HomeMy WebLinkAbout04-026 CC Resolution
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RESOLUTION NO. 04-26
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
ALONG THE EAST SIDE OF MERCEDES NORTH OF 2ND STREET
(APN 922-042-007) 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
along the east side of Mercedes north of 2nd Street (APN 922-042-007) in the City of
Temecula for redevelopment 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
Stephen E. McKenzie which Purchase Agreement is dated as of March 16, 2004. The Mayor
of the City of Temecula is hereby authorized and directed to execute the Agreement on behalf
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of the City.
PASSED, APPROVED AND ADOPTED, by the City Council of the City of Temecula this
16th day of March, 2004.
ATTEST:
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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. 04-26 was duly and regularl~ adopted by the City Council of the City of
Temecula at a regular meeting thereof held on the 16t ay of March, 2004, by the following vote:
AYES: 5
Naggar
NOES: 0
ABSENT: 0
ABSTAIN: 0
COUNCILMEMBERS:
Comerchero, Roberts. Stone, Washington,
COUNCILMEMBERS: None
COUNCILMEMBERS: None
COUNCILMEMBERS: None
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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 March 16, 2004, is entered into by and between IRA B. DIXON,
Trustee, Dixon Family Trust dated February 22, 1980, (collectively "Seller"), 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. Seller agrees to sell to Buyer and Buyer agrees to
purchase from Seller good and marketable fee simple title to that certain real property of
approximately 27,000 square feet identified as Assessor's Parcel Number 922-032-021, 922-
032-022,922-032-028, located in the City of Temecula, County of Riverside, State of California,
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 Seller ("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 Four Hundred Thirty Five Thousand Dollars ($435,000), payable in cash. The purchase
price is broken down as follows: Land Value - $435,000. Within five (15) 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, 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.
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1.3 No Relocation Assistance. Seller hereby acknowledges and agrees 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 Seller and Buyer resulting from Seller's having
offered the Property for sale. Seller 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. Seller hereby further waives any and all
claims it 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
AL TA 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 November
10,2003, Order No. 2607019692-55 (the "Preliminary Report"): 1,2,3, and 4.
2.2 Acts After Date of Aareement. During the period from the date of this
Agreement through the close of escrow, Seller 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
Property without the prior written consent of the Buyer, which consent shall not be unreasonably
withheld.
2.3 ODtion for AL T A Coveraae. Buyer shall have the option of obtaining an
AL T A Extended Coverage Form Policy of Title Insurance or a CL T A Standard Coverage Form
Owners Policy of Title Insurance. In such event, Buyer shall, at its expense, procure the ALTA
Extended Coverage Survey (the "Survey"); provided, that, Seller shall provide to Buyer, at no
cost to Buyer and within five (5) days after execution of this Agreement, a copy of Seller's 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.
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3.
RIGHT OF ENTRY.
3.1 Seller hereby grants 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 Seller 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. Seller and it 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 Seller 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
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
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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 Agreement 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 Seller 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 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 Opening 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.
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4.4 Close of Escrow. Provided all of Seller's 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 Seller 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 ReQuired 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 Seller ReQuired to Deliver. Before the close of escrow, Seller 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 Seller; and
4.6.3 Any other documents contemplated by this Agreement or required
by Escrow Holder or the Title Company to be deposited by Seller to carry out this escrow.
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 Seller shall be able to deliver possession of the Property to Buyer free of all tenants,
leases and/or agreements. Seller agrees 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:
Seller hereunder;
4.7.1 Seller shall have performed all agreements to be performed by
4.7.2 Seller's 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;
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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 Seller is 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 Seller 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
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 Seller under this Agreement:
(i) This Agreement, the escrow and the rights and obligations of Buyer and
Seller 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 Seller 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 Seller all funds and documents deposited by Seller 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 Seller.
4.9 Prorations. All real and personal property taxes, liens and assessments
shall be prorated between Buyer and Seller as of the close of escrow based on the latest
available tax information or, at Seller's 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
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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 Seller 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 Seller shall pay:
(a)
The cost of any obligations of Seller hereunder.
4.10.2 Buyer shall pay:
(a)
All escrow fees and costs associated with the purchase of
the subject real property;
(b)
(c)
The cost of recording the Grant Deed, if any;
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 Seller 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. Seller covenants
and agrees 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 Seller.
Seller agrees 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 (V2) of all escrow and title cancellation charges.
5.
REPRESENTATIONS AND WARRANTIES BY SELLER.
In consideration of Buyer's entering into this Agreement and as an inducement to
Buyer to purchase the Property, Seller makes the following representations and warranties,
each of which is material and is being relied upon by Buyer (the continued truth and accuracy of
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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 Seller and no other action is requisite to the valid and binding execution, delivery
and performance of this Agreement by Seller;
5.2 There are no suits pending against or affecting or, to the best of Seller's
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 Seller of the transaction
contemplated pursuant to this Agreement;
5.4 To Seller's best knowledge, there are no materials, reports and
information in Seller's 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. Seller shall deliver to Buyer any materials and reports relating to the Environmental
Condition of the Property which comes into Seller's possession, and any information relating to
the Environmental Condition of the Property of which Seller becomes aware;
5.5 To the best of Seller's knowledge, Seller is 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 Seller's 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 Seller's knowledge there has been no production, disposal
or storage on the Property of any Hazardous Materials (as hereinafter defined) by Seller or any
of the contractors, agents, employees or representatives of Seller or, to the best of Seller's
knowledge, any previous owner or current or previous tenant of the Property; and to the best of
Seller's 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
Seller is 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.
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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 m gm; 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 m gm; asbestos
and asbestos-containing materials, PCBs and other substances regulated under the Toxic
Substances Control Act, 15 U.S.C. Section 2601 m gm; 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
m gm; industrial process and pollution control wastes, whether or not hazardous within the
meaning of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 m gm.; 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 m gm; the Clean Water Act, 33 U.S.C. Section 1251
m gm; and the Water Quality Act of 1987; the Federal Insecticide, Fungicide, and Rodenticide
Act 7 U.S.C. Section 136 m gm; the Marine Protection, Research, and Sanctuaries Act,
33 U.S.C. Section 1401 m gm; the National Environmental Policy Act, 42 U.S.C. Section 4321
m gm; the Noise Control Act, 42 U.S.C. Section 4901 m gm; the Occupational Safety and
Health Act, 29 U.S.C. Section 651 m gm; the Resource Conservation and Recovery Act 42
U.S.C. Section 6901 m gm; as amended by the Hazardous and Solid Waste Amendments of
1984; the Safe Drinking Water Act, 42 U.S.C. Section 300f m gm; the Comprehensive
Environmental Response, Compensation and Liability Act 42 U.S.C. Section 9601 m gm; 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 m gm; the Atomic Energy Act, 42 U.S.C.
Section 2011 m gm; and the Nuclear Waste Policy Act of 1982, 42 U.S.C. Section 10101 m
gm; 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), Seller 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
Seller given not later than ten (10) business days after receipt of Seller's notice. If Buyer does
not exercise this option to terminate this Agreement, neither party shall have the right to
terminate this Agreement, but the Seller 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
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Seller, 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, Seller 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.
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, Seller
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 Seller given not
later than ten (10) business days after receipt of Seller's notice. If Buyer does not exercise this
option to terminate this Agreement, neither party shall have the right to terminate this
Agreement, but the Seller shall assign and turn over, and the Buyer shall be entitled to receive
and keep, all insurance proceeds paid by Seller's 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, Seller 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 Seller 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
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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 Seller:
Marion L. Dixon, Trustee
c/o Dixon Family Trust
24962 Calle Aragon #8426
Laguna Woods, CA 91765
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.
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 Seller may enforce
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its 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 Seller 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.
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 SELLER. Seller's 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 Seller, provided that Buyer accepts such offer by executing
and returning to Seller a counterpart of this Agreement on or before March 12, 2004. Seller
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understands and agrees 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. Seller 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.
"SELLER"
MARION L. DIXON
DIXON FAMILY TRUST
dated February 22, 1980
"BUYER"
THE CITY OF TEMECULA, a municipal
corporation
By:
Jeff Stone, Mayor
MARION L. DIXON
Attest:
Susan Jones, City Clerk
APPROVED AS TO FORM:
Richards, Watson & Gershon
By:
Peter Thorson, City Attorney
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
.09, .17 AND .36 Acre, more or less, in Lots 3,4,5,6,8, 10 and 11 of Block 4, Map Book
015, Page 726 of Maps, SD Town of Temecula, in the City of Temecula, County of
Riverside, State of California, according to records of the County Assessor of said
County.
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