ACTION:
Department: City Attorney Item No: C15
Prepared by: Walter Chung, City Attorney Meeting Date: November 12, 2024 Approved by: John Conley, City Manager Agenda Location: Consent Calendar SUBJECT: PURCHASE AGREEMENT FOR 1.39 ACRE LOT WEST OF E. BOBIER DRIVE RECOMMENDATION:
1.Adopt City Council Resolution No. 2024- , authorizing the City to enter a purchase agreement for a parcel of real property located west of East Bobier Drive (APN 173-131-03).
2.Adopt City Council Resolution No. 2024- , amending the Capital Project Budget for Fiscal Years 2024/25 and 2025/26.
CORRELATION TO CITY COUNCIL GOALS: Parks and Recreation.
PRIOR ACTION: None.
STATEMENT ON THE SUBJECT: The City Council has a goal of continuing to improve the City’s parks and recreation amenities. The 1.39-acre vacant parcel located west of E. Bobier Drive (“property”) has the potential to be converted into a new City park. The owner of the property is willing to sell this property to the City for $820,000. Pursuant to City Council Policy No. 600-10, City staff has obtained a written appraisal of the property from a reputable appraisal company. A purchase price of $820,000 is supported by said appraisal.
To cover costs associated with the purchase (i.e. escrow, title, etc.) and operating and maintenance costs post purchase and prior to the City Council’s determination on the use of this property, staff is recommending the City Council appropriate $100,000 for these additional ancillary costs.
FISCAL IMPACT: The $820,000 purchase price and $100,000 ancillary costs will be funded by Park Development Impact Fees (1020000.310410). The full $920,000 will be appropriated into the Bobier Drive Park Project Source Appropriation account (1026570.578999.8388).
EXHIBITS:
1.City Council Resolution No. 2024- , authorizing the City to enter a purchase agreement for a parcel of real property located west of East Bobier Drive (APN 173-131-03)
2.Real property purchase agreement for the property
3.City Council Resolution No. 2024 , amending the Capital Project Budget for Fiscal Years 2024/25 and 2025/26
AGENDA
REPORT
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
SUCCESSOR AGENCY
BUENA SANITATION DISTRICT
JOINT POWERS FINANCING AUTHORITY
____________________________
Clerk/Secretary
Approved above recommendation, adopted the following: 1) City Council Resolution No. 2024-187.
Vote: 4-0 (Melendez absent); 2) City Council Resolution No. 2024-188. Vote: 4-0 (Melendez absent).
{4894-7433-6743 v1}
RESOLUTION NO. 2024-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF
VISTA, CALIFORNIA, AUTHORIZING THE CITY TO ENTER A PURCHASE
AGREEMENT FOR A PARCEL OF REAL PROPERTY LOCATED WEST OF EAST BOBIER DRIVE (APN 173-131-03)
The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. The Estate of Douglas Sy Tan (“Owner”) owns a vacant parcel of real property located west of East Bobier Drive in the City of Vista, California, San Diego County Assessor parcel number 173-131-03 (“Property.”)
B. The City of Vista has determined that the purchase of the Property will further allow it to improve the City’s parks and recreation amenities.
D. Pursuant to City Council Policy No. 600-10, the City has received a written apprisal of the Property from a reputable appraiser.
E. The City intends to purchase the Property at the price of $820,000 (“Purchase Price”). The Purchase Price is supported by the appriasal received by the City.
F. Owner wishes to sell the Property to the City and the City wishes to purchase the Property at the Purchase Price.
G. The terms and conditions for the purchase of the Property will be contained in a Real Property Purchase Agreement by and between City and Owner.
2. Action.
A. The Real Property Purchase Agreement is approved and the City Manager is authorized to execute the Agreement on behalf of the City.
B. The City Manager is authorized to accept, approve, execute, enter into, and deliver all such certificates, deeds, conveyances, agreements, applications, and all other documents that are necessary and proper for implementing the Agreement and effectuating the purchase of the Property and the conveyance of title to the name of the City.
C. The City Council appropriates up to $100,000 for costs associated with the purchase of the Property and additional ancillary costs following completion of the purchase of the Property.
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EXHIBIT 1
RESOLUTION NO. 2024-
CITY COUNCIL OF THE CHARTERED CITY OF VISTA
PAGE 2
{00111398 1}Resolution to Enter Purchase Agreement for Vacant Lot West of East Bobier Drive 4867-2569-3430 v.1.docx 4867-2569-3430, v. 1
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on November 12, 2024, by the following vote:
AYES:
NOES:
ABSTAIN:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
JOHN FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
APPROVED
Walter C. Chung
20241106093318
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REAL PROPERTY PURCHASE AND SALE AGREEMENT
WITH JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT (“Agreement”) is made as of _________________, 2024 (“Effective Date”) by and between the City of Vista, a chartered municipal corporation, (“City” or “Buyer”) on the one hand, and the Estate of Douglas Sy Tan ("Seller"), on the other hand.
AGREEMENT
IN CONSIDERATION of the respective agreements hereinafter set forth, Seller and Buyer agree as follows:
ARTICLE 1 – PROPERTY INCLUDED IN SALE
Section 1.01. Property-Described
Seller hereby agrees to sell and convey to Buyer all property described in paragraphs (A) through (C) of this section (collectively referred to as the “Property” or “Real Property”) subject to the terms and conditions set forth herein:
(A)Real Property. Real property comprised of that certain real property, inclusive of all improvements, located in Vista, California and described as:
An approximately 1.39 acre vacant site, located west of East Bobier Drive, Vista California, legal description to be provided by escrow.
APN: 173-131-03
(B)Appurtenances. Appurtenances, consisting of all rights, privileges and easements appurtenant to the Real Property, including, without limitation, all minerals, oil, gas and other hydrocarbon substances on and under the Real Property, as well as all development rights, air rights, water, water rights, riparian rights and water stock relating to the Real Property and any rights-of-way or other appurtenances used in connection with the beneficial use and enjoyment of the Real Property and all of Seller’s right, title and interest in and to all roads and alleys adjoining or servicing the Real Property; and
(C)Personal Property. Personal property consisting of that certain tangible personal property, including all furniture and fixtures currently located on or in the Real Property, and all intangible property owned by Seller that is located on or in or is used in connection with the use or operation of any of the Property (“Personal Property”).
Section 1.02. Occupancy of Property.
Seller represents and warrants that, at the time of closing (see, Article 7, infra), the Property shall be vacant and not occupied by either Seller or any third parties and any leases by Seller for the Property shall have been concluded and/or terminated. 11/12/2024 C15 4 of 32
EXHIBIT 2
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ARTICLE 2 – PURCHASE PRICE
Section 2.01. Purchase Price
The full purchase price (“Purchase Price”) for the Property is eight hundred twenty thousand United States dollars ($820,000.00) and is payable in accordance with this Article.
Section 2.02 Deposits
(A) Initial Deposit. Within five (5) business days after the Effective Date, as a deposit against the Purchase Price, Buyer must deposit ten thousand United States dollars ($10,000.00) (“Initial Deposit”) into an escrow account (“Escrow”) to be opened with First American Title Insurance Company (“Escrow Holder”). If Escrow Holder agrees to act as escrow holder and agrees to be bound by the provisions contained herein and applicable to it as Escrow Holder, Buyer and/or Seller shall have the Escrow Holder shall execute the attached Consent of Escrow Holder Agreement.
(B) Requirements for Deposit. Buyer may make the Initial Deposit in cash, or by check payable to the Escrow Holder, or by electronic transfer of federal funds. The Escrow Holder shall hold the Deposit in an escrow account at a bank, which may accrue interest for the benefit of Buyer.
On the Closing Date (defined in section 7.02(B), the Deposit shall be credited against the Purchase Price and paid to Seller. If this Agreement terminates for any reason prior to the expiration of the Contingency Period as defined in Article 3 below, the Escrow Holder shall refund the Deposit, along with any interest accrued thereon, to the Buyer. After the expiration of the Contingency Period, if the Agreement terminates for any reason except Seller’s Default, the Escrow Holder shall release the Deposit, along with any interest accrued thereon to the Seller.
(C) Payment of Balance of Purchase Price. Buyer agrees to pay, or cause to be paid, the balance of the Purchase Price to Seller through the Escrow by depositing cash or a certified or cashier’s check payable to the Escrow Holder, or by electronic transfer of federal fund, which shall be delivered to the Escrow Holder at least one (1) business day before the Closing Date.
ARTICLE 3 – DUE DILEGENCE/CONTINGENCIES
Section 3.01 Due Diligence; Contingencies
Buyer shall have until twenty (20) days from the date this Agreement is fully executed by all parties to complete its due diligence (“Contingency Date.”) Buyer, between the Effective Date and Contingency Date (“Due Diligence Period”), shall: (1) investigate the condition, character, features, and quality of the Property, including the environmental condition of the Property; (2) review documents and assess information pertaining to the Property, its potential use, its business prospects, and its development potential; (3) evaluate its title attributes, and (4) consider all other matters covered by this Article 3 and this Agreement, as provided herein. If the Buyer is not satisfied with the Property prior to the End of the Due Diligence Period based on its investigation or for any other reason or for no reason at all, then on or before the End of the Due Diligence Period the Buyer may give the Seller its written notice of termination of this Agreement, at which point Buyer and Seller shall execute mutual escrow cancellation instructions, the Initial Deposit shall be returned by Escrow to the Buyer, and neither party shall have any obligation to the other under this Agreement, 11/12/2024 C15 5 of 32
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except as may have accrued prior to the notice of termination having been given (e.g. – Buyer’s obligation to repair damages to the Property occurring as a result of Buyer’s own investigation of it).
If Buyer fails to exercise its right to terminate this Agreement on or before the End of the Due Diligence Period, then the Initial Deposit shall become fixed and nonrefundable to the Buyer, except in the case of Seller’s own default, and shall become the property of the Seller, but applicable to the Purchase Price if Buyer timely completes the purchase of the Property pursuant to the terms of this Agreement.
Section 3.02 Seller’s Delivery of Preliminary Documents
Buyer’s obligation to purchase the Property is expressly conditioned on Seller’s delivering to Buyer all documents listed below in section 3.03 (“Preliminary Documents”), to the extent that they exist and are in the Seller’s Possession. Failure to deliver the Preliminary Documents within ten (10) business days after the Effective Date, unless such period for delivery is waived or extended in writing by Buyer.
Section 3.03 Buyer’s Review and Approval of Preliminary Documents
Buyer’s obligation to purchase the property is expressly conditioned, in its sole discretion, on its approval of all matters disclosed in the Preliminary Documents.
(A) Preliminary Report. A preliminary report (“Preliminary Report”) dated no earlier than thirty (30) days before the Effective Date covering the Property and issued by First American Title (“Title Company”), together with a legible copy of, or hyperlinked internet connection to the recorded documents referred to in the Preliminary Report as exceptions to title shown in the Preliminary Report, an illustration, not necessarily to scale, of all easements referenced as Title Exceptions in the Report that are readily determinable by the Title Company, and a natural hazard disclosure report (NHD) which is not more than sixty (60) days old prepared in compliance with the 1998 Natural Hazard Disclosure Act and issued by Disclosure Source.
(B) Surveys. A copy of any survey of the Real Property in Seller’s possession.
(C) Agreements. Copies of all written agreements made between the Seller and others that affect the Property, other than real estate listing or sales agreements.
(D) Tax Bills. The most recent Property tax bill statement for the Property.
(E) Materials Related to Condition of Property. Any environmental impact reports, “Phase I” or “Phase II” reports, or environmental site assessments concerning hazardous materials on the Property, complaints or notices of the presence of hazardous materials on the Property, geological surveys, soil tests, engineering reports, inspection results, complaints, or notices received regarding the safety of the Property.
(F) Litigation Materials. All materials related to pending or threatened litigation, or litigation that was pending or threatened during the period of Seller’s ownership of the Property of which Seller was or is aware, involving the Property or the Seller on account of its ownership of the Property, including correspondence, complaints, court orders, settlement, and judgments.
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(G) Other Documents. All other data, correspondence, documents, agreements, waivers, notices, applications, and other records regarding the Property relating to transactions with taxing authorities, governmental agencies, utilities, vendors, tenants, neighbors, and others.
(H) Excluded Records. The Preliminary Documents shall not include any books, records, documents, or information on the corporate, financial, and accounting records of the operations of Seller as an entity (as opposed to records concerning the Property), regarding offers or inquiries made by third parties concerning the purchase of some or all of the Property or appraisals of the value of the Real Property that are attorney-client communications of Seller, that is Seller’s attorney’s work product, or that is not in the possession of Seller or persons under Seller’s control.
(I) Certificate of Regarding Records That Do Not Exist. To the extent that documents do not exist for an above-identified category of Preliminary Records, Seller shall inform Buyer in writing to that effect.
Section 3.04. Condition of Title; Objection and Cure
Buyer’s obligation to purchase the Property is expressly conditioned on Buyer’s approval of the condition of title of the Property in accordance with the following procedure:
(A) Permitted Exceptions. The following exceptions on the Preliminary Report (“Permitted Exceptions”) are approved by Buyer: (a) exceptions for a lien for local real estate taxes and assessments not yet due or payable, (b) the standard preprinted exceptions and exclusions of the Title Company, and (c) any exception on the Preliminary Report particularly identified in a writing executed by Buyer on or before the “Objection Date,” defined infra, which states that Buyer waives any objections to that particular exception (“Buyer’s Consent Notice”). The title objection date (“Objection Date”) shall be the fifteenth (15th) day following Buyer’s receipt of the Preliminary Report.
The following shall not be Permitted Exceptions and shall be removed by Seller on or before the Closing: deeds of trust and mortgages; mechanics’, materialmen’s and similar liens; delinquent taxes and assessments; security interests other than taxes or other governmental obligations; and all other monetary liens, other than the lien for real property taxes and assessments not yet due or payable.
(B) Title Objections; Cure Notifications. Each exception to the Preliminary Report, other than a Permitted Exception, constitutes a title objection (“Title Objection”). Seller shall have ten (10) days after the Objection Date (“Cure Notification Date”) to specify the manner in which Seller will remove or cure each Title Objection arising or resulting from an act or omission of Seller. For each Title Objection that did not arise or result from an act or omission of Seller, Seller shall provide Buyer with a written notice, on or before the Cure Notification Date, advising Buyer: (a) of the manner in which Seller will remove or cure such Title Objection, or (b) Seller’s determination to not remove or cure such Title Objection (“Seller’s Title Notice”). If a Seller’s Title Notice is not provided to Buyer by the Cure Notification Date, it shall be deemed that Seller has chosen not to cure the Title Objection. Despite the foregoing, Seller agrees, to remove all liens securing the payment of money
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that encumber the Property. Nothing by way of this subparagraph 3.04 (B) shall mean or infer that Seller has any obligation to cure or remove any reported matters of title other than liens securing the payment of money that encumber the Property, or taxes or assessment already accrued.
(C) Seller Elects Not to Cure. If Seller elects not to cure or remove a Title Objection (or is deemed to have so elected), then Buyer shall have ten (10) days after delivery of the Seller’s Title Notice to deliver a written notice to Seller of Buyer’s election either to (a) proceed with the purchase of the Property, waive such Title Objection, and accept the exception shown in the Preliminary Report as a Permitted Exception, or (b) terminate this Agreement (“Buyer’s Election Notice”). If Buyer fails to deliver Buyer’s Election Notice within the time specified in this section, Buyer shall be deemed to have elected to terminate this Agreement.
(D) Non-Monetary Cure. If Seller is obligated or elects to cure or remove a Title Objection, but the method specified for removing or curing the title Objection is other than the payment of a specified sum of money, then Buyer shall have ten (10) days after delivery of the Seller’s Title Notice to deliver Buyer’s Election Notice specifying whether it elects to (a) proceed with the purchase of the Property, subject to Seller’s removal of the Title Objection, or (b) terminate this Agreement. If Buyer fails to deliver Buyer’s Election Notice within the time specified in this section, Buyer shall be deemed to have elected to terminate this Agreement.
(E) Additional Encumbrances. If any encumbrance or other exception to title arises or is discovered after the delivery of the Preliminary Report (“Additional Encumbrance”), the party discovering such Additional Encumbrance shall promptly give written notice to the other. No later than five (5) days after delivery of the notice of such Additional Encumbrance, Buyer shall deliver a new Buyer’s Title Notice to Seller specifying whether the Additional Encumbrance is a Title Objection or a Permitted Exception. If Buyer objects to the Additional Encumbrance, the parties shall proceed in the same manner as set forth above for Title Objections arising from the Preliminary Report. If Buyer fails to deliver Buyer’s Election Notice within the time specified in this section, Buyer shall be deemed to have elected to terminate this Agreement.
(F) Seller’s Failure to Remove Title Objection. If Seller is obligated by the terms of this Agreement to, or elects to cure or remove a Title Objection and fails to do so at least five (5) days before the Closing Date, or fails to show that it will be able to do so on Closing, then Seller shall be in default under this Agreement, and Buyer shall have all rights and remedies provided by this Agreement.
Section 3.05. Review of Physical Condition of Property; Access to Property
(A) Due Diligence. Buyer’s obligation to purchase the Property is expressly conditioned on its approval, in its sole discretion, of the condition of the Property and all other matters concerning the Property, including without limitation, soil conditions, the possible presence of Hazardous Materials on or nearby the Property, archeological issues, the physical and environmental condition of the Property, and other physical or environmental factors associated with the Property. Buyer shall conduct such investigation and assessment and may, in its sole discretion, determine whether the Property and related considerations are acceptable to Buyer.
(B) Access to Property. During the effectiveness of this Agreement, Buyer may investigate economic, financial, and accounting matters relating to or affecting the Property or its 11/12/2024 C15 8 of 32
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value, and conduct inspections, tests, and studies with respect to the physical and environmental condition of the Property. Access to the Property shall be given to Buyer, its agents, employees, or contractors during normal business hours upon at least one (1) business days’ notice to Seller, at their own cost and risk, for any purposes, including, but not limited to, inspecting the Property, taking samples of the soil, and conducting an environmental audit (including an investigation of past and current uses of the Property). Buyer shall indemnify and defend Seller against and hold Seller harmless from all losses, costs, damages, liabilities, and expenses, including, without limitation, reasonable attorney's 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 except to the extent any such losses, costs, damages, liabilities, and expenses arise out of the gross negligence or willful acts of Seller. The provisions of this Section shall survive the Close of Escrow. If Buyer fails to complete the purchase of this Property from Seller, then Buyer shall promptly restore the Property to its original condition if it was changed in any way by Buyer’s, of Buyer’s agents’ inspections or testing. This obligation shall survive the termination of this Agreement, even if Buyer is otherwise entitled to terminate it.
(C) Access to Information. In addition to the provisions above, Buyer 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 governmental authority or agency to investigate any matters relating to the Property. Seller agrees to cooperate reasonably with Buyer 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.
Section 3.06. Termination for Failure of a Contingency
Prior to the Contingency Date, Buyer shall advise Seller in writing whether Buyer is accepting the Property or terminating this Agreement. If Buyer fails to give such notice on or before the Contingency Date, then in accordance with paragraph 3.01, above, Buyer shall be deemed to have elected to waive its right to terminate this Agreement.
If this Agreement is terminated in a manner set forth in this Article 3, then immediately on written notice from Buyer, Escrow Holder must refund the Deposit to Buyer, without offset for any charges or claims. Any cancellation fee or other costs of the Escrow Holder or the Title Company resulting from this termination for failure of a contingency, shall be borne equally by Seller and Buyer, and each party shall pay its own expenses.
ARTICLE 4 – SELLER’S PRE-CLOSING COVENANTS
Section 4.01. Seller’s Covenants
Seller makes the following covenants:
(A) No New Agreements or Amendments of Preliminary Documents. On or after the Effective Date, Seller shall not (a) amend or waive any right under any Preliminary Document or (b) enter into any lease or other agreement of any type affecting the Property that would survive the Closing Date, without Buyer’s prior written consent. Before the Contingency Date, Buyer may not 11/12/2024 C15 9 of 32
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unreasonably withhold its consent under this section; after the Contingency Date, however, Buyer shall have sole discretion in all such matters.
(B) Insurance. Through the Closing Date, Seller must maintain or cause to be maintained in full force and effect comprehensive general liability, casualty, and other insurance on the Property in an amount equal to the full replacement cost of the Improvements.
(C) Maintenance and Operation. Seller, at its sole cost and expense, must operate the Property in substantially the same manner as it has operated the Property prior to the Effective Date and must maintain and keep the Property such that on the Closing Date the Property is in at least as good condition and repair as on the Effective Date, reasonable wear and tear excepted. Seller may not make any material alterations to the Property without Buyer’s prior written consent.
(D) Mechanic’s Liens. Except for materials, supplies, or work provided or ordered for the Property at the request of or for the account of Buyer, on or before the Closing, Seller must (a) pay for all materials, supplies, and work provided or ordered for the Property of which a labor, materialman’s, or mechanics’ lien may be claimed under applicable law and (b) if required by the Title Company, provide the Title Company with such indemnifications or security as it may require to insure title to the Property at the Closing without exception for any unrecorded labor, materialman’s or mechanics’ claim of lien.
(E) No Marketing. Seller agrees not to market, show, or list the Property to any other prospective buyer during the term of this Agreement.
(F) Existing Financing. Seller shall not permit any default, or any event that could give rise to a default with lapse of time or notice, to occur under any existing loan secured by the Property or other financing encumbering the Property.
(G) Access to Property. Buyer and Buyer’s Representatives and designees shall have the right at all reasonable times until Closing to enter the Property as provided in section 3.05.
(H) Notification. Seller shall promptly notify Buyer of any material change in any condition with respect to the Property or of any material event or circumstance that makes any representation or warranty of Seller under this Agreement untrue or misleading.
(I) Service Contracts. Seller covenants and agrees that before the Closing Date it shall terminate all service contracts related to the Property except any that Buyer has specifically elected to assume.
ARTICLE 5 – REPRESENTATIONS AND WARRANTIES
Section 5.01. Seller’s Representations and Warranties
(A) Condition of Property. BUYER ACKNOWLEDGES AND AGREES THAT SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL FAULTS”. BUYER HAS NOT RELIED AND WILL NOT RELY ON,
AND SELLER HAS NOT MADE AND IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR
IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, THE LAND OR THE IMPROVEMENTS OR 11/12/2024 C15 10 of 32
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RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY
INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY SELLER, OR ANY PROPERTY MANAGER, REAL ESTATE BROKER, AGENT
OR THIRD PARTY REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING.
BUYER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND
SOPHISTICATED BUYER OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER’S CONSULTANTS IN PURCHASING THE PROPERTY AND
SHALL MAKE AN INDEPENDENT VERIFICATION OF THE ACCURACY OF ANY DOCUMENTS AND INFORMATION PROVIDED BY SELLER. BUYER WILL CONDUCT SUCH INSPECTIONS
AND INVESTIGATIONS OF THE PROPERTY, THE LAND AND THE IMPROVEMENTS AS
BUYER DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF (SUBJECT FURTHER TO THE APPLICABLE TERMS AND PROVISIONS OF THIS AGREEMENT), AND SHALL RELY SOLELY UPON SAME.
BUYER ACKNOWLEDGES THAT SELLER HAS AFFORDED BUYER A FULL OPPORTUNITY
TO CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMED
NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE
EXISTENCE OR NON-EXISTENCE 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 OR EMPLOYEES WITH RESPECT THERETO. UPON
CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT
NOT LIMITED TO, ADVERSE PHYSICAL OR CONSTRUCTION DEFECTS OR ADVERSE
ENVIRONMENTAL, HEALTH OR SAFETY CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INSPECTIONS AND INVESTIGATIONS. EACH OF SELLER AND BUYER
HEREBY WAIVES ANY AND ALL RIGHTS OR REMEDIES IT MAY HAVE OR BE ENTITLED TO,
DERIVING FROM DISPARITY IN SIZE OR FROM ANY SIGNIFICANT DISPARATE BARGAINING POSITION IN RELATION TO THE OTHER.
BUYER WAIVES ITS RIGHT TO RECOVER FROM, AND FOREVER RELEASES AND DISCHARGES SELLER, SELLER’S AFFILIATES, SELLER’S INVESTMENT ADVISOR AND
MANAGER, THE PARTNERS, TRUSTEES, SHAREHOLDERS, MEMBERS, DIRECTORS,
OFFICERS, ATTORNEYS, EMPLOYEES AND AGENTS OF EACH OF THEM, AND THEIR
RESPECTIVE HEIRS, SUCCESSORS, PERSONAL REPRESENTATIVES AND ASSIGNS (COLLECTIVELY, THE “RELEASEES”) FROM ANY AND ALL DEMANDS, CLAIMS (INCLUDING,
WITHOUT LIMITATION, CAUSES OF ACTION IN TORT), LEGAL OR ADMINISTRATIVE
PROCEEDINGS, LOSSES, LIABILITIES, DAMAGES, PENALTIES, FINES, LIENS, JUDGMENTS, COSTS OR EXPENSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’
FEES AND COSTS), WHETHER DIRECT OR INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN (COLLECTIVELY, “CLAIMS”), THAT MAY ARISE ON ACCOUNT OF OR IN
ANY WAY BE CONNECTED WITH THE PROPERTY, THE PHYSICAL CONDITION THEREOF,
OR ANY LAW OR REGULATION APPLICABLE THERETO (INCLUDING, WITHOUT LIMITATION,
CLAIMS UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED (42 U.S.C. SECTION 6901, ET SEQ.), THE RESOURCES CONSERVATION AND RECOVERY ACT OF 1976 (42 U.S.C. SECTION 6901, ET SEQ.), THE CLEAN WATER ACT (33 U.S.C. SECTION 1251, ET SEQ.), THE SAFE DRINKING WATER ACT (49 U.S.C. SECTION 1801, ET SEQ.), THE HAZARDOUS TRANSPORTATION ACT (42 U.S.C. SECTION 6901, ET SEQ.), AND THE TOXIC SUBSTANCE CONTROL ACT (15 U.S.C. 11/12/2024 C15 11 of 32
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SECTION 2601, ET SEQ.). WITHOUT LIMITING THE FOREGOING, BUYER, UPON CLOSING,
SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER AND ALL
OTHER RELEASEES FROM ANY AND ALL CLAIMS, MATTERS ARISING OUT OF LATENT OR
PATENT DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL
OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS AFFECTING THE PROPERTY. AS PART OF THE PROVISIONS OF THIS SECTION, BUT NOT AS A LIMITATION
THEREON, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE MATTERS
RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED,
AND BUYER HEREBY WAIVES ANY AND ALL RIGHTS AND BENEFITS WHICH IT NOW HAS,
OR IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY VIRTUE OF THE PROVISIONS OF FEDERAL, STATE OR LOCAL LAW, RULES AND REGULATIONS. BUYER AGREES THAT
SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR
OTHER ENVIRONMENTAL CONDITIONS ON OR ABOUT THE PROPERTY BE REQUIRED
AFTER THE DATE OF CLOSING, SUCH CLEAN-UP, REMOVAL OR REMEDIATION SHALL NOT BE THE RESPONSIBILITY OF SELLER.
BUYER HEREBY ACKNOWLEDGES THAT SELLER WOULD NOT AGREE TO SELL THE
PROPERTY ON THE TERMS AND CONDITIONS THAT ARE SET FORTH IN THIS AGREEMENT IF BUYER DID NOT AGREE TO EACH AND EVERY PROVISION IN THIS SECTION. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE DELIVERY OF THE DEED AND THE CLOSING OR THE EARLIER TERMINATION HEREOF AS PROVIDED HEREIN.
(B) Seller’s Express Representations. Notwithstanding the forgoing subparagraph
5.01 (A) Seller hereby represents and warrants that each of the following is true as of the Effective Date and the Closing Date:
(i) Compliance with Laws. To the best of Seller’s knowledge and without warranty (a) neither the Property nor its operation violates in any way any applicable laws, ordinances, rules, regulations, judgments, orders, or covenants conditions and restrictions, whether federal, state, local, foreign or private, including without limitation the Americans with Disabilities Act and all life safety requirements; (b) Seller has not received any request, oral or written, that Seller modify or terminate any use of the Property; (c) The zoning of the Property permits the current Improvements and use of the Property, or lack thereof; and (d) the Property complies with the Subdivision Map Act and local ordinances under that Act.
(ii) Documents. All Preliminary Documents delivered to Buyer and all other documents delivered to Buyer by or on behalf of Seller, are true, correct, and complete copies of the original or copies in Seller’ possession. The documents delivered by Seller to Buyer are all the documents concerning the Property in Seller’s possession and described in paragraph 3.3, above.
(iii) Litigation. To the best of Seller’s knowledge and without warranty there is no pending or threatened private or governmental litigation by any governmental authority or person against Seller relating to the Property that might, if it and all other pending and threatened litigation were adversely determined, result in a material adverse change in the Property or its operation or that challenges the validity of or otherwise materially adversely affects the transactions contemplated by this Agreement.
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(iv) Other Proceedings. To the best of Seller’s knowledge and without warranty no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending or threatened against Seller or Seller’s interest in the Property, nor are any such proceedings contemplated by Seller.
(v) Governmental Action. Seller has no knowledge or, nor has Seller received written notice of, any plan, study, or effort by any agency or party that in any way would materially affect the use of the Property or any portion of it for its current use or of any intended public improvements that would result in any charge being levied against, or any lien assessed on, the Property. Seller has no knowledge of any existing, proposed, or contemplated plan to widen, modify, or realign any street or highway contiguous to the Property.
(vi) Condemnation. Seller has received no notice of any presently pending or contemplated special assessments or proceedings to condemn or demolish the Property or any part of it or any proceedings to declare the Property or any part of it a nuisance.
(vii) Development Rights. Neither Seller nor, to the best of Seller’s knowledge, any previous owner of the Property has, except by operation of law, sold, transferred, conveyed, or entered into any agreement regarding “air rights,” “excess floor area ratio,” or other development rights or restrictions relating to the Property, except as otherwise expressly set forth in the Preliminary Report.
(viii) Due Authorization. This Agreement and the performance of Seller’s obligations under it and all documents executed by Seller that are to be delivered to Buyer at the Closing are, or on the Closing Date shall be, duly authorized, executed, and delivered by Seller and are, or at the Closing Date, shall be legal, valid, and binding obligations of Seller, and do not, and on the Closing Date shall not, violate any provision of any agreement or judicial order to which Seller is a party or to which Seller or the Property is subject. No consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental agency, or other party is required for Seller to enter into or perform Seller’s obligations under this Agreement, except as has already been obtained. Seller is a limited liability corporation, validly existing, and in good standing under the laws of the State of California and is qualified to do business in the State of California.
(ix) Title to the Property. Seller has good and marketable title to the Property.
Seller has no actual knowledge of any unrecorded or undisclosed legal or equitable interest in the Property owned or claimed by anyone other than Seller. Seller has no knowledge that anyone will, at the Closing, have any right to possession of the Property, except as disclosed by this Agreement or otherwise in writing to Buyer. Seller is not aware of any unsatisfied mechanics’ or materialmen’s lien rights on the Property. No assessment lien or bond encumbers the Property, and no governmental authority has undertaken any action that could give rise to an assessment lien affecting the Property.
(x) Personal Property. Seller has no knowledge that anyone will, at the Closing, have any right to possession of any personal property included in the Purchase Price nor knowledge of any liens or encumbrances affecting such personal property, except as disclosed by this Agreement or otherwise on writing to Buyer.
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(xi) Hazardous Wastes. Seller is not aware of any violation of any federal, state, or local law, ordinance, or regulation relating to industrial hygiene or to the environmental conditions on, under, or about the Property, including but not limited to soil and groundwater conditions. Seller is not aware of any environmental, health, or safety hazards on, under, or about the Property, including but not limited to soil and groundwater conditions. Neither Seller nor, to Seller’s knowledge, any third party (including but not limited to Seller’s predecessors in title to the Property) has used or installed any underground tank, or used, generated, manufactured, treated, stored, placed, deposited, or disposed of on, under or about the Property or transported to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances, or related materials (“Hazardous Materials”), which for purposes of this Agreement includes, but is not limited to, substances defined as “hazardous substances”, “hazardous materials”, or “toxic substances” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 USC §§ 9601, et seq.); the Resource Conservation and Recovery Act (42 USC §§ 6901); the Hazardous Materials Transportation Act (49 USC §§ 1801, et seq.); the substances defined as “hazardous wastes” in California Health and Safety Code §25117 or as “hazardous substances” in California Health and Safety Code § 25316; and the chemicals known to cause cancer or reproductive toxicity as published in the Safe Drinking Water and Toxic Enforcement Act of 1986 (California Health and Safety Code § 25249.5, et seq.); and in the regulations adopted and publications promulgated under each of the aforesaid laws. Seller has no actual knowledge, except as otherwise disclosed to Buyer in writing, of the existence or prior existence on the Property of any Hazardous Material, other than de minimis amounts of household cleaners or office supplies.
(xii) Foreign Person. Seller is not a foreign person and is a “United States Person” as such term is defined in § 7701(a) (30) of the Internal Revenue Code of 1986, as amended.
(xiii) Relocation. Seller represents and warrants that, as of the Closing Date, there will be no occupants of, and no persons or entity with rights to occupy, the Property and that no persons or businesses will be displaced as a result of (i) the sale of the Property as herein contemplated or (ii) the Buyer’s use of the Property. In the event there are such persons or businesses, Seller hereby does and shall assume all obligations with respect thereto. It is understood and agreed that Buyer and the City of Vista shall have no liability for such relocation assistance, including without limitation, for relocation benefits payable under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601, et seq.) and the implementing regulations thereto, or under Title 1, Division 7, Chapter 1 of the Government Code of the State of California (Section 7260, et seq.) and the implementing regulations thereto, (“Relocation Assistance”). Seller agrees to indemnify, defend (with counsel selected by Buyer), and hold harmless Buyer, the City of Vista and their officers, board members, directors, agents and employees from any loss, liability, damages, costs and expenses (including attorneys’ fees), demands, causes of action, claims or judgments incurred in the event any person or business alleges it is entitled to Relocation Assistance or as a result of any such Relocation Assistance payable to any persons or businesses described in this Section. The representations, warranties and indemnity set forth in this Section shall survive the Close of Escrow and the delivery of the grant deed.
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Section 5.02. Buyer’s Representations and Warranties
Despite anything to the contrary in this Agreement, Buyer hereby warrants and represents that, upon approval of this Agreement by Buyer, as of the Effective Date, this Agreement and the performance of Buyer’s obligations under it and all the documents executed by Buyer that are to be delivered to Seller at the Closing are, or on the Closing Date shall be, duly authorized, executed, and delivered by Buyer and are, or at the Closing Date shall be, legal, valid, and binding obligations of Buyer, and do not, and on the Closing Date shall not, violate any provisions of any agreement or judicial order to which Buyer is a party or to which Buyer or the Property is subject. No consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental agency or other party is required for Buyer to enter into or to perform Buyer’s obligations under this Agreement, except as has already been obtained.
Section 5.03. Effect of Representations and Warranties
Each representation and warranty in this Article 5 (a) is material and being relied on by the party to which the representation and warranty is made; (b) is true in all respects as of the Effective Date; (c) shall be true in all respects on the Closing Date; and (d) shall survive the Closing, except as otherwise provided in this Agreement.
ARTICLE 6 – CLOSING CONDITIONS
Section 6.01. Buyer’s Closing Conditions.
All obligations of Buyer under this Agreement are subject to the fulfillment, before or at the Closing, of each of the following conditions (“Buyer’s Closing Conditions”). Buyer’s Closing Conditions are solely for Buyer’s benefit and any or all of the Buyer’s Closing Conditions may be waived in writing by Buyer in whole or in part without prior notice.
(A) Title. It is a Buyer’s Closing Condition that, on the closing, Date, Seller convey to Buyer marketable fee simple title to the Real Property by execution and delivery of a grant deed in the form attached to this Agreement as Exhibit “A” (“Deed”) and cause to be delivered to Buyer from the Title Company an ALTA Owner’s Extended Coverage Policy of Title Insurance (in the form most current) with liability in the full amount of the Purchase Price, insuring title to the Real Property in Buyer, subject only to the Permitted Exceptions (“Title Policy”). If Buyer wishes extended coverage, a survey policy, or other non-standard endorsements not otherwise provided with an ALTA Owner’s Extended Coverage Policy, they may be provided with the Title Policy, but at the Buyer’s expense.
Seller must deliver to the Title Company such instruments, documents, releases, and agreements and must perform such other acts as Title Company may reasonably require in order to issue the Title Policy. Seller shall not, however, be obligated to execute any affidavit or provide any indemnity to the Title Insurer for matters of which Seller is not actually aware. Indemnification of the Title Company to induce it to insure any otherwise unpermitted exception to title shall not be allowed except with Buyer’s prior written consent after full disclosure to Buyer of the nature and substance of such exception and indemnity, which consent shall not be unreasonably withheld by Buyer for exceptions not material to marketable title to the Real Property.
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(B) Real Property Liens. Buyer must have received a certified report, with copies of all documents, satisfactory to Buyer and Buyer’s counsel, from the Title Company or a reputable lien search company indicating that there are no personal property liens of record on file with the Secretary of State of California, other than those that will be discharged at the Closing, as of a date no more than then (10) business days before the Closing Date, and a confirmation dated no more than three (3) business days before the Closing Date that no further liens have been filed since the date of the certified report.
(C) Tax Liens. Buyer must have received a verified report, satisfactory to Buyer and Buyer’s counsel, from the Title Company or a reputable lien search company, indicating that there are no federal or state tax liens of record against the Property and on file with the respective agencies as of a date no more than ten (10) business days before the Closing Date.
(D) Seller’s Representations, Warranties, and Covenants. The representations and warranties of Seller in this Agreement must be true in all material respects on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date. Seller must have performed and complied with all covenants, agreements, and conditions required by this Agreement to be performed or complied with by it before or on the Closing Date. Buyer must have been furnished with a certificate of Seller date as of the Closing Date, certifying to the fulfillment of the foregoing conditions. Such certificate shall have the effect of a representation and warranty of Seller made on and as of the Closing Date.
(E) Available Funds. The funds appropriated by Buyer’s governing body for purchase of the Property shall be ready and available for deposit into Escrow as described in section 7.04, subject to no conditions other than conveyance of the Property by Seller to Buyer.
(F) Closing Documents. Seller must have delivered to Escrow the documents and funds it is required to deliver through Escrow at Closing.
(G) Physical Condition. The physical condition of the Property must be substantially the same on the Closing Date as on the Effective Date, reasonable wear and tear excepted.
(H) Adverse Actions. There shall exist no actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceeding, pending or threatened, against Seller or regarding the Property that would materially and adversely affect the Seller’s ability to perform its obligation under this Agreement or Buyer’s title to the Property and there shall exist no pending or threatened action, suit, or proceeding regarding the Seller before or by any court or administrative agency that seeks to restrain or prohibit, to obtain damages or a discovery order with respect to, this Agreement or the consummation of the transactions contemplated by this Agreement.
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(I) Hazardous Materials. No Hazardous Materials shall have been discovered on the Property after the Contingency Date that were not previously disclosed to Buyer or discovered by Buyer before the Contingency Date.
(J) No Material Changes. No event shall have occurred, nor shall any condition have arisen after the Contingency Date that as of the Closing Date materially and adversely affects all or any part of the Property or its current or prospective operation, use, value, income, expenses, or occupancy.
(K) Consents. All necessary agreements and consents of all parties to consummate the transaction contemplated by this Agreement shall have been obtained and furnished by Seller to Buyer.
Section 6.02. Seller’s Closing Conditions
Seller’s obligation to sell the Property is expressly conditioned on the fulfillment of each condition precedent at or before the Closing (“Seller’s Closing Conditions”). Seller’s Closing Conditions are solely for Seller’s benefit and any of Seller’s Closing Conditions may be waived in writing by Seller in whole or in part without prior notice.
(A) Approval of Contingencies. It is a Seller’s Closing Condition that Buyer must have acknowledged its approval or waiver of all contingencies as required under Article 3.
(B) Purchase Price. Buyer must have delivered the Purchase price to Escrow.
(C) Delivery of Closing Documents and Funds. Buyer must have delivered to Escrow the documents and funds specified in Section 7.04.
(D) Buyer’s Representations, Warranties and Covenants. The representations and warranties of Buyer in this Agreement must be true in all material respects on and as of the Closing Date with the same effect as if such representations and warranties had been made on and as of the Closing Date. Buyer must have performed and complied with all covenants, agreements, and conditions required by this Agreement to be performed or complied with by it before or on the Closing Date. Seller must have been furnished with a certificate of Buyer dated as of the Closing Date, certifying to the fulfillment of the foregoing conditions. Such certificate shall have the effect of a representation and warranty of Buyer made on and as of the Closing Date.
Section 6.03. Termination for Failure of a Condition
If Buyer’s Closing Conditions or Seller’s Closing Conditions, as the case may be, have not been previously approved or waived, this Agreement may be terminated by the party in whose favor the Closing Condition runs by written notice to the other. If this Agreement is so terminated, the parties shall have no further obligation or liability under this Agreement, except as provided in Article 9 and this section. If the Agreement terminates because of the Seller’s failure to satisfy the Buyer’s Closing Conditions as set forth in Section 6.03, the Escrow Holder shall refund the Deposit, along with any interest accrued thereon, to the Buyer. If the Agreement terminates because of the Buyer’s failure to satisfy the Seller’s Closing Conditions as set forth in Section 6.02, the Escrow Holder shall
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release the Deposit, along with any interest accrued thereon to the Seller. Any cancellation fee or other costs of the Escrow Holder and Title Company shall be borne equally by Seller and Buyer, and each party shall pay its own expenses.
ARTICLE 7 – CLOSING
Section 7.01. Escrow
The Escrow shall be opened with the Escrow Holder on the execution of this Agreement.
Buyer and Seller shall promptly on the Escrow Holder’s request execute such additional escrow instructions as are reasonably required to consummate the transaction contemplated by this Agreement and are not inconsistent with this Agreement.
Section 7.02. Closing Definitions
(A) Closing. The closing (“Closing”) means the exchange of money and documents as described in this Article 7 and shall be deemed to have occurred when Seller’s Deed to Buyer has been recorded, and the Escrow Holder holds and can record and deliver the remaining documents described in this Article 7, the Title Company is irrevocably and unconditionally committed to issue the Title Policy, and Buyer has delivered the Purchase Price in immediately available funds to Escrow Holder.
(B) Closing Date. Seller and Buyer agree that the Closing shall occur on the Closing Date. The closing date (“Closing Date”) shall be ten (10) days after expiration of the contingency period. The Closing shall be at the offices of Escrow Holder or such other place as the parties may agree.
Section 7.03. Seller’s Deposit of Documents and Funds
Seller must deposit into Escrow the following documents duly executed by Seller in form and substance reasonably satisfactory to Buyer:
(A) Deed. The duly executed and acknowledged Deed conveying the Property to Buyer subject only to the Permitted Exceptions.
(B) Non-Foreign Certification. Certificates required by § 1445 of the Internal Revenue Code of 1986, and the California Revenue and Taxation Code § 18815, executed by Seller and in a form satisfactory to Buyer (“Non-Foreign Certification”), to relieve Buyer of any potential transferee’s withholding liability under such statutes.
(C) Seller’s Proof of Power and Authority. Such proof of Seller’s authority and authorization to enter into and perform under this Agreement, and such proof of power and authority of the individuals executing or delivering any instruments, documents, or certificates on behalf of Seller to act for and bind Seller as may reasonably be required by Buyer or the Escrow Holder.
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(D) Additional Documents. Such additional documents, including written Escrow instructions consistent with this Agreement, as may be necessary or desirable to convey the Property in accordance with this Agreement.
Section 7.04. Buyer’s Deposit of Documents and Funds
Buyer must deposit into Escrow the following funds and documents duly executed by Buyer in form and substance reasonably satisfactory to Seller:
(A) Purchase Price. The Purchase Price in accordance with Section 2.01.
(B) Conveyance Documents. Such documents, including written escrow instructions consistent with this Agreement, as may be necessary or desirable for conveyance of the Property in accordance with this Agreement.
Section 7.05. Closing
When the Escrow Holder receives all documents and funds identified in sections 7.03 and
7.04, and the title Company is ready, willing, and able to issue the Title Policy, then, and only then, the Escrow Holder shall close Escrow by:
(i) Recording the Deed;
(ii) Recording any documents required to be recorded by Seller’s lender;
(iii) Issuing the Title Policy to Buyer;
(iv) Escrow shall deliver to Buyer the Non-Foreign certification, copies of all recorded documents related to the transfer or encumbering of the Property, and a copy of Seller’s Escrow instruction; and
(v) Paying the Purchase Price to Seller, plus or minus prorations under section 7.07.
Thereafter, Escrow Holder shall deliver signed closing statements showing all receipts and disbursements to Buyer and Seller and shall file with the Internal Revenue Service (with copies to Buyer and Seller) the reporting statement required under Internal Revenue Code § 6045 (e).
Section 7.06. Closing Costs
Closing costs shall be allocated as follows:
(i) Seller shall pay all costs associated with removing any debt encumbering the Property;
(ii) Escrow costs shall be shared equally by Seller and Buyer;
(iii) Seller shall pay the cost of the Title Policy and Buyer shall pay for any special endorsements. surveys, or survey guarantees requested by Buyer;
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(iv) Buyer shall pay the fees for recording the Deed, if any;
(v) Buyer shall pay any sales tax; and
(vi) The documentary transfer tax and recording fees, if any, shall be paid by Buyer.
Section 7.07. Broker’s Commission
Seller and Buyer each represent and warrant to the other that the respective party has not had any contact or dealings regarding the Property, or any communication in connection with the subject matter of this transaction, through any licensed real estate broker or person. If any other broker or finder perfects a claim for a commission or finder’s fee based on any contract, dealings or communication with a party (“Indemnifying Party”), then the Indemnifying Party shall indemnify, defend, and hold the other party (“Non-indemnifying Party”) harmless from all costs and expenses (including reasonable attorney fees and costs of defense) incurred by the Non-indemnifying Party in connection with such claim.
Section 7.08. Possession
Seller shall deliver exclusive right of possession of the Property to Buyer on the Closing Date.
ARTICLE 8 – RISK OF LOSS
Section 8.01. Condemnation
If before the Closing Date any action or proceeding is commenced for the condemnation or exercise of the rights of eminent domain of the Property or any portion of it, or if Seller is notified by the duly authorized officer of a duly empowered condemning authority of the intent to commence such action or proceeding (“Condemnation”) and if such Condemnation would materially and adversely affect the use or operation of the Property, have the effect of decreasing the square footage of the Improvements, or reduce or eliminate access to the Property, then Buyer may either (a) terminate this Agreement or (b) proceed with the Closing without modifying the terms of this Agreement and without reducing the Purchase Price, on the condition that Seller must assign and turn over, and Buyer shall be entitled to keep, all awards for the Condemnation that accrue to Seller.
Seller may not negotiate, resist, or stipulate to any Condemnation without Buyer’s written consent.
Seller must notify Buyer of any notice of Condemnation of all or any portion of the Property within five (5) days after receipt of this notice, and Buyer must exercise its option(s) as provided in this section within ten (10) days after receipt of such notice. If necessary, the Closing Date shall be extended to give Buyer the full ten (10) day period to make such election.
Section 8.02. Damage and Destruction
If there is any damage or destruction to the Property, to the extent that there is insurance coverage for the loss, Seller will assign to Buyer the right to collect those proceeds. Excepting damage, destruction, or losses to the Property caused by Buyer or Buyer’s agents, employees, contractors, or other representatives, if there is no insurance coverage or if any such coverage does not fully cover the loss, the purchase price for the Property will be reduced by the amount of the uninsured loss. For purposes of this section, Uninsured Loss shall mean the difference between (i) the sum of the actual cost necessary for the Seller to fully repair such damage and destruction, as 11/12/2024 C15 20 of 32
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determined by a qualified insurance adjuster selected by the insurance carrier providing insurance for the Property, and (ii) the total amount of Insurance Proceeds, which shall mean the proceeds from any and all insurance with respect to the Property and/or to such loss, including without limitation fire and casualty and liability insurance. Uninsured Losses may arise because of self- insurance, deductible amounts under policies, proceeds of policies insufficient to cover the loss, risks not insured for, or otherwise. If any damage to or destruction of the Property occurs, the Closing Date shall be extended until the amount of the Insurance Proceeds is determined and Seller has made any election permitted under this section.
ARTICLE 9 – INDEMNIFICATION
Section 9.01. Indemnification
(A) General. Each party hereby agrees to indemnify the other party and defend and hold it harmless from and against any and all claims, demands, liabilities, costs, expenses, penalties, damages and losses, including, without limitation, attorneys’ fees, resulting from any misrepresentation or breach of warranty or breach of covenant made by such party in this Agreement or in any document, certificate, or exhibit given or delivered to the other pursuant to or in connection with this Agreement.
(B) Pre-Closing Indemnification. Seller agrees to indemnify Buyer and defend and hold Buyer harmless from and against any and all claims, demands, liabilities, costs, expenses, penalties, damages and losses, including, without limitation, attorneys’ fees, asserted against, incurred or suffered by Buyer resulting from any personal injury or property damage occurring in, on or about the Property or relating thereto before the Closing Date, from any cause whatsoever other than as a consequence of the acts or omissions of Buyer, its agents, employees or contractors.
(C) Post-Closing Indemnification. Buyer agrees to indemnify Seller and defend and hold Seller harmless from any claims, losses, demands, liabilities, costs, expenses, penalties, damages and losses, including, without limitation, attorneys’ fees, asserted against, incurred or suffered by Seller resulting from any personal injury or property damage occurring in, on or about the Property or relating thereto after the Closing Date, from any cause whatsoever.
(D) Survival. The indemnification provisions of this Article shall survive the Close of Escrow, or, if the Close of Escrow does not occur pursuant to this Agreement, beyond any termination of this Agreement.
ARTICLE 10 – REMEDIES FOR DEFAULT
Section 10.01. Buyer’s Default; Remedies
(A) Default. Buyer shall be deemed to be in default under this Agreement if Buyer fails, for any reason other than Seller’s default under this Agreement or the failure of a condition precedent to Buyer’s obligation to perform under this Agreement, to meet, comply with, or perform any covenant, agreement, or obligation required on its part within the time limits and in the manner required in this Agreement, or a material breach shall have occurred of any representation or warranty (made by Buyer); provided, however, that no such default shall be deemed to have occurred unless and until Seller has given Buyer written notice of the default, describing the nature 11/12/2024 C15 21 of 32
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of the default, and Buyer has failed to cure, or has failed to reasonably commence to cure, such default within five (5) after the receipt of such notice (but in any event before the Closing Date, unless such default occurs after Closing).
(B) Remedy. IF THE CLOSING FAILS TO OCCUR BECAUSE OF BUYER’S
DEFAULT UNDER THE TERMS OF THIS AGREEMENT, BUYER SHALL BE RESPONSIBLE
FOR ALL CANCELLATION CHARGES REQUIRED TO BE PAID TO ESCROW HOLDER AND ANY ESCROW CHARGES. IN ADDITION, THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES SHALL TERMINATE AND THE DEPOSITS SHALL BE IMMEDIATELY DELIVERED BY ESCROW HOLDER TO SELLER ON SELLER’S REQUEST. THE DEPOSITS SHALL BE DEEMED LIQUIDATED DAMAGES FOR BUYER’S NONPERFORMANCE AS SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER (INCLUDING, WITHOUT LIMITATION, SELLER’S RIGHTS TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND TO RECEIVE DAMAGES) FOR BUYER’S FAILURE TO PURCHASE THE PROPERTY,
WHICH SUMS SHALL BE PRESUMED TO BE A REASONABLE ESTIMATE OF THE AMOUNT OF ACTUAL DAMAGES SUSTAINED BY SELLER BECAUSE OF BUYER’S BREACH OF ITS OBLIGATION TO PURCHASE THE PROPERTY. FROM THE NATURE OF THIS TRANSACTION,
IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES THAT SELLER WOULD SUSTAIN IF BUYER BREACHES SUCH OBLIGATION. THE
IMPRACTICABILITY AND DIFFICULTY OF FIXING ACTUAL DAMAGES IS CAUSED BY, WITHOUT LIMITATION, THE FACT THAT THE PROPERTY IS UNIQUE. GIVEN THE
FOREGOING FACTS, AMONG OTHERS, BUYER AND SELLER AGREE THAT LIQUIDATED DAMAGES IN THE AMOUNT OF SELLER’S INITIAL DEPOSIT OF $20,000.00 ARE PARTICULARLY
APPROPRIATE FOR THIS TRANSACTION AND AGREE THAT SAID LIQUIDATED DAMAGES SHALL BE PAID IN THE EVENT OF BUYER’S BREACH OF ITS OBLIGATION TO PURCHASE
THE PROPERTY, DESPITE ANY WORDS OR CHARACTERIZATIONS PREVIOUSLY USED OR CONTAINED IN THIS AGREEMENT IMPLYING ANY CONTRARY INTENT. THE PAYMENT OF
SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE § 3275 OR § 3369 BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER UNDER CALIFORNIA CIVIL CODE §§ 1671, 1676, AND 1677. NOTHING IN THIS AGREEMENT SHALL, HOWEVER, BE DEEMED TO LIMIT BUYER’S LIABILITY TO SELLER FOR DAMAGES OR INJUNCTIVE RELIEF FOR BREACH OF BUYER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, OR FOR ATTORNEY FEES AND COSTS PROVIDED IN SECTION 10.09.
BUYER AND SELLER EACH ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION:
SELLER’S INITIALS:
BUYER’S INITIALS:
Section 10.02. Seller’s Default; Remedies
(A) Default. Seller shall be deemed to be in default under this Agreement if Seller fails, for any reason other than Buyer’s default under this Agreement or the failure of a condition precedent to Seller’s obligation to perform under this Agreement, to meet, comply with, or perform any covenant, Agreement or obligation required on its part within the time limits and in the manner required in this Agreement, or a material breach shall have occurred of any representation or 11/12/2024 C15 22 of 32
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warranty (made by Seller) because of Seller’s actual fraud or intentional misrepresentation; provided, however, that no such default shall be deemed to have occurred unless and until buyer has given Seller written notice of the default, describing its nature, and Seller has failed to cure, or has failed to reasonably commence to cure, such default within five (5) days after receipt of such notice (but in any event before the Closing Date, unless such default occurs after Closing).
(B) Remedies. If Seller defaults in its obligations under this Agreement to sell the Property to Buyer on the Closing Date through no fault of Buyer, then Buyer at its option may have the right to specific performance of this Agreement or the right to recover the Deposit, if any, and all of its general and specific damages. If, after the Closing Date, Buyer determines that Seller has breached any representation or warranty set forth in Article 5, then Buyer shall have the right to bring an action for general and specific damages against Buyer. If this Agreement is terminated before the Closing Date for Seller’s default, then, in addition to any remedy Buyer has under this Agreement, Seller shall reimburse Buyer for the costs incurred by Seller in conducting its Due Diligence.
ARTICLE 11 – GENERAL PROVISIONS
Section 11.01. Notices
Any notices relating to this Agreement shall be given in writing and shall be deemed sufficiently given and served for all purposes when delivered personally, by generally recognized overnight courier service, by facsimile (provided that sender retains a printed confirmation of delivery to the facsimile number provided below), or three (3) days after deposit in the United States mail certified or registered, return receipt requested, with postage prepaid, addressed as follows:
SELLER: Estate of Douglas Sy Tan
c/o Stella N. Vovan, Esq.
Fortis, LLP
650 Town Center Drive, Suite 1530
Costa Mesa, CA 92626
Phone No: (714) 839-3800
Email: [email protected]
BUYER: City of Vista
200 Civic Center Drive
Vista, CA 92084
Attention: John Conley
Phone No: (760) 643-5201
E-Mail: [email protected]
ESCROW: First American Title Insurance Company
9255 Towne Center Drive, Suite 200
San Diego, CA 92121
Attention: Lynn Graham
Phone No: (858) 410-2149
E-Mail: [email protected]
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Either party may change its address by written notice to the other given in the manner set forth above.
Section 11.02. Entire Agreement
The terms of this Agreement are intended by the parties as a final expression of their agreement with respect to such terms as are included in this Agreement and may not be contradicted by evidence of any prior or contemporaneous agreement. This Agreement specifically supersedes any prior written or oral agreement between the parties. The language in all parts of this Agreement shall be construed as a whole in accordance with its fair meaning and without regard to California Civil Code § 1654 or similar statutes.
Section 11.03. Amendments and Waivers
No addition to or modification of this Agreement shall be effective unless it is made in writing and signed by the party against whom the addition or modification is sought to be enforced. The party benefitted by any condition or obligation may waive the same, but such waiver shall not be enforceable by another party unless it is made in writing and signed by the waiving party.
Section 11.04. Invalidity of Provision
If any provision of this Agreement as applied to either party or to any circumstance is adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, this fact shall in no way affect (to the maximum extent permissible by law) any other provision under circumstances different from those adjudicated by the court, or the validity or ability to enforce this Agreement as a whole.
Section 11.05. No Merger
This Agreement, each provision of it, and all warranties and representations in this Agreement shall survive the Closing and shall not merge in any instrument conveying title to Buyer.
All representations, warranties, agreements, and obligations of the parties shall, despite any investigation made by any party to this Agreement, survive Closing, and the same shall inure to the benefit of and be binding on the parties’ respective successors and assigns.
Section 11.06. References
Unless otherwise indicated, (a) all article and section references are to the articles and sections of this Agreement, and (b) except where otherwise stated, all references to days are to calendar days. Whenever under the terms of this Agreement the time for performance of a covenant or condition falls on a Saturday, Sunday, or California State holiday, such time for performance shall be extended to the next business day. “Business Days” means days other than Saturday, Sunday and California State holidays. The headings used in this agreement are provided for convenience only and this Agreement shall be interpreted without reference to any headings. The date of this Agreement is for reference purposes only and is not necessarily the date on which it was entered into.
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Section 11.07. Governing Law
This Agreement shall be governed by the laws of the State of California applicable to contracts made by residents of the State of California and to be performed in California.
Section 11.08. Time
Time is of the essence in the performance of the parties’ respective obligations under this Agreement.
Section 11.09. Attorney Fees
In the event of any action or proceeding to enforce a term or condition of this Agreement, any alleged disputes, breaches, defaults, or misrepresentation in connection with any provision of this Agreement or any action or proceeding in any way arising from this Agreement, including any interpleader of the Deposit by the Escrow Holder, the prevailing party in such action, or the non- dismissing party when the dismissal occurs other than by settlement, shall be entitled to recover its reasonable costs and expenses, including without limitation reasonable attorney fees and costs of defense paid or incurred in good faith. The “prevailing party,” for purposes this Agreement, shall be deemed to be that party who obtains substantially the result sought, whether by settlement, dismissal, or judgment.
Section 11.10. Assignment
This Agreement shall not be assignable.
Section 11.11. No Third-Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties to it and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any third person to any party to this Agreement or give any third person any right of subrogation or action over against any party to this Agreement.
Section 11.12. Remedies Cumulative
Except as otherwise provided in this Agreement, the remedies set forth in this Agreement are cumulative and not exclusive to any other legal or equitable remedy available to a party.
Section 11.13. Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 11.14. Tax-Deferred Exchange
Seller may use the proceeds from the sale of the Property to affect one or more tax- deferred exchange under Internal Revenue Code § 1031. Buyer agrees to accommodate Seller in effecting such tax-deferred exchange. Seller shall have the right, expressly reserved here, to elect such tax- 11/12/2024 C15 25 of 32
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deferred exchange at any time before the Closing Date. Seller and Buyer agree, however, that consummation of the purchase and sale of Property under this Agreement is not conditioned on such exchange. If Seller elects to make a tax-deferred exchange, Buyer agrees to execute such additional escrow instructions, deeds, documents, agreements, or instruments to affect this exchange, provided that Buyer shall incur no additional costs, expenses, or liabilities in this transaction as a result of or in connection with this exchange. Seller agrees to hold Buyer harmless of any liability, damages, or costs, including reasonable attorney fees, that may arise from buyer’s participation in such exchange.
Section 11.15. Exhibits
The following exhibits are attached hereto and incorporated herein by this reference:
Exhibit A Grant Deed
Date.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
BUYER SELLER
CITY OF VISTA, a chartered municipal
corporation
By:
JOHN CONLEY, CITY MANAGER
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
ESTATE OF DOUGLAS SY TAN
By:
Name:______________________________
Title:_______________________________
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EXHIBIT “A”
Form of Grant Deed
RECORDING REQUESTED BY:
CITY OF VISTA
WHEN RECORDED MAIL TO:
CITY OF VISTA
200 CIVIC CENTER DRIVE
VISTA, CA 92084-6275
ATTN: CITY CLERK
Fee Exempt: Government Code Section 27383
APN: 173-131-03
GRANT DEED
By this instrument dated , for a valuable consideration, the Estate of Douglas Sy Tan (“Grantor”), grants to the City of Vista (“Grantee”), certain real property situated in the State of California, County of San Diego, more particularly described in Exhibit “A” attached to this Deed and incorporated into it by this reference, subject, however, to: (a) taxes and assessments, both general and special, not now due and payable; (b) any and all leases, easements, rights-of-way, encumbrances, conditions, covenants, restrictions, reservations and exceptions of record; and (c) a Deed Restriction.
Grantor, for the same consideration, acknowledges its intention to convey by this Deed not only all present right, title and interest is said real property, but also any and all right, title, and interest after acquired by Grantor or its assigns in the above-described real property.
The persons who are signing this Grant Deed on behalf of Grantor certify that this Deed and transfer represented by this Deed have been duly approved and authorized by Grantor.
Executed on , at , California.
GRANTOR:
ESTATE OF DOUGLAS SY TAN
By:
Name:______________________________
Title:_______________________________
GRANTEE’S CERTIFICATE OF ACCEPTANCE IS ATTACHED
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EXHIBIT “A” TO GRANT DEED
Real Property Description
An approximately 1.39 acre vacant site, located west of East Bobier Drive, Vista California, legal description to be provided by escrow.
APN: 173-131-03
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GRANTEE’S CERTIFICATE OF ACCEPTANCE
(Cal. Gov. Code § 27281)
ACCEPTANCE: THIS IS TO CERTIFY that the interest in real property conveyed by this document from ESTATE OF DOUGLAS SY TAN is hereby accepted by the undersigned officer on behalf of the City of Vista, pursuant to authority confirmed by Resolution No. 93-51 of the City Council adopted on May 11, 1993, and the Grantee consents to the recordation thereof by its duly authorized officer.
DATED: By: ,
John Conley, City Manager
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CONSENT OF ESCROW HOLDER AGREEMENT
First American Title Insurance Company accepts the foregoing Purchase and Sale Agreement and Joint Escrow Instructions as escrow instructions, agrees to act as escrow holder and agrees to be bound by their provisions applicable to it as Escrow Holder.
Date: First American Title Insurance Company
By:
Name:
Title:
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00029213 7
RESOLUTION NO. 2024-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF
VISTA, CALIFORNIA, AMENDING THE CAPITAL PROJECT BUDGET FOR FISCAL YEARS 2024/25 AND 2025/26
The City Council of the City of Vista does resolve as follows:
1.Findings. The City Council hereby finds and declares the following:
A.On June 11, 2024, the City Council adopted Resolution 2024-86 approving the Six-Year Capital Improvement Program, the Capital Project Budget for Fiscal Years 2024/25 and 2025/26, and authorizing appropriations for Fiscal Years 2024/25 and 2025/26 capital projects.
B.The City Council desires to amend the Capital Project Budget at this time to reflect changed circumstances.
2.Action.
A.The Capital Project Budget for Fiscal Years 2024/25 and 2025/26 is amended as set forth in Exhibit A.
3.Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on November 12, 2024, by the following vote:
AYES:
NOES:
ABSTAIN:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
JOHN FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
APPROVED
Walter C. Chung
20240917152617
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EXHIBIT 3
RESOLUTION NO. 2024-
CITY COUNCIL FOR THE CHARTERED CITY OF VISTA
PAGE 1 EXHIBIT A
1. Account Number Account Description Increase Decrease 1020000.310410 Park Development Fees Fund Balance 920,000$ 1026570.578999.8388 Bobier Drive Park Source Appropriation 920,000$ Appropriations are hereby made to fund the purchase of vacant parcel of real property located west of East Bobier Drive in the City of Vista, California, San Diego County Assessor parcel number 173-131-03. 11/12/2024 C15 32 of 32