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2011/08/23 City Council Resolution 2011-77RESOLUTION NO. 2011-77 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK APPROVING A SETTLEMENT AGREEMENT AND MUTUAL RELEASE WITH CHARLES C. TRABOULSI REGARDING ASSESSOR'S PARCEL NO. 045-041-018 WHEREAS, the City of Rohnert Park ( "City ") owns certain real property consisting of approximately 18.21 acres and commonly known and referred to as Sonoma County Assessor's Parcel Number 045- 041 -018 ( "Property "); WHEREAS, the City Council approved a Land Purchase Agreement on November 8, 2005 via Resolution 2005 -331 in which Mr. Charles C. Traboulsi agreed to purchase the Property from City; WHEREAS, the City Council approved a Grant of Easement Agreement with Mr. Traboulsi via the adoption of Resolution 2006 -273 which also related to the Property; WHEREAS, neither the Land Purchase Agreement or Grant of Easement Agreement contemplated in said Resolutions were fully executed; WHEREAS, the City Council rescinded Resolutions Nos. 2005 -331 and 2006 -273 by a separate resolution; and WHEREAS, the parties have agreed to terminate the real property exchange pursuant to a Settlement Agreement and Mutual Release which dismisses certain released claims that the parties may have with each other. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Rohnert Park that the Settlement Agreement and Mutual Release, which is attached hereto and incorporated by this reference as Exhibit A, is hereby approved and adopted. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute said Settlement Agreement and Mutual Release on behalf of the City; BE IT FURTHER RESOLVED that the City Council hereby adopts the Certificate of Acceptance included with said Settlement Agreement and Mutual Release; BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute and deliver the escrow cancellation instructions included with said Settlement Agreement and Mutual Release on behalf of the City; OAK #4842 -1617 -5370 v1 DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert Park this 23rd day of August, 2011. CITY OF ROHNERT PARK Mayor AHANOTU: AYE CALLINAN: ABSENT MACKENZIE: ABSENT STAFFORD: AYE BELFORTE: AYE AYES: (3) NOES: (0) ABSENT: (2) ABSTAIN: (0) OAK #4842 -1617 -5370 v1 SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release ( "Settlement Agreement ") is made and entered into between Charles C. Traboulsi, a single man dba Horn Mitigation Bank and Horn Avenue LLC, a California limited liability company (jointly and severally, "Traboulsi ") and the City of Rohnert Park, a California municipal corporation ( "City "), collectively referred to as the "Parties" and individually as a "Party." The "Date of Agreement" shall be the date of the City's signature hereto. RECITALS A. City owns certain real property consisting of approximately 18.21 acres and commonly known and referred to as Sonoma County Assessor's Parcel Number 045 -041 -018 ( "Property "). B. Traboulsi signed a Land Purchase Agreement as amended by a First Addendum to Land Purchase Agreement attached hereto as Exhibit A (collectively, "Purchase Agreement ") which provided that the City would sell to Traboulsi, and Traboulsi would purchase from City, the Property, as further set forth therein. The Rohnert Park City Council approved the Purchase Agreement on November 8, 2005 via Resolution 2005 -331, although neither Party has been able to locate a fully signed version of the Purchase Agreement. C. In connection with the Purchase Agreement, Escrow Number 00135278 -001 KE was opened at North Bay Title Company, 431 E Street, Santa Rosa, CA 94504 ( "Escrow "). The Parties deposited funds and documents into Escrow, including a grant deed from City to Traboulsi for the Property ( "Grant Deed "), but the contemplated transaction did not close. Traboulsi represents and warrants that the Grant Deed was neither delivered to Traboulsi nor recorded. D. City and Traboulsi also entered into that certain Grant of Easement Agreement dated November 28, 2006 attached hereto as Exhibit B ( "Easement Agreement ") whereby City agreed to grant to Traboulsi, and Traboulsi agreed to accept from City, a non - exclusive easement over certain City -owned property, as further set forth therein. The Rohnert Park City Council approved the Easement Agreement via Resolution 2006 -273, The Easement is located on the Easement Area and burdens the Burdened Property, as those terms are defined in the Easement Agreement. Traboulsi represents and warrants that the transaction contemplated under the Easement Agreement was not effected, and that the fully signed Easement Agreement was neither delivered to Traboulsi nor recorded. E. Each Party asserts various losses and damages occasioned by the acts or omissions of the other Party including breaches of the Purchase Agreement. F. The Parties now desire to dismiss the Released Claims, and release each other and the Releasees from the Released Claims, as those terms are defined below, on the terms set forth in this Settlement Agreement. In connection therewith, Traboulsi now desires to quitclaim to City any Traboulsi interest in the Property, the Burdened Property, and the Easement Area. Settlement Agreement Page I of 8 OAK #4827 - 1888 -3849 0 EXHIBIT A G. Without admitting any issue of fact or law, the Parties agree that settlement of the Released Claims and entry into this Settlement Agreement are in good faith, in an effort to avoid expensive and protracted litigation, and in the public interest. . NOW, THEREFORE, in consideration of the mutual covenants set forth below and for other good and valuable consideration, the adequacy and sufficiency of which is hereby acknowledged, the Parties agree as follows: AGREEMENT 1. Settlement Terms. This Settlement Agreement shall become immediately effective, enforceable, and binding on the Parties as of the Date of Agreement. The Parties will pay those sums and convey such property interests as further set forth herein, in full and final settlement and satisfaction of the Released Claims. a. Copy to Escrow. A copy of this Settlement Agreement shall be provided to North Bay Title Company ( "Title Company" or "Escrow Agent") within five (5) days of the Date of Agreement. The Parties hereby irrevocably instruct Escrow Agent to act in accordance with the terms and conditions of this Settlement Agreement. b. Escrow Documents. i. Void Ab Initio. All agreements between City and Traboulsi with respect to the Property, Burdened Property, and Easement Area ( "City - Traboulsi Agreements ") other than this Settlement Agreement are hereby declared null and void ab initio. The Parties hereby irrevocably instruct Escrow Agent to return all originals and copies of all City - Traboulsi Agreements to City, and to return all other documents to the Party which signed and deposited such other documents into Escrow. Escrow funds shall be handled as provided in Section Le. ii. Quitclaim Deed. Traboulsi shall quitclaim all of its right, title and interest in the Property, Burdened Property, and Easement Area to City via the quitclaim deed attached hereto as Exhibit C ( "Quitclaim Deed "). Traboulsi shall deliver the Quitclaim Deed, in recordable form, duly executed and notarized, into Escrow within ten (10) days of the Date of Agreement. The Parties hereby irrevocably instruct Escrow Agent to. record the Quitclaim Deed in the official records of Sonoma County immediately upon receipt thereof. C. Escrow Funds. The Escrow account balance as of the Date of Agreement is $60,000 ( "Account Balance "). The Parties hereby irrevocably instruct Escrow Agent to release $10,000 of the Account Balance to City and $50,000 of the Account Balance to Traboulsi, immediately after recordation of the Quitclaim Deed. The receiving Party shall provide the Escrow with wiring instructions should the receiving Party desire that its funds be disbursed via wire transfer. Concurrently with execution of this Settlement Agreement, the Parties shall each execute and deliver into escrow a fully signed original of the escrow Cancellation Instructions attached hereto as Exhibit D. d. Improvements. i. Traboulsi asserts that, in anticipation of closing the transaction contemplated under the City - Traboulsi Agreements, Traboulsi made alterations and improvements to the Property, Burdened Property, and Easement Area consisting generally of Settlement Agreement Page 2 of 8 OAK #4827 -1888 -3849 v4 grading work ( "Improvements "). City asserts that it did not consent to, request, or approve such Improvements. ii. Traboulsi represents and warrants that it has not caused, permitted, or contributed to any actual or threatened intentional or unintentional release, discharge, spill, leaking, pumping, pouring, emitting, emptying, injection, disposal or dumping of Hazardous Materials in violation of the Environmental Laws into, at, on, under, about, or in the Property, Burdened Property, or Easement Area (including the surface water, groundwater, surface soil, subsurface soil air, land or soil vapor thereof), or any environmental contamination.or pollution in violation of Environmental Laws existing at, on, under, about, or in the Property, Burdened Property, and Easement Area ( "Environmental Condition "). "Hazardous Materials" means any substance, material, or waste which is or becomes regulated by any federal, state, regional, county, and/or local governmental authority, including the State of California or the United States Government, including any material or substance which is: (a) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under sections 25117, 25115 or 25122.7 of the California Health and Safety Code, or listed pursuant to California Health and Safety Code section 25140; (b) defined as a "hazardous substance" under California Health and Safety Code section 25316 (Carpenter- Presley - Tanner Hazardous Substance Account Act); (c) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under California Health and Safety Code section 25501 (Hazardous Materials Release Response Plans and Inventory); (d) defined as a "hazardous substance" under California Health and Safety Code section 25281 (Underground Storage of Hazardous Substances); (e) petroleum; (f) friable asbestos; (g) polychlorinated biphenyls; (h) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (i) designated as "toxic pollutants" pursuant to Section 311 of the Clean Water Act (33 U.S.C. § 1317); 0) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6903; or (k) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended, regardless of whether such materials in the preceding subsections (a) to (k) are solid, liquid or gas. "Environmental Laws" means those Laws which regulate (a) the protection or clean-up of the environment, (b) the use, treatment, storage, transportation, generation, manufacture, processing, distribution, handling or disposal of, or emission, discharge or other Release or threatened Release, and (c) the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources, or the health and safety of persons or property, including protection of the health and safety of employees. Environmental Laws include the Federal Water Pollution Control Act, Resource Conservation & Recovery Act, Clean Water Act, Safe Drinking Water Act, Atomic Energy Act, Occupational Safety and Health Act, Toxic Substances Control Act, Clean Air Act, Comprehensive Environmental Response, Compensation and Liability Act, Hazardous Materials Transportation Act and all analogous or related Laws, whether federal, state, regional, county, or local. iii. Within ten (10) days of the Date of Agreement, Traboulsi shall deliver directly to City all books, records, files and papers of Traboulsi related to the Improvements, including all contracts and agreements to which Traboulsi is or was a party or by which it is or was bound, documents of title, personnel records, salary and wage records, inventory records, sales documentation, plans, "as built" drawings, specifications for the Improvements, bid Settlement Agreement Page 3 of 8 OAK #4827 -1888 -3849 v4 materials, contracts, agreements, permits, consents, authorizations, invoices, financial statements, lien notices, lien releases, and similar materials, all to the extent in Traboulsi's possession and /or control, regardless of the medium in which the same are fixed; but excluding confidential employee records, attorney - client privileged documents or communications, and other privileged materials; provided, however that Traboulsi shall cooperate with and assist City in making such documents, records and materials available to City to the extent reasonably necessary to assist City in connection with any formal or informal legal proceedings to which City may become a party in connection with the Improvements. Traboulsi represents and warrants that it did not cause, permit, receive notice, or have knowledge, nor does it now have knowledge, of any liens against the Property, Burdened Property, and Easement Area to the extent related to the City - Traboulsi Agreements or the Improvements. 2. Full and Final Release. Immediately as of the Date of Agreement, the General Release provided for herein below shall become effective and legally binding. a. Claims. i. The Parties hereby mutually and generally release, acquit, compromise, settle, satisfy, and forever discharge each other and the other Party's Releasees of and from any and all actions, causes of action, claims, cross - claims, disputes, demands, damages (including special and consequential damages), losses, fines, taxes, costs, loss of service, expenses, liabilities, obligations, consultant fees, expert witness fees, attorneys' fees, and debts of whatever kind, character, or nature, in law, equity, contract or tort, or otherwise, past, present, future, known or unknown, contingent or non - contingent, anticipated or unanticipated, suspected or unsuspected, which any such Parties now has, ever had, or may have in the future arising directly or indirectly out of, based on, relating to, or connected in any way, with the City - Traboulsi Agreements, the Improvements, the Property, the Burdened Property, or the Easement Area (collectively, "Released Claims "). City's.release is made in reliance on Traboulsi's representations and warranties as contained in this Settlement Agreement. ii. The defined term "Released Claims" expressly excludes any and all actions, causes of action, claims, cross - claims, disputes, demands, damages (including special and consequential damages), losses, fines, taxes, costs, loss of service, expenses, liabilities, obligations, attorneys' fees, and debts of whatever kind, character, or nature, in law, equity, contract or tort, or otherwise, past, present, future, known or unknown, contingent or non- contingent, anticipated or unanticipated, suspected or unsuspected, which any such Parties now has, ever had, or may have in the future arising directly or indirectly out of, based on, relating to, or connected in any way with any Environmental Condition, City's ordinary and customary operations (i.e. sanitary sewer or similar services), or enforcement of this Settlement Agreement. iii. Releasees. Each Party's respective successors, assigns, predecessors, and any present and former agents, representatives, employees, subsidiaries, related, interrelated, parent or affiliated companies, heirs, assigns, partnerships, insurers, partners, officers or directors, administrators, executors, trustees, attorneys, co- partners, co- ventures, and insurers is collectively referred to herein as the " Releasees." b. General Release and Waiver. Each Party acknowledges and agrees that this Settlement Agreement includes a complete general release and waiver of the Released Claims. The Parties fully understand that if any fact(s) pertaining to the Released Claims are discovered, Settlement Agreement Page 4 of 8 OAK #4827 - 1888 -3849 v4 after the Date of Agreement, to be other than or different from the fact(s) now believed by them to be true, they expressly accept and assume the risk of such possible difference of fact(s) and/or belief, and agree that this Settlement Agreement shall be and remain effective notwithstanding such difference in fact(s) and/or belief. Each Party also understands that it is possible that an unknown injury, damage, diminution or loss, action suit, lien, theory of recovery, lawsuit, claim or cause of action arising out of or related to the Released Claims may exist which, if known by any of the Parties, would have materially affected their decision to release and discharge the unknown claim as set forth herein. Each Party expressly acknowledges that it took that possibility into account in determining the consideration given and accepted for entering into this Settlement Agreement and each expressly waives California Civil Code § 1542, which provides: 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 the release, which if known by him or her must have materially affected his or her settlement with the debtor. 3. Authority to Enter into Agreement. Each Party represents and warrants to the other Party the following: (i) it has read this Settlement Agreement, understands its contents, and freely, knowingly, and voluntarily enters into this Settlement Agreement after being fully advised by its counsel of the terms and effects of this Settlement Agreement; (ii) in executing this Settlement Agreement, such Party has not relied upon any inducements, promises or representations other than those expressly contained herein; (iii) each signatory to this Settlement Agreement has full rights, power, legal capacity and authority to execute this Settlement Agreement (and does so execute this .Settlement Agreement) on behalf of the Party for whom it is signing; (iv) such Party has full rights, power, legal capacity and authority to enter into and perform the obligations hereunder and that such obligations shall be binding upon each of them without the requirement of the approval or consent of any other person or entity in connection herewith; and (v) such Party has neither assigned nor accepted assignment of its interests in any or all of the Property, Burdened Property, Easement Area, Improvements, or Released Claims. 4. Further Assurances. The Parties shall execute and deliver any and all additional papers, documents or other assurances and shall do any and all acts and things reasonably necessary in connection with the performance of the obligations hereunder to carry out the intent of this Settlement Agreement. 5. Counterparts; Amendment; Waivers. This Settlement Agreement may be executed in counterparts, and together the counterparts shall be deemed as one original Settlement Agreement. This Settlement Agreement may only be amended or altered through a written agreement signed by all Parties. The failure of either Party at any time to require performance by the other Party of any provision hereof shall not be taken or held to be a waiver of the obligation itself. 6. Substantive Law; Time. The Parties agree that the substantive law of the State of California (without reference to California's choice of law provisions) shall govern the interpretation of the enforcement of this Settlement Agreement. Time is of the essence in this Settlement Agreement and in all terms, provisions, covenants and conditions hereof. "Law" means any decision, statute, ordinance, resolution, decree, order, writ, rule, or regulation of any federal, state, regional, county, local or other governmental agency, legislative body, court, authority, administrative agency, regulatory body, commission, joint powers agency or . settlement Agreement Page 5 of 8 OAK #4827 - 1888 -3849 v4 instrumentality, including any multinational authority having governmental or quasi - governmental powers. 7. Attorneys Fees and Costs. In the event that any legal action is necessary to enforce this Settlement Agreement, the prevailing Party shall be entitled to an award of reasonable attorneys' fees and costs, including expert witness and consultant fees incurred by such prevailing Party. Except as otherwise provided herein, each Party agrees to bear its own legal fees and costs incurred in connection with the Released Claims, subject matter thereof, and negotiation of this Settlement Agreement. 8. Entire Agreement; Interpretation. This Settlement Agreement constitutes the entire understanding of the Parties and supersedes all prior agreements, discussions, or representations, oral or written, with respect to the Released Claims and the subject matter hereof. The Parties expressly acknowledge and agree that this Settlement Agreement shall not be deemed prepared or drafted by any Party or Parties in particular and will be construed accordingly. If any word, phrase, clause, sentence, provision or paragraph of this Settlement Agreement is or shall be held invalid or unlawful for any reason, the same shall be deemed severed from the remainder hereof, and stricken therefrom, and shall in no way affect or impair the validity of this Settlement Agreement or any other portion thereof, and this Settlement Agreement shall otherwise remain in full force and effect. The Recitals and any exhibits attached hereto are incorporated into this Settlement Agreement by reference as though fully set forth herein, and each term of this Settlement Agreement is contractual and not merely a recital. The words "include" and "including" shall be interpreted as though followed by the words "without limitation." 9. Successors and Assigns; Parties in Interest. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the Parties and /or upon their heirs, administrators, representatives, executors, successors, transferees, assigns and /or business entities owned in whole or part by each of the Parties. Nothing in this Settlement Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Settlement Agreement on any persons other than the Parties and their respective successors and assigns, nor shall any provision give any third person any right of subrogation or action over or against any Party. 10. Notices. Any notices required by this Settlement Agreement shall be personally delivered, sent by facsimile, reputable overnight courier, or registered or certified mail (postage prepaid, return receipt requested), and shall be deemed received upon the earlier of: (i) if personally delivered, the date of delivery to the address of the person to receive such notice; (ii) if mailed, three (3) business days after the date of posting by the United States post office; (iii) if delivered by overnight courier for next business day delivery, the next business day; or (iv) if sent by facsimile, with the original sent on the same day by overnight courier, the date on which the facsimile is received, provided it is before 5:00 P.M. Pacific Time. Rejection or other refusal to accept or the inability to deliver because of a change in address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Unless changed in accordance herewith, the addresses for notices given pursuant to this Agreement shall be as follows: Settlement Agreement Page 6 of 8 OAK #4827 -1888 -3849 v4 If to Ci : City of Rohnert Park City Hall 13 0 Avram Avenue Rohnert Park, CA 94928 Attention: City Manager and City Attorney Telephone: (707) 588 -2226 Facsimile: (707) 792 -1876 with copies to the following: Burke, Williams& Sorensen, LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612 Attention: Michelle Marchetta Kenyon, Esq. Telephone: (510) 273 -8780 Facsimile: (510) 839 -9104 If to Traboulsi, to the following: Charles C. Traboulsi 2190 Siesta Lane Santa Rosa, CA 94504 Telephone: (707) 494 -0425 Facsimile: (707) 546 -6836 with copies to: Beyers Costin 200 Fourth Street, Suite 400 Santa Rosa, CA 95401 Attention: Peter L. Simon, Esq. Telephone: (707) 547 -2000 Facsimile: (707) 526 -2746 [Signatures follow on next page] Settlement Agreement Page 7 of 8 OAK #4827 - 1888 -3849 v4 IN WITNESS WHEREOF, the Parties have caused this Settlement Agreement to be executed as of the dates set forth below. Date: —3' /Z:3- L Date: APPROVED AS TO FORM: By: ZL- 1)2r City Attome T ATTEST: to City Clerk TRABOULSI: CHARLES C. TRABOULSI, a single man, dba HORN MITIGATION BANK By: (=DA� I Name: i12�gcyV Its: P�fi HORN AVENUE LLC, a California limited liability company By: Name: a-i Al&�=Fc ` D& ABcw l Its: k', SPT' CITY: CITY OF ROHNERT PARK By: _ Name: Its: City Manager Settlement Agreement Page 8 of 8 OAK #4827 -1888 -3849 v4 Exhibit A Purchase Agreement OAK #4827 -1888 -3849 v4 LAND PURCHASE AGREE'M'ENT DEFINITIONS :• Copy to: BROKER includes cooperating brokers and all sales persons. DAYS means calendar days, midnight tom .Copy to: specified. BUSINESS DAY excludes Saturdays, Sundays and legal holidays. DATE OFACCEPTANCE meal�Cjo-._ the offer or the Buyer accepts the counter offer. DELIVERED means personally delivered, transmitted by nationally recognized overnight courier, or by first class mail, postage prepaid. In the event of mailing, die uuc;uinem will oe deemed delivered three (3), business days after deposit; in the event of overnight courier, one (I) business day after deposit; and if by facsimile, at time of transmission provided that a transmission report is generated and retained by the sender reflecting the accurate transmission of the document. Unless otherwise provided in this Agreement or by law, delivery to the agent will consti- tute delivery to the principal. DATE OF CLOSING means the date title is transferred. TERMINATING THE AGREEMENT. means that both parties are relieved of their: obligations and all deposits will be returned to Buyer. PROPERTY means the real property and any personal property included in the sale. AGENCY RELATIONSHIP CONFIRMATION. The following agency relationship is hereby confirmed for this transaction and supersedes any prior agency election: LISTING AGENT: NONE is the agent of (Check one): (Print Firm Name) the Seller exclusively; or ❑ both the Buyer and the Seller. SELLING AGENT: NONE (if not the same as the Listing Agent) is the agent of (check one): (Print Firm Name) the Buyer exclusively; or [] the Seller exclusively; or ❑ both the Buyer and the Seller. Note: This confirmation DOES NOT take the place of the AGENCY DISCLOSURE form (P.P. Form 110.42 CAL) required by law CHARLIE TRAB.QULSI :HORN-MITIGATION -BANK hereinafter designated as BUYER, offers to purchase the real property' situated in _ _ ROHNERT PARK. County of SONOMA California, consisting of approximately _18.21 _ ]� acres, v sq, ft. corn- monly known as ROHNERT PARK LAND. APN 045-041-018.18.21 ACRES. FOR THE PURCHASE PRICE OF $ 1.000,000 -00 (ONE MILLION - -- 001]00- - dollars) on the following terms and conditions: 1. FINANCING TERMS. A. $_� 10:000.00 DEPOSIT evidenced by ]check, or ❑ other. held uncashed until acceptance and not later than three (3) business days thereafter deposited toward the purchase price with B. $ 90.000.00 ADDITIONAL CASH DEPOSIT to be placed in escrow within 30 days after acceptance, 1 upon, removal of all conditions. C. $ 900;000 -00 BALANCE OF CASH PAYMENT needed to:close, not including closing costs. D. $ BONDS'OR ASSESSMENTS of record if assumed by buyer. E. $ OTHER FINANCING TERMS: H.$_ 1,000,000.00 TOTAL PURCHASE PRICE (not ind!.Uding closing costs): 2. EXAMINATION OF TITLE. In addition to any encumbrances assumed or taken "subject to," Seller will convey title to the property subject only to: (1] real estate taxes not yet due; and [2] covenants, conditions, restrictions, rights of way and easements of record, if any - Within three (3) days after acceptance, Buyer will order a Preliminary Title Report and copies of CC &Rs and other documents of record if applicable. Within five (5) days after receipt, Buyer will report to Seller in writing any valid objections to title contained in such report (other than monetary liens to be paid upon close of escrow). If Buyer objects to any exceptions to the title, Seller will use due diligence to remove such exceptions at his or her own expense before close of escrow. If such exceptions cannot be removed before close of escrow, this Agreement will terminate, unless Buyer elects to purchase the proper ty subject to such exceptions. If S eller concludes he or she is in good faith unable to remove such objections, Set ler will so notify Buyer within ten (10) days after receipt of.said objections.' In that event Buyer may terminate this Agreement. 3. OPTIONAL CONDITIONS. Provisions 3 -A through 3 -G, if initialed below by Buyer, are included in this Agreement A. SOIL TESTS. Upon acceptance of this Agreement. Buyer will have the right to go on the property to conduct soil tests, including percolation tests, to ascertain whether the property is suitable forthe improvements which Buyer proposes,to make. All expenses of such tests will be borne by the ❑ Buyer, ❑ Seller. Buyer will be responsible for the repair and restoration of any damage to the property which may be caused by such tests. if in the reasonable opinion of the soils engineer, employed by Buyer, the property is not suitable for the proposed develop ment, Buyer may terminate this Agreement Buyer will approve or disapprove the results of the tests in writing within days of acceptance. Buyer f 1 f 1 and Seiler f i I 1 have read this page. CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means including scanning or computerized formats. Page 1 of 5 FORM 101 -LA.1 CAL (01 -2005) COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA ® PROFESSIONAL PUBLISHING Form generated by: TrueForms" from REVEAL(eliSYSTEMS, Inc. 800- 499 -9612 Property Address: .<OHNERT PARK LAND APN- 045 -041 -018 11 ACRES B SURVEY: Upon acceptance of this Agreement, the property will be surveyed by ,a licensed surveyor at the expense of the F] Buyer. ❑ Seller. The surveyor will set and flag all property lines, to be approved in writing by Buyer prior to close of . escrow. f C. PRICE BASED ON AREA. The purchase price is based upon $ ❑ per acre, ❑ per square foot, and ❑ will, ❑ will not be adjusted in accordance with the area set forth in the survey under Provision 3 -3. D. GEOLOGICAL REPORT. Upon acceptance of this Ag reement, Buyer will have the right to obtain a geological report from a registered geologist at the expense of ❑ Buyer ❑ Seller. Buyer will be deemed to have approved said report unless written notice to the contrary is delivered to Seller or his or her Broker within days of acceptance. In the event of disapproval, Buyer may terminate this Agreement. E. WELL REPORT. Upon acceptance of this Ag reement, Buyer will obtain a well report from a licensed well drilling con- tractor at the expense of ❑ Buyer, []Seller. Buyer will approve or disapprove the results of the tests in writing within days of acceptance. In the event of.disapproval, Buyer may terminate this Agreement. U F. CERTIFICATE OF COMPLIANCE. This offer is conditioned upon obtaining a Conditional Certificate of Compliance from - at the expense of ❑ Buyer ❑ Seller within days of acceptance. (Under Government Code §66499.35, a buyer or seller may apply to the local agency for a certificate that all of the subdivision laws applicable to the lot have been satisfied.) [ l G. TAX DEFERRED EXCHANGE (INVESTMENT PROPERTY). In the event Seller wishes to enter into a tax deferred exchange for the property, or Buyer wishes to enter into a tax deferred exchange with respect to property owned by him or her in connection with this transaction, each of the parti es agrees to cooperate with the other party in connection with such exchange, including the execution of such documents as maybe reasonably necessary to complete the exchange, provided that (a) the other party will not be obligated to delay the closing; (b) all additional costs in connection with the exchange will be borne by the party requesting the exchange; (c) the other party will not be obligated to execute any note, contract, deed or other document providing for any personal liability which would survive the exchange; and (d) the other party will not take title to any property other than the property described in this Agreement. The other party will be indemnified and held harmless against any liability which arises or is claimed to have arisen on account of the exchange_ 4. BONDS AND ASSESSMENTS. All bonds and assessments which are part of or paid with the property tax bill will be assumed by the Buyer. In the event there are other bonds or assessments which have an outstandi ng principal balance and are a lien upon the property, the current installment will be prorated between Buyer and Seller as of the date of closing. Future installments will be assumed by Buyer WITHOUT CREDIT toward the purchase price, EXCEPT AS FOLLOWS:_ This Agreement is conditioned upon both parti es verifying and approving i n writing the amount of any bond or assessment to'be;assumed or paid within ten (10) days after receipt of the preliminary title report or property tax bill, whichever is later_ In the event of disapproval, the disapproving. party may terminate this Agreement. 5.`EVIDENCE OF TITLE will be.in: the form of a policy of title insurance, issued by NORTH BAY TITLE GO paid by ,.J:Buyer, ❑ Seller, ❑ Other. _... NOTE: In addition to coverage under a standard CLTA Policy, the ALTA Owner's Policy, or'CLTA Homeowner's Policy of Title Insurance may offer additional coverage for a number of unrecorded matters. Buyer should discuss the type of policy with the title company of their choice at the time escrow is opened_ In the event a lender requires.anALTA lender's.policy of title insurance, ❑Buyer, ❑ Seller will pay the premium. 6 VESTED TITLE. The manner of taking title may have significant legal and tax consequences. Buyer should obtain advice from his or her legal or tax counsel regarding this matter. 7. PROPERTY INVESTIGATIONS. This Agreement is contingent upon Buyer's independent investigation of the following conditions relating to the property. A. Zoning and land use designations and requirements. B. Availability of utilities and costs of development_ C_ Toxic contamination. Buyer will approve or disapprove in writing all inspection reports within fifteen (15) (or ❑ } days after acceptance, lathe event of Buyer's disapproval, Buyer may, within the time stated or mutually agreed upon extension, elect to terminate this Agreement. 8. MEDIATION OF DISPUTES. If a dispute arises out of or relates to this Agreement or its breach, by initialing in the "agree" spaces below the parties agree to first try in good faith to sett{ a the dispute by voluntary mediation before resorting to court action or arbitration, unless the dispute is a matter excluded under Item 10 — ARBITRATION. The fees of the mediator will be shared equally between all parties to the dispute. If a party initials the "agree' space and later refuses mediation, that party will not be entitled to recover prevailing party attorney fees in any subsequent action. !tf I 1 Buyer agrees I i 1 Buyer does not agree f f Seller agrees I ] f Seller does not agree Buyer ro" 1 r 1 and Seller f l I 1 have read this page. CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means, including scanning or computerized' formats. Page 2 of 5 PROFESSIONAL - FORM 101 -LA.2 CAL (01 -2005) COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA © PUBLISHING Form generated by: True Forms' from REVEAL, ?J SYSTEMS. Inc. 800- 499 -9612 ' Property Address: .lQHNERT PARK LAND APN 045- 041 -018 —21 ACRES 9. DEFAULT- LIQUIDATED DAMAGES. A. If the escrow does not close on or before the date set forth in Item 13, or a later closing date mutually agreed to by the Seller and Buyer, within 15 days after closing date set forth in Item 13, or the extended closing date mutually agreed to by Seller and Buyer, Seller wll.l, except as provided in (B) below, order all of the moneys eremitted by Buyer under the terms of this contract to be refunded to Buyer. B. If Buyer fails to complete the purchase of the property because of a default by Buyer, Seller may,pursue any remedy in law or equity that it may have against Buyer on account of the default; provided, however, that by placing their initials here, Buyer [K - T i 1 and Seller [ 1 i 1 agree that: 1. $ 100-000.00 , an amount not to exceed the money deposited by Buyer under this contract will constitute liquidated damages payable to Seller if Buyer falls to complete the purchase of the property because of a default by Buyer. 2. The payment of such liquidated damages to Seller will constitute the exclusive remedy of Seller on account of any default by Buyer. 3. Liquidated damages will be payable to Seller out of Buyer's deposits toward purchase of the property according to the following procedures: a. The Seller wilt give written notice ('Seller's notice and demand'), in the manner prescribed by §116.340 of the Code of Civil Procedure for service in a small claims action, to escrow holder and to Buyer that Buyer is in default under this Agreement and that Seller is demanding that the escrow holder remit the aforesaid amount4r6m the deposits to Seller as liquidated damages unless, _within "twenty (20) days, Buyer gives the escrow holder Buyer's written objection to disbursement of said deposits as liquidated damages ('Buyer's objection'). b. Buyer will have °a period of 20 days from the date of receipt of Seller's notice and demand in which to give the escrow holder Buyer's objection. c. If Buyer fails to give the escrow holder Buyer's objection within 20 days from the date of receipt of Seller's notice and demand: (a) escrow holder will promptly remit the amount demanded to Seller; and (b) Seller is released from any obligation to sell the property to Buyer. d. If Buyer gives escrow holder Buyer's objection within 20 days from the date of:receipt of Seller's notice and demand, then the determination as to'whether Seller- s entitled to the disbursement of the deposits as liquidated damages, and every other cause of action that has arisen between Buyer and Seller, under this Agreement, will be settled byarbitration in accordance with. the provisions'.of Item 10; ARBITRATION OF DISPUTES, provided that both the Buyer and Seller have initialed the "agree" space in said,provision. If the arbitration clause is not initialed by both parties, any dispute will be resolved by mediation or appropriate court action. 10. ARBITRATION OF DISPUTES. Any dispute or claim in law or equity between Buyer and. Seller arising out of this Agreement will be decided by neutral binding arbitration in accordance with the Commercial Rules of the American Arbitration. Association, subject to the following: -(a) The parties will have the right to discovery in accordance with Code of Civil Procedure §1283.05; (b) Any fee to initiate the arbitration will be paid by the Seller, provided that the arbitration costs and fees, including any initiation fee, ultimately will be borne as determined by the arbitrator, (c) The venue of the arbitration proceeding will be in the county in which the property is located unless the parties agree to a different location; (d) The arbitrator will be appointed within 60 days of the administrator's receipt of a written request to arbitrate the dispute. in selecting the arbitrator, the provisions of Section 1297.121 of the Code of Civil Procedure will apply; (e) The arbitrator may be challenged for any of the grounds listed therein or in Section 1297.124; (f) The arbitrator will be authorized to provide all recognized remedies available in law•or equity for any cause of action that is the basis of the arbitration. (g) A judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties agree that the following procedure will govern the making of the award by the arbitrator: (i) a Tentative Award will be made, by the arbitrator within thirty (30) days following submission of the matter to the arbitrator; (ii) the Tentative Award will explain the factual and legal basis for the arbitrator's decision as to each of the principal controverted issues; (iii) the Tentative Award will be in Writing unless the parties agree otherwise; provided, however, that if the hearing is concluded within one (1) day, the Tentative Award maybe made orally at the hearing in the presence of the parties. Within 15 days after the Tentative Award has been served or announced, any party may serve objections to the Tentative Award. Upon objections being timely served, the arbitrator may call for additional evidence, oral or written argument, or both. If no objections are filed, the Tentative Award wilt become final without further action by the parties or arbitrator. Within thirty (30) days after the filing of objections, the arbitrator will either make the Tentative Award final or modify or correct the Tentative Award, which will then become final as modified or corrected. Buyer [ (2;-_' r 1 and Seller r 1 r 1 have read this page. CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means including scanning or computerized formats. Page 3 of 5 p PROFESSIONAL FORM 101 -LA.3 CAL (01 -2005) COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA i2 PUBLISHING Form generated by: True Forms- from REVEAL2SYSTEMS. Inc. 800 - 499 -9612 Property Address: OHNERT PARK LAND, APN 045 - 041 -018. _1 ACRES_ -- -• , - The following matters are excluded from arbitration: (a) a judicial or non judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage, or real property sales contract as defined in Civil Code §2985; lb) an unlawful detaineraction; (c) the filing or enforcement of a mechanic's lien; (d) any matter which is within the jurisdiction of a probate court, bankruptcy court, or small claims court; or (e) an action for bodily injury or wrongful death. The filing of a judicial action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, will not constitute a waiver of the right to arbitrate under this provision. NOTICE: By initialing in the "agree" space below you are agreeing to have any dispute arising out of the matters included in the "Arbitration of Disputes" provision decided by neutral arbitration as provided by California law and you are giving up any rights. you might possess to have the dispute litigated in a court or'jury trial. By initialing in the "agree" space below you are giving up your judicial rights to discovery and appeal, unless those rights. are specifically included in the "Arbitration of Disputes" provision. if you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under the authority of the California. Code of Civil Procedure. Your agreement to this arbitration provision is voluntary. We have read and understand the foregoing and agree to submit disputes arising out of the matters included In the "Arbitration of Disputes" provision to neutral arbitration. Cam) -i 1 Buyer agrees i 1 r 1 Buyer does not agree f i I Seller agrees Seller does not agree 11. ATTORNEY FEES. in any action, arbitration, or other proceeding involving a dispute between Buyer and Seller arising out of the execution of this Agreement or the sale, whether for tort or for breach of contract, and whether or not brought to trial or final judgment, the prevailing party will be entitled to receive from the other party a reasonable attorney fee, expert witness fees, and costs to be- °determ ined by the court or arbitrator(s). 12. ADDENDA. The following addenda are attached and made a part of this Agreement ,[,] Form 101- LA.11, ADDENDUM TO LAND PURCHASE AGREEMENT (Subordination, Partial Reconveyances) [] Form 110.90 -92 CAL, STANDARD DISCLOSURES AND DISCLAIMERS Form ,110 -27 CAL, NATURAL HAZARD DISCLOSURE E] OTHER: 13. CLOSING. Full purchase price to be, paid, deed to be recorded, and physical possession of the property to be delivered ❑ on or before . or X within 120 thin of acceptance. If the closing date falls on a Saturday,,.Sunday or holiday, the :close of escrow will be on the nextbusiness day:: Both parties will deposit with an authorized escrow holder; to be selected by Buyer, all funds and instruments necessary to complete the sale in accordance with the terms of this Agreement. ❑ Where customary, signed escrow :instructions will be delivered to escrow holder within days of acceptance. Escrow fee to be paid by.: 50m0e(o County /City Transfer Tax(es), :il any, to be paid by SELLER Unless the transaction is exempt, the escrow holder is instructed to remit the required tax withholding amount to the Franchise Tax Board from the proceeds of sale. THIS PURCHASE AGREEMENT 'TOGETHER WITH ANY ADDENDA WILL CONSTITUTE JOINT ESCROW INSTRUCTIONS TO THE ESCROW HOLDER. 14. SURVIVAL The omission from escrow instructions :of any provision i n this Agreement will not waive the right of any party. All represent- ations or warranties will survive the close of escrow. 15. EXPIRATION OF OFFER. This offer will expire unless acceptance is delivered to Buyer or to (Buyers Broker) on or before (date) JUNE 30:02005 , (time) _ ,[] a.m., ❑ p - m .. 16. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which is deemed to bean original. 17. TIME. Time is of the essence of this Agreement; provided, however, that if either party fails to comply with any contingency in this Agreement within the time limit specified, this Agreement will not terminate until the other party delivers written notice to the defaulting ., party requiring compliance within 24 'hours after receipt of notice. If the party receiving the notice fails to comply within the 24 hours, the non - defaulting party may terminate this Agreement without further notice. It is understood that nei ther the making of deposits nor the close of escrow is a contingency. 18. CONDITIONS SATISFIEDMAIVED IN WRITING. Each condition or contingency, covenant, approval or disapproval will be satisfied according to its terms or waived by written notice delivered to the other party or his or her Broker. 19. ENTIRE AGREEMENTIASSIGNMENT PROHIBITED. This document contains the entire agreement of the panties and supersedes all prior agreements with respect to the property which are not expressly set forth. This Agreement may be modified only in writing signed and dated by both parties. Buyer may not assign any right under this agreement without the prior written consent of Seller. Any such assignment will be void and unenforceable. 20. Buyer i 0"' 1 f and Seiler f 1 f 1 have read this page. CAUTION: The copyright laws of the United States forbid the unauthorized reproduction of this form by any means including scanning or computerized formats. Page 4 of 5 FORM 101 -LA.4 CAL (01. -2005) COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA PROFESSIONAL Pd PUBLISHING Form generated by: TrueForms- from REVEAL2 SYSTEMS, Inc. 800- 499 -9612 S Property Address: _OHNERT PARK. LAND , --.21 ACRES Both parties acknowledge that they have not relied on any statements of the real estate Agent or Broker which are not expressed in this Agreement_ LIMITATION OF AGENCY: A real estate broker or agent is qualified to advise on real estate. if you have any questions concerning the legal sufficiency, legal effect, insurance, or tax consequences of this document or the related transactions, consult with your attorney, accountant or insurance advisor. The undersigned Buyer acknowledges that he or she has thoroughly read and approved each of the provisions of this offer and agrees to purchase the property for the price and on the terms and conditions specified. Buyer acknowledges receipt of a copy of this Offer. Buyer .`- --�. ! . _ Date, Time gi��UL51, HORN MITIGATION Buyer Date Time Address ACCEPTANCE Seller accepts the foregoing Offer and agrees to sell the property for the price and on the terms and conditions specified. NOTICE: The amount or rate of real estate commissions is not fixed by law. They are set by each Broker individually and may be negotiable between the Seller and Broker. 21. COMMISSION. Seller agrees to pay in cash the following real estate commission for services rendered, which commission Seller hereby irrevocably assigns to Broker(s) from escrow: % of the accepted price, or , to the listing.Brokec NONE , and %'of theaccepted price; or $ ,jo the selling Broker NONE without regard to the agency relationship Escrow instructions with respect to commissions may not be am ended or revoked w ithoufthe written consent of the Btoker(s). if :Seller receives liquidated or other damages upon default by Buyer, Seller agrees to payBroker(s) the:lesser of the amount provided for above or one half of the damages after deducting any costs of collection, including reasonable attorney fees_ commission will also.be payable upon any default by Seller, or the mutual rescission by Buyer and Seller without the written consent of the Broker(s), which'prevents:completion ofthe purchase. This Agreement will not limit he rights of Brokermand Seller: provided <for in any existing listing agreement. In any action for commission the prevailing party will be entitled to reasonable''aftorney fees whether or not the action is brought to trial or final judgrnenI. 22. PROVISIONS TO BE INITIALED. The following items must be "agreed to" by both parties to be binding on either party. In the event of disagreement; Seller should make a counter offer. Item 8. MEDIATION OF DISPUTES Item 9, LIQUIDATED DAMAGES Item 1Q. ARBITRATION OF DISPUTES Seller acknowledges receipt: of a copy of this Agreement. Authorization is hereby given the Broker(s) in this transaction to deliver a signed copy to Buyer and to disclose the terms of purchase to members of a Multiple Listing Service, Board or Association of REALTORS® at close of escrow. 23. iF CHECKED ❑ ACCEPTANCE IS SUBJECT TO ATTACHED COUNTER OFFER DATED Seller (Signature) , CITY OF ROHNERT PARK Please Print N.. _..._. -. ( ame) Seller (Signature) Date . Time Date Address (Please Print Name) Time - Rev: py Date CAUTION: The copyright taws of the United States forbid the unauthorized reproduction of this form by any means including sc anning or computerized formats. Page 5 of 5 PROFESSIONAL FORM 101 -LA.5 CAL (01- 2005)- COPYRIGHT BY PROFESSIONAL PUBLISHING, NOVATO, CA PUBLISHING Form generated by: True Forms'" from REVEAL 2J SYSTEMS, Inc. 800- 499 -9612 Exhibit , Easement Agreement OAK #4827 - 1888 -3849 v4 i -: RESOLUTION NO. 2006-273 i A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE i EASEMENT AGREEMENT WITH HORN AVENUE LLC' APN 045- 041 -018 (END OF HEATHER LANE) WHEREAS, the City Council approved and authorized -the sale of City property known as Assessor Parcel Number 045 -041 -018 by adopting Resolution No. 2Q05 -331; WHEREAS, the buyer, Hom Avenue LLC, of the subject property requests; ingress and egress access rights over a City parcel known as Parcel "F" as shown on the Map of Coleman Valley Subdivision No. 1, recorded in Book'26 -8 of Maps, at pages 12 through 15, lying at the westerly end of Heather Lane. NOW, THEREFORE, BE IT RESOLVED by the, Council of the City of Rohnert Park that it does hereby authorize and approve execution of an-Easement Agreement. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute an Easement Agreement in substantially similar form to the attached agreement fore and on behalf of the City of Rohuert Park: BE IT FURTHER RESOLVED that the City "Clerk is authorized to record with the Sonoma: County Recorders office, the Easement Agreement against the City property. DULY AND REGULARLY ADOPTED this 28th day of November -20 O) . BREEZE: AYE FLORES: AYE MACKENZIE: AYE VIDAK- MARTINEZ: ABSENT SMITH: AYE AYES: (4) NOES: (0) ABSENT: (1) ABSTAIN: (a) • JH -5:05 d Recorded at the Rcquesi of- City ofRohnen Park 6750 Commerce Blvd Rohnert Park, CA 94928 Attention. City Clerk GRANT OF EASEMENT AGREEMENT This Grant of Easement Agreement (" Agreement") entered into this day of November, 2006, by and between the City of Rohnert Park ( "City"), as grantor, and Horn Avenue LLC, a California limited -liability company ( "Horn'), as grantee, and is made with reference to the following. RECITALS A_ The City Council ofthe City of Rohnert Park ("City Council ") adopted Resolution 2005 -331, approving•the sale of an 1811 Acre City -owned Surplus Property located immediately North of the Rohnert Park City Limits, South of Horn Avenue, West of Heather R; Lane and Hermosa Court, and East of the Banks of the Bellevue Wilfred Flood- Control Channe1 ( "Property ")'_ 1p B. Horn intends to de relop the Property as a Wetland Mitigation -Bank. 'C. Horn has requested access to. the Property over a separate City parcel located at the end of Heather Lane ( "Burdened Property"). D. The City Council adopted Resolution on November 28, 2006 approving' grant of Easement as set forth in this Agreement -' x NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, the �4^ parties agree as follows: 4 1. Grant of Easement. Subject to the provisions ofthis Agreement, City hereby grants to Hom a non - exclusive easement for above - ground access, ingress and egress to the Property ('Basement" ), in and over the Easement Area (defined below).' 2_ Limitation on Use.. Horn' acknowledges that the Easement granted herein is nonexclusive., Horn agrees that the use of the Easement granted herein (a) is Iimited to Wetland Uses (defined below), and (b) shall not interfere with the use or enjoyment of the - Burdened Property. The Easement Area may be used by Horn and Horn's employees, agents, a representatives, affiliates, contractors, subcontractors, or other authorized parties ( "Horn's Representatives ") only for purposes set forth in this Agreement. .i 3. Easement Area. The "Easement Area" is approximately 200 square feet (20) feet wide and extends across the Burdened Property generally west of and adjacent to the west end of Heather Lane, as more specifically described in Exhibit A attached hereto and ac incorporated by reference. Horn agrees that City, in its sole discretion, may relocate the Easement Area by written notice to Horn, and that Horn shall cooperate with City in executing and recording any necessary quitclaims, easements, and other documents in connection therewith. 4. Term. The term of this Agreement shall commence on the date of recordation hereof ( "Effective Date ") and continue for so long as the Property is (a) held as Wetland Mitigation Bank, (b) subject to Diverse Agricultural County Zoning, and (c) remains subject to the "Landscape and Scenic Parcel" designation per the Map of Coleman Valley Subdivision No. I referenced in Exhibit A hereto. The foregoing are collectively referred to as "Wetland Uses." Notwithstanding the foregoing, in the event that the Property, for any reason is no longer subject to Wetland Uses, in the event this Easement is surrendered, or in the =event of a default as described in Agreement section 1.3, this Agreement and the Easement shall terminate (" Termination")_ Horn shall, upon City's request, cause . to be executed, acknowledged. and delivered on behalf of Horn to the City, a quitclaim deed in recordable form as evidence of such Termination: 5. Additions and Alterations.`No additions or improvements to, or alterations of, the Easement Area shall be made without the prior written consent of the City." Before the commencement of any work on the Easement Area, Horn shall, at Horn's cost and expense, obtain any and all: necessary` approvals and permits <froru applicable governmental,agencies and authorities and promptly provide copies of such permits and approvals to City. Upon Termination, then; to the extent directed by the:City, Horn shall remove all alterations, additions, betterments and improvements ,made; <or installed,`and restore the Easement Area:. to the same, oras,.good condition as existed on the Effective Date, reasonabWw- ear and tear excepted. ; 6. Condition of the Easement .Ar'ea_ The Easement Area is in an "as'&' condition. The City makes no representation to Horn and shall assume no responsibility as to the usability of the Easement Area at any time. 7. Maintenance. Hom shall maintain, repair and replace, at Horn's cost and expense, the Easement -Area, including any and all improvements therein, until Termination. .C4hereby grants to Horn the right to enter. the Burdened Property from- tinge to time (upon written advance notice to the City) to perform such maintenance, repair and replacement obligations. 8. Prohibition Against Transfers. Horn shall not assign, sublicense, hypothecate, or transfer the Easement or this Agreement or any interest therein directly or indirectly, by operation of law or otherwise, except in connection with the sale of the Property. In case of sale of the Property, this Agreement shall be deemed assigned to the Purchaser thereof, who will be deemed to have accepted the terms hereof. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Horn , or o -f the interest of any general partrier or joint venturer or syndicate member or cotenant if Horn is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Horn, shall be construed as an assignment of this Agreement. Control means fifty percent (501/o) or more of the voting (or similar) power of the entity, -2- 9. Hold Harmless. Horn shall indemnify, defend, and bold harmless the City, its City Council, Boards and Commissions, officers, agents, servants and employees against any and all loss, damages, liability, claims, suits, costs, and expenses, including reasonable attorneys' fees, in any manner connected to (a) this Agreement or any use of the Easement Area by Horn; (b) Horn's negligent performance of services or work conducted or performed pursuant to this Agreement or otherwise, on the Easement Area; (c) the furnishing or supplying of work, services, materials, equipment or supplies arising from Horn's negligent performance of services or work conducted or performed pursuant to this Agreement; and (d) the existence of hazardous substances or hazardous waste released by Ham or Horn's Representatives. Horn's obligation to indemnify Cit' y under this Section 9 shall not apply to the extent any such claims or damages are caused by the sole or active negligence or willful misconduct of City Parties. The provisions of this Section 9 shall survive the Termination. JO.- Insurance. Horn shall be liable for any loss of, or damage to, the Easement Area incurred as a result of its use and shall make such restoration or repair, or monetary compensation aimay be directed by the City. All insurance required of Horn shall be for the protection of the City and Horn against their respective risks and liabilities' in connection with the Easement Arm Th' e endorsement provided to City shall name the City of I�ohriert Park as an additional: insured under general and automotive insurance coverages required by Agreement. A. certificate of insurance or a certified'oppy of each.poli cy of insurance provided to. satisfy.the requirements of this Agreement shall be deposited with City prior'to the use of the Easement Arm. Horn agrees that not less than thirty.(30) days prior to the expiration of any insurance<required by this Agreement, it will deliverto the City a certificate of insurance or a certified copy of each renewal policy to cover the same ri sks. IL C iance'Witb All Laws. Horn shall, at all times during the term of this Agreement and any use of the Eas ement Area, observe and comply with-the provisions of all applicable federal, staff., and local laws, Teguktions, and standards, with respect to its occupancy and use of the Easement Area. Hom covenants that it will hot-improperly generate, use:or -store hazardous substances or hazardous waste on or about the Burdened Property. or the•Easerncnt Area. Horn shall promptly notify the City and supply copies of any notices, reports, correspondence, and submissions made by Horn to any Governmental Authority, or received by.Horn. from said authority, concerning environmental matters or bazafdous substances or hazardous waste on or about the Burdened Property, the Easement A±ea,,or pertaining thereto. 12. Default. Each of the following events shall be a default by Hom and a breach of this Agreement: A. Abandonment or sui-render of the Property; B. Failbre or refusal to pay when due any maintenance, orrepair cost as required by this Agreement; C. Failure to perform as required or conditioned, by any other covenant or condition of this Agreement; -3- 11 D. Discontinuation of the Wetland Uses or anymore intense use of the Property than expressly permitted under the present Sonoma County Zoning of Diverse Agricultural or Wetland Mitigation Bank purposes; E. The subjection of any right or interest of Horn to attachment, execution, or other levy, or to seizure under legal proceedings, if not released within thirty days; or F. The appointment of a receiver to take possession of the Property.or improvements including, but not limited to assignment for the benefit of creditors or voluntary or involuntary bankruptcy proceedings; As a precondition to pursuing any remedy for an alleged default by Horn, City shall give written notice of default to Horn specifying the alleged event of default and the intended remedy. 13.` Waiver. A waiver of the City. of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or' any other term,, covenant, or. condition herein, whether of the same or a different character. 14. Integrated - Contract. This Agreement represents the full and complete understanding of-every kind or nature. whatsoever between the parties hereto, and -preliminary negotiations and agreement ofwhatsoever kind or'nature are.merged'herein. No verbal agreement or implied covenant shall . be held to vary the provisions Hereof Any modification of this Agreement will be effective only by written execution.by both the City. and, Horn. 15. Miscellaneous. This Agreement is made and entered into in the State of California and shall be interpreted, construed and enforced in accordance with the laws ofthe Stafe of California without.reference to:its choice of laws rules_ If anyprovson of this, Agreement:is 1. declared invalid or is unenforceable for any reason, that provision shall be deleted from the document and shall not invalidate any other provision contained in the Agreement.• .The word "including" shall be construed as if followed by the words "without limitation_" This Agreement shall be 'interpreted as though prepared Jointly by both parties. Nothing contained herein nor any -acts of the parties hereto shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal `and agent or of partnership or of joint venture by the parties Hereto or any relationship other than the relationship of grantor and grantee. Nothing herein is intended to create any third party benefit .... Each individual or entity, executing this Agreement on behalf of Horn represents and warrants that he or she or it is duly authorized to execute and- deliver this Agreement on'behalfofHom and that such execution is binding upon Horn. In the event that any action is brought by either party hereto as against the other party hereto for the enforcement or declaration of any right or remedy in or under the Agreement or for the breach of any covenant or condition thereof, the prevailing party shall be entitled to recover, and the other party agrees to pay, alI- fees., and costs to tie fixed by the court therein including, but not limited to, attorneys' fees. -4- i' 4X. J3 �7 ?3 :o •z i� i �j Ai !l: �f r,, 7: Icy. • d'. 5 1: . 959275v� 8007 & /2 : :t 3t, 's a� IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on > the day and year first above written. GRANTIrE GRANTOR, r� HORN AVENUE LLC, a California CITY OF ROHNERT PARK' Limited Liability Company Name:: -. _. Stephen R. Donley its: City Manager st ? Per Reso_ No. 2005 -273 adopted by the +: City Council on November 2$, 2005 �: APPROVED BY.` x By; is Ca ty C erg Gabrielle P. Whelan Assistant City.Attoiney x i' 4X. J3 �7 ?3 :o •z i� i �j Ai !l: �f r,, 7: Icy. • d'. 5 1: . 959275v� 8007 & /2 : :t Exhibit. C Quitclaim Deed OAK 44827 - 1888 -3849 v4 RECORDING REQUESTED BYAND WHEN RECORDED RETURN TO: City of Rohnert Park City Hall 130 Avram Avenue Rohnert Park, CA 94928 Attention: City Clerk Assessment Parcel Nos: 045- 041 -018 160- 090 -062 Space above reserved for recorder's use only. Exempt from recording fees pursuant to Government Code section 27383. Exempt from documentary transfer tax pursuant to Revenue and Taxation Code section 11922 because this deed quitclaims property interests to a political subdivision of the State of California QUITCLAIM DEED FOR GOOD AND VALUABLE CONSIDERATION, RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Charles C. Traboulsi, a single man dba Horn Mitigation Bank and Horn Avenue LLC, a California limited liability company (jointly and severally, "Traboulsi ") as Grantor hereby quitclaims to the City of Rohnert Park, a California .municipal corporation ( "City ") as Grantee any right, title or interest which Traboulsi may have in and to the certain real property in the County of Sonoma, State of California, as described in Exhibits A -1 and A -2, attached hereto and made a part hereof. Date: ` t OAK #4827 - 1888 -3849 v4 rlqF GRANTOR/TRABOULSI: CHARLES C. TRABOULSI, a single man, dba HORN MITIGATION BANK By: Name:- (�M7C�ABc►�LS 1 Its: Ar, auT HORN AVENUE LLC, a California limited liability company Its: r, EXHIBIT A -1 TO QUITCLAIM DEED LEGAL DESCRIPTION OF THE PROPERTY OAK 44827 -1888 -3849 v4 LEGAL DESCRIPTION The Iand referred to herein is situated in the State of California, County of Sonoma, Unincorporated Area, and described as follows: Parcel One: Being a portion of Rancho Cotati in Township 6 North, Range 8 West, M.D.M., and more particularly described as follows: Beginning at an iron pin in the South line of Lot 13, Subdivision No. 8 of Rancho Cotati, recorded in Sonoma County Records of Maps in Book 11, Page 6; Book 30, Page 8, and Book 36, Page 33, which is South 89° 50' West 9.8 feet from the Southeast corner of said Lot 13; thence from said point of beginning, South 0° 17' East, 980 feet to the center of a 40 foot road; thence along the center of said road, South 89° 50' West, 562.2 feet to the center of a ditch; thence along the center of said ditch North 33° 59' West, 1178.0 feet, to the South line of said aforementioned Subdivision No. 8; thence along the South line of said aforementioned Subdivision No. 8, North 89° 50' East, 1215.8 feet to the point of beginning. Excepting therefrom the following described parcel of land. Beginning at the Northeasterly corner of the above referred to real property of Grantor; thence along the Easterly boundary of said real property, South 0 05' 02" West, .26.00 feet; thence along a line parallel to and 26.00 feet Southerly of the Northern boundary of said real property North 890 54' S8" 584.58 feet, thence SouthV 05'.02" West 15.00 feet, thence North 89° 54' 58" West 50.00 feet;'thence North 0° 05' 02" East 15.00 feet; thence North 89.° 54 "58" West 514.60 feet thence,South,330 36'`58" East, 1122.65 feet to the Southern boundary of said real property of Grantor; thence along:said Southem boundary North 89 °'54' 58" '49.2 West,8 feet to the Southwestern comer of said real property of Grantor; thence along the Southwesterly boundary North 330 36' 58" West; 1,153.90 feet to the Northwestern corner of said real property of Grantor; thence along the Northern boundary South 89° 54' 58" East, 1,215:80 feet to the point of beginning. Parcel Two A right of way only over, upon and along the Westerly twenty (20) feet of Lot 14 as shown upon the map entitled, Resubdivision of Lots 9 to 24 inclusive as shown on "Amended Map of Subdivision No. 8, Rancho Cotati," etc., filed in the office of the County Recorder of Sonoma County of May 17, 1920 in Book 36 of Maps, Page 33, for the purpose of ingress to and egress from the parcel of land above described. Parcel Three: A permanent easement for roadway and access purposes over a strip of land of the uniform width of 50.00 feet, the Easterly line of said easement strip being parallel to and 584.58 feet Westerly of the Easterly boundary of that certain parcel of land conveyed to the Sonoma County Water Agency, a body corporate and politic, recorded February 15, 1970 in Book 2444 of Official Records, Page 958, Recorder's Serial No. L- 52377, Sonoma County Records. APN: 045-041-018-000 (End of Legal Description) File Number nb 135278 Page 3 of 7 EXHIBIT A -2 TO QUITCLAIM DEED LEGAL DESCRIPTION OF THE EASEMENT AREA OAK #4827 - 1888 -3849 A EXHIBIT "A" .Parcel_ our Being a 20 -foot wide easement for vehicular ingress & egress for the benefit of A.P. No. 045- 041 -018, over the lands of the City of Rohnert Park, shown as Parcel "F" on the Map of Coleman Valley Subdivision No. 1, recorded in Book 268 of Maps, at pages 12 through 15, the centerline of which is more particularly described as follows: Commencing at the most westerly end of the centerline of Heather Lane as shown on the Map of Coleman Valley Subdivision No. 1, recorded in Book 268 of Maps, at pages 12 through 15,.said westerly end lying North 79° 28' 13" West, 3 9.7 5 feet from the most westerly monument marking the centerline of Heather Lane as shown on said Map, Thence along the prolongation of the centerline of Heather Lane North 79° 28' 15" West, 21.50 feet to a point on the westerly end of Heather Lane, said point being the Point of Beginning of the herein described easement, Thence from the said Point of Beginning continuing along the prolongation of the centerline of Heather Lane North 79 28' 13" West, to the lands of City of Rohnert Park described in Deed recorded as document number 2004161026 of official records, in Sonoma County Recorders office. End (portion,of 160- 090 -062) OAK #4824 - 2609 -2041 v1 Exhibit D Cancellation Instructions OAK #4827- 1888 -3849 v4 $ Stewart Title of California, Inc. 1101 College Avenue, Suite 100 Slfte if callfomla, IFIIZ: Santa Rosa, CA 95404 (707) 526 -2000 Phone (707)526 -4782 Fax Date June 30, 2011 Escrow Officer Patti Billing Escrow Number 0135278 Property Address r 045 - 041 -018 -000 Rohnert Park, California CANCELLATION INSTRUCTIONS NORTH BAY TITLE COMPANY IS LICENSED BY THE STATE OF CALIFORNIA UNDER THE DEPARTMENT OF INSURANCE LICENSE NO. 301 Escrow Holder is hereby authorized and directed to cancel the above numbered escrow upon mutual execution of these instructions by the undersigned. Escrow Holder is relieved of any liability for the failure of this escrow to close and complying with these instructions. Upon cancellation, Escrow Holder is instructed to void all documents prepared in connection with this transaction, and funds on deposit, if any, shall be disbursed as follows: Escrow Holder acknowledges receipt of, and shall comply with the instructions contained in, the Settlement Agreement between Buyer and Seller dated 2011. Except as otherwise provided therein, Escrow Holder has the absolute right at its sole discretion: (1) upon receipt of conflicting instructions or in the absence of executed instructions, to take no further action until otherwise directed and/or (2) to file an action in interpleader requiring the parties to answer and litigate their several claims and rights among themselves. In that event the Escrow Holder will then deposit, with the clerk of the court, all documents and funds held in this escrow. If such action is filed, the parties will jointly and severally pav Escrow Holder termination charges and costs, if any, and all attorneys' fees expended or incurred in the interpleader action. The amount thereof shall be fixed and judgment therefore shal l be rendered by the court. Upon the filins of such action, Escrow Holder shall be fully released and discharged from all obligations to further perform as imposed by these and any previous instructions. By signature herein all parties acknowledge receipt of a copy of these instructions. The parties agree that these instructions may be executed in counterparts, each of which shall be deemed an original, and said counterparts shall together constitute one and the same agreement, binding all of the parties hereto, notwithstanding all of the parties are not signatory to the original or the same counterparts. ESCROW HOLDER: Stewart Title of Californ ia, [ne BUYER(S): TRABOULSI: CHARLES C. TRABOULSI, a single marl, dba HORN MITIGATION BANK By:. ' Its: (-, N C' OAK #4850- 7984 -2057 vT Page I of 2 HORN AVENUE LLC, a California limited liability company By -. Name'.: Gt1Yt14 -t�S G• —7"1�' � Its:....... SELLER(S): CITY OF ROHNERT PARK By:. _. Name:. - Its: City Manager OAK 94850- 7984 -2057 v] Page 2 of 2 PFAME, NCE ,Deed ("Quitc-laira No.- of C$Uao, Tp recordation . .1. 1 201 nsents': offsaid Qu CITY: 'DOW,, CITY OF ROHNERT PARK By: Its Mum ':0 7-4 8 4m4q-v4-,.