REAL ESTATE PURCHASE AND SALE AGREEMENT
This agreement (the "Agreement") dated 3-12, 1997 by and between
WASHINGTON-111, LTD., a California limited partnership ("Seller") and EAGLE
HARDWARE & GARDEN, INC., a Washington corporation, or assigns ("Buyer") for
purchase and sale of that certain real property consisting of approximately
13.47 acres fronting on the southwesterly side of Highway 111 between Washington
Street on the west and Xxxxx Street on the east in La Quinta, California, the
legal description of which is described on Exhibit A and any improvements
thereon and all rights appurtenant thereto (the "Property"). The Property is
shown on the proposed site plan dated March 4, 1997 and numbered X491B (the
"Site Plan") and attached hereto as Exhibit B.
Seller agrees to sell, and Buyer agrees to buy, the Property upon and
subject to the terms and conditions set forth below:
1. PURCHASE PRICE; PAYMENT. The total purchase price for the Property
shall be five dollars ($5.00) per gross square foot of unimproved land area to
the centerline of abutting roadways but the measurement of land area to such
centerlines shall apply only to proposed new streets and/or common area drives
which abut or straddle the actual length of Buyer's property lines. The gross
square footage of land to be purchased shall not include any ground abutting
existing streets or highways which have already been identified for future
right-of-way widening. It is estimated that the Property contains 586,753 square
feet and that the purchase price will be Two Million Nine Hundred Thirty-three
Thousand Seven Hundred Sixty-five Dollars ($2,933,765). The area of the Property
and the total purchase price shall be determined by the current ALTA/ACSM survey
to be provided by Seller. The purchase price shall be adjusted to the final
certified square footage, which amount, including the Deposit and interest
accrued thereon, shall be paid in cash upon closing.
2. XXXXXXX MONEY DEPOSIT. Within ten (10) business days after the
Effective Date, Buyer will deposit xxxxxxx money of fifty thousand dollars
($50,000) (the "Deposit") with Chicago Title Insurance Company in Palm Desert,
California (the "Closing Agent"). The Closing Agent shall place the Deposit in
an interest-bearing account, with interest to accrue to Buyer's benefit. If this
transaction does not close for any reason other than default by Buyer under this
Agreement, the Deposit, and all interest accrued thereon, shall be returned to
Buyer. In the event of Buyer's default under this Agreement, Seller shall have
as its sole remedy the right to terminate this Agreement and retain the Deposit,
together with accrued interest thereon, as liquidated damages.
3. CONTINGENCIES. Buyer's obligation to purchase the Property is subject
to Buyer's satisfaction or waiver, in writing, of the following conditions
precedent, in Buyers sole and absolute discretion, on or before the dates
described below:
3.1 FEASIBILITY. Buyer's sole determination that its proposed site
plan, building plan, parking plan and access plan for the Property are
acceptable; that utilities are available of adequate capacity to serve the
Property; and that the Property is otherwise feasible for its intended use.
3.2 STUDIES. Buyer's approval of all soils, engineering, seismic,
environmental, topography, hazardous waste, geotechnical, wetlands, drainage and
other studies that may be deemed necessary by Buyer or required by any
governmental agency in connection with the Property and Buyer's planned
development and use of the Property. All studies are to be obtained by Buyer at
Buyer's sole expense. In the event Buyer fails to close, all such studies shall
become the property of Seller at no expense to Seller.
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3.3 APPROVALS AND PERMITS. Issuance of any and all required or
applicable governmental approvals included but not limited to a PUD and plat of
the Property, subdivision approvals, rezoning approvals, California Department
of Transportation highway access and traffic signal approvals, building permits,
use permits, design review approvals, site plan approvals, and approvals of any
kind from any and all governmental agencies having jurisdiction over the
Property, necessary for Buyer to develop, construct it's building and site
improvements and operate its selected business on the Property. The timing,
conditions and cost of any or all of the permits and approvals (including any
mitigation fees) must be satisfactory to Buyer in its sole discretion.
3.4 TIME PERIODS. Buyer shall have sixty (60) days from the Effective
Date (the "Feasibility Period") to satisfy or waive the contingencies set forth
in Sections 3.1 and 3.2 (the "Feasibility Period"). Buyer shall have one hundred
eighty (180) days (the "Contingency Period") from the end of the Feasibility
Period to satisfy or waive the contingencies set forth in Section 3.3 provided,
however, that if Buyer submits documentation to Buyer no later than ten (10)
days after the Effective Date that convinces Buyer in its sole and absolute
discretion about the Property is currently zoned to allow Buyer's typical retail
sales operations and facilities and that a "big box" retail store, a drive-
through building materials yard and an outdoor garden yard are permitted uses on
the site, then, in such event, the Contingency Period shall run concurrently
with the Feasibility Period, and provided further, that the Contingency Period
shall be further shortened if all approvals and permits under Section 3.3 above
are obtained in less than one hundred eighty (180) days, in which event the
Contingency Period shall end within ten (10) days after the last such approval
or permit is obtained by Buyer. If Buyer does not satisfy or waive the
contingencies by the applicable dates, the Deposit, with interest, shall be
refunded to Buyer and the Agreement shall terminate.
4. CLOSING.
4.1 TIME FOR CLOSING; TERMINATION DATE. This sale shall be closed in
the office of the Closing Agent within fifteen (15) days after all of Buyer's
conditions precedent have been satisfied or waived by Buyer on a date selected
by Buyer and agreeable to Seller. Buyer and Seller shall deposit in escrow with
Closing Agent all instruments, documents and monies necessary to complete the
sale in accordance with this Agreement. As used herein, "closing" or "date of
closing" means the date on which all appropriate documents are recorded and
proceeds of sale are available for disbursement to Seller. Funds held in reserve
accounts pursuant to escrow instructions shall be deemed, for purposes of this
definition, as available for disbursement to Seller.
4.2 PRORATIONS; CLOSING COSTS. Taxes and assessments for the current
year and utilities constituting liens shall be prorated as of the date of
closing. Seller shall pay the premium for the title insurance policy, real
estate excise, transfer and/or conveyance taxes, the cost of conveyance tax
stamps, if any, and one-half of Closing Agent's escrow fee. Buyer shall pay the
cost of recording the statutory warranty deed, and one-half of Closing Agent's
escrow fee and the difference in the cost of premium between standard owner's
and extended coverage.
4.3 POSSESSION. Buyer shall be entitled to possession upon closing.
5. CONVEYANCE OF TITLE. On closing, Seller shall execute and deliver to
Buyer a statutory warranty deed conveying good and marketable title to the
Property free and clear of any defects or encumbrances except for the lien of
real estate taxes for the current calendar year not yet due and payable, those
defects or encumbrances appearing on the preliminary commitment for title
insurance that are approved by Buyer (the "Permitted Exceptions"), and other
encumbrances or defects approved by Buyer in writing.
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6. TITLE INSURANCE AND SURVEY. Within fifteen (15) days after the
Effective Date, Seller shall provide Buyer with a current preliminary
commitment for owner's title insurance with extended coverage (ALTA Form
1970-B, as revised in 1984 or if unavailable, Form B-1987) issued by Chicago
Title Insurance Company, with copies of all documents listed as exceptions
set forth therein. Within thirty (30) days after the Effective Date, Seller
shall provide Buyer with a current ALTA/ACSM survey with land area
certification of the Property, at Seller's cost. Buyer shall have fifteen
(15) days from the later receipt of either the preliminary committment or the
survey (and any amendments, supplements and revisions to either in which new
or revised exceptions or items first appear) to notify Seller of its
disapproval of any exceptions shown in the preliminary commitment or any
items on the survey. If, within twenty (20) days after the receipt of such
notice Seller has not removed or given reasonable written assurances to Buyer
that such disapproved exceptions or items will be removed on or before
closing, Buyer may, at its option, at any time prior to such removal or
receipt of such reasonable written assurances, terminate this Agreement by
giving notice of such termination to Seller. On such termination Closing
Agent shall refund the Deposit and all interest accrued thereon to Buyer and
all rights and obligations of Seller and Buyer under this Agreement shall
terminate and be of no further force or effect. Buyer agrees not to record
the survey in advance of closing and then only just ahead of the recording of
the deed as part of the closing process.
Neither Seller nor Buyer shall be required to close, and the Deposit and
all interest thereon shall be returned to Buyer, if any exception or item
disapproved by Buyer as herein provided cannot be removed by the date of
closing; provided, however, that Buyer may elect to waive any disapproved
exceptions or items and close on the remaining terms. Notwithstanding the
foregoing, Seller shall remove any defect or encumbrance attaching by,
through or under Seller after the Effective Date of this Agreement.
Exceptions to be discharged by Seller may be paid out of the purchase price
at closing.
As soon as available after closing, Seller shall provide to Buyer a
policy of title insurance pursuant to the preliminary commitment, dated as of
the closing date and insuring Buyer in the amount of the purchase price
against loss or damage by reason of defect in Buyer's title to the Property
subject only to the printed exclusions and general exceptions appearing in
the policy form; any Permitted Exceptions; the exceptions specified in the
preliminary commitment which Buyer has not disapproved of as provided herein;
and real property taxes and assessments that are not delinquent.
7. RISK OF LOSS; CONDEMNATION. Risk of loss of or damage to the
Property shall be borne by Seller until the date of closing. Thereafter,
Buyer shall bear the risk of loss. In the event of material loss of or damage
to the Property prior to the date upon which Buyer assumes the risk, Buyer
may terminate this Agreement by giving notice of such termination to Seller
and Closing Agent, and such termination shall be effective and the Deposit
and interest thereon shall be refunded ten (10) days thereafter; provided,
however, that such termination shall not be effective if Seller agrees in
writing within such ten (10) day period to restore the Property substantially
to its present condition by the closing date.
If the Property is or becomes the subject of a condemnation proceeding
prior to closing, Buyer may, at its option, terminate this Agreement by
giving notice of such termination to Seller, and upon such termination the
Deposit and accrued interest shall be returned to Buyer and this Agreement
shall be of no further force or effect; provided, however, that Buyer may
elect to purchase the Property, in which case the total purchase price shall
be reduced by the total of any condemnation award received by Seller. On
closing, Seller shall assign to Buyer all of Seller's rights in and to any
future condemnation awards or other proceeds payable or to become payable by
reason of any taking. Seller agrees to notify Buyer of eminent domain
proceedings within five (5) days after Seller learns thereof.
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8. SELLER'S REPRESENTATIONS AND WARRANTIES. In addition to other
representations herein, Seller represents and warrants to Buyer as of the
date of closing that:
8.1 Seller, and the person signing on behalf of Seller, has full
power and authority to execute this Agreement and perform Seller's
obligations hereunder, and all necessary partnership action to authorize this
transaction has been taken;
8.2 The Property is not subject to any leases, tenancies or
rights of persons in possession;
8.3 Neither the Property nor the sale of the Property violates any
applicable statute, ordinance or regulation, nor any order of any court or any
governmental authority or agency, pertaining to the Property or the use
occupancy or condition thereof;
8.4 Seller is unaware of any material defect in the Property;
8.5 All persons and entities supplying labor, materials and
equipment to the Property have been paid and there are no claims or liens;
8.6 There are no currently due and payable assessments for public
improvements against the Property and Seller is not aware of any local
improvement district or other taxing authority having jurisdiction over the
Property in the process of formation;
8.7 The Property has legal access to all streets adjoining the
Property;
8.8 Seller has good and marketable title to the Property;
8.9 Seller is not a "foreign person" for purposes of Section 1445
of the Internal Revenue Code. Prior to closing, Seller shall execute and
deliver to Closing Agent an affidavit in order to meet the Foreign Investment
in Real Property Tax Act ("FIRPTA") requirements of I.R.C. #1445; and
8.10 Seller has not received notification of any kind from any
agency suggesting that the Property is or may be targeted for a Superfund
or similar type of cleanup. To the best of Seller's knowledge, neither the
Property nor any portion thereof is or has been used (i) for the storage,
disposal or discharge of oil, solvents, fuel, chemicals or any type of toxic
or dangerous or hazardous waste or substance, (ii) as a landfill or waste
disposal site, and (iii) does not contain any underground storage tanks.
Seller agrees to indemnify, defend and hold Buyer harmless from and against
any and all loss, damage, claims, penalties, liability, suits, costs and
expenses (including, without limitation, reasonable attorneys' fees) and also
including without limitation, costs of remedial action or cleanup, suffered
or incurred by Buyer arising out of or related to any such use of the
Property, or portion thereof, occurring prior to the conveyance to Buyer,
about which Seller knew or reasonably should have known prior to closing.
9. BUYER'S AUTHORITY. Buyer represents and warrants to Seller that at
the date of execution hereof and at the date of closing Buyer, and the person
signing on behalf of Buyer, has full power and authority to execute this
Agreement and to perform Buyer's obligations hereunder.
10. DEFAULT. If Seller defaults hereunder, Buyer may seek specific
performance of this Agreement, damages or rescission and Buyer shall be
entitled to return of the Deposit with accrued interest, on demand. If
Buyer defaults, the Deposit and accrued interest shall be forfeited to Seller
as liquidated damages and as Seller's sole and exclusive remedy and upon
payment thereof to Seller, Buyer shall have no further obligations or
liability hereunder. In any suit, action or appeal therefrom to enforce this
Agreement or any term or provision hereof, or to interpret this Agreement,
the prevailing party shall be entitled to recover its costs incurred therein,
including reasonable attorneys' fees.
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11. NOTICES. All notices, waivers, elections, approvals and demands
required or permitted to be given hereunder shall be in writing and shall be
personally delivered (by overnight courier service or other means of personal
service) or sent by United States certified mail, return receipt requested, to
the addressee's mailing address set forth on the signature page:
and, in the case of Buyer, a copy to: Xxxxxxx X. Xxxxxxx
0000 XX Xxxx Xx.
Xxxxxxxxxx Xxxxxx, XX 00000
and, in the case of Seller, a copy to: J. Xxxx Xxxxxxxxx, Esq.
00-00 Xxxx Xx. #000
Xxxx Xxxxxx, XX 00000
Either party hereto may, by proper notice to the other, designate any other
address for the giving of notice. Any notice shall be effective when personally
delivered or, if mailed as provided herein, on the date of actual receipt.
12. ASSIGNMENT. Buyer may assign its rights hereunder to any person or
entity provided that an Eagle Hardware & Garden store is constructed and
operated on the site. An assignment for any other use shall require Seller's
consent which may be withheld in the sole discretion of Seller.
13. SITE BALANCING. Buyer shall be allowed to use excess soils located on
adjoining vacant parcels for the purpose of establishing a level subgrade across
Buyer's site at a suitable level to accommodate the construction of Buyer's
improvements. No soils shall be removed from other parcels below the subgrade
elevations established for Buyer's site. Any areas of soil removal on the other
parcels shall be left in a smooth graded condition with all site grubbed debris
stockpiled for future disposal. All the foregoing site balancing work shall be
at Buyer's expense. If requested by Buyer, Seller shall grant temporary
construction easements on the other parcels to access and remove the excess
soils.
14. NO NEGOTIATIONS WITH THIRD PARTY. Seller shall not negotiate nor
commit to sell, lease or otherwise transfer the Property on any portion thereof
to any other person or party as long as Buyer is proceeding in good faith to
perform its duties under this Agreement. This covenant shall remain in full
force and be legally binding upon Seller until termination of this Agreement.
Notwithstanding the above, Seller shall have the right to accept backup offers
to purchase the Property during the term of this Agreement provided such offers
are unsolicited and not negotiated.
15. GENERAL. This is the entire agreement of Buyer and Seller with respect
to the matters covered hereby and supersedes all prior agreements between them,
written or oral. This Agreement may be modified only in writing, signed by Buyer
and Seller. Any waivers hereunder must be in writing. No waive of any right or
remedy in the event of default hereunder shall constitute a waiver of such right
or remedy in the event of any subsequent default. This Agreement is for the
benefit only of the parties hereto and shall inure to the benefit of and bind
the heirs, personal representatives, successors and assigns of the parties
hereto. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision hereof.
16. SURVIVAL OF WARRANTIES. The terms, covenants, representations and
warranties shall not merge in the deed of conveyance, but shall survive closing.
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17. COMMISSIONS. All real estate commissions and/or brokers' fees shall be
payable by Seller at closing to Del Xxxxxx Company, Inc. (the "Broker"). Such
commission and/or fee shall be agreed upon in a separate agreement between
Seller and Broker. Each party represents to the other that it has engaged no
other broker in connection with the negotiations leading to this Agreement.
Seller agrees to indemnify and hold Buyer harmless from and against all claims
and demands on any and all brokers or agents with respect to the Property.
18. EXHIBITS. Exhibits A and B attached hereto are incorporated herein as
if fully set forth.
Exhibit A - Legal Description
Exhibit B - Site Plan
19. EFFECTIVE DATE. The later of the Buyer's signature date and the
Seller's signature date, set forth below, shall be the "Effective Date" of this
Agreement.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/Xxxxxxx X. Xxxxxx
-------------------------------------
Typed name: Xxxxxxx X. Xxxxxx
March 5 , 1997
-----------------
Buyer's signature date Its: President
Address:
000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
SELLER: WASHINGTON-111, LTD.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Typed name: Xxxx X. Xxxxxx
3-12 , 1997
-----------------
Seller's signature date Its: Secretary of General Partner
Apollo, Inc.
Address:
00-000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
(To be provided by Seller upon completion of the ALTA/ACSM Class A survey as set
forth in Section 6).
EXHIBIT "A"
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EXHIBIT "B"
[MAP]
EXHIBIT "B"
