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HomeMy WebLinkAbout07 - Acquistion of Property at 1499 Monrovia�EW `Rr CITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 7 October 9, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager 949 - 644 -3001, dkiff @newportbeachca.gov PREPARED BY: Dave Kiff, City Manager APPROVED: Nnwi 0. � /W TITLE: Acquisition of Non - Conforming Industrial Property Located At 1499 Monrovia Avenue, Newport Beach, California re1:4A 9:L•Gi 9 Late in 2011, Mr. Kenneth Kaplan sued the City of Newport Beach ( "City ") alleging the City inversely condemned his 17,000 square foot property located at 1499 Monrovia Avenue, Newport Beach, California ( "Property ") when the City rezoned the Property in 2010 from M -1 -A (industrial zone now classified as "IG ") to RM (multiple residential). While the City contended the lawsuit was without merit, the City reached an agreement with Mr. Kaplan to temporarily dismiss his lawsuit in exchange for the City negotiating in good faith for the potential acquisition of the Property. Although no decisions have been made, an acquisition of the Property would have value to the City, beyond the settlement of a lawsuit, because it may serve as the location of a new City community center in West Newport Beach, or provide a site for any number of other public facilities. The City Council designated Council Member Steve Rosansky and me to act as lead negotiators on behalf of the City. Based upon our negotiations with Mr. Kaplan, we have arrived at a proposed purchase price of $4.3 million and a release of all of Mr. Kaplan's past, pending or future legal claims against the City involving the Property. RECOMMENDATION: (1) Authorize the City Manager to execute a purchase and sale agreement, in a form substantially similar to the attached, and all associated documents, with Mr. Ken Kaplan to acquire the Property for a purchase price of $4.3 million. (2) Approve the attached interfund transfer budget amendment in the amount of $4.3 million to the West Newport Capital Projects Fund, from the Facilities Replacement Fund, to fund the acquisition of the Property. Acquisition of Non - Conforming Industrial Property Located At 1499 Monrovia Avenue, Newport Beach, California October 09, 2012 Page 2 FUNDING REQUIREMENTS: The City proposes to acquire the Property from Mr. Kaplan for a total price of $4.3 million. With the approval of the interfund transfer from the Facilities Replacement Fund, there is adequate money available in the West Newport Capital Projects Fund to cover the acquisition cost. DISCUSSION: The Property, as depicted below, is triangular in shape and although no decisions have been made, is potentially suitable as the site of a new City community center in West Newport Beach or other public facilities. Any determination as to the use of this site for public facilities will have to go through appropriate processes, including but not limited to the California Environmental Quality Act (CEQA) review. Issues arose between Mr. Kaplan and the City after the City Council adopted a comprehensive update of the City's Zoning Code on October 26, 2010. The Zoning Code was prepared to implement the land use and development policies of the 2006 General Plan, which included a reclassification of a number of commercial properties to residential uses. The Property was included within the reclassification and was rezoned from M-1 -A to RM. The Property is currently used for industrial purposes by a single tenant, Road and Track Magazine (this lease is at or near its expiration). 4 Acquisition of Non - Conforming Industrial Property Located At 1499 Monrovia Avenue, Newport Beach, California October 09, 2012 Page 3 After the Property was re- zoned, Mr. Kaplan sued the City alleging the City's zoning change amounted to an inverse condemnation of his Property. In an effort to resolve the pending litigation, Mr. Kaplan agreed to temporarily dismiss his lawsuit against the City to give the parties an opportunity to amicably resolve this matter. On March 19, 2012, Mr. Kaplan offered to permanently settle the litigation and sell the Property to the City for a price between $4.8 and $5 million. Mr. Kaplan originally purchased the Property in December 2007 at a price of $5.8 million. In response to Mr. Kaplan's offer, the City contracted with John S. Adams & Associates, Inc. to conduct an appraisal of the Property. The appraisal returned with a market value of the fee simple interest of the Property at $3,726,000. Mr. Kaplan also obtained an appraisal of the Property, by Waldron & Associates, Inc., which returned with a fee simple market value of approximately $4.8 million. Based upon the differences in value between the City's appraisal and Mr. Kaplan's appraisal, the City Council authorized Council Member Steve Rosansky and me to negotiate the acquisition of the Property with Mr. Kaplan. We met with Mr. Kaplan on September 17, 2012 and negotiated a tentative deal to acquire the Property. The major deal points are as follows: 1. The Property's purchase price is $4.3 million. 2. The closing date is November 15, 2012. However, the City would have one option to extend the closing date through December 15, 2012, provided the City covers all of Mr. Kaplan's carrying costs during the time extension (e.g., mortgage, interest, taxes, insurance, etc.). 3. Mr. Kaplan will share a Phase 1 hazardous substances report regarding the Property with the City. 4. Escrow fees will be split between the parties. 5. The purchase would resolve all of Mr. Kaplan's past, pending or future legal claims against the City involving the Property. The potential acquisition of the Property initially arose in the context of settlement of litigation (litigation we believe is without merit), but the potential value of the Property to the City has value beyond settlement, because the Property provides a site in West Newport Beach for many potential public improvements, including, but not limited to, a new City community center, or other public facilities. If the Property is acquired, there will be community dialogue and Council action (including but not limited to CEQA action) regarding potential uses of the Property prior to a final decision on the ultimate use of the Property. 7 Acquisition of Non - Conforming Industrial Property Located At 1499 Monrovia Avenue, Newport Beach, California October 09, 2012 Page 4 ENVIRONMENTAL REVIEW: Staff recommends the City Council find that the purchase of this property is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the City Council meeting). Submitted by: By . . e Kiff City Manager Attachments: (1) Purchase and Sale Agreement (2) Budget Amendment # 13BA -014 Escrow No. To: First American Title Insurance Company ( "Escrow Holder ") One First American Way Santa Ana, California 92707 Attention: Ryan Hahn, Escrow Officer Telephone: 714.250.8394 Date of Opening of Escrow: October _, 2012 THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS (this "Agreement ") is made this _ day of October, 2012, by and between Kenneth M. Kaplan ( "Seller ") and City of Newport Beach, a Municipal corporation and Charter City ( "City "). RECITAILS: A. Seller is the owner of that certain real property commonly known as 1499 Monrovia Avenue, in the City of Newport Beach, County of Orange, State of California, more particularly described on Exhibit "A" attached hereto and by this reference incorporated herein (or if not attached, to be attached by Escrow Holder upon issuance of the Title Report as such terms are defined below), together with all improvements now or hereafter constructed thereon, all easements, licenses and interests appurtenant thereto and all intangible property owned or held by Seller in connection with the Land, including without limitation, development rights, governmental approvals and land entitlements (collectively referred to herein as the "Property "). B. Seller previously filed an action against City in the Superior Court of the State of California (Case No. 00531667) alleging six causes of action including inverse condemnation (the "Action "). C. City has the authority to acquire property for public uses utilizing City's power of eminent domain. In lieu of City's exercise of said power and under the threat thereof, Seller is willing to sell the Property to City and City is willing to purchase the Property from Seller, upon the terms and conditions set forth in this Agreement. D. In settlement of the Action, but without admitting liability, Seller wishes to sell the Property to City and City wishes to buy the Property from Seller pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, the parties hereto agree as follows: TERMS AND CONDITIONS 1. PURCHASE AND SALE OF PROPERTY. City hereby agrees to purchase from Seller, and Seller agrees to sell to City the Property, upon the terms and conditions hereinafter set forth. 255/066751-0092 4403117.1 00/04/12 5 2. OPENING OF ESCROW. Within one (1) business day after the execution of this Agreement by Seller, the parties shall open an escrow ( "Escrow ") with the Escrow Holder by causing an executed copy of this Agreement to be deposited with Escrow Holder. Escrow shall be deemed open on the date that Seller delivers this executed Agreement to Escrow Holder. 3. PAYMENT OF PURCHASE PRICE. 3.1 Amount of Purchase Price. The purchase price for the Property will be FOUR MILLION THREE HUNDRED THOUSAND DOLLARS ($4,300,000.00) ( "Purchase Price "). 3.2 Payment of Purchase Price. (a) Not later than five (5) days following the Opening of Escrow, City shall deposit in Escrow in good funds, the sum of TWENTY -FIVE THOUSAND DOLLARS ($25,000.00) (the "Deposit "), which Deposit shall be applicable to the Purchase Price. In the event this Agreement has not been previously terminated, the Deposit shall be non - refundable on October 31, 2012 (the "Due Diligence Date "), and shall be applicable against the Purchase Price upon the Closing. In the event this Agreement is terminated by City on or before the Due Diligence Date or City disapproves of any of the items requiring approval of City hereunder on or before the Due Diligence Date, the Deposit shall be promptly returned to City. (b) On or before the Closing Date, City shall deposit the balance of the Purchase Price, subject to any other credits or debits hereunder, with Escrow Holder in "good funds ". "Good funds" shall mean a wire transfer of funds, cashier's or certified check drawn on or issued by the offices of a financial institution located in the State of California, or cash. 3.3 Interest Bearing Account. Escrow Holder shall deposit the funds specified in Section 3.2 above in an interest bearing account. All interest earned on said funds shall be credited to City. 3.4 Return of Deposit. In the event that any of the conditions specified in Section 7.1 below are not satisfied or otherwise waived by City, the Deposit shall be promptly returned to City. 4. ADDITIONAL FUNDS AND DOCUMENTS REQUIRED FROM CITY AND SELLER. 4.1 Cam. City agrees that on or before 1:00 p.m. on the business day preceding the Closing Date, City will deposit with Escrow Holder all additional funds and/or documents (executed and acknowledged, if appropriate) which are necessary to comply with the terms of this Agreement, including without limitation, the following: (a) A Preliminary Change of Ownership Statement completed in the manner required in Orange County; 255/066751 -0092 4403119.1 00104/12 "2" 6 (b) Two duplicate originals of an Assignment of Lease(s) by Seller to City in a form to be provided by City within fifteen (15) days following the opening of escrow and reasonably approved by Seller ( "Assignment of Leases "); (c) Two duplicate originals of an Assignment of Contracts in a form to be provided by City within fifteen (15) days following the opening of escrow and reasonably approved by Seller ( "Assignment of Contracts "), which Assignment of Contracts will convey all assignable contracts, warranties and guaranties in effect, if any, with respect to the Property; and Such funds and other items and instruments as may be necessary in order for Escrow Holder to comply with this Agreement. 4.2 Seller. Seller agrees that on or before 1:00 p.m. on the business day preceding the Closing Date, Seller will deposit with Escrow Holder such funds and other items and instruments (executed and acknowledged, if appropriate) as may be necessary in order for the Escrow Holder to comply with this Agreement, including without limitation, the following: (a) A grant deed conveying the Property to City on Escrow Holder's standard form ( "Grant Deed "). (b) A Bill of Sale in a form to be provided by City within fifteen (15) days following the opening of escrow and reasonably approved by Seller ( "Bill of Sale "); (c) Two duplicate originals of the Assignment of Leases; (d) Two duplicate originals of the Assignment of Contracts; (e) A Non- Foreign Affidavit on Escrow Holder's Standard form or a form substantially similar thereto ( "Non- Foreign Affidavit "); (f) A dismissal of the Action with prejudice in a form to be provided by City within fifteen (15) days following the opening of escrow and reasonably approved by Seller (the "Dismissal "); and (g) Such funds and other items and instruments as may be necessary in order for Escrow Holder to comply with this Agreement. In the event City determines that an Assignment of Contracts, Assignment of Lease or Bill of Sale is unnecessary, City shall advise Seller and Escrow Holder and such documents shall be waived as conditions to the Closing hereunder. Escrow Holder will cause the Grant Deed to be recorded when (but in no event after the date specified in Section 5.1 below) it can issue the Title Policy in the form described in Section 6 below, and holds for the account of Seller the items described above to be delivered to Seller through Escrow, less costs, expenses and disbursements chargeable to Seller pursuant to the terms hereof.. 4.3 Assignment of Contracts. On or before five (5) business days following the opening of escrow, Seller shall deliver to City copies of all contracts affecting the Property, 255/066751 -0092 4403119.1 a10104112 -3- including any leases affecting the Property (the "Existing Leases "). City shall notify Seller on or before the Due Diligence Date of City's approval or disapproval of each contract. Seller shall terminate any contract disapproved by City. City's failure to notify Seller within the time specified shall be considered disapproval. As to those contracts City elects to assume, Seller shall assign same in the form of the Contract Assignment. As to those contracts City does not elect to assume, Seller shall terminate and otherwise remain responsible for same after close of Escrow. 4.4 Miscellaneous Documents. On or before five (5) business days following the opening of escrow, Seller shall deliver to City all documents relating to the Property which Seller may have in its possession including but not limited to copies of all copies of a Phase I Environmental Report, together with engineering reports, soils studies, environmental audits and reports, environmental impact report, and all other documents relating to the Real Property for City's review and approval. City shall notify Seller on or before the Due Diligence Date of City's approval or disapproval of each item. City's failure to notify Seller within the time specified shall be considered disapproval. If City does not acquire the Property, all said documents shall be promptly returned to Seller. In addition, Seller shall deliver to City (or cause Escrow Holder to deliver to City), natural hazard disclosure reports covering the Property in such form as required by law, which shall be countersigned and returned to Seller and Escrow Holder. 4.5 Entry for Investigation. Subject to the conditions hereafter stated and the rights of tenants in possession, Seller grants to City, its agents and employees a limited license to enter upon any portion of the Property for the purpose of conducting engineering surveys, soil tests, investigations or other studies reasonably necessary to evaluate the condition of the Property, which studies, surveys, investigations and tests shall be done at City's sole cost and expense. City shall (a) notify Seller prior to each entry of the date and purpose of intended entry and provide to Seller the names and affiliations of the persons entering the Property; (b) conduct all studies in a diligent, expeditious and safe manner and not allow any dangerous or hazardous conditions to occur on the Property during or after such investigation; (c) comply with all applicable laws and governmental regulations; (d) keep the Property free and clear of all materialmen's liens, [is pendens and'other liens arising out of the entry and work performed under this paragraph; (e) maintain or assure maintenance of workers' compensation insurance (or state approved self - insurance) on all persons entering the property in the amounts required by the State of California; (f) provide to Seller prior to initial entry a certificate of insurance evidencing that City has procured and paid premiums for an all -risk public liability insurance policy written on a per occurrence and not claims made basis in a combined single limit of not less than TWO MILLION DOLLARS ($2,000,000.00) which insurance names Seller as additional insured entitled to not less than thirty (30) days cancellation notice and is primary and non- contributing with insurance carried by Seller; and (g) return the Property to its original condition following City's entry. City agrees to indemnify, defend, protect and hold Seller and the Property free and harmless from any and all loss, liability, claims, damages and expenses (including but not limited to attorneys' fees and costs) arising directly or indirectly from the exercise of said license, or from City's failure to comply with the conditions to City's entry onto the Property provided herein. Such undertaking of indemnity shall survive Close of Escrow or the termination of this Agreement for any reason. The limited license herein granted shall be co- extensive with the term of this Agreement or any extension thereof. 2551066751.0092 ' 4403119.1 m0104112 4_ 8 4.6 Estoppel Certificates. In the event the Property is subject to any Existing Lease(s), at least ten (10) days prior to the Closing Date, Seller shall have delivered to Escrow Holder an original Estoppel Certificate, and to City, copies thereof, dated within forty-five (45) days of the Closing Date, from the tenant under each Existing Lease. Such Estoppel Certificate shall be in a form to be provided by City within fifteen (15) days following the opening of escrow and reasonably approved by Seller. All such certificates shall be consistent with any information provided by Seller on the Rent Roll. Seller shall use its best efforts to obtain such Estoppel Certificates from all tenants, provided, however, that City shall not be required to complete its purchase unless Seller obtains Estoppel Certificates consistent with the rent roll or information provided to City pursuant to Section 4.4 above from tenants leasing not less than ninety percent (90 %) of the square footage then subject to lease. The failure of Seller to obtain the Estoppel Certificates as set forth in this Section 4.6 shall not constitute a breach of this Agreement by Seller if such certificate is not procured despite Seller's best efforts, but shall entitle City to terminate this Agreement. 4.7 Distribution of Documents. Following Close of Escrow, Escrow Holder shall distribute the documents as follows: (a) To City: (i) One certified conformed copy of the Grant Deed, the original to be mailed to City following recordation thereof; (ii) One duplicate original each of the Bill of Sale, the Assignment of Leases, the Assignment of Contracts, the Dismissal and the Non - Foreign Affidavit; and (iii) One certified copy, conformed if recorded, of any other document delivered to Escrow Holder by City or Seller pursuant to the terns hereof. (b) To Seller: (i) One duplicate original each of the Bill of Sale, the Assignment of Leases, the Assignment of Contracts and the Non - Foreign Affidavit; and (ii) One certified copy, conformed if recorded, of any other document delivered to Escrow Holder by City or Seller pursuant to the terms hereof. 4.8 Independent Contract Consideration. Contemporaneously with the execution of this Agreement, Purchaser shall deliver to Seller a check in the amount of $1,000 (the "Independent Contract Consideration "), which amount the parties bargained for and agreed to as consideration for the Seller's grant to Purchaser of Purchaser's right to purchase the Property pursuant to the terms hereof and for Seller's execution, delivery and performance of this Agreement. The Independent Contract Consideration is in addition to and independent of any other consideration or payment provided in this Agreement, is nonrefundable under any 2551066751-0092 4403119,1 a10/04/12 "5" 9 circumstances, will be retained by Seller notwithstanding any other provisions of this Agreement and will be applied against the Purchase Price in the event the Closing occurs hereunder. 5. CLOSING DATE. 5.1 Initial Closing Date. Escrow shall close on or before November 15, 2012 ( "Closing Date "). The terms "the Close of Escrow ", and /or the "Closing" are used herein to mean the time Seller's Grant Deed is filed for record by the Escrow Holder in the Office of the County Recorder of Orange County, California. City and Seller each specifically agrees to strictly comply and perform its obligations herein in the time and manner specified and waives any and all rights to claim such compliance by mere substantial compliance with the terms of this Agreement. 5.2 City shall have the right to extend the Closing Date for one (1) thirty -day extension to December 15, 2012, provided City delivers to Escrow Holder the sum of $ , (which amount equals the interest, property taxes and insurance incurred by Seller with respect to the Property during such thirty day period, less any amounts payable by the tenants in possession during such period, if any) which amount shall not be applicable to the Purchase Price, shall be deemed consideration for such extension and shall be nonrefundable to City. 6. TITLE POLICY. 6.1 Approval of Title. Following execution of this Agreement but in no event later than five (5) days following opening of Escrow, Seller shall deliver to City a preliminary title report issued through First American Title Insurance Company (the "Title Company "), describing the state of title of the Property, (the "Preliminary Title Report") together with copies of all exceptions specified therein. City shall notify Seller in writing of any objections City may have to title exceptions or other matters ( "Disapproved Exceptions ") contained in the Preliminary Title Report within ten (10) business days after City's receipt of the Preliminary Title Report ( "City's Objection Notice "). City shall not unreasonably withhold its approval of the Preliminary Title Report. If City fails to deliver City's Objection Notice within said ten (10) business day period, City shall be conclusively deemed to have approved the Preliminary Title Report and all matters shown thereon. In the event City delivers City's Objection Notice within said period, Seller shall have a period of ten (10) business days after receipt of City's Objection Notice in which to notify City of Seller's election to either (i) agree to attempt to remove the Disapproved Exceptions prior to the Close of Escrow; or (ii) decline to remove any such Disapproved Exceptions ( "Seller's Notice "). Seller shall only elect to decline to remove Disapproved Exceptions which Seller in good faith believes Seller's reasonable efforts would not result in removal or as to which removal would result in cost or expense to Seller other than nominal administrative expense incurred in the process of removal. Seller's failure to deliver Seller's Notice within said ten (10) business day period shall be deemed Seller's election to decline to remove the Disapproved Exceptions. If Seller notifies City of its election to decline to remove the Disapproved Exceptions, if Seller is deemed to have elected to decline to remove the Disapproved Exceptions or if Seller is unable to remove the Disapproved Exceptions, City may elect either to terminate this Agreement and the Escrow or to accept title to the Property subject to the Disapproved Exception(s). City shall exercise such election by delivery of written notice 2551066751 -0092 4407119.1 n10/04112 -6' 10 to Seller and Escrow Holder within ten (10) business days following the earlier of (i) the date of written advise from Seller that such Disapproved Exception(s) cannot be removed; or (ii) the date Seller declines or is deemed to have declined to remove such Disapproved Exception(s). If City fails to deliver said written notice of termination of this Agreement and the Escrow within said ten (10) business day period, City's disapproval of the Disapproved Exception(s) shall be deemed waived and City shall deemed to have agreed to accept title to the Property subject to the Disapproved Exception(s). Upon the issuance of any amendment or supplement to the Preliminary Title Report which adds additional exceptions, the foregoing right of review and approval shall also apply to said amendment or supplement, provided, however, that City's initial period of review and approval or disapproval of any such additional exceptions shall be limited to ten (10) days following receipt of notice of such additional exceptions. 6.2 Title Policy to be Issued by City. When Escrow Holder holds for City the Grant Deed in favor of City executed and acknowledged by Seller covering the Property, Escrow Holder shall cause to be issued and delivered to City and Seller as of the Closing a CLTA standard coverage policy of title insurance ( "Title Policy "), or, upon City's request therefor, an ALTA standard coverage policy of title insurance, issued by Title Company, with liability in the amount of the Purchase Price, covering the Property and showing title vested in City free of encumbrances, except: (a) All nondelinquent general and special real property taxes and assessments for the current fiscal year; (b) Easements, encumbrances, covenants, conditions, restrictions, reservations, rights -of -way and other matters of record, as approved or deemed approved by City pursuant to Section 6.1 above; (c) The standard printed exceptions and exclusions contained in the CLTA or ALTA form policy; and (d) Any exceptions created or consented to by City, including without limitation, any exceptions arising by reason of City's possession of or entry on the Property. CONDITIONS PRECEDENT TO CLOSE OF ESCROW. 7.1 Conditions to City's Obligations. The obligations of City under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by City of each of the following conditions precedent: (a) Title Company will issue the Title Policy as required by Section 6 of this Agreement insuring title to the Property vested in City or other vestee designated by City for vesting purposes only. (b) Escrow Holder holds and will deliver to City the instruments and funds, if any, accruing to City pursuant to this Agreement. 255106675 1 -0092 4403119.1 010/04/12 -7- 11 (c) Seller delivers to City written evidence from local zoning authorities and governmental entities satisfactory to City that the Property is validly zoned to permit the use of the Property as intended by City and that the Property is in conformance with all governmental codes and regulations. (d) City's approval of contracts pertaining to the Property pursuant to Section 4.3 above. (e) City's approval of all items pertaining to the Property pursuant to Section 4.4 above. (f) City shall have the right to approve of all inspections, tests, surveys and other studies as may be conducted by City. City shall have the unqualified and unrestricted right to terminate its obligations under this Agreement on or before the Due Diligence Date. (g) and correct. (h) Agreement. All representations and warranties specified in Section 9.1 are true City's approval of any other conditions specified in this 7.2 Conditions to Seller's Obligations. The obligations of Seller under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Seller of each of the following conditions precedent: (a) Escrow Holder holds and will deliver to Seller the instruments and funds accruing to Seller pursuant to this Agreement. 8. ESCROW PROVISIONS. 8.1 Escrow Instructions. This Agreement, when signed by City and Seller, shall also constitute escrow instructions to Escrow Holder. If required by Escrow Holder, City and Seller agree to execute Escrow Holder's standard escrow instructions, provided that the same are consistent with and do not conflict with the provisions of this Agreement. In the event of any such conflict, the provisions of this Agreement shall prevail. 8.2 General Escrow Provisions. Escrow Holder shall deliver the Title Policy to the City and instruct the Orange County Recorder to mail the Grant Deed to City at the address set forth in Section 15.15 after recordation. All funds received in this Escrow shall be deposited in one or more general escrow accounts of the Escrow Holder with any bank doing business in Orange County, California, and may be disbursed to any other general escrow account or accounts. All disbursements shall be made by Escrow Holder's check. This Agreement and any modifications, amendments, or supplements thereto may be executed in counterparts and shall be valid and binding as if all of the parties' signatures were on one document. 2551066751-0092 4403119.1 n10 /04/12 -8- 12 8.3 Proration of Real Property Taxes. All nondelinquent general and special real property taxes shall be prorated to the Close of Escrow on the basis of a thirty (30) day month and a three hundred sixty day (360) year. In the event that property taxes are assessed on a parcel of real property which includes land other than the Property, such proration shall include only taxes attributable to the Property, calculated in terms of total gross square feet of land assessed pursuant to the tax statement versus total gross square footage of the Property. Any supplemental tax bills received after Close of Escrow shall be paid by Seller to the extent they relate to a period prior to Close of Escrow, and by City, to the extent they relate to a period after Close of Escrow. If a supplemental tax bill covers a period commencing before and continuing after Close of Escrow, the party named in the bill will pay the tax and the other party shall reimburse the first party its pro rata share within thirty (30) days after receipt of a copy of the tax bill and evidence of the second party's payment of same. The provisions of this Section 8.3 shall survive Close of Escrow. If either party fails to pay its pro rata share of taxes by the times herein provided, interest shall accrue on all unpaid amounts from when owing until paid at five percent (5 %) over the Federal Discount Rate quoted by the Federal Reserve Bank of San Francisco on the 25th day of the month preceding the date interest commences to accrue. Rents of the tenants under the Existing Leases, if any, shall be prorated to the Closing Date based on rents actually collected. Any such rents collected after the Closing Date by City which are attributable to the period prior to the Closing Date shall be paid to Seller upon collection. Rents collected after the Closing Date from tenants whose rental was delinquent at Closing and/or constituting reimbursements for operating expenses paid by Seller shall be deemed to first apply to costs of collecting such rents, second to rents which accrued after the Closing and third to rentals accruing prior to the Closing Date. City shall have no obligation to commence litigation or to collect rents or to terminate the tenant's right to occupancy based upon tenant's failure to pay rentals which were delinquent at Closing and/or such reimbursements; however, City shall use reasonable efforts to collect such delinquent rents and shall reasonably and in good faith cooperate with Seller's attempts to collect such rents at no cost or expense to City. 8.4 Payment of Costs. Seller shall pay one -half (1/2) of the Escrow fee, documentary transfer taxes, title insurance premiums for that portion of the Title Policy premium which would be incurred for a CLTA form policy, and the charge for drawing the Grant Deed. City shall pay the one -half (1/2) of the Escrow fee, charges for recording the Grant Deed, and that portion of the Title Policy premium which is attributable to the additional cost of obtaining any additional coverage requested by City, including the difference between CLTA and ALTA coverage. All other costs of Escrow not otherwise specifically allocated by this Agreement shall be apportioned between the parties in a manner consistent with the custom and usage of Escrow Holder. 8.5 Termination and Cancellation of Escrow. Time is of the essence of this Agreement. If Escrow fails to close as provided above, Escrow shall terminate automatically without further action by Escrow Holder or any party, and Escrow Holder is instructed to return all funds and documents then in Escrow to the respective depositor of the same with Escrow Holder. Cancellation of Escrow, as provided herein, shall be without prejudice to whatever legal rights City or Seller may have against each other arising from the Escrow or this Agreement. 8.6 Information Re -port. The "Recording Person" within the meaning of Treasury Regulation Section 1.604504(e)(5) with respect to the transactions contemplated by 255/066751-0092 4403119.1 a10/04112 -9- 13 this Agreement shall be Escrow Holder. It is agreed that Escrow Holder is an eligible person under Section 1.604504(e)(5)(ii) of said Regulations. Escrow Holder hereby agrees to be responsible for complying with the reporting and other requirements of Internal Revenue Code Section 6045(e) and the income tax regulations promulgated thereunder. Pursuant to said regulations; the address for the transferor and transferee are as set forth for Seller and City below, and the identifying information regarding the real estate transferred is the legal description for the Property set forth herein. Escrow Holder agrees to file the form required by said regulations between the end of the calendar year in which the Close of Escrow occurs and February 28 of the following calendar year. City and Seller agree (i) to cooperate with Escrow Holder and with each other in completing any report and /or other information required to be delivered to the Internal Revenue Service pursuant to Internal Revenue Code Section 6045(e) regarding the real estate sales transaction contemplated by this Agreement, including without limitation, Internal Revenue Service Form 1099 -5 as such may be hereinafter modified or amended by the Internal Revenue Service, or as may be required pursuant to any regulation now or hereinafter promulgated by the Treasury Department with respect thereto; (ii) that City and Seller, their respective employees and attorneys, and Escrow Holder and its employees may disclose to the Internal Revenue Service, any information regarding the Option Agreement, this Agreement or the transaction contemplated herein as such party reasonably deems to be required to be disclosed to the Internal Revenue Service by such party pursuant to Internal Revenue Code Section 6045(e); (iii) that neither City nor Seller shall seek to hold any such party liable for the disclosure to the Internal Revenue Service of any such information; and (iv) to retain this Agreement for at least four (4) years following the close of the calendar year in which the Close of Escrow occurs. 9. REPRESENTATIONS AND WARRANTIES. 9.1 Representations and Warranties. Seller hereby makes the following representations and warranties to City, each of which (i) is material and relied upon by City in making its determination to enter into this Agreement; (ii) is true in all respects as of the date hereof and shall be true in all respects on the date of Close of Escrow on the Property; and (iii) shall survive the Close of Escrow of the purchase and sale of the Property as well as any future transfer of the Property to City or any transferee, successor or assignee of City: (a) Seller has received no notice or knowledge that any governmental authority or any employee or agent thereof considers any construction of the proposed improvements on the Property or the present or proposed operation; use or ownership of the Property to violate or have violated any ordinance, rule, law, regulation or order of any government or agency, body or subdivision thereof, or that any investigation has been commenced or is contemplated respecting such possible violations. (b) There are no pending or threatened litigation, allegations, lawsuits or claims, whether for personal injury, property damage, landlord -tenant disputes, property taxes, contractual disputes or otherwise, which do or may affect the Property or the operation or value thereof, and there are no actions or proceedings pending or, to the best of Seller's knowledge, threatened against Seller before any court or administrative agency in any way connected with the Property and neither the entering into of this Agreement nor the consummation of the transactions contemplated hereby will constitute 2551066751 -0092 4407119.1 .10/04112 -10- 14 or result in a violation or breach by Seller of any judgment, order, writ, injunction or decree issued against or imposed upon it. There is no action, suit, proceeding or investigation pending or threatened against Seller which would become a cloud on City's title to and have a material adverse impact upon the Property or any portion thereof or which questions the validity or enforceability of the transaction contemplated by this Agreement or any action taken pursuant hereto in any court or before or by any federal, district, county, or municipal department, commission, board, bureau, agency or other governmental instrumentality. (c) There are no contracts, leases, claims or rights affecting the Property and no agreements entered into by or under Seller shall survive the Close of Escrow that would adversely affect City's rights with respect to the Property except as heretofore disclosed in writing by Seller to City. (d) Seller has the unimpeded power and authority to execute, deliver and perform Seller's obligations under this Agreement and the documents executed and delivered by Seller pursuant hereto. (e) Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended. All representations and warranties made hereunder are in addition to any representations and warranties implied by law and in no event shall this Section 10.1 be construed to limit, diminish or reduce any obligation of disclosure implied upon Seller by law. 9.2 Disclaimer of Representations and Warranties. City acknowledges that as of Close of Escrow it will have had an adequate opportunity to inspect the Property and to investigate its physical characteristics and conditions. Upon the Close of Escrow, City shall be deemed to have waived any and all objections to the physical characteristics and conditions of the Property which would be disclosed by a reasonable and diligent inspection. City acknowledges that, except as specifically provided herein, neither Seller nor any of its employees, agents, or representatives has made any representations, warranties or agreements to or with City on behalf of Seller as to any matters concerning the Property, the present use thereof, or the suitability of City's intended use of the Property. The foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, the acreage of the Property or square footage of buildings located thereon, the purpose to which the Property is suited, drainage, and access to public roads. City further acknowledges and agrees that the Property is to be purchased, conveyed, and accepted by City in its present condition, "AS -IS," and that no patent or latent physical condition of the Property, whether or not known or discovered, shall affect the rights of either party hereto. City has investigated and has knowledge of operative or imposed governmental laws and regulations (including, but not limited to, zoning, environmental, including specifically the regulations of the Environmental Protection Agency, and land use laws and regulations) to which the Property may be subject, and is acquiring the Property on the basis of its review and determination of the application and effect of such laws and regulations. City has neither received nor relied upon any representations concerning such laws and regulations 255/066751 -0092 4,103119.1 410/04/12 made by Seller, Seller's employees,.agents, or any other person acting on behalf of Seller. Any agreements, warranties or representations not expressly contained in this Agreement shall in no way bind Seller. CITY AND SELLER ACKNOWLEDGE AND AGREE THAT THE FOREGOING PROVISIONS OF THIS SECTION 9 HAVE BEEN FREELY BARGAINED FOR BY THE PARTIES AND CONSTITUTES A MATERIAL CONSIDERATION TO SELLER FOR THE SALE OF THE PROPERTY AND BUT FOR THIS PROVISION SELLER WOULD NOT SELL THE PROPERTY TO CITY. SELLER'S INITIALS CITY'S INITIALS 9.3 Changed Circumstances. If Seller becomes aware of any fact or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by Seller under this Agreement, whether as of the date given or any time thereafter through the Close of Escrow and whether or not such representation or warranty was based upon Seller's knowledge and/or belief as of a certain date, Seller will give immediate written notice of such changed fact or circumstance to City, but such notice shall not release Seller of its liabilities or obligations with respect thereto. Seller shall issue a certificate as of the Close of Escrow stating that all the representations and warranties contained in Section 10.1 are true and correct as of said date, or setting forth in detail which of such matters are not true and correct. 9.4 Indemnity by Seller. Seller shall hold harmless, indemnify and defend City, and the Property from and against (i) except for obligations, liabilities, claims, liens and encumbrances disclosed herein or which City specifically agrees by the terms of this Agreement to assume or take subject, any and all obligations, liabilities, claims, liens or encumbrances, whether direct, contingent or consequential and no matter how arising, in any way related to the Property and arising or accruing on or before the date first above written, or in any way related to or arising from any act, conduct, omission, contract or commitment of Seller at any time or times on or before the date of the Close of Escrow for the purchase and sale of the Property, including without limitation, any damage to the Property or injury to or death of any person, employees or agents of Seller; (ii) any loss or damage to City resulting from any material inaccuracy or material breach of any representation or warranty of Seller or resulting from any breach or default by Seller under this Agreement, or any other agreements relating to this transaction; and (iii) all costs and expenses, including attorneys' fees, relating to any actions, suits orjudgments incident to any of the foregoing. Should Seller fail to discharge or undertake to defend City or the Property against such liability upon learning of the same, then City may settle such liability and Seller's liability to City shall be conclusively established by such settlement, the amount of such liability to include both the settlement consideration and the reasonable expenses, including attorney's fees, incurred by City in effecting such settlement. 9.5 Repair Obligations Prior to Close of Escrow. Seller agrees to repair any items that are damaged or become in need or repair during the course of Escrow, and to maintain the Property in good condition and repair. 255/066751 -0092 440)119.1 00/04/12 -12- 16 10. SETTLEMENT OF ACTION. 10.1 Release of Claims by Seller. In exchange for the promises contained in this Agreement, and except as to the obligations provided for in this Agreement, Seller hereby waives, releases and forever discharges, and agrees to the extent permitted by law that he will not in any manner institute, prosecute or pursue, any and all complaints, charges, claims for relief, demands, damages, suits, actions or causes of action, of any kind, whether in law or in equity, which he asserts or could assert, at common law or under any statute, rule, regulation, order or law, whether federal, state or local, or on any grounds whatsoever, against the City and/or any of its current or former officers, councilmen, agents, representatives, employees, successors and assigns with respect to any event, matter, claim, damage or injury, of any kind related to the Action or the claims made thereunder as of the date of this Agreement and/or the Closing. 10.2 Release of Claims by City. In exchange for the promises contained in this Agreement, and except as to the obligations contained in this Agreement, City hereby waives, releases and forever discharges, and agrees to the extent permitted by law that it will not in any manner institute, prosecute or pursue, any and all complaints, charges, claims for relief, demands, damages, suits, actions or causes of action, of any kind, whether in law or in equity, which it asserts or could assert, at common law or under any statute, rule, regulation, order or law; whether federal, state or local, or on any grounds whatsoever, against the other Parties and /or any of its or their current or former owners, trusts, trustees, officers, directors, shareholders, affiliates, agents, representatives, employees, attorneys, successors, predecessors, insurers, and assigns with respect to any event, matter, claim, damage or injury of any kind related to the Action or the claims made thereunder as of the date of this Agreement and/or the Closing. 10.3 Waiver of Unkriown Claims. With respect to the subject matter of this Agreement, it is agreed and understood that the release's being provided by each of the Parties above apply to all injuries and damages, whether now known or unknown, and whether now existing or which may result in the future due to the actions or omissions of the Parties on or before the Effective Date. With respect to the subject matter of this Agreement, the Parties acknowledge that they have each been fully advised of and understand the provisions of Section 1542 of the California Civil Code which reads: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing this release, which if known by him or her must have materially affected his or her settlement with the debtor. In further consideration of the promises and payments pursuant to this Agreement, each Party agrees to, and does hereby, waive and relinquish all rights afforded to him, her or it under California Civil Code Section 1542, or any similar law of any State or territory of the United States or other jurisdiction with respect to the matters of this Agreement. Notwithstanding the above, nothing in this Agreement shall be deemed to waive or release any Party as to any of its obligations or rights under this Agreement. The foregoing provisions shall survive the Closing hereunder and the recordation of the deed. 255/06675 w092 4403119.1 e10iO4n2 -13- 11. DAMAGE, DESTRUCTION AND CONDEMNATION. 11.1 Risk of Physical Loss. Risk of physical loss to the Property shall be home by Seller prior to the Close of Escrow and by City thereafter. In the event that the Property shall be damaged by fire, flood, earthquake or other casualty and the estimated cost to repair same exceeds FIVE HUNDRED THOUSAND DOLLARS ($500,000), City may, at its option, elect not to acquire the Property. If City does not so elect or the estimated cost to repair the damage is less than FIVE HUNDRED THOUSAND DOLLARS ($500,000), City shall complete the acquisition of the Property, in which case Seller shall assign to City the interest of Seller in all insurance proceeds relating to such damage. In the event that such damage shall occur and City elects not to purchase the Property as above provided, then this Agreement shall be terminated and City shall be entitled to the return of all funds and documents deposited hereunder. 11.2 Condemnation. In the event that, prior to the Close of Escrow, any governmental entity shall commence any actions of eminent domain or similar type proceedings to take any portion of the Property, City shall have the option either to (i) elect not to acquire the Property, or (ii) complete the acquisition of the Property, in which case City shall be entitled to all the proceeds of such taking. 12. RIGIIT TO EXCHANGE: THREAT OF CONDEMNATION. 12.1 Right to Exchange. Seller or City may desire to complete this transaction as a part of a tax - deferred exchange within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended. Each party agrees in each such event to cooperate with the other in order to effectuate such an exchange or exchanges. Each party's agreement to cooperate to effect any such exchange or exchanges shall not require such party to incur any cost, expense or liability or acquire title to any property as a consequence of such cooperation. In no event shall any such exchange transaction delay the Close of Escrow as contemplated in this Agreement. In so cooperating in any exchange transaction arranged hereunder, the cooperating party shall in no event be responsible for, or in any way warrant, the tax consequences of the exchange transaction. 12.2 Threat of Condemnation. City's purchase of the Property is in contemplation of the use of the Property for public purposes. This negotiated acquisition arose during City's investigations of the acquisition of the Property through eminent domain. City has the authority to acquire property by eminent domain for public purposes. Seller has agreed to enter into this Agreement with City under the threat of City's exercise of its power of eminent domain. In the event this negotiated sale did not occur, subject to and pending its completion of the necessary statutory procedures set forth in Government Code Section 7267 et seq., and Code of Civil Procedure Section 1230.010, et seq., City's staff was prepared to have taken the steps thereunder to seek authorization from the City Council, and staff was prepared to recommend to the City Council initiation of the steps, to acquire the Property for public purposes pursuant to Government Code Section 7267 et seq., and Code of Civil Procedure Section 1230.010, et seq., including providing notice to Seller of its opportunity to be heard and to agendize, consider, and take action on a resolution of necessity under Code of Civil Procedure Section 1245.230 et seq. Nothing herein is intended to be, or serve as, any tax advice from City to Seller, and Seller is not in any way construing or relying on any communications or advice by City, or City's representations herein, in any way as any type of tax advice or opinion. 255/066751 -0092 4403119.1 a10104/12 -14" 18 13. POSSESSION. Possession of the Property shall be delivered to City as of Close of Escrow. In the event any personal property remains on the Property following the Close of Escrow, it shall automatically become the property of City. 14. LIQUIDATED DAMAGES. IF CITY SHOULD DEFAULT FOR ANY REASON WHATSOEVER UNDER THIS AGREEMENT (EXCEPTING ONLY MATERIAL DEFAULT BY SELLER HEREUNDER), THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CITY AND SELLER AGREE THAT SELLER WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT BY CITY, WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. CITY AND SELLER, IN A REASONABLE EFFORT TO ASCERTAIN WHAT SELLER'S DAMAGES WOULD BE IN THE EVENT OF SUCH DEFAULT BY CITY HAVE AGREED BY PLACING THEIR INITIALS BELOW THAT THE SUM OF FIFTY THOUSAND DOLLARS ($50,000) SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CIVIL CODE. IN THE EVENT OF AND FOR SUCH DEFAULT BY CITY, CITY SHALL DELIVER SAID SUM IN GOOD FUNDS TO SELLER WITHIN FIVE (5) DAYS AFTER SELLER'S WRITTEN DEMAND THEREFOR AS SELLER'S SOLE MONETARY REMEDY THEREFOR, UNLESS CITY WRONGFULLY REFUSES TO CAUSE ESCROW HOLDER TO CANCEL THE ESCROW OR TO RELEASE THE DEPOSIT TO SELLER, IN WHICH INSTANCE SELLER SHALL ALSO BE ENTITLED TO ALL COSTS AND EXPENSES, INCLUDING ACTUAL ATTORNEYS' FEES INCURRED BY SELLER WITH RESPECT TO THOSE CONSEQUENTIAL DAMAGES, IF ANY, WHICH MAY BE INCURRED BY SELLER, AFTER THE CLOSING DATE BY REASON OF THE CLOUD ON TITLE TO THE PROPERTY WHICH MAY RESULT FROM CITY'S WRONGFUL FAILURE TO CANCEL THE ESCROW AND THIS AGREEMENT. SELLER'S INITIALS CITY'S INITIALS 15. MISCELLANEOUS. 15.1 Assignment. City shall not have the right to assign this Agreement or any interest or right hereunder or under the Escrow or to nominate another party to take title to the Property without the prior written consent of Seller, which consent shall not be unreasonably withheld. In no event shall City be released of liability in the event of an assignment or nomination. 15.2 Affixation of Revenue Stamps. Escrow Holder is hereby specifically instructed to attach documentary transfer and/or revenue stamps to the Grant Deed only after recordation of the Grant Deed. 15.3 Cooperation. City and Seller agree to cooperate with one another, at no cost or expense to the cooperating party, in satisfying the conditions to Close of Escrow. City shall be responsible for proceeding with diligence and in good faith to satisfy the conditions, if any, to City's performance set forth in Section 7.1 and Seller shall be responsible for proceeding 2551066751-0092 4403119.1 n10/04112 _15_ 19 with diligence and in good faith to satisfy the conditions, if any, to Seller's performance set forth in Section 7.2. 15.4 4ualificatim Authority. Each party represents and warrants that it is duly formed, is authorized to do business in the state in which the Property is located and that it has been duly authorized to enter into and perform this Agreement. 15.5 Attorneys' Fees. In any action between the parties hereto seeking enforcement of any of the terms and provisions of this Agreement or the Escrow, or in connection with the Property, the prevailing party in such action shall be entitled to have and to recover from the other party its reasonable attorneys' fees and other reasonable expenses in connection with such action or proceeding in addition to its recoverable court costs. 15.6 Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 15.7 No Waiver. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance by the other party hereto under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof. 15.8 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. 15.9 Severability. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 15.10 Merger of Prior Agreements and Understandings. This Agreement and other documents incorporated herein by reference contain the entire understanding between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements; oral or written, are merged herein and shall be of no further force or effect. 15.11 Covenants to Survive Escrow. The covenants and agreements contained herein shall survive the Close of Escrow and, subject to the limitations on assignment contained 255/066751.0092 4407119.1 a10/04/12 -16- 20 in Section 15.1 above, shall be binding upon and inure to the benefit of the parties hereto and their representatives, heirs, successors and assigns. 15.12 No Withholding Because Non - Foreign Seller. Seller represents and warrants to City that Seller is not, and as of the Close of Escrow will not be, a foreign person within the meaning of Intemal Revenue Code Section 1445 and that it will deliver to City on or before the Close of Escrow the Non - Foreign Affidavit as described hereinabove, pursuant to Intemal Revenue Code Section 1445(b)(2) and the Regulations promulgated thereunder. 15.13 Time is of the Essence. Time is hereby expressly made of the essence of this Agreement. 15.14 Execution in Counterpart. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. 15.15 Notices. Any notice which either party may desire to give to the other party or to the Escrow Holder must be in writing and shall be effective when personally delivered or three (3) business days after deposit in the United States mail, registered, certified, postage fully prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto: To Seller: Kenneth M. Kaplan Copy to: To City: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attn: Michael Torres Copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 -1998 Attn: Kim D. Thompson, Esq. IN WITNESS WHEREOF, the parties hereto have executed this Agreement of Purchase and Sale of Real Property and Escrow Instructions as of the date set forth above. "SELLER" 2551066751 -0092 4403119.1 010/04112 -17- 21 Kenneth M. Kaplan "CITY" CITY OF NEWPORT BEACH a Municipal corporation and Charter City go ATTEST: Leilani I. Brown, City Clerk APPROVED AS TO FORM: Aaron C. Harp, City Attorney Nancy Gardner, Mayor 255/066751.0092 4407119.1 00/04/12 -18- 22 City of Newport Beach NO. BA- 13BA -014 BUDGET AMENDMENT 2012 -13 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues X from unappropriated fund balance EXPLANATION: AMOUNT: ba,3oo,aoo.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To increase revenue estimates and expenditure appropriations for the acquisition of the property at 1499 Monrovia Avenue in Newport Beach. Funds will be transferred out of the Facilties Replaement Fund and into the West Newport Capital Project Fund. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Number Amount Fund Account Description Debit Credit 405 3605 Facilities Replacement Fund - Fund Balance $4,300,000.00 416 3605 West Npt Capital Project Fund - Fund Balance ' $4,300,000.00 REVENUE ESTIMATES (3601) Fund /Division Account Description 9416 6000 West Npt Capital Project Fund - Transfer In $4,300,000.00 EXPENDITURE APPROPRIATIONS (3603) Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Description 9405 Facilities Replacement Fund 9900 Transfer Out Automatic Signed: 4L, I / [C Financial Approval: Finance Director Signed Administre t Manager pproval: City Man Signed. City Council Approval: City Clerk $4,300,000.00 Date Date Date 23 Escrow No. "RECEIVED AFTER GENDA �RIS�TED." �Q AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS Date of Opening of Escrow: October _, 2012 To: First American Title Insurance Company ("Escrow Holder ") One First American Way Santa Ana, California 92707 Attention: Ryan Hahn, Escrow Officer Telephone: 714.250.33 94 THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND ESCROW INSTRUCTIONS (this `'Agreement ") is made this _ day of October, 2012, by and between Kenneth M. Kaplan (`'Seller ") and City of Newport Beach, a Municipal corporation and Charter City ("City"). RECITALS: A. Seller is the owner of that certain real property commonly known as 1499 Monrovia Avenue, located in the City of Newport Beach, County of Orange, State of California, more particularly described on Exhibit "A" attached hereto and by this reference incorporated herein (or if not attached, to be attached by Escrow Holder upon issuance of the Title Report as such terns are defined below), together with all improvements now or hereafter constructed thereon, all easements, licenses and interests appurtenant thereto and all intangible property owned or held by Seller in connection with the Land, including without limitation, development rights, governmental approvals and land entitlements (collectively referred to herein as the "Property"). B. Seller previously filed an action against City in the Superior Court of the State of California for the County of Orange (bearing Case No. 30- 2011 - 00531667- CU- EI -CJC) alleging six causes of action including inverse condemnation (the "Action'), which was previously dismissed by Seller in connection with a tolling agreement entered into between the parties (the "Tolling Agreement "). C. City has the authority to acquire property for public uses utilizing City's power of eminent domain. In lieu of City's exercise of said power and under the threat thereof, Seller is willing to sell the Property to City and City is willing to purchase the Property from Seller, upon the teens and conditions set forth in this Agreement. D. In settlement of the matters surrounding the Action, but without admitting liability, Seller wishes to sell the Property to City and City wishes to buy the Property from Seller pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1551066751 -0092 4403119. fl10109117 TERMS AND CONDITIONS 1. PURCHASE AND SALE OF PROPERTY. City hereby agrees to purchase from Seller, and Seller agrees to sell to City the Property, upon the terms and conditions hereinafter set forth. 2. OPENING OF ESCROW. Within one (1) business day after the execution of this Agreement by Seller, the parties shall open an escrow (`Escrow") with the Escrow Holder by causing an executed copy of this Agreement to be deposited with Escrow Holder. Escrow shall be deemed open on the date that Seller delivers this executed Agreement to Escrow Holder. 3. PAYMENT OF PURCHASE PRICE. 3.1 Amount of Purchase Price. The purchase price for the Property will be FOUR MILLION THREE HUNDRED THOUSAND DOLLARS ($4,300,000.00) (`Purchase Price "). 3.2 Payment of Purchase Price. (a) Not later than five (5) days following the Opening of Escrow, City shall deposit in Escrow in good funds, the sum of FIFTY THOUSAND DOLLARS ($50,000.00) (the "Deposit'), which Deposit shall be applicable to the Purchase Price. In the event this Agreement has not been previously terminated, the Deposit shall be non- refundable on November 10, 2012, as may be extended below (the "Due Diligence Date "), and shall be applicable against the Purchase Price upon the Closing. In the event this Agreement is terminated by City on or before the Due Diligence Date or City disapproves of any of the items requiring approval of City hereunder on or before the Due Diligence Date, the Deposit shall be promptly returned to City. City shall have the unqualified and unrestricted right to terminate its obligations under this Agreement on or before the Due Diligence Date. (b) On or before the Closing Date, City shall deposit the balance of the Purchase Price, subject to any other credits or debits hereunder, with Escrow Holder in "good funds". "Good funds' shall mean a wire transfer of funds, cashier's or certified check drawn on or issued by the offices of a financial institution located in the State of California, or cash. 3.3 Interest Bearing Account. Escrow Holder shall deposit the funds specified in Section 3.2 above in an interest beating account. All interest earned on said funds shall be credited to City. 3.4 Return of Deposit. In the event that any of the conditions specified in Section 7.1 below are not satisfied or otherwise waived by City, the Deposit shall be promptly returned to City. 255066751.0092 4403119.4110/0912 -2- 4. ADDITIONAL FUNDS AND DOCUMENTS REQUIRED FROM CITY AND SELLER. 4.1 City. City agrees that on or before 1:00 p.m. on the business day preceding the Closing Date, City will deposit with Escrow Holder all additional funds and /or documents (executed and acknowledged, if appropriate) which are necessary to comply with the terms of this Agreement, including without limitation, the following: (a) A Preliminary Change of Ownership Statement completed in the manner required in Orange County; (b) Two duplicate originals of an Assignment of Lease by Seller to City in a form to be provided by City within fifteen (15) days following the opening of escrow and reasonably approved by Seller ( "Assigmnent of Lease"); (c) Two duplicate originals of an Assignment of Contracts in a form to be provided by City within fifteen (15) days following the opening of escrow and reasonably approved by Seller ( "Assignment of Contracts"), which Assigmment of Contracts will convey all assignable contracts; warranties and guaranties in effect, if any, with respect to the Property; and Such funds and other items and instruments as may be necessary in order for Escrow Holder to comply with this Agreement. 4.2 Seller. Seller agrees that on or before 1:00 p.m. on the business day preceding the Closing Date, Seller will deposit with Escrow Holder such funds and other items and instruments (executed and acknowledged, if appropriate) as may be necessary in order for the Escrow Holder to comply with this Agreement, including without limitation, the following: (a) A grant deed conveying the Property to City on Escrow Holder's standard form ('Grant Deed "). (b) A Bill of Sale in a form to be provided by City within fifteen (15) days following the opening of escrow and reasonably approved by Seller ('Bill of Sale "); (c) Two duplicate originals of the Assignment of Lease; (d) Two duplicate originals of the Assignment of Contracts; (e) A Non - Foreign Affidavit on Escrow Holder's Standard form or a form substantially similar thereto (`Non- Foreign Affidavit'); and (f) Such funds and other items and instruments as may be necessary in order for Escrow Holder to comply with this Agreement. In the event City determines that an Assignment of Contracts, Assignment of Lease or Bill of Sale is unnecessary, City shall advise Seller and Escrow Holder and such documents shall be waived as conditions to the Closing hereunder. Escrow Holder will cause the Grant Deed to 2551066751 -0093 4403119.4 310,09/12 -3- be recorded when (but in no event after the date specified in Section 5.1 below) it can issue the Title Policy in the form described in Section 6 below, and holds for the account of Seller the items described above to be delivered to Seller through Escrow, less costs, expenses and disbursements chargeable to Seller pursuant to the terms hereof. 4.3 Assignment of Contracts. On or before five (5) business days following the opening of escrow, Seller shall deliver to City copies of all contracts affecting the Property, including any lease affecting the Property (the "Existing Lease'), which the parties acknowledge is scheduled to expire on October 31,2012. City shall notify Seller on or before the Due Diligence Date of City's approval or disapproval of each contract. Seller shall terminate any contract disapproved by City. City's failure to notify Seller within the time specified shall be considered disapproval. As to those contracts City elects to assume, Seller shall assign same in the form of the Contract Assignment. As to those contracts City does not elect to assume, Seller shall terminate and otherwise remain responsible for same after close of Escrow. 4.4 Miscellaneous Documents. On or before five (5) business days following the opening of escrow, Seller shall deliver to City all documents relating to the Property which Seller may have in its possession including but not limited to copies of all copies of a Phase I Environmental Report; together with engineering reports, soils studies, environmental audits and reports, environmental impact report, and all other documents relating to the Real Property for City's review and approval. City shall notify Seller on or before the Due Diligence Date of City's approval or disapproval of each item. Citys failure to notify Seller within the time specified shall be considered disapproval. If City does not acquire the Property, all said documents shall be promptly returned to Seller. In addition, Seller shall deliver to City (or cause Escrow Holder to deliver to City), natural hazard disclosure reports covering the Property in such form as required by law, which shall be countersigned and returned to Seller and Escrow Holder. 4.5 Entry for Investigation. Subject to the conditions hereafter stated and the rights of tenants in possession, Seller grants to City, its agents and employees a limited license to enter upon any portion of the Property for the purpose of conducting engineering surveys, soil tests, investigations or other studies reasonably necessary to evaluate the condition of the Property, which studies, surveys, investigations and tests shall be done at City's sole cost and expense. City shall (a) notify Seller prior to each entry of the date and purpose of intended entry and provide to Seller the names and affiliations of the persons entering the Property; (b) conduct all studies in a diligent, expeditious and safe manner and not allow any dangerous or hazardous conditions to occur on the Property during or after such investigation; (c) comply with all applicable laws and governmental regulations; (d) keep the Property free and clear of all materialmen's liens, lis pendens and other liens arising out of the entry and work performed under this paragraph; (e) maintain or assure maintenance of workers' compensation insurance (or state approved self- insurance) on all persons entering the property in the amounts required by the State of California; (f) provide to Seller prior to initial entry a certificate of insurance evidencing that City has procured and paid premiums for an all -risk public liability insurance policy written on a per occurrence and not claims made basis in a combined single limit of not less than TWO MILLION DOLLARS ($2,000,000.00) which insurance names Seller as additional insured entitled to not less than thirty (30) days cancellation notice and is primary and non - contributing with insurance carried by Seller; and (g) return the Property to its original condition following City's entry. City agrees to indemnify, defend, protect and hold Seller and the Property free and 15510667560092 44031 19.4 a 10109,12 -4- harmless fi-om any and all loss, liability, claims, damages and expenses (including but not limited to attorneys' fees and costs) arising directly or indirectly from the exercise of said license, or from City's failure to comply with the conditions to City's entry onto the Property provided herein. Such undertaking of indemnity shall survive Close of Escrow or the termination of this Agreement for any reason. The limited license herein granted shall be co- extensive with the tern of this Agreement or any extension thereof. 4.6 Estoppel Certificate. In the event the Property is subject to the Existing Lease as of the Closing (i.e. in the event the existing tenant holds over), at least ten (10) days prior to the Closing Date, Seller shall have delivered to Escrow Holder an original Estoppel Certificate, and to City, copies thereof, dated within forty -five (45) days of the Closing Date, from the tenant under the Existing Lease. Such Estoppel Certificate shall be in a form to be provided by City within two (2) business days following delivery of notice by Seller to City that the tenant under the Existing Lease is holding over and shall be reasonably approved by Seller. The certificate shall confirm that the Existing Lease expired on or before October 31, 2012. Seller shall use its best efforts to obtain such Estoppel Certificate fi-om the tenant under the Existing Lease and Seller shall provide a Seller's estoppel in the event Seller is unable to obtain such Estoppel Certificate from the tenant under the Existing Lease. The failure of Seller to obtain the Estoppel Certificates as set forth in this Section 4.6 shall not constitute a breach of this Agreement by Seller if such certificate is not procured despite Seller's best efforts, but shall entitle City to tenninate this Agreement. 4.7 Distribution of Documents, Following Close of Escrow, Escrow Holder shall distribute the documents as follows: (a) To City: (i) One certified conformed copy of the Grant Deed, the original to be mailed to City following recordation thereof; (ii) One duplicate original each of the Bill of Sale, the Assignment of Lease, the Assignment of Contracts and the Non - Foreign Affidavit; and (iii) One certified copy, conformed if recorded, of any other document delivered to Escrow Holder by City or Seller pursuant to the terms hereof. (b) To Seller: W One duplicate original each of the Bill of Sale, the Assignment of Lease, the Assignment of Contracts and the Non- Foreign Affidavit; and (ii) One certified copy, conformed if recorded, of any other document delivered to Escrow Holder by City or Seller pursuant to the terms hereof. 255)066751 -0092 4401119.411 WOW 12 -5- 4.8 Independent Contract Consideration. Contemporaneously with the execution of this Agreement, Purchaser shall deliver to Seller a check in the amount of $1,000 (the "Independent Contract Consideration"), which amount the parties bargained for and agreed to as consideration for the Seller's grant to Purchaser of Purchaser's right to purchase the Property pursuant to the terms hereof and for Seller's execution, delivery and performance of this Agreement. The Independent Contract Consideration is in addition to and independent of any other consideration or payment provided in this Agreement, is nonrefundable under any circumstances, will be retained by Seller notwithstanding any other provisions of this Agreement and will be applied against the Purchase Price in the event the Closing occurs hereunder. 5. CLOSING DATE. 5.1 Initial Closing Date. Escrow shall close on or before November 15, 2012 ( "Closing Date"). The terms "the Close of Escrow"; and /or the "Closing' are used herein to mean the time Seller's Grant Deed is filed for record by the Escrow Holder in the Office of the County Recorder of Orange County, California. City and Seller each specifically agrees to strictly comply and perform its obligations herein in the time and manner specified and waives any and all rights to claim such compliance by mere substantial compliance with the terms of this Agreement. 5.2 City shall have the right to extend the Closing Date for one (1) thirty -day extension to December 15, 2012, provided City delivers to Escrow Holder the sum of $23,000.00, (which amount equals the interest, property taxes and insurance incurred by Seller with respect to the Property dining such thirty day period, less any amounts payable by the tenants in possession during such period, if any) which amount shall not be applicable to the Purchase Price, shall be deemed consideration for such extension and shall be nonrefundable to City. 6. TITLE POLICY. 6.1 Approval of Title. Following execution of this Agreement but in no event later than five (5) days following opening of Escrow, Seller shall deliver to City a preliminary title report issued through First American Title insurance Company (the "Title Company"), describing the state of title of the Property, (the "Preliminary Title Report") together with copies of all exceptions specified therein. City shall notify Seller in writing of any objections City may have to title exceptions or other matters ('Disapproved Exceptions") contained in the Preliminary Title Report within ten (10) business days after City's receipt of the Preliminary Title Report ( "City's Objection Notice "). City shall not unreasonably withhold its approval of the Preliminary Title Report. If City fails to deliver City's Objection Notice within said ten (10) business day period, City shall be conclusively deemed to have approved the Preliminary Title Report and all matters shown thereon. In the event City delivers City's Objection Notice within said period, Seller shall have a period of ten (10) business days after receipt of City's Objection Notice in which to notify City of Seller's election to either (i) agree to attempt to remove the Disapproved Exceptions prior to the Close of Escrow; or (ii) decline to remove any such Disapproved Exceptions ( "Seller's Notice "). Seller shall only elect to decline to remove Disapproved Exceptions which Seller in good faith believes Seller's reasonable efforts would not result in removal or as to which removal would result in cost or expense to Seller other than 2551066751 -0092 4403119.4 a 1 0 OW 12 —6— nominal administrative expense incurred in the process of removal. Seller's failure to deliver Seller's Notice within said ten (10) business day period shall be deemed Seller's election to decline to remove the Disapproved Exceptions. If Seller notifies City of its election to decline to remove the Disapproved Exceptions, if Seller is deemed to have elected to decline to remove the Disapproved Exceptions or if Seller is unable to remove the Disapproved Exceptions, City may elect either to terminate this Agreement and the Escrow or to accept title to the Property subject to the Disapproved Exception(s). City shall exercise such election by delivery of written notice to Seller and Escrow Holder within ten (10) business days following the earlier of (i) the date of written advise from Seller that such Disapproved Exception(s) cannot be removed; or (ii) the date Seller declines or is deemed to have declined to remove such Disapproved Exception(s). If City fails to deliver said written notice of termination of this Agreement and the Escrow within said ten (10) business day period, City's disapproval of the Disapproved Exception(s) shall be deemed waived and City shall deemed to have agreed to accept title to the Property subject to the Disapproved Exception(s). Upon the issuance of any amendment or supplement to the Preliminary Title Report which adds additional exceptions, the foregoing right of review and approval shall also apply to said amendment or supplement, provided, however, that City's initial period of review and approval or disapproval of any such additional exceptions shall be limited to ten (10) days following receipt of notice of such additional exceptions. 6.2 Title Policy to be Issued by City. When Escrow Holder holds for City the Grant Deed in favor of City executed and acknowledged by Seller covering the Properly, Escrow Holder shall cause to be issued and delivered to City and Seller as of the Closing a CLTA standard coverage policy of title insurance ("Title Policy'), or, upon City's request therefor, an ALTA standard coverage policy of title insurance, issued by Title Company, with liability in the amount of the Purchase Price, covering the Property and showing title vested in City free of encumbrances, except: (a) All nondelinquent general and special real properly taxes and assessments for the current fiscal year; (b) Easements, encumbrances, covenants, conditions, restrictions, reservations, rights -of -way and other matters of record, as approved or deemed approved by City pursuant to Section 6.1 above; (c) The standard printed exceptions and exclusions contained in the CLTA or ALTA form policy; and (d) Any exceptions created or consented to by City, including without limitation, any exceptions arising by reason of City's possession of or entry on the Property. 7. CONDITIONS PRECEDENT TO CLOSE OF ESCROW. 7.1 Conditions to City's Obligations. The obligations of City under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by City of each of the following conditions precedent: 255 066751 -0092 4403119.4 a I Oi09112 —7— (a) Title Company will issue the Title Policy as required by Section 6 of this Agreement insuring title to the Property vested in City or other vestee designated by City for vesting purposes only. (b) Escrow Holder holds and will deliver to City the instruments and funds, if any, accruing to City pursuant to this Agreement. (c) Seller has delivered all documents required to be delivered under Section 4.2 above. (d) All representations and warranties specified in Section 9.1 are true and correct. (e) City's approval of any other conditions specified in this Agreement. 7.2 Conditions to Seller's Obligations. The obligations of Seller under this Agreement shall be subject to the satisfaction or written waiver, in whole or in part, by Seller of each of the following conditions precedent: (a) Escrow Holder holds and will deliver to Seller the instruments and funds accruing to Seller pursuant to this Agreement. 8. ESCROW PROVISIONS. 8.1 Escrow Instructions. This Agreement, when signed by City and Seller, shall also constitute escrow instructions to Escrow Holder. If required by Escrow Holder, City and Seller agree to execute Escrow Holder's standard escrow instructions, provided that the same are consistent with and do not conflict with the provisions of this Agreement. In the event of any such conflict, the provisions of this Agreement shall prevail. 8.2 General Escrow Provisions. Escrow Holder shall deliver the Title Policy to the City and instruct the Orange County Recorder to mail the Grant Deed to City at the address set forth in Section 15.15 after recordation. All funds received in this Escrow shall be deposited in one or more general escrow accounts of the Escrow Holder with any bank doing business in Orange County, California, and may be disbursed to any other general escrow account or accounts. All disbursements shall be made by Escrow Holder's check. This Agreement and any modifications, amendments, or supplements thereto may be executed in counterparts and shall be valid and binding as if all of the parties' signatures were on one document. 8.3 Proration of Real Property Taxes. All nondelinquent general and special real property taxes shall be prorated to the Close of Escrow on the basis of a thirty (30) day month and a three hundred sixty day (360) year. In the event that property taxes are assessed on a parcel of real property which includes land other than the Property, such proration shall include only taxes attributable to the Property, calculated in terns of total gross square feet of land assessed pursuant to the tax statement versus total gross square footage of the Property. Any supplemental tax bills received after Close of Escrow shall be paid by Seller to the extent they 1551066751 -0092 4403119.4 a 10109/12 -8- relate to a period prior to Close of Escrow, and by City, to the extent they relate to a period after Close of Escrow. If a supplemental tax bill covers a period commencing before and continuing after Close of Escrow, the party named in the bill will pay the tax and the other party shall reimburse the first party its pro rata share within thirty (30) days after receipt of a copy of the tax bill and evidence of the second party's payment of same. The provisions of this Section 8.3 shall survive Close of Escrow. If either party fails to pay its pro rata share of taxes by the times herein provided, interest shall accrue on all unpaid amounts from when owing until paid at five percent (5 %) over the Federal Discount Rate quoted by the Federal Reserve Bank of San Francisco on the 25th day of the month preceding the date interest commences to accrue. Rents of the tenants under the Existing Lease, if any, shall be prorated to the Closing Date based on rents actually collected. Any such rents collected after the Closing Date by City which are attributable to the period prior to the Closing Date shall be paid to Seller upon collection. Rents collected after the Closing Date from tenants whose rental was delinquent at Closing and /or constituting reimbursements for operating expenses paid by Seller shall be deemed to first apply to costs of collecting such rents, second to rents which accrued after the Closing and third to rentals accruing prior to the Closing Date. City shall have no obligation to commence litigation or to collect rents or to terminate the tenant's right to occupancy based upon tenant's failure to pay rentals which were delinquent at Closing and /or such reimbursements; however, City shall use reasonable efforts to collect such delinquent rents and shall reasonably and in good faith cooperate with Seller's attempts to collect such rents at no cost or expense to City. 8.4 Payment of Costs. Seller shall pay one -half (1/2) of the Escrow fee, title insurance premiums for that portion of the Title Policy premium which would be incurred for a CLTA form policy, and the charge for drawing the Grant Deed. City shall pay the one -half (1/2) of the Escrow fee, charges for recording the Grant Deed, and that portion of the Title Policy premium which is attributable to the additional cost of obtaining any additional coverage requested by City, including the difference between CLTA and ALTA coverage. All other costs of Escrow not otherwise specifically allocated by this Agreement shall be apportioned between the parties in a manner consistent with the custom and usage of Escrow Holder. This transaction is exempt from payment of documentary transfer taxes. 8.5 Termination and Cancellation of Escrow. Time is of the essence of this Agreement. If Escrow fails to close as provided above, Escrow shall terminate automatically without further action by Escrow Holder or any party, and Escrow Holder is instructed to return all funds and documents then in Escrow to the respective depositor of the same with Escrow Holder. Cancellation of Escrow, as provided herein, shall be without prejudice to whatever legal rights City or Seller may have against each other arising from the Escrow or this Agreement. 8.6 Information Report. The "Reporting Person" within the meaning of Treasury Regulation Section 1.6045- 4(e)(5) with respect to the transactions contemplated by this Agreement shall be Escrow Holder. It is agreed that Escrow Holder is an eligible person under Section 1.6045- 4(e)(5)(ii) of said Regulations. Escrow Holder hereby agrees to be responsible for complying with the reporting and other requirements of Internal Revenue Code Section 6045(e) and the income tax regulations promulgated thereunder. Pursuant to said regulations, the address for the transferor and transferee are as set forth for Seller and City below, and the identifying information regarding the real estate transferred is the legal description for the Property set forth herein. Escrow Holder agrees to file the form required by said regulations 155/066751 -0042 4413119.4 n 10109'12 —9— between the end of the calendar year in which the Close of Escrow occurs and February 28 of the following calendar year. City and Seller agree (i) to cooperate with Escrow Holder and with each other in completing any report and /or other information required to be delivered to the Internal Revenue Service pursuant to Internal Revenue Code Section 6045(e) regarding the real estate sales transaction contemplated by this Agreement, including without limitation, Internal Revenue Service Form 1099 -5 as such may be hereinafter modified or amended by the Internal Revenue Service, or as may be required pursuant to any regulation now or hereinafter promulgated by the Treasury Department with respect thereto; (ii) that City and Seller, their respective employees and attorneys, and Escrow Holder and its employees may disclose to the Internal Revenue Service, any information regarding the Option Agreement, this Agreement or the transaction contemplated herein as such party reasonably deems to be required to be disclosed to the Internal Revenue Service by such party pursuant to Internal Revenue Code Section 6045(e); (iii) that neither City nor Seller shall seek to hold any such party liable for the disclosure to the Internal Revenue Service of any such information; and (iv) to retain this Agreement for at least four (4) years following the close of the calendar year in which the Close of Escrow occurs. 9. REPRESENTATIONS AND WARRANTIES. 9.1 Representations and Warranties. Seller hereby makes the following representations and warranties to City, each of which (i) is material and relied upon by City in making its determination to enter into this Agreement; (ii) is true in all respects as of the date hereof and shall be true in all respects on the date of Close of Escrow on the Property; and (iii) shall survive the Close of Escrow of the purchase and sale of the Property as well as any future transfer of the Property to City or any transferee, successor or assignee of City: (a) Seller has received no notice or has no actual knowledge that any governmental authority or any employee or agent thereof considers any construction of the proposed improvements on the Property or the present or proposed operation, use or ownership of the Property to violate or have violated any ordinance, rule, law, regulation or order of any government or agency, body or subdivision thereof, or that any investigation has been commenced or is contemplated respecting such possible violations. (b) There are no pending or threatened litigation, allegations, lawsuits or claims, whether for personal injury, property damage, landlord- tenant disputes, property taxes, contractual disputes or otherwise, which do or may affect the Property or the operation or value thereof, and there are no actions or proceedings pending or, to the best of Sellers knowledge, threatened against Seller before any court or administrative agency in any way connected with the Property and neither the entering into of this Agreement nor the consummation of the transactions contemplated hereby will constitute or result in a violation or breach by Seller of any judgment, order, writ, injunction or decree issued against or imposed upon it. There is no action, suit, proceeding or investigation pending or threatened against Seller which would become a cloud on City's title to and have a material adverse impact upon the Property or any portion thereof or which questions the validity or enforceability of the transaction contemplated by this Agreement or any action taken pursuant hereto in any court or before or by any federal, 2551066751 -0092 4403 1 19.4.010109! 12 -10- district, county, or municipal department, commission, board, bureau, agency or other governmental instrumentality. (c) There are no contracts, leases, claims or rights affecting the Property and no agreements entered into by or under Seller shall survive the Close of Escrow that would adversely affect City's rights with respect to the Property except as heretofore disclosed in writing by Seller to City. (d) Seller has the unimpeded power and authority to execute, deliver and perform Sellers obligations under this Agreement and the documents executed and delivered by Seller pursuant hereto. (e) Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended. All representations and warranties made hereunder are in addition to any representations and warranties implied by law and in no event shall this Section 10.1 be construed to limit, diminish or reduce any obligation of disclosure implied upon Seller by law. The representations and warranties of Seller set forth in Section 9.1 hereof shall survive Closing for a period of one year. Seller shall have no liability to Purchaser for a breach of any representation or warranty unless written notice (the 'Breach Notice ") containing a description of the specific nature of such breach shall have been given by City to Seller prior to the expiration of said one year period and an action shall have been commenced by Purchaser against Seller within sixty (60) days following the expiration of such one year period (the "Outside Date "). 9.2 Disclaimer of Representations and Warranties. City acknowledges that as of Close of Escrow it will have had an adequate opportunity to inspect the Property and to investigate its physical characteristics and conditions. Upon the Close of Escrow, City shall be deemed to have waived any and all objections to the physical characteristics and conditions of the Property which would be disclosed by a reasonable and diligent inspection. City acknowledges that, except as specifically provided herein, neither Seller nor any of its employees, agents, or representatives has made any representations, warranties or agreements to or with City on behalf of Seller as to any matters concerning the Property, the present use thereof, or the suitability of City's intended use of the Property. The foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present and future zoning, soil, subsoil, the acreage of the Property or square footage of buildings located thereon, the purpose to which the Property is suited, drainage, and access to public roads. City further acknowledges and agrees that the Property is to be purchased, conveyed, and accepted by City in its present condition, "AS -IS," and that no patent or latent physical condition of the Property, whether or not known or discovered, shall affect the rights of either party hereto. City has investigated and has knowledge of operative or imposed governmental laws and regulations (including, but not limited to, zoning, environmental, including specifically the regulations of the Environmental Protection Agency, and land use laws and regulations) to which the Property may be subject, and is acquiring the Property on the basis of its review and determination of the application and effect of such laws and regulations. City has neither received nor relied upon any representations concerning such laws and regulations 2551066751 -0092 4403119.4 a 10/09' I2 -11- made by Seller, Seller's employees, agents; or any other person acting on behalf of Seller. Any agreements, warranties or representations not expressly contained in this Agreement shall in no way bind Seller. CITY AND SELLER ACKNOWLEDGE AND AGREE THAT THE FOREGOING PROVISIONS OF THIS SECTION 9 HAVE BEEN FREELY BARGAINED FOR BY THE PARTIES AND CONSTITUTES A MATERIAL CONSIDERATION TO SELLER FOR THE SALE OF THE PROPERTY AND BUT FOR THIS PROVISION SELLER WOULD NOT SELL THE PROPERTY TO CITY. SELLER'S INITIALS CITY'S INITIALS 9.3 Changed Circumstances. If Seller becomes aware of any fact or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by Seller under this Agreement, whether as of the date given or any time thereafter through the Close of Escrow and whether or not such representation or warranty was based upon Seller's knowledge and /or belief as of a certain date, Seller will give immediate written notice of such changed fact or circumstance to City, but such notice shall not release Seller of its liabilities or obligations with respect thereto. Seller shall issue a certificate as of the Close of Escrow stating that all the representations and warranties contained in Section 10.1 are true and correct as of said date, or setting forth in detail which of such matters are not true and correct. 9.4 Indemnity by Seller. Seller shall hold harmless, indemnity and defend City, and the Property from and against (i) except for obligations, liabilities, claims, liens and encumbrances disclosed herein or which City specifically agrees by the terms of this Agreement to assume or take subject, any and all obligations, liabilities, claims, liens or encumbrances, whether direct, contingent or consequential and no matter how arising, in any way related to the Property and arising or accruing on or before the date first above written, or in any way related to or arising fi-om any act, conduct, omission, contract or commitment of Seller at any time or times on or before the date of the Close of Escrow for the purchase and sale of the Property, including without limitation, any damage to the Property or injury to or death of any person, employees or agents of Seller; (ii) any loss or damage to City resulting from any material inaccuracy or material breach of any representation or warranty of Seller or resulting from any breach or default by Seller under this Agreement, or any other agreements relating to this transaction; and (iii) all costs and expenses, including attorneys' fees, relating to any actions, suits or judgments incident to any of the foregoing. Should Seller fail to discharge or undertake to defend City or the Property against such liability upon learning of the same, then City may settle such liability and Sellers liability to City shall be conclusively established by such settlement, the amount of such liability to include both the settlement consideration and the reasonable expenses, including attorney's fees, incurred by City in effecting such settlement. 9.5 Repair Obligations Prior to Close of Escrow. Seller agrees to repair any items that are damaged or become in need of repair during the course of Escrow, and to maintain the Property in good condition and repair. 155'066751 -0092 -12.— 4409119.4 n10 /09/13 10. SETTLEMENT OF CLAIMS. 10.1 Release of Claims by Seller. In exchange for the promises contained in this Agreement, and except as to the obligations provided for in this Agreement, Seller hereby waives, releases and forever discharges, and agrees to the extent permitted by law that he will not in any manner institute, prosecute or pursue, any and all complaints, charges, claims for relief, demands, damages, suits, actions or causes of action, of any kind, whether in law or in equity, which he asserts or could assert, at common law or under any statute, rule, regulation, order or law, whether federal, state or local, or on any grounds whatsoever, against the City and /or any of its current or former officers, councilmen, agents, representatives, employees, successors and assigns with respect to any event, matter, claim, damage or injury, of any kind related to the Action, the Property and /or the Tolling Agreement or the claims made thereunder or in connection therewith as of the date of this Agreement and /or the Closing. 10.2 Release of Claims by City. In exchange for the promises contained in this Agreement, and except as to the obligations contained in this Agreement, City hereby waives, releases and forever discharges, and agrees to the extent permitted by law that it will not in any manner institute, prosecute or pursue, any and all complaints, charges, claims for relief, demands, damages, suits, actions or causes of action, of any kind, whether in law or in equity, which it asserts or could assert, at common law or under any statute, rule, regulation, order or law, whether federal, state or local, or on any grounds whatsoever, against the other Parties and /or any of its or their current or former owners, hosts, trustees, officers, directors, shareholders, affiliates, agents, representatives, employees, attorneys, successors, predecessors, insurers, and assigns with respect to any event, matter, claim, damage or injury of any kind related to the Action, the Property and /or the Tolling Agreement or the claims made thereunder or in connection therewith as of the date of this Agreement and/or the Closing. 10.3 Waiver of Unknown Claims. With respect to the subject matter of this Agreement, including, but not limited to the Property, it is agreed and understood that the releases being provided by each of the Parties above apply to all injuries and damages, whether now known or unknown, and whether now existing or which may result in the future due to the actions or omissions of the Parties on or before the Effective Date. With respect to the subject matter of this Agreement, the Parties acknowledge that they have each been fully advised of and understand the provisions of Section 1542 of the California Civil Code which reads: "A general release does not extend to clainis which the creditor does not know or suspect to exist in his or her favor at the time of executing this release, which if known by l7irn or her must have materially affected his or her settlement ivith the debtor. " In further consideration of the promises and payments pursuant to this Agreement, each Party agrees to, and does hereby, waive and relinquish all rights afforded to him, her or it under California Civil Code Section 1542, or any similar law of any State or territory of the United States or other jurisdiction with respect to the matters of this Agreement. Notwithstanding the above, nothing in this Agreement shall be deemed to waive or release any Party as to any of its obligations or rights under this Agreement. 155/066751.0092 - 13- 4403119.4 a10,00112 deed. The foregoing provisions shall survive the Closing hereunder and the recordation of the 11. DAMAGE, DESTRUCTION AND CONDEMNATION. 11.1 Risk of Physical Loss. Risk of physical loss to the Property shall be borne by Seller prior to the Close of Escrow and by City thereafter. In the event that the Property shall be damaged by fire, flood, earthquake or other casualty and the estimated cost to repair same exceeds FIVE HUNDRED THOUSAND DOLLARS ($500,000), City may, at its option, elect not to acquire the Property. If City does not so elect or the estimated cost to repair the damage is less than FIVE HUNDRED THOUSAND DOLLARS ($500,000), City shall complete the acquisition of the Property, in which case Seller shall assign to City the interest of Seller in all insurance proceeds relating to such damage. In the event that such damage shall occur and City elects not to purchase the Property as above provided, then this Agreement shall be terminated and City shall be entitled to the return of all funds and documents deposited hereunder. 11.2 Condemnation. In the event that, prior to the Close of Escrow, any governmental entity shall commence any actions of eminent domain or similar type proceedings to take any portion of the Property, City shall have the option either to (i) elect not to acquire the Property, or (ii) complete the acquisition of the Property, in which case City shall be entitled to all the proceeds of such taking. 12. THREAT OF CONDEMNATION. City's purchase of the Property is in contemplation of the use of the Property for public purposes. This negotiated acquisition arose during City's investigations of the acquisition of the Property through eminent domain. City has the authority to acquire property by eminent domain for public proposes. Seller has agreed to enter into this Agreement with City under the threat of City's exercise of its power of eminent domain. In the event this negotiated sale did not occur, subject to and pending its completion of the necessary statutory procedures set forth in Government Code Section 7267 e[ seq., and Code of Civil Procedure Section 1230.010 et seq., City's staff was prepared to have taken the steps thereunder to seek authorization from the City Council, and staff was prepared to recommend to the City Council initiation of the steps, to acquire the Property for public purposes pursuant to Government Code Section 7267 et seq., and Code of Civil Procedure Section 1230.010 et seq., including providing notice to Seller of its opportunity to be heard and to agendize, consider, and take action on a resolution of necessity under Code of Civil Procedure Section 1245.230 et seq. Nothing herein is intended to be, or serve as, any tax advice from City to Seller, and Seller is not in any way construing or relying on any communications or advice by City, or City's representations herein, in any way as any type of tax advice or opinion. Upon request, City shall provide Seller with a letter, separate and apart from this Agreement, restating the foregoing. 13. POSSESSION. Possession of the Property shall be delivered to City as of Close of Escrow. In the event any personal property remains on the Property following the Close of Escrow, it shall automatically become the property of City. 14. LIQUIDATED DAMAGES. IF CITY SHOULD DEFAULT FOR ANY REASON WHATSOEVER UNDER THIS AGREEMENT (EXCEPTING ONLY MATERIAL DEFAULT BY SELLER HEREUNDER), THEN AND IN SUCH EVENT, 2551066751 -0092 990)119.4 .10109112 -14- NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CITY AND SELLER AGREE THAT SELLER WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT BY CITY, WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. CITY AND SELLER, IN A REASONABLE EFFORT TO ASCERTAIN WHAT SELLER'S DAMAGES WOULD BE IN THE EVENT OF SUCH DEFAULT BY CITY HAVE AGREED BY PLACING THEIR INITIALS BELOW THAT THE SUM OF FIFTY THOUSAND DOLLARS ($50,000) SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CIVIL CODE. IN THE EVENT OF AND FOR SUCH DEFAULT BY CITY, CITY SHALL DELIVER SAID SUM IN GOOD FUNDS TO SELLER WITHIN FIVE (5) DAYS AFTER SELLER'S WRITTEN DEMAND THEREFOR AS SELLER'S SOLE MONETARY REMEDY THEREFOR. UNLESS CITY WRONGFULLY REFUSES TO CAUSE ESCROW HOLDER TO CANCEL THE ESCROW OR TO RELEASE THE DEPOSIT TO SELLER, IN WHICH INSTANCE SELLER SHALL ALSO BE ENTITLED TO ALL COSTS AND EXPENSES, INCLUDING ACTUAL ATTORNEYS' FEES INCURRED BY SELLER WITH RESPECT TO THOSE CONSEQUENTIAL DAMAGES, IF ANY, WHICH MAY BE INCURRED BY SELLER, AFTER THE CLOSING DATE BY REASON OF THE CLOUD ON TITLE TO THE PROPERTY WHICH MAY RESULT FROM CITY'S WRONGFUL FAILURE TO CANCEL THE ESCROW AND THIS AGREEMENT. SELLER'S INITIALS CITY'S INITIALS 15. MISCELLANEOUS. 15.1 Assignment. City shall not have the right to assign this Agreement or any interest or right hereunder or under the Escrow or to nominate another party to take title to the Property without the prior written consent of Seller, which Seller may withhold in Seller's sole discretion. In no event shall City be released of liability in the event of an assignment or nomination. 15.2 Affixation of Revenue Stamps. Escrow Holder is hereby specifically instructed to attach documentary transfer and /or revenue stamps to the Grant Deed only after recordation of the Grant Deed. 153 Cooperation. City and Seller agree to cooperate with one another, at no cost or expense to the cooperating party, in satisfying the conditions to Close of Escrow. City shall be responsible for proceeding with diligence and in good faith to satisfy the conditions, if any; to City's performance set forth in Section 7.1 and Seller shall be responsible for proceeding with diligence and in good faith to satisfy the conditions, if any, to Seller's performance set forth in Section 7.2. 15.4 Qualification; Authority. Each party represents and warrants that it is duly formed, is authorized to do business in the state in which the Property is located and that it has been duly authorized to enter into and perform this Agreement. 255'066751 -0092 -15 4403119.4 x10109/12 15.5 Attorneys' Fees. In any action between the parties hereto seeking enforcement of any of the terms and provisions of this Agreement or the Escrow, or in connection with the Property, the prevailing party in such action shall be entitled to have and to recover from the other party its reasonable attorneys' fees and other reasonable expenses in connection with such action or proceeding in addition to its recoverable court costs. 15.6 Interpretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others wherever and whenever the context so dictates. 15.7 No Waiver. No delay or omission by either party hereto in exercising any right or power accruing upon the compliance or failure of performance by the other party hereto under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either party hereto of a breach of any of the covenants, conditions or agreements hereof to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof. 15.8 Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made by written instrument or endorsement thereon and in each such instance executed on behalf of each party hereto. 15.9 Severability. If any term, provision, condition or covenant of this Agreement or the application thereof to any party or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and each tern and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 15.10 Merger of Prior Agreements and Understandings. This Agreement and other documents incorporated herein by reference contain the entire understanding between the parties relating to the transaction contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. 15.11 Covenants to Survive Escrow. The covenants and agreements contained herein shall survive the Close of Escrow and, subject to the limitations on assignment contained in Section 15.1 above, shall be binding upon and inure to the benefit of the parties hereto and their representatives, heirs, successors and assigns. 15.12 No Withholding Because Non - Foreign Seller. Seller represents and warrants to City that Seller is not, and as of the Close of Escrow will not be, a foreign person within the meaning of Internal Revenue Code Section 1445 and that it will deliver to City on or 255i066751 -0092 4403119.4 a 1 0309112 —16- before the Close of Escrow the Non - Foreign Affidavit as described hereinabove, pursuant to Internal Revenue Code Section 1445(b)(2) and the Regulations promulgated thereunder. 15.13 Time is of the Essence. Time is hereby expressly made of the essence of this Agreement. 15.14 Execution in Counterpart. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. 15.15 Notices. Any notice which either party may desire to give to the other party or to the Escrow Holder must be in writing and shall be effective upon delivery if sent via overnight mail with tracking; upon delivery, if delivered by confirmed facsimile or email (with a back up sent by first class mail); when personally delivered, if sent postage prepaid by registered or certified mail, return receipt requested; three (3) business days after deposit in the United States mail, registered, certified, postage fully prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto: To Seller: Kenneth M. Kaplan, Esq. 361 Forest Avenue, Suite 204 Laguna Beach, CA 92651 (949) 715 -0770 (office) (949) 230 -3117 (cell) (949) 715 -0772 (fax) kaplankm c,gmail.com Copy to: Peter Collisson, Esq. 361 Forest Avenue, Suite 204 Laguna Beach, CA 92651 (949) 250 -7474 (office) (949) 660 -8001 (fax) pete@pdclaw.com To City: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92660 Attn: Michael Torres, Esq. (949) 644 -3131 (949) 644 -3139 (fax) iiitorres@newportbeachca.gov 255/066751.0092 4401119.4 010109/12 -17- Rutan & Tucker. LLP Copy to: 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 -1998 Attn: Kim D. Thompson, Esq. (714) 641 -3449 (office) (714) 546 -9035 (fax) kthomuson a iutan.com IN WITNESS WHEREOF, the parties hereto have executed this Agreement of Purchase and Sale of Real Property and Escrow Instructions as of the date set forth above. "SELLER" Kenneth M. Kaplan "CITY" CITY OF NEWPORT BEACH a Municipal corporation and Charter City 0 Nancy Gardner, Mayor ATTEST: Leilani I. Brown, City Clerk APPROVED AS TO FORM: Aaron C. Harp, City Attorney 255/066751.0092 4403119.4 x 10,09/ 12 -1 8-