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HomeMy WebLinkAbout03-177 CC Resolution I I I RESOLUTION NO. 03-177 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TEMECULA APPROVING THAT CERTAIN AGREEMENT ENTITLED "PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS" FOR CERTAIN REAL PROPERTY LOCATED AT 41852 MAIN STREET (APN 922-041-008, 009 AND 010) IN THE CITY OF TEMECULA THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS FOllOWS: Section 1. The City Council of the City of Temecula hereby finds, determines and declares that: a. The City is currently implementing the Redevelopment Plan for Redevelopment Project No. 1--1988, originally approved by the Board of Supervisors of Riverside County on July 12, 1988 prior to incorporation of the City of Temecula and subsequently approved and transferred to the Redevelopment Agency of the City of Temecula on April 9, 1991 (the "Plan"). b. The City proposes to purchase the property described in the "Purchase and Sale Agreement and Escrow Instructions" attached hereto as Exhibit A. and located at 41852 Main Street (APN 922-041-008,009 and 010) in the City of Temecula for rede- velopment purposes consistent with the Agency authority under the Plan and the Community Redevelopment Act, Health and Safety Code Section 33000 et seq. c. The Agreement is consistent with the Plan and with the Implementation Plan adopted by the Agency. d. The City Council has duly considered all terms and conditions of the proposed Agreement and believes that such agreement is in the best interests of the City and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable State and local law requirements. e. This action is being undertaken pursuant to the Plan for which a full and complete Environmental Impact Report was prepared and certified prior to adoption of the Plan. Moreover the acquisition of property by itself will have no impact on the environment as it is simply the change in ownership of the property without a change in the physical condition of the property. None of the conditions described in 14 Cal. Admin. Code § 15162 are found to exist. Therefore, pursuant to the provisions of CEQA and, specifically, 14 Cal. Admin. Code §§ 15162 and 15180, neither a subsequent nor a supplemental Environmental Impact Report is required for the subject agreement. Section 2. The City Council hereby approves that certain "Purchase and Sale Agreement and Escrow Instructions" between the City of Temecula, a public body corporate and politic, and Jon A. Moramarco, A Married Man, as his Sole and Separate Property, Cinthia E. Moramarco, AKA Cynthia E. Moramarco, A Single Woman, Cinthia E. Moramarco, AKA Cynthia E. Moramarco. An Unmarried Woman, Constance Jean Moramarco, A Married Woman, R:/Resos 2003/Resos 03-177 I Anthony James Moramarco, A Single Man, Jon A. Moramarco, Trustee Under Declaration of Trust Known as the Jon Moramarco Children's Trust Dated December 15, 1989, and John A. Moramarco, Trustee Under Delcaration of Trust Dated March 30, 1989 (collectively "Sellers"), which Purchase Agreement is dated as of December 16, 2003. The Mayor of the City of Temecula is hereby authorized and directed to execute the Agreement on behalf of the City. PASSED, APPROVED AND ADOPTED, by the City Council of the City of Temecula this 16th day of December, 2003. ATTEST: I STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss CITY OF TEMECULA ) I, Susan W. Jones, CMC, City Clerk of the City of Temecula, do hereby certify that the foregoing Resolution No. 03-177 was duly and regularly ado~ted by the City Council of the City of Temecula at a regular meeting thereof held on the 16' day of December, 2003, by the following vote: AYES: 4 NOES: 0 ABSENT: ABSTAIN: COUNCILMEMBERS: Comerchero, Naggar, Roberts, Washington COUNCILMEMBERS: None COUNCILMEMBERS: Stone COUNCILMEMBERS: None I R:/Resos 2003/Resos 03-177 I I I AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS First American Title Company 3625 Fourteenth Street Riverside, CA 92501 Attention: Debbie Newton, Title Officer Re: Escrow No.: THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS (this "Agreement") dated as of December -' 2003, is entered into by and between JON A. MORAMARCO, A Married Man, as his Sole and Separate Property, CINTHIA E. MORAMARCO, AKA CYNTHIA E. MORAMARCO, A Single Woman, CINTHIA E. MORAMARCO, AKA CYNTHIA E. MORAMARCO, An Unmarried Woman, CONSTANCE JEAN MORAMARCO, A Married Woman, ANTHONY JAMES MORAMARCO, A Single Man, JON A. MORAMARCO, Trustee Under Declaration of Trust Known as the Jon Moramarco Children's Trust Dated December 15, 1989, and JOHN A. MORAMARCO, Trustee Under Declaration of Trust Dated March 30, 1989 (collectively "Sellers"), and the CITY OF TEMECULA, a public body, corporate and politic ("Buyer"), upon the following terms and conditions: 1. SALE AND PURCHASE PRICE. 1.1 Sale and Purchase. Sellers agree to sell to Buyer and Buyer agrees to purchase from Sellers good and marketable fee simple title to that certain real property of approximately 26,155 square feet identified as Assessor's Parcel Numbers 922-041-008, 009, and 010, located in the City of Temecula, County of Riverside, State of California, commonly known as 41852 Main Street, Temecula, California 91292, and more particularly described on Exhibit "A" attached hereto, together with all easements, privileges, permits, licenses, entitlements, and other rights appurtenant thereto ("Real Property"), and all buildings, fixtures, equipment, structures, parking areas, landscaping, appurtenances and other improvements constructed or situated on the Real Property and owned by Sellers ("Improvements") (the Real Property and Improvements hereinafter collectively "Property"), for the price and upon all of the terms and conditions set forth herein. Buyer is purchasing the Property for a public purpose, namely for redevelopment and all uses necessary or convenient thereto. 1.2 Purchase Price. The purchase price ("Purchase Price") for the Property shall be Six Hundred Twenty-Five Thousand Dollars ($625,000), payable in cash. The purchase price is broken down as follows: Land Value - $625,000. Within five (5) business days after the date of execution hereof, Buyer shall deliver to Escrow Holder (as herein defined) cash in the amount of Ten Thousand Dollars ($10,000.00) (the "Deposit") in the form of a cashier's check, R:IOldtownlOTACOIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I by a wire transfer, or other form acceptable to the Escrow Holder. The Deposit shall be placed in an interest-bearing account and all interest accrued thereon shall increase and become a part of the Deposit. On the close of escrow, the Deposit shall be applied toward the cash payment of the Purchase Price. Prior to the close of escrow, the Deposit shall be fully refundable to Buyer in the event this Agreement is terminated and Buyer is the non-defaulting party. The remaining balance of the cash payment of the Purchase Price shall be deposited by Buyer into Escrow in the form of a cashier's check, wire transfer, or other form acceptable to the Escrow Holder, prior to the close of escrow. 1.3 No Relocation Assistance. Sellers hereby acknowledge and agree that the Property is owner occupied, and that the purchase and sale of the Property is being made in the course of voluntary negotiations between Sellers and Buyer resulting from Sellers having offered the Property for sale. Sellers shall have no further obligation to Buyer under the State Eminent Domain Law or under the Relocation Assistance and Real Property Acquisition statutes and guidelines, including but not limited to California Government Code Section 7260 et seq. and Section 6000 et seq. of Title 25 of the California Code of Regulations, and the Seller hereby waives any such assistance or benefits if applicable. Sellers hereby further waive any and all claims they may have now or in the future for compensation for relocation assistance, relocation benefits, pre-condemnation damages, compensation for property or for loss of goodwill under California Code of Civil Procedure Section 1263.510 et seq. or any other applicable law. 2. TITLE. 2.1 General. Title to the Property shall be conveyed by Grant Deed and shall be evidenced by a CL TA Standard Coverage Form of Owner's Policy of Title Insurance (or an ALTA Extended Coverage Form Policy if Buyer elects such coverage as provided in Paragraph 2.3 hereof) ('Title Policy"), the cost of which shall be borne by Buyer, issued by First American Title Company, 3625 Fourteenth Street, Riverside, California 92501, (909) 787-1723; fax: (909) 784-7956, Title Officer Debbie Newton ("Title Company"), with liability in the full amount of the Purchase Price, insuring title to the Property as vested in Buyer, free and clear of all liens and encumbrances and other matters affecting title to the Property, except: 2.1.1 Non-delinquent real property taxes; and 2.1.2 Such conditions, covenants, restrictions, and utility easements of record as are approved by Buyer in its sole and absolute discretion. Notwithstanding anything in the foregoing to the contrary, Buyer acknowledges approval of the following exceptions listed in Schedule "B" of the Old Republic Title Company Preliminary Report dated as of October 29, 2003, Order No. 2607019196-55 (the "Preliminary Report"): 2.2 Acts After Date of Aareement. During the period from the date of this Agreement through the close of escrow, Sellers shall not record, or file for record or permit to be recorded or filed for record any document or instrument which will affect the title to or use of the 2 R:IOldtownlOTACOIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I Property without the prior written consent of the Buyer, which consent shall not be unreasonably withheld. 2.3 Option for AL TA Coveraae. Buyer shall have the option of obtaining an AL TA Extended Coverage Form Policy of Title Insurance or a CL TA Standard Coverage Form Owners Policy of Title Insurance. In such event, Buyer shall, at its expense, procure the AL TA Extended Coverage Survey (the "Survey"); provided, that, Sellers shall provide to Buyer, at no cost to Buyer and within five (5) days after execution of this Agreement, a copy of Sellers most recent survey, if any, prepared with respect to the Property. The cost of an AL TA Extended Coverage Form Policy of Title Insurance shall be borne by Buyer. 3. RIGHT OF ENTRY. 3.1 Sellers hereby grant Buyer and its agents, employees, contractors and subcontractors (collectively "Representatives") the right of entry to the Property at reasonable times for the purpose of conducting soils and geological investigation and testing for toxic or hazardous substances and other contamination. Such investigation shall be at Buyer's expense. 3.2 Buyer shall deliver advance written notice to the Sellers of its intention to enter the Property to conduct activities pursuant to this Paragraph 3 at least one (1) business day prior to any entry onto the Property. Such notice of entry shall include the proposed dates and times of such entry, and the nature, specific location and scope of any test, investigation, or other activity upon the Property. Sellers and their representatives shall have the right to accompany and observe all of Buyer's and its Representatives' activities on the Property. 3.3 All work performed by Buyer and its Representatives will be performed diligently and in a manner consistent with the standards of care, diligence and skill exercised by recognized consulting firms for similar services, and in accordance with all regulatory and good management standards and the requirements of any governmental agency or entity and all applicable laws. 3.4 Buyer and its Representatives shall promptly notify the Sellers of any discovery, spill, release, or discharge of any "Hazardous Materials", as defined in Paragraph 5, on, under or about the Property which is discovered, encountered, or results from or is related to the Buyer's or its Representatives' access to and/or use of the Property under this Agreement. 3.5 Buyer and its Representatives shall remove from the Property any wastes and Hazardous Materials used in or generated by the activities of Buyer or its Representatives on the Property no later than the date of completion of their environmental investigation activities and operations on the Property. 3.6 In connection with the use of the Property by Buyer and its Representatives, Buyer shall, at its own cost and expense, take any necessary action to keep 3 R:IOldtownlOTACOIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I the Property, and any improvements and personalty thereon, in good order and repair and safe condition to the extent that such Property, improvements or personalty were in such condition prior to its entry, and the whole of the Property, in a clean, sanitary and orderly condition, including, without limitation, ensuring that any holes, ditches or other indentations, as well as any mounds or other inclines created by any excavation by Buyer or its Representatives are regraded, resurfaced and compacted. If any portion of the Property or an adjacent property, including improvements and fixtures, suffers damage or alteration by reason of the access and activities of Buyer or its Representatives on the Property, Buyer shall, at its own cost and expense, promptly repair all such damage and restore the Property or adjacent property to as good a condition as before such damage or alteration occurred, or if it cannot be repaired, Buyer shall replace such damaged or altered property to the extent possible. 3.7 Buyer agrees, at its sole cost and expense, to defend, protect, indemnify, and hold free and harmless Seller and its employees, agents, and representatives, and their successors, and assigns (individually as "Indemnitee" and collectively, "Indemnitees"), free and harmless from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever ("Claims"), including fees of accountants, attorneys, expert witnesses, or other professionals, and all costs associated therewith, arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to any act, failure to act, error, or omission of Buyer or any of its Representatives arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to entry upon the Property pursuant to this Paragraph 3, except for that portion or percentage of a Claim against an Indemnitee based on the comparative negligence, gross negligence or willful misconduct of such Indemnitee. 4. ESCROW. 4.1 Aareement to Constitute Escrow Instructions. This Agreement shall constitute escrow instructions and a copy hereof shall be deposited with the Escrow Holder for this purpose. 4.2 Escrow Holder. The escrow shall be opened with First American Title Company, 3625 Fourteenth Street, Riverside, CA 92501, (909) 787-1723, fax: (909) 784-7956, Attention: Debbie Newton (dnewton@firstam.com) ("Escrow Holder"), within five (5) business days after the execution of this Agreement by Buyer and Seller by depositing an executed copy or executed counterparts of this Agreement with Escrow Holder. This document shall be considered as the escrow instructions between the parties, with such further instructions as Escrow Holder requires in order to clarify the duties and responsibilities of Escrow Holder. If Escrow Holder shall require further escrow instructions, Escrow Holder shall promptly prepare such escrow instructions on its usual form for the purchase and sale of the Property upon the terms and provisions hereof. Provided such further escrow instructions are consistent with this Agreement, they shall be promptly signed by Buyer and Sellers within five (5) business days after delivery thereof to each party. The further escrow instructions shall incorporate each and every term of this Agreement and shall provide that in the event of any conflict between the 4 R:IOldtownlOTACOIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I terms and conditions of this Agreement and such further escrow instructions, the terms and conditions of this Agreement shall control. Escrow Holder shall not be held liable for the sufficiency or correctness as to form, execution or validity of any instruments deposited in this escrow (other than those documents prepared by Escrow Holder), or as to identity, authority or rights of any person executing the same, and Escrow Holder's duties hereunder shall be limited to the safekeeping of such money, instruments or other documents received by Escrow Holder and for the disposition or return of same in accordance with the instructions herein. The parties hereto agree jointly and severally to pay on demand, as well as to indemnify and hold Escrow Holder harmless from and against, all costs, damages, judgments, reasonable attorneys' fees, expenses and liabilities of any kind or nature which Escrow Holder may incur or sustain in good faith in connection with or arising out of this escrow which are not due to Escrow Holder's negligence or willful misconduct. 4.3 Openina of Escrow. Escrow shall be deemed open on the date of delivery to the Escrow Holder of a fully executed copy or executed counterparts of this Agreement. 4.4 Close of Escrow. Provided all of Sellers and Buyer's obligations to be performed on or before close of escrow have been performed and all the conditions to the close of escrow set forth in this Agreement have been satisfied, escrow shall close on or before January 22, 2004 ("Closing Date"). All risk of loss or damage with respect to the Property shall pass from Sellers to Buyer at the close of escrow. Possession of the Property shall be delivered to Buyer upon the close of escrow. Notwithstanding anything in this Agreement to the contrary, escrow shall be deemed automatically terminated if it has not otherwise closed by January 31, 2004, regardless of cause or fault. 4.5 Buver Reauired to Deliver. On or before the close of escrow Buyer shall . deposit into escrow the following (properly executed and acknowledged, if applicable): 4.5.1 The Purchase Price; and 4.5.2 All other documents contemplated by this Agreement and required by Escrow Holder to be deposited by Buyer to carry out this escrow. 4.6 Sellers Reauired to Deliver. Before the close of escrow, Sellers shall deposit into escrow the following (properly executed and acknowledged, if applicable): 4.6.1 A Grant Deed conveying the Property to Buyer; 4.6.2 A non-foreign affidavit with respect to Sellers; and 4.6.3 Any other documents contemplated by this Agreement or required by Escrow Holder or the Title Company to be deposited by Sellers to carry out this escrow. 5 R:\Oldtown\OTACOlPurchase Sale Agreement. Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I 4.7 Conditions to the Close of Escrow. Escrow shall not close unless and until both parties have deposited with Escrow Holder all sums and documents required to be deposited as provided in this Agreement. The failure of a party to timely deposit any such sums and/or documents shall constitute a default by such party. Furthermore, escrow shall not close unless Sellers shall be able to deliver possession of the Property to Buyer free of all tenants, leases and/or agreements. Sellers agree to indemnify, protect, hold harmless and defend Buyer and its employees, agents, representatives, council members, attorneys, successors and assigns from and against any and all claims raised after closing by tenants raising or seeking any rights to relocation assistance or benefits based on their tenancy on the Property prior to the sale hereunder. In addition to the closing conditions set forth above, Buyer's obligation to proceed with the transaction contemplated by this Agreement is subject to the satisfaction, not later than the date that is fifteen (15) days after the date hereof ("Contingency Date"), of all of the following conditions precedent, which are for Buyer's benefit and may be waived only by Buyer: 4.7.1 Sellers shall have performed all agreements to be performed by Sellers hereunder; 4.7.2 Sellers representations, warranties and covenants set forth in this Agreement shall be true and correct as of the Contingency Date, and continue to be true and correct as of the Closing Date; 4.7.3 Buyer's approval, in its sole and absolute discretion, of the results of such soils, geological, toxic waste, hazardous substance, and/or any other kind of soil or water contamination tests and analyses as Buyer or its agents, employees or representatives may, prior to the Closing Date, perform with respect to the Property; 4.7.4 As of the Closing Date, there shall have been no material adverse changes in the physical condition of the Property, as described in Paragraph 6 or otherwise; 4.7.5 Verification by Buyer that Sellers are the owner of record of the Property and that there are no other owners of record of the Property as of the Closing Date; 4.7.6 Title Company shall have issued or shall have committed to issue the Title Policy to Buyer, for the amount of the Purchase Price showing fee title to the Property to be vested in Buyer, subject only to such conditions, covenants, restrictions, and utility easements of record as are approved by Buyer in its sole and absolute discretion; and Temecula. 4.7.7 Approval of this Agreement by the City Council of the City of Neither Buyer nor Sellers shall act or fail to act for the purpose of permitting or causing any closing condition to fail. Waiver of any condition to close of escrow shall not relieve any party for liability resulting from breach of any representation, warranty, covenant or 6 R:IOldtownlOTACOIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I agreement under this Agreement. In the event that the conditions to close of escrow are not timely satisfied for a reason other than a default of Buyer or Sellers under this Agreement: (i) This Agreement, the escrow and the rights and obligations of Buyer and Sellers hereunder shall terminate, except as otherwise provided herein; provided, however, no such termination shall occur until (A) Buyer has had the opportunity to waive any condition for Buyer's benefit within two (2) business days after the later of Buyer's receipt of written notice from Sellers or Buyer's discovery that such condition will not be satisfied, and (B) Buyer does not elect to waive such condition; and (ii) Escrow Holder, upon such termination, is hereby instructed to promptly return to Buyer all funds (and all interest accrued thereon) and documents deposited by Buyer in escrow and to return to Sellers all funds and documents deposited by Sellers in escrow and which are held by Escrow Holder on the date of the termination (less, in the case of the party otherwise entitled to such funds, however, the amount of any cancellation charges required to be paid by such party under Paragraph 4.12 below). 4.8 Recordation of Grant Deed: Deliverv of Funds. Upon receipt of the funds and instruments described in this Paragraph 4, Escrow Holder shall cause the Grant Deed to be recorded in the office of the County Recorder of Riverside County, California. Thereafter, Escrow Holder shall deliver the proceeds of this escrow (less appropriate charges) to Sellers. 4.9 Prorations. All real and personal property taxes, liens and assessments shall be prorated between Buyer and Sellers as of the close of escrow based on the latest available tax information or, at Sellers election, such taxes, liens and assessments may be paid in full through escrow to the lienholder from the Deposit, so long as the Deposit is sufficient to satisfy all outstanding liens. If such liens are paid through escrow, Escrow Holder shall cause the liens to be discharged and the discharge recorded prior to conveyance of fee title of the Property to Buyer. Any supplemental or escape real estate taxes and assessments on the Property attributable to the period prior to the close of escrow shall be paid by Sellers outside of the escrow. All prorations shall be determined on the basis of a 360-day year. 4.10 Costs of Escrow. 4.10.1 Sellers shall pay: (a) The cost of any obligations of Sellers hereunder. 4.10.2 Buyer shall pay: (a) All escrow fees and costs associated with the purchase of the subject real property; (b) The cost of recording the Grant Deed, if any; 7 R:IOldtownlOTACOlPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I (c) The cost of documentary transfer taxes in connection with the recordation of the Grant Deed, if any; (d) (e) The cost of any obligations of Buyer hereunder; and Any other closing costs or charges not expressly provided for herein and customarily paid by a Buyer of real property in Riverside County, California. 4.11 Broker's Commission. Buyer and Sellers represent to one another that no broker or finder has been engaged in connection with the transaction contemplated by this Agreement, or to its knowledge is in any way connected with such transaction. Sellers covenant and agree that any broker fee or commission, which may be due or payable in connection with the closing of the transaction contemplated by this Agreement, shall be borne solely by Sellers. Sellers agree to indemnify, defend, protect and hold harmless Buyer and its respective employees, agents, representatives, council members, attorneys, successors and assigns, from and against all claims of any agent, broker, finder or other similar party arising from or in connection with the sale of the Property to Buyer. 4.12 Escrow Cancellation Charaes. In the event that this escrow shall fail to close by reason of the default of either party hereunder, the defaulting party shall be liable for all escrow and title cancellation charges. In the event that the escrow shall fail to close for any other reason, each party shall pay one-half (1/2) of all escrow and title cancellation charges. 5. REPRESENTATIONS AND WARRANTIES BY SELLERS. In consideration of Buyer's entering into this Agreement and as an inducement to Buyer to purchase the Property, Sellers make the following representations and warranties, each of which is material and is being relied upon by Buyer (the continued truth and accuracy of which shall constitute a condition precedent to Buyer's obligations to close hereunder and each of which shall survive the close of escrow): 5.1 This Agreement has been duly and validly authorized, executed and delivered by Sellers and no other action is requisite to the valid and binding execution, delivery and performance of this Agreement by Sellers; 5.2 There are no suits pending against or affecting or, to the best of Sellers knowledge, without having made investigation thereof, threatened against the Property or its use, whether in law or at equity; 5.3 Other than as disclosed in this Agreement, no joinder, consent, or waiver of or by any third party is necessary to permit the consummation by Sellers of the transaction contemplated pursuant to this Agreement; 8 R:IOldtownlOTACQlPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I 5.4 To Sellers best knowledge, there are no materials, reports and information in Sellers possession relating to the Environmental Condition (any condition that exists prior to or after the Closing Date, with respect to the air, land, soil, surface, subsurface strata, surface water, ground water, storm water or sediments) of the Property, and there are no outstanding environmental remediation orders or decrees (federal or state) regarding the Property. Sellers shall deliver to Buyer any materials and reports relating to the Environmental Condition of the Property which comes into Sellers possession, and any information relating to the Environmental Condition of the Property of which Sellers become aware; 5.5 To the best of Sellers knowledge, Sellers are not aware of the existence of any violation of law or violation of governmental regulation with respect to the Property, including any Environmental Laws, as hereinafter/ defined; 5.6 There are no pending, or to the best of Sellers knowledge, without having made investigation thereof, threatened proceedings in eminent domain, which would affect the Property, or any portion thereof; 5.7 To the best of Sellers knowledge there has been no production, disposal or storage on the Property of any Hazardous Materials (as hereinafter defined) by Sellers or any of the contractors, agents, employees or representatives of Sellers or, to the best of Sellers knowledge, any previous owner or current or previous tenant of the Property; and to the best of Sellers knowledge, there has not been any other activity on the Property which could have resulted in the deposit or release on the Property of Hazardous Materials, or the violation of any Environmental Laws, or which could result in any proceeding or inquiry by any authority with respect thereto; 5.8 Code 1445; and Sellers are not a "foreign person" within the meaning of Internal Revenue 5.9 As of the Closing Date, there shall be no leases and/or other agreements in existence affecting the Property. The term "Hazardous Materials" shall mean and include the following, including mixtures thereof: any hazardous substance, pollutant, contaminant, waste, by-product or constituent regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 ~ §!!g; oil and petroleum products and natural gas, natural gas liquids, liquefied natural gas and synthetic gas usable for fuel; pesticides regulated under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 ~ §!!g; asbestos and asbestos-containing materials, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. Section 2601 ~ §!!g; source material, special nuclear material, by-product material and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act or the Nuclear Waste Policy Act of 1982; chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200 ~ §!!g; industrial process and pollution control wastes, whether or not hazardous within the 9 R:IOldtownlOTACQIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I meaning of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 ê1 §illI.; any substance defined as a "hazardous substance" in California Civil Code Section 2929.5(e)(2) or California Code of Civil Procedure Section 736(f)(3); and any other substance or material regulated by any Environmental Laws. The term "Environmental Laws" shall mean and include all federal, state and local statutes, ordinances, regulations and rules in effect on or prior to the date hereof relating to environmental quality, health, safety, contamination and clean-up, including, without limitation, the Clean Air Act, 42 U.S.C. Section 7401 ê1 §illI; the Clean Water Act, 33 U.S.C. Section 1251 ê1 §illI; and the Water Quality Act of 1987; the Federal Insecticide, Fungicide, and Rodenticide Act 7 U.S.C. Section 136 ê1 §illI; the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. Section 1401 ê1 §illI; the National Environmental Policy Act, 42 U.S.C. Section 4321 ê1 §illI; the Noise Control Act, 42 U.S.C. Section 4901 ê1 §illI; the Occupational Safety and Health Act, 29 U.S.C. Section 651 ê1 §illI; the Resource Conservation and Recovery Act 42 U.S.C. Section 6901 ê1 §illI; as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. Section 30Of ê1 §illI; the Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C. Section 9601 ê1 §illI; as amended by the Superfund Amendments and Reauthorization Act, the Emergency Planning and Community Right-to-Know Act and the Radon Gas and Indoor Air Quality Research Act; the Toxic Substances Control Act 15 U.S.C. Section 2601 ê1 §illI; the Atomic Energy Act, 42 U.S.C. Section 2011 ê1 §illI; and the Nuclear Waste Policy Act of 1982, 42 U.S.C. Section 10101 ê1 §illI; and state and local environmental statutes and ordinances, with implementing regulations and rules in effect on or prior to the date hereof. 6. EMINENT DOMAIN OR TAKING: PHYSICAL DAMAGE OR DESTRUCTION. 6.1 If, prior to the close of escrow, any material portion of the Property is taken or if the access thereto or available parking area therefor is reduced or restricted by eminent domain or otherwise (or becomes the subject of a pending, threatened or contemplated taking which has not been consummated, other than any such taking prosecuted by or on behalf of the Buyer), Sellers shall immediately notify Buyer of such fact. In such event, Buyer shall have the option, in its sole and absolute discretion, to terminate this Agreement upon written notice to Sellers given not later than ten (10) business days after receipt of Sellers notice. If Buyer does not exercise this option to terminate this Agreement, neither party shall have the right to terminate this Agreement, but the Sellers shall assign and turn over to Buyer, and the Buyer shall be entitled to receive and keep, all awards for the taking by eminent domain which accrue to Sellers, and the parties shall proceed to the close of escrow pursuant to the terms hereof, without modification of the terms of this Agreement and without any reduction in the Purchase Price (except as otherwise provided pursuant to Paragraph 1.2 hereof). Unless and until this Agreement is terminated, Sellers shall take no action with respect to any eminent domain proceeding without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed. 10 R:IOldtownlOTACQlPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I 6.2 If, prior to the close of escrow, any material portion of the Property is physically damaged or destroyed due to any cause, natural or otherwise, including, without limitation, (i) fire or flooding, (ii) any destructive seismic or geological conditions such as any earthquake or tremor, subsidence, or unstable subsurface conditions; or (iii) a condition arising from any discharge of Hazardous Materials or other violation of any Environmental Laws, Sellers shall immediately notify Buyer of such fact. In such event, Buyer shall have the option, in its sole and absolute discretion, to terminate this Agreement upon written notice to Sellers given not later than ten (10) business days after receipt of Sellers notice. If Buyer does not exercise this option to terminate this Agreement, neither party shall have the right to terminate this Agreement, but the Sellers shall assign and turn over, and the Buyer shall be entitled to receive and keep, all insurance proceeds paid by Sellers insurer in connection with such damage or destruction, and the parties shall proceed to the close of escrow pursuant to the terms hereof, without modification of the terms of this Agreement and without any reduction in the Purchase Price (except as otherwise provided pursuant to Paragraph 1.2 hereof). Unless and until this Agreement is terminated, Sellers shall take no action with respect to any such damage and destruction without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed. 7. INCORPORATION OF EXHIBITS. All exhibits attached hereto and referred to herein are incorporated in this Agreement as though fully set forth herein. 8. ATTORNEYS' FEES. In any action between Buyer and Sellers seeking enforcement of any of the terms and provisions of this Agreement, or 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, not limited to taxable costs, reasonable attorneys' fees and reasonable fees of expert witnesses. 9. NOTICES. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and personally delivered, sent by first class United States registered or certified mail, postage prepaid, return receipt requested, or sent by a nationally recognized courier service such as Federal Express, duly addressed to the parties as follows: To Buyer: City of Temecula 43200 Business Park Drive Post Office Box 9033 Temecula, California 92589 Attention: John Meyer Tel: (909) 694-6412 Fax: (909) 693-3903 11 R:IOldtownlOTACQIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I With a Copy To: Richards, Watson and Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071- 3101 Attention: Peter Thorson Tel: (213) 626-8484 Fax: (213) 626-0078 To Sellers: John Moramarco Post Office Box 906 Temecula, California 92593 To Escrow Holder: First American Title Company 3625 Fourteenth Street Riverside, CA 92501 Tel: (909) 787-1723 Fax: (909) 784-7956 Attention: Debbie Newton, Title Officer Delivery of any notice or other communication hereunder shall be deemed made on the date of actual delivery thereof to the address of the addressee, if personally delivered, and on the date indicated in the return receipt or courier's records as the date of delivery or as the date of first attempted delivery, if sent by mail or courier service. Any party may change its address for purposes of this Paragraph 10 by giving notice to the other party and to Escrow Holder as herein provided. 10. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned by either party without the prior written consent of the other party. 11. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their successors and assigns. 12. ENTIRE AGREEMENT. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein, and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended, supplemented or in any way modified except by an agreement in writing signed by the parties hereto or their respective successors in interest and expressly stating that it is an amendment of this Agreement. 12 R:IOldtownlOTACQIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I 13. ENFORCEMENT OF AGREEMENT BY SELLER. If the sale of the Property is not consummated as a result of the Buyer's material default hereunder, then Sellers may enforce their rights hereunder by an action against Buyer for damages, resulting from the material breach of this Agreement by Buyer. 14. ENFORCEMENT OF AGREEMENT BY BUYER. It is agreed that the rights granted to Buyer by Sellers hereunder are of a special and unique kind and character, and that, if there is a breach by Seller of any material provision of this Agreement, Buyer would not have any adequate remedy at law. It is expressly agreed, therefore, that Buyer's rights hereunder may be enforced by an action for specific performance and such other equitable or legal relief as is provided under the laws of the State of California. 15. HEADINGS. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement. 16. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. 17. SURVIVAL. Any provision hereof which is executory as of the Closing Date and all representations and warranties shall survive such close of escrow and delivery of the Grant Deed and shall continue to be a binding provision on the parties hereto according to its terms. 18. TIME OF THE ESSENCE. Time is of the essence of this Agreement. 19. THIRD PARTIES. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement. 20. SEVERABILITY. If anyone or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless such invalidity, illegality or unenforceability materially affects the economic terms of the transactions contemplated by this Agreement or the ability of either party to perform its obligations under this Agreement. In such case, either party may terminate this Agreement and the escrow upon written notice to the other party given no later than ten (10) business days after the party giving such notice becomes aware of such invalidity, illegality or unenforceability. In the event of such termination, all funds deposited with Escrow Holder by Buyer and any interest accrued thereon shall be returned to Buyer. 13 R:IOldtownlOTACOIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I 21. ADDITIONAL DOCUMENTS. Each party hereto agrees to perform any further acts and to execute, acknowledge and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement. 22. IRREVOCABLE OFFER BY SELLERS. Sellers execution and delivery to Buyer of this Agreement shall constitute an offer to sell the Property pursuant to the terms stated herein, which offer shall be irrevocable by Sellers, provided that Buyer accepts such offer by executing and returning to Sellers a counterpart of this Agreement on or before December 18, 2003. Sellers understand and agree that Buyer is a governmental entity which must schedule and hold one or more meetings of its governing body in order to authorize Buyer's acceptance of this offer and that Buyer is relying on the irrevocability of this offer in processing it for consideration by the City Council of the City of Temecula and its governing body. Sellers further acknowledges and agrees that this Agreement is tendered under the provisions of California Evidence Code Section 1152, and in the event this Agreement is not fully executed by the parties hereto, or is terminated for any reason whatsoever, this Agreement shall not be admissible to prove Buyer's liability in inverse condemnation, for precondemnation damages or otherwise, and may not be used as an admission of value in any eminent domain or other proceeding. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. "SELLERS" JON A. MORAMARCO , A Married Man as his Sole and Separate Property CINTHIA E. MORAMARCO, AKA CYNTHIA E. MORAMARCO, A Single Woman CINTHIA E. MORAMARCO, AKA CYNTHIA E. MORAMARCO, An Unmarried Woman CONSTANCE JEAN MORAMARCO, A Married Woman, as her Sole and Separate Property ANTHONY JAMES MORAMARCO, A Single Man JON A. MORAMARCO, Trustee Under Declaration of Trust Known as the Jon Moramarco Children's Trust Dated December 15, 1989 14 R:IOldtownlOTACQlPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I JOHN A MORAMARCO, Trustee Under Declaration of Trust Dated March 30,1989 BUYER: THE CITY OF TEMECULA, a municipal corporation By: Jeff Stone, Mayor Attest: Susan Jones, CMC/City Clerk APPROVED AS TO FORM: Richards, Watson & Gershon By: Peter Thorson, City Attorney 15 R:IOldtownlOTACOIPurchase Sale Agreement - Moramarco1.DOC 11087.0001/754045-1 11/1312003 I I I EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY LOT 31, IN BLOCK 5 OF THE TOWN OF TEMECULA, IN THE COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 15, PAGE(S) 726 OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. TOGETHER WITH THOSE PORTIONS OF MAIN STREET IN SAID BLOCK 5 THAT WOULD PASS BY A CONVEYANCE DESCRIBED IN SAID LOTS, SAID MAIN STREET HAVING BEEN VACATED BY RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF RIVERSIDE, A CERTIFIED COpy OF SAID RESOLUTION BEING RECORDED APRIL 23, 1975 AS INSTRUMENT NO. 46491 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. ALSO TOGETHER WITH THOSE PORTIONS OF THAT CERTAIN UNNAMED ALLEY, 20.00 FEET IN WIDTH, LYING WITHIN SAID BLOCK 5, THAT WOULD PASS BY A CONVEYANCE DESCRIBED IN SAID LOTS, SAID ALLEY HAVING BEEN ABANDONED BY A RESOLUTION OF THE BOARD OF SUPERVISORS OF RIVERSIDE COUNTY, A CERTIFIED COpy OF SAID RESOLUTION RECORDED APRIL 23, 1979 AS INSTRUMENT NO. 80863 OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THOSE PORTIONS THEREOF AS CONVEYED TO THE STATE OF CALIFORNIA BY DEEDS RECORDED FEBRUARY 26, 1948 IN BOOK 893 PAGE 373 AND JANUARY 17,1972 AS INSTRUMENT NO. 6303 BOTH OF OFFICIAL RECORDS OF RIVERSIDE COUNTY, CALIFORNIA. A.P.N. 922-041-008, 009, and 010 12012-0001\749075v1.doc A-1 11/04/03