CC Resolution 2013-043RESOLUTION NO. 2013-043
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA APPROVING AN AGREEMENT FOR
PURCHASE AND SALE AND ESCROW INSTRUCTIONS
BETWEEN THE CITY OF LA QUINTA AND BARTON
LAND, LA QUINTA LLC FOR CERTAIN PROPERTY
LOCATED NEAR THE INTERSECTION OF AVENUE 60
AND MONROE STREET
WHEREAS, in accordance with the La Quinta General Plan, it is necessary to
provide adequate and timely expansion of services and facilities in order to ensure
an effective and comprehensive response to all emergency service needs; and
WHEREAS, a future need exists to establish and operate a fire station to
serve existing and future residents in the southern segment of the City; and
WHEREAS, the availability of vacant land continues to diminish in this
segment of the community and thus timely securing of property for future fire
infrastructure development is of importance; and
WHEREAS. City staff has negotiated a Purchase Agreement ("Agreement")
with Barton Land, La Quinta LLC ("Barton"), "Exhibit A" attached, pursuant to
Barton selling the City certain real property located near the intersection of Avenue
60 and Monroe Street comprising of approximately two acres for one hundred
thousand dollars ($100,000) pursuant to the terms and conditions set forth in the
Agreement;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Quinta, California as follows:
SECTION 1. That the above recitals are true and correct and incorporated herein.
SECTION 2. That the City Council of the City of La Quinta hereby finds and
determines that the acquisition of said property is in the best interests of the
citizens of the City of La Quinta.
SECTION 3. The Agreement, a copy of which is on file with the City Clerk, is
hereby approved. The City Council consents to the City Manager and City Legal
Counsel to make any final modifications to the Agreement that are consistent with
the substantive terms of the Agreement approved hereby, and to thereafter sign the
Agreement on behalf of the City.
Resolution No. 2013-043
Purchase and Sale Agreement - Barton Land La Quinta, LLC
Adopted: September 17, 2013
Page 2
SECTION 4. The City Council consents to the City Manager to (i) sign such other
and further documents, including but not limited to escrow instructions, and (ii)
take such other and further actions, as may be necessary and proper to carry out
the terms of the Agreement.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City
Council of the City of La Quinta held this 17th day of September, 2013, by the
following vote:
AYES: Council Members Evans, Franklin, Henderson, Osborne, Mayor Adolph
NOES: None
ABSENT: None
ABSTAIN: None
DON ADOL H, Mayo
City of La Quinta, California
ATTEST:
SUSAN MAYSELS, CitQClerk
City of La Quinta, California
(CITY SEAL)
M.'KATHERINE JEWON, City Attorney
City of La Quinta, California
AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
by and between
BARTON LAND, LA QUINTA LLC
("SELLER")
and
CITY OF LA QUINTA
("BUYER")
BBVOM1M002
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TABLE OF CONTENTS
Paste
1.
PURCHASE PRICE............................................................................................1
1.1 Amount.....................................................................................................1
1.2 Payment of Purchase Price......................................................................1
2.
DUE DILIGENCE................................................................................................2
2.1 Lot Line Adjustment.................................................................................2
2.2 Title/Survey..............................................................................................3
2.3 Environmental Condition..........................................................................4
3.
ESCROW............................................................................................................6
3.1 Opening of Escrow...................................................................................6
3.2 Escrow Instructions..................................................................................6
4.
CLOSE OF ESCROW.........................................................................................6
4.1 Close of Escrow; Outside Closing Date...................................................6
4.2 Recordation; Release of Funds and Documents......................................6
4.3 Escrow Cancellation Charges..................................................................7
5.
DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND
SELLER..............................................................................................................7
5.1 Buyer's Obligations..................................................................................7
5.2 Seller's Obligations..................................................................................7
6.
TITLE INSURANCE POLICY..............................................................................7
6.1 Title Policy................................................................................................7
6.2 Payment for Title Policy...........................................................................8
7.
REAL PROPERTY TAXES.................................................................................8
8.
CONDITIONS PRECEDENT TO CLOSING.......................................................8
8.1 Conditions Precedent to Buyer's Obligations...........................................8
8.2 Conditions Precedent to Seller's Obligations...........................................9
9.
POSSESSION..................................................................................................10
10.
ALLOCATION OF COSTS................................................................................10
10.1 Buyer's Costs.........................................................................................10
10.2 Seller's Costs.........................................................................................10
11.
INDEMNIFICATION.................................................................I........................10
12.
REPRESENTATIONS AND WARRANTIES.....................................................11
12.1 Seller's Representations and Warranties...............................................11
12.2 Buyer's Representations, Warranties and Covenants ............................12
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Page
13.
CONDEMNATION............................................................................................13
14.
RISK OF PHYSICAL LOSS..............................................................................13
15.
WAIVER OF DAMAGES; SPECIFIC PERFORMANCE....................................13
16.
SECONDARY ACCESS...................................................................................14
17.
MISCELLANEOUS...........................................................................................14
17.1 Assignment............................................................................................14
17.2 Choice of Laws.......................................................................................14
17.3
17.4
17.5
17.6
17.7
17.8
17.9
Arbitration Of Disputes...........................................................................14
JURYWAIVER.......................................................................................15
Attorney's Fees......................................................................................15
Notices...................................................................................................16
FairMeaning..........................................................................................16
Headings...............................................................................................
Nonliability of Buyer Officials.................................................................
17.10 Gender; Number....................................................................................
17.11 Survival..................................................................................................
17.12 Time of Essence....................................................................................
17.13 Waiver....................................................................................................
17.14 Broker's/Consulting Fees.......................................................................
16
16
16
16
17
17
17
17.15
No Withholding Because Non -Foreign Seller.........................................17
17.16
Counterparts..........................................................................................17
17.17
Severability............................................................................................17
17.18
Exhibits..................................................................................................17
17.19
Covenants of Seller................................................................................18
17.20
Covenant Against Discrimination...........................................................18
17.21
Entire Agreement; Amendment..............................................................18
17.22
Facsimile Signatures..............................................................................18
EXHIBIT A LEGAL DESCRIPTION OF SELLER PROPERTY
EXHIBIT B DEPICTION OF PROPERTY
EXHIBIT C FORM OF GRANT DEED
EXHIBIT D CERTIFICATE OF NON -FOREIGN STATUS
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EXHIBIT A
AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
This AGREEMENT FOR PURCHASE AND SALE AND ESCROW
INSTRUCTIONS ("Agreement") is made and entered into as of
2013 ("Effective Date'), by and between BARTON LAND, LA QUINTA LLC, a California
limited liability company ("Seller"), and the CITY OF LA QUINTA, a California municipal
corporation and charter city ("Buyer").
RECITALS:
A. Seller is the owner of that certain unimproved real property located east of
Monroe Street and north of 60`h Avenue, in the City of La Quinta ("City"), County of
Riverside, State of California, commonly identified as APN 764-240-026 and APN 764-
240-022 (collectively, the "Seller Property'): The Seller Property is depicted in Exhibit
"A", which is attached hereto and incorporated herein by this reference.
B. Buyer desires to purchase a two (2) acre portion of the Seller Property
(the "Property") from Seller and Seller desires to sell the Property to Buyer, on the
terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing Recitals, which are
incorporated herein by this reference, and the mutual covenants herein contained, the
parties hereto agree as follows:
PURCHASE PRICE.
1.1 Amount. Subject to the terms of this Agreement, Buyer hereby agrees to
purchase the Property from Seller and Seller agrees to sell the Property to Buyer, for
the purchase price of One Hundred Thousand Dollars (the "Purchase Price").
1.2 Payment of Purchase Price. The Purchase Price shall be paid in
accordance with the following:
1.2.1 Within five (5) days after the "Opening of Escrow," Buyer shall
deposit with "Escrow Holder" (as those terms are defined in Section 3.1) in "Good
Funds" (as used in this Agreement, the term "Good Funds" shall mean a confirmed
wire transfer of immediately available funds, cashier's or certified check drawn on or
issued by the office of a financial institution located in Riverside County, or cash) the
sum of One Hundred Dollars ($100) (the "Independent Contract Consideration") as
consideration for Seller's execution and delivery of this Agreement and Buyer's right to
approve or disapprove any Buyer contingencies set forth in this Agreement. In the
event the "Escrow" (as that term is defined in Section 3.1) closes, Escrow Holder shall
apply the Independent Contract Consideration towards the Purchase Price. In the event
the Escrow is terminated andt fails to close, for any reason other than Seller's default of
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the terms hereof, Escrow Holder shall promptly, but no later than five (5) days after said
termination, release the Independent Contract Consideration to Seller.
1.2.2 On or before 5:00 p.m. on the business day preceding the "Closing
Date" (as that term is defined in Section 4.1) or such earlier time as required by Escrow
Holder in order to close Escrow on the Closing Date, Buyer shall deposit with Escrow
Holder in Good Funds the Purchase Price, less the Independent Contract
Consideration, and such additional funds as may be required to meet Buyer's portion of
the closing costs as hereinafter provided.
2. DUE DILIGENCE. As used herein, the term "Due Diligence Period" shall refer
to a period of time to expire upon the date that is ninety (90) days after the Effective
Date. Buyer's obligation to consummate the transactions contemplated by this
Agreement is subject to and conditioned upon Buyer's approval, deemed approval or
waiver of the right to approve of the following contingencies set forth in this Section 2
(collectively, the "Contingencies"):
2.1 Lot Line Adjustment. Buyer and Seller shall cooperate to locate and
determine a two (2) acre portion of the Seller Property that is acceptable to Buyer and
Seller, each in their sole and absolute discretion, to constitute the Property. Buyer and
Seller anticipate that the Property will generally be located within the southeast corner
of the Seller Property, as depicted on Exhibit "B", which is attached hereto and
incorporated herein by this reference. Buyer and Seller acknowledge and agree that a
lot line adjustment ("LLA") must be prepared and processed in order to reconfigure the
boundary lines between the Seller Property and adjacent real property owned by Seller,
for purposes of establishing the Property as a separate legal parcel. Within thirty (30)
days after the Effective Date, the parties shall meet and confer regarding the location of
the Property. If the parties determine to make any changes to the location as currently
depicted on Exhibit "B", the parties shall prepare a new depiction, which upon being
initialed by both parties, shall automatically replace the current depiction in Exhibit "B".
During the preparation and processing of the LLA, Buyer and Seller agree to regularly
meet and confer to ensure the configurations and other aspects of the LLA are
satisfactory to both parties. Prior to expiration of the Due Diligence Period, either party
may notify the other party, in writing, if the party objects to the location and/or
configuration of the Property, as set forth in the LLA, or any other aspect of the LLA and
if, as a result, the objecting party does not wish to proceed with purchasing the Property
(the "LLA Termination Notice"). Buyer's and Seller's approval or disapproval of the
LLA may be granted or withheld in each of their sole and absolute discretion. Either
party's provision of the LLA Termination Notice shall constitute that party's election to
terminate the Escrow and this Agreement. Buyer acknowledges and agrees that all
costs incurred in the preparation and processing of the LLA shall be borne by Buyer.
Buyer further acknowledges and agrees that (i) the Property, which is contemplated for
development of a future fire station, will border a future residential development
proposed by Tract Map No. 32398 in the City of La Quinta (the "Map"), and (ii) the
Property will satisfy any conditions imposed by Tract Map No. 32398, as such map may
be amended or remapped, for provision of a fire station. Notwithstanding the foregoing,
however, nothing herein shall relieve Seller from the payment of any developer impact
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fees imposed by the City of La Quinta in connection with Tract Map No. 32398 and the
development contemplated thereby, as such map may be amended or remapped.
2.2 Title/Survey. Seller shall deliver to Buyer, at Buyer's expense, within five
(5) days after the Effective Date of this Agreement, a preliminary title report prepared by
Fidelity National Title Insurance Company (the "Title Company"), dated not more than
thirty (30) days earlier than the Effective Date describing the state of title of the Seller
Property together with copies of all underlying documents (collectively the "Preliminary
Title Report"). Buyer may, at its sole cost and expense, obtain a current survey of the
Seller Property or any portion thereof (the "Survey"), provided it commences to do so
within thirty (30) days after the Effective Date.
2.2.1 Notwithstanding anything herein to the contrary, Seller shall be
obligated to remove all monetary encumbrances against the Property excluding non -
delinquent real property taxes and assessments. Buyer shall notify Seller in writing of
any objections Buyer may have to title exceptions contained in the Preliminary Title
Report or matters shown on the Survey (if Buyer obtains) no later than the date which is
thirty (30) days after the later of (i) Buyer's receipt of the Preliminary Title Report or (ii)
Buyer's receipt of the Survey ("Buyer's Objection Notice'). Buyer's approval or
disapproval of the matters set forth in the Preliminary Title Report and the Survey may
be granted or withheld in Buyer's sole and absolute discretion. Buyer's failure to
provide Seller with a Buyer's Objection Notice within said period shall constitute Buyer's
approval of all exceptions to title shown on the Preliminary Title Report and all matters
shown on the Survey. Seller shall have a period of fifteen (15) days after receipt of
Buyer's Objection Notice in which to deliver written notice to Buyer ("Seller's Notice") of
Seller's election to either (i) agree to remove the objectionable items on the Preliminary
Title Report and/or Survey prior to the "Close of Escrow" (as that term is defined in
Section 4.1), or (ii) decline to remove any such title exceptions and/or Survey matters
and terminate the Escrow and the obligations of Buyer and Seller to purchase and sell
the Property under this Agreement. Seller's failure to provide Buyer with Seller's Notice
within said period shall constitute Seller's election not to remove the objectionable items
on the Preliminary Title Report and/or the Survey. If Seller notifies Buyer of its election,
or is deemed to have elected, to terminate rather than remove the objectionable items
on the Preliminary Title Report and/or Survey, Buyer shall have the right, by written
notice delivered to Seller within five (5) days after Buyer's receipt of Seller's Notice, to
agree to accept the Property subject to the objectionable items, in which event Seller's
election to terminate shall be of no effect, and Buyer shall take title at the Close of
Escrow subject to such objectionable items without any adjustment to or credit against
the Purchase Price.
2.2.2 Upon the issuance of any amendment or supplement to the
Preliminary Title Report which adds additional exceptions, including any survey
exceptions, the foregoing right of review and approval shall also apply to said
amendment or supplement; provided, however, that Buyer's initial period of review and
approval or disapproval of any such additional exceptions shall be limited to fifteen (15)
days following receipt of notice of such additional exceptions. The process set forth
above for Buyer's review and Seller's response shall apply to any review and response
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54213 5.5 a0224104
with respect to any amendment or supplement to the Preliminary Title Report, and the
Close of Escrow shall be extended for such period as is necessary to allow for that
review and response process to be completed.
2.3 Environmental Condition. Buyer shall have access to the Seller Property,
as described in this Section 2.3, in order to permit Buyer or its directors, engineers,
analysts, officers, employees, agents, contractors, representatives, attorneys or
advisors (collectively, the "Buyer Representatives") to investigate the Property.
2.3.1 During the Due Diligence Period, Seller shall permit Buyer and
Buyer Representatives, at the sole cost and expense of Buyer, to conduct physical
inspections of the Property, including the site work, soil, subsurface soils, drainage,
seismic and other geological and topographical matters, location of asbestos, toxic
substances, hazardous materials or wastes, if any, and any other investigations as
Buyer deems prudent with respect to the physical condition of the Property in order to
determine the Property's suitability for Buyer's intended development. In no event shall
Buyer conduct any intrusive testing procedures on the Property without the prior written
consent of Seller, which consent shall not be unreasonably withheld. Such
investigations may be made by Buyer and/or Buyer Representatives during any normal
business hours. Seller shall cooperate to assist Buyer in completing such inspections
and special investigations at no cost or expense to Seller. Such inspections and
investigations shall be conducted only upon no less than twenty-four (24) hours' notice
to Seller and shall be conducted at such times and in such a manner as to minimize any
disruption to the Property. Seller shall have the right, but not the obligation, to
accompany Buyer during such investigations and/or inspections.
2.3.2 As a condition to any such entry, Buyer shall (i) conduct all work or
studies in a diligent, expeditious and safe manner and not allow any dangerous or
hazardous conditions to occur on the Property during or after such investigation;
(ii) comply with all applicable laws and governmental regulations; (iii) keep the Property
free and clear of all materialmen's liens, lis pendens and other liens arising out of the
entry and work performed under this paragraph; (iv) maintain or assure maintenance of
workers' compensation insurance (or state approved self-insurance) on all persons
entering the property in the amounts required by the State of California; (v) provide to
Seller prior to initial entry a certificate of insurance evidencing that Buyer and/or the
persons entering the Property has procured and has in effect an all-risk public liability
insurance policy meeting the following requirements: (1) the insurance shall be written
on a per occurrence and not claims -made basis; (2) the amount of insurance shall be a
combined single limit of not less than Two Million Dollars ($2,000,000.00) with a
deductible or self -insured retention amount of not more than One Hundred Thousand
Dollars ($100,000); (3) the policy shall name or be endorsed to Seller and Seller's
officers, employees, agents, and representatives (collectively, "Seller & Seller
Personnel") as additional insureds; (4) the insurance shall not contain any special
limitations on the scope of protection afforded to Seller & Seller Personnel; (5) the
policy shall not be canceled by the insurer or Buyer unless there is a minimum of thirty
(30) days prior written notice to Seller; (6) the insurer shall waive subrogation rights
against the Seller & Seller Personnel; and (7) the insurance shall be primary insurance
sa2+3455 a0=4104 -4-
and not contributory with any insurance any of Seller & Seller Personnel may have; and
(8) the insurance shall apply separately to each insured against whom a claim is made
or suit is brought, except with respect to the limits of the insurer's liability; and
(vi) following Buyer's entry, repair any and all damage to the Property caused by such
inspections or investigations in a timely manner. Notwithstanding anything to the
contrary herein, Buyer may satisfy the above insurance requirements through self-
insurance.
2.3.3 Buyer shall promptly pay and discharge all demands for payment
relating to Buyer's entry on and investigation of the Property and take all other steps to
avoid the assertion of claims of lien against the Property. In the event a claim of lien is
recorded by reason of Buyer's entry on the Property, Buyer, within twenty (20) days of
such recordation, shall either (i) record or deliver a surety bond sufficient to release
such claim or lien in accordance with applicable law; or (ii) provide Seller with such
other assurance as Seller may require for the payment of the claim or lien. Seller may
elect to record and post notices of non -responsibility from time to time on and about the
Property.
2.3.4 Prior to expiration of the Due Diligence Period, Buyer shall notify
Seller in writing (i) of Buyer's election to terminate the Escrow and this Agreement, if
Buyer disapproves of the physical or environmental conditions of the Property and, as a
result, does not wish to proceed with purchasing the Property ("Buyer's Property
Termination Notice'), or (ii) of any objections Buyer may have (the "Disapproved
Property Matters") to any physical or environmental conditions of the Property
("Buyer's Property Objection Notice"). Buyer's approval or disapproval of the
physical and environmental conditions of the Property may be granted or withheld in
Buyer's sole and absolute discretion. In the event Buyer terminates this Agreement
pursuant to this Section, Buyer and Seller shall be relieved of all further liability under
this Agreement, except that Seller shall be entitled to the Independent Contract
Consideration. Buyer's failure to provide Seller with a Buyer's Property Termination
Notice or a Buyer's Property Objection Notice prior to the expiration of the Due
Diligence Period shall constitute Buyer's approval of the condition of the Property. If
Buyer provides to Seller Buyer's Property Objection Notice, Seller shall have a period of
fifteen (15) days after receipt of Buyer's Property Objection Notice in which to deliver
written notice to Buyer ("Seller's Response") of Seller's election to either (i) agree to
remove the Disapproved Property Matters prior to the Close of Escrow, or (ii) decline to
remove the Disapproved Property Matters and terminate Escrow and the obligations of
Buyer and Seller to purchase and sell the Property under this Agreement. Seller's
failure to provide Buyer with Seller's Response within said period shall constitute
Seller's election to remove the Disapproved Property Matters prior to the Close of
Escrow. If Seller notifies Buyer of its election to terminate rather than remove the
Disapproved Property Matters, Buyer shall have the right, by written notice delivered to
Seller within five (5) days after Buyer's receipt of Seller's Response, to agree to accept
the Property subject to the Disapproved Property Matters, in which event Seller's
election to terminate shall be of no effect, and Buyer shall take title at the Close of
Escrow subject to such Disapproved Property Matters without any adjustment to or
credit against the Purchase Price.
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3. ESCROW
3.1 Opening of Escrow. Closing of the sale of the Property shall take place
through an escrow ("Escrow") to be established within three (3) business days after the
Effective Date with Four Seasons Escrow, Inc., at its office located at 51350 Desert
Club Drive, La Quinta, CA 92253 ("Escrow Holder"). The opening of the Escrow (the
"Opening of Escrow") shall be deemed to be the date that a fully executed copy of this
Agreement is delivered to the Escrow Holder. Escrow Holder is instructed to notify
Buyer and Seller in writing of the date of the Opening of Escrow.
3.2 Escrow Instructions. This Agreement, once deposited in Escrow, shall
constitute the joint escrow instructions of Buyer and Seller to Escrow Holder.
Additionally, if Escrow Holder so requires, Buyer and Seller agree to execute the form of
escrow instructions that Escrow Holder customarily requires in real property escrows
administered by it. In the event of any conflict or inconsistency between Escrow
Holder's. standard instructions and the provisions of this Agreement, the provisions of
this Agreement shall supersede and be controlling.
4. CLOSE OF ESCROW.
4.1 Close of Escrow: Outside Closing Date. Provided that all of the conditions
of this Agreement precedent to the "Close of Escrow" (as hereinafter defined) have
been satisfied (or waived by the appropriate party) prior to or on the "Outside Closing
Date," (as hereinafter defined) the closing of this transaction for the sale and purchase
of the Property shall take place on the date which is five (5) days after the date on which
all of "Buyer's Conditions to Closing" and all of "Seller's Conditions to Closing" (as those
terms are defined in Section 8) have been satisfied (or waived by the appropriate party);
provided, however, in no event shall the closing of this transaction occur, if at all, later
than December 31, 2013 ("Outside Closing Date"). The terms "Close of Escrow" and
the "Closing Date" are used herein to mean the time Seller's grant deed conveying fee
title to the Property to Buyer is recorded in the Official Records of the Office of the
County Recorder of Riverside ("Official Records"). If Escrow is not in a condition to
close by the Outside Closing Date, either party not then in default hereunder may, upon
five (5) days advance written notice to the other party and Escrow Holder, elect to
terminate this Agreement and the Escrow. No such termination shall release either
party then in default from liability for such default. If neither party so elects to terminate
this Agreement and the Escrow, Escrow Holder shall close the Escrow as soon as
possible.
4.2 Recordation; Release of Funds and Documents.
4.2.1 Escrow Holder is directed, on the Closing Date, to record in the
Official Records, the following documents in the order listed: (i) the LLA; (ii) the grant
deed in the form of the attached Exhibit "C" transferring title to the Property to Buyer
("Grant Deed"); (iii) the "Access Easement Agreement," as described in Section 8.1(f)
below; and (iv) such other and further documents as may be directed jointly by Buyer
and Seller.
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4.2.2 Upon the Closing Date, Escrow Holder shall deliver (i) the
Purchase Price, less any of Seller's closing costs, to Seller, and (ii) conformed copies of
all recorded documents to both Buyer and Seller.
4.3 Escrow Cancellation Charges. if the Escrow does not close due to a
default by one of the parties, the defaulting party shall bear all "Escrow Cancellation
Charges" (as that term is defined below). If the Close of Escrow does not occur for any
reason other than the default of a party, then Buyer and Seller shall each pay fifty
percent (50%) of any Escrow Cancellation Charges. As used herein, "Escrow
Cancellation Charges' means all fees, charges and expenses incurred by Escrow
Holder or third parties engaged by Escrow Holder, as well as all expenses related to the
services of the Title Company in connection with the issuance of the Preliminary Title
Report and other title matters.
5. DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER.
5.1 Buyer's Obligations. Buyer agrees that on or before 5:00 p.m. of the last
business day immediately preceding the Closing Date, Buyer shall deposit or cause to
be deposited with Escrow Holder the following:
(a) the Purchase Price, less the Independent Contract Consideration;
and
(b) any and all additional funds, instruments or other documents
required from Buyer (executed and acknowledged where appropriate) as may be
reasonably necessary in order for the Escrow Holder to comply with the terms of this
Agreement.
5.2 Seller's Obligations. Seller agrees that on or before 5:00 p.m. of the last
business day immediately preceding the Closing Date, Seller shall deposit or cause to
be deposited with Escrow Holder each of the following:
(a) the executed and acknowledged Grant Deed;
(b) the executed and acknowledged LLA;
(c) a Certificate of Non -Foreign Status (the "Non -Foreign Affidavit")
executed and acknowledged by Seller in the form attached hereto as Exhibit "D"; and
(d) all other funds, items, and instruments required from Seller
(executed and acknowledged where appropriate) as may be reasonably necessary in
order for Escrow Holder to comply with the provisions of this Agreement.
6. TITLE INSURANCE POLICY.
6.1 Title Policy. At the Closing Date, the Title Company, as insurer, shall
issue a standard ALTA owner's standard coverage policy of title insurance ("Title
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5421345 5 a0224104
Policy"), in favor of Buyer, as insured, with liability in the amount of the Purchase Price,
subject to the following:
(a) non -delinquent real property taxes and assessments;
(b) title exceptions approved or deemed approved by Buyer pursuant
to Section 2.2 above;
(c) title exceptions, if any, resulting from Buyer's entry onto the
Property pursuant to the provisions of Section 2.3 above;
(d) any other exceptions approved by Buyer; and
(e) the standard printed conditions and exceptions contained in the
ALTA standard coverage owner's policy of title insurance regularly issued by the Title
Company.
6.2 Payment for Title Policy. Buyer shall be responsible for all charges for the
Title Policy. Buyer shall also pay for the ALTA survey, if applicable.
7. REAL PROPERTY TAXES. Upon Buyer's acquisition of fee title to the Property
and for the duration of Buyer's ownership, if any, the Property will be exempt from the
payment of property taxes and assessments due to Buyer's status as a public entity.
Seller shall be responsible for paying for all property taxes or assessments assessed
against the Property after the Closing for any period prior to the Closing.
8. CONDITIONS PRECEDENT TO CLOSING.
8.1 Conditions Precedent to Buyer's Obligations. The obligations of Buyer
under this Agreement to purchase the Property and close the Escrow shall be subject to
the satisfaction or signed written waiver by Buyer of each and all of the following
conditions precedent (collectively "Buyer's Conditions to Closing"):
(a) Buyer shall have approved the LLA, including, without limitation, the
location and configuration of the Property, in accordance with Section 2.1 hereof, and
the LLA shall be ready to record concurrently with, and immediately prior to, the Grant
Deed;
(b) Buyer shall have approved the condition of the title to the Property,
in accordance with Section 2.2 hereof;
(c) Buyer shall have approved the condition of the Property, in
accordance with Section 2.3 hereof;
(d) on the Closing Date, the Title Company shall be irrevocably
committed to issue the Title Policy pursuant to Section 6 above insuring fee title to the
Property as being vested in Buyer;
882/01%10-0002
5421345.5 a02/24/04 -8-
(e) Buyer shall have received (i) the sum of Fifty -Five Thousand
Dollars ($55,000), in Good Funds, from KB Home Sales - Southern California Inc., or an
affiliate thereof; and (ii) the sum of Fifty -Five Thousand Dollars ($55,000), in Good
Funds, from T.D. Desert Development Limited Partnership, or an affiliate thereof;
(f) Escrow Holder holds all instruments and funds required for the
Close of Escrow and will deliver to Buyer the instruments and funds, if any, accruing to
Buyer pursuant to this Agreement;
(g) except as otherwise permitted by this Agreement, all
representations and warranties by the Seller in this Agreement shall be true on and as
of the Closing Date as though made at that time and all covenants of Seller pursuant to
this Agreement shall have been fulfilled by the Closing Date;
(h) Seller is not in material default of any term or condition of this
Agreement.
In the event that any of Buyer's Conditions to Closing are not satisfied, or waived
in a writing signed by Buyer, prior to the expiration of the applicable period for
satisfaction or waiver, Buyer may terminate this Agreement. In the event of such
termination, neither party shall thereafter have any obligations to, or rights against, the
other under this Agreement, except for any obligations that expressly survive the
termination of this Agreement.
8.2 Conditions Precedent to Seller's Obligations. The obligations of Seller
under this Agreement shall be subject to the satisfaction or signed written waiver by
Seller of each and all of the following conditions precedent ("Seller's Conditions to
Closing"):
(a) Escrow Holder holds the Purchase Price and all other instruments
and funds required for the Closing and will deliver to Seller the instruments and funds,
including but not limited to the Purchase Price (less Seller's closing costs), accruing to
Seller pursuant to this Agreement;
(b) except as otherwise permitted by this Agreement, all
representations and warranties by the Buyer in this Agreement shall be true on and as
of the Closing Date as though made at that time and all covenants of Buyer pursuant to
this Agreement shall have been fulfilled by the Closing Date;
(c) Buyer is not in material default of any term or condition of this
Agreement.
In the event that any of Seller's Conditions to Closing are not satisfied, or waived
in a writing signed by Seller, prior to the expiration of the applicable period for
satisfaction or waiver, Seller may terminate this Agreement. In the event of such
termination, neither party shall thereafter have any obligations to, or rights against, the
other under this Agreement, except for any obligations that expressly survive the
termination of this Agreement.
882I015610-0 2
5421345 5 a0224104
9. POSSESSION. Possession of the Property shall be delivered by Seller to Buyer
on the Closing Date.
10. ALLOCATION OF COSTS.
10.1 Buyer's Costs. Buyer shall pay the following costs:
(a) fifty percent (50%) of Escrow Holder's escrow fee;
(b) Buyer's own attorney's fees incurred in connection with this
Agreement and the transactions contemplated hereby;
if any; (c) fifty percent (50%) of all the charges for recording the Grant Deed,
(d) the costs for the ALTA policy of title insurance; and
(e) any additional title insurance coverages Seller is not required to pay
for plus any title endorsements requested by Buyer.
10.2 Seller's Costs. Seller shall pay:
(a) fifty percent (W%) of the Escrow Holder's escrow fee;
(b) Seller's own attorney's fees in connection with this Agreement and
the transactions contemplated hereby;
and (c) any documentary transfer taxes associated with the conveyance;
if any. (d) fifty percent (50%) of all the charges for recording the Grant Deed,
11. INDEMNIFICATION. Seller agrees to indemnify, defend and hold Buyer and
Buyer's officials, officers, members, agents, representatives, and employees harmless
from and against any claim, action, suit, proceeding, loss, cost, damage, liability,
deficiency, fine, penalty, punitive damage, or expense (including, without limitation,
attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release,
use, generation, discharge, storage or disposal of any "Hazardous Materials" (as that
term is defined below) on, under, in or about, or the transportation of any such
Hazardous Materials to or from, the Property which occurred prior to the Closing Date,
or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation,
permit, judgment or license relating to the use, generation, release, discharge, storage,
disposal or transportation of Hazardous Materials on, under, in or about, or to or from,
the Property which occurred prior to the Closing Date. This indemnity shall include,
without limitation, any damage, liability, fine, penalty, cost or expense arising from or out
of any claim, action, suit or proceeding for personal injury (including sickness, disease
or death), tangible or intangible property damage, compensation for lost wages,
8e2/01%10{ 02
-421345.5 a0224/04 -1 Q_
business income, profits or other economic loss, damage to the natural resource or the
environment, nuisance, contamination, leak, spill, release or other adverse effect on the
environment (any of the above, a "Claim") to the extent resulting from, arising out of, or
based upon any matter set forth in subclauses (i) and/or (ii) hereinabove. At the request
of the Seller, the Buyer shall cooperate with and assist the Seller in its defense of any
such claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine,
penalty, punitive damage, or expense; provided that the Buyer shall not be obligated to
incur any expense in connection with such cooperation or assistance. Seller's
obligation to indemnify, defend and hold Buyer harmless under this Section 11 shall not
apply to any Claim resulting from, arising out of or based upon any inspection or
investigation of the Property by Buyer Representatives pursuant to Section 2.3 hereof,
and Buyer agrees to indemnify, defend and hold Seller harmless from any such Claim in
the same manner and to the same extent that Seller is required to indemnify, defend
and hold Buyer harmless under the provisions of this Section 11.
For purposes of this Agreement, the term "Hazardous Materials" means any
substance, material, or waste which is, or becomes, regulated by any local
governmental authority, the State of California, or the United States Government,
including, but not limited to, any material or substance which is (i) defined as a
"hazardous waste," "extremely hazardous waste," or "restricted 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 a "hazardous substance' under Section 25316 of the California Health and
Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous
Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance,"
or "hazardous waste' under Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory), (iv) defined as a "hazardous substance' under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
biphenyls, (viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as
"hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (x) designated as "hazardous substances'
pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (xi) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act, 42 U.S.C. §6901 et seq.(42 U.S.C. §6903) or (xii) defined as "hazardous
substances" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601 et seq.
12. REPRESENTATIONS AND WARRANTIES.
12.1 Seller's Representations and Warranties. Seller hereby makes the
following representations and warranties to Buyer, each of which is true in all respects
as of the date hereof and shall be true in all respects on the Closing Date:
12.1.1 Seller is duly organized and existing.
932J01551 o-"2 5421345,5 a0224104
12.1.2 Seller has the legal power, right, and authority to execute, deliver
and perform Seller's obligations under this Agreement and the documents executed and
delivered by Seller pursuant hereto.
12.1.3 All requisite action (corporate, trust, partnership, or otherwise) has
been taken by Seller in connection with entering into this Agreement and the
instruments referenced herein and the consummation of the transactions contemplated
hereby. No consent of any partner, shareholder, member, creditor, investor, judicial or
administrative body, authority or other entity is required which has not been obtained to
permit Seller to enter into this Agreement and consummate the transactions
contemplated hereby.
12.1.4 The entering into this Agreement does not violate any provision of
any other agreement to which Seller is bound.
12.1.5 There is no pending or threatened litigation, lawsuit or
administrative proceeding which would adversely affect the Property.
12.1.6 There are no contracts or leases affecting the Property and no
agreements entered into, by or under Seller which shall survive the Close of Escrow.
12.1.7 Seller has no knowledge of the presence of any Hazardous
Materials on the Property, or any portion thereof, and Seller has not been advised or
notified by any third parties, prior owners of the Property, or any federal, state or local
governmental agency, of the presence of any Hazardous Materials on the Property.
In the event Seller becomes aware of a change in circumstance during the term
of the Escrow which would cause any of the representations or warranties of Seller
under this Section 12 to be untrue, Seller shall advise Buyer of such change in
circumstance in writing within five (5) business days from Seller's discovery thereof.
Buyer shall then have fifteen (15) business days from receipt of such notice from Seller
to deliver written notice to Seller of Buyer's election to either (i) terminate this
Agreement, or (ii) waive objection to such change in circumstance and to accept title to
the Property at the Close of Escrow subject to such change in circumstance. Buyer's
failure to notify Seller in writing within said fifteen (15) business day period shall
conclusively be deemed Buyer's election to waive objection to such change in
circumstance and to proceed to close this Escrow subject to such change in
circumstance.
12.2 Buyer's Representations Warranties and Covenants
12.2.1 Buyer is duly organized and existing.
12.2.2 Buyer has the legal power, right, and authority to execute, deliver
and perform Buyer's obligations under this Agreement and the documents executed and
delivered by Buyer pursuant hereto.
992101%10-0002
54213 5.5 a0224104 -1 2-
12.2.3 All requisite action has been taken by Buyer in connection with
entering into this Agreement and the instruments referenced herein and the
consummation of the transactions contemplated hereby. No consent is required which
has not been obtained to permit Buyer to enter into this Agreement and consummate
the transaction hereby.
12.2.4 The entering into this Agreement does not violate any provision of
any other agreement to which Buyer is bound.
13. CONDEMNATION. In the event that, prior to the Close of Escrow, any
governmental entity shall commence any proceedings of or leading to eminent domain
or similar type proceedings to take all or any portion of the Property, Buyer and Seller
shall promptly meet and confer in good faith to evaluate the effect of such action on the
purposes of this Agreement and following such meeting either Buyer or Seller may
terminate this Agreement.
14. RISK OF PHYSICAL LOSS. Risk of physical loss to the Property shall be borne
by Seller prior to the Close of Escrow and by Buyer thereafter. In the event that the
Property shall be damaged by fire, flood, earthquake or other casualty Buyer shall have
the option to terminate this Agreement, provided notice of such termination is delivered
to Seller within fifteen (15) business days following the date Buyer learns of the
occurrence of such casualty. If Buyer fails to terminate this Agreement pursuant to the
foregoing sentence within said fifteen (15) business day period, Buyer shall complete
the acquisition of the Property, in which case Seller shall assign to Buyer the interest of
Seller in all insurance proceeds relating to such damage. Seller shall consult with Buyer
regarding any proposed settlement with the insurer and Buyer shall have the
reasonable right of approval thereof. Seller shall hold such proceeds until the Close of
Escrow. In the event this Agreement is terminated for any reason, Buyer shall have no
right to any insurance proceeds.
15. WAIVER OF DAMAGES; SPECIFIC PERFORMANCE. In the event a party
defaults under this Agreement, the non -defaulting party's sole and exclusive remedy will
be for specific performance of this Agreement. EACH PARTY HEREBY WAIVES ANY
RIGHT TO PURSUE DAMAGES RESULTING FROM A DEFAULT OR BREACH OF
THIS AGREEMENT, AND IN NO EVENT SHALL THE DEFAULTING PARTY BE
LIABLE FOR DAMAGES FOR A DEFAULT OR BREACH OF DEFAULTING PARTY'S
OBLIGATION UNDER THIS AGREEMENT, ALL OF WHICH RIGHTS ARE HEREBY
WAIVED AND RELINQUISHED BY THE NON -DEFAULTING PARTY. The parties
agree that the foregoing limitation on their respective remedies and measure of
damages is reasonable under all of the circumstances of this Agreement, and is
material consideration for the parties entering into this Agreement.
Seller's Initials Buyer's Initials
882/015610-0002 -13-
5421 M5.5 a02/24104
16. SECONDARY ACCESS. Seller acknowledges and agrees that Buyer intends to
directly access the Property from 60th Avenue. Seller further acknowledges and agrees
that Buyer will require a secondary access to the Property (the "Secondary Access").
Buyer and Seller anticipate that the Secondary Access will be from the west of the
property. Seller shall cooperate with Buyer to designate the Secondary Access in a
location acceptable to Buyer and Seller, each in their reasonable discretion. Upon such
designation, Seller shall execute and record an easement agreement (the "Easement
Agreement') pursuant to which Seller grants to Buyer an easement for ingress and
egress over portions of the Seller Property for purposes of providing to Buyer the
Secondary Access. The Easement Agreement shall be in a form approved by the City
Attorney.
17. MISCELLANEOUS.
17.1 Assignment. This Agreement shall be binding upon and shall inure to the
benefit of Buyer and Seller and their respective heirs, personal representatives,
successors and assigns. Neither party to this Agreement may assign this Agreement or
any interest or right hereunder or under the Escrow without the prior written consent and
approval of the other party, which consent and approval may be withheld in the sole and
absolute discretion of either party. No provision of this Agreement is intended nor shall
in any way be construed to benefit any party not a signatory hereto or to create a third
party beneficiary relationship.
17.2 Choice of Laws. This Agreement shall be governed by the internal laws of
the State of California and any question arising hereunder shall be construed or
determined according to such law without regard to conflict of law principles. Service of
process on Buyer shall be made in accordance with California law. Service of process
on Seller shall be made in any manner permitted by California law and shall be effective
whether served inside or outside California.
17.3 Arbitration Of Disputes.
17.3.1 PROCEDURE. ANY DISPUTE BETWEEN BUYER AND SELLER
RELATED TO THIS AGREEMENT, OR THE PROPERTY, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT WILL BE RESOLVED BY ARBITRATION
GOVERNED BY THE FEDERAL ARBITRATION ACT AND, TO THE EXTENT NOT
INCONSISTENT WITH THAT STATUTE, CONDUCTED IN ACCORDANCE WITH THE
RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION OF
COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION
SERVICES, INC. ("JAMS") AND OTHERWISE, TO THE EXTENT NOT
INCONSISTENT WITH THE FOREGOING, PURSUANT TO CALIFORNIA LAW. THE
ARBITRATION SHALL BE CONDUCTED IN RIVERSIDE COUNTY, CALIFORNIA
AND ADMINISTERED BY JAMS, WHICH WILL APPOINT A SINGLE ARBITRATOR.
ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 30 DAYS OF THE
DEMAND FOR ARBITRATION UNLESS THE ARBITRATOR, FOR SHOWING OF
GOOD CAUSE, EXTENDS THE COMMENCEMENT OF SUCH HEARING. THE
DECISION OF THE ARBITRATOR. WILL BE BINDING ON BUYER AND SELLER,
882)01 %10-aooz
e 21345.5a=4ro4 -14-
AND JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION AND THE DETERMINATION AND AWARD, IF
ANY, MAY THEN BE ENFORCED AMONG THE PARTIES, WITHOUT FURTHER
EVIDENTIARY PROCEEDINGS, AS IF ENTERED BY A COURT AT THE
CONCLUSION OF A JUDICIAL PROCEEDING IN WHICH NO APPEAL WAS TAKEN.
THE PARTIES ACKNOWLEDGE THAT, BY AGREEING TO ARBITRATE DISPUTES,
EACH OF THEM IS WAIVING CERTAIN RIGHTS, INCLUDING ITS RIGHTS TO SEEK
REMEDIES IN COURT (INCLUDING A RIGHT TO A TRIAL BY JURY), TO
DISCOVERY PROCESSES THAT WOULD BE ATTENDANT TO A COURT
PROCEEDING, AND TO PARTICIPATE IN A CLASS ACTION.
17.3.2 ACCEPTANCE OF ARBITRATION. 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 ABOVE AND, AS
APPLICABLE, 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 FEDERAL ARBITRATION ACT AND/OR 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.
BY PLACING THEIR INITIALS HERE:
(BUYER ; SELLER ), THE PARTIES AGREE TO ARBITRATION.
17.4 JURY WAIVER. BUYER AND SELLER EACH WAIVES RIGHT TO A
JURY IN ANY LITIGATION IN CONNECTION WITH THIS AGREEMENT, OR THE
PROPERTY, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
BUYER AND SELLER EACH ACKNOWLEDGES THAT THIS WAIVER HAS BEEN
FREELY GIVEN AFTER CONSULTATION BY IT WITH COMPETENT COUNSEL.
THIS SECTION 17.4 HAS BEEN INCLUDED ONLY FOR THE EVENT THAT,
DESPITE THE PARTIES' INTENTION, THE AGREEMENT TO ARBITRATE
DISPUTES IS HELD TO BE INAPPLICABLE, AND NOTHING IN THIS SECTION 17.4
IS INTENDED TO QUALIFY THE PARTIES' AGREEMENT TO ARBITRATE ALL
DISPUTES.
17.5 Attorney's Fees. In the event of any action, including an arbitration
proceeding, between Buyer and Seller seeking enforcement of any of the terms and
992/01%10-0002 -15-
5421 W 5 a0224/
conditions to this Agreement or the Escrow or otherwise in connection with the Property,
the prevailing party in such action shall be awarded, in addition to damages, injunctive
or other relief, its reasonable costs and expenses, including without limitation its expert
witness fees and reasonable attorney's fees.
17.6 Notices. All notices under this Agreement shall be effective (i) upon
personal delivery, (ii) upon delivery by reputable overnight courier that provides a
receipt with the date and time of delivery, or (iii) three (3) business days after deposit in
the United States mail, registered or certified, postage fully prepaid and addressed to
the respective parties as set forth below or as to such other address as the parties may
from time to time designate in writing:
To Seller: Barton Land, La Quinta LLC
2995 Woodside Road, #400
Woodside, CA 94062
Phone No.: 650-529-2385 x 203
Attn: Philip W. Barton
To Buyer: City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Phone No.: 760-777-7031
Attention: City Manager
Copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92628-1950
Phone No.: (714) 641-5100
Attn: M. Katherine Jenson, Esq.
17.7 Fair Meaning. This Agreement shall be construed according to its fair
meaning and as if prepared by both parties hereto.
17.8 Headings. The headings at the beginning of each numbered Section of
this Agreement are solely for the convenience of the parties hereto and are not a part of
this Agreement.
17.9 Nonliability of Buyer Officials No officer, official, member, employee,
agent, or representative of Buyer shall be liable for any amounts due hereunder, and no
judgment or execution thereon entered in any action hereon shall be personally
enforced against any such officer, official, member, employee, agent, or representative.
17.10 Gender: Number. As used in this Agreement, masculine, feminine, and
neuter gender and the singular or plural number shall be deemed to include the others
wherever and whenever the context so dictates.
17.11 Survival. This Agreement and all covenants to be performed after the
Closing Date, and, except as otherwise set forth herein, all representations and
880015610�2
eaziaae.s 3OZ24M4 -16-
warranties contained herein, shall survive the Closing Date and shall remain a binding
contract between the parties hereto.
17.12 Time of Essence. Time is of the essence of this Agreement and of each
and every term and provision hereof, it being understood that the parties hereto have
specifically negotiated the dates for the completion of each obligation herein.
17.13 Waiver. A waiver of a provision hereof shall be effective only if said
waiver is in writing, and signed by both Buyer and Seller. No waiver of any breach or
default by any party hereto shall be considered to be a waiver of any future breach or
default unless expressly provided herein or in the waiver.
17.14 Broker's/Consulting Fees. Seller and Buyer represent and warrant to the
other that neither Buyer nor Seller has employed any real estate broker to represent its
interest in this transaction. Each party agrees to indemnify and hold the other free and
harmless from and against any and all liability, loss, cost, or expense (including court
costs and reasonable attorney's fees) in any manner connected with a claim asserted
by any individual or entity for any broker's commission in connection with the
conveyance of the Property arising out of agreements by the indemnifying party to pay
any commission.
17.15 No Withholding Because Non -Foreign Seller. Seller represents and
warrants to Buyer that Seller is not, and as of the Close of Escrow will not be, a foreign
person within the meaning of Internal Revenue Code Section 1445 or an out-of-state
seller under California Revenue and Tax Code Section 18805 and that it will deliver to
Buyer on or before the Close of Escrow a Certificate of Non -foreign Status on Escrow
Holder's standard form pursuant to Internal Revenue Code Section 1445(b)(2) and the
regulations promulgated thereunder and a California Form 593-C.
17.16 Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall be of equal legal force and effect.
17.17 Severability. If any term, covenant or condition of this Agreement or the
application thereof to any person, entity, or circumstance shall, to any extent, be invalid
or unenforceable, the remainder of this Agreement, or the application of such term,
covenant, or condition to persons, entities, or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and each term,
covenant or condition of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
17.18 Exhibits. The following exhibits are attached hereto and incorporated
herein by this reference:
Exhibit "A"
Depiction of Seller Property
Exhibit "B"
Proposed Location of Property
Exhibit "C"
Grant Deed
Exhibit " M
Certificate of Non -Foreign Status
092M15510-0002 -17-
54213 5.5 a=4104
17.19 Covenants of Seller. Seller agrees that during the period between the
Effective Date of this Agreement and the Closing Date:
(a) Seller shall maintain the Property in not less than the state of repair
as that existing on the Effective Date (excepting ordinary wear and tear);
(b) Seller shall not convey, grant, lease, rent, license, assign,
mortgage, hypothecate, encumber, or otherwise transfer (on or off record) the Property
or any interest therein;
(c) Seller shall not alter the physical condition of the Property or
introduce or release, or permit the introduction or release, of any Hazardous Material in,
from, under, or on the Property;
(d) Prior to the Closing Date, Seller shall maintain Seller's existing
insurance on the Property.
17.20 Covenant Against Discrimination. Seller covenants that in its performance
of this Agreement it shall not discriminate against any person or group of persons on
account of any impermissible classification including but not limited to race, color, creed,
gender, religion, marital status, national origin, or ancestry.
17.21 Entire Agreement Amendment. Except as set forth above, this
Agreement and the exhibits incorporated herein contain the entire agreement of Buyer
and Seller with respect to the matters contained herein, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose. No
provisions of this Agreement may be amended or modified in any manner whatsoever
except by an agreement in writing signed by duly authorized officers or representatives
of each of the parties hereto.
17.22 Facsimile Signatures. Signatures of the parties transmitted by facsimile
shall be deemed binding. However, each party agrees to submit their original signature
to the other party within five (5) business days after execution hereof.
[SIGNATURES ON NEXT PAGE]
982I015510-0002
5421M5.5 a0224104 -1 g-
IN WITNESS WHEREOF, Buyer and Seller each hereby represents that it has
read this Agreement, understands it, and hereby executes this Agreement to be
effective as of the day and year first written above.
Date: 2013
"Seller"
BARTON LAND, LA QUINTA LLC
a California limited liability company
By: _
Name:
"Buyer"
CITY OF LA QUINTA,
a California municipal corporation and
charter city
Date: 2013 By:
Name: Frank J. Spevacek
Its: City Manager
ATTEST:
Susan Maysels, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
By:
M. Katherine Jenson, City Attorney
Four Seasons Escrow, Inc. agrees to act as Escrow Holder in accordance with the
terms of this Agreement.
Date: , 2013
FOUR SEASONS ESCROW, INC.
Name: Malia Monroe
Its: President
ee21015010-0 02 _t 9_
5421345 5 a0224104
EXHIBIT "A"
DEPICTION OF SELLER PROPERTY
882/01%10-0 2
5 21345.5 a0911&13
City of La Quinta
Planning Division
EXHIBIT "B"
PROPOSED LOCATION OF PROPERTY
6621015610-0 02
5421 �55 .09116113
EXHIBIT "C"
FORM OF GRANT DEED
[SEE FOLLOWING PAGES]
662/OI5610-0002
5 21345.5 a09/16113
EXHIBIT "D"
CERTIFICATE OF NON -FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real
property interest must withhold tax if the transferor is a foreign person. To inform the
transferee that withholding of tax is not required upon the disposition of a U.S. real
property interest in Barton SOCO WEST, INC., a Delaware corporation ("Seller"), the
undersigned hereby certifies the following on behalf of the Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Internal Revenue Code
and Income Tax Regulations);
2. Seller's U.S. employer identification number is ; and
3. Seller's office address is
Seller understands that this certification may be disclosed to the Internal Revenue
Service by the transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this certification and to the
best of my knowledge and belief it is true, correct and complete. I further declare that I
have authority to sign this document on behalf of Seller.
Date: 2013
"Seller"
BARTON LAND, LA QUINTA LLC,
a California limited liability company
By: _
Name:
582I015610-0 2
54213455 a09116113
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF LA QUINTA
78-495 Calle Tampico
La Quinta, California 92253
Attn: City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
(Exempt from Recordation Fee per Gov. Code § 27383)
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
BARTON LAND, LA QUINTA LLC, a California limited liability company (the "Grantor"),
hereby grants to CITY OF LA QUINTA, a California municipal corporation and charter
city (the "Grantee"), that certain real property ("Property") located in the City of
La Quinta, County of Riverside, State of California, described in the legal description
attached hereto as Attachment No. 1 and incorporated herein by this reference, subject
to all matters of record.
Date: , 2013
"Grantor"
BARTON LAND, LA QUINTA LLC,
a California limited liability company
By:
Name:
882101%10-0002
5 21395.5 a09116113
State of California )
County of Riverside )
W,
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.
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.
992/01 %10-0002
5421345.5 a09/16113 -2-
(Seal)
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF PROPERTY
The land situated in the City of La Quinta, in the County of Riverside, State of California,
described as follows:
8e2ro15610-0002 Attachment 1 to Grant Deed
5421345 5 a09/16113
GRANTEE'S ACCEPTANCE
This is to certify that the interest in real property conveyed by the Grant Deed
dated , 2013, from Barton Land, La Quinta LLC, a California
limited liability company (the "Grantor"), to CITY OF LA QUINTA, a California municipal
corporation and charter city ("City"), is hereby accepted by the undersigned officer or
agent on behalf of the City of La Quinta pursuant to authority conferred by Resolution
No. 2002-86, adopted by the City Council of the City of La Quinta on June 18, 2002,
and the City consents to recordation thereof by its duly authorized officer.
Dated:
By:
Frank J. Spevacek, City Manager
State of California
County of Riverside
we
Notary Public, personally appeared _
who proved to me on the basis of
before me, ,
(insert name and title of the officer)
satisfactory evidence
name(s) is/are subscribed to the within instrument and
he/she/they executed the same in his/her/thei
his/her/their signature(s) on the instrument the
r
to be the person(s)
acknowledged to r
authorized capacity(ies), and
person(s), or the entity upon b,
which the person(s) acted, executed the instrument.
whose
ne that
that by
-half of
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,
MV015610-0002
5421345.5 a09/16/13
(Seal)