PURCHASE AND SALE AGREEMENT
AND ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (the "Agreement"), dated this 4th day of April 2023, is entered into by and between City of Placentia, a California Charter City ("Buyer") and Estate of James E. Crocker ("Seller"), together the "Parties." For and in consideration of the mutual covenants and promises set forth herein, the Parties agree as set forth below, with reference to the following facts:
RECITALS
A. Seller is the owner of that certain parcel(s) of real property and associated improvements located at 207 W. Chapman Avenue. City of Placentia, California, 92870, and particularly identified in the Official Records of the County of Orange as Assessor's Parcel Number(s) 339-033-21 and as more particularly described in Exhibit A hereto, together with all rights, title and interest in and to all appurtenances and improvements located therein (collectively, the "Property").
B. Buyer desires to purchase the Property from Seller and Seller desires to sell the Property to Buyer, on the terms and subject to the conditions contained in this Agreement.
C. The Governing Board of the City of Placentia has approved and authorized the transaction contemplated in this Agreement by way of City Council Resolution No. 2023- .
D. All other legal prerequisites to this Agreement have been satisfied, and this Agreement furthers the common benefit of the citizens of the City of Placentia.
NOW THEREFORE, in consideration of the mutual covenants, agreements, and representations contained in this Agreement, Seller and Buyer (sometimes herein referred to individually as a "Party," and jointly as the "Parties") agree as follows:
ARTICLE I
INCORPORATION OF RECITALS
The foregoing recitals are true and correct, and incorporated as herein by the Parties as a material aspect of this Agreement.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale. Pursuant to the terms and conditions contained in this Agreement, Seller hereby agrees to sell the Property to Buyer, and Buyer hereby agrees to purchase the Property from Seller.
ATTACHMENT 3
2.2 Purchase Price. The purchase price ("Purchase Price") for the Property shall be NINE HUNDRED THOUSAND DOLLARS ($900,000) payable by Buyer to Seller in cash at the Closing.
ARTICLE III
PURCHASE PRICE AND DEPOSITS
3.1 Opening of Escrow. Within three (3) days after this Agreement is executed by both Parties, Seller and Buyer shall open an escrow ("Escrow") through Escrow32l ("Escrow Holder"), Attention: Janet Tilbury, Escrow Officer, Address: 4000 Barranca Pkwy, Suite 155, Irvine, CA 90604 ("Escrow Agent"), by delivering an executed copy of this Agreement to Escrow Agent ("Opening of Escrow"). The opening date of Escrow ("Opening Date") shall be the date on which Escrow Holder receives a fully executed copy of this Agreement. Escrow Holder shall notify the Parties in writing of the Opening Date when established.
3.2 Deposit. Within five (5) business days after the Opening of Escrow, Buyer shall deliver a deposit (the "Deposit") in the amount of TWENTY-SIX THOUSAND DOLLARS and No/Cents ($26,000.00). The Escrow Agent shall deposit the Deposit into a federally insured interest bearing account as designated by Buyer. The closing of the Escrow ("Close of Escrow") shall be in accordance with Article IV of this Agreement.
3.3 Purchase Price. The total Purchase Price for the Property shall be as set forth in Section 2.2 of this Agreement, which shall be payable by Buyer to Seller in cash ("Purchase Funds") at Closing. Notwithstanding the foregoing, Buyer may elect to pay the Purchase Price in cash at any time prior to the Closing.
3.4 Balance of Purchase Price. Upon the Close of Escrow, the amount of the Deposit shall be credited toward the Purchase Price. Buyer shall deposit with the Escrow Agent the Purchase Funds in accordance with Section 3.6. in sufficient time such that the Escrow Agent will be able to disburse the cash proceeds accruing to Seller on the Close of Escrow.
3.5 Escrow Instructions. This Agreement shall constitute joint primary escrow instructions to the Escrow Agent; provided, however, that the Parties shall execute such additional instructions as requested by the Escrow Holder not inconsistent with the provisions hereof. This Agreement and any such escrow instructions executed by the Parties shall constitute the "Escrow Instructions" for the transaction described in this Agreement. In the event of any inconsistency between the Escrow Instructions and this Agreement, this Agreement shall control the rights and obligations of the parties.
Liquidated Damages. IF THE TRANSACTION CONTEMPLATED UNDER THIS
AGREEMENT IS NOT CONSUMMATED DUE TO A BREACH OR DEFAULT OF
BUYER THAT IS NOT CURED IN ACCORDANCE WITH THIS AGREEMENT, THEN
SELLER SHALL HAVE THE RIGHT TO RECEIVE AND RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES AS SELLER'S SOLE AND EXCLUSIVE REMEDY, EXCEPT
THIS SECTION SHALL NOT LIMIT SELLER'S CLAIMS FOR ATTORNEYS' FEES UNDER THIS AGREEMENT. THE RETENTION OF THE DEPOSIT AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE 2 MEANING OF THE CALIFORNIA CIVIL CODE, BUT IS INTENDED TO
CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO THE CALIFORNIA CIVIL CODE. BUYER AND SELLER AGREE THAT (I) THE AMOUNT
OF LIQUIDATED DAMAGES IS REASONABLE CONSIDERING ALL OF THE
CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT,
INCLUDING THAT ASCERTAINING THE AMOUNT OF SELLER'S ACTUAL DAMAGES WOULD BE COSTLY AND INCONVENIENT; AND (II) THE AMOUNT OF
THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE ESTIMATE OF THE
DAMAGES TO SELLER, INCLUDING THE COST OF NEGOTIATING AND
DRAFTING THIS AGREEMENT, COSTS OF COOPERATING IN SATISFYING
CONDITIONS TO CLOSING, COSTS OF SEEKING ANOTHER BUYER,
OPPORTUNITY COSTS IN KEEPING THE PROPERTY OUT OF THE
MARKETPLACE AND OTHER COSTS INCURRED IN CONNECTION WITH THIS AGREEMENT. BUYER HAS REVIEWED THE EFFECT OF THIS PROVISION WITH
LEGAL COUNSEL AND HAS AGREED THAT SUCH DAMAGES ARE A
REASONABLE AND FAIR ESTIMATE OF THE DAMAGES SELLER WILL SUSTAIN IF AN EVENT OF DEFAULT BY BUYER OCCURS. UPON ANY BREACH OR
DEFAULT BY BUYER UNDER THIS AGREEMENT THAT HAS NOT BEEN CURED IN
ACCORDANCE WITH THE TERMS HEREOF, THIS AGREEMENT SHALL BE
TERMINATED AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER, EXCEPT FOR THE RIGHT OF SELLER TO RECEIVE
AND RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES IN ACCORDANCE WITH THIS SECTION. BY INITIALING THIS SECTION IMMEDIATELY BELOW, SELLER
AND BUYER ACKNOWLEDGE THEIR APPROVAL OF THIS LIQUIDATED
DAMAGES PROVISION AND AFFIRM THEIR RESPECTIVE AGREEMENTS CONTAINED IN THIS SECTION.
Buyer's Initials Seller's Initials
3.6 Form of Payment. All money payable under this Agreement, for the Deposit, the Purchase Funds or otherwise, shall be paid in cash, by wire transfer, or by a cashier's check or certified check of immediately available Federal funds of the United States.
ARTICLE IV
CONDITIONS PRECEDENT
The purchase and sale under this Agreement shall be subject to the satisfaction of the conditions precedent set forth in this Article IV (unless waived in writing by the party to whom the benefit of such condition runs) on or before the Closing Date, or such earlier date as is specified in this Agreement, each of which conditions shall be a covenant of the Party required to perform such condition.
3 4.1 Conditions to Buyer's Obligations and Due Diligence Period.
A. Delivery of Title Report; Seller's Cure. Seller shall cause First American Title ("Title Insurer") to deliver to Buyer a standard CLTA preliminary title report for the Property ("Title Report") within two (2) business days following the Opening of Escrow, together with copies of any exceptions referred to in Schedule B of the Title Report. THE PROPERTY IS SOLD "AS -IS," WITH NO CONDITIONS AND THE BUYER SHALL ACOUIRE THE
PROPERTY SUBJECT TO ALL OTHER EXCEPTIONS DESCRIBED IN THE TITLE REPORT (collectively, "Approved Exceptions"). At the Closing, Seller shall deliver title to the Property to Buyer subject only to the Approved Exceptions. (i) Buyer's Notice of Obiection. If the Title Report contains exceptions which are not acceptable to Buyer ("Unpeiiiiitted Exceptions"), Buyer shall, within five (5) business days after receipt of the Title Report, deliver to Seller written notice of Buyer's objections (a "Notice of Objection"), if any, to such exceptions. If Buyer fails to deliver a Notice of Objection in accordance with the foregoing sentence, Buyer shall be deemed to have waived its right to object to any exceptions which would otherwise be Unpermitted Exceptions, and such exceptions shall thereafter be deemed Permitted Exceptions (as defined below). (ii) Seller's Response Notice. Within five (5) days following the date of receipt of a Notice of Objection (the "Seller Notice Period") from Buyer, Seller shall give notice (a "Response Notice") advising. Buyer whether Seller will cause any of the Unpermitted Exceptions to be removed from the Title Report at or prior to expiration of the Due Diligence Period. Buyer shall have the right, but not the obligation, to remove any Unpermitted Exceptions.
If Seller fails to give the Response Notice during the Seller Notice Period, Seller shall be deemed to have elected not to remove any Unpermitted Exceptions. (iii) Title Termination Notice. Unless Seller agrees to cause all of the Unpermitted Exceptions to be removed from the Title Report or otherwise addressed to the satisfaction of Buyer, Buyer may terminate this Agreement by giving notice in writing to Seller (the "Title Termination Notice") within five (5) business days following Buyer's receipt of the Response Notice or the date the Response Notice was due but not received. If Buyer gives a Title Termination Notice: (a) the Deposit shall be returned to Buyer, and; (b) this Agreement shall become null and void and of no further force or effect, except for those provisions that survive the early termination of this Agreement.
(iv) Specific Exclusions. Notwithstanding anything to the contrary set forth in this Article IV, any title matter arising after the date of the Title Report and added to the Title Report after its original issuance or any survey matter arising after the Due Diligence Period may be a Permitted Exception but first shall be subject to the same procedures set forth in this Section 4.1.A. (provided, however, that Buyer agrees to deliver a Notice of Objection no later than ten (10) business days following receipt of an update to the Title Report or Survey; and Seller shall have ten (10) business days to deliver a Response Notice). To the extent necessary the Closing shall be extended to accommodate such matters.
B. Delivery of Title and Title Insurance. Seller shall convey title to the Property to Buyer at the Closing (defined in Section 4.1 of this Article), subject only to the Penuiitted Exceptions. The term "Permitted Exceptions" shall mean: (i) liens for real property taxes shown as exceptions in the Title Report provided that the taxes are not delinquent; (ii) the 4 standard exclusions to coverage under Title Insurer's Owner's Policy of Title Insurance ("Title Policy"); and (iii) any other lien, encumbrance, title exception or defect that appears in the Title Report, which Buyer has waived or which is caused by Buyer prior to the Closing.
Notwithstanding the foregoing, in no event shall the following be considered Permitted Exceptions: deeds of trust or mortgages; lease agreements, judgments; mechanics' and materialmen's liens; tax liens; or liens, encumbrances or other title matters created by Seller after the date of this Agreement, other than those created with the prior written consent of Buyer. Buyer agrees that Seller's obligation to convey title to Buyer shall be deemed satisfied upon Title Insurer's willingness to issue the Title Policy subject only to the Permitted Exceptions.
C. Inspection. Buyer shall conduct or review such surveys, investigations, studies and inspections and make or review such geologic, environmental and soils tests and other studies of the Property as Buyer, in Buyer's discretion, deems necessary to determine the physical and land use characteristics of the Property (including its subsurface) and the Property's suitability for Buyer's anticipated use.
D. Representations and Warranties. Each of the representations and warranties by Seller contained in Section 9.1 was true and correct in all material respects as of the date made and continues to be true and correct in all material respects as of the Closing.
E. Delivery of Closing Documents. Execution, delivery and acknowledgement as appropriate by Seller of the closing documents set forth in Section 5.1 B(i) and other necessary closing documents as may be reasonably requested by Buyer or Escrow Agent.
F. Due Diligence Period. Buyer shall have FORTY-FIVE (45) CALENDAR DAYS after the Opening of Escrow (the "Due Diligence Period") to: (i) review the exceptions, legal descriptions and other matters contained in the Title Report; (ii) conduct or review such surveys, investigations, studies and inspections and make or review such geologic, environmental and soils tests and other studies of the Property; (iii) ensure the property is properly secured (iv) review all other applicable due diligence materials respecting the Property (collectively, the "Due Diligence Items"). If Buyer, in its sole and absolute discretion, determines that the results of any information, inspection, test, examination or any investigation provided under this Agreement or perfoiiiied or obtained during the Due Diligence Period fails to meet Buyer's criteria (established in Buyer's sole and absolute discretion) for the purchase and operation of the Property in the manner contemplated by Buyer, or Buyer deems the Property to be unsuitable for Buyer's purposes for any reason, then Buyer shall have the option to terminate this Agreement and shall so advise Seller by written notice (the "Disapproval Notice"), with a copy to Escrow Agent, given no later than 5:00 p.m. (Pacific Standard Time) on or before the last day of the Due Diligence Period. In the event Buyer provides the Disapproval Notice to Seller on or before the expiration of the Due Diligence Period, then this Agreement shall be deemed terminated, in which event: (i) Seller shall not be entitled to keep the Deposit; (ii) Buyer shall be entitled to receive a refund of any additional funds placed in Escrow (excluding the Deposit); (iii) Buyer shall pay for Escrow expenses incurred to date of termination; and (iv) neither party shall have any right against the other arising out of such termination. If Buyer fails to timely deliver the Disapproval Notice on or before the expiration of the Due Diligence Period, this Agreement shall remain in full force and effect. 5 G. Access to Property. At reasonable times during the term of the Escrow, and upon reasonable prior notice to Seller, Buyer, its agents, contractors and subcontractors, shall have the right to enter upon the Property thereon to make any and all inspections and tests as Buyer deems desirable in its sole discretion. Upon Seller's written request, Buyer shall provide Seller with a copy of the results, reports or findings ("Results") from such testing within three (3) business days of Buyer's receipt of the same. Buyer further agrees to use the Results solely in connection with its review of the Property, and not to disclose, communicate or publish the nature or content of the Results to any person or entity, except to its personnel, representatives, consultants, directly involved in its review of the Property, or as otherwise required by law, regulation, legal process or regulatory authority.
For any entry to or on the Property by Buyer, Buyer's agents, Buyer's consultants or Buyer's contractors, Buyer shall leave the Property in substantially similar condition after entry as Property or equipment upon Property was found, and Buyer expressly waives, and shall indemnify, defend and hold harmless Seller from and against, any liabilities, claims, damages (including injury or damage to person or property), losses, costs and expenses related to Buyer or Buyer's agents, contractors, or subcontractors entry, inspections and studies conducted by Buyer and/or its agents, consultants and contractors on, under, or about the Property, including equipment on the Property.
H. No Material Chance. Seller shall not cause any material change in the status of the use, title, occupancy or physical condition of the Property, unless caused by Buyer or its agents, prior to Close of Escrow that has not been approved in writing by Buyer, which approval can be withheld in Buyer's sole discretion. Additionally, Seller shall: (i) maintain its existing insurance policies in full force and effect (Seller acknowledges that Buyer may be insured through the City of Placentia, a self-insured public agency and may not have specific policies in place applicable to the Property); (ii) provide prompt written notice to Buyer of any casualty or condemnation affecting any portion of the Property after the date of this Agreement, or any matter relating to zoning changes, rent control or increase in tax assessments; (iii) deliver to Buyer, promptly after receipt by Seller, copies of all notices of violation issued by any governmental authority with respect to the Property received by Seller after the date of this Agreement; (iv) advise Buyer promptly of any litigation, arbitration or other judicial or administrative proceeding which concerns or affects the Property; and (v) comply in material respects with the requirements of all contracts, licenses, permits, approvals, guaranties and warranties.
I. Seller Performance. Seller shall have delivered all documents listed on Exhibit B, if any, and duly performed each and every undertaking, covenant and agreement required to be performed by Seller under this Agreement prior to or at the Close of Escrow.
J. Prior to the Closing, Seller shall have obtained any and all authorizations and approvals necessary to sell the Property.
4.2 Conditions to Seller's Obligations.
Close of Escrow and Seller's obligation to sell the Property to Buyer pursuant to this Agreement, are subject to the satisfaction of the following conditions at or prior to Closing. 6 A. Deposit. Buyer has placed the Deposit into escrow in accordance with Section 3.2, above.
B. No Default. Buyer shall not be in material default of Buyer's obligations under this Agreement, including, but not limited to, Buyer's obligation to deliver the Purchase Price into escrow on or before the Closing Date. If the conditions above have not been satisfied or waived by Seller at or before the Closing Date through no fault of Seller, then Seller may, upon written notice to Buyer, cancel the Escrow, terminate this Agreement, and recover any documents delivered to the Escrow Holder pursuant to this Agreement C. Delivery of Purchase Price. The Purchase Funds shall be delivered by or on behalf of Buyer to Escrow Agent as described in Section 3.4, in sufficient time such that the Escrow Agent will be able to disburse the cash proceeds accruing to Seller on the Close of Escrow.
D. Renresentations and Warranties. Each of the representations and warranties by Buyer contained in Section 8.4A and Section 9.2 below shall be determined to have been true and correct in all material respects as of the date made and shall continue to be true and correct in all material respects as of the Closing.
E. Delivery of Closing Documents. Execution, delivery and acknowledgement as appropriate by Buyer of the closing documents set forth in Section 5.1 B(ii) and other necessary closing documents as may be reasonably requested by Buyer or Escrow Agent. Seller shall have executed into Escrow, for delivery to Buyer and recordation with the Orange County Recorder's Office, a Grant Deed in the form attached hereto as Exhibit C.
4.3 Failure of Conditions. If any of the conditions precedent contained in this Article IV are not satisfied within the time periods specified in this Agreement (or waived or the time for satisfaction extended by the party to whose benefit the condition runs), the party to whose benefit the condition runs shall have the right to terminate this Agreement by delivering written notice to the other party and Escrow Agent within the time period specified by this Agreement. If Seller terminates this Agreement due to a failure of any condition set forth in Section 4.2. Seller shall have the right to retain the Deposit plus any accrued interest thereon, and exercise its rights under Article VI. If Buyer terminates this Agreement due to a failure of the conditions set forth in Section 4.1 .0 or G, Seller shall have the right to retain the Deposit plus any accrued interest thereon. If Buyer terminates this Agreement due to a failure of the conditions set forth in Section 4.1 .A. B. D. E, F. H. I or J. then Buyer shall have the right to receive a refund of the Deposit of Escrow Agent's and Title Insurer's normal escrow and title insurance cancellation fees and exercise its rights under Article VI. Nothing contained in this Agreement is intended nor shall permit any party in default to telniinate this Agreement or the Escrow provided for in this Agreement as a result of such default.
ARTICLE V
CLOSING
5.1 Closing. The purchase and sale of the Property shall be consummated at a Closing in accordance with the following:
7 A. Closing Date. The closing date shall occur on or before 11:00 a.m. on the date which is fifteen (15) calendar days after the expiration of the Due Diligence Period (the "Closing Date"), at the office of the Escrow Agent or such other location as is acceptable to the parties to this Agreement. Except as provided otherwise in Article VI, if the Escrow for the Property has not closed on or before the Closing Date, either party shall have the right to terminate this Agreement unless such party is in default of its obligations under this Agreement. Except as otherwise provided in Section 4.3, if this Agreement is teauinated as a result of a failure of a condition other than as a result of Buyer's default under this Agreement, the Deposit, less Buyer's cost of the Escrow Agent's and Title Insurer's escrow and title cancellation fees and expenses, will be refunded to Buyer.
B. Closing Documents.
At or prior to Closing, Seller shall deposit into Escrow a Grant Deed in substantially the form attached hereto as Exhibit C, properly executed and acknowledged by Seller, in favor of Buyer, containing the legal description of the Property and subject only to the Approved Exceptions. At or prior to Closing, Buyer shall have deposited into Escrow any supplemental escrow instructions necessary to close this Escrow. Escrow Holder shall deliver to Seller the Purchase Price, when;
(i) Seller. No later than the day prior to the Closing Date, Seller shall duly execute and acknowledge as appropriate and deliver to Escrow Agent the following:
(a) A grant deed ("Deed") conveying the Property to Buyer in substantially the form attached to this Agreement as Exhibit C:
(b) A Non -Foreign Entity Affidavit ("Affidavit"), substantially in the form attached to this Agreement as Exhibit D. pursuant to Section 10.2: and (c) Such documents and instruments as Escrow Agent or Title Insurer may reasonably require to evidence the due authorization and execution of the documents and instruments to be delivered by Seller under this Agreement and to issue the Title Policy.
The obligations of Seller to deliver documents and instruments into Escrow in accordance with this Section 5.1 B(i) are separate, independent covenants of Seller and shall not be conditioned upon Buyer's deliveries in accordance with Section 5.1B(ii). (ii) Buyer. No later than the day prior to the Closing Date, Buyer shall duly execute and acknowledge as appropriate and deliver to the Escrow Agent the following:
(a) The amount of the Purchase Funds, less the Deposit; (b) A Change of Ownership Statement, as required by Title Insurer or Escrow Agent; and
(c) Such documents and instruments as Escrow Agent or Title Insurer may reasonably require to evidence the due authorization and execution of the documents and instruments to be delivered by Buyer under this Agreement and to issue the Title Policy. 8 The obligations of Buyer to deliver funds, documents and instruments into Escrow under this Section 5.1.B(ii) shall be separate, independent covenants of Buyer and shall not be conditioned upon Seller's deliveries in accordance with Section 5.1.B(i).
C. Closing Procedure. At such time as the Escrow Agent has received all of the items specified in Section 5.1.B, and at such time as Title Insurer is prepared to issue the Title Policy in accordance with Section 4.1.B. Buyer and Seller hereby authorize and instruct Escrow Agent to: (i) cause Title Insurer to record the Deed and issue the Title Policy to Buyer; (ii) pay to the authorities lawfully entitled thereto any recordation fees and transfer taxes in connection with this Agreement; (iii) deliver to Buyer and Seller a conformed copy of the Deed showing the recording information; and (iv) deliver to Buyer an executed original of the Affidavit. The Buyer and Seller shall each bear half of the costs associated with the Broker fee and Escrow, including title reports, disclosure reports, and Seller's requirements by law to sell the Property and escrow fees as described in Exhibit E.
5.2 Fees; Expenses; Prorations.
A. Fees, Expenses, Transfer Taxes.
(i) Buyer. As described in Exhibit E, Buyer shall pay: (a) half of all costs of the Escrow fees and Broker fees; (b) half the cost of recording the Deed and all other documents recorded at the Closing; all documentary transfer taxes imposed in connection with the recording of the Deed; (c) half the cost of the CLTA Title Policy for Buyer in the amount of the Purchase Price; and (d) any other customary fees and charges and expenditures authorized by Seller which are agreed upon by the Buyer. The parties agree that the amount of documentary transfer taxes will not be referred to in the Deed. Buyer shall have the right to procure an ALTA Extended Coverage Owner's Policy of Title Insurance ("ALTA Policy") and Buyer shall pay for the increased cost of such ALTA Policy above the cost of the CLTA Title Policy, the cost of any survey that the Title Insurer requires for issuance of an ALTA Policy (other than the cost of the survey of the Property previously obtained by Seller, and a copy of which has been delivered to Buyer) and for the cost of any other increase in the amount or scope of title insurance if Buyer elects to increase the amount or scope of title insurance coverage or to obtain endorsements to the Title Policy or ALTA Policy.
B. Real Pronertv Taxes. Assessments and Rents. All real property taxes and assessments for the fiscal years of the taxing and assessing authorities in which the Closing occurs shall be prorated on the basis of a three hundred sixty-five (365) day year at the Closing with appropriate debits and credits to the accounts of Buyer and Seller so that Seller shall be responsible for paying all of the same, to the extent duly allocable to the period ending on the day immediately prior to the Closing Date and Buyer shall be responsible for paying all of the same (if any shall be due), to the extent duly allocable to the period commencing upon the Closing Date. At the Closing, Buyer shall reimburse Seller for any taxes and assessments which are allocable to the period commencing upon the Closing Date and which Seller has already paid. In addition, all rents, incomes and profits, if any, derived from the Property or attributable to the Property shall be prorated at the Closing with appropriate debits and credits to the accounts of Buyer and Seller so that Seller shall pay and receive, as appropriate, all of the same to the extent duly allocable to the 9 period ending on the day prior to the Closing Date and Buyer shall pay and receive, as appropriate, all of the same to the extent duly allocable to the period commencing upon the Closing Date.
C. In the event the Department of Industrial Relations determines the sale of the Property is a public project pursuant to California Labor Code section 1720, et seq., which requires the payment of prevailing wage rates and any other requirements, Buyer agrees to assume all risk of liability arising from the Department of Industrial Relations determination and shall bear the obligations to pay prevailing wages.
ARTICLE VI
BREACH
6.1 General. If either Party breaches its obligations under this Agreement prior to the Closing, then the other party may, without terminating this Agreement, suspend performance by giving written notice to the other party until such breach is cured by the other party. Except for Seller's and Buyer's respective delivery obligations under Article V, including, without limitation, Buyer's delivery to the Escrow Agent of any portion of the Deposit or the Purchase Funds, neither party shall be in default under this Agreement unless it fails to cure a breach of such Party's obligations under this Agreement within twenty-four (24) hours after receipt of written notice of such breach from the non -breaching party. Nothing contained in this Agreement is intended nor shall permit any Party in default to terminate this Agreement or the Escrow provided for in this Agreement as a result of such default.
6.2 Buyer's Breach.
A. Buyer's Pre -Closing Breach. Except as expressly provided otherwise in Section 6A, if Buyer breaches any of its obligations under this Agreement prior to the Closing and Buyer fails to cure such breach within twenty-four (24) hours after Buyer's receipt of written notice from Seller, then Seller may terminate this Agreement and retain the Deposit as liquidated damages in accordance with Section 3.3 as Seller's sole remedy. Notwithstanding the foregoing, Seller's right to recover attorneys' fees pursuant to Section 11.3 shall survive any termination of this Agreement pursuant to this Section. Buyer hereby acknowledges and agrees that in no event shall the notice and cure rights set forth in Section 6.1 apply to Buyer's failure to deliver any of the items into Escrow in accordance with Section 3.2 and Article V, including, without limitation, any portion of the Deposit or the Purchase Funds.
B. Buyer's Post -Closing Breach. If after the Closing, Buyer breaches any of its post -Closing obligations under this Agreement and Buyer fails to cure such breach within twenty-four (24) hours after Buyer's receipt of written notice from Seller, then Seller shall have the right to pursue any and all remedies available to Seller at law or in equity, including the specific performance of this Agreement. Buyer hereby acknowledges that Seller's right to recover attorneys' fees pursuant to Section 11.3 shall survive the Close of Escrow and the recordation of the Deed.
6.3 Seller's Breach.
A. Seller's Pre -Closing Breach. Except as expressly provided otherwise in Sections 4.3 and 6.1, if Seller breaches its obligations under this Agreement and Seller fails to cure 10 such breach within twenty-four (24) hours after Seller's receipt of written notice from Buyer or such other time before Closing if the cure cannot reasonably be obtained within such twenty -four- hour period, Buyer shall have the right to elect one, but not both, of the remedies set forth in this Section 6.3.
(i) Termination. Buyer shall have the right to terminate this Agreement and receive a refund of the Deposit.
(ii) Smcific Performance. Buyer shall have the right to obtain specific performance by Seller provided Buyer is not in breach of its obligations under this Agreement.
ARTICLE VII
DEMOLITION, REHABILITATION AND SITE CLEARANCE
7.1 Buyer's Obligations. After the Closing Date, Buyer, at Buyer's sole cost and expense, shall be responsible for and Seller shall have no liability for, or obligation related to any of the following: (i) any grading and removal or re -compaction of soil on the Property; (ii) obtaining utilities to serve the Property; (iii) any rehabilitation or reconfiguration of the improvements currently located on the Property; (iv) paying any and all fees with respect to the Property incurred after the Closing Date and the construction of any improvements on the Property; (v) any lot line or boundary adjustment with respect to the Property; (vi) satisfying any and all on-site and off-site (i.e. inside and outside of the perimeter boundary of the Property) conditions of approval, construction and other obligations with respect to Buyer's anticipated use of the Property; and (vii) removal of any and all personal property located on the Property at the Close of Escrow. Seller hereby waives any interest in all such personal property located on the Property and releases Buyer from any liability as a result of Buyer's disposition thereof.
ARTICLE VIII
CONDITION OF PROPERTY
8.1 Condition of Property.
A. General. Buyer, as specified in Section 4.1C, has or shall have inspected and conducted tests, inspections, investigations and studies of the Property as Buyer, in Buyer's discretion, deems necessary. Buyer understands and acknowledges that the Property may be subject to earthquake, fire, floods, erosion, high water table, dangerous underground soil conditions, unavailability or shortages of water and other utilities and similar occurrences that may alter its condition or affect its suitability for any proposed use, including Buyer's anticipated use, if any. Seller shall have no responsibility or liability with respect to any such condition or occurrence. Buyer represents that it is acting and will act only upon information obtained by it from its own inspection and investigation of the Property and upon the express representations of Seller contained in this Agreement. Except as provided otherwise in this Agreement, the suitability or lack of suitability of the Property for any proposed use, or availability or lack of availability of permits or approvals of governmental or regulatory authorities with respect to any proposed or intended use of the Property, shall not affect the rights or obligations of the Seller under this Agreement.
11 B. Environmental Condition. In connection with or on account of the construction, operation, maintenance and demolition of the buildings, fixtures, machinery and equipment located on the Property, certain substances classified as hazardous (collectively, "Hazardous Substances") may have been released or may be present on the Property. For these purposes, "Hazardous Substances" includes "hazardous substances" as defined in CERCLA (defined below); "pollutants", "contaminants" and "Toxic Substances" as defined in the Toxic Substances Control Act; "Hazardous Materials" as defined in the Hazardous Materials Transportation Act; and other substances deemed or determined to be harmful, injurious, noxious, hazardous, nuisance causing or toxic under any Environmental Law (defined below), and including "Petroleum" as defined in RCRA (defined below). The documents listed on Exhibit B, if anv. set forth in more detail the environmental condition of the Property. Buyer acknowledges receipt of the documents listed on Exhibit B, if anv. relating to the environmental condition of the Property.
For purposes of this Agreement, the term "Hazardous Materials" shall mean any and all (a) substances, products, by-products, waste, or other materials of any nature or kind whatsoever which is or becomes listed, regulated or addressed under any Environmental Laws (defined below), and (b) any materials, substances, products, by-products, waste, or other materials of any nature or kind whatsoever whose presence in and of itself or in combination with other materials, substances, products, by-products, or waste may give rise to liability under any Environmental Laws or any statutory or common law theory based on negligence, trespass, intentional tort, nuisance, strict or absolute liability or under any reported decisions of any state or federal court; and (c) any substance, product, by-product, waste or any other material which may be hazardous or harmful to the air, water, soil, environment or affect industrial hygiene, occupational, health, safety and/or general welfare conditions, including without limitation, petroleum and/or asbestos materials, products, byproducts, or waste. The term "Environmental Laws" shall mean and include all federal, state, and local laws, statutes, ordinances, regulations, resolutions, decrees, and/or rules now or hereinafter in effect, as may be amended from time to time, and all implementing regulations, directives, orders, guidelines, and federal or state court decisions, interpreting, relating to, regulating or imposing liability (including, but not limited to, response, removal, remediation and damage costs) or standards of conduct or performance relating to industrial hygiene, occupational, health, and/or safety conditions, environmental conditions, or exposure to, contamination by, or clean-up of, any and all Hazardous Materials, including without limitation, all federal or state, or environmental clean-up statutes.
C. Seller hereby represents and warrants to Buyer that; there are no leases, options to purchase, rights of first refusal or contracts for lease or sale of the Property; and there are no liens or claims against the Property other than the Approved Exceptions. Seller specifically agrees to indemnify, defend and hold harmless Buyer, its directors, officers, members, agents and employees (collectively "Buyer Indemnitees") from and against any and all actions, claims, demands, losses, cost and expenses, including reasonable attorneys' fees and cost, damages and liabilities arising out of or in any way connected with any claim by a third party with regarding any lease, option to purchase, right of first refusal or contracts for lease or sale of the Property.
D. No Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION
8.1 (C) OF THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER IS
NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH 12 RESPECT TO THE PROPERTY, INCLUDING BUT NOT LIMITED TO THE SUITABILITY OR DEVELOPABILITY OF THE PROPERTY FOR BUYER'S PARTICULAR PURPOSES.
BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY "IN ITS THEN EXISTING CONDITION AS IS, WHERE IS, WITH ALL FAULTS," EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT. BUYER HAS
NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND
BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR
RELATING THERETO MADE OR FURNISHED BY SELLER OR ANY AGENT
PURPORTING TO REPRESENT SELLER, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR
WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY,
INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY
ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY
HAZARDOUS MATERIALS ON OR DISCHARGED FROM THE PROPERTY, AND WILL
RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR
ON BEHALF OF SELLER OR ITS AGENTS, OTHER THAN SUCH REPRESENTATIONS
AND WARRANTIES OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, SUBJECT TO SUCH REPRESENTATIONS AND
WARRANTIES OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT,
BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT
LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS.
IN CONNECTION THEREWITH, BUYER ACKNOWLEDGES, UNDERSTANDS, AND HAS READ THE CONTENTS OF CALIFORNIA CIVIL CODE SECTION 1542, AND EXPRESSLY
WAIVES ALL RIGHTS BUYER HAS, OR AT SOME TIME IN THE FUTURE MAY HAVE, UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES THAT:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR."
THE COVENANTS SET FORTH IN THIS SECTION SHALL SURVIVE CLOSE OF ESCROW AND DELIVERY OF THE GRANT DEED.
BUYER INITIALS
8.2 The Purchase Price and the terms and conditions set forth in this Agreement are the result of arm's-length bargaining between entities familiar with transactions of this kind and the price, Willis and conditions reflect the fact that Buyer shall not have the benefit of, and, except as 13 represented and warranted by Seller in this Agreement, is not relying upon, any statements, representations or warranties whatsoever made by or enforceable against Seller relating to the condition, operations, dimensions, descriptions, soil condition, other environmental condition, suitability, availability of utilities, compliance or lack of compliance with any Environmental Law (defined in Section 8.41 or other state, federal, county or local law, ordinance, order, permit or regulation or any other attribute or matter of or relating to the Property. Buyer represents, warrants and covenants to Seller that, except for Seller's express representations and warranties specified in Section 9.1, Buyer is relying solely upon its own inspection and investigation of the Property.
If Seller obtains or has obtained in connection with this Agreement the services, opinions or work product of surveyors, architects, engineers, attorneys, Escrow Agent, Title Insurer, governmental authorities or any other person or entity with respect to the Property, Buyer and Seller agree that Seller shall do so only for the convenience of both parties and the reliance by Buyer upon any such services, opinions or work product shall not create or give rise to any liability of or against Seller.
8.3 Governmental Approvals. Buyer agrees not to submit any land use -related applications, reports, studies or other documents, including, without limitation, plans and specifications, impact statements for water, sewage, drainage or traffic, environmental review foiuis or energy conservation checklists to any governmental agency or any amendment or modification to any such instruments or documents prior to the Close of Escrow unless first approved by Seller.
8.4 Environmental Matters.
A. Buyer's Representations and Release of Seller. Except for the express representations and warranties of Seller set forth in this Agreement, Buyer shall rely solely upon its own inspection of the Property in determining the Property's physical and environmental condition, and the Property's suitability for Buyer's particular purpose(s), and shall have the right to review all reports, documents and studies described in Sections 4.1.0 and 4.1.D. Except for damages arising from the express representations and warranties of Seller set forth in this Agreement, Buyer waives its right to recover, and hereby releases, Seller, its officers, affiliated agencies, employees, agents and affiliates of any of them (collectively, "Seller's Related Parties") from any and all damages, losses, liabilities, costs or expenses whatsoever (including reasonable attorneys' fees and costs) and claims therefor, whether direct or indirect, known or unknown or foreseen or unforeseen, which may arise from or be related to: (i) the physical condition of the Property; (ii) the Property's suitability, usability, or developability for Buyer's particular purpose(s); and (iii) the Property's compliance or lack of compliance with and remediation or "clean-up" liabilities arising under any law including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601 et Lea.), ("CERCLA") the Resources Conservation and Recovery Act of 1976 (42 U.S.C. Sections 6901 et Lu.), ("RCRA") the Clean Water Act (33 U.S.C. Sections 466 et _seg.), the Safe Drinking Water Act (14 U.S.C. Sections 1401-1450), the Hazardous Materials Transportation Act (49 U.S.C. Sections 1801 et se_c .), the Toxic Substance Control Act (15 U.S.C.
Sections 2601-2629), the California Hazardous Substances Act (Health & Safety Code Sections 25100-25600), the California Porter -Cologne Water Quality Control Act (Water Code Sections 13000 et seq.) and all regulations, rulings and orders promulgated or adopted pursuant thereto (collectively, "Environmental Laws"). Buyer acknowledges, understands, and has read the 14 contents of Section 1542 of the California Civil Code, and expressly waives the benefits of Section 1542 of the California Civil Code, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM, MUST HAVE MATERIALLY AFFECTED THIS SETTLEMENT
WITH THE DEBTOR."
BUYER'S INITIALS
B. Drainage. Erosion Control and Storm Water Pollution Prevention Plans.
Buyer shall be responsible for compliance with all state, local and federal governmental and regulatory requirements with respect to drainage, erosion control, the National Pollution Discharge Elimination System ("NPDES") or Storm Water Pollution Prevention Plans ("SWPPP's") on or relating to the Property to the extent such compliance requirements arise after the Close of Escrow.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
9.1 Seller's Representations and Warranties. In consideration of Buyer's entering into this Agreement and as an inducement to Buyer to purchase the Property, Seller makes the following covenants, representations and warranties, each of which is material and is being relied upon by Buyer (and the continued truth and accuracy of which shall constitute a condition precedent to Buyer's obligations hereunder):
A. Authority. Seller has the legal power, right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transactions contemplated hereby; requisite action has been taken by Seller in connection with the entering into of this Agreement and the instruments referenced herein, and the consummation of the transactions contemplated hereby; and no consent of any other party is required.
B. Encumbrances. Seller is the owner of the fee interest in the Property free and clear of all liens, encumbrances and other matters other than those set forth in the Title Policy and the Property is not subject to any outstanding contract of sale, right of first refusal or purchase option, in favor of any person or entity, except Buyer. Seller will not sell, lease, sublease, assign, mortgage or otherwise encumber the Property without Buyer's prior written approval, which may be withheld in Buyer's sole discretion.
C. Representations. All representations and warranties of Seller set forth in this Agreement shall be true on and as of the Close of Escrow as if those representations and warranties were made on and as of such time.
D. Legal Power. The individuals executing this Agreement and the instruments referenced herein on behalf of Seller, have the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. 15 E. No Breach. There are no contracts or agreements relating to the leasing, operation and maintenance of the Property which will be effective as to the Property following the Closing. There are no agreements, rights or agreements under which any third person or party has any right or option to purchase the Property. This Agreement and all documents required hereby to be executed by Seller are and shall be valid, legally binding obligations of and enforceable against Seller in accordance with their terms, subject only to the applicable bankruptcy, insolvency, reorganization, moratorium laws or similar laws or equitable principles effecting or limiting the rights of contracting parties generally. To Seller's knowledge, neither the execution and delivery of this Agreement and the documents referenced herein, nor the incurrence of the obligations set forth herein, nor the consummation of the transactions herein contemplated, nor compliance with the terms of this Agreement and the documents reference herein, result in the breach of any terms, conditions or provisions of, or constitute a default under, any bond, note, or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease, or other agreements or instruments to which Seller is a party or effecting the Property.
F. Litigation. There are no suits, claims, foreclosure proceedings, property tax protests, zoning or other administrative proceedings that are pending or, to the best of Seller's knowledge, threatened with respect to or in any manner affecting the Property.
G. Condemnation: Eminent Domain. Seller has neither received any written notice from a governmental authority, nor has any knowledge of any action regarding eminent domain proceedings for the condemnation of all or any portion of the Property. To Seller's knowledge, Seller has not received any written notices of violations, including, without limitation, any environmental law violations, that still exist from any municipal or governmental bodies regarding the Property.
H. Due Diligence. Seller has delivered to Buyer complete legible copies of the items listed on Exhibit B, if any, attached hereto. The documents delivered by Seller to Buyer are all the material documents concerning the Property that, to Seller's knowledge, are in Seller's possession or under its control.
I. Environmental Laws. Except as disclosed on Exhibit B, to Seller's knowledge, Seller has not received written notice from any governmental authority that the Property or the use or operation thereof are in violation of any Environmental Laws, and to Seller's knowledge, no such written notice has been issued and, to Seller's knowledge, no violation of any Environmental Laws has occurred. Except as disclosed on Exhibit B, to Seller's knowledge, no part of the Property has ever been used by any person or entity to refine, produce, use, store, handle, transfer, process, transport or dispose of any Hazardous Substances.
9.2 Buyer's Representations, Warranties and Covenants. In consideration of Seller entering into this Agreement, and as an inducement to Seller to sell the Property to Buyer, Buyer makes the following representations, warranties and covenants, each of which is material and is being relied upon by Seller (the continued truth and accuracy of which shall constitute a condition precedent to Seller's obligations hereunder and in the case of C. and D., below, ongoing obligations of Buyer which shall survive the Close of Escrow):
16 A. Authority. Buyer has the legal power, right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transactions contemplated hereby; all requisite action (City Council) has been taken by Buyer in connection with the entering into of this Agreement and the instruments referenced herein, and the consummation of the transactions contemplated hereby; and no consent of any other party is required.
B. Representations. All representations and warranties of Buyer set forth in this Agreement shall be true on and as of the Close of Escrow as if those representations and warranties were made on and as of such time.
C. Zoning and Development Standards. The Buyer represents and warrants that its Due Diligence of the Property has included a review and analysis of the zoning, development, and land use regulations currently existing and governing the Property. Buyer represents and warrants that it understands such zoning, development, and land use regulations, and that by purchasing the Property, Buyer is acquiring title thereto "AS IS" and subject to such zoning, development, and land use regulations. Buyer expressly acknowledges and understands that such zoning, development, and land use regulations may limit the suitability, usability, or developability of the Property for Buyer's particular purpose(s), and that any amendment, deviation, variance, or other change or exception to the zoning, development, and land use regulations governing the Property at Closing is subject to the sole and absolute discretion of the City of Placentia, and that Buyer's application for the same may be denied. Buyer expressly acknowledges that Seller has make no representation(s) or warranty(ies) concerning or relating to the likelihood of the City of Placentia's approving Buyer's application for any amendment, deviation, variance, or other change or exception to the zoning, development, and land use regulations governing the Property, and Buyer expressly assumes the risk that such zoning, development, and land use regulations may limit or preclude Buyer's intended use or development of the Property.
D. Buyer's Exemption from Certain Disclosures. Buyer hereby notifies Seller, and Seller hereby acknowledges and accepts, that Buyer, a governmental entity, is exempt from the disclosure requirements generally applicable to transfers of residential property codified in Article
1.5 (commencing with Section 1102) of Chapter 2, of Title 4, of Part 4, of Division 2, of the California Civil Code. Seller hereby expressly assumes all risks associated with or arising from the Buyer's exemption from such disclosure requirements.
ARTICLE X
CONDEMNATION, DAMAGE AND DESTRUCTION
10.1 Condemnation. If, between the date of this Agreement and the Closing Date, condemnation or eminent domain proceedings affecting any portions of the Property are initiated or are threatened to be initiated by any entity other than Buyer to such extent that it would prevent Buyer's anticipated use of the Property, then, Buyer shall have the right to either: (i) affirm this Agreement, which shall remain in full force and effect without any diminution of the Purchase Price and Seller shall assign to Buyer upon the Closing Date all of Seller's rights to any condemnation awards by depositing an assignment of said award with the Escrow Agent; or (ii) subject to and conditioned on Buyer's compliance with the remaining provisions of this Section
10.1, terminate this Agreement and Escrow Agent, as applicable, shall return the Deposit to Buyer, 17 Escrow Agent's and Title Insurer's normal escrow and title insurance cancellation fees; and neither party shall have any further obligations or liabilities to each other, except that Buyer's indemnity obligations under this Agreement shall survive any such termination. Buyer shall not propose, institute, cooperate with or permit any condemnation of all or any part of the Property prior to the Close of Escrow.
10.2 Damage and Destruction. If, between the date of this Agreement and the Closing Date, any portion of the Property is materially damaged or destroyed to such an extent that it would prevent Buyer's anticipated use of the Property, then Buyer shall have the option by written notice to Seller to: (i) temiinate this Agreement and Buyer shall have no obligation to purchase the Property and Seller shall have no obligation to sell the Property to Buyer and Escrow Agent or Seller, as applicable, shall return to Buyer the Deposit and Title Insurer's normal escrow and title insurance cancellation fees; or (ii) affirm this Agreement, which shall remain in full force and effect without delaying the Closing and without diminution of the Purchase Price.
ARTICLE XI
MISCELLANEOUS
11.1 Assignment. Buyer shall neither assign its rights nor delegate its obligations under this Agreement without obtaining Seller's prior written consent, which consent may be withheld in Seller's sole and absolute discretion. Upon the receipt of Seller's written consent, Buyer, Seller and Buyer's proposed assignee shall execute a written assignment and assumption agreement in a form reasonably acceptable to Seller, in which such assignee assumes of all of Buyer's obligations under this Agreement. In no event shall any such assignment release Buyer from any obligations or liability under this Agreement or delay the Close of Escrow. Prior to the delivery of any such assignment executed by Seller, Buyer shall reimburse Seller for Seller's reasonable attorneys' fees and costs incurred by Seller in connection with facilitating any such assignment. Notwithstanding the foregoing, Buyer shall have the right to assign its rights or obligations under this Agreement to any affiliate, parent or subsidiary entity without Seller's prior consent.
11.2 No Foreign Investors. Seller warrants and represents to Buyer that Seller is not a foreign individual, foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations). Seller shall execute and deliver to Buyer at the Closing the Affidavit substantially in the form of Exhibit D. certifying the representations and warranties made pursuant to this Section.
11.3 Attorneys' Fees. If any action, proceeding or arbitration is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover from the other party, in addition to all other damages, all costs and expenses of such action, proceeding or arbitration, including but not limited to actual attorneys' fees (including the allocated costs of in- house counsel), witness fees' and court costs. The phrase "prevailing party" as used in this Section shall mean the party who receives substantially the relief desired whether by dismissal, summary judgment or otherwise.
11.4 Notices. All notices and requests under this Agreement shall be in writing and shall be sent by personal delivery, facsimile or e-mail (with hard copy to follow the next business day 18 by overnight mail), by nationally recognized overnight mail carrier such as FedEx or delivered in person to the following street addresses:
SELLER:
BUYER:
With a copy to:
Escrow Agent and
Title Insurer:
Estate of James E. Crocker
3010 Arbor Drive
Fullerton, CA 92835
Attn: Nedra M. Crocker
Owner
City of Placentia
401 E. Chapman Avenue
Placentia, CA 92870
Attn: Damien R. Arrula
City Administrator
Jones & Mayer
3777 North Harbor Blvd.
Fullerton CA 92835
Attn: Christian Bettenhausen
City Attorney
Escrow321
4000 Barranca Pkwy. Suite 155
Irvine, CA 92604
Attn: Janet Tilbury
Senior Escrow Officer
All notices shall be effective upon the earlier of personal delivery or receipt of a facsimile confirmation statement, if sent by facsimile, or receipt of confirmation of delivery, if delivered by e-mail or a nationally recognized overnight mail carrier; provided, however, receipt of the Purchase Price shall only be effective upon actual receipt in the form required under Section 14.
Either Party may change its address or designate a new street address for notices under this Agreement by notice complying with the terms of this Section.
11.5 Cooperation. Buyer and Seller acknowledge that it may be necessary to execute documents other than those specifically referred to in this Agreement to complete the acquisition of the Property. Each party shall reasonably cooperate with the other in connection with the requirements imposed by this Agreement upon the other, to the end that neither party shall act in any manner to impede the other in performing its obligations under this Agreement. Buyer and Seller hereby agree to cooperate with each other by executing such other documents or taking such other action as may be reasonably necessary in accordance with the intent of the parties as evidenced by this Agreement, provided such documents do not create any additional liability or expense for such party not contemplated by this Agreement.
11.6 Survival. Buyer's and Seller's representations, warranties and obligations under this Agreement shall survive the Close of Escrow and shall not be merged into or defeated by the execution, delivery or recordation of the Deed given in connection with this Agreement. By 19 consummating the transaction contemplated by this Agreement, Buyer waives its rights under any written disclosures made to Buyer by Seller or any other entity prior to the Closing. If prior to the Closing, Buyer receives notice of any information which indicates that any of Seller's representations and warranties are untrue, Buyer shall promptly notify Seller in writing of such information. If Buyer waives any representation or warranty, then Seller shall have no liability under this Agreement for such representation or warranty to the extent waived. If this Agreement is terminated because of a failure of conditions in Article IV or pursuant to Article X, then neither Buyer nor Seller shall have any liability if any of Buyer's or Seller's representations or warranties are inaccurate, except as set forth in Article VI.
11.7 Interpretation. This Agreement shall be construed and enforced in accordance with the laws of the State of California as applicable to contracts entered into in California among parties doing business therein. This Agreement contains the entire agreement between the Parties respecting the purchase and sale of the Property and supersedes all prior negotiations, discussions, understandings and agreements, both oral and written, between the parties with respect to such matters. This Agreement shall not be effective between the parties until the date this Agreement is executed and delivered into Escrow by both Seller and Buyer. This Agreement may not be modified or amended in any way except by a writing executed by both Buyer and Seller. All Exhibits referenced herein are incorporated by this reference in this Agreement. The section headings of this Agreement are for convenience only and are not to be construed as part of this Agreement and do not in any way amplify or define the terms, conditions, and covenants of this Agreement and shall not be used in construction or interpretation of this Agreement. There are no third -party beneficiaries to this Agreement. Unless the context otherwise indicates, whenever used in this Agreement, the word "party" or "parties" means Buyer or Seller or both, as the context may require. Time is of the essence in the performance of each teem of this Agreement.
11.8 Successors and Assigns. Subject to the restrictions set forth in Section 10.1. this Agreement shall be binding upon and inure to the benefits of the successors and assigns of the parties to this Agreement. In no event shall Buyer have any right to delay or postpone the Closing to create a partnership, corporation or other form of business association or to obtain financing to acquire title to the Property or to coordinate with any other sale, transfer, exchange or conveyance.
11.9 Severability. If any term or provision of this Agreement is determined to be invalid or unenforceable, the remaining terms and provisions shall not be affected thereby and shall remain in full force and effect to the maximum extent permitted by law.
11.10 Dates. Whenever any determination is to be made or action is to be taken on a date specified in this Agreement, if such date shall fall on Saturday, Sunday or legal holiday under the laws of the State of California, then in such event said date shall be extended to the next day which is not a Saturday, Sunday or legal holiday.
11.11 No Assumption of Seller's Liabilities. Buyer is acquiring only the Property from Seller and is not the successor of Seller. Except only for the obligations accruing after the Closing Date or assumed in writing by Buyer, Buyer does not assume or agree to pay, or indemnify Seller or any person or entity against any liability, obligation or expense of Seller or relating to the Property.
20 11.12 Limitation of Liability. No advisor, trustee, director, officer, partner, member, employee, beneficiary, shareholder, participant or agent of or in Seller or Buyer shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or pursuant to the provisions of this Agreement, or any amendment or amendments to any of the foregoing made at any time or times, heretofore or hereafter. The teiiiis of this Section survive the Closing or termination of this Agreement. (Signature Page Follows Immediately)
21 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
"SELLER":
"BUYER":
Estate of James E. Crocker City of Placentia,
a municipal corporation
By: 1/ M //7-
Name: Nedra M. Crocker, Owner
Dated:,g , 2023
22 By:
Name: Damien R. Arrula
Its: City Administrator
Dated: , 2023
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF PLACENTIA IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 OF PARCEL MAP 84-801, AS FILED IN BOOK 190, PAGE 36 OF PARCEL MAPS, BY DOCUMENT RECORDED AUGUST 6, 1984, AS INSTRUMENT NO. 84-324105 OF OFFICIAL RECORDS, COUNTY OF ORANGE, CALIFORNIA.
APN: 339-033-21
EXHIBIT B
Attachments Provided by Seller
EXHIBIT C
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
record.
SPACE ABOVE THIS LINE FOR
RECORDER'S USE
No recording fee required; this document exempt from fee pursuant to Government Code Section 27383
Documentary Transfer Tax is set forth in a separate statement that is not part of the public
GRANT DEED
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, Nedra M. Crocker, a private individual ("Grantor"), hereby grants to the City of Placentia, a Charter City ("Grantee"), all that certain real property located in the County of Orange, State of California, more particularly described on Exhibit A, attached hereto and incorporated herein by this reference.
This grant and conveyance is made and accepted subject to:
1. All general and special real property taxes and assessments that are not delinquent, including supplemental taxes assessed as a result of this conveyance; and (Signature of Grantor Follows Immediately)
2023.
IN WITNESS WHEREOF, this Grant Deed has been executed this _ day of GRANTOR:
NEDRA M. CROCKER
By:
Name:
Its: A private individual
EXHIBIT D
AFFIDAVIT
Nedra M. Crocker, a private individual ("Seller"), hereby certifies to the City of Placentia ("Buyer"), as follows:
1. Seller understands and acknowledges that this Affidavit may be disclosed to the Internal Revenue Service by Buyer in connection with that certain Purchase and Sale Agreement and Escrow Instructions dated as of , 2023 (collectively, with any and all amendments thereto, the "Purchase Agreement"), between Buyer and Seller, as evidence of Buyer's compliance with Section 1445 of the Internal Revenue Code;
2. Seller is not a foreign individual, foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);
3. Seller's U.S. Employer Identification Number is
4. Seller's address is 3010 Arbol Drive, Fullerton, CA 92835;
5. Seller further understands and acknowledges that this Affidavit may be disclosed to the Franchise Tax Board of California by Buyer in connection with the Purchase Agreement;
6. Section 18662 of the California Revenue and Taxation Code provides that a buyer may be required to withhold 3 1/3% of the sales price of the California property sold by a non- resident seller, unless the sales price of the property is less than $100,000.00;
7. Seller is not subject to any withholding pursuant to Section 18662 of the California Revenue and Taxation Code; and
The undersigned understands that any false statements contained in this Affidavit could be punished by fine or imprisonment or both. The undersigned certifies on behalf of Seller under penalty of perjury that the foregoing is true and correct, and that the undersigned is duly authorized to execute this Affidavit on behalf of Seller.
Dated as of this day of
, 2023, at , California.
NEDRA M. CROCKER,
a private individual
By:
Name:
Its:
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 , before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to the person(s) whose names(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. (insert name and title of the officer)
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 (Seal)
EXHIBIT E
ESCROW COMMERCIAL FEE QUOTE
COMMERICAL FEE QUOTE
escrow32l
Property Address: 207 W. Chapman Avenue, Placentia
Purchase Price: $900,000.00
Owner's Title Policy_
$2,030.00**
Escrow Fee
$2,980.00**
Documentary Transfer Tax
$990.00**
NHD Report
$89.95**
Commission (Once a fully executed Purchase Agreement is received 1 will prepare Commission Instructions for signatures of Seller and Buyer) $27,000.00**
**Seller and Buyer each to pay one-half of the costs.
Janet Tilbury
Senior Escrow Officer/Manager
949-401-4774 — Direct
949-401-4780 — Fax
[email protected]
www.escrow321.com
4000 Barranca Parkway, Suite 155
Irvine, CA 92604