CC Resolution 2018-006 La Fonda Property AcquisitionRESOLUTION NO. 2018-006
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA
QUINTA APPROVING A PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS BETWEEN THE CITY OF
LA QUINTA AND FRONTIER COMMUNICATIONS, FOR A
PORTION OF PROPERTY LOCATED AT 78150 AVENIDA LA
FONDA.
WHEREAS, City staff has negotiated a Purchase and Sale Agreement and Joint
Escrow Instructions ("Agreement") with Frontier Communications ("Seller"), "Exhibit A"
attached, pursuant to which City ("Buyer") is purchasing the Seller's certain real
property located at 78150 Avenida La Fonda comprising of approximately 6,700 square
feet of unimproved land for the negotiated price of $67,000, pursuant to the terms and
conditions set forth in the Agreement; and
WHEREAS, Buyer will make all improvement required to bring the property up to
City standards and will reconstruct the existing block wall along the new property line;
and
WHEREAS, this Resolution has been reviewed with respect to applicability of the
California Environmental Quality Act ("CEQA"), the State CEQA Guidelines (California
Code of Regulations, Title 14, Sections 15000 et seq., hereafter the "State CEQA
Guidelines"), and the City's environmental guidelines; and
WHEREAS, pursuant to Sections 15301, 15303, and 15304 of the State CEQA
Guidelines, the acquisition of the property is exempt from environmental review under
CEQA because the acquisition will result in a continuation of existing topographical
features with negligible or no expansion of use, and any future installation of new
facilities will be for open space improvements and involve only minor alterations in land
and landscaping.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LA
QUINTA 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, and that the acquisition is exempt from environmental review under CEQA.
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
Resolution No. 2018- 006
Purchase Aareement - Frontier Property
Adopted:February 2D, 2018
Page 2 of 2
of the Agreement approved hereby, and to thereafter sign the Agreement and accept
the property and recording of a grant deed on behalf of the City.
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 20th day of February 2018, by the following vote:
AYES: Council Members Fitzpatrick, Radi, Sanchez, Mayor Evans
NOES: None
ABSENT: Council Member Pena
ABSTAIN: None
•
LINDA EVANS, Mayor
City of La Quinta, California
ATTEST:
SUSAN MAYSELS, Cityerk
City of La Quinta, California
APPROVED AS TO FORM:
60,
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
taQ��,
M E M 0 R A N D U M
TO: Frank J. Spevacek, City Manager
FROM: Angela Ferreira
DATE: April 23, 2018
RE: Purchase and Sale Agreement - Frontier Property
Monika, please have Frank sign two copies of the Agreement. Please let me know if you have
any questions. Thank you.
Reauestina department shall check and attach the items below as aanrooriate:
_N/A_ Contract payments will be charged to account number:
_N/A_ Amount of Agreement, Amendment, Change Order, etc.: $2,500 per month
_N/A_ A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with
no reportable interests in LQ or reportable interests
_N/A A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant
does not meet the definition in FPPC regulation 18701(2).
Authoritv to execute this agreement is based upon:
Approved by the City Council on 2/20/18 Business Item 2
_N/A City Manager's signature authority provided under Resolution No. 2015-045 for budgeted expenditures
of $50,000 or less.
_N/A_ Initial to certify that 3 written informal bids or proposals were received and considered in selection
The followina required documents are attached to the aareement:
_N/A_ Insurance certificates as required by the agreement (approved by Risk Manager on date)
_N/A_ Performance bonds as required by the agreement (originals)
_N/A_ City of La Quinta Business License number
_N/A_ A requisition for a Purchase Order has been prepared (amounts over $5,000)
A copy of this Cover Memo has been emailed to Finance (Sandra)
Revised May 2017
AGREEMENT OF PURCHASE AND SALE AND
JOINT ESCROW INSTRUCTIONS
BY AND BETWEEN
FRONTIER CALIFORNIA INC., A CALIFORNIA CORPORATION,
AS SELLER,
&RED
THE CITY OF LA QUINTA, A CALIFORNIA MUNICIPAL CORPORATION AND
CHARTER CITY,
AS BUYER,
RELATING TO
A PORTION OF 78150 AVENIDA LA FONDA, LA QUINTA, CALIFORNIA
AGREEMENT OF PURCHASE AND SALE AND
JOINT ESCROW INSTRUCTIONS
This Agreement of Purchase and Sale and Joint Escrow Instructions ("Agreement"), dated
solely for reference purposes as of � L 15 2018, is made and entered into
by and between FRONTIER CALIFORNIA INC., a California corporation ("Seller") and THE
CITY OF LA QUINTA, a California municipal corporation and charter city ("Buyer"), with
reference to the following facts:
RECITALS
A. Seller is the owner of certain land, containing approximately 37,461 square feet,
located at 78150 Avenida La Fonda, in the City of La Quinta (the "City"), County of Riverside
(the "County"), State of California (the "State"), more particularly described on Exhibit A
attached hereto and incorporated herein (the "Land").
B. A certain portion of the Land, more particularly described in Exhibit A and
depicted in Exhibit A-1, both attached hereto and incorporated herein, together with any
improvements thereon, and Seller's interest, if any, in any rights, privileges, and easements
appurtenant to such portion, are hereinafter collectively referred to as the "Property".
C. Buyer desires to purchase the Property from Seller and Seller desires to sell the
Property to Buyer upon the terms, conditions and provisions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, including the payment of One
Hundred and 00/100ths Dollars ($100.00) by Buyer to Seller (the "Nonrefundable
Consideration"), which is independent nonrefundable consideration to Seller with respect to the
rights provided to Buyer under this Agreement, the receipt and adequacy of which are
acknowledged, Buyer and Seller agree as follows:
AGREEMENT
1. Definitions. For the purposes of this Agreement the following terms shall -be
defined as follows:
(a) "Closing" and "Close of Escrow" shall mean, and shall be deemed to have
occurred, on that date when the Grant Deed is recorded in the official records of Riverside County,
which shall be at least ten (10) days, but no more than sixty (60) days, after expiration of the Due
Diligence period. If the Closing falls on a weekend or federal or state holiday, then such date shall
be automatically extended to the next succeeding weekday that is not a federal or state holiday.
Closing and Close of Escrow are terms used interchangeably in this Agreement. Notwithstanding
the foregoing identified closing date(s), Buyer and Seller may mutually agree to extend the Closing
and Close of Escrow by memorializing such extended date in writing.
00016809.3
(b) "Closing Date" shall mean the date of the Closing.
(c) "County" shall mean Riverside County.
-1-
(d) "Demising Wall" and "Demising Wall Work" shall have the meanings ascribed
in Section 21 of this Agreement.
(e) "Deposit" shall mean One Thousand and 00/100ths Dollars ($1,000.00), which
shall be paid into Escrow on the Effective Date, plus any interest thereon, and which shall be
subject to refund as provided herein.
(f) "Due Diligence Period" shall mean the period of time from the Effective Date of
this Agreement until 5:00 p.m., California time, on the date that is thirty (30) days after the
Effective Date, during which Buyer must complete its due diligence as described in Section 4.
(g) "Effective Date" shall mean the date that this Agreement has been signed and
delivered by both Buyer and Seller.
(h) "Environmental Audit" shall have the meaning given thereto in Section 16.1
hereof.
(i) "Environmental Law" shall have the meaning given thereto in Section 16.1
hereof.
0) "Environmental Report(s)" shall mean the environmental reports, if any, listed on
the attached Exhibit C as part of "Seller's Deliveries".
(k) "Escrow" shall have the meaning given thereto in Section 3.2 of this Agreement.
(1) "Escrow Holder" shall mean, Four Seasons Escrow, Inc., Attention: Malia
Monroe, President.
(m) "Exhibits" shall mean, collectively, the following, each of which is attached hereto
and incorporated herein by this reference:
Exhibit A -
Legal Description of Land
Exhibit A-1
- Legal Description of Property
Exhibit B -
Form of Grant Deed
Exhibit C
- Seller's Deliveries
Exhibit D -
Demising Wall Work
(n) "FIRPTA Certificate" shall have the meaning given thereto in Section 7 of this
Agreement.
(o) "Grant Deed" shall have the meaning given thereto in Section 7 of this Agreement.
(p) "Hazardous Materials" shall have the meaning given thereto in Section 16.1 of
this Agreement.
(q) "Improvements" shall mean the improvements (if any) located on the Land.
00016809.3 -2-
(r) "Opening of Escrow" shall have the meaning given thereto in Section 3.2 of this
Agreement.
(s) "Permitted Exceptions" shall have the meaning given thereto in Section 5.1 of this
Agreement.
(t) "Purchase Price" is Sixty-seven Thousand and 00/100ths Dollars ($67,000.00).
(u) "Seller's Deliveries" shall have the meaning given thereto in Section 4.3.
(v) "Surviving Obligations" shall have the meaning given thereto in Section 4.5.
(w) "Title Company" shall mean Four Seasons Escrow, Inc.
(x) "Title Objection Deadline" shall be the same date as the expiration of the Due
Diligence Period.
(y) "Title Policy" shall have the meaning given thereto in Section 5.3 hereof.
2. Purchase and Sale. Subject to the terms and conditions set forth in this
Agreement, Seller agrees to sell to Buyer and Buyer agrees to buy from Seller, the Property. In
consideration of Seller's sale of the Property to Buyer, Buyer shall (a) pay to Seller the Purchase
Price at the Closing, and (b) perform all of Buyer's other obligations hereunder, including
construction of a Demising Wall on the Property, the various indemnities set forth herein, and any
other obligations of Buyer prior to Closing, whether or not the Closing occurs hereunder. In
consideration of Buyer's purchase of the Property from Seller, Seller shall perform all of Seller's
obligations hereunder.
3. Deposits: Escrow.
3.1 Deposits. Within five (5) days of the Effective Date, Buyer shall deliver; -'
(or caused to be delivered) into Escrow (as hereinafter defined) with the Escrow Holder the Deposit
of $1,000 in cash, by confirmed wire transfer of good and available funds. The Deposit shall be
placed in an interest -bearing account. Upon expiration of the Due Diligence Period, if Buyer has
not terminated this Agreement in accordance with Section 4.5, the Deposit shall be nonrefundable
to Buyer and the property of Seller, except as set forth in this Agreement. At the Closing, the Title
Company shall pay the Deposit to Seller in immediately available funds, -and the balance of the -
Purchase Price, subject to the prorations and adjustments provided for herein and less the
Nonrefundable Consideration, shall be deposited by Buyer into Escrow with the Title Company,
to be disbursed by Title Company to Seller.
3.2 Escrow. Within one (1) business day after the Effective Date, Buyer and
Seller shall open an escrow (the "Escrow") with the Escrow Holder by delivering to Escrow
Holder a fully executed copy of this -Agreement (the "Opening of Escrow'-'). • The -purchase,.and-.
sale of the Property shall be completed through the Escrow. Buyer and Seller agree°to execute kiy°
additional instructions reasonably required by the Escrow Holder that are consistent with this
Agreement. If there is a conflict between any printed escrow instructions and this Agreement, the
terms of this Agreement shall govern. If the Closing does not occur at the time and in the manner
OOO16809.3 -3 -
provided in this Agreement because of the default of one of the parties, then the costs of
cancellation, if any, shall be paid by the defaulting party. If the Closing does not take place for
any reason other than a default by one of the parties, including if the City properly elects to
terminate this Agreement pursuant to Section 4.5, then each of Buyer and Seller shall be
responsible for one-half share of any cancellation costs.
3.3 Refund or DenoSit. If Buyer properly elects to terminate this Agreement
pursuant to Section 4.5, Escrow Holder shall pay the Deposit to Buyer one (1) business day
following receipt of the termination notice from Buyer (if the current investment cannot be
liquidated in one day, the Deposit shall be paid to Buyer as soon as reasonably possible) and,
except for any Surviving Obligations, neither party shall have any further obligation or liability
hereunder.
3.4 Other Releases of the Deposit. Upon a termination of this Agreement
other than as described in Section 3.3 above, either party to this Agreement (the "Terminating
Party") may give written notice to the other party (the "Non -Terminating Party") and the Escrow
Holder of such termination and the reason for such termination. Such request shall also constitute
a request for the release of the Deposit to the Terminating Party, which must be strictly in
accordance with this Agreement. The Non -Terminating Party shall then have five (5) business
days in which to object in writing to the release of the Deposit to the Terminating Party. If the
Non -Terminating Party provides such a written objection, then the Escrow Holder shall retain the
Deposit until it receives written instructions executed by both Seller and Buyer as to the disposition
and disbursement of the Deposit, or until ordered by final court order, decree or judgment, which
is not subject to appeal, to deliver the Deposit to a particular parry, in which event the Deposit
shall be delivered in accordance with such notice, instruction, order, decree or judgment.
3.5 Escrow Holder's Riaht to Inters lead. Except as provided in Sections 3.3
and 3.4 above, Seller and Buyer mutually agree that in the event of any controversy regarding the
Deposit, unless mutual written instructions are received by Escrow Holder directing the Deposit's
disposition, the Escrow Holder shall not take any action, but instead shall await the disposition of-..-,; -
any proceeding relating to the Deposit or, at the Escrow Holder's option, Escrow Holder may
interplead all parties and deposit the Deposit with a court of competent jurisdiction in which event
the Escrow Holder may recover all of its court costs and reasonable attorneys' fees. The non -
prevailing party in any such interpleader action shall be solely obligated to pay such costs and fees
of Escrow Holder, as well as the reasonable attorneys' fees of the prevailing party in accordance
with the provisions of this Agreement. , . , .. , . _ -
4. Buver's Investigation of the Property.
4.1 investigation Period. Commencing on the Effective Date and continuing
until the expiration of the Due Diligence Period, Buyer, including all agents-, representatives -and
other persons designated by Buyer, at Buyer's sole cost and expense, shall perform such
investigations and review_of.the, Property, title matters, Seller's Deliveries,.-.and-such.:othdr.maiters
as.Buyer sees.fit. ,Buyer shall.have.the right, upon reasonable prior writtennoticc-.to:Seller4and,_.i3- .Y
subject to Section 4.4, to enter on any portion of the Property for the purpose of investigation,
discovery and non-invasive testing of the Property that Buyer determines to be necessary or
appropriate, including, without limitation, surveying and environmental studies. Any invasive
00016809.3 -4-
testing of the Property, including any "Phase II" environmental studies, shall be subject to Seller's
prior written approval pursuant to Section 4.4(b) below.
4.2 Natural Harvard Disclosure. No later than five (5) business days after the
Effective Date, Seller will provide, or will cause Escrow Holder to provide, Buyer with a Natural
Hazard Statement, issued by a reputable provider of such statements. Buyer acknowledges and
agrees that (i) Buyer shall review the Natural Hazards Statement; and (ii) by its delivery of the
Natural Hazards Statement to Buyer, Seller shall have fully complied with the disclosure
obligations relating to seismic, geologic and other natural hazards imposed on Seller by the
following California statutory provisions: Government Code Sections 8589.4; 8589.3;
Government Code Sections 51183.4, 51183.5 (Fire Hazard Severity Zone); Public Resource Code
Section 2621.9 (Earthquake Fault Zone); Public Resource Code Section 2694 (Seismic Hazard
Zone); and Public Resource Code Section 4136 (Wildland Area). Buyer acknowledges and agrees
that upon Closing, Buyer will have had the opportunity to independently evaluate and investigate
whether any or all of such Natural Hazards affect the Property and Seller shall have no liabilities
or obligations with respect thereto. Without limiting the foregoing, Buyer acknowledges and
agrees that Buyer knowingly and intentionally waives any disclosures, obligations or requirements
of Seller with respect to Natural Hazards and the related statutory provisions, and Seller shall have
no monetary liability to Buyer with respect thereto. Buyer represents that Buyer has experience
acquiring commercial real estate and conducting due diligence, and that this waiver has been
negotiated and is an essential aspect of the bargain between the parties.
4.3 Seller's Deliveries. Within three (3) business days after the Effective Date,
Seller shall provide to Buyer, by electronic "CD" copy or by physical copies, or by providing
access to a due diligence website, all of the items listed on the attached Exhibit C, to the extent in
Seller's possession (the "Seller's Deliveries"). Seller makes no representation or warranty with
respect to the documents that Seller may or may not have in its possession, or with respect to the
content or accuracy of such documents provided to Buyer for review. Any information provided
by Seller which is privileged, confidential or proprietary, including, but not limited to: internal
memoranda; analyses_ - and: -business plans; financial information; and 1 correspondence and -other = .
materials to or from Seller's attorneys and potential third party buyers, shall be marked confidential
and shall not be disclosed by Buyer to any other person unless if disclosure is required by any
applicable law or by any administrative or judicial process or order. Buyer expressly agrees that
Seller is furnishing copies of all such documents and information to Buyer as described above for
informational purposes only and without representation or warranty as to the accuracy or
completeness of the contents of such materials. Buyer covenants and agrees �that• it shall not rely
on such documents and information and shall conduct its own due diligence on all matters referred
to in such documents and information, or otherwise relating to the Property.
4.4 Entry During Due Diligence Period. Buyer and Buyer's representatives,
agents and contractors shall have the right, at reasonable times and upon reasonable notice to Seller
(which notice must describe the scope of the planned investigations), to enter upon the Property,
in connection with -Buyer's proposed purchase -of the Properly: However,•Buyeragrees =tNA:
(a) the persons or entities performing such tests and investigations shall
be properly licensed and qualified and shall have obtained all appropriate permits therefor;
00016909.3 -5-
(b) Seller shall have the right of prior written approval (which shall be
reasonably granted or withheld) of any proposed physical testing, invasive testing, or drilling;
(c) Buyer shall advise Seller at least forty-eight (48) hours in advance
of the dates of all tests and investigations and shall schedule all tests and investigations during
normal business hours whenever feasible unless otherwise agreed to by the Parties in writing;
(d) Seller shall have the right to have a representative of Seller
accompany Buyer and Buyer's representatives, agents or designees while they are on the Property;
(e) Buyer shall indemnify, defend and hold Seller free and harmless
from any loss, injury, damage, claim, lien, cost or expense including reasonable attorneys' fees
and costs at trial and all appellate levels, arising out of a breach of this Agreement by Buyer in
connection with the inspection of the Property during the Due Diligence period due to the exercise
by Buyer or Buyer's agents of the right of access described in this Section. This indemnification
obligation shall survive the Closing or the termination of this Agreement;
(f) Buyer shall restore the Property to the same condition as previously
existed prior to Buyer's inspection at Buyer's sole cost and expense. This obligation shall survive
the termination of this Agreement if this Agreement is terminated. Until restoration is complete,
Buyer shall take all steps necessary to ensure that any conditions on the Property created by
Buyer's testing shall not interfere with the normal operation of the Property or create any
dangerous, unhealthy, unsightly or noisy conditions on the Property; and
(g) Buyer agrees that, in making any physical and environmental
inspections of the Property, including any due diligence activities at or about the Property, Buyer
shall maintain (i) commercial general liability insurance on an occurrence basis, including
contractual liability coverage (designating the indemnity provisions of subsection (g) above) and
broad form property damage endorsement coverage, providing that Buyer is the named insured
and that Seller, Seller's property manager, and Broker are additional insureds, and providing
liability limits of not less than $1,000,000 combined single limit per occurrence with respect to
bodily and personal injury, death and property damage and $2,000,000 in the aggregate,
(ii) workmen's compensation insurance at statutory limits, including employer's liability
insurance in an amount not less than $1,000,000 as required by law, and (iii) for any of Buyer's
consultants who conduct environmental inspections of the Property, professional liability
insurance- of not less than $1,000,000. Buyer shall provide Seller with Certificates of Insurance in
form reasonably satisfactory to Seller which evidences such insurance prior to obtaining access to
the Property. Such insurance shall contain a waiver of subrogation provision with respect to Seller.
4.5 Buyer's Termination Right During Due Diligence Period, Release of
Deposit. Buyer shall have the right to -terminate this Agreement prior to the expiration of the -Due
Diligence Period, by written notice to Seller to such effect, if Buyer determines not to purchase
the Property..- if Buyer fails tfl, terminate this Agreement by written notice •to:Seller.due�to any
matter raised during $dyer's investigation, including without limitation, Buyer's -financing; by- the :. • ..y. �. =
expiration of the Due Diligence Period, then Buyer shall be deemed to have approved all matters
relating to the Property. If Buyer terminates this Agreement pursuant to this Section 4.5 prior to
the expiration of the Due Diligence Period, then Escrow Agent shall return the Deposit in
00016809.3 -6-
accordance with Section 3.3, subject to any claims made by Seller under Sections 4.4(e) above and
21 below. Buyer shall also provide Seller with copies of any third party reports obtained by Buyer
if Buyer terminates the Agreement under this Section, except for any Environmental Audits, which
are governed by Section 16.3, and except for any information which is privileged, confidential or
proprietary. Upon such termination, neither party shall have any further liability to the other,
except for any obligations that are intended to survive such termination, including Buyer's specific
indemnity obligations under Section 4.4(e), Buyer's confidentiality obligations under Section
23.12, and obligations under Section 3.5 (the "Surviving Obligations").
5. Condition of Title.
5.1 Permitted Exceptions. At the Close of Escrow, Seller's interest in the
Property shall be conveyed to Buyer by Seller by the Grant Deed, subject to the following matters
("Permitted Exceptions"):
(a) a lien for real property taxes and assessments not then delinquent;
(b) matters affecting the condition of title to the Property created by or
with the written consent of Buyer;
(c) zoning or permit conditions;
(d) any matters which would be shown by an inspection, a survey of the
Property or by inquiry of persons in possession of the Property;
(e) all matters of record recorded prior to the Closing Date, it being
agreed that Buyer is assuming the risk of any new exceptions arising after the Closing Date, and
Seller shall be responsible for any monetary liens imposed after the Effective Date and prior to the
Closing Date ("Monetary Liens"), and subject to Seller's obligations under Section 13; and
(f) the matters shown in the Report (as defined below).
The parties agree that (i) Seller makes no express or implied warranties regarding the
condition of title to the Property, (ii) Buyer shall rely on the Title Policy for protection against any
title defects, (iii) Seller shall have no obligation to cure any title obligations, and (iv) Seller shall
have no liability to Buyer for any title matters except to remove the Monetary Liens.
5.2 Title Review. Seller shall obtain and deliver to Buyer, not later than three
(3) business days following the Effective Date, a current title report (the "Report") from Title
Company. If the Report and/or any survey obtained by Buyer discloses any matter which is
disapproved by Buyer (each a "Title Defect"), Buyer shall have until the Title Objection Deadline _
to notify Seller in writing of "any -such Title Defect. Seller shall have until three (3) business days
after end of the Due Diligence Period to notify Buyer in writing that Seller shall, on or prior to
Closing , cure or remove the Title Defect or obtain an endorsement to Buyer's title insurance policy - "1
insuring over the Title Iyefect. 7f agreed to in writing by the Parties, the Closing shall be exYended
as necessary to afford Seller the opportunity to cure or remove any such Title Defect; provided,
however, that such extension shall not exceed thirty (30) days. Seller's failure to deliver such
written notice on or prior to the three (3) business days after the expiration of the Due Diligence
00016809.3 - / `
Period shall be deemed Seller's election not to cure or remove such Title Defect or obtain an
endorsement insuring over such Title Defect. If Seller elects (or is deemed to have elected) not to
cure or remove, or cannot cure or remove, any such Title Defect, or obtain a title endorsement
insuring over such Title Defect, then Seller shall have no liability to Buyer therefor, but Buyer
may terminate this Agreement as provided in Section 4.5, and the Deposit shall be refunded to
Buyer. If Buyer does not terminate this Agreement, which shall be confirmed in writing from
Buyer that Buyer elects to proceed to Close of Escrow, then Buyer shall be deemed to have agreed
to take title subject to such Title Defects with no reduction in the Purchase Price, and all Title
Defects shall be Permitted Exceptions.
5.3 Title Policy. At the Close of Escrow, Seller shall cause the Title Company
to issue to Buyer a Standard Coverage Policy (e.g., CLTA) with coverage in an amount equal to
the Purchase Price showing Seller's interest in the Property vested in Buyer subject only to the
Permitted Exceptions and the standard printed exceptions and conditions in the policy of title
insurance (the "Title Policy"). If Buyer elects to obtain any additional endorsements or an
extended coverage policy, the additional premium and costs of survey for the extended coverage
policy and the cost of any endorsements shall be at Buyer's sole cost and expense; however,
Buyer's election to obtain an extended coverage policy shall not delay the Closing and Buyer's
inability to obtain an extended coverage policy or any such endorsements shall not be deemed to
be a failure of any condition to Closing.
6. Conditions to the Close of Escrow.
6.1 Conditions Precedent to Buyer's Obligations. The Close of Escrow and
Buyer's obligations with respect to this transaction are subject to the following conditions
precedent:
(a) Seller having duly performed each and every obligation to be
performed by Seller hereunder; and
(b) the Title Company shall be prepared to issue the Title Policy in favor
of Buyer, subject to the Permitted Exceptions and any standard pre-printed policy exceptions; and
(c) Seller shall have delivered to Escrow Holder, on or before the
Closing Date, the items referred to in Section 7.1; and
(d) Buyer and Seller approving modifications, if any, to the plans and
specifications for the Demising Wall and Demising Wall Work from those identified in Exhibit D
attached to this Agreement.
The conditions set forth in this Section 6.1 are solely for the benefit of Buyer and may be.
waived only by Buyer. At all times Buyer has the right to waive any condition, and such waiver
or waivers must be in writing to Seller.
6.2 Conditions Precedent to Seller's ObliLyations. The Close of Escrow and `
Seller's obligations with respect to this transaction are subject to the following conditions
precedent:
00016809.3 -8-
(a) Buyer's delivery to Escrow Holder on or before the Closing, of the
Purchase Price, Buyer's share of closing costs and the other items described in Section 7.2;
(b) Buyer having duly performed each and every agreement to be
performed by Buyer hereunder; and
(c) Buyer and Seller approving modifications, if any, to the plans and
specifications for the Demising Wall and Demising Wall Work from those identified in Exhibit D
attached to this Agreement.
The conditions set forth in this Section 6.2 are solely for the benefit of Seller and may be
waived only by Seller. At all times Seller has the right to waive any condition, and such waiver
or waivers must be in writing to Buyer.
6.3 Subdivision Map Act Comitliance --- Exemution for Sale to Buver as
Public Entity. The parties acknowledge that California Government Code Section 66426.5
provides that a conveyance to a public entity is not required to comply with the California
Subdivision Map Act ("CSMA"). Because Buyer is a public entity, the parties acknowledge and
agree that the transaction contemplated by this Agreement is not subject to the CSMA. Buyer
makes no representations or warranties in this Agreement regarding Seller's obligations under the
CSMA except to the extent that Buyer agrees that the transaction contemplated by this Agreement
is exempt from the CSMA. Buyer similarly makes no representations or warranties regarding the
condition of the Land relative to any applicable State or local requirements, including any
applicable City Code requirements.
7. Deliveries to Escrow Holder.
7.1 By Seller. On or before Closing, Seller shall deliver or cause to be delivered
to Escrow Holder the following items:
_ (a) --A Grant Deed ("Grant Deed"), in the- form attached to , this
Agreement as Exhibit B, duly executed and acknowledged by Seller and in recordable form,
conveying the Property to Buyer, subject to the Permitted Exceptions;
(b) A Transferor's Certificate of Non -Foreign Status ("FIRPTA
Certificate") properly executed by Seller;
(c) A properly executed California Form 593-C or other evidence
sufficient to establish that Buyer is not required to withhold any portion of the Purchase Price
pursuant to Sections 18805 and 26131 of the California Revenue and Taxation Code;
(d) A settlement statement (the "Settlement Statement") setting forth
prorations, taxes and other monies to be paid by each party at Closing, as described in Sections 8
and 9, prepared by Escrow Holder in form and substance satisfactory to the parties -'hereto, and
executed by Seller; and` -
00016809.3 -9-
(e) Such corporate resolutions, certificates of good standing and/or
other corporate or partnership documents relating to Seller as are reasonably required by Escrow
Holder in connection with this transaction.
7.2 By Buyer. On or before Closing, Buyer shall deliver or cause to be
delivered to Escrow Holder the following items:
(a) The balance of the Purchase Price, after crediting Buyer for the
Deposit, in accordance with Section 3;
(b) The amount due Seller, if any, after the prorations are computed in
accordance with Section 9;
(c) The Settlement Statement, executed by Buyer; and
(d) Such corporate resolutions, certificates of good standing and/or
other corporate or partnership documents relating to Buyer as are reasonably required by Escrow
Holder in connection with this transaction.
7.3 Bv Buyer and Seller. Buyer and Seller shall each deposit such other
instruments consistent with this Agreement as are reasonably required by Escrow Holder or
otherwise required to close escrow. In addition, Seller and Buyer hereby designate Escrow Holder
as the "Reporting Person" for the transaction pursuant to Section 6045(e) of the Internal Revenue
Code.
8. Closine Costs and Expenses.
8.1 Seller. Seller shall pay Seller's share of proration as described in Section 9
below.
8.2 Buyer. Buyer shall pay (a) all premiums for the Title Policy, inclading_a
extended coverage and any endorsements requested by Buyer, in connection with the Title Policy,
(b) all escrow fees and recording costs, and (c) Buyer's share of prorations as described in
Section 9 below.
8.3 Transaction Costs. Buyer and Seller shall each pay all legal and
professional fees and fees of other consultants incurred by Buyer and Seller, respectively. • - -
9. Prorations. The following prorations shall be made between the parties at Closing,
as of midnight on the day preceding the Closing, except as otherwise specified in this Section.
9.1 Taxes and Assessments. -All non -delinquent real estate -taxes and
assessments on the Property shall be prorated as of the Close of Escrow based on the actual current
tax bill.for -the Property.-- All delinquent --taxes and all _delinquent assessments,:_if =any',: assessed.
against the Property- shall be paid at the Close of Escrow by Seller. All supplementaltaxesipursuant
to this transaction that are billed or assessed after the Close of Escrow shall be the responsibility
of Buyer. If Seller has filed real estate tax appeals with respect to the assessed value of the
Property, Buyer agrees to cooperate with such appeals, including, but not limited to, the prompt
00016809.3 -10-
signing of related documentation and provision of requested information. Seller shall retain all
rights to any real estate tax appeals or refunds relating to the period prior to the Close of Escrow.
Any real estate tax refunds received by Buyer, which are allocable to the period prior to Close of
Escrow, shall be paid by Buyer to Seller within ten (10) days of Buyer's receipt of such tax refunds.
9.2 Proration Schedule. At least three (3) days prior to Closing, Seller shall
provide to Buyer a draft Settlement Statement for Buyer's review and approval, which approval
shall not be unreasonably withheld or delayed.
9.3 Post Closine Adiustments. Within one hundred eighty (180) days after
the Closing, Buyer shall have the right to prepare and present to Seller for its review and approval
a calculation of the proration of any other items of income or expense prorated under this
Section whose precise amounts could not be determined prior to Closing. Either party shall be
entitled to a post -Closing adjustment for any incorrect proration or adjustment in accordance with
this Section. In each case, the parties shall make the appropriate adjusting payment between them
within thirty (30) days after presentment to Seller of Buyer's calculation. Seller may inspect
Buyer's books and records related to the Property to confirm the calculation made by Buyer. No
further adjustments, payments, or credits with respect to the prorations for the Property shall accrue
after the applicable dates listed above. All prorations shall be made as of the date of Close of
Escrow based on a three hundred sixty-five (365)-day year or a thirty (30)-day month, as
applicable.
9.4 Survival. This Section 9 shall survive the Closing, and no claims for
prorations shall be made unless Seller or Buyer notifies the other of a specific claim or right under
this Section 9 prior to the date specified in Section 9.3 above.
10. Sale of Provertv "As -Is".
10.1 No Oral Agreements or Representations; As -Is Purchase. BUYER
REPRESENTS, WARRANTS AND COVENANTS TO SELLER -THAT BUYER SHALL,
DURING THE DUE DILIGENCE -PERIOD AND PRIOR TO CLOSING;1NDEPENDENTLY"
AND PERSONALLY INSPECT THE PROPERTY AND IMPROVEMENTS, AND THAT
BUYER HAS ENTERED INTO THIS AGREEMENT BASED UPON -ITS RIGHTS AND
INTENTIONS TO MAKE SUCH PERSONAL EXAMINATION AND INSPECTION. BUYER
AGREES THAT BUYER SHALL ACCEPT THE PROPERTY, IN ITS THEN CONDITION AS -
IS AND WITH ALL ITS FAULTS. NO PERSON ACTING ON BEHALF OF SELLER IS
AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF, BUYER ACKNOWLEDGES
AND AGREES THAT, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, IF
AT ALL, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES
AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR -CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE,
OF, AS TO., _CONCERNIN - OR WITH RESPECT -TO:.
(I) THE VALUE OF THE PROPERTY;
(II) THE INCOME TO BE DERIVED FROM THE PROPERTY;
00016809.3 -1 1 -
(III) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON, INCLUDING ANY
LEASING OR DEVELOPMENT OF THE PROPERTY;
(IV) THE HABITABILITY, MERCHANTABILITY, MARKET-
ABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY;
(V) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF
REPAIR OF THE PROPERTY;
(VI) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY;
(VII) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY;
(VIII) THE MANNER, CONDITION OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY;
(IX) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE LAWS, RULES, REGULATION, ORDERS OR
REQUIREMENTS, INCLUDING BUT NOT LIMITED TO, THE AMERICANS WITH
DISABILITIES ACT OF 1990 OR ANY OTHER LAW, RULE OR REGULATION
GOVERNING ACCESS BY DISABLED PERSONS, THE FEDERAL WATER POLLUTION
CONTROL ACT, THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT,
THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R.,
PART 261, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980, AS AMENDED, THE RESOURCES CONSERVATION AND -
RECOVERY ACT OF-,19-765--THE-CLEAN WATER ACT-, THE SAFE -DRINKING WATER- - '
ACT, THE HAZARDOUS MATERIALS TRANSPORTATION ACT, THE TOXIC
SUBSTANCE CONTROL ACT, AND REGULATIONS PROMULGATED UNDER ANY OF
THE FOREGOING;
(X) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS
AT, ON, UNDER, OR ADJACENT TO THE PROPERTY;
(XI) THE CONTENT, COMPLETENESS OR ACCURACY OF THE
SELLER'S DELIVERIES, INCLUDING ANY INFORMATIONAL PACKAGE, OR OTHER
MATERIALS PREPARED BY SELLER; _
(XII) THE :CONFORMITY OF, THE IMPROVEMENTS (IF ANY) TO
ANY PLANS OR SPECIRCATIONS FOR THE PROPERTY, INCLUDTNG'ANY PLANS V;D"
SPECIFICATIONS 'CHAT MAY HAVE BEEN OR MAY BE PROVIDEITTOBUYER;
W016809.3 -12 -
(XIII) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT
OR FUTURE APPLICABLE ZONING OR BUILDING REQUIREMENTS, AND ANY
VIOLATIONS OF SUCH REQUIREMENTS;
(XIV) SUFFICIENCY OF ANY UNDERSHORING;
(XV) SUFFICIENCY OF ANY DRAINAGE;
(XVI) THE FACT THAT ALL OR A PORTION OF THE PROPERTY
MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE OR LOCATED IN AN
ALQUIST-PRIOLO SPECIAL STUDY ZONE;
(XVII) THE EXISTENCE OR LACK OF VESTED LAND USE,
ZONING OR BUILDING ENTITLEMENTS AFFECTING THE PROPERTY, OR
(XVIII) WITH RESPECT TO ANY OTHER MATTER CONCERNING
THE PROPERTY EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED HEREIN,
INCLUDING ANY AND ALL SUCH MATTERS REFERENCED, DISCUSSED OR
DISCLOSED IN ANY DOCUMENTS DELIVERED BY SELLER TO BUYER, IN ANY
PUBLIC RECORDS OF ANY GOVERNMENTAL AGENCY OR ENTITY OR UTILITY
COMPANY, OR IN ANY OTHER DOCUMENTS AVAILABLE TO BUYER.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY AND REVIEW INFORMATION AND
DOCUMENTATION AFFECTING THE PROPERTY, BUYER IS RELYING SOLELY ON ITS
OWN INVESTIGATION OF THE PROPERTY AND REVIEW OF SUCH INFORMATION
AND DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY SELLER. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT
ANY INFORMATION MADE AVAILABLE TO BUYER OR PROVIDED OR TO BE
PROVIDED -BY -OR ON BEHALF OF SELLER WITH RESPECT TO THE -PROPERTY WAS --
OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE,ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS- OF
SUCH INFORMATION EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN. BUYER
AGREES TO FULLY AND IRREVOCABLY RELEASE ALL SUCH SOURCES OF
INFORMATION AND PREPARERS OF INFORMATION AND DOCUMENTATION TO THE
EXTENT SUCH SOURCES OR PREPARERS ARE SELLER, OR ITS EMPLOYEES, --
OFFICERS, DIRECTORS, PARTNERS, REPRESENTATIVES, AGENTS, SERVANTS,
ATTORNEYS, AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, SUCCESSORS OR
ASSIGNS FROM ANY AND ALL CLAIMS THAT THEY MAY NOW HAVE OR
HEREAFTER ACQUIRE AGAINST SUCH SOURCES AND-.: PREPARERS OF
INFORMATION FOR ANY COSTS, LOSS, LIABILITY, DAMAGE, EXPENSE, DEMAND,
ACTION OR -CAUSE_ -,_OF _ACTION .ARISING FROM. _SUCH. INFORMATION - OR_ ;
DOCUMENTATION, SELLER. IS NOT LIABLE OR BOUND IN ANY MANNER:BY ANY .-� ..
ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY
ANY OF THE FOREGOING ENTITIES AND INDIVIDUALS OR ANY OTHER INDIVIDUAL
00016809.7 -13 -
OR ENTITY. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY AS
PROVIDED FOR HEREIN IS MADE ON AN "AS -IS" CONDITION AND BASIS WITH ALL
FAULTS, AND THAT SELLER HAS NO OBLIGATIONS TO MAKE REPAIRS,
REPLACEMENTS OR IMPROVEMENTS EXCEPT AS MAY OTHERWISE BE EXPRESSLY
STATED IN THIS AGREEMENT.
10.2 Release of Seller.
(a) Except as expressly provided in this Agreement, Buyer and anyone
claiming by, through or under Buyer hereby fully and irrevocably releases Seller, and its members,
managers, partners affiliates, parent companies and subsidiaries, and each of their respective
employees, officers, directors, partners, shareholders, representatives, agents, servants, attorneys,
successors and assigns, and all persons, firms, corporations and organizations acting on the behalf
of each of the foregoing, each a ("Seller Party", and collectively, the "Seller Parties") from any
and all claims that it may now have or hereafter acquire against any Seller Party for any costs, loss,
liability, damage, expenses, demand, action or cause of action arising from or related to the
condition of the Property, including, without limitation, (i) environmental matters, (ii) matters
described or referred to in the Environmental Report(s) or in any Environmental Audit obtained
by Buyer; (iii) matters reasonably discoverable by prudent investigation during the Due Diligence
Period; (iv) matters that are of public record; (v) matters otherwise disclosed by Seller to Buyer or
discovered by Buyer at any time prior to the Closing; (vi) the presence of Hazardous Materials in,
on, about or under the Property or which have migrated from adjacent lands to the Property or
from the Property to adjacent lands, and (vii) the matters described in Section 10.1 above. This
release includes any claims made by third parties.
(b) THE ABOVE RELEASE INCLUDES CLAIMS OF WHICH
BUYER IS PRESENTLY UNAWARE OR WHICH BUYER DOES NOT PRESENTLY
SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT
BUYER'S RELEASE TO SELLER. BUYER SPECIFICALLY WAIVES THE PROVISION OF
CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS: -
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR EXPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM _
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
(c) IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE
PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATIONS TO REFLECT THAT ALL OF
THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY BUYER SUBJECT TO THE
FOREGOING.
Baryei s Initials Seller's Initials
00016809 3 -14-
10.3 Survival. The covenants, terms, conditions, releases and waivers in
Sections 10.1 and 10.2 above shall be binding on Buyer only after the Close of Escrow and only
if title has vested with Buyer. This Section 10 shall survive the Closing and shall not merge with
the Grant Deed.
11. Disbursements and Other Actions by Escrow Holder. At the Close of Escrow,
Escrow Holder shall promptly undertake all of the following:
11.1 Funds. Disburse all funds deposited with Escrow Holder by Buyer in
payment of the Purchase Price for the Property as follows:
(a) deliver to Seller the Purchase Price, less the amount of all items,
costs and prorations chargeable to the account of Seller in accordance with this Agreement; and
(b) disburse the remaining balance, if any, of the funds deposited by
Buyer to Buyer, less amounts chargeable to Buyer.
11.2 Recording. Cause the Grant Deed to be recorded with the Recorder's office
for the County and obtain conformed copies of the recorded Grant Deed for distribution to Buyer
and Seller.
11.3 Title Policy. Direct the Title Company to issue the Title Policy to Buyer.
11.4 Delivery of Documents to Buyer or Seller. Deliver to Buyer the
documents (or copies thereof) deposited into Escrow by Seller. Deliver to Seller the documents
(or copies thereof) deposited into Escrow by Buyer.
12. Representations and Warranties.
12.1 Representations and Warranties of Seller. Seller represents and warrants
to Buyer the following, as of the- Effective Date:
(a) To Seller's knowledge, Seller has not received written notice from
any governmental agency of any violation of Environmental Laws related to the Property.
(b) To Seller's knowledge, Seller has not received written notice of any
litigation relating to the Property except as disclosed to Buyer in -writing. - - - . -- , . • --- ; ' - • • -
(c) To Seller's knowledge, Seller has not received any written notice
from any governmental authority of any pending or threatened condemnation or similar proceeding
or pending public improvements in or adjoining the Property which will adversely affect the
Property.
(d) Seller;is duly organized and validly existing under the laws of the
State of California witla. the full -.power and authority to -perform its obligations hereunder;
(e) The execution, delivery and performance by Seller of this
Agreement has been duly and validly authorized by all requisite action on the part of the Seller.
00016809-7 -1 5 -
This Agreement constitutes the legal, valid and binding obligation of Seller, enforceable against it
in accordance with its terms.
(f) None of the execution, delivery or performance of this Agreement
by Seller does or will, with or without the giving of notice, lapse of time or both, violate, conflict
with, constitute a default or result in a loss of rights under or require the approval or waiver of any
entity under (1) the organizational documents of Seller or any material agreement, instrument or
other document to which Seller is a party or by which Seller is bound, or (2) any judgment, decree,
order, statute, injunction, rule, regulation or the like of a governmental unit applicable to Seller.
As used herein "to the best of Seller's knowledge," "Seller's knowledge" or "Seller has not
received written notice" shall mean the actual knowledge of or receipt of written notice by Seller
or any duly authorized representative of Seller. There shall be no duty imposed or implied to
investigate, inspect or audit any such matters, and there shall be no personal liability on the part of
any such duly authorized representatives.
12.2 Representations and Warranties of Buver. Buyer represents and
warrants to Seller the following, which shall be true and correct as of the Effective Date hereof
and as of the Closing Date:
(a) Buyer is the City of La Quinta, a California municipal corporation
and charter city, duly organized and validly existing under the laws of the State of California with
the full power and authority to perform its obligations hereunder.
(b) The execution, delivery, and performance by Buyer of this
Agreement has been duly and validly authorized by all requisite action on the part of the Buyer.
This Agreement constitutes the legal, valid and binding obligation of Buyer, enforceable against
it in accordance with its terms.
(c) To Buyer's knowledge, none of the execution, delivery or
performance of this Agreement by Buyer doesorwill, with or without the -giving of notice, lap
of time or both, violate, conflict with, constitute a default or result in a loss of rights under or
require the approval or waiver of any entity under (i) the organizational documents of Buyer or
any material agreement, instrument or other document to which Buyer is a party or by which Buyer
is bound, or (ii) any judgment, decree, order, statute, injunction, rule, regulation or the like of a
governmental unit applicable to Buyer. As used herein `Buyer's knowledge" shall mean the actual
knowledge of or receipt of written notice by Buyer or any duly authorized representative of Buyer.
There shall be no duty imposed or implied to investigate, inspect or audit any such matters, and
there shall be no personal liability on the part of any such duly authorized representatives.
12.3 Subsequent. Variances in Representations and Warranties of Seller:
(a) In the event at any time prior to Closing, Seller or Buyer learns or
has reason to believe that any of the, representations and warranties by Seller under Section 12.1
were not accurate when made, such party shall promptly notify the other party by a written notice
(a "Variance Notice") and, in the Variance Notice, specify the factors rendering or likely to render
such representation and warranty inaccurate (the "Variance"). Within ten (10) days of delivering
or receiving a Variance Notice, Seller shall deliver to Buyer written notice whether it has elected
00016809.3 -16-
to cure the underlying facts or circumstances causing the Variance (it being agreed that the failure
to deliver such notice shall be deemed Seller's election not to cure the Variance). If Seller elects
to cure the Variance, Seller will exercise reasonable efforts to effectuate the cure on or before the
Closing and Closing may be delayed by Seller as necessary for a period not to exceed thirty (30)
days while it attempts to cure the same. If Seller ultimately fails to cure such Variance, then the
parties shall treat such failure as if Seller had elected not to cure the Variance pursuant to
subSection 12.3(b) below.
(b) If Seller elects not to cure the Variance and the Variance is material
(material shall be that the cost to cure the Variance is in excess of $50,000.00), this Agreement
shall, at the sole election of Buyer exercisable by written notice to Seller delivered not later than
five (5) days after Seller has, or has been deemed to have, elected not to cure the Variance, be
terminated, whereupon the Deposit shall be returned to Buyer and the parties shall have no further
rights or obligations hereunder except with respect to the Surviving Obligations. However, if
Buyer does not terminate this Agreement, the representations and warranties in Section 12.1 shall
be deemed to be modified by the Variance.
12.4 Buyer's Knowledge as to Representations and Warranties of Seller.
Notwithstanding anything in this Agreement to the contrary, if (a) on the Effective Date Buyer has
knowledge that any of Seller's representations or warranties set forth in Section 12.1 are untrue in
any respect, then the breach by Seller of the representations or warranties as to which Buyer has
such knowledge shall be deemed waived by Buyer, and Seller shall not be in default hereunder
and shall have no liability to Buyer or its successors or assigns in respect thereof, and (b) after the
Effective Date and prior to Closing, Buyer obtains knowledge that any of Seller's representations
or warranties set forth in this Agreement, or any of Seller's representations or warranties made in
any documents delivered by Seller in connection with the Closing, are untrue in any respect, then
Seller shall not be in default hereunder and shall have no liability to Buyer or its successors or
assigns in respect thereof following the Closing for the breach of such representations or
warranties. For purposes of this Section 12.4, Buyer shall be deemed to have or to have obtained
knowledge of any such matter or thing only if such matter or thing (i)_is set forth in the Seller's
Deliveries, or any other document delivered to and/or made available for review by Buyer, (ii) was
set forth in any written studies or reports furnished to Buyer including, without limitation, the
Report and any Environmental Reports, (iii) was set forth in any letter, memorandum, or other
written communication provided to or otherwise made available for inspection by Buyer or
Buyer's attorneys, or (iv) was otherwise within the actual knowledge of Buyer.
12.5 Survival of Representations and Warranties. The representations and
warranties set forth in Sections 12.1 and 12.2 above shall survive Closing for a period of two (2)
years (the "Survival Period"). No claim for a breach of any representation or warranty in this
Section 12 shall be actionable or payable (i) unless and until the valid claims for all such breaches
collectively aggregate more than Three Thousafi&and no/100 Dollars ($3,000.00)' and (ii) unless
written notice containing a description of the specific nature of such breach shall have been given
to the other party prior to the expiration of the Survival Period, and anaction-shall have been, _
commenced in a court having jurisdiction within thirty (30) days after the -expiration of the Survival
Period. In no event shall the total liability of Seller to Buyer for all breaches of all representations
and warranties of Seller in this Agreement exceed the amount of One Hundred Twelve Thousand
00016809.3 -17-
and no/100 Dollars ($112,000.00). Seller's liability under this Section shall be further limited as
described in Section 23.10.
13. Seller's Pre -Closing Covenants. As long as this Agreement remains in full force
and effect, and provided Buyer is not in default under this Agreement, Seller hereby covenants as
follows:
(a) Without the prior written consent of Buyer in Buyer's sole and absolute discretion
(except which shall not be unreasonably withheld or delayed with respect to easements or rights
of way), Seller shall not subject the Property to any additional liens, monetary encumbrances,
easements, or rights of way, after the Effective Date, except for as may be otherwise provided for
in this Agreement.
(b) Seller shall not make any material alterations to the Property without Buyer's
consent, in Buyer's sole and absolute discretion, other than necessary or typical maintenance and
repairs.
(c) Seller shall not enter into any contract or agreement (including but not limited to a
lease or similar occupancy/use agreement) providing for the provision of goods or services to or
with respect to the Property or the operation of this Agreement, without the prior written consent
of Buyer, in Buyer's sole and absolute discretion.
(d) Seller will maintain its existing fire and extended coverage casualty insurance (if
any) in force with respect to the Property.
(e) Seller will promptly notify Buyer in writing of any litigation or governmental
proceeding to which Seller becomes a party or which affects the Property or any part thereof.
(f) Seller will continue to operate and maintain the Property in the ordinary course of
its business and substantially in accordance with Seller's present practice, subject to ordinary wear
and tear and further subject to Section-15. - - -- - - --
Seller shall have no liability under this Section 13 after the Closing. Buyer's sole remedy
for any alleged breach of this Section 13 shall be as described in Section 19.1.
14. Destruction. Except as provided in this Section, prior to the Close of Escrow, the
entire risk of loss of damage by earthquake, flood, landslide, fire or other casualty is borne and
assumed by Seller. If, prior to the Close of Escrow, any part of the Improvements is damaged or
destroyed by earthquake, flood, landslide, fire or other casualty, Seller shall promptly inform
Buyer of such fact in writing and advise Buyer as to the extent of the damage and whether it is, in
Seller's reasonable opinion, material or not material.
(a) If such damage or destruction is material, Buyer has the option to
terminate this -Agreement upon written notice to the Seller given not later than ten (14) days after
receipt of Seller's written notice to Buyer advising of such damage or destruction:
(b) For purposes of this Section 14, "material" is deemed to be any
condemnation, damage or destruction to the Improvements where the cost of repair or replacement
W016809-3 -1 Q -
is estimated to be more than one percent (1%) of the Purchase Price of the Property or shall take
more than one hundred eighty (180) days to repair after receipt of all required permits.
(c) If this Agreement is so terminated, the Deposit and any interest
accrued thereon, less Buyer's one-half share of Escrow cancellation costs, shall be returned to
Buyer, and neither party shall have any further obligation to or rights against the other except any
rights or obligations of either party which are expressly stated to survive termination of this
Agreement.
(d) If Buyer does not elect to terminate this Agreement, or if the casualty
is not material, and this transaction shall close pursuant to the terms of this Agreement and Seller
shall assign to Buyer, at Closing, all rights to insurance claims or proceeds with respect to the
damage or destruction of the Improvements.
15. Indemnification. Except for any third party claims, demands, liabilities, costs,
expenses, damages and losses, causes of action and suits relating to Seller's obligations,
performance, failure to perform, default, or breach under this Agreement prior to the Closing,
Buyer shall indemnify, defend and hold Seller and each Seller Party harmless for, from and against
any and all third party claims, demands, liabilities, costs, expenses, damages and losses, cause or
causes of action and suit or suits of any nature whatsoever arising out of the ownership and/or
operation of the Property by Buyer or any affiliate of Buyer after Closing. The provisions of this
Section 15 shall survive the Close of Escrow, and shall not merge with the Grant Deed.
16. Hazardous Materials.
16.1 Definitions. For the purposes of this Agreement, the following terms have
the following meanings:
(a) "Environmental Law" means any state, federal or local law,
statute, ordinance or regulation pertaining to health, hazardous materials, industrial hygiene or -the _
environment including, without limitation CERCLA (Comprehensive Environmental- Response; .... :
Compensation and Liability Act of 1980) and RCRA (Resources Conservation and Recovery Act
of 1976).
(b) "Hazardous Materials" means any substance, material or waste
which is or becomes designated, classified or regulated as being "toxic" or "hazardous" or a
"pollutant"`'or which is 'dr becomes similarly designated, classified or regulated, under any
Environmental Law, including asbestos, petroleum and petroleum products.
(c) "Environmental Audit" means an environmental audit, review or
testing of the Property performed by Buyer or any third party or consultant engaged by Buyer to
conduct such study.
16.2= " Discl'tlsure of Hazardous Materials. Seller, shall make available fo Buyer`
-for-its inspection a copy of the Environmental Reports, if any, with Seller's Deliveries. }
16.3 Environmental Audit. If during the Due Diligence Period Buyer elects to
perform an Environmental Audit:
00016809.3 -19-
(a) The Environmental Audit shall be conducted pursuant to standard
quality control/quality assurance procedures and in accordance with Section 4. Buyer shall have
no right to perform invasive testing without Seller's prior written consent, which shall not be
unreasonably delayed or withheld.
(b) If any report is prepared as the result of the Environmental Audit,
Buyer shall promptly give Seller a copy of the report, if requested by Seller. Prior to the Closing,
Buyer shall keep the report and the information contained therein confidential and shall not
disclose it to any person or entity without Seller's prior written consent unless disclosure is
required pursuant to any applicable law, or administrative or judicial process or order; provided,
further, that Buyer may furnish a copy of said report to any proposed lender in connection with
prosecution of an application for a mortgage loan and to any person or entity contemplating an
investment in the Property as a partner or permitted assignee of Buyer, or to any consultant
engaged in, or commenting upon the results of, said report, provided that Buyer shall be
responsible for causing such parties to keep the report confidential.
(c) If Buyer elects during the Due Diligence Period not to acquire the
Property or if the Closing fails to occur for any reason other than a default by Seller, then upon
Seller's request, Buyer shall deliver all copies of the report to, and they shall become the property
of, Seller, and Buyer shall not disclose to any party the contents of the report except pursuant to
any applicable law, valid legal process, or with the written consent of Seller.
(d) Any ground water, soil or other samples taken from the Property
shall be properly disposed of by Buyer at Buyer's sole cost and in accordance with all applicable
laws. Buyer shall restore the Property to its condition existing before any testing.
17. Notices. All notices (including, without limitation, approvals, consents and
exercises of rights or options) required or permitted to be given hereunder shall be in writing and
shall be served on the parties at the addresses set forth below or to such other address as the party
entitled to receive such -notice may, from time to time hereinafter, designate -by givingwritten
notice pursuant hereto. Any, sdchnotice shall be either (a) sent by personal delivery, in which case
notice shall be deemed delivered upon receipt, (b) sent by electronic mail, with written
confirmation by overnight or first class mail, in which case notice shall be deemed delivered upon
receipt of such electronic notice, (c) sent by certified mail, return receipt requested, postage
prepaid, in which case notice shall be deemed delivered only upon actual delivery (or attempted
delivery which is refused) or, (d) sent by overnight delivery using a nationally recognized,
overnight courier (e.g., FedEx), in which case notice shall be deemed delivered one business day
after deposit with such courier. Notices given by counsel to the Buyer shall be deemed given by
Buyer, notices given by counsel to the Seller shall be deemed given by Seller, and notices given
to a party's counsel shall be deemed given to the party.
If to Buyer: City of La Quinta
784950al1,e Tampico
La Quinta, .CA 92253
Attn: Frank J. Spevacek
E-mail: fspevacek@la-quinta.org
000169093 -20-
with a copy to: Rutan & Tucker
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Attn: William H. Ihrke
Phone: 714-338-1863
E-mail: bihrke@rutan.com
If to Seller: Frontier California Inc.
c/o Dexter T. Craig
21 West Avenue
Spencerport, New York 14559
E-mail: Dexter. Craig@FTR.com
with a copy to Stewart Ward & Josephson LLP
1601 Response Rd., Suite 390
Sacramento, CA 95815
Attn: Winnifred C. Ward
E-mail: wward@swjllp.com
with an additional Frontier Communications Corp.
copy to: c/o Ms. Kelley Stewart
805 Central Expressway South
Allen, Texas 75013
E-mail: Kelley. Stewart@FTR.com
And:
Frontier Communications Corp.
c/o Kevin Saville, Esq.
2378 Wilshire Blvd
Mound, Minnesota 55364
E-mail: Kevin.Saville@FTR.com
If to Escrow 'Holder or Four -Seasons Escrow, Inc.
Title Company: 51351 Avenida Bermudas
La Quinta, CA 92253
Attn: Malia Monroe, President
_ E-mail:info_@ 4seasonsescrow.com
18. Broker. Seller represents and warrants to Buyer, and Buyer represents .and _
warrants to Seller, that no broker or finder has been engaged by them, respectively,' in connection -
with any of the transactions contemplated by this Agreement, or to its knowledge is in any way
connected with any of such transactions. Buyer shall indemnify, hold harmless and defend Seller
from any liability, cost, or expense arising out of or connected with any claim for any commission
or compensation made by any person or entity claiming to have been retained or contacted by
00016809.3 -2 1 -
Buyer in connection with this transaction. Seller shall indemnify, hold harmless and defend Buyer
from any liability, cost, or expense arising out of or connected with any claim for any commission
or compensation made by any person or entity claiming to have been retained or contacted by
Seller in connection with this transaction. This indemnity provision shall survive the Closing or
any earlier termination of this Agreement.
19. Default.
19.1 Buyer's Remedies. In the event the Close of Escrow and the
consummation of the transaction contemplated by this Agreement do not occur by reason of
material default by Seller, provided that Seller shall have at least five (5) business days' prior
written notice of such material default and may cure the same within such period, then Buyer, as
its sole remedy, shall be entitled to either (a) terminate this Agreement, in which case Escrow
Holder shall promptly return the Deposit to Buyer, subject to the terms of Section 3.4, and Seller
shall pay Buyer's reasonable, out-of-pocket third party expenses incurred in connection with the
transaction, reasonably documented to Seller, or (b) Buyer may elect to pursue an action for the
specific performance of this Agreement, which right to pursue an action of specific performance
shall only be available if Buyer is fully ready, able and willing to close this transaction, including
the Deposit and all closing documentation deposited with Escrow Holder, and Seller has breached
this Agreement and refused to close this transaction in breach of this Agreement, and not because
of Buyer's default. Buyer shall indemnify, defend, and hold Seller harmless from and against any
losses, costs, damages or liabilities, including, without limitation, damages due to Seller's inability
to sell or market the Property, and reasonable attorneys' fees and costs, each arising out of or
relating to Buyer's bringing any claims that are contrary to this Section, including, without
limitation, any action for specific performance or the filing of a lis pendens against the Property if
not brought in good faith and in strict compliance with this Section 19.1. Buyer expressly waives
all rights at law or in equity to seek monetary damages (including consequential, speculative and
punitive damages) for any default by Seller hereunder.
19.2 Default bv Buyer. BUYER AND SELLER AGREE THAT IT= WOULD. - BE IMPRACTICAL AND EXTREMELY- DIFFICULT TO ESTIMATE" THE DAMAGES
SUFFERED BY SELLER AS A RESULT OF BUYER'S DEFAULT OR FAILURE TO
COMPLETE THE PURCHASE OF THE PROPERTY PURSUANT TO THIS AGREEMENT,
AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS
AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS
SECTION REPRESENT A REASONABLE ESTIMATE- OF THE DAMAGES, = WHICH:
SELLER SHALL INCUR AS A RESULT OF SUCH FAILURE; PROVIDED, HOWEVER
THAT THIS PROVISION SHALL NOT LIMIT SELLER'S RIGHT TO RECEIVE
REIMBURSEMENT FOR ATTORNEYS' FEES AS AUTHORIZED BY SECTION 23.6, NOR
WAIVE OR AFFECT BUYER'S INDEMNITY OBLIGATIONS AND SELLER'S RIGHTS TO
THOSE INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, NOR WAIVEOR
AFFECT BUYER'S OBLIGATIONS TO RETURN OR PROVIDE TO SELLER DOCUMENTS,
REPORTS OR. OTHER- INFORtiIATION PROVIDED TO OR PREPARED BY - OR -FOR`_'
BUYER PURSUANT TO 'APPLICABLE PROVISIONS OF `'THIS AGREEMENT.'
THEREFORE, BUYER AND SELLER DO HEREBY AGREE THAT A REASONABLE
ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE
EVENT THAT BUYER DEFAULTS AND FAILS TO COMPLETE THE PURCHASE OF THE
00016809-7 -22-
PROPERTY IS AN AMOUNT EQUAL TO THE DEPOSIT (WHICH INCLUDES ANY
ACCRUED INTEREST THEREON). SAID AMOUNT SHALL BE THE FULL, AGREED AND
LIQUIDATED DAMAGES FOR THE BREACH OF THIS AGREEMENT BY BUYER. THE
PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE
SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES
TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.
UPON DEFAULT BY BUYER, AND SELLER'S TERMINATION OF THIS AGREEMENT,
EXCEPT FOR THE SURVIVING OBLIGATIONS, WHICH MAY BE ENFORCED BY
SELLER (IN ADDITION TO COLLECTION AND RETENTION BY SELLER OF BUYER'S
DEPOSIT AS PROVIDED HEREUNDER), NEITHER PARTY SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER, EACH TO THE OTHER EXCEPT
FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM
BUYER AND ESCROWK
ls Seller's Initials
20. Assignment. This Agreement may not be assigned by Buyer without the prior
written consent of Seller, which consent may be withheld in Seller's sole and absolute discretion.
No such assignment shall relieve Buyer of any its obligations and liabilities hereunder.
Notwithstanding the foregoing, in no event shall Buyer be entitled to receive any so-called "flip
fee" in connection with a permitted assignment of this Agreement. Any such "flip fee" paid to
Buyer as a result of any such assignment shall be credited to Seller at Closing.
21. Demising Wall Construction. Buyer agrees to construct a Demising Wall on the
Property following Closing. Preliminary plans for the Demising Wall are attached hereto as
Exhibit "D" (the "Demising Wall Work"). Buyer acknowledges and agrees that completion of
the Demising Wall Work is a material consideration for Seller in entering into this Agreement.
Buyer hereby acknowledges and agrees that the plans in Exhibit "D" for the Demising Wall are
v_ subject to design revisions and a public bidding process as required by California law. Buyer shall
provide Seller with an opportunity to review and approve the final plans for the Demising Wall
Work following completion of the final plans and the public bidding process, which approval shall
not be unreasonably withheld. Following review and approval of the final plans for the Demising
Wall Work by Seller, Buyer explicitly reserves the right to make minor modifications to the
Demising Wall Work without obtaining approval from Seller. , 1 •
22. [Intentionally omitted.j.
23. Miscellaneous.
23.1 Counterparts. This Agreement may be executed in counterparts, together
which_ shall -constitute a- single instrument. This Agreement may be •executed.'!by.-.facsiniile_:or,:;,,:::---_,=:-
"pdf'/electronic-signatures:.-
23.2 Partial Invaliditv. If any term or provision of this Agreement shall be
deemed to be invalid or unenforceable to any extent, the remainder of this Agreement shall not be
00016809.3 -23 -
affected thereby, and each remaining term and provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
23.3 Possession of the Property. Seller shall deliver possession of the Property
to Buyer upon the Close of Escrow, subject to the Permitted Exceptions.
23.4 Waivers. No waiver of any breach of any covenant or provision contained
herein shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other
covenant or provision contained herein. No extension of time for performance of any obligation
or act shall be deemed an extension of the time for performance of any other obligation or act
except those of the waiving party, which shall be extended by a period of time equal to the period
of the delay.
23.5 Successors and Assizns. Without limitation of Section 20, this Agreement
is binding upon and inures to the benefit of the permitted successors and assigns of the parties
hereto.
23.6 Attornevs' Fees. In the event of the bringing of any action or suit by a
party hereto against another party hereunder by reason of any breach of any of the covenants,
agreements or provisions on the part of the other party arising out of this Agreement, then in that
event the prevailing party shall be entitled to recover from the other party all costs and expenses
of the action or suit, reasonable attorneys' fees (including the allocated costs of Seller's in-house
counsel), witness fees and any other professional fees resulting therefrom through trial and any
appeal in connection therewith. The prevailing party shall be the party that obtains substantially
the result sought, whether by settlement, judgment or dismissal.
23.7 Entire Agreement. This Agreement (including all Exhibits attached
hereto) constitutes the entire contract between the parties hereto with respect to the subject matter
of this Agreement and may not be modified except by an instrument in writing signed by the party
to: be charged with the modification...
23.8 Time of Essence. Seller and Buyer hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition, obligation and
provision hereof.
23.9 Constructiog, Seller and Buyer and their respective advisors believe that
-this Agreement is the product of all of their efforts, that it expresses their agreement and, that it -
should not be interpreted in favor of or against either Buyer or Seller. The parties further agree
that this Agreement shall be construed to effectuate the normal and reasonable expectations of a
sophisticated Seller and Buyer. The parties waive the benefit of any statute or legal decision
providing otherwise. Section headings shall not be used in interpreting this Agreement. Use of
the term "including" shall mean "including, without limitation".
23.10. Limitation of Liability. In no event shall Seller be liable to Buyer far .�=N . _J_ti
consequential, speculative or punitive damages and in no event shall Buyer be liable to Seller for
consequential, speculative or punitive damages. The obligations of Seller hereunder are binding
only on Seller and Seller's assets and shall not be personally binding upon, nor shall resort be had
to, the private properties of any of the partners, officers, directors, members or shareholders of
00016809.3 -24-
Seller, or any employees or agents of Seller. The obligations of Buyer hereunder are binding only
on Buyer and shall not be personally binding upon, nor shall resort be had to, any elected official,
employee, or agent of Buyer.
23.11 Governing Law. The parties hereto expressly agree that this Agreement
shall be governed by, interpreted under, and construed and enforced in accordance with the laws
of the State of California, without regard to conflict of law principles.
23.12 Confidentiality. Unless otherwise agreed to in writing by Seller, and
except as required pursuant to any applicable law, or any administrative or judicial process or
order, Buyer shall keep confidential all documents, financial statements, reports or other
information provided to, or generated by Buyer relating to the Property, including the documents
listed on Exhibit C, and shall not disclose any such information to any person other than those
employees and agents of Buyer who are actively and directly participating in the evaluation of the
Property and the negotiation and execution of this Agreement or financing of the purchase of the
Property. Upon any termination of this Agreement for any reason, Buyer shall promptly return to
Seller copies of all documents or other information pertaining to the Property provided to Buyer
by Seller, including, without limitation, pursuant to Section 4. The provisions of this Section shall
survive the termination of this Agreement and shall survive the Closing.
23.13 Wear and Tear. Buyer specifically acknowledges that Seller may continue
to use the Property in the course of its business for a use and in a manner as was the case before
the Effective Date of this Agreement. Buyer authorizes Seller to use the Property for exactly the
same uses (and non -uses) in exactly the same manner as was the case on the date prior to the
Effective Date until three (3) business days prior to Closing, as long as Seller removes at its own
cost and expense any and all furnishings, fixtures, and equipment from the Property prior to such
date. Buyer accepts the fact that reasonable wear and tear may occur after the date of this
Agreement. Buyer specifically agrees that Seller is not responsible for repairing such reasonable
wear and tear and that Buyer is prohibited from raising such wear and tear as a reason for not
consummating this- transaction or for requesting a reduction in the Purchase Price:
23.14 No Recordation. No memorandum or other document relating to this
Agreement shall be recorded without the prior written consent of Seller, with the exception of
recordation of the Grant Deed as provided for in Section 11.2. Seller's consent for any
memorandum or document to be recorded, which is consistent with this Agreement, shall not be
unreasonably withheld, delayed, or denied.
23.15 Survival. Except for the limited survival of the parties' representations and
warranties, as specified in Section 12, all obligations of the parties contained herein which by their
terms are intended to survive the Close of Escrow, shall survive the Close of Escrow and not merge
with the Grant Deed. -
- [signatures on next page]
00016809.3 -25-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year hereinabove written.
SELLER:
BUYER:
FRONTIER CALIFORNIA INC., THE CITY OF LA QUINTA,
a California cffeQ
tin a California municipal on and charter
city
By:I
y� By K CEK
Name: f i .wd�
` Name: CITY coAG , on
QUINTA
Title: l 1 i Y. err► r ► f ' ""s R_ au l a-iu k'
`- Title:
By:
Name:
Title:
ESCROW AGENT:
Escrow Agent agrees to comply with the terms
of this Agreement applicable to Escrow Agent.
FOUR SEASONS ESCROW, INC.
Name:
Title:
00016809.3 _26_
00016809.3 A-1
EXHIBIT A
LEGAL DESCRIPTION OF LAND
The land referred to herein is situated in the State of California, County of Riverside, City
of La Quinta, and is described as follows:
LOTS 73, 74 & 75 MB 021/060 DESERT CLUB TR UNIT 4.
Parcel #700-124-006
The Property consists of that certain portion consisting of approximately 6,700 square feet of gross
area of the Land, as shown on Exhibit A-1.
248
00016809.3 A-1-1
EXHIBIT A-1
DEPICTION OF PROPERTY
A portion of the Land, described as follows:
That certain portion consisting of approximately 6,700 square feet of gross area as shown on the
photo set forth below:
249
00016809.3 B-1
EXHIBIT B
GRANT DEED
Recorded at Request of:
_____________________________________
_____________________________________
_____________________________________
When Recorded Mail to:
_____________________________________
_____________________________________
_____________________________________
Mail Tax Statements to:
_____________________________________
_____________________________________
_____________________________________
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is acknowledged, FRONTIER
CALIFORNIA INC., a California corporation (“Grantor”), hereby grants to
________________________________ (“Grantee”), the real property in the City of La Quinta,
County of Riverside, State of California, described in Exhibit A attached hereto and made a part
hereof (the “Property”).
The Property is being sold subject to the exceptions listed on Exhibit B attached hereto.
Dated: ___________, 20____.
FRONTIER CALIFORNIA INC.,
a California corporation
By: _____________________________
Name: _____________________________
Title: _______________________________
250
00016809.3 B-2
CERTIFICATE OF ACCEPTANCE
(GOVERNMENT CODE SECTION 27281)
THIS IS TO CERTIFY that the interest in real property conveyed by a Grant Deed dated
__________________, from ________________________, to the City of La Quinta, a California
municipal corporation (“City”) is hereby accepted by the City by the signature of the undersigned
agent on behalf of the City pursuant to the authority conferred upon him by Resolution ______ of
the City, adopted on _________, _____, and that the City, as the Grantee, by its said duly
authorized agent, hereby consents to the recordation thereof.
DATED: ________________________
CITY OF LA QUINTA, a California municipal
corporation
By:
Name: Frank J. Spevacek
Title: City Manager
I HEREBY ATTEST to the authenticity of the foregoing signature and to the said adoption of
the said Resolution ______ of his general authority to so act and certify that said authority has
not been revoked by any subsequent Resolution or order of the City.
DATED: ____________________________
Susan Maysels, City Clerk
251
00016809.3 B-3
ACKNOWLEDGMENT
A notary public or other officer completing
this certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
STATE OF _________________
COUNTY OF
On ____________________, 20__, before me, _______________________________________,
a Notary Public in and for the State of ________________, personally appeared
_______________, proved to me on the basis of satisfactory evidence to be the person whose name
is subscribed to the within instrument, and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument he/she, or the entity
upon behalf of which he/she acted, executed said instrument.
I certify under PENALTY OF PERJURY under the laws of the State of ___________ that the foregoing is
true and correct.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
252
00016809.3 B-4
EXHIBIT A
TO
GRANT DEED
All of the real property in the City of La Quinta, County of Riverside, State of California,
described as follows:
[INSERT LEGAL DESCRIPTION AND DEPICTION FROM PURCHASE / SALE
AGREEMENT]
253
00016809.3 B-5
EXHIBIT B
TO
GRANT DEED
(a) a lien for real property taxes and assessments not then delinquent;
(b) matters affecting the condition of title to the Property created by or with the written
consent of Buyer;
(c) zoning or permit conditions;
(d) any matters which would be shown by an inspection, a survey of the Property or by
inquiry of persons in possession of the Property;
(e) all matters of record, whether or not recorded prior to or after the Effective Date, it
being agreed that Buyer is assuming the risk of any new exceptions arising after the Effective Date,
provided that Seller shall be responsible for any monetary liens imposed with Seller’s approval;
and
(f) the matters shown in that certain Preliminary Report issued by ______________,
dated __________, Order No. ____________.
254
00016809.3 C-1
EXHIBIT C
SELLER’S DELIVERIES
Seller to list:
o Any and all disclosures required under California law concerning the known conditions of the
Property;
o Any and all reports and other documents concerning the physical and environmental condition
of the Property (for example, any Phase I or Phase II Environmental Reports that the Seller may
have in its possession);
o Any and all leases, subleases, licenses, rights of entry, or other similar agreements (verbal,
written, recorded or unrecorded) granting any right to use and/or occupy the Property;
o Any and all surveys of the Property that the Seller may have in its possession;
o Any and all recorded covenants, reciprocal easements, use restrictions, or similar agreements
that the Seller may have in its possession;
o The “Report” for title review as defined in Section 5.2 of the Agreement.
[attach additional pages if necessary]
255
00016809.3 D-1
EXHIBIT D
DEMISING WALL WORK, PLANS & SPECIFICATIONS
[to be attached]
256
257
258
259
260
261
262