AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
WITH ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY WITH ESCROW INSTRUCTIONS (Agreement") is entered into as of _ WESTER DESIDE TURNT _ 2023 (the "Effective Date") between COUNTY REGIONAL
CONSERVATION AUTHORITY, a public agency and a joint powers authority (referred to nterchangeably herein as "RCA" and as "Purchaser"), and RUY TSUN LEE and SIU PI LEE Trustees or their successors in trust, under The Lee Living Trust, dated March 29, 2011 and any amendments thereto, (referred to herein as "Seller").
RECITALS
A. Seller is the owner of approximately 2.17 acres of real property located in Lake Elsinore, California, Assessor's Parcel Number 371-100-003 ("Rcal Property"), more particularly described in the Legal Description attached as Exhibit A.
B. Purchaser desires to purchase the Property to augment the wildlife and plant habitat conservation region in the same geographic area, and Seller desires to sell the Property, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above Recitals, which are incorporated into this Agreement, in consideration of the mutual promises set forth herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Seller and Purchaser hereby agree as follows:
Definitions. As used in this Agreement the following terms shall have the following definitions:
"Agreement" is defined in the preamble.
"Approved Exceptions" is defined in Section 9(cC).
"Assignment" is defined in Section 19.
"Close of Escrow" is defined in Section 11(d).
"Closing Date" is defined in Section 11(d).
"Deed" is defined in Section 11(b)(i).
"Disapproved Exception" is defined in Section 9(d)
"Effective Date" is defined in the preamble.
"Environmental Laws" means all federal, state, local, or municipal laws, rules, odes relations, salutes on, or ineposing liablecreer standards of condue congoing any -1- Rtee
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Hazardous Substance (as defined subsequently in this Agreement), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property), occupational or environmental conditions on, under, or about the Property, as now in effect, including without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Superfund Amendments and Reauthorization Act of 1986 (SARA) [42 U.S.C.A. $$ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) and the Solid Waste Disposal Act [42 U.S.C.A. $§ 6901 et seq.]; the Clean Water Act. also known as the Federal Water Pollution Control Act (FWPCA) [33 U.S.C.A. $§ 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 U.S.C.A. §$ 2601 et seq.]; the Hazardous Matenals Transportation Act (HMTA) [49 U.S.C.A. §$ 1801 et seq.]; the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) [7 U.S.C.A. $$ 136 et seq.]; the Clean Air Act (CAA) [42 U.S.C.A. $'$ 7401 et seq.]; the Safe Drinking Water Act (SDWA) [42 U.S.C.A. $$ 300f et seq.]: the Surface Mining Control and Reclamation Act of 1977 (SMCRA) [30 U.S.C.A. $$ 1201 et seq.]; the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA or EPCRTKA) [42 U.S.C.A. $$ 11001 et seg.]; the Occupational Safety and Health Act of 1970 (OSHA) [29 U.S.C.A. $$ 651 et seq.]; the California laws regarding the underground storage of hazardous substances [H & S C $$ 25280 et seq.]; the Hazardous Substance Account Act [H & S C $$ 25300 ct seq.]; the California laws regarding hazardous waste control [H & S C $$ 25100 ct seq.]; the Safe Drinking Water and Toxic Enforcement Act of 1986 [H & S C $$ 25249.5 et seq.]; the Porter-Cologne Water Quality Control Act [Wat C §$ 13000 et seq.], and any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect that pertains to occupational health or industrial hygiene, and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.
"EPA" is defined in Section (b) in the definition for "Hazardous Substances." "Escrow" is defined in Section 4.
"Escrow Agent" is defined in Section 4.
"Exception" is defined in Section 9(c).
*Existing Adverse Condition" is defined in Section 8(a). "Feasibility Period" is defined in Section 5(a).
"FIRPTA Affidavit" is defined in Section 11(b)(ii).
"Hazardous Substances" includes without limitation:
(a) Those substances included within the definitions of hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminant" in CERCLA, RCRA, TSCA, HMTA, or under any other Environmental Law; -2- PLe
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Those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the Environmental Protection Agency (EPA), or any successor agency, as hazardous substances [40 CFR Part 302]; (c) Other substances, matenals, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and (d) Any material, waste, or substance that is:
(i) a petroleum or refined petroleum product,
(ii) asbestos,
(iii) polychlorinated biphenyl.
designated as a hazardous substance pursuant to 33 U.S.C.A. $ 1321 or listed pursuant to 33 U.S.C.A. § 1317,
(v) a flammable explosive, or
(vi) a radioactive material.
"Installation Contract" and "Installation Notice" are defined in Section 10. "Laws" shall mean all federal, state and local laws, codes, ordinances and regulations, excluding Environmental Laws.
"Monetary Liens" is defined in Section 9(c).
"Preliminary Report" is defined in Section 9(a).
"Prevailing Party" is defined in Section 20.
"Property" means collectively the Real Property, all improvements presently or hereafter existing on the Real Property, all water rights, all mineral rights, all plans and specifications relating to the present or planned construction of improvements on the Real Property, including all govemmental permits or licenses, utility contracts, scrvice contracts, maintenance contracts, operating contracts, or other intangible property (if any) now or in the future owned by Seller in connection with the development, operation, or ownership of the Property or other rights relating to the ownership, use, or operation of the Property, including all materials purchased by Seller for use on the Property or in the construction of improvements on the Property, and all of Seller's rights in and to any fees paid to any govemmental agency or utility. "Purchase Price" is defined in Section 3.
"Purchaser" is defined in the preamble.
"RCA" is defined in the preamble.
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"Seller" is defined in the preamble.
"Title Policy" is defined in Section 11(a).
*Withholding Affidavit" is defined in Section 11(b)(iii). 2 Purchase and Sale. Seller agrees to sell and Purchaser agrees to purchase the Property subject to the terms and conditions in this Agreement.
Purchase Price. The purchase price for the Property shall be ONE HUNDRED FOUR THOUSAND AND 00/100 DOLLARS ($104,000) ("Purchase Price"). On or before the Closing Date, Purchaser shall deposit with Escrow Agent the full amount of the Purchase Price in cash or in immediately available funds.
4. Escrow. By this Agreement, Purchaser and Seller establish an escrow ("Escrow") with a reputable title company chosen by Purchaser (the "Escrow Agent"), subject to the provisions of the standard conditions for acceptance of escrow and the terms and conditions in this Agreement, with a signed counterpart of this document to be delivered as escrow instructions to Escrow Agent. In the event of any conflict between the terms of this Agreement and the standard conditions for acceptance of escrow, the terms of this Agreement shall control. RCA's agent for matters related to the Closing of Escrow shall be RCA staff.
5. Feasibility Period
(a) During the period commencing on the date of this Agreement and terminating on a date which is sixty (60) days from the date of this Agreement ("Feasibility Period"), Purchaser may undertake at Purchaser's expense an inspection of the Property. Said inspection may include: (i) a review of the physical condition of the Propcity, including but not limited to, inspection and examination of soils, environmental factors, Hazardous Substances, if any, and archeological information relating to the Property; and (i) a review and investigation of the cffect of any zoning, maps, permits, reports, engineering data, regulations, ordinances, and laws affecting the Propcity. Within ten (10) days following the full execution of this Agreement by both parties. Seller shall deliver to Purchaser copies of all surveys and other documents pertaining to the physical or environmental condition of the Property that are owned by or in the possession of Seller.
(b) If Purchaser's environmental consultant requires additional time to detenmine the existence and extent of any Hazardous Substances on the Property, Purchaser shall have the right, exercisable by delivering written notice to Seller prior to the expiration of the Feasibility Period, to extend the Feasibility Period for up to an additional sixty (60) days to complete the testing.
(c) If Purchaser disapproves of the results of the inspection and review or the results of any Phase I Environmental Report, Purchaser may elect, prior to the last day of the Feasibility Period (or any extension thereof), to terminate this Agreement by giving Seller written notification prior to the last day of the Feasibility Period (or any extension thereof). If Purchaser fails to properly notify Seller of the intent to terminate this Agreement. Purchaser shall be deemed 4-
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to be satisfied with the results of the inspection and shall be deemed to have waived the right to terminate this Agreement pursuant to this provision.
Conditions to Purchaser's Performance. Purchaser's obligation to perform under this Agreement is subject to the following conditions:
Purchaser's approval of the condition of the Property as provided in Section
5. In addition, the Seller shall remove any debris or trash from the Property prior to the Close of Escrow;
Purchaser obtaining, by the end of the Feasibility Period, funding in an amount required for the acquisition of the Property. In the cvent that RCA needs to obtain funds from State or federal governments, then Seller agrees to extend the Close of Escrow to allow for such funding.
(c) Seller's representations and warranties in this Agreement being correct as of the date of this Agrement and as of the Close of Escrow:
(d) No adverse material change shall have occurred with respect to the condition of the Property from the end of the Feasibility Period through the Closing Date:
(e) Seller's performance of all obligations under this Agreement; (f) Escrow Agent being prepared to issue the Title Policy on the Close of Escrow, subject only to the Approved Exceptions; and
(g) This Agreement shall be expressly contingent upon formal acceptance and approval by the Purchaser's Board of Directors of this Agreement. To allow members of the Board of Directors to comply with Government Code section 84308, Seller agrees to disclose any contribution(s) given to members of the Board of Directors of more than $250 within the preceding twelve (12) months on the form attached hereto as Exhibit "D." Conditions to Seller's Performance. Seller's obligation to perform under this Agreement is subject to Purchaser's performance of all of the obligations which it is required to perfor pursuant to this Agreement.
8. Access.
(a) Access to the Property during the Feasibility Period shall be given to Purchaser, its agents, employees, or contractors during normal business hours upon at least onc (1) business day's notice to Seller, at Purchaser's on cost and risk, for any purposes, including, but not limited to, inspecting the Property, taking samples ofthe soil, and conducting an environmental audit (including an investigation of past and current uses of the Property). Purchaser shall indemmity and defend Seller against and hold Seller harmless from all losses, costs, damages, liabilities, and expenses, including, without limitation, reasonable attorney fees arising out of Purchaser's entry onto the Property or any activity thereon by Purchaser or its agents, employees, or contractors prior to the Close of Escrow excopt to the extent any such losses, costs, damages, liabilities, and expenses arise out of the gross negligence or willful acts of Seller. Any entry onto -5- R Lee
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the Property by Purchaser or its agents, employees, or contractors shall be at reasonable times. The provisions of this Section shall survive the Close of Escrow. Notwithstanding anything herein to the contrary, Purchaser and Seller agree that Purchaser shall not incur any liability hereunder merely by the discovery of an "Existing Adverse Condition" (as defined below) regardless of whether such Existing Adverse Condition, once revealed, negatively impacts the value of the Property or othervise causes Seller to incur liabilities, costs or expenses. The tern "Existing Adverse Condition" shall mean an adverse condition existing on or with respect to the Property that is discovered or revealed by Purchaser in the course of its Property inspection hereunder. (b) In addition to the provisions of Section 8(a), Purchaser and its agents, employees, or contractors shall have the right, from the date of this Agreement until the Closing Date, to contact any federal, state, or local govermental authority or agency to investigate any matters relating to the Property. Seller agrees to cooperate reasonably with Purchaser and its agents, employees, or contractors in the inspection of the Property and agrees to deliver to Purchaser all information in Seller's possession or control pertaining to the condition of the Property, including engineering and environmental reports, studies, tests, monitoring results, and related documentation.
Title.
(a) Within ten (10) days following the execution of this Agreement by both parties, Purchaser shall cause Escrow Agent to issue to Purchaser (with a copy to Seller) a preliminary report foran ALTA Standard Policy of Title Insurance for the Property, setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters of record affecting Seller's title to the Property ("Preliminary Report"), together with copies of all documents relating to title exceptions referred to in the Preliminary Report.
(b) Seller agrees to deliver to Purchaser, promptly following the full execution and delivery of this Agreement, copies of any survey of the Property in the possession of Seller. (c) Purchaser shall approve or disapprove, in writing to Seller with a copy to Escrow Agent, each exception shown on the Preliminary Report and each encroachment, overlap. or boundary line dispute, or any other matter that materially and adversely affects title to the Property or that violates any law, rule, or regulation (each an "Exception") within thirty (30) days following the receipt of the Preliminary Report or the execution of this Agreement, whichever is later ("Review Period"). Purchaser's failure to approve or disapprove within the Review Period shall be deemed to be a disapproval of the Exceptions. The Exceptions approved by Purchaser hercunder shall be referred to as the "Approved Exceptions." All monetary liens or monctary yet due and payable (collectively, "Monetary Liens") are disapproved and Seller shall eliminate the same prior to or upon the Closing Datc.
If any Exception is disapproved or deemed disapproved (cach a "Disapproved Exception"), Seller shall have the right, but not the obligation, within thirty (30) days following expiration of the Review Period, to cause each Disapproved Exception to be discharged, satisficd, released, or terminated, as the casc may bo, of record, and in a form that is -6-
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reasonably satisfactory to Purchaser and Escrow Agent, all at Seller's sole cost and expense. Seller authorizes Escrow Agent to disburse from the cash portion of the Purchase Price and proceeds otherwise disbursable to Seller upon Closing the sum sufficient to discharge any Disapproved Exception that may be discharged only by the payment of money. If Seller is unable or unwilling 10 obtain a discharge, satisfaction, relcase, or termination of any Disapproved Exception within the period specified above, then this Agreement shall automatically terminate ten (10) business days after expiration of the thirty day period for curing the Disapproved Exceptions or after Seller advises Purchaser in writing that Seller is unable or unwilling to cause such discharge, satisfaction, release, or termination, Whichever occurs first, unless within such ten business day period Purchaser waives in writing such Disapproved Exception, in which event such Disapproved Exception shall be deemed an Approved Exception under this Agreement. If this Agreement terminates pursuant to the foregoing sentence, then Seller shall pay all charges of the Escrow Agent in connection with this transaction, including the charges of the surveyor and environmental engineering company, the parties shall be relieved of all further obligations and liabilities to each other under this Agreement except as otherwise provided herein. and all funds and documents deposited with Escrow Agent shall be promptly refunded or returned, as the case may be, by Escrow Agent to the depositing party. Anything above to the contrary notwithstanding, it is understood and agreed that Purchaser's indemnity obligations under Section 8 shall not terminate upon termination of this Agreement pursuant to this or any other provision hereof.
10. l Marker Installation Contract. Seller shall execute a "fixed price" or "not to exceed price" contract for the installation of survey markers and white pipes [at a minimum of six (6) feet in height] ("Installation Contract"). Survey markers shall be installed in accordance with Riverside County Ordinance 460, section 9.10 and Ordinance 461, section 21 (attached herein as Exhibit "B"). Seller shall deposit with Escrow Agent prior to Close of Escrow a copy of the Installation Contract and Escrow Agent shall retain in Escrow sufficient of Seller's fundsto pay the Installation Contract, which payment may occur after the Close of Escrow. Seller shall provide Purchaser and Escrow Agent with a Completion Notice, evidencing the completion of all work under the Installation Contract, along with a copy of the survey required to install survey markers, as required by State law. Within thirty (30) days after reccipt of such Completion Notice, Purchaser shall provide written notice to Seller and Escrow Agent ("Installation Notice") that RCA approves of all work done under the Installation Contract; or, in the alternative, such Installation Notice shall detail any objections which RCA may have to the work done under the Installation Contract. If Purchaser fails to provide any Installation Notice within thirty (30) days of receipt of any Completion Notice, then of all work done under the Installation Contract shall be deemed to have been approved by Purchaser. Upon Seller's receipt of an Installation Notice containing objections or non-compliance issucs, Seller shall arrange with the contractor to correct all items listed in the Installation Notice. Upon receipt of Seller's second Completion Notice (evidencing the correction of all items listed in Purchaser's Installation Notice), Purchaser shall have fifteen (15) days to provide a second Installation Notice to Seller and Escrow Agent. Should Purchaser's second Installation Notice contain any objections or corrections not yet satisfactorily completed, then Seller shall once again arrange for the remaining corrections. Upon completion, Seller shall once again issue a Completion Notice to Purchaser and to Escrow Agent. In the event all objections and corrections have not yet been satisfied/completed, Purchaser shall have the right to engage a different contractor to complete the work and Seller agrees to bear the costs for the difterent contract to complete the work described in Purchaser's Installation Notice(s). Any contractor retained by Scller or Purchascr under this Section 10 shall have a right of entry onto the Property. -7-
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Escrow Agent's payment in full of the Installation Contract (directly to the contractor shall only occur upon Escrow Agent's receipt of the following documents:
(i) Purchaser's confirmation to Escrow Agent that all work under the Installation Contract has been completed satisfactorily; and (ii) a conditional lien release by contractor (if required) for the full payment to be made under the Installation Contract.
11. Close of Escrow.
(a) Title. Simultaneously. with the Close of Escrow, Escrow Agent shall issue an ALTA Standard Policy of Title Insurance (formerly referred to as a CLTA Title Policy) ("Title Policy") in the amount of the Purchasc Pricc, subject only to Approved Exceptions.
Seller's Deposits into Escrow. Seller shall deposit with Escrow Agent on or prior to the Close of Escrow the following documents:
a grant deed in the form attached hereto as Exhibit "C" executed and acknowledged by Sciler, conveying to Purchaser good and marketable fee simple title to the Property, subject only to the Approved Exceptions ("Deed"); (ii) Seller's affidavit of nonforeign status as contemplated by Section 1445 of the Internal Revenue Code of 1986, as amended (FIRPTA Affidavit"):
(111) California Franchisc Tax Board Form 593-C regarding the withholding of Califomia taxes on the sale of California real estate (Withholding Affidavit"); (iv) copy of the Installation Contract and the Completion Notice described in Section 10; and
(V) Seller's approval of the draft of Escrow Agent's closing statement.
Purchaser's Deposits into Escrow. Purchaser shall deposit with Escrow Agent, on or prior to the Close of Escrow, the balance of the Purchase Price in accordance with Section 3, the Certificate of Acceptance for the Grant Deed, and Purchaser's approval of the draft of Escrow Agent's closing statement. Purchaser shall deposit with Escrow Agent prior to or after the Close of Escrow, the documents related to the Installation Contract described in Section 10. (d) Closing Date. The conveyance of the Property to Purchaser and the closing of this transaction ("Close of Escrow") shall take place within five (5) business days of the satisfaction of the conditions set forth in Section 6 and Section 7, provided, however, that in no event shall the Close of Escrow occur later than March 8, 2024 ("Closing Date"), except as otherwise agreed by Purchaser and Seller in writing or unless the Feasibility Period shall have been extended, in which casc the Closing Date shall be similarly extended. Either Purchaser or Seller shall have the right to terminate Escrow and this Agreement if the conditions set forth in Section 6 (for Purchaser) or Section 7 (for Seller) have not been satisfied as of the Closing Date. -8- R: Lee
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(c) Closing Statement. No more than two days prior to the Closing Date.
Escrow Agent shall deliver to Purchaser and to Seller, for their respective approvals, drafts of Escrow Agent's closing statement showing all receipts and disbursements of the Escrow. (f) Closing Instructions. On the Closing Date (or any extension thereof).
Escrow Agent shall close Escrow as follows:
(i) record the Deed (marked for return to Purchaser) with the Riverside County Recorder;
(ii) issue the Title Policy:
(iii) prorate taxes, assessments, rents, and other charges as provided in Section 11(g);
(iv) retain an amount of Seller's funds sufficient to pay the contractor under the Installation Contract described in Section 10; (v) disburse to Seller the Purchase Price less prorated amounts and charges to be paid by, retained for, or on bchalt of Seller; (VI) charge Purchaser for those costs and expenses to be paid by Purchaser pursuant to this Agreement and disburse any net funds remaining after the preceding disbursements to Purchaser:
prepare and deliver to both Purchaser and Scller one signed copy of Escrow Agent's closing statement showing all receipts and disbursements of the Escrow; (viii) deliver to Purchaser an Assignment (if any), the FIRPTA Affidavit, and the Withholding Affidavit and withhold from the Purchase Price a sufficient amount necessary to comply with any federal or State withholding requirements.
If Escrow Agent is unable to simultaneously perform all of the instructions set forth above, Escrow Agent shall notify Purchaser and Seller and retain all fundsand documents pending receipt of further instructions jointly issued by Purchaser and Seller. It is mutually further agreed by and between Purchaser and Seller that if all, and each and every one, of the terms and conditions of this Purchase Agreement are not met within their respective specified time periods, then the Purchaser's deposit, if any, shall be immediately retumed to Purchaser, this Purchase Agreement and the Escrow shall terminate and neither party shall have any further rights or obligations to the other party, and the Escrow shall be cancelled, unless extended in writing by both Purchaser and Seller.
(g) Cost Allocations. Escrow Agent shall allocate the following costs at the Close of Escrow:
(i) Seller shall pay:
(A) all charges in connection with the Installation Contract; and -9-
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(B) all charges in connection with removing any Disapproved Exceptions pursuant to Section 9(d) and to cure any defect in vesting in order to satisty the condition set forth in Section 6(f).
(ii) Purchaser shall pay:
(A) the recording charges in connection with recordation of the Deed; provided, however, that this Deed is entitled to be recorded without a tee pursuant to Government Code Section 27383 because the Deed is for the benefit of a public agency; (B) all governmental conveyancing fees and taxes due upon transfer of the Property, provided, however, that no documentary transfer tax will be payable with respect to this transaction, pursuant to Revenue and Taxation Code Section 11922; (C) all charges in connection with issuance of'a ALTA Standard Policy of Title Insurance in the amount of the Purchase Price; and (D) the escrow fee charged by Escrow Agent.
(iii) Real Estate Taxes. Seller shall pay rcal property taxes at the Close of Escrow based on the most current real property tax bill available, including any additional property taxes that may be assessed after the Close of Escrow, regardless of when notice of those taxes is received or who receives the notice. Seller may seek reimbursement from the Riverside County Tax Assessor's office for any property taxes that have been assessed for a period after the Close of Escrow as Purchaser is a public agency exempt from payment of such taxes. Purchaser further agrees to cooperate with Seller to provide any necessary information to the Assessor's office in connection with such request for refund.
(iv) Bonds. and Assessments. All present and future installments of any bond or assessment that constitutes a lien on the Property as of the Close of Escrow shall be paid by Seller.
(h) Possession. Possession of the Property shall be delivered to Purchaser at the Close of Escrow.
12. Damage and Destruction.
(a) If any portion of the Real Property is damaged by earthquake, mudslide, fire, release of or exposure to any Hazardous Substances, or any other casualty (other than any damage caused by Purchaser or its employees, agents, or contractors) prior to the Close of Escrow, such that the cost of fully repairing and correcting such damage is less than ten percent (10%) of the Purchase Price, Purchaser and Seller shall consummate this Agreement, but the cash portion of the Purchase Price payable at the Close of Escrow shall be reduced by an amount necessary to fully repair or correct any damage to the Real Property. (b) If any portion of the Real Property is damaged by earthquake, mudslide, fire, relcase of' or exposure to any Hazardous Substances, or any other casualty (other than any damage caused by Purchaser or its employees, agents, or contractors), prior to the Close of Escrow, -10-
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such that the cost of fully repairing or correcting such damage exceeds ten percent (10%) of the Purchase Price, as determined by the Purchaser, Purchaser may elect either (i) to terminate this Agreement upon written notice to Seller, in which event neither party shall have any further obligations under this Agreement except as othervise provided in this Agreement, or (ii) to proced with the purchase of the Property, in which event this Agreement shall remain in full force and effect, and Seller shall pay or assign to Purchaser (A) any amount due from or paid by any insurance company or any other party as a result of the damage and (B) the amount of any deductible under Seller's insurance policy and/or the cost of repairing or correcting such damage not covered by insurance shall be credited against the cash portion of the Purchase Price and shall reduce the amount payable at Close of Escrow pursuant to Section 3 herent.
13. Condemnation.
(a) If any portion of the Property is taken by condemnation or eminent domain by a third party of is the subject of a threatened or pending condemnation or eminent domain proceeding by a third party that has not been consummated prior to the Close of Escrow resulting in a decrease in the value of the Property in an amount not exceeding ten percent (10%) of the Purchase Prico, Purchaser and Seller shall consummate this Agreement without change in the Purchase Price, provided that Seller shall assign to Purchaser Seller's rights to all awards for the condemnation or taking and shall indemnify and guarantee Purchaser with respect to any costs incurred by Purchaser in repairing and restoring the Property that are not paid by such awards. (b) If any portion of the Property is taken by condemnation or eminent domain by a third party or is the subject of a threatened or pending condemnation or eminent domain proceeding by a third party that has not been consummated prior to the Close of Escrow resulting in a decrease in the value of the Property in an amount in excoss of ten percent (10%) of the Purchase Price, as determined by the Purchaser, Purchaser may elect either to terminate this Agreement upon written notice to Seller and Escrow Agent or to consummate this Agreement, in which event Seller shall assign to Purchaser Seller's rights to all awards for the condemnation or taking, but without the indemnity and guarantee provided in subsection (a) above. Upon termination, neither party shall have any further obligations under this Agreement except as otherwise provided in this Agreement.
Seller's Representations and Warranties. Seller represents and warrants to Purchaser that as of the date of this Agreement and as of the Close of Escrow:
(a) Hazardous Substances. The Property: (i) is free from Hazardous Substances: (1) contains no buried or partially buried storage tanks located on the Property; (iii) has not becn used for the gencration, storage or disposal of any Hazardous Substance and no Hazardous Substance has been spilled, disposed of, orstored on, under, or at the Property; and (iv) has never been used as a dump or landfill;
(b) Compliance with Law. The Property is in material compliance with all applicable Laws and Environmental Laws;
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(C) Leases. No recorded or unrecorded leases, licenses, or other agreements allowing any third party rights to use or rights of possession in the Property are or will be in force as of the Closing;
(d) Litigation and Investigations. There is no pending or threatened litigation, administrative proceeding, or other legal or governmental action with respect to the Property, and Seller has received no notice, warning, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Property are or have been in violation of any Laws or Environmental Laws, or informing Seller that the Property is subject to investigation or inquiry regarding the violation of any Laws or Environmental Laws. (e) Condition of Property. There are no natural or artificial conditions upon the Property or any part of the Property that could result in a material and adverse change in the condition of the Property:
(t) Access to the Property. There is vehicular access to the Property cither directly through a public right of way or through a recorded easement; and (g) No Insolvency Proceedings. Seller has not (i) made a general assignment for the benefit of creditors: (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors: (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; (iv) suffered the attachment or other judicial seizure of substantially all of its assets; or (v) admitted in writing its inability to pay its debts as they come duc.
(h) No Other Agreements. Undertakings or Tenancies. Seller will not enter into any agreements or undertake any new obligations prior to Close of Escrow which will in any way burden, encumber or otherwise aftect the Property without the prior written consent of Purchaser. (1) Disclosure. Seller has disclosed to Purchaser all information, records, and studies in Seller's possession in connection with the Property, including any reports or studics concerning Hazardous Substances. All information that Seller has delivered to Purchaser, either directly or through Seller's agents, is accurate and Seller has disclosed all material facts concerning the operation, development, or condition of the Property.
Seller shall promptly notify Purchaser of any facts that would cause any of the representations contained in this Agreement to be untrue as of the Close of Escrow. If Purchaser reasonably concludes that a fact materially and adversely affects the Propcity, Purchascr shall have the option to terminate this Agreement by delivering written notice to Seller and Escrow Agent. If Purchaser terminates this Agreement pursuant to this Section, Escrow Agent shall cancel the Escrow and Seller shall be responsible for all costs of escrow.
15. Indemnity.
(a) Seller agrees to indemnity, defend and hold Purchaser harmless from all Damages (as defined in sub-section (b) below) to the fullest extent not prohibited by applicable law, and all other costs and expenses incurred by reason of (i) the breach or inaccuracy of any warranties and representations in Section 14, and/or (ii) any third-party claims arising out of or -12-
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related to the ownership and use of the Property with respect to any period prior to the Close of Escrow.
(b) Definition of Damages. "Damages" shall mean all liabilities, demands claims, actions or causes of action, regulatory, legislative or judicial proceedings, assessments levies, losses, fines, penalties, damages, costs and expenses, in each case as awarded by a court or arbitrator, including, without limitation, reasonable attorneys' fees. (c) Notice: Third Party Claims.
(i)
Section 15, the party entitled to indemnification (indomnified party") shall promptly notify, in writing, the other party from whom indemnity may be sought under this Section 15 ("indemnifying party"), of the claim and, when known, the facts constituting the basis for such claim; provided. however, that the indomnified party's failure to give such notice shall not affect any rights or remedies of such indemnified party hercunder with respect to indemnification for Damages except to the extent that the indemnifying party is prejudiced thereby. (ii) In the event of any claim for indemnification hereunder resulting from or in connection with any claim or legal proceeding by a third party, the notice to the indemnifying party shall specify, it known, the amount or any estimate of the amount of the liability arising therefrom. Neither the indemnified party nor any indemnifying party shall settle or compromise any claim by a third party for which the indemnified party is entitled to indemnification hercunder, without the prior written consent of the other party, unless suit shall have been instituted against the indemnified party and the indemnitying party shall not have taken control of such suit after notification thereof as provided hereinafter. (iii) Upon receipt of a claim, the indemnifying party shall promptly undertake the defense of the claim with counsel rcasonably acceptable to the indemnified party.
At its own expense, the indemnified party shall have the right to participate in the defense with counsel of its own choice. If the indemnified party has assumed the defense of any such claim or legal proceeding on account of the indemnifying party's failure or refusal to prosecute such claim or legal proceeding, then all costs and expenses incurred by the indemnified party in connection with such assumption shall constitute Damages. Each party agrees to cooperate fully with the other, such cooperation to include, without limitation, attendance at depositions and the provision of relevant documents as may be reasonably requested by the indenmitying party: provided. however, that the indemnifying party will hold the indemnified party harmless from all of its expenses and costs, including attorneys' fees and costs, as and when incurred in connection with such cooperation by the indemnified party.
16. Seller's Covenants. Commencing with the full exccution of this Agreement by both parties and until the Close of Escrow:
(a) Seller shall not permit any liens, encumbrances, or easements to be placed on the Property, other than the Approved Exceptions, nor shall Seller enter into any agreement regarding the sale, rental, management, repair, improvement, or any other matter affecting the -13-
26493.00731 41351695.3 RLee
^D.
Property that would be binding on Purchaser or the Property after the Close of Escrow without the prior written consent of Purchaser.
(b) Seller shall not permit any act of waste or act that would tend to diminish the value of the Property for any reason, except that caused by ordinary wear and tear.
17. Authority of Parties.
(a) Seller Warrants that this Agreement and all other documents delivered prior to or at the Close of Escrow have been authorized, executed, and delivered by Seller: (1) are binding obligations of Seller; and (il) are collectively sufficient to transfer all of Seller's rights to the Property and do not violate the provisions of any agreement to which Seller is a party or which affects the Property. It Seller is a corporation, partnership, limited partnership, limited liability company, trust or other legal entity, then Seller further represents that Seller is duly formed and validly existing and in good standing under the laws of the jurisdiction set forth in the first paragraph of this Agreement. It said jurisdiction is other than California, then Seller warrants that to the extent required by applicable law. Seller is registered to do business and is in good standing in the state of California.
(b) Purchaser warrants that this Agreement and all other documents delivered prior to or on the Close of Escrow have been authorized, executed, and delivered by Purchaser; and are binding obligations of Purchaser.
(C) The parties warrant that the persons executing this Agreement on their behalf are authorized to do so, and on exccution of this Agreement. this Agreement shall be valid and enforceable against Purchaser or Seller in accordance with this Agreement.
18. Brokers. Each party shall be solely responsible for the fees or commissions of any broker that has been retained or consulted by such party in connection with this transaction. Each party agrees to defend, indemnify, and hold harmless the other party from any claims, expenses. costs, or liabilities arising in connection witha claim by a broker for any such fees or commissions.
19. Assignment. Purchaser shall have the right to assign all rights and liabilities under this Agreement to any party or governmental agency.
Attorney Fees. In any action to enforce the terms of this Agreement, the Prevailing Party shall be entitled to recover from the nonprevailing party all reasonable attorneys' fees and costs. "Prevailing Party" shall include without limitation a party who dismisses an action in exchange for sums allegedly due; the party who receives performance from the other party for an alleged breach of contract or a desired remedy where the performance is substantially equal to the relief sought in an action; or the party determined to be the prevailing party by a court of law.
21. Notices. As used in this Agreement, notice includes but is not limited to, the communication of any notice, request, demand, approval, statement, report, acceptance, consent, waiver and appointment. All notices must be in writing. Notice is given either (i) when delivered in person to the person or company intended named below; or (ii) when sent via reputable overnight courier (such as Federal Express), addressed by name and addressed to the party or persons intended, as follows:
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-Inn
To RCA: Western Riverside County Regional
Conservation Authority
P.O. Box 12008
Riverside, CA 92502
Phone: (951) 787-7141
Attention: Executive Director
With copy to: Best Best & Krieger LLP
P.O. Box 1028
Riverside, CA 92502
Phone: (951) 686-1450
Attention: Steven C. DeBaun
To Seller: Ruy Tsun Lee
Siu Pi Lee
420 S Old Ranch Rd
Arcadia, CA 91007
Phone:( )
until such time as a party gives notice of the change of address in accordance with the terms of this section.
22. Entire Agreement. This Agreement and the documents referenced herein contain the entire agreement between the parties to this Agreement and shall not be modified in any manner except by an instrument in writing exccuted by the parties or their respective successors in interest.
23. Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected.
24. Waivers. A waiver or breach of covenant or provision in this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement, and no waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act.
25. Construction. The Section headings and captions of this Agreement arc, and the arrangement of this instrument is, for the sole convenience of the parties to this Agreement. The Section headings, captions, and arrangement of this instrument do not in any way affect, limit, amplity, or modify the terms and provisions of this Agreement. The singular form shall include plural, and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all references to Sections are to this Agreement. All exhibits referred to in this Agreement are attached to it and incorporated in it by this reference.
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26. Merger. All of the terms, provisions, representations, warranties, and covenants of the parties under this Agreement shall survive the Close of Escrow and shall not be merged in the Deed or other documents.
27. Counterparts. This Agreement may be executed in one or more counterparts. Each shall be deemed an original and all, taken together, shall constitute one and the same instrument.
No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties hereto, to any person or entity other than the parties hereto.
29. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto.
30. Time of the Essence. Time is of the essence in this Agreement.
31. Successors. This Agreement shall inure to the benefit of and shall be binding upon the parties to this Agreement and their respective heirs, successors, and assigns.
32. Governing Law and Venuc. This Agreement and any dispute arising hereunder shall be governed by California law. Each party hereby consents 1o the exclusive jurisdiction of the state and federal courts sitting in the County of Riverside, State of California, in any action on a claim arising out of, underor in connection with this Agreement or the transactions contemplated by this Agreement. SELLER HEREBY ACKNOWLEDGES THATTHE FOREGOING VENUE
PROVISIONS HAVE BEEN CHOSEN AS THE APPROPRIATE AND CONVENIENT
FORUM FOR ANY SUCH ACTION AND WAIVES ANY RIGHT TO OBJECT TO
JURISDICTION ON THE BASIS OF LACK OF PERSONAL JURISDICTION OR FORUM NON CONVENIENS. Seller hereby consents to service of process via mail or overnight courier to the address specified in Section 19 or by any other method permitted under California law.
33. Survival. All representations, warranties, covcnants and indemnity obligations of the parties shall survive the Closing of this Agreement.
Cooperation. Seller understands that RCA may seek from third party governmental agencies funding to reimburse RCA in whole or in part for the Purchase Price of the Property.
Seller agrees to reasonably cooperate to assist RCA during the process to seek such funding and to provide such documentation as reasonably necessary to assist RCA in applying for such funding. [SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR THE AGREEMENTFOR PURCHASE AND SALE OFREAL PROPERTY with Escrow Instructions BETWEEN THE WESTERN RIVERSIDE COUNTY
REGIONAL CONSERVATION AUTHORITY AND RUY TSUN LEE AND SIU PI LEE,
TRUSTEES OR THEIR SUCCESSORS IN TRUST, UNDER THE LEE LIVING TRUST, DATED MARCH 29, 2011, AND ANY AMENDMENTS THERETO.
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement to be effective on and as of the Effective Date set forth in the preamble to this Agreement.
PURCHASER: SELLER:
WESTERN RIVERSIDE COUNTY RUYTSUN LEE and SIU PI LEE, Trustees REGIONAL CONSERVATION or their successors in trust, under The Lee AUTHORITY, a public agency and a joint Living Trust, dated March 29, 2011, and powers authority any amendments thereto
Recy Taun Lee, Trustee
By: By:
Anne Mayer
Executive Director Ruy Tsun Lee, Trustee
By: 'Fee, Trustee
Sin PiLe e, Trustee
Approved as to Form:
Best Best & Krieger LLP
By:
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REve
SIGNATURE PAGE FOR THE AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY with Escrow Instructions BETWEEN THE WESTERN RIVERSIDE COUNTY
REGIONAL CONSERVATION AUTHORITY AND RUY TSUN LEE AND SIU PI LEE,
TRUSTEES OR THEIR SUCCESSORS IN TRUST, UNDER THE LEE LIVING TRUST, DATED MARCH 29, 2011, AND ANY AMENDMENTS THERETO.
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement to be effective on and as of the Effective Date set forth in the preamble to this Agreement.
PURCHASER: SELLER:
WESTERN RIVERSIDE COUNTY RUY TSUN LEE and SIU PI LEE, Trustees REGIONAL CONSERVATION or their successors in trust, under The Lee AUTHORITY, a public agency and a joint Living Trust, dated March 29, 2011, and powers authority any amendments thereto
By: By:
Ruy Tsun Lee, Trustee
Executive Director
By:
Siu Pi Lee, Trustee
Approved as fo Form;
Best Best & Krieger LLP
By: -
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EXHIBIT A
LEGAL DESCRIPTION
LL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF LAKE ELSINORE, COUNTY O
IVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS
THE NORTHWEST 75' OF SOUTHEAST 225' IN LOT 7, BLOCK "E" OF RANCHO LA LAGUNA, IN THE CITY OF LAKE ELSINORE, COUNTY OF RIVERSIDE, SATE OF CALIFORNIA, AS RECORDED IN BOOK 6, PAGE 296 OF MAPS, RECORDS OF SAN DIEGO COUNTY, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
Assessor's Parcel Number: 371-100-003
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EXHIBIT B
WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY
SURVEY MONUMENT AND GPS SPECIFICATIONS
Survey monuments shall be installed in accordance with Riverside County Ordinance 460, section
9.10 and Ordinance 461, section 21. (See attached Exhibit B-1.) Unless otherwise specified by RCA all monuments shall comply with criteria for Standard "A" monuments. -19-
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EXHIBIT B-1
http://www.clerkoftheboard.co.riverside.ca.us/ords.htm
Ordinance 460
SECTION 9.10. SURVEYS AND MONUMENTS.
At the time of making the survey for a final map or parcel map, the engineer or surveyor hel lasses and Protesions ode and also comply with he regimens of ordinance No. 46l and with the requirements of the County Surveyor.
All monuments for final maps and parcel maps shall be set prior to the recordation of the map. The land divider may execute a secured agreement or cash bond guaranteeing the setting of the monuments upon approval by the County Surveyor.
Ordinance 461
21. MONUMENTS
21.01 General Requirements: The subdivision boundaries, lot corners, road, street, highway centerline, angle points in all lines, beginning and end of all curved lines, shall monumented in accordance with the hereinafter described standard monuments and procedures. Any monument having characteristics other than the hereinafter described may be used only upon written approval of the County Surveyor. If an existing record and identified monument is found on the ground at the location of a subdivision corner, this monument may be used in lieu of replacement with a new monument provided the existing monument is a type considered to be durable.
21.02 Standard "A" Monuments: This monument is to be one inch (inside diameter) iron pipe eighteen (18"') inches long. A metal disc or plastic plug bearing the registered civil engineer or land surveyor number shall be securely affixed to the top of the pipe. The top surface of the monument shall be flush with natural ground, flush with surface in paved streets and twelve (12"') inches down in unpaved streets.
21.03 Standard "B" Monuments: This monument is to be an eighteen (18") inch long copper clad steel pin to which is secured at one end a one and one-half (1-1/2") inch conical brass cap.
The monument may be used as an alternate to the type "A" monument to mark centerline control on streets. The monument is to be driven flush with the street pavement. After setting the monument, the Registered Civil Engineer or Land Surveyor number shall be stamped into the surface of the brass cap. Modification of the above standard may be approved by the County Surveyor. See Standard drawing numbers 900 and 901 for further information.
21.04 Standard "C" Monuments: This monument to consist of a 2" x 2" x 18" long redwood stake cut from clear heartwood firmly set in the ground. The exact point of intersection of the lines shall be marked on the top center of the stake by a suitable tack or nail, which in turn shall be used to secure to the stake the metal disk bearing the Registered Civil Engineer or Land Surveyor Number. A 1/2" rebar, 18" long with appropriately stamped plastic cap may be used in place of a -20-
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redwood stake. See monument schedule for use of this monument.
21.05 Standard "D" Monuments: This monument to consist of a 3/4" inside diameter x 18" long galvanized iron pipe, driven to a point not to exceed 1" above the natural ground surface. The exact point of intersection of the lines shall be marked on the top center of the pipe by a suitable tack or nail, which in turn shall be used to secure to the pipe the metal disk bearing the Registered Civil Engineer or Land Surveyor Number of plastic plug with RCE or LS number with mark for exact point. See monument schedule for use of this monument.
21.06 Standard "E" Monuments: This monument to consist of lead plug or steel pin with metal Identification disk set in concrete curb. See monument schedule for use of this monument. -21-
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EXHIBIT C
(GRANT DEED)
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Recorded at request of and return to:
Western Riverside County Regional
Conservation Authority
4080 Lemon St., 3rd Floor
P.O. Box 12008
Riverside, California 92502
Attn: Executive Director
FREE RECORDING
This instrument is for the benefit of the
Western Riverside County Regional
Conservation Authority, and is entitled to be
recorded without fee. (Govt. Code 27383)
(Space above this line reserved for Recorder's use)
GRANT DEED
PROJECT: MULTIPLE SPECIES HABITAT
CONSERVATION PLAN
APN: 371-100-003
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, RUY TSUN LEE and SIU PI LEE, Trustees or their successors in trust, under The Lee Living Trust, dated March 29, 2011 and any amendments thereto, herein called "Grantor", hereby GRANTS to WESTERN RIVERSIDE COUNTY REGIONAL CONSERVATION AUTHORITY, a public agency and joint powers authority ("Grantee"), the real property in the County of Riverside, State of California, described as:
•See Exhibit "A" attached hereto and made a part hereof IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the th day of 20_.
Ruy Tsun Lee, Trustee
Siu Pi Lee, Trustee
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ATTACH NOTARY ACKNOWLEDGEMENTS
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CERTIFICATE OF ACCEPTANCE
This is to certify that the real property conveyed by RUY TSUN LEE and SIU PI LEE, Trustees or their successors in trust, under The Lee Living Trust, dated March 29, 2011 and any to the WESTERN
Dated: _ 20 GRANTEE:
WESTERN RIVERSIDE COUNTY REGIONAL
CONSERVATION AUTHORITY, A public agency
and a joint powers authority
By:_
Anne Mayer
Executive Director
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EXHIBIT D
(CONTRIBUTION DISCLOSURE FORM)
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