AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS (“Agreement”) is made and entered into as of November 15, 2022 (“Effective Date”) by and between the City of Fullerton, a California municipal corporation (“City” and “Seller” herein), the City of Fullerton in its capacity as the Successor Agency to the Fullerton Redevelopment Agency, a public body, corporate and politic (“Agency”), and NFRED LLC, a California limited liability company (“Buyer”). City/Seller, Agency, and Buyer are sometimes referred to in this Agreement, each individually, as a “Party,” or collectively, as the “Parties.” R E C I T A L S:
A. Seller is the owner of that certain real property located in the City of Fullerton, County of Orange, State of California, comprising approximately 48,170 sq. ft. with Assessor’s Parcel Numbers (“APN(s)”) 029-033-09, [029-033-10], 029-033-27, and 029-033-28, more particularly described in the legal description attached hereto as Exhibit “A” and incorporated herein by this reference (the “Property”). The Property is a parking lot and a “public parking area” permitted use under the City’s C-3 Zone.
B. The Property was transferred to the City from the Agency pursuant to the Long-Range Property Management Plan (“LRPMP”) governing the real properties of the former Fullerton Redevelopment Agency (“RDA”), which was dissolved and wound-down pursuant to the Redevelopment Dissolution Law, Health and Safety Code section 34170 et seq. (the “Dissolution Law”). In accordance with the Dissolution Law, the Agency prepared, pursuant to Health and Safety Code section 34191.1 et seq., the LRPMP, which was approved by the California Department of Finance (“DOF”) on or about December 22, 2015, pursuant to Health and Safety Code section 34191.3(a) and 34191.5. The Property is identified as “Asset #3” in the LRPMP.
C. The Property is subject to an “enforceable obligation” as defined by Health and Safety Code sections 34171(d). Specifically, the Property is subject to Section 6.2.2 of that certain Owner Participation Agreement, entered into on or about June 4, 1991, by and between the RDA and Steven Peck, as Trustee of the Steven Peck Inter Vivos Trust (“OPA”). The LRPMP, as approved by DOF, required the City to retain the Property for use to fulfill the enforceable obligation pursuant to Health and Safety Code section 34191.5(c)(2) and the DOF approval letter dated December 22, 2015. Furthermore, DOF approved funding from the Redevelopment Property Tax Trust Fund (“RPTTF”), established pursuant to the Dissolution Law to pay for enforceable obligations of former redevelopment agencies. Currently, the total amount of Six Million Dollars ($6,000,000), plus interest accrued from the principal amount (the “City Funds Amount”) is being held by the City in a separate City account for the specific purpose of contributing to the funding of the construction of a public parking structure and related improvements to serve and be used as a public parking area on the Property (“Public Parking Improvements Project”) pursuant to Fullerton Municipal Code section 15.30.030.3 [Permitted Uses in the C-3 Zoning District].
D. The Property is subject to and governed by that certain Exclusive Negotiation Agreement, dated May 21, 2020 (as amended prior to the date hereof, the “ENA”), by and between City and Buyer, which is an affiliate of Frontier Parking Ventures LLC (defined below). The Property is subject to the ENA as former RDA real property, with the ENA timely executed, such that the prior land use disposition provisions under Government Code section 54220 et seq. (the “Surplus Land Act”), in effect prior to the enactment of Assembly Bill 1486 (Stats. 2019, Ch. 664), would apply to the Property if the Surplus Land Act even were to apply. To that end, the purchase and sale of the Property for the required improvements and use is in furtherance of an “agency’s use,” as defined in Government Code section 54421(c)(1), as (i) the consummation of the proposed disposition will settle an enforceable obligation of the Agency under the OPA and (ii) the Property will remain for use by the public as a “public parking area” as defined in Fullerton Municipal Code section 15.30.030.3 [Permitted Uses in the C-3 Zoning District]. Therefore, the disposition of the Property pursuant to this Agreement is not subject to the Surplus Land Act, and even if the disposition of the Property were subject to the Surplus Land Act, the disposition would be in compliance with said act in effect prior to then enactment of Assembly Bill 1486 (Stats. 2019, Ch. 664).
E. Buyer proposes to acquire the Property for the purpose of constructing a public parking structure to serve as a public parking area and thereafter operate and maintain the Property for such use. In exchange for the construction of the parking structure on the Property, the City will contribute an amount equal to the City Funds Amount, to assist the Buyer with the construction of the Public Parking Improvements Project pursuant to a separate Agreement for Construction of Public Improvements (Public Parking Area) (the “Public Parking Agreement”), which shall be an implementing agreement under this Agreement, to be executed by the City and Buyer and delivered to the respective parties as a condition to closing the Escrow under this Agreement.
F. To complete the purchase and sale of the Property and Public Parking Improvements Project, as contemplated under this Agreement, Buyer shall, on the Effective Date and immediately following execution and delivery of this Agreement by City, Agency and Buyer, assign to Frontier Parking Ventures LLC, an affiliate of Buyer, and Frontier Parking Ventures LLC shall assume from Buyer, all of Buyer’s rights and obligations under this Agreement, pursuant to an assignment and assumption agreement for which the form has been approved by City and Agency, and which assignment has been approved by City and Agency, and following such assignment and assumption (i) Frontier Parking Ventures LLC will be Buyer hereunder for all purposes and (ii) NFRED LLC, the originally named “Buyer” hereunder will be released from all further liabilities and obligations under this Agreement.
G. Buyer desires to purchase the Property from Seller, and Seller desires to sell the Property to Buyer, on the terms and conditions set forth herein.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants herein contained, the parties hereto agree as follows:
PROPERTY. Subject to all of the terms, conditions, and provisions of this Agreement, and for the consideration herein set forth, Seller hereby agrees to sell to Buyer and Buyer hereby agrees to purchase from Seller the Property.
PURCHASE PRICE.
Amount. The purchase price which Seller agrees to accept, and Buyer agrees to pay for the Property is the sum of __________________ DOLLARS ($______________) (“Purchase Price”), in cash or immediately available funds, which amount was established by the City with reference to that certain appraisal dated ___________, 2022, and determined to be the fair value of the Property by the governing board of the Agency concurrently with its approval of this Agreement.
Earnest Money Deposit. Concurrent with its opening of the Escrow, Buyer shall deposit into Escrow an earnest money deposit in the amount of One Thousand Dollars ($1,000.00) (“Earnest Money Deposit”). The Escrow Holder shall deposit the Earnest Money Deposit into an interest-bearing account. All interest earned on such funds shall be added to the original principal amount of the Earnest Money Deposit and be considered part of the same. The Earnest Money Deposit shall be nonrefundable upon the date that Buyer’s Acceptance Notice shall be due pursuant to Section 4 of this Agreement. If Buyer fails to deliver the Buyer’s Acceptance Notice by the time required in Section 4, then the Earnest Money Deposit will be immediately returned to Buyer without the need for further instruction by Seller. Upon the Close of Escrow, the Earnest Money Deposit shall be credited toward the Purchase Price and paid to the Seller as part of the Purchase Price. Should Escrow fail to close after the date that Buyer’s Acceptance Notice shall be due, the Earnest Money Deposit shall be forfeited by Seller and shall be returned to the Buyer upon the cancelation of Escrow in accordance with this Agreement.
Deposit of Purchase Price. The Buyer shall deposit the Purchase Price, less the Earnest Money Deposit, with the Escrow Holder, plus Buyer’s share of closing costs and prorations and other charges as provided herein, in good funds one (1) day prior to the “Closing Date” (as defined in Section 6.1 below).
ESCROW.
Opening of Escrow. Closing of the sale of the Property shall take place through an escrow (“Escrow”) to be established and opened within five (5) business days after the execution of this Agreement by the parties hereto, with Ticor Title Insurance Company, at its office located at 1500 Quail Road, Newport Beach CA 92660, Attention David Noble [email [email protected]], or other mutually agreed-upon escrow company (“Escrow Holder”). The opening of the Escrow (the “Opening of Escrow”) shall be deemed to be the date that a fully executed copy of this Agreement is delivered to the Escrow Holder. Escrow Holder is instructed to notify Buyer and Seller in writing of the date of the Opening of Escrow.
Escrow Instructions. This Agreement, once deposited in Escrow, shall constitute the joint escrow instructions of Buyer and Seller to Escrow Holder. Additionally, if Escrow Holder so requires, Buyer and Seller agree to execute the standard preprinted form of escrow instructions that Escrow Holder customarily requires in real property escrows administered by it. In the event of any conflict or inconsistency between Escrow Holder’s standard instructions and the provisions of this Agreement, the provisions of this Agreement shall supersede and be controlling.
TITLE MATTERS. Buyer has obtained a preliminary title report Order No. 00676355-988-DN1 prepared by Ticor Title Insurance Company, 1500 Quail Road, Newport Beach CA 92660, Attention David Noble [email [email protected]] (“Title Company”) describing the state of title of the Property together with copies of all underlying documents (the “Preliminary Title Report”). Buyer may, at its sole cost and expense, obtain a current survey of the Property (a “Survey”). Notwithstanding anything herein to the contrary, Seller shall be obligated to remove all monetary encumbrances against the Property excluding non-delinquent real property taxes (except as otherwise provided in Section 9 below). Buyer shall notify Seller in writing of any objections Buyer may have to title exceptions contained in the Preliminary Title Report or matters shown on the Survey (if Buyer has obtained) no later than the date which is fifteen (15) days after the later of (i) Opening of Escrow, or (ii) Buyer’s receipt of the Survey (“Buyer’s Objection Notice”). Buyer’s approval or disapproval of the matters set forth in the Preliminary Title Report (and the Survey, if applicable) may be granted or withheld in Buyer’s sole and absolute discretion. Buyer’s failure to provide Seller with a Buyer’s Objection Notice within said period shall constitute Buyer’s approval of all exceptions to title shown on the Preliminary Title Report and all matters shown on the Survey (if Buyer has obtained). Seller shall have a period of five (5) days after receipt of Buyer’s Objection Notice in which to deliver written notice to Buyer (“Seller’s Notice”) of Seller’s election to either (i) agree to remove the objectionable items on the Preliminary Title Report or Survey prior to the Close of Escrow, or (ii) decline to remove any such title exceptions or Survey matters and terminate Escrow and the obligations of Buyer and Seller to purchase and sell the Property under this Agreement, in which event the provisions of Section 10.3 below shall apply. Seller’s failure to provide Buyer with Seller’s Notice within said period shall constitute Seller’s election to remove the objectionable items on the Preliminary Title Report. If Seller notifies Buyer of its election to terminate rather than remove the objectionable items on the Preliminary Title Report or Survey, Buyer shall have the right, by written notice delivered to Seller within five (5) days after Buyer’s receipt of Seller’s Notice, to agree to accept the Property subject to the objectionable items “Buyer’s Acceptance Notice”), in which event Seller’s election to terminate shall be of no effect, and Buyer shall take title at the Close of Escrow subject to such objectionable items without any adjustment to or credit against the Purchase Price. All exceptions to title shown on the Preliminary Title Report, other than those which Seller may agree to remove pursuant to this Section 4, shall be deemed to have been approved by Buyer unless Seller is notified otherwise in writing.
Upon the issuance of any amendment or supplement to the Preliminary Title Report which adds additional exceptions, including any survey exceptions, the foregoing right of review and approval shall also apply to said amendment or supplement. The process set forth above for Buyer’s review and Seller’s response shall apply to any review and response with respect to any amendment or supplement to the Preliminary Title Report, and the Closing shall be extended for such period as is necessary to allow for that review and response process to be completed.
DUE DILIGENCE PERIOD; RIGHT OF ENTRY. Beginning on the Effective Date up to and including the date that Buyer’s Objection Notice shall be due pursuant to Section 4 of this Agreement (the “Due Diligence Period”), Seller grants Buyer, its agents, contractors, employees, and representatives, the right to enter into and upon the Property at reasonable times for the purposes related to Buyer’s inspection and proposed acquisition of the Property. Buyer shall not disturb the physical condition of the Property, or do any intrusive testing of the Property without the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed. Any costs, expenses, or charges incurred or related to Buyer’s activities under this right of entry shall be at the sole cost and expense of Buyer and at no cost and expense to Seller. Buyer shall, at its own cost and expense entirely, repair any damage to the Property resulting from any such entry and shall restore the Property to its condition prior to such entry. Buyer agrees to indemnify, defend and hold City, Agency and the Property harmless from any and all claims, liabilities, liens, actions, judgments, costs, expense, or charges (including without limitation reasonable attorneys’ fees and costs) arising from or connected or related in any way to the right of entry granted under this Agreement, provided that such indemnity shall not apply to (a) pre-existing conditions (except to the extent exacerbated by Buyer’s activities on the Property) or (b) the extent such matters arise out the negligence or willful misconduct of Seller, its employees or agents.
CLOSE OF ESCROW.
Close of Escrow; Closing Date. Provided that all of the conditions of this Agreement precedent to closing escrow (as hereinafter defined) as set forth in Section 10 below have been satisfied (or waived by the appropriate party), Close of Escrow shall occur no later than the later of: (i) the fifth (5th) business day following Escrow Holder’s receipt of written confirmation from the City, Agency and Buyer of the satisfaction or waiver of all conditions precedent to the Close of Escrow for the Properties, or (ii) December 16, 2022 (the “Escrow Closing Date”). In no event, however, shall the Escrow Closing Date exceed the date of December 16, 2022 (“Outside/Not to Exceed Escrow Closing Date”) unless a short extension thereof, not to exceed fourteen (14) calendar days, is mutually agreed upon by the Parties and delivered to Escrow Holder prior to the Outside/Not to Exceed Escrow Closing Date. Notwithstanding the foregoing, if Buyer and Seller agree to advance the Closing, and so long as all of “Buyer’s Conditions to Closing” and all of “Seller’s Conditions to Closing” (as those terms are defined in Section 10) have been satisfied (or waived by the appropriate party), Seller and Buyer may elect to authorize the Closing before the Outside/Not to Exceed Escrow Closing Date. The terms “Close of Escrow”, “Escrow Closing Date”, “Closing Date” and the “Closing” are used herein to mean the time Seller’s grant deed conveying fee title to the Property to Buyer is recorded in the Official Records of the Office of the County Recorder of Orange County (“Official Records” and “Recorder’s Office”). If Escrow is not in a condition to close by the Outside/Not to Exceed Escrow Closing Date, either party not then in default hereunder may, upon five (5) days advance written notice to the other party and Escrow Holder, elect to terminate this Agreement and the Escrow. No such termination shall release either party then in default from liability for such default. If neither party so elects to terminate this Agreement and the Escrow, Escrow Holder shall close the Escrow as soon as possible following performance by each party.
Recordation; Release of Funds and Documents.
Escrow Holder is directed, on the Closing Date, to record in the Official Records, the following documents in the order listed: (i) the grant deed with restrictive covenants for public parking use (in the form attached hereto as Exhibit “B”) transferring title to the Property to Buyer (“Grant Deed”); and (ii) such other and further documents as may be directed jointly by Buyer and Seller.
Upon the Closing, Escrow Holder shall:
Deliver to Seller: (i) the Purchase Price, less any amount of Closing costs, including property taxes and/or assessments allocable to Seller pursuant to Section 9 below; (ii) one (1) fully executed original, executed in counterparts by the City and Buyer, of the Public Parking Agreement, and (iii) conformed copies of all recorded documents to both Buyer and Seller; and Deliver to Buyer: (i) the original executed and notarized Grant Deed; (ii) one (1) fully executed original, executed in counterparts by the City and Buyer, of the Public Parking Agreement, and (iii) conformed copies of all recorded documents to both Buyer and Seller; and File with the United States Internal Revenue Service a Certificate of Non-Foreign Status (the “FIRPTA Affidavit”) executed and acknowledged by Seller in the form attached hereto as Exhibit “C”; and File with the Recorder’s Office a preliminary change of ownership report, provided for in California Revenue and Taxation Code Section 480.3 (“PCO Report”), and executed by Buyer.
Escrow Holder is authorized to request from Seller a fully executed copy of the Grant Deed at any time prior to the Close of Escrow, for submission to Buyer for the sole purpose of Buyer’s acceptance of same, in order to place such Grant Deed in a form ready for recording at the Close of Escrow. If Buyer receives such an executed Grant Deed prior to Close of Escrow, Buyer is authorized only to affix its acceptance thereon, or perform such other acts as are required to place the Grant Deed in a recordable form, but may not record the Grant Deed at any time prior to the Close of Escrow.
DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER.
Buyer’s Obligations. Buyer agrees that on or before 5:00 p.m. of the last business day immediately preceding the Closing Date, Buyer shall deposit or cause to be deposited with Escrow Holder the following:
The Purchase Price, less the Earnest Money Deposit;
Two originals, executed in counterpart by Buyer, of the Public Parking Agreement in a form mutually agreed upon by the City and Buyer; The PCO Report executed by Buyer; and
Any and all additional funds, instruments or other documents required from Buyer (executed and acknowledged where appropriate) as may be reasonably necessary in order for the Escrow Holder to comply with the terms of this Agreement and consummate the transaction.
Seller’s Obligations. Seller agrees that on or before 5:00 p.m. of the last business day immediately preceding the Closing Date, Seller shall deposit or cause to be deposited with Escrow Holder each of the following:
The executed and acknowledged Grant Deed, subject only to the Permitted Exceptions (defined hereafter), and any prior submission to Buyer for acceptance, as provided in Paragraph 6.2.3 above; The FIRPTA Affidavit executed and acknowledged by Seller; Two originals, executed in counterpart by the City, of the Public Parking Agreement in a form mutually agreed upon by the City and Buyer; and All other funds, items, and instruments required from Seller, Escrow Holder, or Title Company (executed and acknowledged where appropriate) as may be reasonably necessary in order for the Escrow Holder to comply with the provisions of this Agreement and consummate the transaction.
TITLE INSURANCE POLICY.
Title Policy. At the Closing Date, the Title Company, as insurer, shall issue an ALTA owner’s standard coverage policy of title insurance (“Title Policy”), in favor of Buyer, as insured, for the Property, with liability in the amount of the sum of the Purchase Price and the City Funds Amount, subject only to the following (the “Permitted Exceptions”):
non-delinquent real property taxes, subject to Seller’s obligations to pay certain taxes pursuant to Section 9 below; easements or rights-of-way over the Property for public or quasi-public utility or public street purposes; title exceptions approved or deemed approved by Buyer pursuant to Section 4 above; any other exceptions approved by Buyer; and
the standard printed conditions and exceptions contained in the ALTA standard coverage owner’s policy of title insurance regularly issued by the Title Company.
Notwithstanding the foregoing, Buyer shall have the right to require the Title Policy to be issued with ALTA extended coverage (in which case the exceptions referenced in clause above will not be Permitted Exceptions), provided Buyer (i) timely provides Title Company with an ALTA Survey of the Property, and (ii) Buyer pays the additional premium for any such extended coverage.
Payment for Title Policy. Seller shall be responsible for all charges for the Title Policy, other than (a) any additional premiums for extended coverage or endorsements requested by Buyer and any Survey obtained by Buyer.
REAL PROPERTY TAXES AND ASSESSMENTS. Because both the City and Agency are public agencies, fee title to the Property is and should be exempt from the payment of property taxes. Nonetheless, Seller shall be responsible for paying (through Escrow at Closing) all real and personal property taxes and assessments, if any, which are of record as of the Closing Date and/or have accrued against the Property prior to (and including) the Closing Date (notwithstanding whether such taxes and/or assessments are due and payable as of the Closing Date). Seller shall be responsible for paying for all real or personal property taxes or assessments, if any, which may be assessed against the Property after the Closing for any period prior to the Closing Date. Upon the Close of Escrow, Buyer shall be responsible for paying for all real or personal property taxes or assessments assessed against the Property after the Closing.
CONDITIONS PRECEDENT TO CLOSING.
Conditions Precedent to Buyer’s Obligations. The obligations of Buyer under this Agreement to purchase the Property and close the Escrow shall be subject to the satisfaction or signed written waiver by Buyer of each and all of the following conditions precedent (collectively, “Buyer’s Conditions to Closing”):
On the Closing Date, the Title Company shall be irrevocably committed to issue the Title Policy pursuant to Section 8.1 above insuring fee title to the Property as being vested in Buyer, subject only to the Permitted Exceptions; Escrow Holder holds all instruments and documents, including the executed and notarized Grant Deed and two originals executed in counterparts of the Public Parking Agreement, and will deliver to Buyer the instruments and documents accruing to Buyer pursuant to this Agreement; Escrow Holder holds funds sufficient to pay to Seller the Purchase Price and sufficient funds to pay for the escrow fees or similar charges of Escrow Holder, all charges for the Title Policy, and Surveys if elected by Buyer, and the cost of recording the Grant Deed and any other recording charges; Except as otherwise permitted by this Agreement, all representations and warranties by the Seller in this Agreement shall be true on and as of the Closing Date as though made at that time and all covenants of Seller pursuant to this Agreement shall have been fulfilled by the Closing Date; Seller is not in material default of any term or condition of this Agreement.
In the event that any of Buyer’s Conditions to Closing are not satisfied, deemed satisfied, or waived in a writing signed by Buyer prior to the expiration of the applicable period for satisfaction or waiver, Buyer may terminate this Agreement.
Conditions Precedent to Seller’s Obligations. The obligations of Seller under this Agreement shall be subject to the satisfaction or signed written waiver by Seller of each and all of the following conditions precedent (“Seller’s Conditions to Closing”):
Escrow Holder holds all instruments and documents, including the executed and notarized Grant Deed and two originals executed in counterparts of the Public Parking Agreement, and will deliver to Seller the instruments and documents accruing to Seller pursuant to this Agreement; Escrow Holder holds funds for the Purchase Price and will deliver to Seller the Purchase Price (less any offsets against Seller specifically provided for hereunder) accruing to Seller pursuant to this Agreement; Escrow Holder holds funds sufficient to pay for the escrow fees or similar charges of Escrow Holder, all charges for the Title Policy, and Surveys if elected by Buyer, and the cost of recording the Grant Deed and any other recording charges; The City has issued to Buyer, or the City or Buyer has commenced the process for reviewing and processing on behalf of Buyer, the building permit (or other permit) with the condition of regulatory approval for the construction of the Public Parking Improvements Project; Except as otherwise permitted by this Agreement, all representations and warranties by the Buyer in this Agreement shall be true on and as of the Closing Date as though made at that time and all covenants of Buyer pursuant to this Agreement shall have been fulfilled by the Closing Date; and Buyer is not in material default of any term or condition of this Agreement.
In the event that any of Seller’s Conditions to Closing are not satisfied, deemed satisfied, or waived in a writing signed by Seller prior to the expiration of the applicable period for satisfaction or waiver, Seller may terminate this Agreement.
NOTICE OF DEFAULT. Upon a default by either Seller or Buyer under this Agreement, the non-defaulting party shall notify the defaulting party and Escrow Holder in writing of such default. If the non-defaulting party gives such notice, the notice shall set forth with specificity the alleged default and the defaulting party shall have a period equal to the lesser of ten (10) days or until December 30, 2022, to cure the default. If the defaulting party does not cure the default within ten (10) days of the receipt of such notice, the non-defaulting party may elect to terminate this Agreement and pursue the remedies provided in Section 12 below.
WAIVER OF DAMAGES, SPECIFIC PERFORMANCE. In the event a party defaults under this Agreement, the non-defaulting party’s sole and exclusive remedy will be for specific performance of this Agreement. EACH PARTY HEREBY WAIVES ANY RIGHT TO PURSUE DAMAGES RESULTING FROM A DEFAULT OR BREACH OF THIS AGREEMENT, AND IN NO EVENT SHALL THE DEFAULTING PARTY BE LIABLE FOR DAMAGES FOR A DEFAULT OR BREACH OF DEFAULTING PARTY’S OBLIGATION UNDER THIS AGREEMENT, ALL OF WHICH RIGHTS ARE HEREBY WAIVED AND RELINQUISHED BY THE NON-DEFAULTING PARTY. The parties agree that the foregoing limitation on their respective remedies and measure of damages is reasonable under all of the circumstances of this Agreement, and is a material consideration for the parties entering into this Agreement.
Seller’s & Agency Initials
Buyer’s Initials
POSSESSION. Possession of the Property, free from all tenancies, parties in possession and occupants, shall be delivered by Seller to Buyer on the Closing Date, subject only to the Permitted Exceptions.
ALLOCATION OF COSTS.
Closing Costs and Title Insurance Costs. The City and Buyer shall each pay one-half (1/2) of the Escrow fees and such other costs as Escrow Holder may charge for the conduct of the Escrow. Escrow Holder shall notify the Parties of the costs to be borne by each of them at the Close of Escrow by delivering the Escrow Holder’s estimated closing/settlement statement to the Parties at least four (4) business days prior to the Escrow Closing Date. Seller shall pay (a) all documentary transfer taxes and any and all other charges, fees and taxes levied by the Recorder’s Office or other governmental agency relative to the conveyance of the Property through the Escrow transaction contemplated in this Agreement, and (b) pay all charges for the Title Policy, except as provided in the following sentence. Buyer shall pay the premium charged by the Title Company for extended coverage Title Policy for the Property, including any endorsements or other supplements to the coverage of such Title Policy that may be requested by Buyer. Buyer shall pay any and all recording fees relative to the conveyance of the Property through the Escrow transaction contemplated in this Agreement.
Miscellaneous Costs. Except to the extent otherwise specifically provided herein, all other expenses incurred by Parties with respect to the negotiation, documentation and closing of this transaction, including, without limitation, attorneys’ fees, shall be borne and paid by the Party incurring same.
CONDEMNATION. In the event that, prior to the Close of Escrow, any governmental entity (other than the City of Fullerton) shall commence any proceedings of or leading to eminent domain or similar type proceedings to take all or any portion of the Property, Buyer or Seller shall promptly meet and confer in good faith to evaluate the effect of such action on the purposes of this Agreement.
BUYER INVESTIGATIONS; CONVEYANCE OF PROPERTY “AS IS”. Buyer shall have until the expiration of the Due Diligence Period to conduct all of its investigations of the Property, to the extent said investigations have not previously been completed for the Property, pursuant to the Right of Entry provisions set forth in Section 5 of this Agreement. Buyer shall rely solely and exclusively on the results of its investigations of the Property, including, without limitation, investigations regarding geotechnical soil conditions, compliance with applicable laws (except for the laws, permits, and conditions of regulatory approval adopted by the City) pertaining to the use of the Property, and any other matters relevant to the condition or suitability of the Property for the Public Parking Improvements Project. Buyer’s failure to timely deliver the Buyer’s Objection Notice, and/or Buyer’s delivery of Buyer’s Acceptance Notice, and/or Buyer’s failure to timely terminate this Agreement and the Escrow prior to the due date for the Buyer’s Acceptance Notice, shall be deemed to be Buyer’s unconditional acceptance of the condition of the Property in its existing “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS” condition, as of the last day of the Due Diligence Period, except for the representations and warranties made by Seller herein and in agreements delivered at Closing (collectively, the “Surviving Obligations”). In its sole discretion, Buyer may accept the Property in its “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS” condition at any time before the end of the Due Diligence Period. If such assessments reveal the presence of any Hazardous Substance on the Property in levels that exceed applicable allowances under any Environmental Laws, then the City shall promptly and at its sole cost and expense install security fencing around the Property. If such assessments do reveal the presence of any Hazardous Substances on the Property in levels that exceed applicable allowances under any Environmental Laws, then the Parties shall negotiate in good faith in an effort to reach agreement as to the allocation of responsibility and cost of remediation thereof, with Seller obligations arising out of such agreement being Surviving Obligations hereunder.
HAZARDOUS MATERIALS. To the best of Seller’s knowledge (without any obligation of Seller to further investigate), the Property has not at any time been used for the purposes of storing, manufacturing, releasing or dumping Hazardous Materials. For purposes of this Agreement, the term “Hazardous Materials” shall mean (1) hazardous wastes, hazardous materials, hazardous substances, hazardous constituents, toxic substances or related materials, whether solids, liquids or gases, including, but not limited to, substances deemed as “hazardous wastes,” “hazardous materials,” “hazardous substances,” “toxic substances,” “pollutants,” “contaminants,” “radioactive materials,” or other similar designations in, or otherwise subject to regulation under, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. § 9601 et seq.; the Toxic Substance Control Act (“TSCA”), 15 U.S.C. § 2601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1802; the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 9601, et seq.; the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300 et seq.; the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq.; the Hazardous Waste Control Law, California Health and Safety Code § 25025 et seq., the Carpenter-Presley-Tanner Hazardous Substance Account Act, California Health and Safety Code, Division 20, Chapter 6.8, the Hazardous Materials Release Response Plans and Inventory Act, California Health and Safety Code, Division 20, Chapter 6.95, The Underground Storage of Hazardous Substances Act, California Health and Safety Code, Division 20, Chapter 6.7, the Porter-Cologne Act, California Water Code § 13050 et seq. and in any permits, licenses, approvals, plans, rules, regulations or ordinances adopted, or other criteria and guidelines promulgated pursuant to the preceding laws or other similar federal, state or local laws, regulations, rules or ordinances now or hereafter in effect relating to environmental matters (collectively the “Environmental Laws”); and (ii) any other substances, constituents or wastes subject to any applicable federal, state or local law, regulation, ordinance or common law doctrine, including any Environmental Law, now or hereafter in effect, including, but not limited to, (A) petroleum, (B) refined petroleum products, (C) waste oil, (D) waste aviation or motor vehicle fuel, (E) asbestos, (F) lead in water, paint or elsewhere, (G) radon, (H) polychlorinated biphenyls (PCB’s) and (I) urea formaldehyde.
REPRESENTATIONS AND WARRANTIES.
Buyer’s Representations and Warranties. The representations and warranties of Buyer contained in this Section 18.1 are based on the actual knowledge of Dan Almquist as of the Effective Date. Such person shall have no personal liability with respect to such representations and warranties under any circumstances. All representations and warranties are true and correct as of the Effective Date. Buyer’s liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the Closing. Buyer hereby makes the following representations and warranties and acknowledges that the execution of this Agreement by City and Agency has been made in material reliance by City and Agency on such covenants, representations and warranties:
Buyer is a California limited liability company, lawfully entitled to do business in the State of California. Buyer has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein and to consummate the transactions contemplated hereby, and the persons executing this Agreement and the instruments referenced herein on behalf of Buyer have the power, right, and authority to bind Buyer; Buyer has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for Buyer’s authorization to enter into Agreement; Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument, or other obligation to which Buyer is a party or by which Buyer may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to Buyer or to the Property; This Agreement is, and all agreements, instruments and documents to be executed by Buyer under this Agreement shall be duly executed by and valid and legally binding upon Buyer and enforceable in accordance with their respective terms. No approval, consent, order, or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of in compliance with this Agreement by Buyer; and If Buyer becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by Buyer under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based on Buyer’s knowledge or belief as of a certain date, Buyer will give prompt written notice of such changed fact or circumstance to the City and Agency.
City’s and Agency’s Representations and Warranties. The representations and warranties of the City and Agency contained in this Section 18.2 are based on the actual knowledge of the City Manager and Agency Executive Director as of the Effective Date. All representations and warranties contained are true and correct as of the Effective Date. The City’s and Agency’s liability for misrepresentation or breach of warranty, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. The City and Agency hereby make the following representations and warranties and acknowledges that the execution of this Agreement by Buyer has been made in material reliance by Buyer on such representations and warranties City is a California municipal corporation, duly formed and operating under the laws of the State of California. City has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby; Agency is the successor agency to the former RDA and for the City as defined in Health and Safety Code sections 34171(j) and 34173, duly formed and operating under the laws of the State of California. Subject to approval of this Agreement by Agency’s board, Agency has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby; The persons executing any instruments for or on behalf of the City and Agency have been authorized to act on behalf of the City and Agency, respectively, and this Agreement is valid and enforceable against the City and Agency in accordance with its terms and each instrument to be executed by the City and Agency pursuant hereto or in connection therewith will, when executed, shall be valid and enforceable against the City and Agency in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by the City and Agency; Upon the approval by the City Council and Agency’s Board of Directors granting the authority for the City Manager and Agency Executive Director to execute this Agreement, City and Agency have taken all requisite action and obtained all requisite consents for agreements or matters to which City or Agency, respectively, is a party in connection with entering into this Agreement and the instruments and documents referenced herein and in connection with the consummation of the transactions contemplated hereby; If the City or Agency, respectively, becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by the City or Agency under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based on the City’s or Agency’s knowledge or belief as of a certain date, the City or Agency, respectively, will give immediate written notice of such changed fact or circumstance to Buyer.
Seller has provided Buyer with true, correct and complete copies of all written information in its possession or control regarding the physical condition of the Property.
MISCELLANEOUS.
Assignment. This Agreement shall be binding upon and shall inure to the benefit of Buyer, Seller, and Agency, and their respective heirs, personal representatives, successors, and assigns. Other than as provided in Recital F above, none of the Parties to this Agreement may assign this Agreement or any interest or right hereunder or under the Escrow without the prior written consent and approval of the other Parties, which consent and approval shall not be unreasonably withheld. No provision of this Agreement is intended nor shall in any way be construed to benefit any party not a signatory hereto or to create a third-party beneficiary relationship.
Notices. All notices under this Agreement shall be effective upon personal delivery, upon delivery by reputable overnight courier service that provides a receipt with the date and time of delivery, or two (2) business days after deposit in the United States mail, postage fully prepaid and addressed to the respective parties as set forth below or as to such other address as the parties may from time to time designate in writing:
TO BUYER:
NFRED LLC
Frontier Parking Ventures LLC
c/o Frontier Real Estate Investments
31791 Los Rios Street
San Juan Capistrano, CA 92675
Attn: Dan Almquist
(T) (949) 800-8070
(F) (949) 679-7022
WITH COPY TO:
Karavas Kiely Schloss & Whitman LLP
11400 West Los Olympic Boulevard, Suite 1480
Los Angeles, CA 90064
Attention: Michael Kiely, Esq.
Email: [email protected]
Direct: 310.203.2683
Cell: 310.962.1974
TO CITY:
City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attention: City Manager
(T) 714-738-6310
(F) ____________
TO AGENCY:
Successor Agency to the Fullerton Redevelopment Agency
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attention: Executive Director
(T) 714-738-6310
(F) ____________
COPIES FOR CITY AND AGENCY TO:
Rutan & Tucker, LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Attention: William H. Ihrke, Esq.
(T) (714) 641-5100
(F) (714) 546-9035
Fair Meaning. This Agreement shall be construed according to its fair meaning and as if prepared by all Parties hereto.
Headings. The headings at the beginning of each numbered Section of this Agreement are solely for the convenience of the Parties hereto and are not a part of this Agreement.
Choice of Laws; Litigation Matters. This Agreement shall be governed by the internal laws of the State of California and any question arising hereunder shall be construed or determined according to such law. The Superior Court of the State of California in and for the County of Orange, or such other appropriate court in such county, shall have exclusive jurisdiction of any litigation between the parties concerning this Agreement. Service of process on City or Agency shall be made in accordance with California law. Service of process on Buyer shall be made in any manner permitted by California law and shall be effective whether served inside or outside California.
Nonliability of Buyer and Seller Officials. No officer, official, member, employee, agent, or representative of the Parties shall be personally liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative.
Gender; Number. As used in this Agreement, masculine, feminine, and neuter gender and the singular or plural number shall be deemed to include the others wherever and whenever the context so dictates.
Survival. This Agreement and all covenants to be performed after the Closing, and, except as otherwise set forth herein, all representations and warranties contained herein, shall survive the Closing Date and shall remain a binding contract between the Parties hereto.
Time of Essence. Time is of the essence of this Agreement and of each and every term and provision hereof, it being understood that the Parties hereto have specifically negotiated the dates for the completion of each obligation herein.
Time Period Computations. All periods of time referred to in this Agreement shall include all Saturdays, Sundays and California state or national holidays unless the reference is to business days, in which event such weekends and holidays shall be excluded in the computation of time and provide that if the last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or California state or national holiday, such act or notice shall be deemed to have been timely performed or given on the next succeeding day which is not a Saturday, Sunday or California state or national holiday.
Waiver or Modification. A waiver of a provision hereof, or modification of any provision herein contained, shall be effective only if said waiver or modification is in writing, and signed by the Party to be charged with waiving a provision or signed by the Parties for any modification of this Agreement. No waiver of any breach or default by any Party hereto shall be considered to be a waiver of any breach or default unless expressly provided herein or in the waiver.
City Approvals and Actions. City shall maintain authority of this Agreement and the authority to implement this Agreement through the City Manager. The City Manager (or authorized designee) shall have the authority to make approvals, issue interpretations, waive provisions, negotiate and enter into amendments to this Agreement and/or negotiate and enter into implementing agreements or documents (including recorded instruments) on behalf of City so long as such actions do not materially or substantially change the business terms of this Agreement or the uses or development permitted on the Properties, or materially or substantially add to the costs incurred or to be incurred by City as specified herein. Such approvals, interpretations, waivers, amendments, and/or implementing agreements or documents may include extensions of time as specified in this Agreement. All other material and/or substantial interpretations, waivers, or amendments shall require the consideration, action and written consent of the City Council.
Broker’s Fees. Buyer represents and warrants that the following brokers were involved with this transaction: Xan Saks at Beta Agency, and Tom Chichester and Nick D’Argenzio at BLVD Real Estate Investment Company. Buyer shall pay any and all commissions for any broker(s). City and Agency represent and warrant (and continuously represented and warranted through the negotiation of this transaction) that neither City nor Agency pay brokers’ fees. Other than the brokers identified above, the Parties represent and warrant to the other Parties that none of the Parties has employed any broker and/or finder to represent its interest in this transaction. Buyer agrees to indemnify and hold the City and Agency free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorney’s fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder’s fee in connection with the conveyance of the Property arising out of agreements by the indemnifying Party to pay any commission or finder’s fee.
Duplicate Originals. This Agreement may be executed in any number of duplicate originals or counterparts, all of which shall be of equal legal force and effect.
Severability. If any term, covenant or condition of this Agreement or the application thereof to any person, entity, or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant, or condition to persons, entities, or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Exhibits. The following exhibits are attached hereto and incorporated herein by this reference:
Exhibit “A” Legal Description of Property
Exhibit “B” Grant Deed
Exhibit “C” FIRPTA Affidavit
Entire Agreement; Amendment. Except as set forth above, this Agreement and the exhibits incorporated herein contain the entire agreement of the Parties with respect to the matters contained herein, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. No provisions of this Agreement may be amended or modified in any manner whatsoever except by an agreement in writing signed by duly authorized officers or representatives of each of the Parties hereto. [END -- SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties each hereby represents that it has read this Agreement, understands it, and hereby executes this Agreement to be effective as of the day and year first written above.
Dated:_________________, 2022
CITY & SELLER:
CITY OF FULLERTON, a California municipal corporation
By:
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Special Counsel
[signatures continue on next page]
Dated:_________________, 2022
AGENCY:
CITY OF FULLERTON IN ITS CAPACITY AS SUCCESSOR AGENCY TO THE FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and politic
By:
Executive Director
ATTEST:
Secretary to the Board
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Special Counsel
[signatures continue on next page]
Dated:_________________, 2022
BUYER:
NFRED LLC, a California limited liability company,
Manager
By:
Dan Almquist, Manager
Dated:_________________, 2022
AFFILIATE OF BUYER:
Frontier Parking Ventures LLC, a California limited liability company By:
Dan Almquist, Manager
[end of signatures]
________________________. agrees to act as Escrow Holder in accordance with the terms of this Agreement that are applicable to it.
ESCROW HOLDER:
By:
Name:
Its: Escrow Officer
EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
The real property and improvements thereon situated in the State of California, County of Orange, City of Fullerton, are described as follows:
[TO BE INSERTED]
APNs: 029-033-09, [029-033-10], 029-033-27, and 029-033-28 [end of legal description]
EXHIBIT “B”
FORM OF GRANT DEED
[SEE ATTACHED]
Recording Requested By And:
When Recorded Mail To:
Frontier Parking Ventures LLC
c/o Frontier Real Estate Investments
31791 Los Rios Street
San Juan Capistrano, CA 92675
Attn: Dan Almquist
Order No. ___________________
Escrow No. ___________________
APN: 029-033-09, 029-033-10, 029-033-27, and 029-033-28 (Space above this Line for Recorder’s Use Only) The Undersigned Grantor Declares: DOCUMENTARY TRANSFER TAX $____.00; CITY TRANSFER TAX $0; [ X ] computed on the consideration or full value of property conveyed, OR [ ] computed on the consideration or full value less value of liens and/or encumbrances remaining at time of sale, [ ] unincorporated area; [X] City of Fullerton
GRANT DEED
with RESTRICTIVE USE COVENANTS
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the City of FULLERTON, a California municipal corporation (“Grantor”), hereby grants to FRONTIER PARKING VENTURES LLC, a California limited liability company (“Grantee”), that certain real property located in the City of Fullerton, County of Orange, State of California, specifically described in Attachment 1 attached to this Grant Deed (“Property”) and made a part of this Grant Deed by this reference, SUBJECT TO:
1. The Property shall be a public parking area, as set forth in Fullerton Municipal Code section 15.30.030.3 [Permitted Use in the C-3 Zoning District]; and
2. The Property shall be used for vehicular parking available to the general public, and vehicular and pedestrian ingress, egress, circulation, and ancillary uses related to said vehicular parking use; and
3. All development and construction on the Property shall be for and as a parking structure, to be used as a public parking area and used for vehicular parking available to the general public, and vehicular and pedestrian ingress, egress, circulation, and ancillary uses related to said vehicular parking use, provided, however, that the restrictions set forth in Sections 1 and 2 and this Section 3 are not intended to nor shall they restrict or impair the right of Grantee to charge a fee for any such parking use or to implement on the Property or otherwise any mechanism or procedure for the collection of any such fees; and
4. The following covenants and agreements of Grantee running with the land in perpetuity and binding upon Grantee and its successors and assigns:
4.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Grantee, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of the Property.
4.2 All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants:
4.2.1 In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
4.2.2 In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.”
4.2.3 In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub-lessees, sub-tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this Grant Deed to be executed by its authorized representative(s) on this ____ day of _____________, 2022.
GRANTOR:
THE CITY OF FULLERTON, a California municipal corporation By: ___________________________
City Manager
ACCEPTANCE BY GRANTEE:
Grantee hereby accepts the Grant Deed and all terms and provisions thereof:
Frontier Parking Ventures LLC, a California limited liability company By: ___________________________
Dan Almquist, Manager
[end of signatures]
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On ______________, 2022, before me, ____________________________, a Notary Public, personally appeared ______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On ______________, 2022, before me, ____________________________, a Notary Public, personally appeared ______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ______________________________
ATTACHMENT 1
to
GRAND DEED with RESTRICTIVE USE COVENANTS
LEGAL DESCRIPTION OF PROPERTY
The real property and improvements thereon situated in the State of California, County of Orange, City of Fullerton, are described as follows:
[TO BE INSERTED]
APNs: 029-033-09, 029-033-10, 029-033-27, and 029-033-28 [end of legal description]
EXHIBIT “C”
AFFIDAVIT OF NON-FOREIGN ENTITY
TO: NFRED LLC and assignee Frontier Parking Ventures LLC (“Buyer”) The Internal Revenue Code of 1954 (“Code”) (26 U.S.C. Sections 1445, 7701) provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon transfer of that certain U.S. real property interest described in Exhibit “A” to the Agreement for Purchase and Sale and Escrow Instructions dated _______________, 2022, and incorporated herein by reference (“Property”), that the undersigned (“Seller”) hereby certifies the following:
1. Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); and
2. The U.S. taxpayer identification number for Seller is _____________________; and
3. The address for mailing purposes of Seller is: __________________________________; and
4. Seller understands that this certification may be disclosed to the Internal Revenue Service by Buyer and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury, I declare that I have examined this Certification and to the best of my knowledge and belief, it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of Seller.
SELLER:
THE CITY OF FULLERTON, a California municipal corporation By: ___________________________
City Manager
[end of signatures]
AGREEMENT FOR PURCHASE AND SALE AND
ESCROW INSTRUCTIONS
BETWEEN
THE CITY OF FULLERTON,
a California municipal corporation
AND
THE CITY OF FULLERTON IN ITS CAPACITY AS THE
SUCCESSOR AGENCY TO THE FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and politic
AND
NFRED LLC,
a California limited liability company
1. PROPERTY 3
2. PURCHASE PRICE 3
2.1 Amount 3
2.2 Earnest Money Deposit 3
2.3 Deposit of Purchase Price 3
3. ESCROW 3
3.1 Opening of Escrow 3
3.2 Escrow Instructions 3
4. TITLE MATTERS 4
5. DUE DILIGENCE PERIOD; RIGHT OF ENTRY 4
6. CLOSE OF ESCROW 5
6.1 Close of Escrow; Closing Date 5
6.2 Recordation; Release of Funds and Documents 5
7. DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER 6
7.1 Buyer’s Obligations 6
7.2 Seller’s Obligations 7
8. TITLE INSURANCE POLICY 7
8.1 Title Policy 7
8.2 Payment for Title Policy 7
9. REAL PROPERTY TAXES AND ASSESSMENTS 8
10. CONDITIONS PRECEDENT TO CLOSING 8
10.1 Conditions Precedent to Buyer’s Obligations 8
10.2 Conditions Precedent to Seller’s Obligations 8
11. NOTICE OF DEFAULT 9
12. WAIVER OF DAMAGES, SPECIFIC PERFORMANCE 9
13. POSSESSION 10
14. ALLOCATION OF COSTS 10
14.1 Closing Costs and Title Insurance Costs 10
14.2 Miscellaneous Costs 10
15. CONDEMNATION 10
16. BUYER INVESTIGATIONS; CONVEYANCE OF PROPERTY “AS IS” 10
17. HAZARDOUS MATERIALS 11
18. REPRESENTATIONS AND WARRANTIES 12
18.1 Buyer’s Representations and Warranties 12
18.2 City’s and Agency’s Representations and Warranties 12
19. MISCELLANEOUS 13
19.1 Assignment 13
19.2 Notices 14
19.3 Fair Meaning 15
19.4 Headings 15
19.5 Choice of Laws; Litigation Matters 15
19.6 Nonliability of Buyer and Seller Officials 15
19.7 Gender; Number 15
19.8 Survival 15
19.9 Time of Essence 15
19.10 Time Period Computations 15
19.11 Waiver or Modification 15
19.12 City Approvals and Actions 16
19.13 Broker’s Fees 16
19.14 Duplicate Originals 16
19.15 Severability 16
19.16 Exhibits 16
19.17 Entire Agreement; Amendment 16
EXHIBITS
Exhibit “A” Legal Description of Property
Exhibit “B” Form of Grant Deed
Exhibit “C” Form of Affidavit of Non-Foreign Entity
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EXHIBIT “D”
TO AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS*
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