Resolution No. 8995*PLEASE REFER TO
RESOLUTION NO.2016-04 FINAL
DOCUMENTS (PDFs Received) FOR
3200 FRUITLAND (PECHINEY)
- FINAL ASSIGNMENT AND ASSUMPTION
- FINAL EDI AGREEMENT
- FINAL ADDED FACILITIES AGREEMENT
- FINAL JOINT CLOSING INSTRUCTIONS
- FINAL ESCROW AGREEMENT
- FINAL BUYER'S SETTLEMENT STATEMENT
- FINAL CITY -OWNER SETTLEMENT
STATEMENT
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RESOLUTION NO. 8995
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS
AND ADDENDUM FOR THE PURCHASE BY AND BETWEEN THE
CITY OF VERNON AND'PECHINEY CASTE PLATE, INC. FOR
PROPERTY LOCATED AT 3200 FRUITLAND AVENUE
WHEREAS, the City of Vernon desires to purchase certain real
property in the City consisting of approximately 1,174,375 square feet,
commonly known as 3200 Fruitland Avenue in the City of Vernon (the
"Property") from Pechiney Caste Plate, Inc. ("Pechiney") for
approximately $36,500,000.00 for future development; and
WHEREAS, Pechiney has agreed to sell the Property to the
City on negotiated terms, which the City has determined to be fair and
reasonable; and
WHEREAS, City staff have recommended that the Property be
purchased and the necessary documents executed to implement the
purchase.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Standard Offer, Agreement and Escrow Instructions for
Purchase of Real Estate and Addendum to Standard Offer, Agreement and
Escrow Instructions for Purchase of Real Estate with Pechiney, in
substantially the same form as the copy which is attached hereto as
v
1 Exhibit A and incorporated by reference.
2 SECTION 3: The City Council of the City of Vernon hereby
3 authorizes the Mayor to execute the Agreement and Addendum for, and on
4 behalf of, the City of Vernon and the Acting City Clerk is hereby
5 authorized to attest thereto.
6 SECTION 4: The City Council of the City of Vernon hereby
7 authorizes the Acting City Clerk, or his designee, to make whatever
8 nonsubstantive, administrative and/or text changes, upon advice of
9 counsel, to the Agreement and Addendum.
10 SECTION 5: The City Council of the City of Vernon hereby
11 authorizes the Acting City Clerk, or his designee, to execute any and
12 all documents as shall be required to complete the acquisition of the
13 Property and to accomplish the close of escrow consistent with the
14 terms of said Agreement and Addendum approved herein.
15 SECTION 6: The Acting City Clerk of the City of Vernon
16 shall certify to the passage of this resolution, and thereupon and
17 thereafter the same shall be in full force and effect.
18 APPROVED AND ADOPTED this 22Id day of March, 2006.
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LEONIS C. MAhBURG, Mayor
22 ATTEST:
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25 BRUCE V. MALKENHORST, JR., Acting City Clerk
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of
Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 8995, was duly adopted by the 'City Council of the City
of Vernon at a regular meeting of the City Council duly held on
Wednesday, March 22, 2006, and thereafter was duly signed by the Mayor
of the City of Vernon.
BRUCE V. MALKENHORST, JR.
Acting City Clerk
(S EAL )
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EXHIBIT
VJ&
STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
(Non -Residential)
AIR Commercial Real Estate Association
March , 2006
1 Buyer. (Date for Reference Purposes)
1.1 the City of Vernon (.Buyer)
hereby offers to purchas
e the real property, henGrsfar described, from the owner thereof (-Sailer) (00%cov*, tte -Parties- ofIndivktualiy,
through an escrow ("Escrovt) . a ouyv )
91 INS a004tobehold byNorth American Title Company (Tina DeBow) ("Escrow Holder) whose address is
520 North Brand Boulevard Glendale California 91203
Phone No. (818) 551-5370 , Fac�nile No. _ (818) 240-9884
upon the terms and oondltlo' set foAtr Fn ttds M ("Agreernenl"}• Buyer shall haw the right to assign Buyers rights Mreunderriwi amp
1.2 The term -Dote of Apnemenr "used heroin shah be to date when by execution and delivery
document r a subsequent counteroft thereto, Buyer and Seiler haw reacted agreement in writing whey 3etier agree wq If, _Aft'.'
nd uyerr hag agrees to
Property upon tart' accepted by both Parties.
2. Property.
2.1 The real property (,Property") that Is #0 $it," of thb offer consists of (insert a brief physical description) an approximately
1,174,375 square foot industrial site
is located In the City of City of Vernon , County of Los Angeles
State of California , Is commonly known by the street address of 3200 Fruitland Avenue, Vernon,
California 90058
and is legally described as:
(APN:6310-008-010, 011, 012 6 013 ).
pleted
.22 If the legal description of the PropertyIs not complete oor corrected r Inaccurate, t Agreement shah be InwUd and the legal description shall be
commeet the requirements Fidelity National Title Company (Jeff Dasse}of
, Phone (800) 359 2625, Fax (818) 758 3263
("Tee CorepaW), which shall issue the No policy hereinafter described.
2.3 The Proper'ewer, Ow powatom is includes all Improvements thereon, except those which
�,.. �udlnrf thou Nema • -'-- - -° - � - --� � .�- ------ - -- - -
pWVAC4r sip maw
will be demolishad ha, c.n r -- --4 _-_-
AAva cu
o Buyer at the Close of Escrow by means of a bill of sale, which shall contain no
representations or warranties other than the representation of Seller that the Units are
free and clear of all liens claims and encumbrances. The exact number of Units shall be
determined prior to the Close of Escrow.
the 4w4"`9v@wANdv4.
MGM, Isom VAIN ow Am morillwhis —0.0 OF R fiswww'
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ts
2.5 The Purchase Price does not include SeWrs personal property, furniture or a w fumishinga, and
which shag be removed by Ssnerj*w44inft an of
3. Purchase Price.
3.1 The purchase price ('Purohe" Price') to be paid by Buyer b Seller for the P
$36,500,000.-00, subject to adjustment as provided herein 1°shall be
Closing.ereireva: payable in cash (including thhee Deposit) at
(met
41
INN Pop
44
IMP 4F Des'
4. Deposits.
4.1
Holder a check Or wire transfer Inthesum of $600, 000.00 ® Buyer shun deliver to Escrow
wtnn both Pardn have executed this Agreement and
the executed .Agreement has been delivered b Escrow Holder. When Cashed the chock (or such wire -transferred funds, when
received) shag be deposited brto 1M Escrow's trust account to be applied toward the Pwdgp Price of the Party at the Closing. 8geuld pryer
4.2 Additional deposit:Is guy"
(b) Additional deposits shall be made pursuant to Paragraph 26.16 of the Addendum attached hereto.
4.3
Federally Echs scrow Holder bank In � WE 4 by Buyer pursuant to paragraphs 4.1 and 4.2 (aolecWsiy the *Deposit*), Ina State or
Interest therefrom shall accrue In the be d term Is appropriate and consistent with the fi ft requirements of this transaction. The
Instrument redeemed PrW to ffs specl ied mM�, who ' 14nowledges that there may be pension or interest forfeitures ff the applicable
Interest nt I urily. Buyer's Federal Tax Identification Number Is 95-60000806 . NOTE: Such
ring account cannot be opened untiBuY l $ Federal Tax Identification Number is pro
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T. Real Estate Brokers.
Parties (check the appBoabl re: 1 estalo bmk*r(a) ("Brokers") and brokerage relationships exist In this transaction and are consented to by the
® CB Richard Ellis, Inc. represents $ WrexclusNalyr8elleesBrokee);
® Cushman & Wakefield mP*W s Buyer exclusively (•Buyer's Broker"); or
O rapreaents both Seller and Buyer C Dual Agency').
The Parties aodurowledgs than Broken are t#e procwing cen»e d this Agreement See paragraph 24 regarding the nature of a real estate ageno,
7.2 r and Seller each Buys rs 0 Ag Isnd nt " lo the other that he/sheAt has had no dealings with any person, firm, broker or finder in
con9d In with the negotiation d this r or odeM and/or the oonsummailon of tie purchass and "0 contemplated heroin, other than the Broken
named in paragraph T.1, and no broker or corer person, Ann or entity, other than said Broken blare entitled to any commisaion or finders fee In
connection this trensscliOn as the rs" of arty deafirrga or acb of such Party. Buyer and 8e1W do each hereby agree to Indemnify, defend, protect
and hold the other harmless; from and againdt any costs, expenses or Ilabalty for compansatlon, oonarniabn or charges which may be claimed by any
broker, finder or otter similar party, cow orsn said named Broken by reason d any deafirgs or act d the ion Or harp Party.
S. Escrow and Closing
8.1 Upon scceptance hared by SaW . this shah constitute not only
ten agreement of purchase and sale between Buyer and Seller, but also Inshuotlor s to Escrow Holder for oe oonsunwnation of tie ApreemsM through
the Escrow. Escrow Helder shall rot trepan any furew escrow kwtnwftu g or amending the Agreemard unless specifically so Instructed by
the Parties or a Broker herein. 8u*d to the nasonabb approval of the Parties, Escrow Holder may, how*wr, Include Its standard general escrow
provisions so long as such standard general escrow provisions state that in the event of a conflict between the
standard general escrow provisions and this Agreement, the terms'of this Agreement shall control.
8.2 As soon as practical after the MOW of this Agreement ft, Escrow Holder shall ascertain the Date of Agnamant
as defined in paragraph* 1.2 and 20 and advise on Parties and Broken, In writing, of the data ascerteinad.
8.3 Escrow Holder Is hereby au#wftW and Msbuded to conduct the Escrow In a000rdsrwe with this Agnem*M, applicable law and custom and
Practice of the community In which Escrow HoMw is located, Including any reporting requ aments of oe Internal Revenue Code. In the event of a
conflict between tha law of the state whwe till Property is located and tie law of the stets when the Escrow Holder Is located, the law of the state
when the Property Is WNW shah prevail.
8.4 Subject to satisfaction doe contingencies herein described, Escrow Holder shall dose ode escrow (the "Closing") by recording a OsmW
waxwAy grant and the other documents required to be recorded, and by diaburskg the funds and documents in
accordance with Arts Agreement.
8.5 Buyer and SOWS shall each pray one-half of oe Escrow Holders charges and Seller shag pay the usual recording fees and any required
documentary transfer taxes' SW W ahail pay the premium for a standard coverage owners or Joint protection poky of title Insurance. Buyer shall
pay for any charges for ALTA extended coverage (including the costs of any required survey), and for any title
endorsements which Buyer may request.
8.6 Escrow Holder shall verity that all of Buyers condngenclee have been *WsWd or waived prior to closing. Other provisions of this
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Agreement which do not constitute Instructions to Escrow Holder
+ matters of agreement between the Parties with which
Escrow Holder need not be concerned
8.7 If this transaction 14t*m*m tad for non-eatidacdon and =w4siver of a Buyers Contingency, as defined in paragraph 9.2, then neither of the
Parties shall thereafter have any hablhty to tiro other under this Agreement, except to the extent of a breach of any affirmative covenant or warranty in
this Agreement and except for the Buyer's indemnities under Paragraph 14, in the event of such termination, Buyer ,nail be
Promptly refunded all funds deposited by Buyer with Escrow Holder, less only Title Company and Escrow Holder cancellation fees and costa, ah of
which shall be Buyers obllgatlon.
8.8 The Closing shah occur on the Erpecbd Closing Data, or as soon thersaffsr as the Escrow Is in c mdklon for Closing; provided, however, that
if
the Closing does not occur by the Expected C m ft Date and said Date le not extended by axdual hstrucdww of the Parties, a Party not then 1n
default under this Agreement may notify the ofhar Party, Escrow Holder, and Brokers, in writing that, unless to Closing occurs within two 2 i
business days following said notice, the Escrow shah be deemith
deemed terminated wout AVOW notice or Instructions. ( )
8.0 Except as otherwise provided herein, the termination of Escrow shah not rehew or release eltlror Party from any obligation to pay Escrow
agreements, covenants or contained #main. or dlech no of any breach or default that has occurred In the performance of the obligstkms,
W8.10 If this Escrow is tenninsled for any reason oter hthan Sep 4 broach or dot" than at Sehers request, cysk "OPasNrBuyer stroll within 8 days after written request "Im to Saw, at no charge, copies of ah surveys, engheerfng studies, soh repots,
not a. moder plansto die er any s ity studin and other aMnpar gams prepared by or for Buyer that pertain to the Property. Provided, however, that Buyer shah
report if the written contract which Buyer entared kdo with the consultant who prepared such repot specifically
forbids the dissemination of tors report m others. Seller acknowledges that any reports described in this Paragraph 8.10
that are delivered by Buyer to Seiler, including, without limitation, any reports obtained by Buyer or prepared by
any agency of Buyer, are being delivered to Seller merely as an accommodation, and without representation or
warranty as to the sufficiency, accuracy, completeness or validity of such reports.
9. Contingencies to Closing.
9.1 The Closing of tints transaction is contIng" upon the astisfaction or waver of thaMbwbV
certdnpsndes. IF BUYER FAILS TO NOTIFY
ESCROW HOLDER AND SELLER, IN WRITING, OF THE APPROVAL rDWAppROiIAr, OF ANY OF SAID CONTINGENCIES WITHIN THE TIME
SPECIFIED THEREIN, IT SHALL SE CONCLUSIVELY PRESUMED THAT BUYER HAS DISAPPROVED con
approApplili% SUCH ITEM; MATTER OR
DOCUMENT. Buyer's conditional approval strap sfltuda disapproval. ta>fess p Is made by fro SeNW wit>fn tiro dme _
the
Buyer in such conditional approval or by this Agreement, whichever is later, for tha satisfaction of ten condltlon Imposed by the Buyer Escrow by
$hah In provide all Parties with copies of any written disapproval or conditional approval whloin k reosNes. With
through (1) the ors -printed time regard to subparagraphs (a)
Periods shah control unless a different number of days is hearted in the spaces provided. With regard t0 the
contingencies set forth in this Paragraph 9.1, the time periods set forth in Paragraph 26.5 of the Addendum
shall control, to the extent that they are different from the time periods set forth in this Paragraph 9.1,
Further details as to Buyer's Contingencies are set forth in Paragraph 26.6 of the Addendum and shall
control over any terms set forth in the Pre -Printed Form.
(a) Dlsdosura- Seller shah make to Buyer. through escrow, ale of the applicable disclosures required by law is" the AIR Commercial Real
Estate Association ("Apr) standard form anti 0d 'Sahara Mandatory andatory Disclosure Statement' may be used for these purposes) and provide
Buyer with a completed Property Infornuftn Sheet (properly Information Shear) concerning the Property, duly executed by or on behalf of Seiler in
the current form or egUWW to that published by the AIR within 10 or days following the Data of Agreement. Buyer has 30 40 days from
the receipt of said disclosures to approve or disapprove the matters disclosed.
(b) Phyakel Inspeclbrr. Buyer has 40-er 30 days from the
wlhiakeveFNaaterm-to satisfy Itself with regard to the phyNcel aspects end size of the Property. to of Agreement
(c) Hazardous Substance Condlrlorm Report, Buyer has 30 OFof days from the ate
Hazardous Agreement
Conditions Report with regard to the environmental aspects of the Property. Seller recommends that Buyer obtain a
spat conceming the Property and relevant adjoining pmWINN. pinny each report shall be paid for by Buyer. A
'Hazardous Substene' for Pie of title Agreement is defined es any substance whose nature and/or quantity of existence, for
manufacture,
disposal or effect, render It subject to Federal, state or local regulation, investigation, mnedieyon or rmarrhovsd as quantity
of a istanc , toe, mablic health e,
or
welfare or the environment. A Itumilous Substance Condition' for purposes of thts Agreement Is defined as tiro existence on, under or
relevantly adjacent to the Property of a Hazardous Substance that would require
law. ramedladon and/or removal tinder applicable Federal, state aoca local
(d) SoM Imapeotfon. Buyer has 30 es days from the
later, to $atisfy itself with roped to tfha oondltiorh of the sops on theuyer am ate of Agreement, �
OMB be pail for by Buyer. eager shall provide Buyer copies of any soft report g own t soh test Afire Any such report
(a) Governmental Approvals. Buyer has 30 er days from to Date of 10 days at fro Date of and to pp
Permits from govemmental agencies or departments which have or may new Jurisdiction over the AOfees+ent to satlefy Nee with with regard to approvals and
desirable In connection wit► its Intended use of tha Property, holuding, but not halted n Pub and which Buyer deems necessary or
Planning, buhdhg and safety, fire, police, handicapped and Americans with DisablMse Act requlnmenig, n pprov � envies m ttem,
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(f) Conditions of Mo. Escrow Holder shall cause a current sommilmew-ioF title report Inewonse ('Title Report Commitment•)
concerning the Property Issued by the TNN Company, a well as legible copies of ace documents referred to In the Title Report csmmhmsnt
('underlying Documents') to be delivered to Buyer within 10 or days following the Date of Agreement. Buyer has 40 30 days from the
Date of Agreement to ud* tleelf with regard to the condition of use. The
disapproval of Buyer of any monetary snc umbnnce, which by the terms of this Agreement In not to remain against to Property after the Closing, shall
not be considered a failure of this contingency, sal seller shall have the obligation, at SeAars expense, to and remove such disopproved monetary encumbrance at or before to Closing. taflsy
(a) survey. Buyer has 30 w days fromMR-Is" Qowmwomw Date of Agreement
to satisfy Itself with regard to any ALTA title supplement based upon a survey pro to American Land Title Assoclation ("ALTA") standards for an
owners policy by a licensed surveyor, show legal description arrd boundary Ildes of the Property, arty easements of record, and any
improvements, poles, structures and things looatsd within 10 lost of either side of the Property boundary lines. Any such survey shall be prepared at
Buyer's direction and expense. If Buyer has oblaYed a survey and approved the ALTA We sLrppiament, Buyer may elect within the period allowed for
Bu brutabie roeroalto. Of a survey to have an ALTA axWxW coverage owner's form of title policy, in which event Buyer shall pay any additional premium
attSM10----- -- ---._. -
agreements ("Othw Agreernents') bhown fo Seler that will effect the Property after Closing. B t r - - -
Agrosm
ments to satisfy Itself with regard to such Agreeanta. 30 days from the receipt of said Other
99ANNISMay'
_rI- _
ins marerm change. Buyer shall have 10 days blowing receipt of wrlfbn notice of a Material Change within which to satisfy itself with regard
to such change. 'Material Change" shall moot a chance In the physical r4wcondition of the Property that
occurs after the -.date Date of Agreement w this -alter and prior to to Closing which would materially and adversely affect
Buyer's use. unless Oterwia notMed In writing, Escrow Holder stall assume that no Material Chanty has occurred prior to the Closing.
(o) SMierPaformance. The delivery of all doamsnts and the due performance by Seller of each and eve undertaltin and agreement to be
performed by Seller under this Agreement. every 8 0
(p) Wananfies. That each representation and warranty of Seiler herein be true and correct In all material respects as of the CloskV.
Escrow ladder shall assume that this oomditlon has taco satNied unless notified to the contrary In writing by any Party prior to the Closkp.
--ow Pee. Payment
8.2 Ail of the contingencies specified in subparagraphs (a) through (p) of paragraph 9.1 are for the basin of, and may be waived by, Buyer, and
may be elsewhere heroin referred to a 'Buyers conttngenola • Buyer's Contingencies are further described in Paragraph
26.6 of the Addendum and shall be in addition to those set forth in subparagraphs (a) through (g), (I), and (n)
through (p) of Paragraph 9.1 of the Pre -Printed Form,
9.3 If any Buyers Contingency or any otter matter subject to Buyer's approval is not approved (with silence constituting
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disapproval) dleappmved as provided for heroin In a timely manner ('Disapproved Item•), Seller shall have the right but not the obligation
within 10 days following the receipt of notice of Buyer's disapproval (or the end of the relevant time period relating to such
Buyer's Contingency) to *led to we such Disapproved Item prior to the Expected Closing Date ("$ister's Election'). Sellers failure to give to
Buyer within such period, written notice of Sellers comml6rent to cure such Disapproved Ilan on or before the Expected Closing Dab shag be
conclusively presumed to be Beliefs Election not to cure such Disapproved Item. If Seller elects, either by written notice or failure to give written notice.
not to cure a Disapproved Item, Buyer shall have tie election, within 10 days after Sellers Election to aline accept We to the Properly subject to such
Disapproved Item, or to terminate We transaction. Buyses failure to notvy Seller In writing of Buyees election to accept title to the Property subject to
the Disapproved Item without deduction or offset shall constitute Buyers election to terminate this transootiort.
roles the Parties
mutually instruct otherwise, If the 'time periods for the satisfaction of contingencies or for Bevies and Buyefs saki Elections would expire on a date after
the Expected contingency period(s), period within Sever may sled to Data, the Expected Closing Deb shall be do*rned en tide Dlssapproved kem3 business �a (c) If Sever elecfollowing the ts to
expiration of., applicable
period within
which Buyer may Bled to proceed with this transaction, whichever Is later.
0.5 The Parties acknowledge that extensive local, state and Federal lepislation establish broad liability upon owners and/or users of real property
for the Investigation and ro medlation of Hazardous Substances. The determination of the existence of a Hazardous Substance Condition and the
evaluation of the Impad of such a condition are highly technical and beyond the expertise of Brokers. The Parties acknowledge that they have been
advised by Brokers to consult their own technical and legal experts with respect to the possible presence of Hazardous Substances on the Property or
adjoining properties, and Buyer and Seller are not relying upon any Investigation by or statement of Brokers with respect thereto. The Parties hereby
assume all responslbl9ly for the Impact of such Hazardous Substances upon their respective Interests heroin.
10. Documents Regalred at or before Closing:
10.1 Five days prior to the Closing date Escrow Holier shall obtain an updated Tole Report ComplImM concerning the Property from the Title
Company and provide copies thereof to each of the Parties.
10.2 Sever shall deliver to'Escxow Holder In time for delivery to Buyer at the Closing:
(a) Gfw er•96a«ai won&Ny deed, duly executed and In record" form, conveying las We to the Property to Buyer.
(c) If applicable, Agreements together with duly executed assignments fharaof by Seiler to a" Buyer.
Notwithstanding anything herein to the contrary, any Other Agreements which Involve Seller's right against
any third parties (including, but not limited to, prior owners of the Property) to indemnification regarding the
existence of any Hazardous Substance Condition shall not be assigned to Buyer and such rights shall belong
exclusively to Seller.
(GPM published by *a AIR OF k sip W
(a) An aMdevft executed by Seller to the effect that Sever is not a "foreign person• within the mewing of Internal Ravens Code Section 1445
or successor statutes. If Seller does not provide such a(fldevit In form reasonably satisfactory to Strt w at laud 3 business days prior to the Closing,
Escrow Holder shall at tie Closing deduct from S@Ws proceeds and remit to Internal Revenue Service such am as Is required by applicable Federal
law with respell to purchases from foreign severs.
( An &WOVII executed by Sever to the effect that Stier Is not a "nonresident• within the meaning
of California Revenue and Tax Code Section 10042 or succosw statutes. If Sever does not provide such offldev t In form reasonably satisfactory to
Buyer at West 3 business days prior to the Ckoaft. Escrow Holder shall at the Closing deduct from Sellers prooseds and remit to the Franchise Tax
Board such sum as Is required by such statute.
•(s) Ifapplicows, a A bill of sale, dulyexecuted, conveying title to the Units to Buyer, as described in
Paragraph 2.3.
Property. (h) If the Seiler Is a corporation, a duly executed corporate resolution authorizing the execution of We Agreement and the sale of the
10.3 Buyer shati deliver to Seller through Escrow.
(a) The cash portion of the Purchase Price and such adds onat Sams as are required of Buyer under this Agreement shall be deposited by
Buyer with Escrow Folder, by federal funds wins transfer. or any over method acceptable to Escrow Holder as Immediately collectable funds, no late
than 2:00 P.M. on the business day prior to the Expected Closing Dive.
Property tq IT me buyer Isa corporanort, a OW executes corporate resolution authorizing the *xecutlon of this Agreement and the purchase of the
10.4 At Closing, Escrow Holder shall cause tabs Issued to Buyer a standard coverage (or ALTA extended, If elected pursuant to 9.1(g)) owners
form policy of title Insurance effective as of the Glaring. Issued by the Title Company in the full amount of the Purchase Price, Insuring title to the
Property vested In Buyer, subject ordy to the eccrpdors approved by Buyer.
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IMPORT
E OR EKCHANGK OF
IT MAY BE ADVISABLE TO OBTAIN TITLE INSURANCE IN
ECTION
WITH THE CLOSE OF ESCROW SINCE THERE MAY • PRIORRCORDED LIENS AND ENCLIMBRMriM WHICH AFFECT YOUR INTEREST
IN THE PROPERTY BEING ACQUIRED. A NEW POLICY OF TITLE INSURANCE SHOULD BE OBTAINED IN ORDER TO ENSURE YOUR
INTEREST IN THE PROPERTY THAT YOU ARE ACQUIRING.
11. Proration and AdjuslineMt.
11.1 Texas. Ap�icable real property, taxea and SPKW Waessment bonds shall be prorated th�Escrow as of the date of the Closing, based
upon the latest tax biq avaYable. The Parties spree to Prorate se of the Closing any truces s ssaw the Property by suppkrtsental big levied by
reason of events occurring prior b tlw Closing. Paynsnt of the prorated amount shag be made promptly in cash upon receipt of a copy of any
supplemental bill.
11.2 Insurance. WARNING: Any Insurance which Seger may have maintained win terminate on the Closing. Buyeris advised to obtain
appropriate Insurance to oover the Property.
12. Repre"ntatlon and WwTmtdn of Seller and Dischdnw e.
12.1 Seller's warranties and rsPr*sw WW shag survive the closing and delivery of the dead but no action thereon may be brought
by Buyer on a date which is more than 30 months after the Close of Escrow two petim, as a and, are true, material
and relied upon by Buyer and.grekeN in as re p.cta. In the event that Buyer (independently or by Seller disclosure) learns
that a Seller representation or warranty Is untrue or incorrect prior to the Close of Escrow, and Buyer
nevertheless elects to purchase the Property and Close Escrow, then in that event Buyer will be deemed to
have waived any right that it may have to bring an action or proceeding against Seller regarding such
representation or warranty. Sager hereby mMcss tin followkp warranties and reprgard qpm to euyar-amwkskew
Pro(a) Authority of Seller. Sager le On owner of the Property andlor has as full right, Power and authority to sea, convey and tr"er Me
petty to Buyer as provided hauler. and to parlor Sellers obligations hereunder.
(c) Hazardous S"ancowsbwe r&*ft..Except as may be set forth in any environmental reports which are
delivered to Buyer pursuant to this Agreement, Seller has no krcowladga, except as otherwise disclosed to Buyer in writing, of are
existence or prior exlaumos (during the time period that Seller owned the Property) on the Property of any Hazardous substance,
nor of the existence or prior exWartcs (during the time period that Seller owned the Property) of any above or below ground
storage tarok.
(d) con w anc e. Except as may be set forth in any environmental reports which are delivered to Buyer
pursuant to this Agreement, Sager has no lunowledge of any aspect or condition of the Property (excluding any structures
thereon) which vkNates applicable ktws, nrles, reguleaons, codes or covenants. Conditions or restrictions, or of lmprovements or ageratlons made to
the Property without a penult where one was rsgtdced, or of any unfulfilled order or directive of any appgprble govemmental agency or casualty
Insurance company requiring any htvastlgaticn, rerrwdiatlon, repair, M*bnwm or Improvernent be psrfomwd on the Property (excluding any
structures thereon).
Won or (other angst InApnernenfs. Prior to the Closing, Seller Will not violate or modify any brbgrts.i,saee.ef Other Agreement, or create any new
agreements sflacting as Property, wttlW Buyet's written approval, which approval will not be unreasonably withheld.
disclosed (1) sessory Rights. Seger has no Wwwledgs that anyone will, at am Closing, have any right to possession of the Property, except as
by No Agreement or otherwise In writing to bukm
(a) mochardcs' Lima. Seiler has no knowledge of any ;140004N.ne unsatisfied mecharW or matedalmens' Ilan rights concerning
the Property. if any such unsatisfied lions exist as of the Close of Escrow, they shall be paid and satisfied from the
funds due to Seller, unless Seller contests same, in which case Seiler shall provide an appropriate bond so that
such liens are not reflected on Buyer's title insurance policy.
(h) Action, Sulfa or Pro hgs. SOW has no knowperps of actions, suits or proceedirgs pending or threatened before any
commission, board, bureau, eWncY, Wtrator, cmd Or trtbunai that would ~ the Property or to fight to occupy or utilize sans.
(1) Notice of Charges. Seller will promptly notlfy Buyer and Brokers In writing of any Material Change (see paragraph 9.1(n)) affecting the
PAGE 7 OF 14
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Property that becomes known to Seller prior to ft Closing.
(k) No Salver BanknrpW Proosedk P. Seiler is not the subject of a bankruptcy, Insolvency or probate proceeding.
12.2a in the event that Buyer i ms (Independently or by Seller disclosure) #w a Seger representation or warranty might be untrue
Prior to the Closing, and Buyer eiscb to purchase the Property, anyway than. and in that went, Buyer Y g Y
er waives an right that it may have to bring an
action or proceeding against Seller or Brokers ragardkhg aid represerhtation or wartanty.
i!I—&- A ., __.ate----`—' --- -
12.3 Disclaimer of Refrrosentation or Warranties by Seger.
(a) Buyer ado11olydedges to Seder that as of the hosing it wI have conducted any and all
Inspections, tests, analyses, reviews and studies that Buyer may have desired and will have evaluated the
Property (including, without Qrrdtatb% the physical and environmental condition of the Property), to the full
and complete satisfaction of Buyer and that Buyer win mire the property solely on the basis of the
foregoing and the title Insurance protection afforded by the tit insurance policy, and not on the basis of any
information provided or any representations, warranties or cm enants made by Seller, or any person acting on
Seller's behalf, other than the express representations, warranties or covenants made by Seder set forth in
this Agreement.
(b) BUYER ACKNOWLEDGES AND AGREES THAT THE SALE OF THE PROPERTY HEREUNDER IS
AND WILL BE MADE ON AN "AS -IS, WHERE -IS" BASIS AND WITH ALL FAULTS AS OF THE DATE OF THE
CLOSE OF ESCROW, WITHOUT ANY REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION
OR ENVIRONMENTAL CONDITION OF THE PROPERTY, OR ANY OTHER REPRESENTATIONS OR WARRANTIES,
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN
THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY NEGATES AND
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE
OR OTHERWISE, OF, AS, TO, CONCERNING OR WITH RESPECT TO, THE PROPERTY, OR THE MERCHANTABILITY
OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE,
(c) Buyer further acknowledges that certain information and materials provided or to be provided
by Seiler or any person acting on Seftes behalf with respect to the property may have been obtained from
third parties (the "third Party Reports'), and that Seiler has not made any independent Investigation or
verification of information and materials set forth in the Third party Reports, and that Seder therefore
disclaims any representations or warranties as to the accuracy or the completoness of information and
materials set forth In the third Party Reports. Seder will not be Ilabde for arty negligent misrepresentation set
forth In the Third Party Reports that Is not the result of a misrepresentation by the Seder or its agents or
employees to the consultant preparing the Third Party Reports.
(d) As used In this Agreement, the phrase "Seder's browkdge" (or slnldar phrase) means the
actual, present knowledge of Greg Sutherland whose tit is - without any duty of inquiry
or investigation. Seller represents and warrants to Buyer that Greg Sutherland Is the person employed b
Seder who is most e
knowledgeable ain't the condition of the Property and best able to make the
representations and warranties set forth herein.
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13. Possession.
Pos.eselon of the Property shop be *an to Buyer at no casing free and clear of the possessory rights of any other person or
entity
14. Buyer's Entry.
At any time during the Escrow period, Buyer, and Its agents and representatives, shall have the tight at reasonable times upon reasonable
advance notice to Seller , to enter upon the Property for the purpose of making inspections and tests specified
In this Agreement. No destructive or physically Invasive testing shag be conducted, however, without Seller's prior approval which shag not be
unreasonably withheld. If Seller does not provide its consent to invasive testing within two (2) business days of
request, the Contingency Periods set forth In Paragraph 941(b), (c), (d) and (g), and the date of Closing shall
each be extended by the number of days of delays in Seller's consenting to such testing. Following any such entry or
work, unless otherwise directed in writing by Seller Buyer shag return the Property to the condition it was in prior to such entry or work, including the
recornpaction or removal of any disrupted soli or material ae Seiler may reasonably dkect. AN such inspections and tests and any other work conducted
or materials fumished with respect to the Property by or for Buyer shall be paid for by Buyer as and when due and Buyer shag Indemnify, defend,
protect and hold harmless Seller and the Property of and from any and all claims, liabilities, asses, expenses (Including reasonable attorneys' fees),
damages, Including those for ir4ury to person or property, to the extent arising out of or relating to any such work or materials or the acts or
omissions of Buyer, its agents or employees In connection therewith.
16. Further Documents and Asauranoss.
The Parties shall each, diligently and In good faith, undertake an actions and procedures reasonably required to place the Escrow In condition for
Closing as and when required by this Agreentera. The Parties Was to provide log further Information, and to execute and deliver all further documents,
reasonably required by Escrow Holder or the Title Company.
16. Attorneys' Pass.
If any Party ar-BwksF brings an action or proceeding (koluding arbitration) involving the Property whether founded In tort contract or equity, or to
declare rights hereunder, the Prsvaft Party (as hereafter defined) in arty such proceeding, action, or appeal thereon, shag bs entitled to reasonabb
attorneys' fees. Such fees may be awarded In tie awns suit or recovered In a separate auk, whether or not such action or proceeding Is pursued to
decision or Judgment. The tsrm 'Prevailing Party shag irokuda, without gmka6on, a Party w4lgekw who substantially obtains or defeats the relief
sought, as the case may be, whether by compromise, settiert VII, Judgment, or the abandonment by the other Party er.Wvkwf of Its claim or defense.
The
reasonably aftornes' is d sward shall not be computed In accordance with any court foe schedule, but shag be such as to fully reimburse an attorneys' fees
17. Prior ApnerrterttsUmsndmeMs.
17.1 Th1s Agreement supersedes any and oil prior agreements between Seger and Buyer regarding the Property.
17.2 Amendments to this Agreement are effective only If mete In writing and executed by Buyer and Better.
46.--Br'elas's-111,104,
ald to PlAblisks via
16. Notices.
10.1 Whenever any Party, Escrow Hokler ewBwkere herein shall deal re to give or servo any notice, demand, request, approval, disapproval or
other conmunkatlon, each such communication shah to in writing and shall be delivered pe sm*, by messenger or by matt, postage prepaid, to the
address ash forth in this Agreement or by fakskrtils hmembalon.
10.2 Service of any such communication shall be deemed made on the date of actual raoslpt ff personally delivered. Any such communication
sent by regular mail shag be deemed given 48 hours aflwr the some is netted. Conrnunketlorts seM by ignited States Express Mail or overnight courier
that guarantee nut day degvary shall be deemed dettverad 24 hours after delivery of the some to the Postal Service or courier. Communieatior
transmitted by facsimile treremission shaft be deemed delivered upon tslaphork conemefton of receipt (confirmation report e
from fax machineis
sufficient). Provided a copy Is also delivered via delivery or matt. if such communicationIs reoelved on a Saturday, Sunday or legal holiday or after
5:00 p.m. (Pacific Tirm), it shag be deemed reaeivsd on the next business day.
10.3 Any Party eF4wkeaa+e may from tine b tins, by notice In writing, designate a diffsrent address to which, or a different person or
additional persons to whom, all oommunicatkme are ttterestler to be made.
—ph 4 -ha., is WAds upal it*—' What: poly OF hopsin 64 - laneeRAINIAMily �ftft_ P4 Raw that
21 DEFAULT BY BUYER IN THE EVENT THAT THE CLOSING AND THE CONSUMMATION OF THE
TRANSACTIONS HEREIN CONTEMPLATED DO NOT OCCUR BY REASON OF ANY DEFAULT OF BUYER, BUYER
AND SELLER ACKNOWLEDGE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE
THE DAMAGES WHICH SELLER WILL SUFFER. THEREFORE BUYER AND SELLER HEREBY AGREE THAT A
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FORM OFA-5-9/04E
REASONABLE ESTIMATE OF THE DAMAGES THAT SELLER WOULD SUFFER IN THE EVENT THAT BUYER SO
DEFAULTS IS AND WILL BE AN AMOUNT EQUAL TO THE DEPOSIT (INCLUDING ALL ACCRUED INTEREST
THEREON). SAID AMOUNT WILL BE THE FULL AGREED AND SOLE AMOUNT OF THE MONETARY DAMAGES
AND SELLER'S SOLE AND EXCLUSIVE REMEDY (WHETHER AT LAW OR IN EQUITY) FOR THE DEFAULT OF
BUYER, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES, INCLUDING, WITHOUT LIMITATION, THE
REMEDY OF SPECIFIC PERFORMANCE, BEING HEREIN EXPRESSLY WAIVED BY SELLER. THE PAYMENT OF
SUCH AMOUNT IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE §§1671,1676 AND 1677. SELLER
HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE §3389. THIS AGREEMENT WILL THEREUPON
BE TERMINATED AND NEITHER PARTY WILL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS HEREUNDER,
EXCEPT FOR THE RIGHT OF SELLER TO COLLECT SUCH LIQUIDATED DAMAGES FROM BUYER OR (IF
APPLICABLE) FROM ESCROW HOLDER AND, IF LEGAL ACTION IS REQUIRED TO COLLECT SUCH LIQUIDATED
DAMAGES, TO RECOVER ITS ATTORNEYS' FEES AND COSTS PURSUANT TO PARAGRAPH 16.
NOTWITHSTANDING THE FOREGOING, AND NOTWITHSTANDING THE TERMINATION OF THE AGREEMENT,
SELLER WILL STILL BE ENTITLED TO INDEMNIFICATION AS PROVIDED IN PARAGRAPH 14 OF THIS
AGREEMENT.
Buyw/MBa/s hrin/gais
22. DEFAULT BY SELLER. IF ESCROW DOES NOT CLOSE DUE TO THE DEFAULT OR
FAILURE TO PERFORM OF SELLER, BUYER MAY ELECT EITHER TO: (A) ENFORCE SPECIFIC
PERFORMANCE OF THIS AGREEMENT AGAINST SELLER AND MAKE A CLAIM FOR
DAMAGES RESULTING FROM SUCH DEFAULT (BUT EXCLUDING CONSEQUENTIAL DAMAGES
SUCH AS, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE OR DIMINUTION IN VALUE), BUT
THE TOTAL AMOUNT OF DAMAGES WHICH BUYER MAY OBTAIN SHALL NOT EXCEED SIX
HUNDRED THOUSAND DOLLARS ($600,000.00), PLUS BUYER`S REASONABLE ATTORNEYS'
FEES AND COSTS, OR (B) TERMINATE THIS AGREEMENT AND ESCROW BY WRITTEN NOTICE
DELIVERED TO SELLER, IN WITCH EVENT THE DEPOSIT SHALL BE RETURNED TO BUYER AND
SELLER MAY MAKE A CLAIM ONLY FOR ACTUAL, OUT-OF-POCKET EXPENSES INCURRED IN
CONNECTION WITH THIS TRANSACTION. FOLLOWING THE RESOLUTION OF ANY CLAIM MADE
HEREUNDER (INCLUDING SELLER'S PAYMENT IN GOOD FUNDS OF ANY DAMAGES
AWARDED TO BUYER), NEITHER PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR
LIABILITY TO THE OTHER HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF
BUYER AS PROVIDED IN PARAGRAPH 14 OF THIS AGREEMENT.
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FORM OFA-3-3/04E
39 4 AAIV —_
y
• ■ a. • ■ -• a• • -■ ■ - • •
t:: _ar■u•r�ur.�r ■_I-iJ.\_7-lY� 7.� • _ __ _ r • . • ■ n�rur..
23. Miscellaneous.
23.1 Binding Effect This Agreement Shop be binding on the Parties without regard to whether of root paragraphs 21 and 22 are initialed by
both of the Parties. Paragraphs 21 IS Incorporated into this Agreement only If Initialed by both Parties at the time that the Agreement
Is executed.
23.2 Applicable Law. This Agreement shall be governed b
in whigh the 12FOP MAY Is lGesim.
the laws of the state of California
23.3 Time of Essence. Time Is of the essence of ft Agreement.
23.4 Counterparts. This Agreement may be executed by Buyer and Sailer in counterparts, each of which shall be deemed an original, and all
Of which together shall constitute one and the Barre histrumerrt. Escrow Holder, after verrfy ng that the counterparts are Identical except for the
signatures, is authorized and instructed to combkw the signed signature pages on one of the ootrntarparts, which shall then constitute the Agreement.
23.5 Waiver Of Jury Trial. THE PARTM HERESY WANE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.
23.6 Conflict Any conflict between the printed provisions of this Agreement and the typewritten or handwritten Provisions shall be
controlled by the typewritten or handwritten provisions,
23.71031 Exchange. Both Seller and Buyer agree to cooperate with each other in the evert that either or both wish to participate in a 1031
exchange. Any party Initiating an exchange shall bear all costs of such exchange.
24. Disclosures Regarding The Nature of a Real Estate Agency Relationship.
24.1 The Parties and Brokers agree that their relationships) shall be governed by the principles set forth In the applicable sections of the
California Civil Code, as surnmarized in paragraph 24.2.
24.2 When entering Into a discussion with a real estate 890M regarding a real estats transaction, a Buyer or Seller should from the outset
understand what We of agency relationship or representation 0 has with ft agent or agents in the transaction. Buyer and Seger acknowledge being
advised by the Brokers in this transaction, a follows:
(a) Seller's Agent A Sallee* agent larder a listing agreement with the Seger acts as the agent for ft Seger only. A Seller's agent or subagent
has the following affirmative obligations: (1) To the Seller: A fiduciary duty of utmost care, integrity, honesty, and loyalty In dealings with the Seger. (2)
To Mrs Buyer and the Seller. a. Dgigent exercise of reasonable skills and we In perlorma ms of ft agents duties. b. A duty of honest and fair dealing
and good faith. c. A duty to disclose 80 facts known to fie agent materially affecting the value or deskabft of the property that are not known to, or
within the diggent attention and observation of, the Parties. An agent is riot obligated to reveal to either party any confidential Information obtained from
the other Party which does not Involve the sAIMMdWe duties set forth above.
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02003 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM OFA45•3/04E
eb) Buyer's Agent. A sal" agora can, with a Buyers consent, spree to ad as agent for the Buyer only. In these situations, the agent Is not
that Segsrspent, wen If by agreement the pert may receive compensation for servkes rendered, tither In full or lo part from the Sailer. An agent
dti
aectinngg osnly for a Buyer has tiro followkfollowingalftuitive oWlpatutmost cars, (1) To the Buyer A Aduclory duty of utmcars, integrity, honesty, and loyalty In
duty d hend fork with the honest Buyer.
�2) To Buyer and tit Sailer. a. Diligent exercise of reasonable skills end care in performance of the agents duties. b. A
dealing and good faltr. c. A duty to disclose all fads known to the agent materially affecting the value or desirability of the
property that are not known to, or within the dMgwd attention and observation of, the Parties. An agent is not obligated to reveal to either Party any
confidential Information obtained from the other Party which does not involve the affirmative duties set forth above.
(c) Agent Reprosenfkng Bohn Soler and Bul0w.. A real estate agent, olther acting directly or through one or more associate Ucenass, can
legally be the agent of both the Self and the Buyer In a transaction, but only with the knowledgs and consent of both the Seller and the Buyer. (1) In a
dual agency situation, the agent less the fallowing aiffmr .. obligations to both the Softer and the Buyer: a. A fiduciary duty of utmost care. Integrity,
honesty and loyalty In the dealings with ~ Seller or the Buyer. b. Other duties to the Seller and the Buyer as stated above In their respective
sections (a) or (b) of this paragraph 24.2. (2) In representing both Seller and Buyer, the agent may not without that express permission of flee rapectlw
Party, disclose to the other Party that the Sailer will accept a price Was than the Rating price or that the Buyer will pay a price greater than the price
offered. (3) The above dada of the agent In a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect their own
Interests. Buyer and Seller should carNully read all agreements to mum that they adogtaley express their underata xift of the transaction. A real
estate agent Is a person qualified to advise about real estate. B legal or tax advice Is desired, consult a competent professional.
(d) Further Disclosures. Throughout this trsn million Buyer and Seller may receive more than one disclosure, depending upon the number of
agents assisting In the transaction. Buyer and SSW &"wind each read Its contents each time It Is presented, considering the relationship between them
and the real estate agent In this transaction and that disclosure. Brokers have no responsibility with rasped to any default or breach hereof by either
Panty. The liability (Including court costs and aalorneW fees), of any Broker with reaped to any breach of duty, error or omission relating to this
Agreement shall not exceed the fee received by arch Broker pursuant to tits Agreement; provided, however, that the foregoing limitation on each
Brokers liability shall not be applicable to any gross negligence or wWW misconduct of such Broker.
24.3 Confidential Information: B and Seller agree to Identify to Broken as'Confldentier any communication or Information given Brokers that
Is Considered by such Party to be �.
25. Construction of Agreement In construing this Agreement, all headings and titles are for the convenience of the parties only and shall not be
considered a pet of this Agreement. Whenever required by the context, the singular shall Include the plural and via versa. unless otherwise
specifically indicated to the contrary, the word 'days' as used In this Agreement shall mean and refer to caMndar days. This Agreement shag not be
construed as if prepared by one of the parties, but rather according to Its fair meaning as a whole, as N both parties had prepared ft. When the
words "business days" are used in this Agreement, the term shall include Monday through and including
Thursday, and shall exclude Friday, Saturday, Sunday, and all holidays, it being the long time practice of the
City of Vernon to be closed on Fridays.
26 Additional Provisions:
Additional provisions of this offer, Or any, are as follows or are attached hereto by an addendum oornsla ft of paragraphs 26.1
through 26.17 . (If titre ore no additional provisions write "NONE".)
R AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONBEQUENC28 OF TINE AeREEMENT OR THE TRANSACTION
IT RELATES. THE PARTIES ARE URGED TO:
SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS AGMilili liNT.
RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PROPERTY. SAIC
STIGATION SHOULD INCLUDE BUT NOT ON LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF
PROPERTY, THE INTEORITY AND CONOITION OF ANY STRUCTURES AND OPERATING SYSTEMS, AND THE SUITABILITY OF THE
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FOR BUYERS INTENDED USE.
IF THE PROPERTY 18 LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THIS AGREEMENT
NOTE:
1. THIS FORM IS NOT FOR USE IN CONNECTION WITH THE SALE OF RESIDENTIAL PROPERTY.
2. IF THE BUYER IS A CORPORATION, IT IS RECOMMENDED THAT THIS AGREEMENT BE SIGNED BY TWO CORPORATE
OFFICERS.
The undersigned Buyer affm and apnea to buy tM Properly on the terns and conditions stated and acknowledges raalpt of a copy hereof.
BROKER: BUYER:
Attn:
Title:
Address:
Telephone:( )
Faceimilet—)
Email:
Federal to No.
THE CITY OF VERNON
By:
Date:
Name Printed: Leona C. Malburg
Title: C%.+rm&w
�ilepherre�; .
Faesimpet�
ATTEST.
By:
Ode:
Name :Bruce V. Ma a orat, Jr.
Title: Acting Secretary
Addrm,.4"5 Santa Fe Avenue
Vernon, California 9 058
Tewphone:(3�233) 533-0011
Factimile:(MY09-1438
Email:
Fedwal 10 No. -
APPROVED AS TO FORT*
ERIC T. FRESCK CITY ATTORNEY
27. Accepuwme.
therein .1 Seil eiler accepts the fw�ng offer to purchase tea Property and hereby agrees to sell the Property to Buyer on the tarns and conditions
27.2
In oontMaation of real °data broken o eeMm rsnd�, gaper Wass to pay CB Richard Ellis,
Inc. Iirekare a real estate Brolcersge Fee pursuant to a separate agreement between Seller and CB Richard Ellis, Inc.
Buyer shall pay Cushman & Wakefield a real estate brokerage fee for services rendered pursuant to a separate
agreement between Buyer and Cushrw & Wakefield
w--
27.3 Sager admowiedgee reoelpt of a copy 6enof d ulhortm Srokem,to deWmer a signed copy te Buyer.
NOTE: A PROPERTY INFORMATION SHEET 18 REQUIRED TO BE DELIVERED TO BUYER BY SELLER UNDER THIS AGREEMENT.
BROKER:
PAGE 13 OF 14
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SELLER:
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0=3 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM OFA•6%VO4E
Attn:
Title:
Address:
Telephone:(_)
Facsimile:(_)
Email:
Federal 10 No.
INC
Facsimile:(_ )
By:
Dets:
Name Printed:
Tide:
Address: 8870 West Bryn Mawr Avenue
Chicago, Illinois 60631
Telsph wQ73
FacWmle:(773 ) 399-864
Email:
Federal ID No:
These forms are often modified to West changing,rewhunente of law and needs of the Industry. AMrays write or call to make sure you are
utiltdng the most cunvM form: AIR COtIAMERCIAL REAL ESTATE ASSOCIATION, 700 South Fbwer Street, Suite 000, Los Angeles, CA 90017.
(213) U74777.
O Copyright 2003 By AIR Comrrrercial Real Estate Association.
All rights reserved.
No part of these wwM may be reproduced in any form without permission In writing.
PACE 14 OF 14
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C12M • AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM OFA44104E
ADDENDUM TO STANDARD OFFER, AGREEMENT
AND ESCROW INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
Buyer: The AWN I Map 14M2qwqA9 the City of Vernon
Seller: Pechiney Caste Plate, Inc.
Premises: 3200 Fruitland Avenue, Vernon, CA 90058
Dated: March _ . 2006
In the event of a conflict between the terms of the Standard Offer, Agreement and Escrow
Instructions (the "Pro -Printed Form') and this Addendum (the "Addendum"), the terms of the
Addendum shall control. Any initially capitalized term used in this Addendum that is not
defined herein shall have the meaning ascribed to such term in the Pre -Printed Form.
Collectively, the Pro -Printed Form and this Addendum are referred to as the "Agreerent."
26.1 Escrow shall close (the "Expected Closing Date') on a mutually agreed upon date which
is not later than ten (10) business days after the completion of Seller's Work The
Seller's Work shall be deemed completed when the City of Vernon has issued a
Certificate of Closure with respect to the Remediation Work (as defined herein) and
Seller has received the written approval, by the Community Services Department of the
City of Vernon, with respect to the Demolition Work (as defined herein).
26.2 Buyer's Due Diligence: Upon mutual execution of the Agreement, Buyer and its agents
shall have immediate access to the Property to allow for necessary inspections and
testing, subject to the provisions of Paragraph 14 of the Pre -Printed Form.
Notwithstanding anything in the Pre -Printed Form to the contrary, Buyer shall have the
right to undertake, during the Contingency Period (as defined herein), a Phase II
environmental study or other environmental studies of the Properly, including, without
limitation, any borings or other invasive studies required to complete the Phase II study
or other studies (as long as the number of borings and locations thereof are approved by
Seller which approval will not be unreasonably withheld); provided, however, that
Buyer's right to obtain a Phase II report or other environmental studies shall not affect
the obligation of Seller to undertake all studies, reports, and borings that may be required
to obtain (a) a Certificate of Closure, and (b) a Phase II environmental report, each as
further described in below.
Notwithstanding any provisions of this Agreement to the contrary, Buyer may not
conduct any invasive or other testing of the Property, including but not limited to any soil
borings, groundwater sampling or Phase II site assessment investigation, unless prior
IASANGE1.ES 30032000 49789-MIO
written notice has been given by Seller and Seller has given its approval, which will not
be unreasonably withheld.
26.3 Seller's Reports:
Prior to the Date of Agreement, Seller has delivered to Buyer all analyses, tests, reports,
or studies that Seller currently has in its possession relating to the physical condition of
the Property, including all soils and geological reports, appraisals, and environmental
reports, including, without limitation, a Phase I environmental report and a Phase II
environmental report prepared by Geo-Matrix (collectively, the "Due Diligence
Reports'). The Phase I environmental report and the Phase II environmental report have
been submitted to and approved by the City of Vernon Health Department (the "Health
Department"). All Due Diligence Reports have been (and will be) delivered to Buyer
subject to the provisions of Paragraph 12 of the Pre -Printed Form, and shall be promptly
returned to Seller if the transaction fails to close for any reason. Until the Closing, all
such materials shall be held in confidence as provided herein.
26.4 Purchase Price: The Purchase Price constitutes all consideration due to Seller for the
Property and the Units, and Seller hereby waives and relinquishes any relocation
assistance Seller may be entitled to under local, state, or federal law.
26.5 Contingency Period: As used herein, the term "Contingency Period" means the time
period commencing on the Date of Agreement and ending at 5:00 p.m. (Pacific Time) on
a date which is thirty (30) days thereafter provided, however, that the Contingency Period
shall not expire until a date which is at least fifteen (15) days after Buyer has delivered to
Seller all Due Diligence Reports, the disclosure required under Paragraph 9.1(a), the Title
Report, and copies of the Other Agreements. Further, if the last day of the Contingency
Period is not a business day, then the Contingency Period shall be extended until 5:00
p.m. (Pacific Time) on the next business day.
26.6 Contingencies: Buyer shall have until the end of the Contingency Period to determine,
in its sole and absolute discretion, whether it is satisfied with all aspects of the Property
and the transaction, including, without limitation, those contingencies set forth in
Paragraph 9 of the Pre -Printed Form and all other matters related to the Property,
including economic analyses, issues related to Hazardous Substances, condition of the
Property, its fitness for a particular use, marketability, prospects for future development,
use, or occupancy, and any other matter related to Buyer's use of the Property.
Notwithstanding anything to the contrary in Paragraph 9.3 of the Pre -Printed Form,
Buyer and Seller acknowledge that Buyer may determine, in its sole and absolute
discretion, during the Contingency Period, that there are issues related to the condition of
the Property, such as marketability or prospects for future development or existence of
Hazardous Substances on the Property, that are not subject to cure by Seller, and that
Buyer may terminate this Agreement, and obtain a full refund of its Deposit, if Buyer
does not approve Buyer's Contingencies within the Contingency Period. Buyer, in its
sole and absolute discretion, may terminate the Agreement within the Contingency Period
and receive a full refund of the Deposit.
2
LOSANOELES 300320v10 49789.00010
26.7 Demolition and Remediation Obligations: Seller shall perform the Demolition Work
(as described herein) and the Remediation Work (as described herein), at Seller's cost
and expense. Collectively, the Demolition Work and the Remediation Work are referred
to as "Seller's Work".
(a) Demolition Work. A description of the Demolition Work (including a
timetable for the performance of the Demolition Work) shall be set forth in a plan (the
"Demolition Work Plan') which shall be mutually agreed upon by Seller and Buyer prior
to the end of the Contingency Period, which shall include a timetable for the performance
of the Demolition Work. The Demolition Work Plan shall also contain a reasonably
detailed description of the "above -grade" Demolition Work, for the purposes of
Paragraph 26.16 of ibis Addendum (the parties intend that "above -grade" Demolition
Work shall generally relate to the demolition and removal of all portions of buildings and
other structures which are aboveground, excluding, without limitation, foundations, first -
level building floors, footings, and basements, and also excluding paved areas). If the
parties cannot in good faith mutually agree upon a Demolition Work Plan by the end of
such time period, then unless the parties agree in writing to extend such time period, this
Agreement and the escrow shall be deemed terminated and the provisions of Paragraph
8.7 of the Pre -Printed Form shall apply. Any changes proposed by Seller to the approved
Demolition Work Plan shall be subject to written approval by Buyer and the City of
Vernon's Department of Community Services (the "Community Services Department").
Buyer's approval shall not be unreasonably withheld. The Demolition Work shall be
deemed complete when the Community Services Department has, in its reasonable
judgment, approved the completion of the Demolition Work. The Demolition Work shall
be performed by a contractor or contractors selected by Seller and reasonably approved
by Buyer. The Demolition Work Plan shall include the following:
(i) All manmade improvements, items, structures, buildings, utilities,
concrete, asphalt, foundations, footings, and general debris (collectively, "Structures')
shall be removed. Any salvage value shall be retained by Seller. Buyer acknowledges
that the buildings contain galbestos panels, and that the concrete within the buildings are
contaminated with PCB's, all of which will be removed as part of the Demolition Work
Plan (but subject to the performance standards for Remediation Work, as described
herein).
(ii) After removal of all Structures, floe site shall be left level and at
current grade, in rough grade condition, with any holes filled with clean imported soil.
The soil on the site shall be recompacted to 95%.
(b) Remediation Work. Based on the Phase I environmental report and the
Phase lI environmental report which have been delivered to Buyer and approved by the
Health Department, if Remediation Work is required, Seller and Buyer shall mutually
agree upon a plan (as it may be amended pursuant to this Agreement, the "Remediation
Work Plan' for Seller's completion of the Remediation Work, including a timetable for
the performance of the Remediation Work, that is required for the Health Department to
issue the Certificate of Closure . The parties may, but shall not be required to establish
an . initial Remediation Work Plan which shall not take into account any Remediation
3
IASANGMES 30D320v10 49789-00010
Work described in subparagraph (c) below. Such initial Remediation Work Plan shall be
subject to approval of the Health Department.
(c) F rW Retne&tion Work Plan As soon as possible after the completion of
the Demolition Work, Seller and Buyer shall mutually agree upon the scope of a final
Remediation Work Plan (including changes to the initial Remediation Work Plan, if any)
which are necessary to properly remediate the Property in order to obtain the Certificate
of Closure, consistent with the standards customarily followed by the Health Department
for the issuance of Certificates of Closure. Any changes proposed by Seller to an
approved Remediation Work Plan shall be subject to approval by Buyer and the Health
Department. Buyer's approval shall not be unreasonably withheld. Issuance of the
Certificate of Closure or a No Further Action Letter by the Health Department shall serve
as evidence of satisfactory completion of the Remediation Work. The Remediation Work
shall be performed by a contractor or contractors selected by Seller and reasonably
approved by Buyer.
(d) Performance of Seller's Work. The following provisions shall apply to
Seller's Work:
(i) Performance Standards for All of Seller's Work. Seller shall
ensure that all of Seller's Work is conducted in a safe, prudent manner, in accordance
with industry standards and in accordance with all applicable laws, including, without
limitation, laws regulating the handling, transfer, storage, and disposal of all Hazardous
Substances. Seller shall pay for all Seller's Work in accordance with the contracts
between the Seller and the contractors, and shall ensure that all contractors and
subcontractors are paid in full. Seller shall use best efforts to insure that no mechanics/
or materialmen's liens are filed against the Property, but if any such liens are filed, Seller
will promptly (and in any event prior to any foreclosure sale related to such lien) bond
around same. Seller shall obtain all permits required to perform Seller's Work.
(ii) Performance Standards for Remediation Work, In addition to the
standards set forth above, which shall apply to all of Seller's Work, the Remediation
Work shall be performed by contractors competent and Imowledgeable in removing and
transporting Hazardous Substances. For purposes of applicable law, Seller (or another
entity determined by Seller, but not Buyer) shall be named as the responsible party on all
manifests, licenses, and documents regarding the storage, release, and transfer of
Hazardous Substances, and shall be listed on all disposal manifests as the responsible
party.
(iii) Somnletion of Seller's Work. Seller shall use best efforts to cause
the Seller's Work to be completed by the time periods set forth in the Demolition Work
Plan and the Remediation Work Plan, subject to events which are beyond the Seller's
reasonable control; provided, however, that failure to pay money shall not be an excuse
for delay. Seller shell be excused from performance for the number of days of delay
cause by events beyond Seller's reasonable control, and shall immediately thereafter
commence and complete Seller's Work. The Title Policy obtained by Buyer at Closing
shall not reflect any mechanics or materialmen's liens relating to the Seller's Work and
4
LOSANOEL.ES 3=Z*10 49789.00010
Seller shall, prior to or at Closing, cause any such liens to be paid or bonded around in
accordance with applicable law (to the extent that Seller contests any such liens).
(iv) Indemnification Notwithstanding anything herein to the contrary,
Seller may elect to perform additional Remediation Work (beyond any Remediation
Work which is required by Buyer and the Health Department to obtain a Certificate of
Closure). In such event, all provisions of this Agreement pertaining to the establishment
of a Remediation Work Plan and performance of the Remediation Work shall apply, as if
Buyer had required such Remediation Work. In the event that complete remediation of
the Property is not required pursuant to the Remediation Plan, and Seller elects not to do
any additional Remediation Work, then Buyer shall indemnify, defend and hold Seller
free and harmless from any and all liability relating to the existence or release of
Hazardous Materials, or any Hazardous Materials Conditions which presently exist,
previously existed or may arise in the future. Such indemnification obligation shall be
evidenced by a formal indemnification agreement to be negotiated in good faith and
executed by the parties at the Closing. Buyer shall not be released from its obligation to
enter into such indemnification agreement as a result of any assignment of this
Agreement prior to the Closing, or by any sale of the Property after the Closing.
26.8 Role of City Health Department: It is understood that nothing in this Agreement
affects or limits the Health Department's responsibilities in the administration of local,
state and federal law with respect to remediation of the Property, if remediation is
necessary. Seller agrees that neither Buyer's relationship to the Health Department nor
anything required of Seller by the Health Department in carrying out its responsibilities
under the law, shall excuse Seller's obligations under this Agreement. It is further
understood that Buyer's approval of any contingency relative to the condition of the
Property only includes approval by the Buyer, and does not necessarily constitute
approval by the Health Department.
26.9 Purchase Price Determinadon: Subject to other adjustments as provided herein, the
Purchase Price set forth in Paragraph 3.1 of the Pre -Printed Form was based upon the
Property containing 1,174,375 net useable square feet of land. The actual size of the
Property may be verified by an ALTA/ACSM Land Title Survey, which shall be obtained
and paid for by Buyer. If Buyer fails to obtain such survey, then the Purchase Price shall
be the amount set forth in Paragraph 3.1 of the Pre -Printed Form, subject to adjustment as
provided herein. If such survey reflects that the Property contains more or less than
1,174,375 net usable square feet of latid, then the Purchase Price set forth in
Paragraph 3.1 of the Pre -Printed Form shall be adjusted at the rate of $24.27 per square
foot. "Net usable square feet of land" shall mean any area within the boundary lines of
the Property which can be used for parking, landscaping or (including but not limited to
easements which do not restrict the ability of the Property owner to use same for any of
the foregoing purposes).
26.10 Exclusivity: Prior to the Closing, Seller agrees not to negotiate with other prospective
buyers, or lease any or all of the Property, or enter into any other agreements which
would bind the Property after the closing without the prior written approval of the Buyer.
5
LOSAMELES 30032000 49789.00010
26.11 1031 Exchange: Buyer and Seller agree to cooperate with exchanges allowed or
provided by Internal Revenue Code Section 1031 (as amended), provided that the non -
exchanging party incurs no liability and incurs no additional costs through such
cooperation, and the Closing is not delayed.
26.12 ConSdentiality: Without the prior written consent of Seller, Buyer will not disclose, and
Buyer will direct its representatives, employees, agents and consultants not to disclose to
any person or entity (i) the fact that Buyer has entered into this Agreement or the terms
hereof, or (ii) any of the terms of this Agreement, except as disclosure may be required
by law. Notwithstanding the foregoing, Buyer shall have the right to disclose all relevant
facts related to the purchase of the Property and the terms of this Agreement to (a) all of
Buyer's consultants, employees, agents, and representatives, including officials and staff
of the City of Vernon, who are in any way involved with the transaction; (b) the City
Council of the City of Vernon (and Seller acknowledges that the agenda and proceedings
of the City Council are public and of public record, and that this Agreement will be
attached to a Resolution adopted by the City Council that approves the Agreement); and
(c) as otherwise necessary or gpropriate in order to consummate this transaction and
comply with all applicable laws, including, without limitation, Govt. Code Section 7275,
which states that the Purchase Price is public information.
26.13 City Council Approval: This Agreement, and any amendments thereto, are subject to the
review and approval of the City Council of the City of Vernon.
26.14 Buyer's Representations and Warranties: The following constitute representations
and warranties of Buyer to Seller as of the Date of Agreement and as of the Closing:
(a) Buyer has the legal power, right and authority to enter into this Agreement
and the documents required hereby to be executed by Buyer, and to consummate the
transactions contemplated hereby.
(b) All requisite corporate action has been taken by Buyer in connection with
the entering into this Agreement and the documents required hereby to be executed by
Buyer, and the consummation of the transactions contemplated hereby.
(c) The individuals executing this Agreement and the documents required
hereby to be executed by Buyer on behalf of Buyer have the legal power, right and actual
authority to bind Buyer to the terms and conditions hereof and thereof.
(d) This Agreement and all documents required hereby to be executed by
Buyer are and will'be valid, legally binding obligations of and enforceable against Buyer
n accordance with their terms, subject only to applicable bankruptcy, insolvency,
reorganization, moratorium laws or similar laws or equitable principles affecting or
limiting the rights of contracting parties generally.
(e) No representation, warranty or statement of Buyer in this Agreement or in
any document furnished or to be furnished to Seller pursuant hereto contains or will
contain any untrue statement of a material fact, or omits or will omit to state a material
6
LOSANQELES 300320v 10 49789.00010
fact necessary to make the statements or facts contained therein not misleading. Except
to the extent set forth in writing from Buyer, Buyer's representations and warranties
made in this Paragraph will be continuing and will be true and correct as of the Closing
with the same force and effect as if remade by Buyer at that time.
(f) The Demolition Work will not be work performed under a contract "paid
for in whole or in part out of public funds", as such phrase is used in California Labor
Code § 1720, et M. (and case authority interpreting such statutes), and the Demolition
Work therefore will not constitute a project to which "prevailing wage" laws apply.
Buyer agrees to and does hereby indemnify, defend and hold Seller free and harmless from any
and all claims, demands, lawsuits, judgments, costs, expenses and liabilities of any nature
whatsoever, including reasonable attorneys' fees and costs which result from any breach or
inaccuracy of any of the foregoing representations or warranties (including any claims which
allege facts which, if true, would result in the breach or inaccuracy of any such representations or
warranties, regardless of the actual resolution of such claims).
26.15 MEDIATION; ARBITRATION OF DISPUTES: If a dispute arises between Buyer
and Seller which pertains in any way to this Agreement which dispute cannot be resolved
within ten (10) days by mutual agreement, the parties shall before resorting to arbitration
or court action, mediate such dispute. Mediation shall be conducted with JAMS (as
defined below) and any mediation fees shall be shared equally by the parties. If the
dispute is not resolved by medication, then the parties shall arbitrate the dispute as
follows:
(a) USE OF JAMS. THE PARTIES AGREE THAT ANY DISPUTE OR
CONTROVERSY ARISING OUT OF OR RELATING TO ANY INTERPRETATION,
CONSTRUCTION, PERFORMANCE, TERMINATION OR BREACH OF THE
AGREEMENT OR THE PURCHASE OF THE PROPERTY BY BUYER WILL BE
SETTLED BY FINAL AND BINDING ARBITRATION BY A PANEL OF
ARBITRATORS TO BE HELD IN LOS ANGELES COUNTY, CALIFORNIA, IN
ACCORDANCE WITH THE RULES OF THE JUDICIAL ARBITRATION &
MEDIATION SERVICES, INC. ("JAMS"). WITHOUT LIMITING ANY OTHER
PROVISION HEREIN, THIS PARAGRAPH 26.15 SHALL SURVIVE THE
TERMINATION OF THE AGREEMENT AND WILL APPLY TO ANY CLAIM,
DISPUTE, OR CONTROVERSY THAT ARISES DURING OR AFTER THE
TERMINATION OF THE AGREEMENT.
(b) PROCEDURE. THE ARBITRATION SHALL TAKE PLACE BEFORE
A PANEL OF THREE RETIRED JUDGES OF THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA OR ANY CALIFORNIA APPELLATE COURT (THE
"ARBITRATORS-) UNDER THE AUSPICES OF JAMS. SUCH ARBITRATION
SHALL BE INITIATED BY THE PARTIES, OR EITHER OF THEM, WITHIN TEN
(10) CALENDAR DAYS AFTER EITHER PARTY BY SERVING A NOTICE OF
DEMAND TO ARBITRATE (THE "ARBITRATION NOTICE") TO THE OTHER
PARTY AND TO JAMS. THE ARBITRATION NOTICE SHALL CONTAIN A
DESCRIPTION OF THE SUBJECT MATTER OF THE ARBITRATION, THE
7
LWANaELES 300320v10 49789-00010
DISPUTE WITH RESPECT THERETO, THE AMOUNT INVOLVED, IF ANY, AND
THE REMEDY OR DETERMINATION SOUGHT.
(c) SELECTION OF ARBITRATORS. EACH PARTY SHALL SELECT
AN ARBITRATOR FROM THE JAMS PANEL, AND THE TWO SELECTED
ARBITRATORS SHALL MUTUALLY AGREE ON THE THIRD ARBITRATOR
FROM THE JAMS PANEL. IF ONE OF THE PARTIES DOES NOT SELECT AN
ARBITRATOR FROM THE JAMS PANEL WITHIN 14 CALENDAR DAYS AFTER
RECEIPT OF THE PANEL FROM JAMS, JAMS WILL SELECT THE SECOND
ARBITRATOR, AND THE ARBITRATOR SELECTED BY JAMS AND THE
ARBITRATOR SELECTED BY THE OTHER PARTY WILL SELECT THE THIRD
ARBITRATOR FOR THE PANEL. THE THIRD ARBITRATOR IS TO BE
SELECTED WITHIN 10 CALENDAR DAYS FOLLOWING THE SELECTION OF
THE FIRST TWO ARBITRATORS. IN THE EVENT OF ANY SUBSEQUENT
VACANCIES OR INABILITIES TO PERFORM AMONG THE ARBITRATORS
APPOINTED, THE ARBITRATORS INVOLVED SHALL BE REPLACED IN
ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH 26.15 AS IF
SUCH REPLACEMENT WAS AN INITIAL APPOINTMENT TO BE MADE UNDER
THIS PARAGRAPH 26.15 WITHIN THE TIME CONSTRAINTS SET FORTH IN
THIS PARAGRAPH 26.15, MEASURED FROM THE DATE OF NOTICE OF SUCH
VACANCY OR INABILITY TO THE PERSON OR PERSONS REQUIRED TO
MAKE SUCH APPOINTMENT. NOTWITHSTANDING THE FOREGOING, IF THE
AMOUNT IN CONTROVERSY IS LESS THAN ONE HUNDRED THOUSAND
DOLLARS ($100,000) THEN THERE SHALL BE ONLY ONE ARBITRATOR, TO BE
MUTUALLY AGREED UPON BY THE PARTIES. IF THE PARTIES CANNOT, IN
GOOD FAITH, MUTUALLY AGREE UPON A SINGLE ARBITRATOR WITHIN
TEN (10) DAYS AFTER RECEIPT OF THE JAMES PANEL, THEN THERE SHALL
BE THREE (3) ARBITRATORS, SELECTED IN ACCORDANCE WITH THE
FOREGOING PROVISIONS.
(d) THE DECISION. ANY PARTY MAY BE REPRESENTED BY
COUNSEL OR OTHER AUTHORIZED REPRESENTATIVE. IN RENDERING A
DECISION(S), THE ARBITRATORS SHALL DETERMINE THE RIGHTS AND
OBLIGATIONS OF THE PARTIES ACCORDING TO THE SUBSTANTIVE LAWS
OF THE STATE OF CALIFORNIA, THE PROCEDURES FOLLOWED BY JAMS
AND THE TERMS OF THE AGREEMENT. THE DECISION OF THE
ARBITRATORS SHALL BE BASED ON THE EVIDENCE INTRODUCED AT THE
HEARING, AND SHALL BE BASED ON, AND ACCOMPANIED BY, A WRITTEN
STATEMENT OF DECISION EXPLAINING THE FACTUAL AND LEGAL BASIS
FOR THE DECISION AS TO EACH OF THE PRINCIPAL CONTROVERTED
ISSUES. THE AGREEMENT OF TWO OF THE THREE ARBITRATORS AS TO
THE RESOLUTION OF THE DISPUTE SHALL BE A CONCLUSIVE RESOLUTION.
THE ARBITRATORS SHALL DELIVER THE WRITTEN DECISION TO THE
PARTIES WITHIN 30 CALENDAR DAYS FOLLOWING THE DATE OF THE
ARBITRATION HEARING, WHICH SHALL BE HELD AS EXPEDITIOUSLY AS
POSSIBLY, ON A DATE ESTABLISHED BY THE ARBITRATORS, BUT NOT
8
LOSANGE M 900 MOO 49789-00010
MORE THAN 180 DAYS AFTER THE DATE CF APPOINTMENT OF THE LAST
ARBITRATOR. THE DECISION SHALL BE CONCLUSIVE AND BINDING, AND
IT MAY THEREAFTER BE CONFIRMED AS A JUDGMENT BY THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA, SUBJECT ONLY TO CHALLENGE ON
THE GROUNDS SET FORTH IN THE CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 1286.2. THE VALIDITY AND ENFORCEABILITY OF
THE DECISION OF THE ARBITRATORS IS TO BE DETERMINED EXCLUSIVELY
BY THE CALIFORNIA COURTS. THE ARBITRATORS SHALL HAVE THE
AUTHORITY TO GRANT EITHER PARTY ALL REMEDIES OTHERWISE
AVAILABLE BY LAW, INCLUDING INJUNCTIONS.
(e) PAYMENT OF ARBITRATORS AND ATTQRNEYS' FEES. THE
NON -PREVAILING PARTY SHALL PAY THE COSTS OF ALL ARBITRATORS
AND THE ARBITRATION PROCESS, AND THE REASONABLE ATTORNEYS'
FEES OF THE PREVAILING PARTY, AS DETERMINED BY THE ARBITRATORS.
(0 NOTICE OF WAIVER NOTICE: BY INITIALING IN THE SPACE
BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE
MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW
AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE
DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE
SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU
REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURES. YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF
DISPUTES' PROVISION BY NEUTRAL ARBITRATION.
Qf�o
BUYER'S INITIALS SEL 'S INITIALS
26.16 Additional Deposits; Releases of Deposit: In addition to the amount set forth in
Paragraph 4.1 of the Preprinted Form, Buyer shall deposit with Escrow Holder the
following additional sums, which shall all be considered a part of the "Deposit", and
which shall all be applied to the Purchase Price at Closing:
(a) Not later than the first business day after the end of the Contingency
Period, the sum of Eight Million Dollars ($8,000,000).
LOSANOE M 3W32000 49789.0W10
(b) Not later than the second (2nd) business day after completion of the
"above -grade" Demolition Work (as described herein and in the Demolition Work Plan)
the sum of Eight Million Eight Hundred Thousand Dollars ($8,800,000). Completion of
the above -grade Demolition Work shall be evidenced by the written certification of the
grading contractor.
(c) Not later than December 1, 2006, the sum of Seventeen Million Six
Hundred Thousand Dollars ($17,600,000), reduced by the amount deposited by Buyer
pursuant to subparagraph (b) above.
(d) Not later than the ninth (9th) business day after the issuance of a
Certificate of Closure or No Further Action Letter by the Health Department, the balance
of the Purchase Price (Ten Million Three Hundred Thousand Dollars ($10,300,000),
subject to adjustment as provided herein).
Immediately upon receipt of the additional amounts of the Deposit set forth in subparagraphs (a),
(b) and (c) above, without further instructions from Seller or Buyer, and notwithstanding any
unilateral instructions to the contrary which Escrow Holder may hereafter receive from a party,
Escrow Holder shall, immediately upon receipt of each such amount, release the full amount
thereof to Seller (pursuant to Seller's wire -transfer instructions). For clarification, the original
amount deposited (Six Hundred Thousand Dollars ($600,000) will not be released to Seller until
the Close of Escrow. Seller and Buyer each agree to hold Escrow Holder harmless and waive
any claims against Escrow Holder relating in any way to such releases of the Deposit, Buyer
acknowledging that at the time of the releases it will not hold legal title to the Property and that
there will be unsatisfied conditions to the Close of Escrow at the time of the releases.
26.17 Self -Help Remedy: In addition to any other remedies which the Buyer may have at law
or under this Agreement, in the event that Seller defaults under this Agreement or fails to
perform the Seller's Work in accordance with the Demolition Work Plan and/or the
Remediation Work Plan, Buyer may give notice to Seller specifying the default ("Default
Notice'). Seller shall have thirty (30) days after receipt of the Default Notice to cure the
default or, if the default is not reasonably capable of being cured during such thirty (30)
day period, to commence the cure, provided that Seller diligently pursues the cure to
completion. Seller shall not be deemed to be in default if the reason for Seller's non-
performance is an event of "force majeure" (i.e., an event which is not within Seller's
reasonable control such as, but not limited to, labor or material shortages, strikes,
lockouts, adverse weather conditions, acts of war or civil insurrection). If the reason for
Seller's default is the default of a contractor performing the Seller's Work, then Seller
may effectuate a cure by terminating and replacing the contractor as promptly as
reasonably possible. If Seller fails to cure (or commence the cure, as the case may be)
within such thirty (30) day period, Buyer may elect, upon at least five (S) business days
by advance notice to Seller and Escrow Holder, to immediately cause the Close of
Escrow to occur. The Close of Escrow shall take place in the manner contemplated by
the Agreement (except that any part of the Deposit which has not previously been
deposited into Escrow by Buyer shall be deposited prior to the Close of Escrow) provided
that the Purchase Price shall be reduced by (a) the cost (as reasonably determined by
Buyer based upon the approved Demolition Work Plan and the contracts entered into by
10
LOSANGKM 300320v10 49799600010
Seller to perform the Demolition Work) of any remaining Demolition Work, and (b) the
cost (as reasonably determined by Buyer based upon the approved final Remediation
Work Plan and the contracts entered into by Seller to perform the Remediation Work) of
any remaining Remediation Work To the extent that the contractors performing Seller's
Work are not then in default and such contracts are assigned to Buyer by Seller and
honored by such contractors, Buyer will continue to use such contractors to perform the
remaining Demolition Work or Remediation Work, as the case may be. After the Close
of Escrow Buyer shall complete the Demolition Work and/or the Remediation Work, and
to the extent that the actual costa of completion of the remaining Demolition Work and/or
Remediation Work differ from the costs reasonably estimated by Buyer and used to
reduce the Purchase Price, the difference shall either be paid by Seller to Buyer or to
Buyer by Seller, as the case may be, promptly after completion of the Seller's Work. To
the extent that Buyer incurs any additional out-of-pocket expenses in performing any
remaining Seller's Work as provided herein, the reasonable, documented costs thereof
shall be paid to Buyer on demand
Seller and Buyer shall each have the right, at reasonable times upon reasonable advance notice,
to inspect all books and records of the other party as they relate to the performance of any of
Seller's Work
11
LOSANt EUM 300320v1019784L00010
SIGNATURE PAGE
Seller:
PECHINEY CASTE PLATE, INC.
By:
1 B11ra8 ^- --
CAl
anager of Insurance & Real Estate
IN
LASANOMM 30032000 49780"10
Buyer:
By:
LEONIS C. MALBURG,
ATTEST:
By:
BRUCE V. MALKENHORST, Jp,
Acting Secretary
APPROVED AS TO FORM:
By:
ERIC T. FRESCH, City Attorney
SUPPORTING
DOCUMENTS
CPTY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL MCCORMICK
Councilman
April 18, 2006
4305 Santa Fe Avenue, Vernon, California 90058
telephone (323) 583-8811
Cushman & Wakefield of California, Inc.
Attn: John McMillan, Executive Director
601 S. Figueroa St., 47th Floor
Los Angeles, CA 90017-5752
SOL BENUDIZ
Police Chief
MARK C. WHITWORTH
Acting Fire Chief
LEWIS J. POZZEBON
Director of Environmental Health
S. KEVIN WILSON
Director of Community Services
SHARON L. DUCKWORTH
Acting City Treasurer
Re: Pechiney Caste Plate, Inc. Standard Offer, Agreement & Escrow
Instructions for 3200 Fruitland Avenue
Dear Mr. McMillan:
Transmitted herewith is one fully executed agreement as referenced
above, approved by City Council on March 22, 2006, through Resolution
No. 8995.
If you have any questions regarding this matter, please call Mr. Jeff
Harrison, at (323) 583-8811 ext. 225.
Very truly yours,
4
Ne A1yi6bWnV'-
Deputy City Clerk
NG:dr
c: Judy Lehr
Resolution No. 8995
Agreement File No. 06-034
110(ustve(v lubusma(
STANDARD OFFER, AGREEMENT AND ESCROW
INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
(Non -Residential)
AIR Commercial Real Estate Association
March 20, 2006
(Date for Reference Purposes)
1. Buyer.
1.1 City of Vernon ('Buyer")
hereby offers to purchase the real property, hereinafter described, from the owner thereof ("Seller") (collectively, the "Parties" or individually, a "Party"),
through an escrow ("Escrow") to Glees 30 OF
Vate) to be held by North American Title Company (Tina DeBow) ("Escrow Holder") whose address is
520 North Brand Boulevard, Glendale, California 91203
, Phone No. (818) 551-5370 , Facsimile 'No. (818) 240-9884
upon the terms and conditions set forth in this agreement ("Agreement"). Buyer shall have the right to assign Buyer's rights hereunder-,but-amp4uGh
a6signment shall not relieve BuyeF Of BVY906 obligatieRs herein unless SelleF SxpreeSly Feleesee Buyef.
1.2 The term "Date of Agreement" as used herein shall be the date when by execution and delivery of this
document or a subsequent counteroffer thereto, Buyer and Seller have reached agreement in writing whereby Seller agrees to sell, and Buyer agrees to
purchase, the Property upon terms accepted by both Parties.
2. Property.
2.1 The real property ("Property") that is the subject of this offer consists of (insert a brief physical description) an approximately
1,174,740 square foot industrial site
is located in the City of City of Vernon , County of Los Angeles
State of California , is commonly known by the street address of 3200 Fruitland Avenue, Vernon,
California 90058
and is legally described as:
(APN:6310-008-010, 011, 012 & 013 ).
2.2 If the legal description of the Property is not complete or is inaccurate, this Agreement shall not be invalid and the legal description shall be
completed or corrected to meet the requirements of
Fidelity National Title Company (Jeff Dasse), Phone (800) 359-2625, Fax (818) 758-3263
('Title Company"), which shall issue the title policy hereinafter described.
2.3 The Property includee all improvements thereon, except those which
ineluding these hems whiGh puFsuaFA to appileablS law Ore a Pad Of the PFOPSAY, am %A011 as the W---IGWaRg WAS, if any, owned by SelI8F and at pres
systems (lines, jac_%ks and- n-n-nna-Gtions only); spaGe heatem-; heating, ventilating, aiF GenditioniAg equipment ("NVAC"); aiF 16ASSi AFe sPFiAk18F SYSIIGMG�,
will be demolished by Seller prior to the Closing, as provided herein. In addition, the
purchase and sale shall include the sale and assignment by
Seller to Buyer, at no additional cost to Buyer,of all of Seller's existing sewer capacity
water discharge units ("Units") which aDDly to the Property. The Units shall be conveved
to Buyer at the Close of Escrow by means of a bill of sale, which shall contain no
representations or warranties other than the representation of Seller that the Units are
free and clear of all liens, claims and encumbrances. The exact number of Units shall be
determined prior to the Close of Escrow.
:$' $'
1H .
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2.5 Exeept as PFOVidedin PaFagFaph 2.3, the The Purchase Price does not include Seller's personal property, furniture or and furnishings, and
all of
which shall be removed by Seller-pF G"o-Olesing.
3. Purchase Price.
3.1 The purchase price ("Purchase Price") to be paid by Buyer to Seller for the Property shall be
$36, 500, 000.00 payable in cash (including the Deposit) at
Closing as-fe8ews:
(a) Gash d9wn payment, including the DepGsN as defined in paFagFaph 4A (OF it an all n-a-sh
transastiar the Rurshase P ' ); $ --
(SWke hEno
app&aw (b) Amount of +Jew Liman" as de d- in paragraph 5.1 if any: $ -
(G) BUYSF shall take fille 14 the Prepsity subjeGt to a__nd_.9n__F assilme !he following swelling deed(s) of
N ng N .
An Existing Plots ("First Note") with aA unpaid pAnGipal billanGe as of the -
Closing of $
(Sh*9 it no! iny-lud-in 'FAeFeet at the Fate ofO
am&able eni (ii) An Existing Note (4999nd T
N
) with an unpaid pgnsipai thalana-s- an- of the
GIGSiRg Of
8
19
1
.• $
2-aid ee. end Note is ...N.....wle ..1 a POF enth
0
N
PuFahase Money Deed e4 T.PJW-) an the
3.2 It BUYSF is taking We to the PF9peFty subject to, 9F assuming, an Exisling -Dead- of UWE-' and- suesh, d-a-e-d- ea tpjsi peFFnks ihe b9A9fiGiaFy to
4. Deposits.
4.1 $
_ ® Buyer shall deliver to Escrow
Holder a check or wire transfer in the sum of $600, 000.00 when both Parties have executed this Agreement and
the executed Agreement has been delivered to Escrow Holder. When cashed, the check (or such wire -transferred funds, when
received) shall be deposited into the Escrows trust account to be applied toward the Purchase Price of the Property at the Closing. Should Buyeand- R-As NO-F Met Asntff iPAa an agmement f9F PUFGha69 slid sale, BUYO96 Gheek OF Wilds shall, UPGA F&CIU6611 by BUYSF, be PFOFRptly Mtumed to BWOF.
4.2 Additional deposits:
(a) WNhiA 6 busiiiesi; days alleF Ilia Date of AgreemerA, BUY9F shall depGsk vAh rMIN-F&W WO-W-Aff the G4- -
$ !a be applied to the Pura-hase Pria-s -at the Closing.
(b) Additional deposits Shall be made pursuant to Paragraph 26.16 of the Addendum attached hereto.
Within 65 business days afISF MO GQRtiR99AGiee discussed in paFegFoph 9.1 (a) ihF9ogh-(9-(k—)-amappmY9d OF W8Wd, BuyeF shall depGsk wkh SsG
to be applied te thak PuFahass Prim at the Ck*!W.
4.3 Escrow Holder shall deposit the funds deposited with it by Buyer pursuant to paragraphs 4.1 and 4.2 (collectively the "Deposit"), in a State or
Federally chartered bank in an interest bearing account whose term is appropriate and consistent with the timing requirements of this transaction. The
interest therefrom shall accrue to the benefit of Buyer, who hereby acknowledges that there may penalties or interest forfeitures if the applicable
instrument is redeemed prior to its specified maturity. Buyer's Federal Tax Identification Number is 95-60000808 NOTE: Such
interest bearing account cannot be opened until Buyer's Federal Tax Identification Number is provided.
a suFA equal to at least 14 -of 'bo- Purchase PAGe, at teFms reaGGAably aGGeptable to Buyer- SuGh lean ("Now Lean") shall be seeuFed by
aPPF9V8 th0_ WRAS Of the NIOW LOW. 91911fiff A-ha-111 have- 7 days ftm FeGeipt of !he G9FAMft9R!1 69WAg $04h the PFOP9619-d- leffam- Of the New Lean to
approve OF disappFeve of suGh pi:epeeed teame. It Seller fails !9 notify riscrow Holder-, in wMing, of the disappFeval within said 7 days ft shall be
6.2 BUYSF heieby agFees to diligently puisue ablalAiRg Ithe New Wall. II SkUYSF Shall fall tO ned(y its WokeFj EsGra;AF Welder and 38119F, in
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7. Real Estate Brokers.
7.1 The following real estate broker(s) ("Brokers") and brokerage relationships exist in this transaction and are consented to by the
Parties (check the applicable boxes):
0 CB Richard Ellis, Inc. represents Seller exclusively ("Seller's Broker');
0 Cushman & Wakefield
i
The Parties acknowledge that Brokers are the procuring cause of this
relationship. 13uyeF shall use the of Buye0s lilrakeF exclusive
represents Buyer exclusively ("Buyers Broker'); or
represents both Seller and Buyer ("Dual Agency").
See paragraph 24 regarding the nature of a real estate agency
7.2 Buyer and Seller each represent and warrant to the other that he/she/it has had no dealings with any person, firm, broker or finder in
connection with the negotiation of this Agreement and/or the consummation of the purchase and sale contemplated herein, other than the Brokers
named in paragraph 7.1, and no broker or other person, firm or entity, other than said Brokers istam entitled to any commission or finder's fee in
connection with this transaction as the result of any dealings or acts of such Party. Buyer and Seller do each hereby agree to indemnify, defend, protect
and hold the other harmless from and against any costs, expenses or liability for compensation, commission or charges which may be claimed by any
broker, finder or other similar party, other than said named Brokers by reason of any dealings or act of the indemnifying Party.
8. Escrow and Closing.
8.1 Upon acceptance hereof by Seller, this Agreement, ' , shall constitute not only
the agreement of purchase and sale between Buyer and Seller, but also instructions to Escrow Holder for the consummation of the Agreement through
the Escrow. Escrow Holder shall not prepare any further escrow instructions restating or amending the Agreement unless specifically so instructed by
the Parties or a Broker herein. Subject to the reasonable approval of the Parties, Escrow Holier may, however, include its standard general escrow
provisions 50 long a5 ouch Standard general escrow provisions State that in the event of a conflict between the
Standard general escrow provi5ion5 and this Agreement, the terms of this Agreement Shall control.
8.2 As soon as practical after the receipt of this Agreement , Escrow Holder shall ascertain the Date of Agreement
as defined in paragraphs 1.2 and 20. and advise the Parties and Brokers, in writing, of the date ascertained.
8.3 Escrow Holder is hereby authorized and instructed to conduct the Escrow in accordance with this Agreement, applicable law and custom and
practice of the community in which Escrow Holder is located, including any reporting requirements of the Internal Revenue Code. In the event of a
conflict between the law of the state where the Property is located and the law of the state where the Escrow Holder is located, the law of the state
where the Property is located shall prevail.
8.4 Subject to satisfaction of the contingencies herein described, Escrow Holder shall close this escrow (the "Closing") by recording a general
warranty grant deed and the other documents required to be recorded, and by disbursing the funds and documents in
accordance with this Agreement.
8.5 Buyer and Seller shall each pay one-half of the Escrow Holder's charges and Seller shall pay the usual recording fees and any required
documentary transfer taxes. Seller shall pay the premium for a standard coverage owners or joint protection policy of title insurance. 13uyer Shall
pay for any charges for ALTA extended coverage (including the co5tS of any required Survey), and for any title
endorecment5 which Buyer may request.
8.6 Escrow Holder shall verify that all of Buyers contingencies have been satisfied or waived prior to Closing. Other provi5ion5 of this
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Agreement which do not constitute instructions to Escrow Holder ,
arever; matters of agreement between the Parties with which
Escrow Holder need not be concerned .
8.7 If this transaction is terminated for non -satisfaction and non -waiver of a Buyer's Contingency, as defined in paragraph 9.2, then neither of the
Parties shall thereafter have any liability to the other under this Agreement, except to the extent of a breach of any affirmative covenant or warranty in
this Agreement and except for the Buyer's indemnities under Paragraph 14. In the event of such termination, Buyer shall be
promptly refunded all funds deposited by Buyer with Escrow Holder, less only Title Company and Escrow Holder cancellation fees and costs, all of
which shall be Buyer's obligation.
8.8 The Closing shall occur on the Expected Closing Date, or as soon thereafter as the Escrow is in condition for Closing; provided, however, that
if the Closing does not occur by the Expected Closing Date and said Date is not extended by mutual instructions of the Parties, a Party not then in
default under this Agreement may notify the other Party, Escrow Holder, and Brokers, in writing that, unless the Closing occurs within two (2) g
business days following said notice, the Escrow shalt be deemed terminated without further notice or instructions.
8.9 Except as otherwise provided herein, the termination of Escrow shall not relieve or release either Party from any obligation to pay Escrow
Holder's fees and costs or constitute a waiver, release or discharge of any breach or default that has occurred in the performance of the obligations,
agreements, covenants or warranties contained therein.
8.10 If this Escrow is terminated for any reason other than Seder's breach or default, then at Seller's request, and an 2 AGAdition 10 the FGtUFA Of
Bayer's deposit, Buyer shall within 5 days after written request deliver to Seller, at no charge, copies of all surveys, engineering studies, soil reports,
maps, master plans, feasibility studies and other similar items prepared by or for Buyer that pertain to the Property. Provided, however, that Buyer shall
not be required to deliver any such report if the written contract which Buyer entered into with the consultant who prepared such report specifically
forbids the dissemination of the report to others. Seller acknowledges that any reports described in this Paragraph 8.10
that are delivered by Buyer to Seiler, including, without limitation, any reports obtained by Buyer or prepared by
any agency of Buyer, are being delivered to Seller merely as an accommodation, and without representation or
warranty aS to the Sufficiency, accuracy, completeness or validity of such reports.
9. Contingencies to Closing.
9.1 The Closing of this transaction is contingent upon the satisfaction or waiver of the following contingencies. IF BUYER FAILS TO NOTIFY
ESCROW HOLDER AND SELLER, IN WRITING, OF THE APPROVAL 0I2APPRCM41. OF ANY OF SAID CONTINGENCIES WITHIN THE TIME
SPECIFIED THEREIN, IT SHALL BE CONCLUSIVELY PRESUMED THAT BUYER HAS DISAPPROVED APPROVED SUCH ITEM, MATTER OR
DOCUMENT. Buyer's conditional approval shall constitute disapproval, unless provision is made by the Seller within the time specified therefore by the
Buyer in such conditional approval or by this Agreement, whichever is later, for the satisfaction of the condition imposed by the Buyer. Escrow Holder
shall promptly provide all Parties with copies of any written disapproval or conditional approval which it receives. With regard to subparagraphs (a)
through (1) the pre-printed time periods shall control unless a different number of days is inserted in the spaces provided. With regard to the
contingencies set forth in this Paragraph 9.1, the time periods Set forth in Paragraph 26.5 of the Addendum
Shall control, to the extent that they are different from the time periods Set forth in this Paragraph 9.1.
Further details a5 to Buyer's Contingencies are Set forth in Paragraph 26.6 of the Addendum and Shall
control over any terms Set forth in the Pre -Printed Form.
(a) Disclosure. Seller shall make to Buyer, through escrow, all of the applicable disclosures required by law (See the AIR Commercial Real
Estate Association ("AIR") standard form entitled "Seller's Mandatory Disclosure Statement" may be Used for these purpo5cO) and provide
Buyer with a completed Property Information Sheet ("Property Information Sheet") concerning the Property, duly executed by or on behalf of Seller in
the current form or equivalent to that published by the AIR within 10 or days following the Date of Agreement. Buyer has 30 49 days from
the receipt of said disclosures to approve or disapprove the matters disclosed.
(b) Physical Inspection. Buyer has 10 9 30 days from the Date of Agreement,
ivhichisvOff is to satisfy itself with regard to the physical aspects and size of the Property.
(c) Hazardous Substance Conditions Report. Buyer has 30 eF days from the receipt of the PFOpeFty InfbFmati9A SheSt OF the Date
of Agreement, to satisfy itself with regard to the environmental aspects of the Property. Seller recommends that Buyer obtain a
Hazardous Substance Conditions Report concerning the Property and relevant adjoining properties. Any such report shall be paid for by Buyer. A
"Hazardous Substance" for purposes of this Agreement is defined as any substance whose nature and/or quantity of existence, use, manufacture,
disposal or effect, render it subject to Federal, state or local regulation, investigation, remediation or removal as potentially injurious to public health or
welfare or the environment. A "Hazardous Substance Condition" for purposes of this Agreement is defined as the existence on, under or
relevantly adjacent to the Property of a Hazardous Substance that would require remediation and/or removal under applicable Federal, state or local
law.
(d) Soil Inspection. Buyer has 30 9F days from the Date of Agreement, whicheveF is
later to satisfy itself with regard to the condition of the soils on the Property. Seller recommends that Buyer obtain a soil test report. Any such report
shall be paid for by Buyer. Seller shall provide Buyer copies of any soils report that Seiler may have within 10 days of the Date of Agreement.
(a) Governmental Approvals. Buyer has 30 eF days from the Date of Agreement to satisfy itself with regard to approvals and
permits from governmental agencies or departments which have or may have jurisdiction over the Property and which Buyer deems necessary or
desirable in connection with its intended use of the Property, including, but not limited to, permits and approvals required with respect to zoning,
planning, building and safety, fire, police, handicapped and Americans with Disabilities Act requirements, transportation and environmental matters.
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(f) Conditions of Title. Escrow Holder shall cause a current sernrnitmant-laF title report insuraase ('Title RepOrt CormniWent')
concerning the Property issued by the Title Company, as well as legible copies of all documents referred to in the Title Report Gemmitment
("Underlying Documents") to be delivered to Buyer within 10 or days following the Date of Agreement. Buyer has 48 30 days from the
Date of Agreement to satisfy itself with regard to the condition of title. The
disapproval of Buyer of any monetary encumbrance, which by the terms of this Agreement is not to remain against the Property after the Closing, shall
not be considered a failure of this contingency, as Seller shall have the obligation, at Seller's expense, to satisfy and remove such disapproved
monetary encumbrance at or before the Closing.
(g) Survey. Buyer has 30 of days from the Date of Agreement
to satisfy itself with regard to any ALTA title supplement based upon a survey prepared to American Land Title Association ("ALTA") standards for an
owner's policy by a licensed surveyor, showing the legal description and boundary lines of the Property, any easements of record, and any
improvements, poles, structures and things located within 10 feet of either side of the Property boundary lines. Any such survey shall be prepared at
Buyer's direction and expense. If Buyer has obtained a survey and approved the ALTA title supplement, Buyer may elect within the period allowed for
Buyer's approval of a survey to have an ALTA extended coverage owner's form of title policy, in which event Buyer shall pay any additional premium
attributable thereto.
(h) EW6649 Le-a-ses and- Tener;Gy Statements. R-ella-P isha-11 within 10 OF days of !he Date of AgFeerAeRt pr4ovide both Buyei: and
reeeipt Gf said Existing Leases and Weppel Gedificales to salisfy Aself wkh Fegard ie the Existing Leases and any elh9F tenaAGY iss
(1) Other Agreements. Seller shall within 10 or 5 days of the Date of Agreement provide. Buyer with legible copies of all other
agreements ("Other Agreements") known to Seller that will affect the Property after Closing. Buyer has 30 40 days from the receipt of said Other
Agreements to satisfy itself with regard to such Agreements.
6) Xnanoing. if paFagFaph 6 heFeal dealing wft a flAaAGOR9 GORtiAgORGY has not beeA WiGken, than statir-da-a-flon oF me -how at r-rh -New LeaA
contingency.
(k) &Wing Albtes. if PaFagFaph 3.1 (a) has not been stFicken, Seller. shall within 10.GF days of the Date of AgMemei:ii pFevide Bwye
with legible Gopies of !he Exisling Notes, EAsting goods of TFust aAd Felaled agFeemeAis (Gellectiyely, "I gan Dersuments") to whiGh !he PFQpeFtY will
nature 2--Ad- 2-M,013M Gf any impoundi; hold by the beneficiaFy in Genne r-lien with atieh IGaA, BuyeF hall, 10 OF days kem ihe Fereipt of the Loaft
(1) PeFoonal Pmpefty. in !he even! 11hat any personal pizapedy is inGluded iA ihe PuFa-has-le Price, BUYGF has 10 OF days ftem the
6ueh Foped shall be paid feF by liuyeF. SelleF Shall pF&Ade 8UY9F GGPiSS W any liens or asna-umbwances a#90tiRg SUGh PGF6Gnal PFepffty that 4 is awaFe
Gf WKhiA 10 OF days of Me Date of Agseement.
less, SelleF shall Fepaii: OF GUF8 the 1966 PFi9F 10 the C1961". BuyeF ehall have the oplion, willhin 10 days vAeF rOgeipt Of 4MMe -A AQtiGA of a lose GQ6tiAq
OF e#Bet against the Purnhago Pric-e. It tho coal 10 FOPOIF OF GVF6 I$ meFe Man $10,000.00, and RWYOF does not eIeGI to leFFAinale this tFaRsaGtien, 8
chall be antilled to any iASuFanGe PFOceeds applicable !a such losts. 161AIGAR OthARWANFINA notified in wF#ing, Ear4ow WoldeF shall assume no such
destFuGfiGn, dam age OF lose has GGr.UFFed pFieF to Glesing.
(n) Material Change. Buyer shall have 10 days following receipt of written notice of a Material Change within which to satisfy itself with regard
to such change. "Material Change" shall mean a change in the physical condition of the Property that
occurs after the -date Date of Agreement of this aftc and prior to the closing which would materially and adversely affect
Buyer's use. Unless otherwise notified in writing, Escrow Holder shall assume that no Material Change has occurred prior to the Closing.
(o) Seller Performance. The delivery of all documents and the due performance by Seller of each and every undertaking and agreement to be
performed by Seller under this Agreement.
(p) Warranties. That each representation and warranty of Seller herein be true and correct in all material respeCt6 as of the Closing.
Escrow Holder shall assume that this condition has been satisfied unless notified to the contrary in writing by any Party prior to the Closing.
thee Aoreemei# ime-fal: an- the A-FekeFage Fee is GGAGOFF09d, aAd !hat no Ghange se -hall be made- ;Nkh FerpeGt to the paymORt Of the WekeFage Fee
9.2 All of the contingencies specified in subparegraphs (a) through (p) of paragraph 9.1 are for the benefit of, and may be waived by, Buyer, and
may be elsewhere herein referred to as "Buyer's Contingencies." Buyer's Contingencies are further described in Paragraph
26.6 of the Addendum and Shall be in addition to those set forth in subparagraphs (a) through (g), (i), and (n)
through (p) of Paragraph 9.1 of the Pre -Printed Form.
9.3 If any Buyer's Contingency or any other matter subject to Buyer's approval is not approved (with silence constituting
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disapproval) disapproved as provided for herein in a timely manner ("Disapproved Item"), Seller shall have the right but not the obligation
within 10 days following the receipt of notice of Buyer's disapproval (or the end of the relevant time period relating to Such
Duyer'S Contingency) to elect to cure such Disapproved Item prior to the Expected Closing Date ("Seller's Election"). Seller's failure to give to
Buyer within such period, written notice of Seller's commitment to cure such Disapproved Item on or before the Expected Closing Date shall be
conclusively presumed to be Seller's Election not to cure such Disapproved Item. If Seller elects, either by written notice or failure to give written notice,
not to cure a Disapproved Item, Buyer shall have the election, within 10 days after Sellers Election to either accept title to the Property subject to such
Disapproved Item, or to terminate this transaction. Buyer's failure to notify Seller in writing of Buyer's election to accept title to the Property subject to
the Disapproved Item without deduction or offset shall constitute Buyer's election to terminate this transaction.
Unless the Parties
mutually instruct otherwise, if the time periods for the satisfaction of contingencies or for Seller's and Buyers said Elections would expire on a date after
the Expected Closing Date, the Expected Closing Date shall be deemed extended for 3 business days following the expiration of: (a) the applicable
contingency period(s), (b) the period within which the Seller may elect to cure the Disapproved Item, or (c) if Seller elects not to cure, the period within
which Buyer may elect to proceed with this transaction, whichever is later.
9.4 BuyeF uAdeFslands and agm-es that unfill suGhl fir-allel -all, all RMWegs GeAtingeAgim-s have- b-se-A asella-fied- aF vioahied, 89118F aAd!GF its agents may
9.5 The Parties acknowledge that extensive local, state and Federal legislation establish broad liability upon owners and/or users of real property
for the investigation and remediation of Hazardous Substances. The determination of the existence of a Hazardous Substance Condition and the
evaluation of the impact of such a condition are highly technical and beyond the expertise of Brokers. The Parties acknowledge that they have been
advised by Brokers to consult their own technical and legal experts with respect to the possible presence of Hazardous Substances on the Property or
adjoining properties, and Buyer and Seiler are not relying upon any investigation by or statement of Brokers with respect thereto. The Parties hereby
assume all responsibility for the impact of such Hazardous Substances upon their respective interests herein.
10. Documents Required at or before Closing:
10.1 Five days prior to the Closing date Escrow Holder shall obtain an updated Title Report GommNment concerning the Property from the Title
Company and provide copies thereof to each of the Parties.
10.2 Seller shall deliver to Escrow Holder in time for delivery to Buyer at the Closing:
(a) Grant er-general warranty deed, duly executed and in recordable form, conveying fee title to the Property to Buyer.
(c) If applicable, her Agreements together with duty executed assignments thereof by Seller to and Buyer.
Notwithstanding anything herein to the contrary, any Other Agreements which involve 5eller'S right against
any third parties (including, but not limited to, prior owners of the Property) to indemnification regarding the
existence of any Hazardous Substance Condition Shall not be assigned to Buyer and Such rights Shall belong
exclusively to Seller.
leFm published by the AIR OF its equivaleni.
(e) An affidavit executed by Seiler to the effect that Seller is not a "foreign person" within the meaning of Internal Revenue Code Section 1445
or successor statutes. If Seller does not provide such affidavit in form reasonably satisfactory to Buyer at least 3 business days prior to the Closing,
Escrow Holder shall at the Closing deduct from Sellers proceeds and remit to Internal Revenue Service such sum as is required by applicable Federal
law with respect to purchases from foreign sellers.
(f) An affidavit executed by Seller to the effect that Seiler is not a "nonresident" within the meaning
of California Revenue and Tax Code Section 18662 or successor statutes. If Seiler does not provide such affidavit in form reasonably satisfactory to
Buyer at least 3 business days prior to the Closing, Escrow Holder shall at the Closing deduct from Sellers proceeds and remit to the Franchise Tax
Board such sum as is required by such statute.
(Q)#applisable, a A bill of sale, duty executed, conveying title to the Units any ineluded peFeenal piteped to Buyer, a5 de5cribed in
Paragraph 2.3.
(h) If the Seller is a corporation, a duly executed corporate resolution authorizing the execution of this Agreement and the sale of the
Property.
10.3 Buyer shall deliver to Seller through Escrow:
(a) The cash portion of the Purchase Price and such additional sums as are required of Buyer under this Agreement shall be deposited by
Buyer with Escrow Holder, by federal funds wire transfer, or any other method acceptable to Escrow Holder as immediately collectable funds, no later
than 2:00 P.M. on the business day prior to the Expected Closing Date.
(b) if a PUFGhase Money Nele and- PuFacheasse MeFisy Deed of T-n-or-I are called fQF by ihis Agiosoment, ihe duly e*eGuted GFigiRals of these
the full FeplaeementGGGI AaMiR99e1l9F as a 1*194lilege loss payee, and aireal 96taidt tax nap-giGn GGRIFeet (at Buye0s expense), assuFing SeNSF of Ae
ef the status Of PaYMSAt Of Feel pmpeirty taxes dudng ft !I% of this Pilra_hAmte MoAey Nele.
(G) The AssignmentaAdAre-im, ionef6esse0s Inlevest in lease foFm specified on paFagFoph 40.2(G) above, duly exeGuted by BUY8F.
at
(f) If the Buyer is a corporation, a duty executed corporate resolution authorizing the execution of this Agreement and the purchase of the
Property.
10.4 At Closing, Escrow Holder shall cause to be issued to Buyer a standard coverage (or ALTA extended, if elected pursuant to 9.1(g)) owners
form policy of title insurance effective as of the Closing, issued by the Title Company in the full amount of the Purchase Price, insuring title to the
Property vested in Buyer, subject only to the exceptions approved by Buyer.tFansaellien
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IMPORTANT: IN A PURCHASE OR EXCHANGE OF REAL PROPERTY, IT MAY BE ADVISABLE TO OBTAIN TITLE INSURANCE IN CONNECTION
WITH THE CLOSE OF ESCROW SINCE THERE MAY BE PRIOR RECORDED LIENS AND ENCUMBRANCES WHICH AFFECT YOUR INTEREST
IN THE PROPERTY BEING ACQUIRED. A NEW POLICY OF TITLE INSURANCE SHOULD BE OBTAINED IN ORDER TO ENSURE YOUR
INTEREST IN THE PROPERTY THAT YOU ARE ACQUIRING.
11. Proration and Adjustments.
11.1 Taxes. Applicable real property taxes and special assessment bonds shall be prorated through Escrow as of the date of the Closing, based
upon the latest tax bill available. The Parties agree to prorate as of the Closing any taxes assessed against the Property by supplemental bill levied by
reason of events occurring prior to the Closing. Payment of the prorated amount shall be made promptly in cash upon receipt of a copy of any
supplemental bill.
11.2 Insurance. WARNING: Any insurance which Seller may have maintained will terminate on the Closing. Buyer is advised to obtain
appropriate insurance to cover the Property.
12. Representation and Warranties of Seller and Disclaimers.
12.1 Seller's warranties and representations shall survive the Closing and delivery of the deed but no action thereon may be brought
by Buyer on a date which is more than 30 months after the Close of Escrow feF a paged of 3 yeaFs, and, are true, material
and relied upon by Buyer and Wekem in all respects. In the event that Buyer (independently or by 5eller disclosure) learns
that a 5eller representation or warranty is untrue or incorrect prior to the Close of Escrow, and Buyer
nevertheless elects to purchase the Property and Close Escrow, then in that event Buyer will be deemed to
have waived any right that it may have to bring an action or proceeding against 5eller regarding such
representation or warranty. Seller hereby makes the following warranties and representations to Buyer and BFekeFe:
(a) Authority of Seller. Seller is the owner of the Property and/or has the full right, power and authority to sell, convey and transfer the
Property to Buyer as provided herein, and to perform Seller's obligations hereunder.
eISGIFiGal SYMMS shall be in good opsFa4ing 9Wer and- condition at the time of Cie
(c) Hazardous Substances/Storage Tanks. Except as may be set forth in any environmental reports which are
delivered to Buyer pursuant to this Agreement, Seller has no knowledge, except as otherwise disclosed to Buyer in writing, of the
existence or prior existence (during the time period that 5eller owned the Property) on the Property of any Hazardous Substance,
nor of the existence or prior existence (during the time period that 5eller owned the Property) of any above or below ground
storage tank.
(d) Compliance. Except as may be set forth in any environmental reports which are delivered to Buyer
pursuant to this Agreement, Seller has no knowledge of any aspect or condition of the Property (excluding any structures
thereon) which violates applicable laws, rules, regulations, codes or covenants, conditions or restrictions, or of improvements or alterations made to
the Property without a permit where one was required, or of any unfulfilled order or directive of any applicable governmental agency or casualty
insurance company requiring any investigation, remediation, repair, maintenance or improvement be performed on the Property (excluding any
structures thereon).
(a) Changes in Agreements. Prior to the Closing, Seller will not violate or modify any Existing -lease OF Other Agreement, or create any new
leases or other agreements affecting the Property, without Buyer's written approval, which approval will not be unreasonably withheld.
(f) Possessory Rights. 691leF has no knowledge lihat apyone NO One will, at the Closing, have any right to possession of the Property;
(g) Mechanics' liens. 5eller has no knowledge of any There are no unsatisfied mechanics' ormaterialmens' lien rights concerning
the Property. If any such unsatisfied liens exist as of the Close of Escrow, they shall be paid and satisfied from the
funds due to 5eller, unless 5eller contests same, in which case 5eller shall provide an appropriate bond so that
such liens are not reflected on Buyer's title insurance policy.
(h) Actions, Suits or Proceedings. Seller has no knowledge of any actions, suits or proceedings pending or threatened before any
commission, board, bureau, agency, arbitrator, court or tribunal that would affect the Property or the right to occupy or utilize same.
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(i) Notice of Changes. Seller will promptly notify Buyer and Brokers in writing of any Material Change (see paragraph 9.1(n)) affecting the
Property that becomes known to Seller prior to the Closing.
(k) No Seller Bankruptcy Proceedings. Seller is not the subject of a bankruptcy, insolvency or probate proceeding.
Will, by tha time nallad for t
•
12.23 In the event that Buyer learns (independently or by Seller disclosure) that a Seller representation or warranty might be untrue
prior to the Closing, and Buyer elects to purchase the Property anyway then, and in that event, Buyer waives any right that it may have to bring an
action or proceeding against Seller or Brokers regarding said representation or warranty.
SUMSISAGY, aGGUFaGy, GQFRpleteRe6s, and/OF validity of said deGuments, all of m*"Gh BuyeF Folios on at do w,*m Fiek. S8118F believes said derumente to be
12.3 D/sclalmer of Repreeentstlon or WAfrontlee by Seller.
(a) Buyer acknowledges to Seller that as of the Closing it will have conducted any and all
inspections, tests, analyses, reviews and studies that Buyer may have desired and will have evaluated the
Property (including, without limitation, the physical and environmental condition of the Property), to the full
and complete satisfaction of Buyer and that Buyer will acquire the Property solely on the basis of the
foregoing and the title Insurance protection afforded by the title insurance policy, and not on the basis of any
Information provided or any representations, warranties or covenants made by Seller, or any person acting on
Sellers behalf, other than the express representations, warranties or covenants made by Seller set forth in
this Agreement.
(b) BUYER ACKNOWLEDGES AND AGREES THAT THE SALE OF THE PROPERTY HEREUNDER 15
AND WILL BE MADE ON AN "AS -IS, WHERE -IS" BASIS AND WITH ALL FAULTS. AS OF THE DATE OF THE
CLOSE OF ESCROW, WITHOUT ANY REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION
OR ENVIRONMENTAL CONDITION OF THE PROPERTY, OR ANY OTHER REPRESENTATIONS OR WARRANTIES,
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN
TH15 AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY NEGATES AND
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE
OR OTHERWISE, OF, AS, TO, CONCERNING OR WITH RESPECT TO, THE PROPERTY, OR THE MERCHANTABILITY
OR FITNE55 OF THE PROPERTY FOR ANY PARTICULAR PURPOSE.
(c) Buyer further acknowledges that certain Information and materials provided or to be provided
by Seller or any person acting on Seller's behalf with respect to the Property may have been obtained from
third parties (the "Third Party Reports"). and that Seller has not made any independent investigation or
verification of Information and materials set forth in the Third Party Reports, and that Seller therefore
disclaims any representations or warranties as to the accuracy or the completeness of information and
materials set forth in the Third Party Reports. Seller will not be liable for any negligent misrepresentation set
forth in the Third Party Reports that is not the result of a misrepresentation by the Seller or its agents or
employees to the consultant preparing the Third Party Reports.
(d) As used in this Agreement, the phrase "sellers knowledge" (or similar phrase) means the
actual, present knowledge of Greg Sutherland whose title is General Manager, without any duty of inquiry or
investigation. Seller represents and warrants to Buyer that Greg Sutherland is the person employed by Seller
who Is most knowledgeable about the condition of the Property and best able to make the representations and
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warranties set forth herein.
13. Possession.
Possession of the Property shall be given to Buyer at the Closing free and clear of the po55c6sory right6 of any other peroon or
entity subjeGi to the Fights Gf -tenants und6F Existing Leases.
14. Buyer's Entry.
At any time during the Escrow period, Buyer, and its agents and representatives, shall have the right at reasonable times upon reasonable
advance notice to Seiler and subjeet le Fights of tenants, to enter upon the Property for the purpose of making inspections and tests specked
in this Agreement. No destructive or physically inVasiVe testing shall be conducted, however, without Seller's prior approval which shall not be
unreasonably withheld. If Seller does not provide its consent to invasive testing within two (2) buoincoo days of
request, the Contingency Periods Set forth in Paragraph 9.1(b), (c), (d) and (g), and the date of Closing Shall
each be extended by the number of days of delaye in 5eller'e consenting to ouch testing. Following any such entry or
work, unless otherwise directed in writing by Seller, Buyer shall return the Property to the condition it was in prior to such entry or work, including the
recompaction or removal of any disrupted soil or material as Seller may reasonably direct. All such inspections and tests and any other work conducted
or materials furnished with respect to the Property by or for Buyer shall be paid for by Buyer as and when due and Buyer shall Indemnify, defend,
protect and hold harmless Seller and the Property of and from any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees),
damages, including those for injury to person or property, to the extent arising out of or relating to any such work or materials or the acts or
omissions of Buyer, its agents or employees in connection therewith.
15. Further Documents and Assurances.
The Parties shall each, diligently and in good faith, undertake all actions and procedures reasonably required to place the Escrow in condition for
Closing as and when required by this Agreement. The Parties agree to provide all further information, and to execute and deliver all further documents,
reasonably required by Escrow Holder or the Title Company.
16. Attorneys' Fees.
If any Party OF Brekef brings an action or proceeding (including arbitration) involving the Property whether founded in tort, contract or equity, or to
declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable
attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to
decision or judgment. The term "Prevailing Party" shall include, without limitation, a Party eF Broker who substantially obtains or defeats the relief
sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party eF Broker of its claim or defense.
The attorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys' fees
reasonably incurred.
17. Prior Agreements/Amendments.
17.1 This Agreement supersedes any and all prior agreements between Seller and Buyer regarding the Property.
17.2 Amendments to this Agreement are effective only if made in writing and executed by Buyer and Seller.
19. Notices.
19.1 Whenever any Party, Escrow Holder or Arokers herein shall desire to give or serve any notice, demand, request, approval, disapproval or
other communication, each such communication shall be in writing and shall be delivered personally, by messenger or by mail, postage prepaid, to the
address set forth in this Agreement or by facsimile transmission.
19.2 Service of any such communication shall be deemed made on the date of actual receipt if personally delivered. Any such communication
sent by regular mail shall be deemed given 48 hours after the same is mailed. Communications sent by United States Express Mail or overnight courier
that guarantee next day delivery shall be deemed delivered 24 hours after delivery of the same to the Postal Service or courier. Communications
transmitted by facsimile transmission shall be deemed delivered upon telephonic confirmation of receipt (confirmation report from fax machine is
sufficient), provided a copy is also delivered via delivery or mail. If such communication is received on a Saturday, Sunday or legal holiday or after
5:00 p.m. (Pacific Time), it shall be deemed received on the next business day.
19.3 Any Party OF BF9keF haFete may from time to time, by notice in writing, designate a different address to which, or a different person or
additional persons to whom, all communications are thereafter to be made.
20.1 If this a-fle-Fis no! aGeepled by Seiler -an er-ba-16-Fe 640 P.M. aGGeFd*ngio Me time ellandaFdapplisable to the sity G-f--
the a . ..
21. DEFAULT BY BUYER. IN THE EVENT THAT THE CL05ING AND THE CON5UMMATION OF THE
TKAN5ACTION5 HEREIN CONTEMPLATED DO NOT OCCUR BY REA50N OF ANY DEFAULT OF BUYEK, BUYER
AND SELLER ACKNOWLEDGE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE
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THE DAMAGE5 WHICH SELLER WILL SUFFER. THEREFORE BUYER AND 5ELLER HEREBY AGREE THAT A
REA5ONABLE ESTIMATE OF THE DAMAGE5 THAT 5ELLER WOULD SUFFER IN THE EVENT THAT BUYER 50
DEFAULT5 15 AND WILL BE AN AMOUNT EQUAL TO THE DEPOSIT (INCLUDING ALL ACCRUED INTEREST
THEREON). SAID AMOUNT WILL BE THE FULL AGREED AND 50LE AMOUNT OF THE MONETARY DAMAGE5
AND 5ELLER'5 50LE AND EXCLU5IVE REMEDY (WHETHER AT LAW OR IN EQUITY) FOR THE DEFAULT OF
BUYER, ALL OTHER CLAIMS TO DAMAGE5 OR OTHER REMEDIES, INCLUDING, WITHOUT LIMITATION, THE
REMEDY OF SPECIFIC PERFORMANCE, BEING HEREIN EXPRE55LY WAIVED BY 5ELLER. THE PAYMENT OF
SUCH AMOUNT 15 NOT INTENDED A5 A FORFEITURE OR PENALTY, BUT 15 INTENDED TO CONSTITUTE
LIQUIDATED DAMAGE5 TO 5ELLER PURSUANT TO CALIFORNIA CIVIL CODE FqF91671,1676 AND 1677. 5ELLER
HEREBY WAIVES THE PROVI51ON5 OF CALIFORNIA CIVIL CODE 93369. TH15 AGREEMENT WILL THEREUPON
BE TERMINATED AND NEITHER PARTY WILL HAVE ANY FURTHER RIGHTS OR 013LIGATION5 HEREUNDER,
EXCEPT FOR THE RIGHT OF 5ELLER TO COLLECT SUCH LIQUIDATED DAMAGE5 FROM BUYER OR (IF
APPLICABLE) FROM ESCROW HOLDER AND, IF LEGAL ACTION 15 REQUIRED TO COLLECT 5UCH LIQUIDATED
DAMAGE5, TO RECOVER IT5 ATTORNEYS' FEE5 AND CO5T5 PURSUANT TO PARAGRAPH 16.
NOTWITHSTANDING THE FOREGOING, AND NOTWITHSTANDING THE TERMINATION OF THE AGREEMENT,
5ELLER WILL STILL BE ENTITLED TO INDEMNIFICATION A5 PROVIDED IN PARAGRAPH 14 OF TH15
AGREEMENT.
• - • I • • • --171�^3=YS-^7i�1-l�Yi-7�►Vi-�-1-2-L�•�•�^i.-ar•t�-i.�n-�-�-��-��•�-.�r.�-:�-....��_._
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BuyeriniMs Seller ►nkiels
22. DEFAULT BY SELLER. IF ESCROW DOES NOT CLOSE DUE TO THE DEFAULT OR
FAILURE TO PERFORM OF SELLER, BUYER MAY ELECT EITHER TO: (A) ENFORCE SPECIFIC
PERFORMANCE OF THIS AGREEMENT AGAINST SELLER AND MAKE A CLAIM FOR
DAMAGES RESULTING FROM SUCH DEFAULT (BUT EXCLUDING CONSEQUENTIAL DAMAGES
SUCH AS, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE OR DIMINUTION IN VALUE), BUT
THE TOTAL AMOUNT OF DAMAGES WHICH BUYER MAY OBTAIN SHALL NOT EXCEED SIX
HUNDRED THOUSAND DOLLARS ($600,000.00), PLUS BUYER'S REASONABLE ATTORNEYS'
FEES AND COSTS, OR (B) TERMINATE THIS AGREEMENT AND ESCROW BY WRITTEN NOTICE
DELIVERED TO SELLER, IN WHICH EVENT THE DEPOSIT SHALL BE RETURNED TO BUYER AND
SELLER MAY MAKE A CLAIM ONLY FOR ACTUAL, OUT-OF-POCKET EXPENSES INCURRED IN
CONNECTION WITH THIS TRANSACTION. FOLLOWING THE RESOLUTION OF ANY CLAIM MADE
HEREUNDER (INCLUDING SELLER'S PAYMENT IN GOOD FUNDS OF ANY DAMAGES
AWARDED TO BUYER), NEITHER PARTY HERETO SHALL HAVE ANY FURTHER OBLIGATION OR
LIABILITY TO THE OTHER HEREUNDER, EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF
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02003 - AIR COMMERCIAL REAL ESTATE ASSOCIATION FORM OFA-5-3104E
BUYER AS PROVIDED IN PARAGRAPH 14 OF THIS AGREEMENT.
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23. Miscellaneous.
23.1 Binding Effect. This Agreement shall be binding on the Parties without regard to whether or not paragraphs 21 and 22 are initialed by
both of the Parties. Paragraphs 21 and 22 are each 15 incorporated into this Agreement only if initialed by both Parties at the time that the Agreement
is executed.
23.2 Applicable Law. This Agreement shall be governed by, , the laws of the state of California
23.3 Time of Essence. Time is of the essence of this Agreement.
23.4 Counterparts. This Agreement may be executed by Buyer and Seiler in counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument. Escrow Holder, after verifying that the counterparts are identical except for the
signatures, is authorized and instructed to combine the signed signature pages on one of the counterparts, which shall then constitute the Agreement.
23.5 Waiver of Jury Trial. THE PARTIES HEREBY WANE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.
23.6 Conflict. Any conflict between the printed provisions of this Agreement and the typewritten or handwritten provisions shall be
controlled by the typewritten or handwritten provisions.
23.71031 Exchange. Both Seller and Buyer agree to cooperate with each other in the event that either or both wish to participate in a 1031
exchange. Any party initiating an exchange shall bear all costs of such exchange.
24. Disclosures Regarding The Nature of a Real Estate Agency Relationship.
24.1 The Parties and Brokers agree that their relationship(s) shall be governed by the principles set forth in the applicable sections of the
California Civil Code, as summarized in paragraph 24.2.
24.2 When entering into a discussion with a real estate agent regarding a real estate transaction, a Buyer or Seiler should from the outset
understand what type of agency relationship or representation it has with the agent or agents in the transaction. Buyer and Seller acknowledge being
advised by the Brokers in this transaction, as follows:
(a) Seller's Agent. A Seller's agent under a listing agreement with the Seller acts as the agent for the Seller only. A Seller's agent or subagent
has the following affirmative obligations: (1) To the Seiler: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Seller. (2)
To the Buyer and the Seller: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b. A duty of honest and fair dealing
and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or
PAGE 11 OF 14
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within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from
the other Party which does not involve the affirmative duties set forth above.
(b) Buyer's Agent. A selling agent can, with a Buyer's consent, agree to act as agent for the Buyer only. In these situations, the agent is not
the Sellers agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Seller. An agent
acting only for a Buyer has the following affirmative obligations. (1) To the Buyer., A fiduciary duty of utmost care, integrity, honesty, and loyalty in
dealings with the Buyer. (2) To the Buyer and the Seller: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b. A
duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the
property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any
confidential information obtained from the other Party which does not involve the affirmative duties set forth above.
(c) Agent Representing Both Seller and Buyer. A real estate agent, either acting directly or through one or more associate licenses, can
legally be the agent of both the Seiler and the Buyer in a transaction, but only with the knowledge and consent of both the Seller and the Buyer. (1) In a
dual agency situation, the agent has the following affirmative obligations to both the Seller and the Buyer: a. A fiduciary duty of utmost care, integrity,
honesty and loyalty in the dealings with either Seller or the Buyer. b. Other duties to the Seller and the Buyer as stated above in their respective
sections (a) or (b) of this paragraph 24.2. (2) in representing both Seller and Buyer, the agent may not without the express permission of the respective
Party, disclose to the other Party that the Seiler will accept a price less than the listing price or that the Buyer will pay a price greater than the price
offered. (3) The above duties of the agent in a real estate transaction do not relieve a Seller or Buyer from the responsibility to protect their own
interests. Buyer and Seller should carefully read all agreements to assure that they adequately express their understanding of the transaction. A real
estate agent is a person qualified to advise about real estate. if legal or tax advice is desired, consuk a competent professional.
(d) Further Disclosures. Throughout this transaction Buyer and Seller may receive more than one disclosure, depending upon the number of
agents assisting in the transaction. Buyer and Seller should each read its contents each time it is presented, considering the relationship between them
and the real estate agent in this transaction and that disclosure. Brokers have no responsibility with respect to any default or breach hereof by either
Party. The liability (including court costs and attorneys' fees), of any Broker with respect to any breach of duty, error or omission relating to this
Agreement shall not exceed the fee received by such Broker pursuant to this Agreement; provided, however, that the foregoing limitation on each
Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker.
24.3 Confidential Information: Buyer and Seller agree to identify to Brokers as "Confidential" any communication or information given Brokers that
is considered by such Party to be confidential.
25. Construction of Agreement. In construing this Agreement, all headings and titles are for the convenience of the parties only and shall not be
considered a part of this Agreement. Whenever required by the context, the singular shall include the plural and vice versa. Unless otherwise
specifically indicated to the contrary, the word "days" as used in this Agreement shall mean and refer to calendar days. This Agreement shall not be
construed as if prepared by one of the parties, but rather according to its fair meaning as a whole, as if both parties had prepared it. When the
words "business days" are used in this Agreement, the term ehall include Monday through and including
Thursday, and Shall exclude Friday, Saturday, Sunday, and all holidays, it being the long time practice of the
City of Vernon to be closed on Fridays.
26 Additional Provisions:
Additional provisions of this offer, if any, are as follows or are attached hereto by an addendum consisting of paragraphs 26.1
through
26.17
(If there are no additional provisions write "NONE".)
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AIR COMMERCIAL REAL ESTATE ASSOCIATION OR BY ANY
BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS AGREEMENT OR THE TRANSACTION TO
RICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS AGREEMENT.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PROPERTY. SAID
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STIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING
PROPERTY, THE INTEGRITY AND CONDITION OF ANY STRUCTURES AND OPERATING SYSTEMS, AND THE SUITABILITY OF
>ERTY FOR BUYER'S INTENDED USE.
ZING: IF THE PROPERTY IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THIS AGREEMENT
TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
NOTE:
1. THIS FORM IS NOT FOR USE IN CONNECTION WITH THE SALE OF RESIDENTIAL PROPERTY.
2. IF THE BUYER IS A CORPORATION, IT 13 RECOMMENDED THAT THIS AGREEMENT BE SIGNED BY TWO CORPORATE
OFFICERS.
The undersigned Buyer offers and agrees to buy the Property on the terns and conditions stated and acknowledges receipt of a copy hereof.
BROKER: BUYER:
Attn: _
Title: _
Address:
Telephone:(_)
Facsimile:(_)
Email:
Federal ID No.
CITY OF VERNON
By:
Date.
Name Printed:Leonis C. Malburg
Title: Mayor
ATTEST.
By:
Date:
Name Printed: Bruce V. Malkenhorst, Jr.
Title: Acting City Clerk
Address:4305 Santa Fe Avenue
Vernon, California 90058
Telephone:(3 2 3) 583-8811
Facsimile:(323) 826-1438
Email:
Federal ID No. 95-6000808
APPROVED AS TO FORM:
ERIC T. FRESCH, CI ATTORNEY
27. Acceptance.
27.1 Seller accepts the foregoing offer to purchase the Property and hereby agrees to sell the Property to Buyer on the terms and conditions
therein specified.
27.2
In consideration of real estate brokerage service rendered-by4kokers, Seller agrees to pay CB Richard EIIio,
Inc. Brokers a real estate Brokerage Fee pursuant to a Separate agreement between Seller and CB Richard Ellis, Inc.
Buyer shall pay Cushman & Wakefield a real estate brokerage fee for Services rendered pursuant to a separate
agreement between Buyer and Cushman & Wakefield '
said- A-FakeFs shall d*FeGt iA wF#ing. This AgpeemeAt shall ttenw as an iFFev9GabI9 inStAUG-tic-A 19 Si ;uGh WokeFage r-88 tO BF8kera out
27.3 Seller acknowledges receipt of a copy hereof and authorizes Brokers to deliver a signed copy to Buyer.
NOTE: A PROPERTY INFORMATION SHEET IS REQUIRED TO BE DELIVERED TO BUYER BY SELLER UNDER THIS AGREEMENT.
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BROKER:
SELLER:
Attn:
Title: _
Address:
Telephone:(_ )
Facsimile:(—).
Email:
Federal ID No.
PECHINEY CAST PLATE, INC., a Delaware
corporation
By:
Date: - O
Nam P 'nted: John Buras
Title ana er of Insurance and Real Estate
Telephone:(—)
Facsimile:( )
By:
Date:
Name Printed:
Title:
Address:8870 West Bryn Mawr Avenue
Chicago, Illinois 60631
Telephone:(773) 399-8629
Facsimile:(773 ) 399-8648
Email
Federal ID No:
These forms are often modified to meet changing requirements of law and needs of the Industry. Always write or call to make sure you are
utilizing the most current form: AIR COMMERCIAL REAL ESTATE ASSOCIATION, 700 South Flower Street, Suite 600, Los Angeles, CA 90017.
(213)687-8777.
® Copyright 2003 By AIR Commercial Real Estate Association.
All rights reserved.
No part of these works may be reproduced In any form without permission in writing.
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ADDENDUM TO STANDARD OFFER, AGREEMENT
AND ESCROW INSTRUCTIONS FOR PURCHASE OF REAL ESTATE
Buyer: City of Vernon
Seller: Pechiney Cast Plate, Inc.
Premises: 3200 Fruitland Avenue, Vernon, CA 90058
Dated: March 20, 2006
In the event of a conflict between the terms of the Standard Offer, Agreement and Escrow
Instructions (the "Pre -Printed Form") and this Addendum (the "Addendum"), the terms of the
Addendum shall control. Any initially capitalized term used in this Addendum that is not
defined herein shall have the meaning ascribed to such term in the Pre -Printed Form.
Collectively, the Pre -Printed Form and this Addendum are referred to as the "Agreement."
26.1 Escrow shall close (the "Expected Closing Date") on a mutually agreed upon date which
is not later than ten (10) business days after the completion of Seller's Work. The
Seller's Work shall be deemed completed when the Health Department of the City of
Vernon (the "Health Department") has issued a Certificate of Closure or No Further
Action Letter (either being referred to herein as a "Certificate of Closure") with respect to
the Remediation Work (as defined herein) and Seller has received the written approval,
by the Community Services Department of the City of Vernon (the "Community Services
Department"), with respect to the Demolition Work (as defined herein).
26.2 Buyer's Due Diligence: Upon mutual execution of the Agreement, Buyer and its agents
shall have immediate access to the Property to allow for necessary inspections and
testing, subject to the provisions of Paragraph 14 of the Pre -Printed Form.
Notwithstanding anything in the Pre -Printed Form to the contrary, Buyer shall have the
right to undertake, during the Contingency Period (as defined herein), a Phase II
environmental study or other environmental studies of the Property, including, without
limitation, any borings or other invasive studies required to complete the Phase II study
or other studies (as long as the number of borings and locations thereof are approved by
Seller which approval will not be unreasonably withheld); provided, however, that
Buyer's right to obtain a Phase II report or other environmental studies shall not affect
the obligation of Seller to undertake all studies, reports, and borings that may be required
to obtain (a) a Certificate of Closure, and (b) a Phase Il environmental report, each as
further described below.
LOSANGELES 300320v13 49789-MIO
Notwithstanding any provisions of this Agreement to the contrary, Buyer may not
conduct any invasive or other testing of the Property, including but not limited to any soil
borings, groundwater sampling or Phase II site assessment investigation, unless prior
written notice has been given by Seller and Seller has given its approval, which will not
be unreasonably withheld.
26.3 Seller's Reports:
Prior to the Date of Agreement, Seller has delivered to Buyer all analyses, tests, reports,
or studies that Seller currently has in its possession relating to the physical condition of
the Property, including all soils and geological reports, appraisals, and environmental
reports, including, without limitation, a Phase I environmental report and a Phase II
environmental report prepared by Geo-Matrix (collectively, the "Due Diligence
Reports"). The Phase I environmental report and the Phase II environmental report have
been submitted to and approved by the Health Department. All Due Diligence Reports
have been (and will be) delivered to Buyer subject to the provisions of Paragraph 12 of
the Pre -Printed Form, and shall be promptly returned to Seller if the transaction fails to
close for any reason. Until the Closing, all such materials shall be held in confidence as
provided herein.
26.4 Purchase Price: The Purchase Price constitutes all consideration due to Seller for the
Property and the Units, and Seller hereby waives and relinquishes any relocation
assistance Seller may be entitled to under local, state, or federal law.
26.5 Contingency Period: As used herein, the term "Contingency Period" means the time
period commencing on the Date of Agreement and ending at 5:00 p.m. (Pacific Time) on
a date which is thirty (30) days thereafter provided, however, that the Contingency Period
shall not expire until a date which is at least fifteen (15) days after Buyer has delivered to
Seller all Due Diligence Reports, the disclosure required under Paragraph 9.1(a), the Title
Report, and copies of the Other Agreements. Further, if the last day of the Contingency
Period is not a business day, then the Contingency Period shall be extended until 5:00
p.m. (Pacific Time) on the next business day.
26.6 Contingencies: Buyer shall have until the end of the Contingency Period to determine,
in its sole and absolute discretion, whether it is satisfied with all aspects of the Property
and the transaction, including, without limitation, those contingencies set forth in
Paragraph 9 of the Pre -Printed Form and all other matters related to the Property,
including economic analyses, issues related to Hazardous Substances, condition of the
Property, its fitness for a particular use, marketability, prospects for future development,
use, or occupancy, and any other matter related to Buyer's use of the Property.
Notwithstanding anything to the contrary in Paragraph 9.3 of the Pre -Printed Form,
Buyer and Seller acknowledge that Buyer may determine, in its sole and absolute
discretion, during the Contingency Period, that there are issues related to the condition of
the Property, such as marketability or prospects for future development or existence of
Hazardous Substances on the Property, that are not subject to cure by Seller, and that
Buyer may terminate this Agreement, and obtain a full refund of its Deposit, if Buyer
does not approve Buyer's Contingencies within the Contingency Period. Buyer, in its
2
LOSANGELES 300320v13 49789-00010
sole and absolute discretion, may terminate the Agreement within the Contingency Period
and receive a full refund of the Deposit.
26.7 Demolition and Remediation Obligations: Seller shall perform the Demolition Work
(as described herein) and the Remediation Work (as described herein), at Seller's cost
and expense. Collectively, the Demolition Work and the Remediation Work are referred
to as "Seller's Work".
(a) Demolition Work. A description of the Demolition Work (including a
timetable for the performance of the Demolition Work) shall be set forth in a plan (the
"Demolition Work Plan") which shall be mutually agreed upon by Seller and Buyer prior
to the end of the Contingency Period, which shall include a timetable for the performance
of the Demolition Work. If the parties cannot in good faith mutually agree upon a
Demolition Work Plan by the end of such time period, then unless the parties agree in
writing to extend such time period, this Agreement and the escrow shall be deemed
terminated and the provisions of Paragraph 8.7 of the Pre -Printed Form shall apply. Any
changes proposed by Seller to the approved Demolition Work Plan shall be subject to
written approval by Buyer and the Community Services Department. Buyer's approval
shall not be unreasonably withheld. The Demolition Work shall be deemed complete
when the Community Services Department has, in its reasonable judgment, approved the
completion of the Demolition Work. The Demolition Work shall be performed by a
contractor or contractors selected by Seller and reasonably approved by Buyer. The
Demolition Work Plan shall include the following:
(i) All manmade improvements, items, structures, buildings, utilities,
concrete, asphalt, foundations, footings, and general debris (collectively, "Structures")
shall be removed. Any salvage value shall be retained by Seller. Buyer acknowledges
that the buildings contain galbestos panels, and that the concrete within the buildings are
contaminated with PCB's, all of which will be removed as part of the Demolition Work
Plan (but subject to the performance standards for Remediation Work, as described
herein).
(ii) After removal of all Structures, the site shall be left level and at
current grade, in rough grade condition, with any holes filled with clean imported soil.
The soil on the site shall be recompacted to 95%.
(b) Remediation Work. Based on the Phase I environmental report and the
Phase II environmental report which have been delivered to Buyer and approved by the
Health Department, if Remediation Work is required, Seller and Buyer shall mutually
agree upon a plan (as it may be amended pursuant to this Agreement, the "Remediation
Work Plan") for Seller's completion of the Remediation Work, including a timetable for
the performance of the Remediation Work, that is required for the Health Department to
issue the Certificate of Closure . The parties may, but shall not be required to establish
an initial Remediation Work Plan which shall not take into account any Remediation
Work described in subparagraph (c) below. Such initial Remediation Work Plan shall be
subject to approval of the Health Department.
LOSANGELES 30032003 49789-00010
(c) Final Remediation Work Plan. As soon as possible after the completion of
the Demolition Work, Seller and Buyer shall mutually agree upon the scope of a final
Remediation Work Plan (including changes to the initial Remediation Work Plan, if any)
which are necessary to properly remediate the Property in order to obtain the Certificate
of Closure, consistent with the standards customarily followed by the Health Department
for the issuance of Certificates of Closure. Promptly after Seller notifies Buyer that it has
completed the Demolition Work, Buyer shall notify Seller of any further environmental
studies or tests (including, without limitation, supplements to the documents previously
provided by Seller, or new studies) that are required by the Health Department to develop
a final Remediation Work Plan and to obtain the Certificate of Closure. Seller shall be
responsible for obtaining and paying for such studies or tests. If the parties cannot
mutually agree upon a final Remediation Work Plan, then the arbitration provisions
hereof shall apply. Any changes proposed by Seller to an approved Remediation Work
Plan shall be subject to approval by Buyer and the Health Department. Buyer's approval
shall not be unreasonably withheld. Issuance of the Certificate of Closure by the Health
Department shall serve as evidence of satisfactory completion of the Remediation Work.
Seller shall, at Seller's sole cost, obtain the Certificate of Closure prior to the Closing,
which Certificate of Closure shall be issued in the name of Seller. The Remediation
Work shall be performed by a contractor or contractors selected by Seller and reasonably
approved by Buyer.
(d) Performance of Seller's Work. The following provisions shall apply to
Seller's Work:
(i) Performance Standards for All of Seller's Work. Seller shall
ensure that all of Seller's Work is conducted in a safe, prudent manner, in accordance
with industry standards and in accordance with all applicable laws, including, without
limitation, laws regulating the handling, transfer, storage, and disposal of all Hazardous
Substances. Seller shall pay for all Seller's Work in accordance with the contracts
between the Seller and the contractors, and shall ensure that all contractors and
subcontractors are paid in full. Seller shall use best efforts to insure that no mechanics/
or materialmen's liens are filed against the Property, but if any such liens are filed, Seller
will promptly (and in any event prior to any foreclosure sale related to such lien) bond
around same and Seller shall indemnify Buyer from any liability in connection therewith.
Seller shall obtain all permits required to perform Seller's Work.
(ii) Performance Standards for Remediation Work. In addition to the
standards set forth above, which shall apply to all of Seller's Work, the Remediation
Work shall be performed by contractors competent and knowledgeable in removing and
transporting Hazardous Substances. For purposes of applicable law, Seller (or another
entity determined by Seller, but not Buyer) shall be named as the responsible party on all
manifests, licenses, and documents regarding the storage, release, and transfer of
Hazardous Substances, and shall be listed on all disposal manifests as the responsible
party, and if Buyer elects to perform any of the Remediation Work under the "self-help"
provisions hereof, Buyer may identify Seller as the responsible party on any such
manifests, license or documents.
4
LOSANGELES 30032003 49789-WO10
(iii) Completion of Seller's Work. Seller shall use best efforts to cause
the Seller's Work to be completed by the time periods set forth in the Demolition Work
Plan and the Remediation Work Plan, subject to events which are beyond the Seller's
reasonable control; provided, however, that failure to pay money shall not be an excuse
for delay. Seller shall be excused from performance for the number of days of delay
cause by events beyond Seller's reasonable control, and shall immediately thereafter
commence and complete Seller's Work. The Title Policy obtained by Buyer at Closing
shall not reflect any mechanics or materialmen's liens relating to the Seller's Work and
Seller shall, prior to or at Closing, cause any such liens to be paid or bonded around in
accordance with applicable law (to the extent that Seller contests any such liens). Seller
shall execute and deliver all documents (including any indemnifications or other
assurances) reasonably required by the Title Company to issue the Title Policy. If the
Title Policy is a CLTA form policy, then Seller shall also pay for a mechanics' lien
endorsement (CLTA 101 series).
(iv) Indemnification. Notwithstanding anything herein to the contrary,
Seller may elect to perform additional Remediation Work (beyond any Remediation
Work which is required by Buyer and the Health Department to obtain a Certificate of
Closure). In such event, all provisions of this Agreement pertaining to the establishment
of a Remediation Work Plan and performance of the Remediation Work shall apply, as if
Buyer had required such Remediation Work. In the event that complete remediation of
the Property is not required pursuant to the Remediation Plan, and Seller elects not to do
any additional Remediation Work, then Buyer shall indemnify, defend and hold Seller
free and harmless from any and all liability relating to the existence or release of
Hazardous Materials, or any Hazardous Materials Conditions which presently exist,
previously existed or may arise in the future. Such indemnification obligation shall be
evidenced by a formal indemnification agreement to be negotiated in good faith and
executed by the parties at the Closing. Buyer shall not be released from its obligation to
enter into such indemnification agreement as a result of any assignment of this
Agreement prior to the Closing, or by any sale of the Property after the Closing.
26.8 Role of Health Department: It is understood that nothing in this Agreement affects or
limits the Health Department's responsibilities in the administration of local, state and
federal law with respect to remediation of the Property, if remediation is necessary.
Seller agrees that neither Buyer's relationship to the Health Department nor anything
required of Seller by the Health Department in carrying out its responsibilities under the
law, shall excuse Seller's obligations under this Agreement. It is further understood that
Buyer's approval of any contingency relative to the condition of the Property only
includes approval by the Buyer, and does not necessarily constitute approval by the
Health Department.
26.9 INTENTIONALLY OMITTED:
26.10 Exclusivity: Prior to the Closing, Seller agrees not to negotiate with other prospective
buyers, or lease any or all of the Property, or enter into any other agreements which
would bind the Property after the Closing without the prior written approval of the Buyer.
5
LOSANGELES 300320v13 49789-00010
26.11 1031 Exchange: Buyer and Seller agree to cooperate with exchanges allowed or
provided by Internal Revenue Code Section 1031 (as amended), provided that the non -
exchanging party incurs no liability and incurs no additional costs through such
cooperation, and the Closing is not delayed.
26.12 Confidentiality: Without the prior written consent of Seller, Buyer will not disclose, and
Buyer will direct its representatives, employees, agents and consultants not to disclose to
any person or entity (i) the fact that Buyer has entered into this Agreement or the terms
hereof, or (ii) any of the terms of this Agreement, except as disclosure may be required
by law. Notwithstanding the foregoing, Buyer shall have the right to disclose all relevant
facts related to the purchase of the Property and the terms of this Agreement to (a) all of
Buyer's consultants, employees, agents, and representatives, including officials and staff
of the City of Vernon, who are in any way involved with the transaction; (b) the City
Council of the City of Vernon (and Seller acknowledges that the agenda and proceedings
of the City Council are public and of public record, and that this Agreement will be
attached to a Resolution adopted by the City Council that approves the Agreement); and
(c) as otherwise necessary or appropriate in order to consummate this transaction and
comply with all applicable laws, including, without limitation, Govt. Code Section 7275,
which states that the Purchase Price is public information.
26.13 City Council Approval: This Agreement, and any amendments thereto, are subject to the
review and approval of -the City Council of the City of Vernon.
26.14 Buyer's Representations and Warranties: The following constitute representations
and warranties of Buyer to Seller as of the Date of Agreement and as of the Closing:
(a) Buyer has the legal power, right and authority to enter into this Agreement
and the documents required hereby to be executed by Buyer, and to consummate the
transactions contemplated hereby.
(b) All requisite corporate action has been taken by Buyer in connection with
the entering into this Agreement and the documents required hereby to be executed by
Buyer, and the consummation of the transactions contemplated hereby.
(c) The individuals executing this Agreement and the documents required
hereby to be executed by Buyer on behalf of Buyer have the legal power, right and actual
authority to bind Buyer to the terms and conditions hereof and thereof.
(d) This Agreement and all documents required hereby to be executed by
Buyer are and will be valid, legally binding obligations of and enforceable against Buyer
n accordance with their terms, subject only to applicable bankruptcy, insolvency,
reorganization, moratorium laws or similar laws or equitable principles affecting or
limiting the rights of contracting parties generally.
(e) No representation, warranty or statement of Buyer in this Agreement or in
any document furnished or to be furnished to Seller pursuant hereto contains or will
contain any untrue statement of a material fact, or omits or will omit to state a material
0
LOSANGELES 300320v 13 49789-M 10
fact necessary to make the statements or facts contained therein not misleading. Except
to the extent set forth in writing from Buyer, Buyer's representations and warranties
made in this Paragraph will be continuing and will be true and correct as of the Closing
with the same force and effect as if remade by Buyer at that time.
(fl The Demolition Work (to the extent that such Demolition Work is
performed by Seller and not by Buyer pursuant to the "self-help" provisions hereof) will
not be work performed under a contract "paid for in whole or in part out of public funds",
as such phrase is used in California Labor Code § 1720, et seq. (and case authority
interpreting such statutes), and the Demolition Work therefore will not constitute a
project to which "prevailing wage" laws apply.
Buyer agrees to and does hereby indemnify, defend and hold Seller free and harmless from any
and all claims, demands, lawsuits, judgments, costs, expenses and liabilities of any nature
whatsoever, including reasonable attorneys' fees and costs which result from any breach or
inaccuracy of any of the foregoing representations or warranties (including any claims which
allege facts which, if true, would result in the breach or inaccuracy of any such representations or
warranties, regardless of the actual resolution of such claims).
26.15 ARBITRATION OF DISPUTES:
(a) USE OF JAMS. THE PARTIES AGREE THAT ANY DISPUTE OR
CONTROVERSY ARISING OUT OF OR RELATING TO ANY INTERPRETATION,
CONSTRUCTION, PERFORMANCE, TERMINATION OR BREACH OF THE
AGREEMENT OR THE PURCHASE OF THE PROPERTY BY BUYER WILL BE
SETTLED BY FINAL AND BINDING ARBITRATION BY A PANEL OF
ARBITRATORS TO BE HELD IN LOS ANGELES COUNTY, CALIFORNIA, IN
ACCORDANCE WITH THE RULES OF THE JUDICIAL ARBITRATION &
MEDIATION SERVICES, INC. ("JAMS"). WITHOUT LIMITING ANY OTHER
PROVISION HEREIN, THIS PARAGRAPH 26.15 SHALL SURVIVE THE
TERMINATION OF THE AGREEMENT AND WILL APPLY TO ANY CLAIM,
DISPUTE, OR CONTROVERSY THAT ARISES DURING OR AFTER THE
TERMINATION OF THE AGREEMENT.
(b) PROCEDURE. THE ARBITRATION SHALL TAKE PLACE BEFORE
A PANEL OF THREE RETIRED JUDGES OF THE SUPERIOR COURT OF THE
STATE OF CALIFORNIA OR ANY CALIFORNIA APPELLATE COURT (THE
"ARBITRATORS") UNDER THE AUSPICES OF JAMS. SUCH ARBITRATION
SHALL BE INITIATED BY THE PARTIES, OR EITHER OF THEM, WITHIN TEN
(10) CALENDAR DAYS AFTER EITHER PARTY BY SERVING A NOTICE OF
DEMAND TO ARBITRATE (THE "ARBITRATION NOTICE") TO THE OTHER
PARTY AND TO JAMS. THE ARBITRATION NOTICE SHALL CONTAIN A
DESCRIPTION OF THE SUBJECT MATTER OF THE ARBITRATION, THE
DISPUTE WITH RESPECT THERETO, THE AMOUNT INVOLVED, IF ANY, AND
THE REMEDY OR DETERMINATION SOUGHT.
7
LOSANGELES 300320v13 49789-00010
(c) SELECTION OF ARBITRATORS. EACH PARTY SHALL SELECT
AN ARBITRATOR FROM THE JAMS PANEL, AND THE TWO SELECTED
ARBITRATORS SHALL MUTUALLY AGREE ON THE THIRD ARBITRATOR
FROM THE JAMS PANEL. IF ONE OF THE PARTIES DOES NOT SELECT AN
ARBITRATOR FROM THE JAMS PANEL WITHIN 14 CALENDAR DAYS AFTER
RECEIPT OF THE PANEL FROM JAMS, JAMS WILL SELECT THE SECOND
ARBITRATOR, AND THE ARBITRATOR SELECTED BY JAMS AND THE
ARBITRATOR SELECTED BY THE OTHER PARTY WILL SELECT THE THIRD
ARBITRATOR FOR THE PANEL. THE THIRD ARBITRATOR IS TO BE
SELECTED WITHIN 10 CALENDAR DAYS FOLLOWING THE SELECTION OF
THE FIRST TWO ARBITRATORS. IN THE EVENT OF ANY SUBSEQUENT
VACANCIES OR INABILITIES TO PERFORM AMONG THE ARBITRATORS
APPOINTED, THE ARBITRATORS INVOLVED SHALL BE REPLACED IN
ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH 26.15 AS IF
SUCH REPLACEMENT WAS AN INITIAL APPOINTMENT TO BE MADE UNDER
THIS PARAGRAPH 26.15 WITHIN THE TIME CONSTRAINTS SET FORTH IN
THIS PARAGRAPH 26.15, MEASURED FROM THE DATE OF NOTICE OF SUCH
VACANCY OR INABILITY TO THE PERSON OR PERSONS REQUIRED TO
MAKE SUCH APPOINTMENT. NOTWITHSTANDING THE FOREGOING, IF THE
AMOUNT IN CONTROVERSY IS LESS THAN ONE HUNDRED THOUSAND
DOLLARS ($100,000) THEN THERE SHALL BE ONLY ONE ARBITRATOR, TO BE
MUTUALLY AGREED UPON BY THE PARTIES. IF THE PARTIES CANNOT, IN
GOOD FAITH, MUTUALLY AGREE UPON A SINGLE ARBITRATOR WITHIN
TEN (10) DAYS AFTER RECEIPT OF THE JAMES PANEL, THEN THERE SHALL
BE THREE (3) ARBITRATORS, SELECTED IN ACCORDANCE WITH THE
FOREGOING PROVISIONS.
(d) THE DECISION. ANY PARTY MAY BE REPRESENTED BY
COUNSEL OR OTHER AUTHORIZED REPRESENTATIVE. IN RENDERING A
DECISION(S), THE ARBITRATORS SHALL DETERMINE THE RIGHTS AND
OBLIGATIONS OF THE PARTIES ACCORDING TO THE SUBSTANTIVE LAWS
OF THE STATE OF CALIFORNIA, THE PROCEDURES FOLLOWED BY JAMS
AND THE TERMS OF THE AGREEMENT. THE DECISION OF THE
ARBITRATORS SHALL BE BASED ON THE EVIDENCE INTRODUCED AT THE
HEARING, AND SHALL BE BASED ON, AND ACCOMPANIED BY, A WRITTEN
STATEMENT OF DECISION EXPLAINING THE FACTUAL AND LEGAL BASIS
FOR THE DECISION AS TO EACH OF THE PRINCIPAL CONTROVERTED
ISSUES. THE AGREEMENT OF TWO OF THE THREE ARBITRATORS AS TO
THE RESOLUTION OF THE DISPUTE SHALL BE A CONCLUSIVE RESOLUTION.
THE ARBITRATORS SHALL DELIVER THE WRITTEN DECISION TO THE
PARTIES WITHIN 30 CALENDAR DAYS FOLLOWING THE DATE OF THE
ARBITRATION HEARING, WHICH SHALL BE HELD AS EXPEDITIOUSLY AS
POSSIBLY, ON A DATE ESTABLISHED BY THE ARBITRATORS, BUT NOT
MORE THAN 180 DAYS AFTER THE DATE OF APPOINTMENT OF THE LAST
ARBITRATOR. THE DECISION SHALL BE CONCLUSIVE AND BINDING, AND
IT MAY THEREAFTER BE CONFIRMED AS A JUDGMENT BY THE SUPERIOR
8
LOSANGELES 300320v13 49789-00010
COURT OF THE STATE OF CALIFORNIA, SUBJECT ONLY TO CHALLENGE ON
THE GROUNDS SET FORTH IN THE CALIFORNIA CODE OF CIVIL
PROCEDURE SECTION 1286.2. THE VALIDITY AND ENFORCEABILITY OF
THE DECISION OF THE ARBITRATORS IS TO BE DETERMINED EXCLUSIVELY
BY THE CALIFORNIA COURTS. THE ARBITRATORS SHALL HAVE THE
AUTHORITY TO GRANT EITHER PARTY ALL REMEDIES OTHERWISE
AVAILABLE BY LAW, INCLUDING INJUNCTIONS.
(e) PAYMENT OF ARBITRATORS AND ATTORNEYS' FEES. THE
NON -PREVAILING PARTY SHALL PAY THE COSTS OF ALL ARBITRATORS
AND THE ARBITRATION PROCESS, AND THE REASONABLE ATTORNEYS'
FEES OF THE PREVAILING PARTY, AS DETERMINED BY THE ARBITRATORS.
(f) NOTICE OF WAIVER. NOTICE: BY INITIALING IN THE SPACE
BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE
MATTERS INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW
AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE
DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE
SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION. IF YOU
REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURES. YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT
DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION OF
DISPUTES' PROVISION BY NEUTRAL ARBITRATION.
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BUYER'SINITIALS SEL R'S INITIALS
ty
26.16 Additional Deposits; Releases of Deposit: In addition to the amount set forth in
Paragraph 4.1 of the Preprinted Form, Buyer shall deposit with Escrow Holder the
following additional sums, which shall all be considered a part of the "Deposit", and
which shall all be applied to the Purchase Price at Closing:
(a) Not later than the third (P) business day after the end of the Contingency
Period, the sum of Eight Million Dollars ($8,000,000).
(b) Not later than the third (P) business day after completion of the "above -
grade" Demolition Work (which means the demolition and removal of all portions of
buildings and other structures which are aboveground, excluding, without limitation,
foundations, first -level building floors, footings, and basements, and also excluding
Ge
LOSANGELES 300320v13 49789-00010
paved areas) the sum of Eight Million Eight Hundred Thousand Dollars ($8,800,000).
Completion of the above -grade Demolition Work shall be evidenced by the written
certification of GeoMatrix. Seller shall give Buyer at least ten (10) days' advance written
notice of the expected date of completion of the above -grade Demolition Work and shall
again give Buyer written notice upon completion of the above -grade Demolition Work.
(c) Not later than December 1, 2006, the sum of Eight Million Eight Hundred
Thousand Dollars ($8,800,000).
(d) Not later than the ninth (9th) business day after the issuance of a
Certificate of Closure by the Health Department, the balance of the Purchase Price (Ten
Million Three Hundred Thousand Dollars ($10,300,000).
Immediately upon receipt of the additional amounts of the Deposit set forth in subparagraphs (a),
(b) and (c) above, without further instructions from Seller or Buyer, and notwithstanding any
unilateral instructions to the contrary which Escrow Holder may hereafter receive from a party,
Escrow Holder shall, immediately upon receipt of each such amount, release the full amount
thereof to Seller (pursuant to Seller's wire -transfer instructions). For clarification, the original
amount deposited (Six Hundred Thousand Dollars ($600,000) will not be released to Seller until
the Close of Escrow. Seller and Buyer each agree to hold Escrow Holder harmless and waive
any claims against Escrow Holder relating in any way to such releases of the Deposit, Buyer
acknowledging that at the time of the releases it will not hold legal title to the Property and that
there will be unsatisfied conditions to the Close of Escrow at the time of the releases.
26.17 Self -Help Remedy: In addition to any other remedies which the Buyer may have at law
or under this Agreement, and without any need to resort to the arbitration procedure as a
condition to electing the remedy set forth in this Paragraph 26.17, in the event that Seller
defaults under this Agreement or fails to perform the Seller's Work in accordance with
the Demolition Work Plan and/or the Remediation Work Plan (including failure to
perform within the timetables set forth in each Work Plan), Buyer may give notice to
Seller specifying the default ("Default Notice"). Seller shall have ten (10) business days
after receipt of the Default Notice to cure the default or, if the default is not reasonably
capable of being cured during such ten (10) business day period, to commence the cure,
provided that Seller diligently pursues the cure to completion. Seller shall not be deemed
to be in default if the reason for Seller's non-performance is an event which is not within
Seller's reasonable control such as, but not limited to, labor or material shortages, strikes,
lockouts, adverse weather conditions, acts of war or civil insurrection. If the reason for
Seller's default is the default of a contractor performing the Seller's Work, then Seller
may effectuate a cure by terminating and replacing the contractor as promptly as
reasonably possible. If Seller fails to cure (or commence the cure, as the case may be)
within such ten (10) business day period, Buyer may elect to perform any of Seller's
Work which has not yet been performed (the "Remaining Seller's Work"). Buyer may
make such election by giving notice to Seller, which notice shall be at least three (3)
business days before Buyer or Buyer's representatives enters upon the Property for the
purpose of performing any Remaining Seller's Work. Seller hereby grants to Buyer an
irrevocable license to enter upon the Property to perform the Remaining Seller's Work.
The performance of the Remaining Seller's Work by Buyer shall be in conformance with
10
LOSANGELES 300320v13 49789-00010
the performance standards set forth in Paragraph 26.7(d) of this Addendum, the
Demolition Work Plan and the Remediation Work Plan. To the extent that the
contractors performing Seller's Work are not then in default and such contracts are
assigned to Buyer by Seller and honored by such contractors, Buyer will continue to use
such contractors to perform the remaining Demolition Work or Remediation Work, as the
case may be. The actual costs of completion of the Remaining Seller's Work shall reduce
the Purchase Price. The costs of completion of the Remaining Seller's Work shall
include a fee to Buyer for Buyer's costs in supervising such work, in the amount of five
percent (5%) of the total cost of the Remaining Seller's Work, but not to exceed Five
Hundred Thousand Dollars ($500,000). The costs of completion of the Remaining
Seller's Work shall also include any additional amounts which Buyer shall be lawfully
obligated to pay as a result of any of the Seller's Remaining Work becoming subject to
the "prevailing wage" laws. After any Remaining Seller's Work which consists of
Demolition Work has been completed, Buyer shall apply for the written approval by the
Community Services Department of the Demolition Work, and Buyer shall give notice to
Seller when such approval has been obtained. After any Remaining Seller's Work which
consists of Remediation Work has been completed, Buyer shall apply for the Certificate
of Closure from the Health Department, and Buyer shall give written notice to Seller
when such Certificate of Closure has been obtained. After the issuance of the Certificate
of Closure, the parties shall proceed to the Closing as contemplated herein. Upon the
Close of Escrow, the Buyer shall pay to the Seller any unpaid portion of the Purchase
Price, reduced by the costs of completion of the Remaining Seller's Work as described
above. If the cost of completion of the Remaining Seller's Work, as described above,
exceeds the unpaid portion of the Purchase Price, Seller shall, promptly after receipt of an
invoice and evidence of costs, reimburse all such excess costs of completion of the
Remaining Seller's Work.
Seller and Buyer shall each have the right, at reasonable times upon reasonable advance notice,
to inspect all books and records of the other party as they relate to the performance of any of
Seller's Work.
If Buyer elects to exercise its self-help remedy under this Paragraph 26.17, then it need not make
any further Deposits into Escrow (nor shall there be any further releases of the Deposits from
Escrow) until the Closing, at which time there shall be a reconciliation of the amount owed by
Buyer to Seller, or by Seller to Buyer, as the case may be.
11
LOSANGELES 300320v13 49789-ON10
SIGNATURE PAGE
Seller:
PECHINEY CAST PLATE, INC.
By: q 4d /X1 4—� —
am Buras
anager of Insurance & Real Estate
12
Buyer:
CITY OF VERNON
By:
LkONIS C. MAL B-tJRG, Mayor
ATTEST:
By:
BRLigt V. MALKENHORST, JR.
Acting City Clerk
APPROVED AS TO FORM:
l
By:
ERIC T. FREVx,-
S H, City Attorney
LOSANGELES 300320v13 49789-00010