AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND ESCROW INSTRUCTIONS
Exhibit 10.1
AGREEMENT FOR ACQUISITION OF REAL PROPERTY AND
ESCROW INSTRUCTIONS
ESCROW INSTRUCTIONS
THIS AGREEMENT (“Agreement”) is entered into this 3rd day of June, 2011, by
and between COP — Goldenwest, LLC, a California limited liability company (“Seller”) and
the Westminster Redevelopment Agency (“Agency”), for acquisition by Agency of certain real
property described below. Seller and Agency shall be hereinafter jointly referred to as the
parties.
RECITALS
A. Seller is the owner of certain real property located in the City of Westminster commonly
known as 00000 Xxxxxxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxxx, Xxxxxx of Orange, State of California,
described in greater detail in Exhibit “A” attached hereto and incorporated herein by this
reference which is improved with a vacant industrial building (the “Property”).
B. Seller desires to sell the Property, and Agency desires to purchase the Property, on the
terms and conditions set forth in this Agreement.
UPON EXECUTION OF THIS AGREEMENT BY SELLER AND AGENCY, THE PARTIES MUTUALLY AGREE AS FOLLOWS:
PURCHASE AGREEMENT
1. Incorporation of Recitals. The Recitals above are incorporated into this agreement
by this reference.
2. Agreement to Sell and Purchase. As of the Effective Date (as defined below),
Seller agrees to sell to Agency, and Agency agrees to purchase from Seller, upon the terms and for
the consideration set forth in this Agreement, the Property.
3. Agency Board Approval — Effective Date.
3.1 Following execution of this Agreement, Agency shall have until 5:00 p.m. California time
on June 9, 2011 to take the Agreement before the Westminster Redevelopment Agency Board
(“Agency Board”) to receive its approval of this Agreement. Seller’s offer to sell, at the
Purchase Price and on the terms contained in this Agreement, may not be revoked by Seller until
June 9, 2011. Upon acceptance by the Agency Board this Agreement shall be binding upon both
parties in accordance with the terms contained herein. If the Agency Board does not give its
approval of this Agreement on or before June 9, 2011, then this Agreement shall
automatically become null and void and the parties shall have no further obligations to one another
except for any provisions that expressly survive termination.
3.2 The effective date of this Agreement (the “Effective Date”) shall be the date this
Agreement is executed by the authorized officers of both Seller and Agency.
4. Purchase Price. The total purchase price for the Property, payable in cash through
Escrow, shall be the sum of Nine Million, Four Hundred and Twenty One Thousand, Nine Hundred and
Four Dollars ($9,421,904.00) (the “Purchase Price”). The Purchase Price is all-inclusive of
Seller’s entire interest in the Property and any rights and obligations which Seller may have or
which may arise out of the sale and acquisition of the Property, as more fully explained in Section
24 of this Agreement.
5. Conveyance of Title. Seller agrees to convey by Grant Deed (as defined below) to
Agency fee simple title to the Property, free and clear of any recorded and actually known
unrecorded monetary liens, assessments, leases, and non-delinquent taxes.
6. Title Report. Agency has reviewed Title Report No. NCS-484144 prepared by Title
Company dated June 5, 2011 covering the Property, and hereby accepts all recorded exceptions to
title shown on the Title Report excluding any liens set forth in Section 5 above which Seller is
obligated to remove.
7. Title Insurance Policy. At Closing, Agency’s fee simple title to the Property
shall be insured by a CLTA standard coverage owner’s policy of title insurance in the amount of the
Purchase Price, issued by the Title Company (collectively the “Title Policy”). Agency
shall be responsible for obtaining any survey of the Property at its own expense. The Title Policy
shall insure the fee simple interest in the Property is free and clear of all liens, as set forth
in Section 5 of this Agreement. Seller agrees to pay the premium charged for a standard owner’s
policy and Agency shall pay for all extended coverage and any endorsements Agency seeks to obtain.
Agency’s requested endorsements or extended coverage shall not delay the Closing or constitute a
condition to Closing.
8. Escrow.
8.1 Opening Escrow. Agency agrees to open an escrow at First American Title Insurance
Company located at 0 Xxxxx Xxxxxxxx Xxx, Xxxxx Xxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxxxx,
Escrow Officer (“Escrow Company”) in accordance with this Agreement. This Agreement
constitutes the joint escrow instructions of Agency and Seller, and the escrow agent to whom these
instructions are delivered (“Escrow Agent”) is hereby empowered to act under this
Agreement.
8.2 Grant Deed. Seller shall execute and deliver a Grant Deed to Agency (the
“Grant Deed”) concurrently with this Agreement, in accordance with Section 5 of this
Agreement. A true and correct copy of the Grant Deed is attached hereto as Exhibit “B”, and
is incorporated by this reference. As soon as possible after opening of escrow, Agency will deposit
the executed Grant Deed, with a Certificate of Acceptance attached, with Escrow Agent on Seller’s
behalf. Deposit of the Purchase Price and share of closing costs shall be made by Agency one (1)
business day prior to the Close of Escrow, provided the Agency’s and Seller’s conditions to closing
set forth in this Agreement, including in particular Section 11, are satisfied. Agency and Seller
agree to deposit with Escrow Agent any additional instruments as may be necessary to complete this
transaction.
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8.3 Insurance. Any existing insurance policies for fire or casualty on the Property
will continue to be maintained by Seller, at Sellers sole expense, until the Close of Escrow.
Insurance policies are not to be transferred, and Seller will cancel its own policies after Close
of Escrow.
8.4 Escrow Account. All funds received by Escrow Agent shall be deposited in a
general escrow account doing business in the State of California which is insured by the FDIC.
9. Tax Adjustment Procedure.
ESCROW AGENT IS AUTHORIZED AND IS INSTRUCTED TO COMPLY WITH THE FOLLOWING TAX ADJUSTMENT
PROCEDURE AS OF THE CLOSING DATE:
9.1 Delinquent Taxes. Escrow Agent shall pay and charge Seller for any unpaid
delinquent property taxes and/or penalties and interest thereon, and for any delinquent assessments
or bonds encumbering the Property at the Closing.
9.2 Proration. All current property taxes shall be prorated through Escrow as of the
date of the Close of Escrow, using the customary procedures of the Escrow Agent. Notwithstanding
the foregoing, Seller shall be responsible for and shall pay outside escrow any property taxes
assessed against the Property, which are applicable to any period of time prior to the Close of
Escrow that were not paid through Escrow as a result of any errors in the proration or otherwise.
9.3 Refund of Taxes. Seller shall have the sole right, after the Close of Escrow, to
apply to the Orange County Tax Collector for refund of any excess property taxes, which have been
paid by Seller with respect to the Property. This refund would apply to the period after Agency’s
acquisition, pursuant to Revenue and Taxation Code Section 5096.7.
9.4 Miscellaneous Prorations. All other items of income and expense normally
apportioned in sales of real property in similar situations in the jurisdiction where each Property
is located, shall be prorated at Closing by Escrow Agent.
10. Escrow Agent Authorization.
AT CLOSING, ESCROW AGENT IS AUTHORIZED TO, AND SHALL:
10.1 Agency and Seller. Pay and charge Agency fifty percent (50%) and Seller fifty
percent (50%) of all usual escrow fees, charges, and costs.
10.2 Agency. Pay and charge Agency for transfer taxes and documentary stamp taxes
which arise from conveyance of the Property to Agency. Agency shall pay all premiums, charges and
fees of the Title Company in excess of the premium for a standard owners CLTA title policy in the
amount of the Purchase Price including for the Agency’s account the cost of any extended coverage
and any affirmative endorsements.
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10.3 Seller. Pay and deduct from the amounts payable to Seller any amount necessary
to place title in the condition necessary to satisfy Section 5 of this Agreement, up to and
including the total amount of unpaid monetary liens (other than non-delinquent taxes and
assessments), principal and interest on note(s) secured by mortgage(s) or deed(s) of trust on the
Property, and all other amounts due and payable in accordance with the terms and conditions of said
trust deed(s) or mortgage(s) including late charges and penalties, if any, for payment in full in
advance of maturity. The Seller shall pay the title insurance premium for a standard CLTA policy
of title insurance in the amount of the Purchase Price. Seller. Pay and deduct from
amounts payable by Seller under Section 5 of this Agreement, any amount necessary to satisfy any
delinquent taxes on the Property together with penalties and interest thereon, and/or delinquent
assessments or bonds, except those in accordance with the terms of this Agreement.
10.4 Disbursement. Promptly disburse funds and deliver the Grant Deed for recordation
when conditions of this Escrow have been fulfilled by Agency and Seller.
10.5 Closing Statement. Prior to the Close of Escrow, Escrow Agent shall provide
Seller and Agency with a proposed closing statement for review and comment setting forth the
payments and charges articulated in this Section.
10.6 Close of Escrow.
(a) The term “Closing” or “Close of Escrow,” if and where written in
these instructions, shall mean the date the Grant Deed and other necessary instruments of
conveyance are recorded in the office of the Orange County Recorder. Recordation of
instruments delivered through this escrow is authorized, if necessary or proper upon the
Title Company’s irrevocable commitment to issue the Title Policy described in Section 7 of
this Agreement.
(b) Close of Escrow will not occur until all of the terms and conditions of this
Agreement have been satisfied or waived, including but not limited to the conditions in
Section 11.
(c) Close of Escrow shall occur three (3) business days following the Agency’s
obtaining a funding commitment for its tax allocation bonds to acquire the Property, but in
no event later than July 1, 2011 (“Closing Date”). Agency agrees to use
commercially diligent efforts to obtain a funding commitment for its tax allocation bonds to
acquire the Property as soon as possible, and give Seller written notification of same.
10.7 Reserved.
10.8 Time Limits. All time limits within which any matter specified is to be
performed may be extended only by mutual agreement of the parties in their sole and absolute
discretion. Any amendment of, or supplement to, any instructions must be in writing.
10.9 Time of the Essence. TIME IS OF THE ESSENCE IN THESE INSTRUCTIONS AND ESCROW IS
TO CLOSE AS SOON AS POSSIBLE. If this Escrow is not in a condition to close on or before July
1, 2011, this Agreement shall automatically
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terminate without further instruction by the parties. No such termination shall release either
party then in default from liability for such default.
10.10 Escrow Agent Responsibility. The responsibility of the Escrow Agent under this
Agreement is expressly limited to Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17,
22, 26, 27, 28, 29, 30, 31, 32, 33, and 34 and to its liability under the Title Policy.
11. Conditions Precedent to Close of Escrow.
11.1 Agency’s Conditions Precedent to Closing. The obligation of Agency to complete
the purchase of the Property is subject to the satisfaction of the following conditions, waivable
in Agency’s discretion:
(a) Seller has delivered through Escrow an executed and recordable Grant Deed
sufficient to convey fee simple title to the Agency as set forth in Sections 5 and 8.2.
(b) Seller has delivered through Escrow any funds and additional documents as are
reasonably necessary to comply with Seller’s obligations under this Agreement.
(c) Seller shall not be in default of any of its obligations under the terms of this
Agreement, and all representations of Seller herein are true and correct.
(d) Escrow Agent shall be committed to deliver to Agency a Title Policy as required by
Section 7 hereof.
(e) Agency shall not have terminated this Agreement, to the extent termination is
expressly permitted hereunder.
(f) The Agency Board has approved this Agreement pursuant to Section 3.1 above.
11.2 Seller’s Conditions Precedent to Closing. The obligation of Seller to complete
the sale of the Property is subject to the satisfaction of the following conditions waivable in
Seller’s discretion:
(a) Agency is not in default of any of its obligations under the terms of this
Agreement, and all representations of Agency herein are true and correct.
(b) Agency shall have deposited with the Escrow Agent immediately available funds in an
amount equal to the Purchase Price and the Agency’s share of costs described herein.
(c) Agency has delivered any documents as are reasonably necessary to comply with
Agency’s obligations hereunder.
(d) Seller shall not have terminated this Agreement, to the extent termination is
expressly permitted hereunder.
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12. Delivery of Possession. Seller shall deliver the Property to Agency at the Close
of Escrow free and clear of all, leases, licenses and all possessory rights of any kind or nature,
except as is specifically stated herein to the contrary.
13. Due Diligence Approval. Prior to the Effective Date, Seller has delivered to
Agency for review copies of those documents, materials and information relating to the Property
that are listed on Exhibit “C” attached hereto (“Property Documents”), and Seller
has made available for Agency’s review any other documents in Seller’s possession relating to the
Property excluding any proprietary, privileged or confidential materials. Agency acknowledges and
agrees that Seller’s Property Documents were provided by Seller to accommodate and facilitate
Agency’s investigations relating to the Property and that, except as expressly set forth herein,
Seller makes no representations and warranties of any kind regarding the accuracy or thoroughness
of the information contained in the Property Documents and Agency shall not be entitled to rely on
the Property Documents. Agency must perform its own due diligence investigation of the Property.
Prior to the Effective Date Agency has been given the opportunity to perform any testing,
investigations and studies relating to the Property that Agency desired in its sole and absolute
discretion. Agency has completed all of its due diligence investigations relating to the Property
and upon execution of this Agreement hereby irrevocably and unconditionally approves of the
Property.
14. [Intentionally Omitted]
15. Loss or Damage to Improvements. Any material loss or damage to the Property,
including any improvements thereon, by fire or other casualty, occurring prior to the recordation
of the Grant Deed shall be at the risk of Seller. In the event that a material loss or damage to
the real property or any improvements thereon, by fire or other casualty, occurs prior to the
recordation of the Grant Deed, Agency, in its discretion, may elect to either: (i) acquire the
Property pursuant to this Agreement and have Seller pay to Agency the proceeds of any insurance
policy or policies payable to Seller by reason of such casualty, and the Purchase Price shall be
reduced by the amount of any deductible payable under the insurance policy; or (ii) terminate this
Agreement.
16. Remedies. In the event Seller defaults and as a result of such default fails to
convey the Property to Agency in accordance with the terms of this Agreement, Agency as its sole
and exclusive remedies for such default may either (i) terminate this Agreement; or (ii) within
thirty (90) days of such Seller default file a legal action; provided, however, Agency waives any
claims for consequential or punitive damages.
17. Possession and Disposition of Personal Property. Possession of the Property at the
Close of Escrow shall be given to Agency upon the recording of the Grant Deed. All of the
furniture, furnishings, and other personal property not physically connected to the Property or to
any building or structure located thereon (collectively “Personal Property”) shall remain
the property of Seller, except as may be specifically agreed between the parties to the contrary in
writing. Seller shall remove or otherwise dispose of all Personal Property located on the Property,
no later than fifteen (15) days after the Close of Escrow. All Personal Property remaining on the
Property after fifteen (15) days following the Close of Escrow shall automatically become the
property of Agency and Agency may dispose of same without liability
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as it alone sees fit. Seller agrees that Agency shall not be liable for any loss of or damage
to the Personal Property, regardless of when loss or damage occurs. Notwithstanding the foregoing,
if Agency is required to dispose of any Personal Property left by Seller, Seller shall be required
to pay to Agency the reasonable cost of its removal and disposal. Seller shall immediately pay
these costs upon receipt of a written demand from the Agency detailing the costs incurred.
18. Warranties, Representations, and Covenants of Seller. Seller hereby warrants,
represents, and covenants to Agency that:
18.1 Pending Claims. To the best of Seller’s knowledge, there are no actions, suits,
claims, legal proceedings, or any other proceedings affecting the Property or any portion thereof,
at law, or in equity before any court or governmental entity, domestic or foreign.
18.2 Encroachments. To the best of Seller’s knowledge, there are no encroachments
onto the Property by improvements on any adjoining property, nor to the best of Seller’s knowledge
do any buildings or improvements located on the Property encroach on other properties.
18.3 Rental and Leasehold Interests. There are no third parties in possession of any
portion of the Property as lessees, tenants at sufferance, or invitees, and there are no leases or
other agreements concerning all or any portion of the Property exceeding a period of one month.
18.4 Condition of Property. Up until the Close of Escrow, Seller shall continue to
maintain the Property in accordance with its past practices.
18.5 Environmental. Except as has been specifically disclosed to Agency in the
Property Documents (as defined below), to the best of Seller’s knowledge there are no Hazardous
Materials located on the Property in violation of applicable law. If Seller becomes aware of any
facts, documents or information at any time which indicates the potential presence of Hazardous
Materials on the Property, other than those facts which have already been disclosed in the Property
Documents, Seller shall immediately notify Agency of those facts. The term “Hazardous
Material” as used in this Agreement shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use, manufacture, disposal,
transportation, spill release or effect, either by itself or in combination with other materials
expected to be on the Property: (i) is potentially injurious to the public health, safety or
welfare, the environment or the Property; (ii) is or becomes regulated or monitored by any federal,
state or local governmental authority; or (iii) is a basis for liability of either Seller or Agency
to any governmental agency or third party under any applicable statute or common law theory.
Hazardous Materials shall specifically include, but not be limited to, hydrocarbons, petroleum,
gasoline, crude oil or any products, by-products or fractions thereof, or any material or substance
which is: (i) defined as a “hazardous waste,” “acutely hazardouswaste,” “restricted
hazardous waste,” or “extremely hazardous waste” under Section 25115, 25117 or 25122.7, or
listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5
(Hazardous Waste Control Law); (ii) defined as “hazardous substance” under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous
Substance Account Act); (iii) defined as a “hazardous material,” “hazardous substance,” or
“hazardous waste” under Section 25501 of the California
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Health and Safety code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and Inventory); (iv) defined as a “hazardous substance” under Section 25281of the California Health
and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v)
petroleum; (vi) asbestos; (vii) polychlorinated byphenyls; (viii) designated as a “hazardous
substance” pursuant to the Clean Water Act, 33 U.S.C. § 1321; (ix) defined as a toxic pollutant
pursuant to the Clean Water Act, 33 U.S.C. Section 1317; (ix) defined as a “hazardous waste”
pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. § 6903; or (x) defined as a
“hazardous substance” pursuant to the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. Section 9601.
18.6 Seller’s Title. Until the Close of Escrow, Seller shall not do anything, which
would impair Seller’s title to any of the Property.
18.7 Utilities. To the best of Seller’s knowledge, all utilities, without limitation,
including gas, electricity, water, sewage, and telephone, are available to the Property.
18.8 Conflict with Other Obligation. To the best of Seller’s knowledge, neither the
execution of this Agreement nor the performance of the obligations herein will conflict with, or
breach any of the provisions of any bond, note, evidence of indebtedness, contract, lease
covenants, conditions and restriction, or other agreement or instrument to which Seller or Seller’s
Property may be bound.
18.9 Authority. Seller is the owner of and has the full right, power, and authority
to sell, convey, and transfer the Property to Agency as provided herein and to carry out Seller’s
obligations hereunder.
18.10 Bankruptcy. Seller is not the subject of a bankruptcy proceeding, and
permission of a bankruptcy court is not necessary for Seller to be able to transfer the Property as
provided herein.
18.11 Leasing. Seller warrants that starting from the Effective Date up through the
Close of Escrow Seller shall not enter into any new leases, agreements or encumbrances, and no
amendments to the preceding, that would affect the Property following the Closing, without first
obtaining Agency’s prior written consent, which consent shall not be unreasonably withheld or
delayed.
18.12 Change of Situation. Until the Close of Escrow, Seller shall, upon learning of
any fact or condition that would cause any of the warranties and representations in this Section 18
not to be true as of the Close of Escrow, immediately give written notice of such fact or condition
to Agency.
18.13 Definition of Actual Knowledge. References in this Section 18 to the “actual
knowledge” of Seller shall refer only to the actual knowledge of the individual Seller
representatives who are responsible for handling the ownership and operation of the Property (which
knowledge shall not include any imputed or constructive knowledge), and shall not be construed to
impose upon such designated individuals any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains or impose any personal liability on such individual.
No claim for a breach of any representation or warranty of Seller shall be actionable
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or payable if the breach in question results from or is based on a condition, state of facts
or other matter which was disclosed by Seller to Agency in writing prior to Closing. Agency shall
be deemed to have actual knowledge of all information in the Title Report and Property Documents.
In the event that Agency has actual knowledge of any breach of a Seller representation, warranty
and/or covenant prior to the Closing and elects to proceed with the Close of Escrow, then Agency
shall be deemed to have irrevocably and unconditionally waived such breach.
19. AS-IS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE
DELIVERED TO THE PURCHASER AT THE CLOSING, THE SELLER HAS NOT MADE, AND THE PURCHASER HAS NOT
RELIED ON, ANY INFORMATION, PROMISE, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING THE
PROPERTY, WHETHER MADE BY THE SELLER, ON THE SELLER’S BEHALF OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, THE PHYSICAL CONDITION OF THE PROPERTY, THE FINANCIAL CONDITION OF THE TENANTS UNDER
THE LEASES, TITLE TO OR THE BOUNDARIES OF THE PROPERTY, PEST CONTROL MATTERS, SOIL CONDITIONS, THE
PRESENCE, EXISTENCE OR ABSENCE OF HAZARDOUS WASTES, TOXIC SUBSTANCES OR OTHER ENVIRONMENTAL
MATTERS, COMPLIANCE WITH BUILDING, HEALTH, SAFETY, LAND USE AND ZONING LAWS, REGULATIONS AND
ORDERS, STRUCTURAL AND OTHER ENGINEERING CHARACTERISTICS, TRAFFIC PATTERNS, MARKET DATA, ECONOMIC
CONDITIONS OR PROJECTIONS, HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TAX
CONSEQUENCES, LATENT OR PATENT PHYSICAL DEFECTS OR CONDITIONS, UTILITIES, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL
LAWS. FURTHERMORE, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE
DELIVERED TO THE PURCHASER AT THE CLOSING, PURCHASER 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 (INCLUDING
SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE
PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGER OF THE PROPERTY, REAL ESTATE BROKER OR AGENT
REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY,
ORALLY OR IN WRITING AND ANY OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE MARKET AND
PHYSICAL ENVIRONMENTS IN WHICH THEY ARE LOCATED. THE PURCHASER ACKNOWLEDGES THAT, EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY DOCUMENTS TO BE DELIVERED TO THE PURCHASER AT THE
CLOSING, (I) THE PURCHASER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF RELYING UPON ITS
OWN INVESTIGATION OR THAT OF ITS CONSULTANTS WITH RESPECT TO THE PHYSICAL, ENVIRONMENTAL, ECONOMIC
AND LEGAL CONDITION OF THE PROPERTY AND (II) THE PURCHASER IS NOT RELYING UPON THE PROPERTY
DOCUMENTS. THE PURCHASER HAS INSPECTED THE PROPERTY
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AND IS FULLY FAMILIAR WITH THE PHYSICAL CONDITION THEREOF AND, SUBJECT TO THE REPRESENTATIONS
AND WARRANTIES MADE IN THIS AGREEMENT, SHALL PURCHASE THE PROPERTY IN ITS “AS IS”, “WHERE IS” AND
“WITH ALL FAULTS” CONDITION ON THE CLOSING DATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, IN THE EVENT THAT PURCHASER HAS ACTUAL KNOWLEDGE OF THE DEFAULT OF SELLER (A
“KNOWN DEFAULT”), BUT NONETHELESS ELECTS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY AND
PROCEEDS TO CLOSING, THEN THE RIGHTS AND REMEDIES OF PURCHASER SHALL BE WAIVED WITH RESPECT TO SUCH
KNOWN DEFAULT UPON THE CLOSING AND SELLER SHALL HAVE NO LIABILITY WITH RESPECT THERETO. EXCEPT IN
THE EVENT OF SELLER’S FRAUD, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY DOCUMENTS
TO BE DELIVERED TO THE PURCHASER AT THE CLOSING, FROM AND AFTER THE CLOSING, PURCHASER SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE
PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INVESTIGATIONS,
AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE IRREVOCABLY AND UNCONDITIONALLY WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER’S MEMBERS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION OR RECOVERY, INCLUDING
WITHOUT LIMITATION THOSE ARISING UNDER CERCLA, HSAA AND/OR THE XXXXXXX ACT, EXCEPT FOR FRAUD AND
SELLER’S OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING CAUSES OF ACTION IN TORT OTHER THAN FRAUD),
LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS) OF ANY
AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER (AND SELLER’S MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT
ANY TIME BY REASON OF OR ARISING OUT OF THE PROPERTY ITS OPERATION ANY WAY IN CONNECTION WITH THE
FOREGOING. AGENCY EXPRESSLY WAIVES THE BENEFITS OF ANY PROVISION OR PRINCIPLE OF FEDERAL STATE OR
LOCAL LAW OR REGULATION THAT MAY LIMIT THE SCOPE OR EFFECT OF THE FOREGOING WAIVER AND RELEASE
INCLUDING, WITHOUT LIMITATION, THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES: “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” OR EQUIVALENT LAW OF ANY
JURISDICTION, TO THE EXTENT APPLICABLE.
This release by Agency shall constitute a complete defense to any claim, cause of action,
defense, contract, liability, indebtedness or obligation released pursuant to this release.
Nothing in this release shall be construed as (or shall be admissible in any legal action or
proceeding as)
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an admission by Seller or any other released party that any defense, indebtedness, obligation,
liability, claim or cause of action exists which is within the scope of those hereby released.
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Agency’s Initials
Agency’s Initials
20. Warranties and Representations of Agency. The person executing any instruments
for or on behalf of each party to this Agreement is fully authorized to act on behalf of that party
and the Agreement is valid and enforceable against each party to this Agreement in accordance with
its terms and each instrument to be executed pursuant hereto or in connection therewith.
21. Indemnity.
21.1 Seller Indemnity. Seller agrees to, and hereby does, indemnify, defend and hold
harmless Agency from and against all claims, liabilities, damages and expenses (including, without
limitation, reasonable attorneys’ fees and disbursements) which may be asserted by a third party
against Agency based solely on the acts or omissions of Seller with regard to the Property
occurring prior to Closing.
21.2 Agency Indemnity. Agency agrees to, and hereby does, indemnify, defend and hold
harmless Seller from and against all claims, liabilities, damages and expenses (including, without
limitation, reasonable attorneys’ fees and disbursements) which may be asserted by a third party
against Seller based solely on the acts or omissions of Agency with regard to the Property
occurring after Closing.
21.3 Limited Effect. Nothing contained in this Section 21 is intended to nor shall in
any way limit the effect of the AS-IS provisions and related disclaimer provisions or the release
provisions in this Agreement; expand the scope or duration of any of the representations and
warranties contained in this Agreement; or otherwise give rise to any claim or cause of action by
either Party against the other, except in the event of a claim by a third party against Seller or
Agency which gives rise to the indemnity obligations set forth in this Section 21. In the event of
any inconsistency between the AS-IS and release provisions in this Agreement and the indemnity
provisions in this Article 21, the AS-IS and release provisions shall control.
22. Mutually Prepared Agreement. The parties acknowledge that this Agreement was the
subject of negotiations between the parties and shall be considered as being mutually prepared.
Each of the Parties specifically represents and warrants to the other Party was advised to have
this Agreement reviewed by legal counsel of their choice.
23. Tax Bonds Allocation Contingency. It is understood and agreed between the parties
that the completion of this transaction, and the Close of Escrow, is expressly contingent upon
Agency’s ability to use Redevelopment Agency tax allocation bond proceeds for the Purchase Price in
accordance with Section 10.7(c). Therefore, Agency may terminate this Agreement at any point prior
to the Closing Date with no further obligation to Seller, if it determines, in is sole and absolute
discretion, that the Agency’s funds are not available or otherwise cannot be used to purchase the
Property.
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24. Seller Release. Seller agrees that the payment to be made pursuant to this
Agreement constitutes a complete, full, fair, and final settlement of all claims that Releasors may
have against any of the “Releasees” (as those terms are defined in Section 24(b) of this Agreement)
arising out of the Agency’s acquisition of the Property, the project for which the Property is
being acquired, or the displacement of Releasors from the Property (the “Released Claims”).
By way of example, such Released Claims shall include, but not be limited to, any claims for
compensation for the fee simple interest in the Property; any claims for pre-condemnation damages,
severance damages, or loss of business goodwill; any claims for costs, interest, or attorney’s
fees; any claims based upon any allegations of Releasors that the Agency failed to comply with its
adopted Redevelopment Plan for the Redevelopment Project Area in which the Property is located, the
Agency’s adopted rules for owner participation and business re-entry, and any alleged Agency
obligations arising out of any previous actions relating to solicitation of requests for proposals
for redevelopment of the Property and/or the Agency’s entering into any negotiations or agreements
with respect thereto; any claims for relocation assistance and relocation costs arising out of,
based upon, or relating to, relocation assistance or benefits owing under Government Code § 7260 et
seq., Title 25 of the California Code of Regulations, Section 6000 et seq., or under any other
federal, state or local relocations statutes, regulations or guidelines, including but not limited
to regulations or guidelines of Agency or the City of Westminster; and any other similar claims.
This release shall apply to all such Released Claims, whether arising under the United States or
California Constitutions or under any federal, state, or local law, statute, ordinance, regulation,
rule, official policy, court order, or common law.
Releasors acknowledge that they have been advised of and understand the provisions of Section
1542 of the California Civil Code, which provides as follows:
“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.”
_______________
Seller Initials
Seller Initials
Being aware of said code section, the Releasors hereby expressly waive and relinquish any
rights or benefits each may have thereunder, as well as under any other state or federal statutes
or common law principles of similar effect.
(a) As used herein, the term “Releasors” shall include Seller, and its officers,
agents, members, employees, subcontractors, heirs, executors, successors, and assigns. The
term “Releasees” shall include the Agency and the City of Westminster, and their respective
elected and appointed officials, officers, directors, employees, attorneys, accountants, or
other professionals and agents.
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(b) Releasors shall and do hereby release and discharge Releasees from and
against all claims, penalties, actions or causes of action, obligations, and demands of any
kind relating to the Released Claims.
25. Waiver, Consent and Remedies. Each provision of this Agreement to be performed by
Agency and Seller shall be deemed both a covenant and a condition and shall be a material
consideration for Seller’s and Agency’s performance hereunder, as appropriate, and any breach
thereof by Agency or Seller shall be deemed a material default hereunder. Either party may
specifically and expressly waive in writing any portion of this Agreement or any breach thereof,
but no such waiver shall constitute a further or continuing waiver of a preceding or succeeding
breach of the same or any other provision. A waiving party may at any time thereafter require
further compliance by the other party with any breach or provision so waived. The consent by one
party to any act by the other for which such consent was required shall not be deemed to imply
consent or waiver of the necessity of obtaining such consent for the same or any similar acts in
the future. No waiver or consent shall be implied from silence or any failure of a party to act,
except as otherwise specified in this Agreement. Except as set forth in Section 16 above, all
rights, remedies, undertakings, obligations, options, covenants, conditions and agreements
contained in this Agreement shall be cumulative and no one of them shall be exclusive of any other.
Except as otherwise specified in this Agreement either party hereto may pursue any one or more of
its rights, options or remedies hereunder or may seek damages or specific performance in the event
of the other party’s breach hereunder, or may pursue any other remedy at law or equity, whether or
not stated in this Agreement.
26. Attorney’s Fees. In the event any declaratory or other legal or equitable action
is instituted between Seller, Agency and/or Escrow Agent in connection with the enforcement, breach
or rescission of this Agreement, then as between Agency and Seller, the prevailing party shall be
entitled to recover from the losing party all of its costs and expenses, including court costs and
reasonable attorneys’ fees, expert witnesses and all fees, costs and expenses incurred on any
appeal or in collection of any judgment.
27. Notices. Any and all notices, demands, consents, approvals, offers, elections and
other communications required or permitted under this Agreement shall be deemed adequately given if
in writing and the same shall be delivered either in hand or by mail or Federal Express or similar
expedited commercial carrier, addressed to the recipient of the notice, postpaid and registered or
certified with return receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier). All notices required or permitted to be sent hereunder shall
be deemed to have been given for all purposes of this Agreement upon the date of receipt or
refusal, except that whenever under this Agreement a notice is either received on a day which is
not a business day or is required to be delivered on or before a specific day which is not a
business day, the day of receipt or required delivery shall automatically be extended to the next
business day.
IF TO SELLER:
|
IF TO AGENCY: | |
COP — Goldenwest, LLC
|
Attn: Redevelopment Agency Director | |
0000 Xxxx Xxxxxx, Xxxxx 000
|
Xxxxxxxxxxx Xxxx Xxxx | |
Xxxxxx, XX 00000
|
0000 Xxxxxxxxxxx Xxxx. | |
Attn: Xx. Xxx Xxxxxx/Xxx Xxxxxxxxx
|
Xxxxxxxxxxx, XX 00000 |
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Any party may from time to time, by written notice to the other, designate a different
address, which shall be substituted for that specified above.
28. Default. Failure or delay by either party to perform any covenant, condition or
provision of this Agreement within the time provided herein constitutes default under this
Agreement. The injured party shall give written notice of default to the party in default,
specifying the default complained of. The defaulting party shall immediately commence to cure such
default and shall diligently complete such cure within three (3) days from the date of the notice.
The injured party shall have the right to terminate this Agreement by written notice to the other
party in the event of a default, which is not cured within the time set forth herein.
29. Entire Agreement. This Agreement and its exhibits constitute the entire agreement
between the parties hereto pertaining to the subject matter hereof, and the final, complete and
exclusive expression of the terms and conditions thereof. All prior agreements, representations,
negotiations and understanding of the parties hereto, oral or written, express or implied, are
hereby superseded and merged herein.
30. Governing Law and Venue. This Agreement and the exhibits attached hereto have
been negotiated and executed in the State of California and shall be governed by and construed
under the laws of the State of California. The parties consent to the jurisdiction of the
California Courts with venue in Orange County.
31. Invalidity of Provision. If any provision of this Agreement as applied to any
party or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or
unenforceable for any reason, the same shall in no way affect, (to the maximum extent permissible
by law), any other provision of this Agreement, the application of any such provision under
circumstances different from those adjudicated by the court, or the validity or enforceability of
this Agreement as a whole.
32. Amendments. No addition to or modification of any provision contained in this
Agreement shall be effective unless fully set forth in writing by Agency and Seller.
33. 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 but one and the same
instrument.
34. Time of Essence. Time is of the essence of each provision of this Agreement.
35. Broker Fees. Each of the parties hereto represents to the other parties that it
dealt with no broker, finder or like agent in connection with this Agreement or the transactions
contemplated hereby other than Xxxxx & Xxxxx which Seller shall compensate under a separate written
agreement if and only if the Closing occurs. Each party shall indemnify and hold harmless the
other party and its respective legal representatives, heirs, successors and assigns from and
against any loss, liability or expense, including reasonable attorneys’ fees, charges and
disbursements arising out of any claim or claims for commissions or other compensation for
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bringing about this Agreement or the transactions contemplated hereby made by any other broker,
finder or like agent, if such claim or claims are based in whole or in part on dealings with the
indemnifying party. The provisions of this Section shall survive the Closing.
36. Assignment. The terms and conditions, covenants, and agreements set forth herein
shall apply to and bind the heirs, executors, administrators, assigns and successors of the parties
hereto; provided, however, neither party shall have the right to assign this Agreement without the
consent of the other party.
37. Cooperation. Each party agrees to cooperate with the other in the Closing of this
transaction and, in that regard, to sign any and all documents which may be reasonably necessary,
helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not
limited to, releases or additional agreements.
38. Section Headings. The section headings contained in this Agreement are for the
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
[the remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year set forth
herein above.
AGENCY: WESTMINSTER REDEVELOPMENT AGENCY, |
||||
By: | /s/ Xxxxxxxx Xxxxxx | |||
Executive Director | ||||
ATTEST: |
||||
By: | /s/ Xxxxx Xxxxxxx | |||
Agency Secretary | ||||
APPROVED AS TO FORM: |
||||
By: | /s/ Xxxxxxx Xxxxx | |||
Xxxxxxx Xxxxx, | ||||
Agency General Counsel | ||||
SELLER: COP — GOLDENWEST, LLC, a California limited liability company |
||||
By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Authorized Signatory | |||
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Exhibit “A”
(Legal Description of Property)
PARCEL 2 OF LLA #2003-01 RECORDED DECEMBER 12, 2003 AS INSTRUMENT NO. 2003001474811 OF OFFICIAL
RECORDS.
EXCEPTING AN UNDIVIDED ONE-HALF INTEREST IN AND TO ALL RIGHTS TO OIL, LYING 500 FEET BELOW THE
SURFACE AS USED HEREIN SHALL MEAN RIGHTS TO ALL GAS, OIL, PETROLEUM, AND OTHER HYDROCARBON
SUBSTANCES IN, UNDER OR THAT MAY BE PRODUCED OR RECOVERED FROM THAT PORTION OF SAID LAND BELOW A
DEPTH OF 500 FEET FROM ITS SURFACE, AS CONVEYED TO GOLDEN WEST
INDUSTRIAL PARKS, A CALIFORNIA
CORPORATION, BY DEED RECORDED JULY 06, 1967 IN BOOK 8308, PAGE 359 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THE UNDERGROUND WATER RIGHTS, BUT WITHOUT RIGHTS OF ENTRY TO THE SURFACE
AS DEDICATED TO THE CITY OF WESTMINSTER.
APN: 000-000-00 and 000-000-00
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Exhibit “B”
FORM OF GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
WHEN RECORDED RETURN TO:
Westminster City Hall
0000 Xxxxxxxxxxx Xxxx.
0000 Xxxxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
Attn: Redevelopment Agency Director
Attn: Redevelopment Agency Director
AND ALL TAX STATEMENTS TO:
SAME AS ABOVE
DOCUMENTARY TRANSFER TAX IS NOT OF PUBLIC RECORD AND IS SHOWN ON A SEPARATE SHEET ATTACHED TO THIS DEED |
SPACE ABOVE THIS LINE FOR RECORDER’S USE |
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, COP — Goldenwest, LLC, a
California limited liability company (“Grantor”), hereby grants to Westminster Redevelopment Agency
(“Grantee”), the real property located in the City of Westminster, County of Orange, State of
California, described on Exhibit 1 attached hereto and made a part hereof (the “Real
Property”).
Such real property is also conveyed to Grantee subject to all liens, encumbrances, easements,
covenants, conditions and restrictions and other matters of record, all of which matters are
specifically incorporated herein by this reference.
GRANTOR: COP — GOLDENWEST, LLC, a California limited liability company |
||||
By: | ||||
Name: | ||||
Its: |
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State of California )
County of )
County of )
On , before me,
, Notary Public,
(here insert name and title of the officer)
personally appeared
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
State of California )
County of )
County of )
On
, before me,
, Notary Public,
(here insert name and title of the officer)
personally
appeared
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
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Exhibit 1 to Grant Deed
Legal Description
Real property in the City of Westminster, County of Orange, State of California, described as
follows:
PARCEL 2 OF LLA #2003-01 RECORDED DECEMBER 12, 2003 AS INSTRUMENT NO. 2003001474811 OF OFFICIAL
RECORDS.
EXCEPTING AN UNDIVIDED ONE-HALF INTEREST IN AND TO ALL RIGHTS TO OIL, LYING 500 FEET BELOW THE
SURFACE AS USED HEREIN SHALL MEAN RIGHTS TO ALL GAS, OIL, PETROLEUM, AND OTHER HYDROCARBON
SUBSTANCES IN, UNDER OR THAT MAY BE PRODUCED OR RECOVERED FROM THAT PORTION OF SAID LAND BELOW A
DEPTH OF 500 FEET FROM ITS SURFACE, AS CONVEYED TO GOLDEN WEST
INDUSTRIAL PARKS, A CALIFORNIA
CORPORATION, BY DEED RECORDED JULY 06, 1967 IN BOOK 8308, PAGE 359 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THE UNDERGROUND WATER RIGHTS, BUT WITHOUT RIGHTS OF ENTRY TO THE SURFACE
AS DEDICATED TO THE CITY OF WESTMINSTER.
APN: 000-000-00 and 000-000-00
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Certificate of Acceptance
This to certify that the interest in real property conveyed by the foregoing Grant Deed, from
COP-Goldenwest, LLC, a California limited liability company to the Westminster
Redevelopment Agency (the “Agency”) is hereby accepted by the undersigned officer of
the Agency, on behalf of the Agency, pursuant to the authority granted by Agency Resolution _____,
and the Agency consents to the recordation hereof by its duly authorized officer.
Dated: _______, 2011 | By: | |||
Name: | ||||
Title: | ||||
ATTEST:
______________________
City Clerk
State of California
|
) | |||
County of San Bernardino
|
) |
On
, before me,
,
(insert name and title of the officer)
Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
(insert name and title of the officer)
Notary Public, personally appeared ___________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
|
(Seal) |
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Exhibit “C”
List of Due Diligence Documents
ALTA Survey (hard copy sent by over-night mail; all of the other documents listed below were sent
electronically)
Advertising Sign (Billboard) Lease
Physical Inspection Reports: 1) Probable Maximum Loss Report dated 1/30/07; 2) Property Condition
Report dated 9/05/06; 3) Zoning & Site Requirements Summary dated 9/15/06; 4) Mechanical Electrical
Plumbing & Fire Protection Report dated 8/25/06; 5) Structural Observation Of Roof dated 11/14/06;
6) Roof Inspection Report dated 11/13/10
Vendor Contracts (Monster Security Camera Monitor Contract; Bay Alarm Burglar Alarm Monitor
Contract; Bay Alarm Fire Monitor Contract
Environmental Documents (there was a link to a zip file full of information)
• | Letter from Environ dated November 10, 2006 re: Focused Ground Water Sampling Results. | |
• | Phase 1 Environmental Assessment dated September 8, 2006 prepared by Environ. |
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