Real Property Purchase Agreement & Deposit Receipt
This is intended to be a legally binding agreement. Please read
it carefully.
Seller:
Capital Builders Development
Properties, a California limited
partnership.
Subject Property:
2901 to 0000 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx and Associated Land
Purchaser:
Xxxxxxx Xxxxxx
Date:
March 17, 2000
Received from Purchaser the sum of Fifty Thousand Dollars
($50,000) ("Initial Deposit"). This sum, as evidenced
by a personal check, is to be held uncashed until the mutual
execution of this Agreement and then deposited in
escrow within three (3) working days from the Contract Date
(defined as the date of execution by the last signatory)
as a deposit for the purchase of property (the "Property")
situated in the City of Rancho Xxxxxxx, County of
Sacramento, State of California, more particularly described as
follows:
All that real property, together with improvements thereon,
commonly known as 2991, 2931, 2941 & 0000 Xxxxxxx
Xxxxxxxxx further identified as Assessor's Parcel Nos. 072-0430-
077 and 078.
1. Terms Of Sale:
The purchase price ("Purchase Price") shall be Six Million Four
Hundred Thousand Dollars ($6,400,000) and shall
be paid as follows:
A. Initial Deposit: $50,000
B. Increased Deposit: $50,000
C. Balance Of Cash Down Payment: $1,500,000
D. New Loan $4,800,000
E. Total: $6,400,000
2. Title Report:
Within ten (10) days following the Contract Date, Seller shall
deliver to Purchaser at Seller's expense a current
preliminary title report (the "Title Report"), together with a
copy of all exceptions shown on the Title Report.
3. Closing Date-Escrow:
A. An escrow shall be opened with Financial Title Company (the
"Title Company") located at 0000 Xxxx
Xxxxx Xxxx, Xxxxx 0000, Xxxxxx XX 00000 (916) 985-3456. Escrow
shall close prior to June 15, 2000 (the
"Closing Date"). Each party shall deliver to Escrow Holder, in
sufficient time for escrow to close on the
Closing Date, all documents and monies required hereunder. Close
of escrow shall mean the date all
documents required hereunder are placed of record.
B. Property taxes, premiums on insurance acceptable to
Purchaser, prepaid rents, interest, interest on
assessments if assumed by Purchaser, and any other proratable
items, shall be prorated as of close of
escrow. Security deposits shall be credited to Purchaser. The
amount of any bond or assessment which is a
lien shall be assumed by Purchaser. As a condition to
Purchaser's obligations hereunder the Title Company
shall issue its CLTA owner's policy of title insurance insuring
Purchaser in the amount of the Purchase
Price as owner of the Property subject only to the Permitted
Exceptions.
4. Closing Costs:
Closing costs are to be paid as follows:
A. Escrow Fees: Purchaser 50%/Seller 50%
B. CLTA Owners Title Policy: Seller
C. County Transfer Tax: Purchaser 50%/Seller 50%
Any additional escrow costs or fees shall be paid according to
the custom and practice of the county in
which the Property is located. In the event Seller or Purchaser
completes a tax-deferred exchange and
additional closing costs and transfer taxes are incurred, the
beneficiary of the exchange shall pay all
additional costs arising out of the tax-deferred exchange.
5. Possession:
Possession shall be delivered to Purchaser on close of escrow.
6. Document Delivery Schedule:
Unless otherwise specified, within five (5) days after the
Contract Date, Purchaser and Seller shall deliver to each
other, or to each other's agent, all documentation required to
be delivered.
7. Conditions To Purchaser's Performance:
All duties of Purchaser to purchase the Property shall be
expressly conditioned upon the satisfaction of each of the
conditions set forth below on or before the date set forth with
regard to each condition. PURCHASER SHALL NOTIFY
SELLER, IN WRITING, OF PURCHASER'S REMOVAL OR WAIVER OF EACH
CONDITION SET FORTH BELOW
WITHIN THE SPECIFIED TIME PERIOD OR THIS CONTRACT SHALL BE
TERMINATED AND ALL DEPOSITS, WITH
INTEREST IF ANY, SHALL BE RETURNED TO PURCHASER WITHOUT PENALTY.
A. Loan Contingency-New Financing:
Within seventy-five (75) days from the Contract Date, Purchaser
shall obtain, at Purchaser's expense, a new
loan of not less than Four Million Eight Hundred Thousand
Dollars $4,800,000, secured by a First deed of
trust on the Property
B. Purchaser's Inspections:
(1) Feasibility Period:
Within thirty (30) days from the Contract Date, Purchaser's
determination that the Property, its
income and development potential, its market position, its uses
and other economic aspects are
acceptable to Purchaser, in Purchaser's sole discretion.
(2) Physical Inspections:
Within thirty (30) days from the Contract Date, Purchaser's
approval of inspections by Purchaser
and professionals employed by Purchaser of the Property and all
improvements thereon, including,
but not limited to, roof, plumbing, soils tests, electrical,
sprinkler, water, sewer, engineering
studies, heating and air conditioning system or systems, and
structural integrity of the
improvements, including structural pest control reports,
toxic/hazardous substance inspections, and
to measure the square footage of the Property, including land
and any improvements. Seller, by
execution of this Agreement, hereby grants Purchaser and
Purchaser's authorized representatives
and experts the right to enter upon and inspect and make
reasonable tests upon the Property at
reasonable times and upon notice to Seller, and Purchaser shall
hold Seller harmless from any
damage or injury to persons or property by reason of the entry
upon the Property by Purchaser, its
agents and its experts. Purchaser shall order and pay all costs
with respect to such inspections.
Purchaser's approval of any inspection of the Property, however,
shall not alter or diminish any
Seller's representations or warranties to the extent made under
this Agreement, and Seller
acknowledges and agrees that Purchaser is nonetheless relying on
Seller's representations and
warranties made herein, except to the extent reliance on such
representation or warranty is
specifically waived, in whole or in part, in writing, by the
Purchaser.
(3) Inspection of Documents, Books and Records:
Within thirty (30) days from the Contract Date, Purchaser's
inspection and approval of the
following documents or copies thereof: All surveys, soils tests,
engineering studies, or any other
test results or reports in Seller's possession or under Seller's
control, any leases and/or tenant
agreements, current rent roll, maintenance contracts, and any
amendments thereto, covering the
Property, and books and income/expense records covering the
Property for the years 1998, 1999
year-to-date, and for the current year to and including the
Contract Date. Seller warrants and
represents that the books and records are those kept and
maintained by Seller in the ordinary and
normal course of business and used by Seller in the computation
of its federal income tax returns.
(4) Title Approval:
Purchaser shall have thirty (30) days from the Contract Date
within which to notify Seller, in
writing, of Purchaser's disapproval of any exception shown in
the Title Report or the legal
description. If Purchaser does not give written notice of such
disapproval within such period, the
Title Report shall be deemed approved. If Purchaser disapproves
of any exception in writing as
described above, Seller shall have 10 working days from the date
of Xxxxxx's receipt of written
notice of the disapproval to give written notice to Purchaser
that Seller shall remove the
disapproved exception(s) prior to Escrow Closing. Seller's
failure to deliver the notice shall mean
Seller will not remove the exception. If Seller elects not to
remove any disapproved exception,
Purchaser shall have five working days either (i) to terminate
this Agreement or (ii) to waive its
disapproval of such exception and agree to purchase the Property
subject to the disapproved
exception. If Purchaser fails to so notify Seller, in writing,
within five working days of its election
pursuant to this paragraph, Purchaser shall be deemed to have
elected to terminate this Agreement.
In the event of a termination hereunder, the parties shall have
no obligations hereunder and
Xxxxxxxxx's deposit shall be returned to Purchaser. Any
exception, which Purchaser has approved
hereunder, either by Purchaser's approval, Purchaser's failure
to disapprove such exception, or by
Purchaser's waiver of disapproval, shall be deemed a "Permitted
Exception."
C. Review of Personal Property-Lessee:
Within thirty (30) days from the Contract Date, Purchaser's
review and approval of an inventory of all items
which are "personal property" and which may be removed by any
lessee upon termination of its lease, or
which the lessor may require be removed by lessee, at the
discretion of lessor. Said inventory, signed by
Seller and by the tenant, shall designate (i) those items which
the tenant may remove on termination of the
lease, and (ii) those items which lessor (Seller) may require
the tenant to remove, at the tenant's cost, upon
termination of the lease.
8. Conditions To Seller's Performance:
All duties of Seller to sell the Property shall be expressly
conditioned upon the satisfaction of each of the conditions
set forth below on or before the date set forth with regard to
each condition. SELLER SHALL NOTIFY PURCHASER,
IN WRITING, OF SELLER'S REMOVAL OR WAIVER OF EACH CONDITION SET
FORTH BELOW WITHIN THE
SPECIFIED TIME PERIOD OR THIS CONTRACT SHALL BE TERMINATED AND
ALL DEPOSITS, WITH INTEREST IF
ANY, SHALL BE RETURNED TO PURCHASER WITHOUT PENALTY.
9. Deposit Increase:
Purchaser will deliver to Escrow Holder an additional sum of
$50,000 ("Increased Deposit") within three (3) days
from the satisfaction or waiver of the conditions described in
Paragraph 7 above, bringing the deposit to the
aggregate amount of $100,000. AT THE TIME PURCHASER DELIVERS
THE INCREASED DEPOSIT TO ESCROW
HOLDER, PURCHASER WILL EXECUTE AND DELIVER TO SELLER THE
FOLLOWING: "PURCHASER AND
SELLER AGREE THAT THE LIQUIDATED DAMAGES DESCRIBED IN THIS
PURCHASE AGREEMENT WILL BE
INCREASED TO THE AMOUNT OF THE INCREASED DEPOSIT, PLUS THE
INITIAL DEPOSIT, ON THE DATE THE
ADDITIONAL DEPOSIT IS DUE."
10. Liquidated Damages
IF PURCHASER IS IN DEFAULT IN THE PERFORMANCE OF ANY PROVISIONS
OF THIS AGREEMENT BY
PLACING THEIR INITIALS AT THE END OF THIS SENTENCE, PURCHASER
AND SELLER AGREE THAT THE
INITIAL DEPOSIT DESCRIBED IN THIS AGREEMENT SHALL BE DELIVERED
TO SELLER AS LIQUIDATED
DAMAGES.
__________ __________
Purchaser Seller
RETENTION OF THE DEPOSIT BY SELLER AS LIQUIDATED DAMAGES IS NOT
INTENDED AS A FORFEITURE OR
PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS
3275 OR 3369, BUT INSTEAD IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO
SECTIONS 1671, 1676 AND
1677 OF THE CALIFORNIA CIVIL CODE. BECAUSE OF THE SPECIAL NATURE
OF THE NEGOTIATIONS WHICH
PRECEDED ACCEPTANCE BY SELLER OF PURCHASER'S OFFER TO ACQUIRE
THE PROPERTY, THE PARTIES
ACKNOWLEDGE THAT THE ACTUAL DAMAGE WHICH PURCHASER'S DEFAULT
WOULD CAUSE TO SELLER
WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ESTABLISH. IN
ADDITION, PURCHASER DESIRES
TO HAVE A LIMITATION ON ITS POTENTIAL LIABILITY TO SELLER IN THE
EVENT THAT PURCHASER
DEFAULTS IN ITS OBLIGATION TO TIMELY PERFORM ANY OF THE TERMS,
COVENANTS AND CONDITIONS OF
THIS AGREEMENT. THEREFORE, IN ORDER TO INDUCE SELLER TO WAIVE
ALL OTHER MONETARY REMEDIES
IT MAY HAVE IN THE EVENT OF BREACH BY PURCHASER OF ITS
OBLIGATIONS HEREUNDER, PURCHASER
AND SELLER, BY INITIALING IN THE SPACE PROVIDED ABOVE, HAVE
AGREED TO LIQUIDATED DAMAGES AS
SET FORTH HEREIN, WITH THE AMOUNT OF THE PAYMENT TO SELLER AND
THE TIMING OF SUCH PAYMENT
HAVING BEEN THE SUBJECT OF CONSIDERABLE NEGOTIATIONS BETWEEN THE
PARTIES.
IF PURCHASER DEFAULTS IN ITS OBLIGATIONS HEREUNDER AFTER
PURCHASER INCREASES ITS DEPOSIT, BY
PLACING THEIR INITIALS AT THE END OF THIS SENTENCE, PURCHASER
AND SELLER AGREE THAT FROM
AND AFTER THE DATE THE DEPOSIT IS INCREASED, THE LIQUIDATED
DAMAGES SELLER SHALL BE
ENTITLED TO AS A RESULT OF PURCHASER'S DEFAULT, SHALL EQUAL THE
INCREASED DEPOSIT PLUS THE
INITIAL DEPOSIT.
__________ __________
Purchaser Seller
11. Binding Agreement:
This Agreement, to the extent assignable, is binding upon the
heirs, executors, administrators, successors and assigns
of the Purchaser and Seller, and shall survive recordation of
the Xxxxx Xxxx and close of escrow.
12. Assignment By Purchaser:
Purchaser may assign its rights hereunder without the prior
written consent of Seller.
13. Representation Of Authority To Execute:
Each person executing this Agreement on behalf of a party
represents and warrants that such person is duly and
validly authorized to do so on behalf of the entity it purports
to so bind, and if such party is a partnership,
corporation or trustee, that such partnership, corporation or
trustee is the owner of the Property and has full right and
authority to enter into this Agreement and perform all of its
obligations hereunder. To the extent that the signatories
to this Agreement shall comprise a group of individuals, the
individuals represent that they are all the owners of the
Property and agree that the obligations and liabilities of such
individuals under this Agreement shall be joint and
several.
14. Flood Control Act:
Seller discloses that the property is not located in a "flood
zone," as set forth on H.U.D. "Special Flood Zone Area
Maps." As a condition to obtaining financing on most properties
located in "flood zones," some banks, savings and
loan associations and insurance lenders require that H.U.D.
flood insurance be carried where such properties are
security for the loan. This requirement is mandated by the
H.U.D. National Flood Insurance Program and became
effective March 1, 1975. Purchaser acknowledges that Purchaser
has not received or relied upon any representations
from either Seller or Broker(s) regarding the legal effect,
interpretation or economic consequences of the National
Flood Insurance Program and related legislation.
15. Special Studies Zone Act:
Seller discloses that the property is not situated in a Special
Study Zone as designated under the Xxxxxxx-Xxxxxx
Special Studies Zone Act, Sections 2621-2630, inclusive, of the
California Public Resources Code, or otherwise in
an area of the high geologic hazard ("Geologic Zone"). If the
Property is in a Geologic Zone, the construction or
development on the Property of any structure for human occupancy
may be subject to the findings of a geologic
report prepared by a geologist registered in the State of
California.
16. Americans With Disabilities Act:
The Americans With Disabilities Act (ADA) requires both the
owner of real estate and the tenant of real estate to
comply with its provisions.
17. In part, the Act requires owners and tenants of public
accommodations to remove physical barriers to access and
provide auxiliary aids or services for persons with hearing,
vision or speech impairment. The ADA does not specify
responsibility for compliance as between lessor and lessee or as
between seller and buyer. Compliance and the
allocation of responsibility for cost for compliance must be
negotiated between the parties.
Cornish & Xxxxx Commercial makes no representation or warranty
with respect to compliance or noncompliance of
the Property or any contemplated use of the Property. We
recommend that you consult your attorney to determine if
this Act applies to you and, if so, the requirements that must
be met. The applicability of the Act is a legal issue, and
we cannot give you legal advice on such matters.
18. Legal Action:
If either party or Broker files any action or brings any
proceeding against the other arising out of this Agreement, or
is made a party to any action or proceeding brought by the
escrow holder, then the prevailing party shall be entitled
to recover as an element of its cost of suit, and not as
damages, reasonable attorneys' fees to be fixed by the court.
This Agreement shall be governed by California law.
19. Arbitration Of Disputes:
Any dispute or claim in law or equity arising out of this
agreement, or any transaction resulting from this agreement,
shall be decided by neutral binding arbitration in accordance
with the California Code of Civil Procedure, Part III,
Title 9. Judgment upon any argument rendered may be entered in a
court having jurisdiction thereof. The parties
shall have the right to discovery pursuant to California Code of
Civil Procedure, Section 1283.5. If the parties cannot
agree on the selection of an arbitrator, the Presiding Judge of
the Superior Court having jurisdiction to enforce the
award shall select the arbitrator. The arbitrator's fee shall be
paid by the losing party.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO
HAVE ANY DISPUTE ARISING OUT OF
THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION
DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP
ANY RIGHTS YOU MIGHT
POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.
BY INITIALING IN THE SPACE
BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND
APPEAL, UNLESS SUCH RIGHTS
ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION. IF YOU REFUSE TO SUBMIT
TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE
COMPELLED TO ARBITRATE UNDER
THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR
AGREEMENT TO THIS
ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE
MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION TO
NEUTRAL ARBITRATION.
__________ __________
Purchaser Seller
20. Toxic Contamination Disclosure:
Seller and Purchaser acknowledge that they have been advised
that numerous federal, state and/or local laws,
ordinances and regulations ("Laws") affect the existence and
removal, storage, disposal, leakage of and
contamination by materials designated as hazardous or toxic
("Toxics"). Many materials, some utilized in everyday
business activities and property maintenance, are designated as
hazardous or toxic.
Some of the Laws require that Toxics be removed or cleaned up by
landowners, future landowners or former
landowners without regard to whether the party required to pay
for the "clean up" caused the contamination, owned
the property at the time the contamination occurred or even knew
about the contamination. Some items, such as
asbestos or PCBs, which were legal when installed, now are
classified as Toxics, and are subject to removal
requirements. Civil lawsuits for damages resulting from Toxics
may be filed by third parties in certain circumstances.
Xxxxxxx & Xxxxx Commercial has recommended, and hereby
recommends, that each of the parties have competent
professional environmental specialists review the Property and
make recommended tests so that a reasonably
informed assessment of these matters can be made by each of the
parties. Purchaser and Seller acknowledge that
neither Xxxxxxx & Xxxxx Commercial nor its agents or
salespersons have been retained to investigate or to arrange
for investigation by others, and have not made any
recommendations or representations with regard to the presence
or absence of Toxics on, in or beneath the Property. Purchaser
and Seller agree that they will rely only on persons
who are experts in this field and will obtain such expert advice
so each of them will be as fully informed as possible
with regard to Toxics in entering into this Agreement.
21. F.I.R.P.T.A.:
Seller shall deliver to Purchaser at the close of escrow an
affidavit executed by Seller under penalty of perjury stating
Seller's United States taxpayer identification number, that
Seller is not a foreign person, and all other information
required in accordance with Internal Revenue Code Section
1445(b)(2).
22. Maintenance Of The Property:
Seller shall be responsible for normal and customary maintenance
of the Property in its present condition, subject to
normal wear and tear, and shall pay any and all expenses of any
kind incurred in the normal and customary
maintenance and operation of the Property until close of escrow;
provided Seller shall have no obligation to replace
any item or to incur any capital expenditures in such
maintenance.
23. Damage Or Destruction:
Notwithstanding the foregoing, if a material portion of the
Property is damaged or destroyed prior to the close of
escrow, Purchaser may elect to continue this Agreement in full
force and effect without modification and to purchase
the Property in its damaged condition, in which event Seller
shall assign to Purchaser at close of escrow all insurance
proceeds due as a result of such damage and destruction, whether
or not such insurance proceeds are adequate to
repair such damage and destruction. A destruction shall be
considered material if the cost of repair or replacement
without deduction for depreciation exceeds 10% of the purchase
price, provided that if applicable building codes or
other laws or regulations require work exceeding the repair or
replacement of the actual damage, the cost shall be
considered to include all the work. Unless Purchaser notifies
Seller in writing within 10 working days from the date
Purchaser is notified in writing of the cost of repair and
amount of insurance proceeds to continue this Agreement,
this Agreement shall terminate and Purchaser shall receive back
its deposit, together with any interest earned on the
deposit.
24. Consult Your Attorney And Tax Consultant:
This document has been prepared for submission by Purchaser and
Seller to their attorneys and tax consultants for
approval from the standpoint of protection of legal rights. No
representation or recommendation is made by Cornish
& Xxxxx Commercial, a commercial real estate company, or its
agents or employees, as to the legal sufficiency, legal
effect, or tax consequences of this document or the transaction
relating thereto. THESE ARE QUESTIONS FOR YOUR
ATTORNEY AND TAX CONSULTANT.
25. Broker Representations:
Purchaser and Seller understand that Broker has not made any
investigation or determination regarding the value of
the Property; the present or future use of the Property; any
possible violations of any federal, state, county, or
municipal ordinances, statutes, zoning; proposed acquisition of
the Property by the federal, state, county or
municipal governments; the accuracy of income and expense
information; existence or content of any leases; the
existence of physical defects in the Property, the size of the
Property or the size of any improvements, and Purchaser
and Seller hereby release Broker from any liability relating
thereto and agree that such investigation and
determination has been Purchaser's sole responsibility and
Broker shall not be held responsible therefor.
Purchaser is advised that any representation of square footage
with respect to the Property and any improvements
thereon are approximations only which may be inaccurate.
Purchaser acknowledges that the Purchase Price is not
based on the square footage of any improvements or lot size.
26. Brokers:
The only real estate brokers involved in the purchase and sale
of the Property are Xxxxx & Xxxxx Associates
representing Purchaser ONLY and Cornish & Xxxxx Commercial
representing Seller ONLY. The Purchaser shall
defend, indemnify and hold Seller harmless against any
commission or finder's fees or claims relating to the sale of
the Property by any other person or entity whose claim arises
out of the actions of Purchaser. The Seller shall
defend, indemnify and hold Purchaser harmless against any
commission or finder's fees or claims relating to the sale
of the Property by any other person or entity whose claim arises
out of the actions of Seller. The Seller shall be
responsible for the payment of the Broker's fee or commission
fee for the above referenced brokers to be paid
immediately upon the close of escrow and transfer of title from
Seller to Purchaser. The commission to be paid
Xxxxx & Xxxxx Associates Cornish & Xxxxx Commercial is two
percent (2%) of the gross sales price, and the
commission to be paid to Xxxxxxx & Xxxxx Commercial is two
percent (2%) of the gross sales price.
Any dispute with respect to the amount or payment of such
commissions shall be subject to Paragraph 17
(Arbitration of Disputes) of this Agreement.
27. Tax-Deferred Exchange:
Purchaser and Seller agree to cooperate with each other for the
purpose of effecting a tax-deferred exchange(s)
pursuant to Internal Revenue Code Section 1031, providing:
A. Close of escrow hereunder is not delayed;
B. the cooperating party shall incur no additional expense by
reason of such cooperation; and
C. the exchanging party shall hold the cooperating party
harmless from any and all liability by reason of
the cooperating party's acquiring title for the purposes of such
exchange.
A TAX-DEFERRED EXCHANGE IS A TECHNICAL MATTER WHICH SHOULD BE
STRUCTURED BY A TAX
ATTORNEY OR LICENSED CPA TO ASSURE COMPLIANCE WITH ALL LEGAL
REQUIREMENTS. HAVE
YOUR TAX ADVISOR REVIEW AND STRUCTURE THIS ASPECT OF THIS
TRANSACTION.
28. Time And Date For Acceptance:
Purchaser's signature hereon constitutes an offer to Seller to
purchase the Property. Unless acceptance hereof is
signed by Seller and the signed copy received by Purchaser or
Purchaser's agent, either in person or by mail to the
address shown below by 5:00 P.M., Thursday, March 23, 2000, this
offer shall be deemed revoked and the deposit
shall be returned to Purchaser.
29. Time:
Time is of the essence of this contract.
30. Entire Agreement:
Except for any addenda attached hereto, this Agreement
constitutes the entire agreement between Purchaser and
Seller with respect to the purchase of the Property by Purchaser
and supersedes all other agreements, letters,
memoranda or understanding respecting the same, whether written
or oral. This Agreement may not be modified by
either party by oral representation made before, contemporaneous
with or after the execution of this Agreement. All
modifications, amendments or additions to this Agreement must be
in writing signed by Seller and by Purchaser.
31. Other Terms And Conditions:
A. Estoppel Certificates:
Prior to close of escrow, Seller shall furnish to Purchaser
estoppel certificates from current tenants in a form
reasonably acceptable to Purchaser.
B. Building Plans:
Within ten (10) days after the Contract Date, Seller shall
provide to Purchaser, at no expense to Purchaser, a
copy of building layout plans, including floor plans and
building elevation plans, in Seller's possession or
under Seller's control.
C. "As Built" Plans:
Within ten (10) days after the Contract Date, Seller shall
provide Purchaser with a complete set of "as built"
plans of the Property, if available.
D. Soils and Engineering Reports:
Within ten (10) days after the Contract Date, Seller shall
provide to Purchaser, at no expense to Purchaser,
copies of any and all soils and engineering reports and studies
in Seller's possession or under Seller's
control.
X. Xxxxxxx Money Deposit:
Any deposits made by Purchaser shall be placed in an interest
bearing account by Escrow Holder, with any
interest accrued thereon to be credited to Purchaser.
F. No New Leases:
After the removal of contingencies, Seller shall not enter into
any new leases or options to lease or negotiate
termination, extensions or modifications of any existing leases
without Purchaser's prior written consent.
G. Unpaid Rent:
Seller will retain the right to collect from tenants of the
Property the unpaid rent tenants owe Seller, and
Xxxxxxxxx agrees to cooperate at no expense to Purchaser with
Seller's efforts to collect such rent. All sums
paid by tenants to Purchaser after the close of escrow shall be
applied first by Purchaser against sums due
from tenants under the lease for periods following the Closing
Date, and the remainder, if any, shall be paid
over to Seller until such unpaid rent is paid.
H. Property to be Sold "As Is":
(1) Except as otherwise expressly set forth herein, Purchaser
acknowledges that Purchaser is
purchasing the Property solely in reliance on Purchaser's own
investigation and that no
representations or warranties of any kind whatsoever, express or
implied, have been made by
Seller, Seller's agents, or Broker. Purchaser further
acknowledges that as of the close of escrow,
Purchaser will be aware of all zoning regulations, other
governmental requirements, site and
physical conditions, and other matters affecting the use and
condition of the Property, and
Purchaser agrees to purchase the Property in the condition in
which it is at close of escrow.
(2) Except for the specific representations or warranties of
Seller contained herein, Purchaser is
purchasing the Property hereunder strictly on an "as is" basis,
and regardless of the Property's
topography, climate, air, water rights, utilities, water,
possible toxic waste or hazardous materials,
present and future zoning, soil, subsoil, purpose to which the
Property is suited, drainage, access to
public roads, proposed routes or enlargement of roads or
extensions thereof. Purchaser further
acknowledges and agrees that the Property is or may be subject
to zoning, P.U.D., or other
municipal ordinance restrictions (which Purchaser acknowledges
Purchaser is familiar with). The
Property is to be purchased, conveyed, and accepted by Purchaser
in its present condition, "as is,"
and no patent or latent physical condition of the Property,
whether or not known or unknown or
discovered at a later date, shall affect this transaction and
the Purchase Price paid for the Property
hereunder. Purchaser is obligated to close escrow
notwithstanding the condition of the Property.
All work in connection with preparing the Property for the use
intended by Purchaser, all costs
incidental thereto, and all other costs, fees, studies, reports,
approvals, plans, surveys, permits, and
expenses whatsoever necessary or desirable in connection with
Purchaser's acquiring, developing,
using and/or operating the Property shall be obtained and paid
for by and shall be the sole
responsibility of Purchaser. Xxxxxxxxx has investigated and has
knowledge of operative or
proposed governmental laws and regulations, including, but not
limited to, zoning, environmental
(including specifically the regulations of the Environmental
Protection Agency and the Bay Area
Pollution Control District) and land use laws and regulations to
which the Property may be subject,
and shall acquire the Property subject to the foregoing and to
such other laws and regulations that
pertain to the Property.
(3) Purchaser has neither received nor relied upon any
representations concerning any laws and
regulations made by Seller, Seller's employees, agents, brokers
or any other person acting on or in
behalf of Seller. Purchaser hereby waives, releases, acquits,
and forever discharges Seller and
Broker of and from any and all claims, actions, causes of
action, demands, rights, damages, costs,
expenses, or compensation whatsoever, direct or indirect, known
or unknown, foreseen or
unforeseen, that it now has or which may arise in the future on
account of or in any way growing
out of or connected with the condition of the Property, any
toxic wastes or hazardous materials
located thereon, any settlement or subsidence of construction
thereon, if any, or with any operative
or proposed governmental laws and regulations, including, but
not limited to, zoning,
environmental, and land use laws and regulations to which the
Property may be subject or with
Purchaser's contemplated use and development of the Property.
I. Assignment of Warranties:
Seller shall assign to Purchaser all warranties and all Seller's
rights against the contractors, subcontractors,
suppliers and materialmen involved in the construction or
operation of the Property.
J. Seller's Statement Regarding Toxics:
Seller represents and warrants that, without having made a
reasonable and diligent investigation, to the best
of Seller's knowledge, no hazardous waste, hazardous substance
or any hazardous or radioactive material,
as those terms are defined in any local, state or federal law
(collectively "Toxic") has been stored, used,
treated, produced or disposed of on the Property, nor has any
Toxic come to be located in, on or beneath the
Property or any improvement or equipment on the Property, or in
the surface or groundwaters associated
with the Property, which has not heretofore been disclosed by
Seller to Purchaser in writing.
K. Toxic Contamination Disclosure:
Purchaser acknowledges that it understands that there are
substantial potential liabilities under
environmental laws associated with the ownership, possession or
control of real property where a hazardous
waste, hazardous substance or any hazardous or radioactive
material, as those terms are defined in any
local, state, or federal law (collectively "Toxic"), has come to
be located, and that Purchaser has been
advised to conduct an appropriate environmental assessment of
the Property and the properties in the
vicinity of the Property prior to close of escrow, and that if
Purchaser fails to undertake such an
environmental assessment, or purchases the Property with reason
to know that Hazardous Substances may
be located on, in or under the Property, Purchaser may have no
defense to liability under certain
environmental laws. Purchaser further acknowledges that even if
Purchaser performs an appropriate
environmental assessment and purchases the Property without
knowledge of the presence of hazardous
environmental conditions on the Property, Purchaser may have no
defense to liability for conditions existing
on the Property.
L. Permitted Assignment:
Notwithstanding the provisions of Paragraph 11 Purchaser may
assign this Agreement and all of Purchaser's
rights under it to any related entity provided the assignee
assumes all obligations of Purchaser hereunder
and agrees to execute all documents and to perform all
obligations imposed on Purchaser as if the assignee
were the original purchaser under this Agreement. Purchaser
shall not be relieved from its obligations
hereunder following a permitted assignment.
M. Seller's Warranties:
Seller hereby represents and warrants to Purchaser:
(1) Violations:
That no governmental authority or any employee or agent thereof
has notified Seller that it
considers any construction on the Property or the operation, use
or ownership of the Property to
violate any ordinance, rule, law, regulation, or order of any
governmental agency, body or
subdivision thereof or that no investigation has been commenced
or is contemplated respecting any
possible violation.
(2) Contracts:
That there are no service contracts or other contractual
obligations (except leases which Seller has
disclosed to Purchaser) upon which Seller is obligated
pertaining to the Property, except those
which can be terminated upon not more than 30 days' notice.
(3) Documents Delivered:
That all documents delivered to Purchaser by Seller pursuant to
the terms of this Agreement are
complete and as of their respective dates true and correct.
(4) Special Assessments or Condemnation:
That there are not presently pending any special assessments or
condemnation actions against the
Property, or any part thereof, nor has Seller received any
notice of any special assessments or
condemnation actions being contemplated.
(5) Compliance with Agreements:
That neither this Agreement nor anything provided to be done
hereunder, including, but not limited
to, the conveyance of the Property, violates or shall violate
any contract, agreement or instrument
to which Seller is a party or which affects the Property.
(6) State of Facts:
That Seller is not in default of any of its obligations or
liabilities pertaining to the Property, nor is
there any state of facts or circumstances or condition or event
which, after notice or lapse of time
or both, would constitute or result in any such default.
(7) Leases:
That the Leases listed on the rent roll, when delivered to
Purchaser, are in full force and effect,
there are no defaults by landlord or tenant thereunder, and the
Leases are subject to no claims or
offsets for the benefit of tenants. No rent has been prepaid
for the benefit of tenants, nor security
deposits paid other than as disclosed to Purchaser in the rent
roll. There are no agreements, written
or oral, with any tenant except those listed on the rent roll
and delivered to Purchaser and the
Leases have not previously been assigned, conveyed, pledged,
hypothecated or otherwise alienated
by Seller. The rental rates set forth on the rent schedule
accurately state the rentals that are being
charged by Seller and paid by tenants for new Leases at the
Property. There are no pending or
threatened claims by any tenants and there are no agreements or
covenants not performed with
respect to any Lease.
(8) Leasing Commissions:
That there are no outstanding leasing commissions payable for
any of the Leases and there are no
obligations to pay any leasing commission for any renewal of the
tenancy of any of the tenants or
for any new lease negotiated prior to close of escrow.
(9) Title:
a) Encumbrances:
That to Seller's best knowledge, the Property is free and clear
of all liens, encumbrances,
claims, rights, demands, easements, leases, agreements,
covenants, conditions, and
restrictions of any kind, except for the Permitted Exceptions.
b) Encroachments:
That to Seller's best knowledge, there are no encroachments on
the Property from
adjoining property, and the Property does not encroach on any
adjoining property,
easements, or streets.
c) Streets:
That to Seller's best knowledge, there is no existing, proposed,
or contemplated plan to
widen, modify, or realign any street or highway.
(10) Litigation:
That Seller is not involved in or aware of any pending or
threatened litigation which does or will
affect the Property. There are no actions or proceedings
pending or threatened against Seller
before any court or administrative agency in any way connected
with or relating to the Property, or
affecting Seller's ability to fulfill all of its obligations
under this Agreement.
(11) Payment of All Obligations:
That as of close of escrow, there shall be no outstanding
contracts made by Seller for any
improvements to the Property which have not been fully paid for,
and Seller shall cause to be
discharged all mechanics' and materialmen's liens arising from
any labor and material furnished
prior to close of escrow or shall cause a bond to be posted to
secure payment of the mechanics'
and materialmen's liens from a surety company and in an amount
approved in advance, in writing,
by Purchaser. In the event there are undischarged mechanics'
and/or materialmen's liens affecting
the Property as of close of escrow, and Seller has not posted
bonds securing payment of the liens
pursuant to this subsection, Purchaser shall have the option to
assume or take the Property subject
to the undischarged liens and deduct the amount claimed under
such liens (including interest and
attorneys' fees) from the cash payable to Seller at close of
escrow and to pay such liens in full.
(12) Indemnification:
That Seller shall indemnify and hold Purchaser harmless from any
liability, loss or claim for
damages, including reasonable costs and attorneys' fees, arising
from the leases and accruing prior
to escrow closing; arising out of any theft, damage, or injury
to tenants or their personal property,
and accruing prior to close of escrow; or arising out of the
breach by Seller of the covenants or any
warranties or the falsity of any of the representations set
forth in this paragraph.
(13) Survival:
That Seller's representations, warranties and covenants
contained in this paragraph shall survive
close of escrow and the recordation of the Deed.
The undersigned Xxxxxxxxx offers and agrees to buy the Property
on the terms and conditions above stated and
acknowledges receipt of a copy hereof.
Purchaser:
XXXXXXX XXXXXX
By:
Date:
Xxxxxxx Xxxxxx
Acceptance
The undersigned Xxxxxx accepts the foregoing offer and agrees to
sell the Property on the terms and conditions set
forth.
The undersigned Seller acknowledges receipt of a copy hereof and
authorizes Xxxxxx(s) to deliver a signed copy of it
to Purchaser.
Seller:
CAPITAL BUILDERS DEVELOPMENT
PROPERTIES, A CALIFORNIA LIMITED
PARTNERSHIP.
By:
Date:
Xxxxxxx X. Xxxxxxx, General
Partner
Broker(s) agree(s) to the commission provisions above.
XXXXX & XXXXX ASSOCIATES
By:
Date:
Xxxxxx Xxxxx - Agent for Purchaser
CORNISH & XXXXX COMMERCIAL
By:
Date:
Xxxxxx Xxxx - Agent for Seller
Date:
March 17, 2000
Subject Property:
2901 to 0000 Xxxxxxx Xxxx
Xxxxxx Xxxxxxx and Associated Land
Seller:
CAPITAL BUILDERS
DEVELOPMENT PROPERTIES, A
CALIFORNIA LIMITED
PARTNERSHIP.
Brokers:
Xxxxx & Xxxxx Associates
Cornish & Xxxxx Commercial
Purchaser:
XXXXXXX XXXXXX
Various laws, regulations and policies require us to disclose
the following information:
1. Xxxxxxx-Xxxxxx Notification; Xxxxxxx-Xxxxxx Special
Earthquake Studies Zone Act:
The Property described above is or may be situated in a "Special
Study Zone" as designated under the Xxxxxxx-Xxxxxx
Special Studies Zone Act, Sections 2621-2630, inclusive, of the
California Public Resources Code; and, as such, the
construction or development on the Property of any structure for
human occupancy may be subject to the findings of
a geologic report prepared by a geologist registered in the
State of California, unless such report is waived by the city
or county under the terms of that act. No representations on
the subject are made by Seller or by Xxxxxxx & Xxxxx
Commercial, or its agents or employees, and the Purchaser should
make his/her/its own inquiry or investigation.
2. Notification re: National Flood Insurance Program:
The Property is or may be located in a Special Flood Hazard Area
on United States Department of Housing and
Urban Development (H.U.D.) "Special Flood Zone Area Maps".
Federal law requires that as a condition of
obtaining federally related financing on most properties located
in "flood zones", banks, savings and loan
associations, and some insurance lenders require flood insurance
be carried where the property, real or personal, is
security for a loan. This requirement is mandated by the
National Flood Insurance Act of 1968 and the Flood
Disaster Protection Act of 1973. Cities or counties may have
adopted building or zoning restrictions, or other
measures which could affect the value of the property.
Lessee/Purchaser should contact the city or county in which
the property is located to determine any such restrictions. The
extent of coverage available in this area and the cost
of this coverage may vary, and for further information,
Lessee/Purchaser should consult a lender or insurance carrier.
3. Hazardous Wastes of Substances and Underground Storage Tanks:
Comprehensive federal and state laws and regulations have been
enacted in the past several years in an effort to
control the use, storage, handling, clean-up, removal and
disposal of hazardous wastes or substances. Some of these
laws and regulations (such as, for example, the Comprehensive
Environmental Response Compensation and Liability
Act [CERCLA]) provide for broad liability on the part of owners,
tenants or other users of the property for clean-up
costs and damages regardless of fault. Other laws and
regulations set standards for the handling of asbestos, and
establish requirements for the use, modification, abandonment,
and closure of underground storage tanks.
It is not practical or possible to list all such laws and
regulations in this Notice. Therefore, Xxxxxxx and Purchasers
are
urged to consult legal counsel to determine their respective
rights and liabilities with respect to the issues described
in this Notice, as well as all other aspects of the proposed
transaction. If hazardous wastes or substances have been,
or are going to be used, stored, handled or disposed of on the
Property, or if the Property has or may have
underground storage tanks, it is essential that legal and
technical advice be obtained to determine, among other
things, the nature of permits and approvals which have been
obtained or may be required; the estimated costs and
expenses associated with the use, storage, handling, clean-up,
disposal or removal of hazardous wastes or substances;
and the nature and extent of contractual provisions necessary or
desirable in this transaction. Xxxxxx recommends
expert assistance and site investigation to determine past uses
of the property, which may provide valuable
information as to the likelihood of hazardous wastes or
substances, or underground storage tanks, being on the
Property.
Xxxxxx agrees to disclose to Broker and to Purchaser any and all
information which he/she/it has regarding present
and future zoning and environmental matters affecting the
Property and regarding the condition of the Property,
including, but not limited to structural, mechanical and soils
conditions, the presence and location of asbestos, PCB
transformers, other toxic, hazardous or contaminated substances,
and underground storage tanks, in, on, or about the
Property.
Xxxxxx has conducted no investigation regarding the subject
matter hereof, except as may be contained in separate
written document signed by Xxxxxx. Broker makes no
representations concerning the existence or nonexistence of
hazardous wastes or substances, or underground storage tanks,
in, on, or about the Property. Purchaser should
contact a professional, such as a civil engineer, industrial
hygienist or other persons with experience in these matters,
to advise on these matters.
The term "hazardous wastes or substances" is used herein in its
very broadest sense and includes, but is not limited
to, petroleum based products, paints and solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonium
compounds, asbestos, PCB's and other chemical products.
Hazardous wastes or substances and underground storage
tanks may be present on all types of real property. This Notice
is intended to apply to any transaction involving any
type of real property, whether improved or unimproved.
4. The Americans With Disabilities Act:
Please be advised that an owner or tenant of real property may
be subject to the Americans With Disabilities Act (the
ADA). The Act requires owners and tenants of "public
accommodations" to remove barriers to access by disabled
persons and provide auxiliary aids and services for hearing,
vision or speech impaired persons. You are advised to
consult your attorney with respect to the application of this
Act to the Property. Cornish & Xxxxx Commercial
cannot give you legal advice on this Act or its requirements.
5. Broker Disclosure:
The parties hereby expressly acknowledges that Broker has made
no independent determination or investigation
regarding, but not limited to, the following: present or future
use of the Property; environmental matters affecting
the Property; the condition of the Property, including, but not
limited to structural, mechanical and soils conditions,
as well as issues surrounding hazardous wastes or substances as
set out above; violations of the Occupational Safety
and Health Act or any other federal, state, county or municipal
laws, ordinances, or statutes; measurements of land
and/or buildings. Lessee/Xxxxxxxxx agrees to make its own
investigation and determination regarding such items.
Receipt of a copy of this Notice and Agreement is hereby
acknowledged.
Acknowledged and Agreed:
Purchaser:
XXXXXXX XXXXXX
XXXXX & XXXXX ASSOCIATES
By:
By:
Xxxxxxx Xxxxxx
Xxxxxx Xxxxx
Date:
Date:
Seller:
CAPITAL BUILDERS DEVELOPMENT
PROPERTIES, A CALIFORNIA LIMITED
PARTNERSHIP..
CORNISH & XXXXX COMMERCIAL
By:
By:
Xxxxxxx X. Xxxxxxx, General Partner
Xxxxxx Xxxx
Date:
Date:
CONSULT YOUR ADVISORS: NO REPRESENTATION OR RECOMMENDATION IS
MADE BY XXXXXXX
& XXXXX COMMERCIAL OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
EFFECT,
INTERPRETATION, OR ECONOMIC CONSEQUENCES OF THE NATIONAL FLOOD
INSURANCE
PROGRAM AND RELATED LEGISLATION, NOR OF OTHER LEGISLATION
REFERRED TO HEREIN.
THESE ARE QUESTIONS THAT YOU SHOULD ADDRESS WITH YOUR
CONSULTANTS AND
ADVISORS.
REAL PROPERTY PURCHASE AGREEMENT & DEPOSIT RECEIPT
0000 XXXXXXXX XXXX, XXXXX 000, XXXXXXXXXX, XX 00000 (916) 920
4400 FAX (000) 000-0000
Purch agmt Arpaci.doc Rev. (7/95)
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CORNISH & XXXXX COMMERCIAL
ONCOR INTERNATIONAL
REAL PROPERTY PURCHASE AGREEMENT & DEPOSIT RECEIPT
0000 XXXXXXXX XXXX, XXXXX 000, XXXXXXXXXX, XX 00000 (916) 920
4400 FAX (000) 000-0000
3/17/00 5:22 PM Purch agmt Arpaci.doc Rev. (7/95)
Page of 13
DISCLOSURE REQUIREMENTS
0000 XXXXXXXX XXXX, XXXXX 000, XXXXXXXXXX, XX 00000 (916) 920
4400 FAX (000) 000-0000
3/17/00 5:22 PM Purch agmt Arpaci.doc Rev. (7/95)
Page of 13
CORNISH & XXXXX COMMERCIAL
ONCOR INTERNATIONAL
DISCLOSURE XXXXXXXXXXXX
0000 XXXXXXXX XXXX, XXXXX 000, XXXXXXXXXX, XX 00000 (916) 920
4400 FAX (000) 000-0000
3/17/00 5:22 PM Purch agmt Arpaci.doc Rev. (7/95)
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