Other Agreements Buyer elects to assume and have assigned to Buyer. The assignment of leases shall be in substantially the form of the Assignment and Assumption of Leases attached hereto as Exhibit D (“Assignment and Assumption of Leases”). The assignment of any Other Agreements shall be in substantially the form of the Assignment and Assumption of Contracts attached hereto as Exhibit E (“Assignment and Assumption of Contracts”).”
40. The following shall be inserted at the end of Section 10.2(f) of the Form Agreement: “The bill of sale shall be in the form of the Bill of Sale attached hereto as Exhibit F.”
41. Paragraphs 10.3(b) through (e) of the Form Agreement are deleted and replaced with the following:
“(b) Intentionally deleted.
(c) The Assignment and Assumption of Leases, duly executed by Buyer. (d) The Assignment and Assumption of Contracts, duly executed by Buyer. (e) Intentionally deleted.
(g) A Certificate of Acceptance of the Grant Deed, in the form attached hereto as Exhibit G.
42. The following shall be inserted at the end of Paragraph 11.1 of the Form Agreement:
“The portion of current property taxes which would otherwise be allocable to the period after the close of Escrow shall not be allocated, as Buyer is exempt from payment of property taxes. Accordingly, Escrow Agent shall pay and charge Seller for that port ion of current property taxes and assessments and any penalties and interest thereon allocable to the period prior to the close of Escrow. Escrow Agent shall pay and charge Seller for any unpaid delinquent property taxes and/or penalties and interest ther eon, and for any delinquent assessments or bonds against the Property. Seller shall have the sole right, after Close of Escrow, to apply to the Alameda County Tax Collector for a refund of any excess property taxes which have been paid by Seller with resp ect to the Property. This refund would apply to the period after Buyer's acquisition of the Property, pursuant to Revenue and Taxation Code Section 5096.7 .”
43. The following shall be inserted at the end of Paragraph 12.1(i) of the Form Agreement:
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“Seller shall in all events at least ten (10) days prior to the Closing (and the Closing shall be extended if necessary to give Buyer ten (10) days to review such Material Change), give written notice of such Material Change to Buyer.”
44. The following shall be added to Paragraph 12.1 of the Form Agreement:
“(m) Seller has not received notice of any violation of any law or municipal ordinance, order, or requirement noted or issued against the Property by any governmental authority having jurisdiction over the Property, that has not been cured, corrected, or waived.
(n) A list of the Existing Leases, true, correct, and complete copies of which have been delivered to Buyer.
Except as otherwise provided for in Exhibit H to this Addendum, (i) the Existing Leases are in good standing and in full force and effect in accordance with their respective terms; (ii) the Existing Leases have not been modified, amended, terminated, renewed, or extended, except as set forth in the applicable Existing Lease; (iii) none of the parties to any Existing Lease is in default of any of its obligations thereunder and no event has occurred that, with the giving of notice or passage of time, or both, would constitute a default thereunder; and (iv) there are no leasing or other commission s, fees, or other amounts due or owing, to any third party, or that may become due and owing to any third party after the Closing, in connection with any Existing Leases or any existing listing or brokers' agreements related thereto (including with respect to any renewal of any Existing Lease, extension of the term of any Existing Lease, any expansion of any leased premises, or any right of any tenant under any Existing Lease to purchase the Property.
(o) Seller has not received any written notice or infor mation regarding any condemnation, environmental, zoning, sewer moratorium, or other land -use regulation proceedings, either instituted or planned to be instituted that would materially and adversely affect the use and operation of the Property .
(p) If, prior to the Closing, Seller becomes aware of any fact or circumstance that would (i) materially change a representation or warranty of Seller in this Agreement (“ Material Representation Change ”), then Seller shall promptly, and in all events at least ten (10) days prior to the Closing (and the Closing shall be extended if necessary to give Buyer ten (10) days to review such Material Representation Change), give written notice of such Material Representation Change to Buyer.
(q) The Property Documents delivered to Buyer pursuant to this Agreement or in connection with the purchase and sale contemplated hereby are all of the documents or agreements affecting the Property, are complete and accurate originals or copies, and are in full force and effect, wi thout default by Seller, and, to Seller's knowledge, without default by any other party.”
45. The following shall be added as a new Paragraph 12.5 of the Form Agreement:
“Seller hereby indemnifies and holds Buyer harmless from any and all losses, damages, costs, liabilities and expenses, including, without limitation, reasonable attorneys’ fees (and those fees incurred upon any appeals) incurred or suffered by Buyer as a result of the breach by Seller of any of the representations and warranties contained in this Agreement (subject to the limitations set forth in Paragraph 32), the failure by Seller to comply with any of the covenants contained in this Agreement or any other default by Seller under the terms of this Agreement.”
46. Paragraph 21 of the Form Agreement is amended and restated as follows:
Liquidated Damages . SELLER AND BUYER AGREE THAT, IF THE PURCHASE AND SALE OF THE
PROPERTY IS NOT COMPLETED IN ACCORDANCE WITH THIS AGREEMENT AS A DIRECT RESULT
OF A MATERIAL DEFAULT BY BUYER UNDER THIS AGREEMENT, S ELLER SHALL BE ENTITLED
TO TERMINATE THIS AGREEMENT AND UPON TERMINATION THE DEPOSIT SHALL BE PAID TO SELLER AS LIQUIDATED DAMAGES AND AS SELLER’S SOLE AND EXCLUSIVE REMEDY. SELLER
AND BUYER AGREE THAT, UNDER THE CIRCUMSTANCES EXISTING AS OF THE EFFECTIVE DATE,
ACTUAL DAMAGES MAY BE DIFFICULT TO ASCERTAIN AND THE DEPOSIT IS A REASONABLE
ESTIMATE OF THE DAMAGES THAT WILL BE INCURRED BY SELLER IF BUYER MATERIALLY
DEFAULTS UNDER OR MATERIALLY BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY IN ACCOR DANCE WITH THIS AGREEMENT. SUCH RETENTION OF THE DEPOSIT
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BY SELLER IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF SECTION 3275 OR SECTION 3369 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR PROVISION.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, BUYER SHALL NOT BE
IN DEFAULT WITH RESPECT TO ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT OTHER
THAN A FAILURE TO CLOSE ON THE CLOSING DATE UNLESS AND UNTIL BUYER RECEIVES
NOTICE FROM SELLER SPECIFYING SUCH DEFAULT AND BUYER FAILS TO CURE SUCH DEFAULT WITHIN FIVE (5) BUSINESS DAYS AFTER RECEIPT OF SUCH NOTICE. BY PLACING ITS INITIALS
BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE
ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED,
AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. NOTWITHSTANDING ANYT HING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, IN NO EVENT WHATSOEVER WILL EITHER BUYER OR SELLER BE ENTITLED TO
RECOVER FROM THE OTHER ANY PUNITIVE, CONSEQUENTIAL OR SPECULATIVE DAMAGES PURSUANT TO THIS AGREEMENT.
SELLER’S INITIALS: _____ BUYER’S INITIALS: _____
47. Seller Default. Seller shall be in default under this Agreement if Seller breaches the terms of this Agreement and fails to cure such breach within five (5) days of receipt of notice from Buyer. In the event Seller defaults under this Agreement and Closing does not occur, as Buyer’s sole and exclusive remedy, Buyer shall have the right to either (a) sue Seller for specific performance (without the need to post a bond in connection therewith but Buyer shall in a position, ready, willing and able, as required by law, to fully perform all of its obligations under this Agreement, including without limitation, delivery to Escrow Agent of the Purchase Price) provided Buyer commences such action for specific performance within sixty (60) days after the expected Closing Date, o r (b) terminate the Agreement and receive an immediate return of the Deposit.
Buyer agrees that its failure to timely commence such an action for specific performance within such sixty (60) day period shall be deemed a waiver by it of its right to commenc e an action for specific performance as well as a waiver by it of any right it may have to file or record a notice of lis pendens or notice of pendency of action or similar notice against any portions of the Property. In no event may Buyer seek, and Buyer hereby waives and releases Seller from any claim for damages, if either the transfer of the Property does not occur or if the transfer of the Property does occur pursuant to an action for specific performance.
This Paragraph 47 shall only limit Buyer’s rights and remedies in the event that Closing does not occur due to Seller’s breach. Subject to the limitation s set forth in Paragraph 32, Buyer shall have all rights and remedies available to it at law or equity with respect to any other breach by Seller including the rights set forth in Paragraph 12.5.
48. Personal Property. The Property shall include, at no additional cost to Buyer, Seller’s personal property, furniture and furnishings, except for that certain office furniture belonging Alan Bishop which s hall be removed by Seller prior to Closing. Notwithstanding anything to the contrary in the Agreement, title to any personal property owned or leased by any tenant of the Property is not included in the sale of the Property hereunder.
49. The following sentence shall be added to the end of Paragraph 19.1. Notices shall be provided to Buyer and Seller at the following addresses:
To Buyer:
City of Fremont
Attn: Christina Briggs, Assistant City Manager
300 Capitol Ave
Fremont, CA 94538
and
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City of Fremont
Attn: Donovan Lazaro, Economic Development Director
300 Capitol Ave
Fremont, CA 94538
Email: [email protected]
With a Copy to:
City of Fremont
Rafael Alvarado, Jr., City Attorney
300 Capitol Ave
Fremont, CA 94538
Email: [email protected]
and
Burke, Williams & Sorensen LLP
Attn: Jerry Ramiza and Meghan Nihan
1999 Harrison Street, Suite 1650
Oakland, CA 94612
Email: [email protected]
[email protected]
and
DCG Strategies, Inc.
Attn: Landis Graden, Senior Vice President
Address: 4085 Campbell Avenue, Suite 150,
Menlo Park, CA 94025
Email: [email protected]
To Seller:
[Seller insert]
50. Business Days. As used herein, the term “Business Day” means any day that is not a Saturday, Sunday or legal holiday for national banks in the city in which the Property is located; provided however, that if the expected Closing Date is scheduled to occur on a date on which the clerk’s office or office of public records and/or Escrow Agent are not open for business as a result of the coronavirus referred to as COVID -19, or, as a direct result of governmental actions taken in connection with such virus, it is otherwise not reasonably feasible for the employees, agents and representatives of Buyer or Seller to consummate Closing on the expected Closing Date, in which case the expected Closing Date shall automatically be extended to the next Business Day on which such offi ces are open for business and it is reasonably feasible for the employees, agents and representatives of Seller and Buyer to consummate Closing.
51. Office of Foreign Assets Control (“OFAC”) Representations. Seller and Buyer (each, a "Representing Party") each represents and warrants to the other: (i) that neither the Representing Party nor any person or entity that directly owns a 10% or greater equity interest in it nor any of its officers, directors or managing members is a person or entity (each, a " Prohibited Person ") with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (" OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Perso ns List) or under any statute, executive order (including Executive Order 13224 (the "Executive Order") signed on September 24, 2001 and entitled "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action, (ii) that the Representing Party's activities do not violate the International Money Laundering Abatement and Financial Anti -Terrorism Act of 2001 or the regulations or orders promulgated thereunder (as amended from time to time, the "Anti- Money Laundering Act"), and (iii) that throughout the term of this Agreement the Representing Party shall comply with the Executive Order and with the Anti -Money Laundering Act. Calculation of Time. Unless otherwise specified, in computing any period of time described in the Agreement, the day of the act or event
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after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is a Saturday, Sunday or legal holiday under the laws of the State in which the Property is located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday.
52. Confidentiality of Terms of Agreement . Except as required by statute, rule, regulation or legal process, Seller and Buyer shall each keep the terms of the Agreement, and all documents exchanged by the parties in connection with the transaction, strictly confidential and shall not disclose or permit their employees or agents to disclose the terms of the transaction, except to their respective attorneys, accountants, financial advisors or consultants, real estate brokers, actual and prospective len ders, and actual and prospective investors, or to enforce the terms of this Agreement. The foregoing confidentiality requirements shall not apply to any information or matter that is or becomes generally available to the public. For the avoidance of doubt, the Parties acknowledge and agree that (a) the Ralph M. Brown Act (California Government Code Sections 54950 to 54963 ) requires Buyer to submit the Agreement to the City Council for approval and include the Agreement in a publicly available agenda prior to City approval and (b) the Agreement will become public record once the Agreement is finalized and the documents exchanged in connection with the transaction will become public record after Closing pursuant to the California Public Records Act (California Government Code Sections 7920.000-7931.000).
53. Escrow Cancellation Fees. Notwithstanding anything in the Form Agreement to the contrary, the party who has defaulted under this Agreement shall pay all escrow cancellation fees. Where neither party is in default, such fees shall be split evenly between the parties.
54. Date of Performance . If the date of performance of any obligation or the last day of any time period (including, without limitation, the giving or effectiveness of notice) provided for herein should fall on a Saturday, Sunday or day on which banking institutions in the State of California are obligated by law or executive order to close (all of the foregoing collectively referred to herein as “Holiday”), then said obligation shall be due and owing, and said time period shall expire, on the first day thereafter which is not a Holiday.
The term “Business Day” shall mean any day of the week that is not a Holiday.
55. Counterparts / Electronic Signatures. This Agreement and any supplement, addendum, or modification, including any photocopy or facsimile, may be executed in two or more counterparts, all of which consti tute the same writing. Seller and Buyer each (a) has agreed to permit the use from time to time, where appropriate, of telecopy or other electronic signatures in order to expedite the transaction contemplated by this Agreement, (b) intends to be bound by its respective telecopy or other electronic signature, (c) is aware that the other will rely on the telecopied or other electronically transmitted signature, and (d) acknowledges such reliance and waives any defenses to the enforcement of this Agreement and the documents affecting the transaction contemplated by this Agreement based on the fact that a signature was sent by telecopy or electronic transmission only. Notwithstanding that the Form Agreement has places for the parties to ‘initial’, neither party shall be required to initial the Form Agreement , or the Agreement. Neither party shall be required to initial the bottom of any page of the Form Agreement which requires an initial.
[Remainder of Page Intentionally Blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the date first set forth above.
SELLER BUYER
_________________________________
Marilyn Jayne Gordon, as Trustee of the Robert
B. Gordon and Marilyn J. Gordon Declaration of
Trust dated January 31, 1996
___________________________________
Shirley Ann Abreu as Trustee of the Abreu
Living Trust dated November 3, 1988
______________________________________
Gregory Krause, co-trustee of the Bishop 2001
Living Trust
______________________________________
Eugene Roeben, co-trustee of the Bishop 2001
Living Trust
City of Fremont, a municipal
corporation
By: __________________
Name: ________________
Its: ___________________
Approved as to form:
City Attorney
Attest:
City Clerk
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Exhibit A
Legal Description
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FREMONT IN THE COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
Parcel 2, Parcel Map 3153, filed April 25, 1980, Book 116 of Parcel Maps, Pages 86 and 87, Alameda County.
APN: 501-1130-050-00
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Exhibit B
Property Documents
- Preliminary title report (through escrow)
- Natural Hazards Report (through escrow)
- Copies of all tenant leases
- Offering Memorandum & Financials and Rent Roll Summary - Latest Rent Roll 2023
- Rent Roll 2020-2022
- Profit and Loss Statements 2020, 2021, 2022
- Property Tax Bill 2020-2021, 2021-2022, 2022-2023
- Assa Abloy contract – maintenance of automatic doors
- Environment Control letter – for janitorial services
- Ontario contract – HVAC
- Highland documents – roof
- Conveyance permit
- Kings contract – communications
- SF Elevator contract
- KBA contract – copy machine lease thru Feb 2024 for 2nd floor usage
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Exhibit C
Grant Deed
[Attached]
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EXHIBIT D
Assignment and Assumption of Leases
[Attached]
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EXHIBIT E
Assignment and Assumption of Contracts
[Attached]
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EXHIBIT F
Bill of Sale
[Attached]
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EXHIBIT G
Certificate of Acceptance
[Attached]
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EXHIBIT H
List of Existing Leases
[to be inserted]