2007/02/27 City Council Resolution 2007-28RESOLUTION NO. 2007 -28
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AUTHORIZING AND APPROVING THE SALE OF CITY OWNED PROPERTY AT
1350 OAKVIEW CIRCLE, ASSESSOR PARCEL NOS. 159-460-025,-026 AND -027
TO KSL OAK VIEW, LLC OR ITS AFFILIATE
WHEREAS, in 1998 the City of Rohnert Park ( "City ") entered in a 45 -year Ground
Lease Agreement ( "Agreement ") with KSL Rohnert Park LP (subsequently assigned to its
affiliate, KSL Oak View, LLC ( "KSL "), for the City owned property at 1350 Oakview Circle,
Assessor Parcel Nos. 159 -460 -025, -026 and -027 ( "City Property "); and
WHEREAS, the, Agreement provides KSL with an Option to Purchase the City Property
which may be exercised by delivery of written notice to the City; and
WHEREAS, on Many 19, 2006, KSL provided, in writing, a notice of its desire to
formally initiate discussions regarding the Option to Purchase the City Property; and
WHEREAS, On July 27, 2006, the Planning Commission approved Resolution No.
2006 -40 making a finding of General Plan conformity for the sale of the City Property; and
WHEREAS, on August 14, 2006, staff sent out the notice of surplus property in
accordance with Government Code Section 54222; and
WHEREAS, the Second Amendment to the Agreement provides that the purchase price
shall not be less than $3,063,352; and
WHEREAS, the Agreement further provides that the City and KSL shall attempt in good
faith to agree upon the land value; toward this effort, the City and KSL, contracted with the
Crocker Company to prepare an appraisal of the City Property in accordance with the
specifications outlined in the Agreement which valued the City Property at $3,200,000; and
WHEREAS, in September of 2004, the City paid $120,097 for a sewer line on the City
Property and City staff and KSL have agreed that the cost for the sewer line should be added to
the $3,200,000 appraised value for a total sales price of $3,320,097;
NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of Rohnert
Park approves the sale, and directs the City Manager to open escrow and prepare the necessary
documents, including the Purchase Agreement with any necessary minor changes, for the
Mayor's signature for the sale of parcel one at 1350 Oakview Circle (APN 159- 460 -025) to KSL
Oak View, LLC, for a sales price of $2,290,097 and the sale of parcels two and three at 1350
Oakview Circle (APN 159- 460 -026 and -027) to KSL Oak View, LLC, or its affiliate for a sales
price of $1,030,000.
DULY AND REGULARLY ADOPTED this 27'x' day of February, 2007.
ATTEST:
ty Clerk
CITY OF ROHNERT PARK
Mayor
BREEZE: ABSENT MACKENZIE: AYE SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: AYE
AYES: (4) NOES: (o) ABSENT: (1) ABSTAIN: (o)
(2)
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
This Agreement of Purchase and Sale and Joint Escrow Instructions (this
"Agreement "), dated as of ( "Effective Date "), is between the City of Rohnert
Park, a municipal corporation ( "Seller "), and a
[KSL Oak View, LLC, a Delaware limited liability company or any
other of its affiliated entities] ( "Buffer ").
ARTICLE I
PURCHASE AND SALE OF PROPERTY
Section 1.1 Sale.
Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, on the terms
and conditions set forth herein, that certain real property located at 1350 Oakview Circle
(Assessor Parcel Nos. 159- 460 -025, -026 and -027), Rohnert Park, California, including any
and all rights, privileges and easements appurtenant thereto owned by Seller, which real
property is more particularly described in Exhibit A attached hereto and made a part hereof
( "Real Property "), together with all of Seller's interest in the sewer line and that certain
Amended and Restated Ground Lease effective as of December 31, 2001, by and between
KSL Rohnert Park, LP, a California limited partnership ( "KSLRP ") and Seller (as
"Landlord "), that certain Memorandum of Amended and Restated Ground Lease dated as of
December 31, 2001, which was recorded in the Official Records of the County of Sonoma on
December 28, 2001 as Instrument No. 200180030, that certain First Amendment to Amended
and Restated Ground Lease effective as of December 31, 2001, that certain Memorandum of
Amended and Restated Ground Lease with respect to the First Amendment dated as of
December 31, 2001, which was recorded in the Official Records of the County of Sonoma on
December 28, 2001 as Instrument No. 200180030, that certain Second Amendment to
Amended and Restated Ground Lease effective as of August 31, 2002, that certain
Memorandum of Amended and Restated Ground Lease with respect to the Second
Amendment dated as of August 31, 2002, which was recorded in the Official Records of the
County of Sonoma on August 5, 2003 as Instrument No. 2003161512, that certain Third
Amendment to Amended and Restated Ground Lease effective as of July 22, 2003, a
Memorandum of Amended and Restated Ground Lease with respect to the Third Amendment
dated as of July 22, 2003, which was recorded in the Official Records of the County of
Sonoma on December 3, 2003 as Instrument No. 2003248853, and that certain Assignment
and Assumption of Ground Lease dated as of December 3, 2003, which was recorded in the
Official Records of the County of Sonoma on December 3, 2003 as Instrument No.
2003248859 by and between KSLRP and Buyer (as "Tenant ") (collectively, as amended and
assigned, the "Lease "). The Real Property and the Lease are collectively referred to herein as
the "Property." Any buildings, structures or other improvements located on the Real
Property (collectively, "Improvements "), personal property located on the Real Property
(whether or not used in cormection with the Real Property), and any other items not expressly
included in the foregoing definition of Property are hereby expressly excluded from such
purchase and sale transaction.
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Section 1.2 Purchase Price.
(a) The purchase price of the Property is Three Million Three Hundred
Twenty Thousand Ninety -Seven Dollars ($3,320,097) ( "Purchase Price ").
(b) The Purchase Price shall be paid to Seller all in cash at Closing
(defined below).
ARTICLE II
CONDITIONS
Section 2.1 Conditions Precedent.
Buyer's obligation to purchase the Property is conditioned upon the following:
(a) All of the representations and warranties made by Seller to Buyer
pursuant to this Agreement shall be true and correct in all material respects as of the Closing
Date, as if made on such date.
(b) There shall have been no (1) casualty loss which gives Tenant the right
to terminate the Lease pursuant to Lease Section XI1.2, or (ii) taking or pending taking (i.e. a
resolution of necessity has been duly adopted authorizing such taking) of the Property under
the power of eminent domain (or a conveyance in lieu of such taking) which terminates the
Lease or gives Tenant the right to terminate the Lease.
(c) Seller shall have delivered each of the documents described in
Section 8.3(a), prior to the Closing Date.
(d) Seller has notified the owner of the adjacent property to the west of the
Property that all vehicles, trailers and other personal property which are currently located on
the Property must be removed and will chain the asphalt area to prevent parking there.
(e) Buyer shall have reviewed and approved the condition of title to the
Property pursuant to Article IV, and Seller shall be in a position to fulfill the covenants
concerning title set forth in Article IV, and the Title Company shall be in a position to deliver
the Title Policy, defined below.
The conditions precedent set forth in this Section 2.1 are solely for the benefit of
Buyer and may be waived only by Buyer. Buyer shall, at all times prior to the termination of
this Agreement, have the right to waive any of these conditions. Any such waiver shall not
affect Buyer's ability to pursue any remedy it may have with respect to any breach hereunder
by Seller.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES, AND
BUYER'S EXAMINATION
Section 3.1 Representations and Warranties of Seller.
Seller hereby makes the following representations and warranties.
(a) Seller has not (1) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any
involuntary petition by Seller's creditors, (iii) suffered the appointment of a receiver to take
possession of all, or substantially all; of Seller's assets, (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Seller's assets, (v) admitted in writing its
inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or
composition to its creditors generally.
(b) Seller is not a "foreign person" as defined in Section 1445 of the
Internal Revenue Code of 1986, as amended ( "Code ") and any related regulations.
(c) Neither the execution and delivery of this Agreement and the
documents and instruments referenced herein, nor the occurrence of the obligations set forth
herein, nor the consummation of the purchase and sale transaction contemplated herein, nor
compliance with the terms of this Agreement and the documents and instruments referenced
herein conflict with or result in the breach of any terms, conditions or provisions of, or
constitute a default under, any bond, note, or other evidence of indebtedness or any contract,
indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreement or
instrument to which Seller is a party or affecting the Property.
(d) Seller is duly formed, validly existing and in good standing under the
laws of the State of California and has the power and authority to enter into this Agreement
and to perform its obligations hereunder. This Agreement shall be considered duly
authorized, executed and delivered by and binding on Seller only after necessary approval of
the City Council of the City of Rohnert Park ( "City Council ") is obtained in accordance with
Applicable Laws.
(e) Other than the Lease and an alleged oral license for a parking area,
there are no agreements with any tenant or occupant of the Property or giving any other party
a right to occupy or use the Property or any portion thereof. With respect to the Lease, the
following information is true and correct: (1) the Lease is in full force and effect and has not
been modified, amended, or altered; (ii) Tenant is required to pay all sums and perform all
obligations as set forth in the Lease; (iii) all obligations of the landlord under the Lease
which have accrued prior to the Closing will be performed by Seller, and Tenant has not
asserted or has any defense to, offsets or claims against, rent payable by it or the performance
of its other obligations under its Lease; (iv) Seller, as the landlord under the Lease, has no
outstanding obligation to provide Tenant with an allowance to construct, or to construct at its
own expense, any tenant improvements; (v) Tenant is not in default under, or in arrears in the
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payment of any sums or in the performance of any obligation required of it under the Lease,
and Seller has no reason to believe that Tenant is unable or unwilling to perform any or all of
its obligations under the Lease, whether for financial or legal reasons or otherwise;
(vi) Tenant has not prepaid any rent or other charges more than thirty (30) days prior to the
date due; and (vii) Seller has not applied any security deposit to rent or other charges due
from Tenant.
(f) Seller has made available to Buyer the City files pertaining to 1350
Oakview Circle and the Kisco Medical Center.
(g) Other than the alleged oral license, no portion of the Property is
subject to any service, maintenance, construction, management or other contract or other
documents or agreements entered into by Seller other than the Permitted Exceptions.
(h) Seller has not granted any person, firm or entity any right to acquire or
lease all or any part of the Property, other than the rights of the Tenant under the Lease.
(i) There is no pending or, to Seller's actual knowledge, threatened
proceedings in eminent domain which would affect the Property or any portion thereof.
(j) There is no litigation, action, suit, arbitration, claims proceeding or
governmental investigation in law or equity pending or, to Seller's actual knowledge,
threatened, with respect to the Property or against Seller which would prevent Seller from
performing its obligations hereunder.
(k) Seller has received no written notice from any governmental authority
and Seller has no knowledge that the present use and operation of the Property is in violation
of any applicable local, state, or federal ordinance, statute, rule, regulation or law (including
(i) the Americans with Disabilities Act ( "ADA "), Title 24 of the California Administrative
Code, and other similar federal, state and local laws, (ii) building codes, zoning ordinances
and any other laws relating to the use, ownership, construction or design of the improvements
on the Property, including fire, safety, handicapped access, or seismic design, and /or (iii) any
Environmental Laws (as defined below). The foregoing are collectively referred to herein as
"Applicable Laws."
(1) The Real Property is subject to the Lease, which is a ground lease.
Seller shall keep the Lease in full force and effect and shall perform all obligations to be
performed by Seller as Landlord under the Lease until Closing. At Buyer's election, the
Lease will terminate at Closing pursuant to Section XVI.2(f) of the Lease.
Each of the representations and warranties of Seller contained in this Section 3.1:
(1) is true as of the Effective Date, and (2) shall be deemed remade by Seller, and shall be
true in all material respects as of the date of Closing.
Section 3.2 Survival of Representations and Warranties.
The representations and warranties of Seller and Buyer contained herein shall survive
for a period of twelve (12) months after the Closing ( "Survival Period "). Any claim which
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Buyer or Seller may have at any time against the other for a breach of any such
representation or warranty, whether known or unknown, which is not asserted by written
notice to the other within two months following the expiration of the Survival Period, and as
to which a legal action has not been filed within five months following the Survival Period,
shall be deemed waived, unless otherwise agreed in writing by the parties.
Section 3.3 Seller's Knowledge.
For purposes of this Agreement and any document delivered at Closing, whenever the
phrase "knowledge" of Seller or words of similar import are used, they shall be deemed to
refer- to the actual knowledge of Stephen Donley, City Manager, and not any implied,
imputed or constructive knowledge persons or entities other than the aforenamed person or of
information contained in Seller's files.
Section 3.4 Representations and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:
(a) This Agreement and all documents executed by Buyer which are to be
delivered to Seller at Closing do not and at the time of Closing will not violate any provision
of any agreement or judicial order to which Buyer is a party or to which Buyer is subject.
(b) Buyer has not (i) made a general assignment for the benefit of
creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any
involuntary petition by Buyer's creditors, (iii) suffered the appointment of a receiver to take
possession of all, or substantially all, of Buyer's assets, (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of Buyer's assets, (v) admitted in writing its
inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or
composition to its creditors generally.
(c) Buyer is duly formed, validly existing and in good standing under the
laws of the State of California. Buyer has duly authorized, executed and delivered this
Agreement.
Each of the representations and warranties of Buyer contained in this Section 3.4: (1)
is true as of the Effective Date, and (2) shall be deemed remade by Buyer as of the date of
Closing.
Section 3.5 Buyer's Independent Investigation.
(a) Buyer acknowledges, agrees, represents, and warrants that, before
electing to enter into this Agreement and before and after the Effective Date, it has been
given a full opportunity to obtain, review, inspect and investigate each and every aspect of
the Property, either independently or through agents of Buyer's choosing, including the
following:
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(1) The size and dimensions of the Property.
-5-
(2) The availability and adequacy of water, sewage, fire protection,
and any utilities serving the Property.
(3) All matters relating to title including extent and conditions of title
to the Property, taxes, assessments, and liens.
(4) All legal and governmental laws, statutes, rules, regulations,
ordinances, limitations on title, restrictions or requirements concerning the Property
including zoning, use permit requirements and building codes.
(5) Natural hazards, including flood plain issues, currently or
potentially concerning or affecting the Property.
(6) The physical, legal, economic and environmental condition and
aspects of the Property, and all other matters concerning the conditions, use or sale of the
Property, including any permits, licenses, agreements, and liens, zoning reports, engineers'
reports and studies and similar information relating to the Property. Such examination of the
condition of the Property has included examinations for the presence or absence of
Hazardous Materials, as defined below, as Buyer deemed necessary or desirable.
The term "Hazardous Materials" means any and all substances,
contaminants, chemicals, wastes, sewage, materials or emissions which are now or hereafter
regulated, controlled, prohibited or otherwise affected by any present or future local, state or
federal statute, ordinance, code, rule, regulation, order, decree, permit or other law now or
hereafter in effect including: (a) any substance defined as a "hazardous substance,"
"hazardous material," "hazardous waste," "toxic substance," or "air pollutant" in (i) the
Comprehensive Environmental Response, Compensation and Liability Act, as amended
( "CERCLA "), 42 U.S.C. § 9601, et seq., (ii) the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. § 1801, et seq., (iii) the Resource Conservation and Recovery Act, as
amended ( "RCRA "), 42 U.S.C. § 6901, et seq., (iv) the Federal Water Pollution Control Act,
as amended, 33 U.S.C. § 1251, et seq., (v) the Clean Air Act, as amended, 42 U.S.C. § 7401,
et seq., (vi) the Toxic Substances Control Act , as amended, 15 U.S.C. § 2601, et seq., (vii)
the Clean Water Act, as amended, 33 U.S. Code § 1251, et seq., (viii) the Oil Pollution Act,
as amended, 33 U.S.C. § 2701, et seq., (ix) California Health & Safety Code ( "H &S Code ") §
25100, et seq. (Hazardous Waste Control), (x) the Hazardous Substance Account Act, as
amended, H &S Code § 25300, et seq., (xi) the Unified Hazardous Waste and Hazardous
Materials Management Regulatory Program, as amended, H &S Code § 25404, et seq., (xii)
H &S Code § 25531, et seq. (Hazardous Materials Management), (xiii) the California Safe
Drinking Water and Toxic Enforcement Act, as amended, H &S Code § 25249.5, et seq.,
(xiv) H &S Code § 25280, et seq. (Underground Storage of Hazardous Substances), (xv) the
California Hazardous Waste Management Act, as amended, H &S Code § 25170. 1, et seq.,
(xvi) H &S Code § 25501, et seq. (Hazardous Materials Response Plans and Inventory), (xvii)
H &S Code § 18901, et seq. (California Building Standards), (xviii) the Porter- Cologne Water
Quality Control Act, as amended, California Water Code § 13000, et seq., (xix) California
Fish and Game Code § 5650 -5656 and (xx) or any other federal, state or local laws,
ordinances, rules, regulations, court orders or common law related in any way to the
protection of the environment, health or safety (collectively, "Environmental Laws "); (b) any
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substance the presence of which at the Property causes or threatens to cause a nuisance upon
the Property or to adjacent properties or poses or threatens to pose a hazard to the health or
safety of human beings; and (c) any substance the presence of which at the Property or at
nearby or adjacent properties could constitute a trespass. In addition to the foregoing, to the
extent not already included therein, the term "Hazardous Materials" also means (i) asbestos
(including asbestos - containing materials); (ii) flammable, explosive, infectious, carcinogenic,
mutagenic, or radioactive materials; (iii) petroleum or any substance containing or consisting
of petroleum hydrocarbons (including gasoline, diesel fuel, motor oil, waste oil, grease or
any other fraction of crude oil); (iv) paints and solvents; (v) lead; (vi) cyanide; (vii) DDT;
(viii) printing inks; (ix) acids; (x) pesticides; (xi) ammonium compounds; (xii)
polychlorinated biphenyls; (xiii) radon and radon gas; and (xiv) electromagnetic or magnetic
materials, substances or emissions.
(7) Any easements and /or access rights affecting the Property.
(8) The financial condition of the Property, including Lease income
and expenses.
(9) Any contracts and other documents or agreements affecting the
Property.
(10) All other matters of material significance affecting the
Property.
(b) BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES
THAT SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN
"AS IS WITH ALL FAULTS" BASIS, CONDITION AND STATE OF REPAIR
INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN,
AS MAY EXIST AS OF THE CLOSING (COLLECTIVELY, "AS IS SCOPE ") AND
THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3.1 ABOVE, BUYER IS
NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES FROM SELLER,
ITS AGENTS, OR BROKERS AS TO ANY MATTERS CONCERNING THE
PROPERTY.
(c) Disclaimers. Buyer acknowledges and agrees that: (i) neither Seller,
nor anyone acting for or on behalf of Seller, has made any representations, warranties, or
promises to Buyer, or to anyone acting for or on behalf of Buyer, concerning the condition of
the Property or any other aspect of the Property; (ii) the condition of the Property has been
independently evaluated by Buyer prior to both its election to enter into this Agreement and
the Effective Date; and (iii) any information including any engineering reports, architectural
reports, feasibility reports, marketing reports, title reports, soils reports, environmental
reports, analyses or data or other similar reports, analyses, data or information of whatever
type or kind, if any, which Buyer has received or may hereafter receive from Seller or its
agents or consultants (collectively, "Seller Materials ") were and are furnished without
warranty of any kind and on the express condition that Buyer has made its own independent
verification of the accuracy, reliability and completeness of such information and that Buyer
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will not rely on the Seller Materials. Seller has no knowledge of any inaccuracies in the
Seller Materials delivered to Buyer.
(d) Release. Except in connection with a breach of Seller's representations
and warranties or Seller's covenants in this Agreement, Buyer hereby releases Seller from
any and all manner of rights, liabilities, claims, actions, causes of action, suits, proceedings,
demands, rights, damages, costs, expenses (including attorneys fees and costs) or other
compensation whatsoever, in law or equity, of whatever kind or nature, whether known or
unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent that Buyer
now has or may have or which may arise in the future arising out of, directly or indirectly, or
in any way connected with (a) all warranties of whatever type or kind with respect to the
physical or environmental condition of the Property, whether express, implied or otherwise,
including those of fitness for a particular purpose, tenantability, habitability or use; (b) the
Lease; (c) use, management, ownership or operation of the Property, whether before or after
Closing; (d) the physical, environmental or other condition of the Property; (e) the
application of, compliance with or failure to comply with any Applicable Laws;
(f) Hazardous Materials; and (g) the As Is Scope; the foregoing are collectively referred to as
"Claims "). By releasing and forever discharging the Claims, Buyer expressly waives any
rights under California Civil Code Section 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."
In this connection, Buyer acknowledges and agrees that it understands that factual matters
now unknown to it may have given or may hereafter give rise to Claims that are presently
unknown, unanticipated and unsuspected, and Buyer further acknowledges and agrees that
the releases herein have been negotiated and agreed upon in light of that realization and that
Buyer nevertheless intends to release, discharge and acquit Seller from any such unknown
Claims.
Section 3.6 Materiality.
The provisions of this Section 3 are a material portion of the consideration given by
each party to the other in exchange for such party's performance under this Agreement and
shall survive the Closing.
Section 3.7 Indemnification.
Subject to the other provisions of this Agreement, Buyer shall save, protect,
indemnify and defend Seller against and hold Seller harmless from any claim, loss, damage,
or expense, including any reasonable attorneys' fees, asserted against or suffered by Seller
resulting from (i) any breach by Buyer of this Agreement, (ii) the untruth, inaccuracy or
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breach of any of the representations or warranties made by Buyer pursuant to this
Agreement, and (iii) any liability or obligation arising in connection with the Property and
accruing following the Closing Date. Subject to the other provisions of this Agreement,
Seller shall save, protect, indemnify and defend Buyer against and hold Buyer harmless from
any claim, loss, damage, or expense, including any reasonable attorneys' fees, asserted
against or suffered by Buyer resulting from (i) any breach by Seller of this Agreement, and
(ii) the untruth, inaccuracy or breach of any of the representations or warranties made by
Seller pursuant to this Agreement.
ARTICLE IV
TITLE
Section 4.1 Conditions of Title.
At the Closing, Seller shall convey title to the Property to Buyer by grant deed in a
fonn substantially similar to that attached hereto as Exhibit B ( "Grant Deed ") subject only to
the Approved Conditions of Title (as defined below). Notwithstanding the foregoing, in no
event shall City have any obligation to remove any title exception pursuant to this Section 4.:
or Section 4.2 below that City would not otherwise be required to remove pursuant to Article
XVI.2(f) of the Lease.
Section 4.2 Title Review.
Immediately upon full execution of this Agreement, Seller shall cause First American
Title Company ( "Title Company ") to prepare and issue to Buyer a preliminary title report,
evidencing the current condition of title to the Property. Buyer shall promptly review the
preliminary title report and shall notify Seller in writing on or before twenty (20) days after
Buyer's receipt of the preliminary title report, and legible copies of all exceptions described
in such preliminary title report, of any exceptions to title noted thereon which are not listed
on the attached Exhibit D (the "Permitted Exceptions ") and which are unacceptable to Buyer.
The Permitted Exceptions and such additional exceptions which are acceptable to Buyer.shall
be deemed the "Approved Conditions of Title ". Seller shall determine whether or not it will
cause removal of all exceptions from title which are not Approved Conditions of Title before
Closing, taking such action, at Seller's sole cost and expense, as may be necessary so to do.
If Seller does not elect to remove or provide to the satisfaction of Buyer for removal of the
objectionable exceptions to title before Closing, Buyer shall have the right (i) to terminate
this Agreement, (ii) to proceed with consummation of this transaction notwithstanding such
objectionable items, or (iii) to exercise any of Buyer's rights or remedies at law or in equity
arising out of Seller's breach of its covenant to convey title.
Section 4.3 Evidence of Title.
Delivery of title in accordance with the foregoing may be evidenced by the
irrevocable commitment of the Title Company to issue, at Closing, its Owner's ALTA Policy
of Title Insurance in the amount of the Purchase Price showing title to the Real Property
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vested in Buyer, subject only to the Approved Conditions of Title and with such
endorsements as may be requested by Buyer ( "Title Policy ").
Section 4.4 No Merger.
Maintenance and use of the existing public utility easements is dependent upon
separation of the easement interest and the fee title. No merger is intended nor shall occur by
any future ownership of the underlying fee property by Buyer, or its successors or assigns,
including the City of Rohnert Park.
ARTICLE V
RISK OF LOSS AND INSURANCE PROCEEDS
Section 5.1 Loss.
Except to the extent this Agreement is terminated due to either a (1) casualty loss
which gives Tenant the right to terminate the Lease pursuant to Lease Section XII.2, or (ii)
taking or pending taking (i.e. a resolution of necessity has been duly adopted authorizing
such taking) of the Property under the power of eminent domain (or a conveyance in lieu of
such taking), Buyer shall be bound to purchase the Property for the full Purchase Price as
required by the terms hereof, without regard to the occurrence or effect of any damage to the
Property or destruction of any improvements thereon or condemnation of any portion of the
Property, provided that upon the Closing, there shall be a credit against the cash portion of
the Purchase Price due hereunder equal to the amount of any insurance proceeds or
condemnation awards collectable by Seller as a result of any such damage or destruction or
condemnation, less any deductibles, any sums claimed by or paid to Tenant or any mortgagee
of the Property by Seller, and any sums actually expended by Seller toward the restoration or
repair of the Property. If the proceeds or awards have not been collected as of the Closing,
then such proceeds or awards shall be assigned to Buyer, except to the extent needed to
reimburse Seller for any actual sums expended by Seller toward the restoration or repair of
the Property.
ARTICLE VI
BROKERS AND EXPENSES
Section 6.1 Brokers.
The parties represent and warrant to each other that no broker or finder was
instrumental in arranging or bringing about this transaction. If any person brings a claim for
a commission or finder's fee based upon any contact, dealings or communication with Buyer
or Seller, then the party through whom such person makes his or her claim shall defend the
other party ( "Indemnified Party ") from such claim, and shall indemnify the Indemnified
Party and hold the Indemnified Party harmless from any and all costs, damages, claims,
liabilities or expenses (including reasonable attorneys' fees and disbursements) incurred by
the Indemnified Party in defending against the claim. The provisions of this Section 6.1 shall
survive the Closing or other termination of this Agreement.
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ARTICLE VII
SELLER'S COVENANTS
Section 7.1 New Leases and Agreements Affecting the Property.
Between the Effective Date and the Closing, Seller shall not enter into any new lease,
service contract or other agreement affecting the Property, or modify, amend or terminate the
Lease or other agreement affecting the Property (each, a "New Agreement "), without first
notifying Buyer and without obtaining Buyer's prior written approval, which may be granted
or withheld in Buyer's sole discretion. In connection with a request for Buyer's approval of
such action, Seller shall provide Buyer with information about Lease or contract terms and
conditions, full credit information, any improvement allowances and commissions payable
with respect thereto, the proposed form of New Agreement, and such other information as
Buyer shall reasonably request. Buyer shall respond to any request for approval of a New
Agreement within ten (10) days after receipt of a request therefor from Seller and Buyer's
failure to respond within such ten (10) day period shall be deemed Buyer's disapproval of the
New Agreement.
ARTICLE VIII
CLOSING AND ESCROW
Section 8.1 Escrow Instructions.
Upon execution of this Agreement, the parties hereto shall deposit an executed
counterpart of this Agreement with the Title Company, and this instrument shall serve as the
instructions to the Title Company as the escrow holder for consummation of the purchase and
sale contemplated hereby. Seller and Buyer agree to execute such reasonable additional and
supplementary escrow instructions as may be appropriate to enable the Title Company to
comply with the terms of this Agreement; provided, however, that in the event of any conflict
between the provisions of this Agreement and any supplementary escrow instructions, the
terms of this Agreement shall control.
Section 8.2 Closing.
(a) "Closing" means the consummation of the purchase and sale of the
Property as described herein as evidenced by the performance by each party of its obligations
hereunder including delivery of the Grant Deed and other documents as set forth in this
Agreement, Title Company's recordation of the Grant Deed, the Lease Termination
Agreement (if Buyer has elected to terminate the Lease) and issuance of the Title Policy, and
the payment of the Purchase Price by Buyer.
(b) The Closing hereunder shall be held and delivery of all items to be
made at the Closing under the terms of this Agreement shall be made at the offices of the
Title Company on a date and time as Buyer and Seller may mutually agree upon in writing
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( "Closing Date "). Notwithstanding the foregoing, the parties shall use good faith efforts to
ensure the Closing occurs no later than 5:00 p.m. Pacific Time on that date which occurs
within ninety (90) days after the Effective Date. The Closing Date may not be extended
without the prior written approval of both Seller and Buyer.
Section 8.3 Deposit of Documents.
(a) At or before the Closing, Seller shall deposit into escrow the following
items:
(1) the duly executed and acknowledged Grant Deed conveying the
Real Property to Buyer subject to the Approved Conditions of Title;
(2) if required by Buyer, one (1) counterpart original of a termination
of the Lease in the form attached hereto as Exhibit C (the "Lease Termination Agreement ")
executed and acknowledged by Seller;
(3) an affidavit pursuant to Section 1445(b)(2) of the Federal Code,
and on which Buyer is entitled to rely, that Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Federal Code; and
items:
(4) California 597 -W Certificate.
(b) At or before Closing, Buyer shall deposit into escrow the following
(1) funds necessary to close this transaction;
(2) Buyer's the duly acknowledged signature on the Grant Deed
expressly approving and accepting the provisions of the Grant Deed; and
(3) if required by Buyer, one (1) counterpart original of Lease
Termination Agreement executed and acknowledged by Buyer.
Seller and Buyer shall each deposit such other instruments as are reasonably
required by the Title Company or otherwise required to close the escrow and consummate the
purchase and sale transaction in accordance with the terms hereof. Seller and Buyer hereby
designate Title Company as the "Reporting Person" for the transaction pursuant to Section
6045(e) of the Internal Revenue Code and the regulations promulgated thereunder and agree
to execute such documentation as is reasonably necessary to effectuate such designation.
Section 8.4 Estoppel Certificate.
Seller shall obtain an estoppel certificate, in a form substantially similar to that
attached hereto as Exhibit E ( "Estoppel Certificate "), from Tenant. Prior to the Closing Date,
Seller shall deliver to Buyer a duly executed Estoppel Certificate in the form described
above, showing no information materially inconsistent with the information set forth in the
Lease, but subject to reasonable modifications by Tenant. Notwithstanding the foregoing, in
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the event that Tenant fails to timely deliver a Estoppel Certificate, Seller shall have the right
to satisfy the foregoing condition by delivery of a certificate from Seller covering the matters
set forth in the Estoppel Certificate, in lieu of any required Estoppel Certificate.
Section 8.5 Prorations.
(a) Rents, including any additional charges and expenses payable under
the Lease; water, sewer and utility charges; amounts payable under any service contracts;
annual permits and /or inspection fees (calculated on the basis of the period covered); and any
other expenses of the operation and maintenance of the Property shall all be prorated as of
12:01 a.m. on the date the Grant Deed is recorded, on the basis of a 365 -day year. Seller is a
tax exempt entity; as such Seller shall not pay any real property or other taxes of any kind,
including any bond or assessment that is a lien customarily paid with real property taxes, and
all such taxes and items shall be charged to Buyer rather than prorated. If, following Closing,
Seller receives rent from Tenant which was due after Closing, Seller shall immediately pay
and deliver to Buyer such rent without deduction or setoff. If, following Closing, Buyer
receives rent from Tenant which was due before Closing, Buyer shall immediately pay and
deliver to Seller such rents without deduction or setoff. Buyer and Seller shall cooperate to
produce prior to the Closing Date a schedule of prorations to be made on and after the
Closing Date as complete and accurate as reasonably possible. All prorations which can be
liquidated accurately or reasonably estimated as of the Closing Date shall be made in escrow
on the Closing Date. Seller and Buyer hereby agree that if any of the aforesaid prorations and
credits cannot be calculated accurately on the Closing Date, or if there are any adjustments to
initially estimated prorations, then the same shall be calculated or adjusted as soon as
reasonably practicable after the Closing Date and either party owing the other party a sum of
money based on such subsequent proration(s) or credits shall promptly pay said sum to the
other party.
(b) Seller shall pay all transfer taxes applicable to the sale and Buyer shall
pay, (1) the premium for the Title Policy, including that portion of the premium for the Title
Policy that is allocable to extended coverage and the cost of any endorsements thereto; and
(ii) the escrow fees. Any other expenses of the escrow for the sale shall be paid by Buyer and
Seller in accordance with customary practice as determined by the Title Company. Each
party shall bear its own legal fees and due diligence costs in connection with the sale.
(c) The provisions of this Section 8.5 shall survive the Closing.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices.
Any notices required or permitted to be given hereunder shall be given in writing and
shall be delivered (a) in person, (b) by certified mail, postage prepaid, return receipt
requested, (c) by facsimile with confirmation of receipt, or (d) by a commercial overnight
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courier that guarantees next day delivery and provides a receipt, and such notices shall be
addressed as follows:
To Buyer: c/o Kisco Senior Living, LLC
5790 Fleet Street, Suite 300
Carlsbad, CA 92008
Attention: Anthony Ferrero
Fax No.: (760) 804 -5909
Tel No.: (760) 804 -7032
with a copy to: Coblentz, Patch, Duffy & Bass, LLP
One Ferry Building, Suite 200
San Francisco, CA 94111
Attention: Harry O'Brien
Fax No.: (415) 989 -1663
Tel No.: (415) 391 -4800
To Seller: City Hall
6750 Commerce Boulevard
Rohnert Park, CA 94928
Attention: Stephen Donley, City Manager
Fax No.: (707) 588 -2263
Tel No.: (707) 588 -2227
or to such other address as either party may from time to time specify in writing to the other
party. Any notice shall be effective only upon delivery or refusal to accept delivery by the
intended recipient.
Section 9.2 Entire Agreement.
This Agreement, together with the Exhibits hereto, contains all representations,
warranties and covenants made by Buyer and Seller and constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof. Any prior
correspondence, memoranda or agreements are replaced in total by this Agreement together
with the Exhibits hereto.
Section 9.3 Time.
Time is of the essence in the performance of each of the parties' respective
obligations contained herein.
Section 9.4 Attorneys' Fees.
If either party hereto fails to perform any of its obligations under this Agreement or if
any dispute arises between the parties hereto concerning the meaning or interpretation of any
provision of this Agreement, then the defaulting party or the party not prevailing in such
dispute, as the case may be, shall pay any and all costs and expenses incurred by the other
party on account of such default and /or in enforcing or establishing its rights hereunder,
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including court costs and reasonable attorneys' fees and disbursements, reasonable costs and
attorneys' fees incurred in collecting any judgment or award resulting from such dispute, if
any.
Section 9.5 Assignment.
Buyer specifically reserves the right to take title to the Property in a name or assignee
other than that of Buyer which is affiliated with Buyer and Buyer may at any time prior to
close of escrow assign part or all of its rights hereunder, and Seller shall be bound thereby
provided further that said assignee assumes all of Buyer's obligations hereunder as if such
assignee were the original Buyer. Seller shall have no right to assign its interest in this
Agreement without obtaining Buyer's prior written consent.
Section 9.6 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the same
instrument.
Section 9.7 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of California.
Section 9.8 Interpretation of Agreement.
Each party has received independent legal advice from its attorneys with respect to
the advisability of executing this Agreement and the meaning of the provisions hereof. The
provisions of this Agreement shall be construed as to their fair meaning, and not for or
against any party based upon any attribution to such party as the source of the language in
question. Headings used in this Agreement are for convenience of reference only and shall
not be used in construing this Agreement. The article, section and other headings of this
Agreement are for convenience of reference only and shall not be construed to affect the
meaning of any provision contained herein. Where the context so requires, the use of the
singular shall include the plural and vice versa and the use of the masculine shall include the
feminine and the neuter. The term "person" shall include any individual, partnership, joint
venture, corporation, trust, unincorporated association, any other entity and any government
or any department or agency thereof, whether acting in an individual, fiduciary or other
capacity. The words "include" and "including" shall in all instances be interpreted as though
followed by the words "without limitation."
Section 9.9 Amendments.
This Agreement may be amended or modified only by a written instrument signed by
Buyer and Seller and duly authorized by the City Council.
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Section 9.10 No Partnership.
The relationship of the parties hereto is solely that of Seller and Buyer with respect to
the Property and no joint venture, other partnership or agency relationship exists between the
parties hereto. Neither party has any fiduciary relationship hereunder to the other.
Section 9.11 No Third Party Beneficiary.
The provisions of this Agreement are not intended to benefit any third parties.
Section 9.12 Cooperation in Exchange.
The parties acknowledge and agree that either party may assign its interest in this
Agreement to an exchange facilitator for the purpose of completing an exchange of the
Property in a transaction which will qualify for treatment as a tax deferred exchange pursuant
to the provisions of Section 1031 of the Internal Revenue Code of 1986 and applicable state
revenue and taxation code sections (" 1031 Exchange "). The parties agree to cooperate with
one another in implementing any such assignment and 1031 Exchange provided that such
cooperation shall not entail any additional expense or cause any liability whatsoever beyond
the cooperating party's existing obligations under this Agreement. An assignment to an
exchange facilitator shall not relieve the assigning party from any of its obligations hereunder
or entitle the assigning party to extend the Closing Date, nor shall the ability to consummate
a 1031 Exchange be a condition to the performance of the obligations under this Agreement
by the party seeking to achieve a 1031 Exchange. Any party requesting the cooperation of the
other party in any such 1031 Exchange shall save, protect, defend, indemnify and hold the
other party harmless from any and all costs, losses, claims, liabilities, causes of action, fines,
penalties and other expenses (including reasonable attorneys' fees and court costs and fees of
experts) incurred by such cooperating party as a result of such cooperation.
Section 9.13 Joint and Several Liability.
The liability of all persons and entities obligated in any manner under this Agreement
shall be joint and several.
Section 9.14 Recordation.
Buyer shall not record this Agreement, any memorandum of this Agreement, any
assignment of this Agreement or any other document which would cause a cloud on the title
to the Property.
Section 9.15 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which, taken together, shall constitute one and the same instrument.
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Section 9.16 Severability.
If any term, covenant, condition or provision of this Agreement, or the application
thereof to any person or circumstance, to any extent shall be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants,
conditions or provisions of this Agreement, or the application thereof to any person or
circumstance, shall remain in full force and effect and in no way shall be affected, impaired
or invalidated thereby; except that if the court which determines the provision to be invalid
also determines such provision to be of such materiality as to make enforcement of the
remaining terms inequitable, then this Agreement shall terminate.
Section 9.17 Waiver of Covenants, Conditions or Remedies.
The waiver by one party of the perfonnance of any covenant, condition or promise
under this Agreement shall not invalidate this Agreement, nor shall it be considered a waiver
by it of any other covenant, condition or promise under this Agreement. The waiver by either
or both parties of the time for performing any act under this Agreement shall not constitute a
waiver of the time for performing any other act or an identical act required to be performed at
a later time. The exercise of any remedy provided in this Agreement shall not be a waiver of
any consistent remedy provided by law, and the provision in this Agreement for any remedy
shall not exclude other consistent remedies unless they are expressly excluded.
Section 9.18 Exhibits.
All exhibits to which reference is made in this Agreement are deemed incorporated in
this Agreement, whether or not actually attached.
Section 9.19 Nondiscrimination and Nonsegregation Clauses.
(a) The provisions of this Section 9.19 shall run with the land and shall be
contained in each subsequent grant deed conveying title to the Property to any subsequent
owner.
(b) All deeds, leases or contracts made relative to the Property thereon or
any part thereof shall contain or be subject to substantially the following nondiscrimination
clauses:
(1) In Deeds: "The grantee herein by and for himself or herself, his or
her heirs, executors, administrators, and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m)
and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment
of the premises herein conveyed, nor shall the grantee or any person claiming under or
through him or her, establish or permit any practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
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lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
(2) In Leases: "The lessee herein covenants by and for himself or
herself, his heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted on the following terms and
conditions: That there shall be no discrimination against or segregation of, any person or
group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as, those bases are defined in Sections 12926, 12926. 1, subdivision
(m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment f the premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selections, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased."
(3) In Contracts: "That there shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in subdivision
(a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself, or
any person claiming under or through him or her, establish or pen-nit any practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises."
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
SELLER:
CITY OF ROHNERT PARK, a municipal
corporation
By:
Dated: .200
APPROVED AS TO FORM:
Assistant City Attorney
Print Name:
Its:
BUYER:
a
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Dated: , 200 By:
08296.003.558538v3
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Print Name:
Its:
-I9-
EXHIBIT A
Real Propert X
[legal description to be inserted]
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RECORDING REQUESTED BY
First American Title Company
AND WHEN RECORDED MAIL TO:
address
EXHIBIT B
Grant Deed
(Space Above This Line. for Recorder's Use 0n1})
[Exempt from recording fee per Gov. Code § 27383]
GRANT DEED
A. WHEREAS, the CITY OF ROHNERT PARK, a municipal corporation, is herein referred
to as "Grantor ";
B. WHEREAS, , a , is herein
referred to as "Grantee ";
C. WHEREAS, Grantor as Seller, and Grantee as Buyer, entered into a negotiated
Agreement of Purchase and Sale and Joint Escrow Instructions ( "Agreement ") dated
, 20_, which, among other things, provides for the conveyance of that certain
real property described in Attachment 1 attached hereto and incorporated herein by reference
( "Property ") which is located in the County of Sonoma, California, on the terms and conditions
contained in the Agreement and in this Grant Deed.
D. WHEREAS, California Health and Safety Code Section 33436 requires inclusion of
certain Nondiscrimination and Nonsegregation Clauses in this Grant Deed.
NOW THEREFORE, for valuable consideration, the receipt of which is hereby
acknowledged, Grantor hereby grants to Grantee the Property.
08296.003.558538v3
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THIS GRANT DEED IS MADE, DELIVERED AND ACCEPTED UPON THE
FOLLOWING TERMS:
1. Nondiscrimination and Nonsegregation Clauses.
(a) The provisions of this Section 1 shall run with the land and shall be contained in
each subsequent grant deed conveying title to the Property to any subsequent owner.
(b) All deeds, leases or contracts made relative to the Property thereon or any part
thereof shall contain or be subject to substantially the following nondiscrimination clauses:
(1) In Deeds: "The grantee herein by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or group of persons on
account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as
those bases are defined in Sections 12926, 12926.1, subdivision (in) and paragraph (1) of
subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale,
lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed,
nor shall the grantee or any person claiming under or through him or her, establish or permit any
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises
herein conveyed. The foregoing covenants shall run with the land."
(2) In Leases: "The lessee herein covenants by and for himself or herself, his
heirs, executors, administrators, and assigns, and all persons claiming under or through him or
her, and this lease is made and accepted on the following terms and conditions: That there shall
be no discrimination against or segregation of, any person or group of persons on account of any
basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of
Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the
lessee himself or herself, or any person claiming under or through him or her, establish or permit
any such practice or practices of discrimination or segregation with reference to the selections,
location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the
premises herein leased."
(3) In Contracts: "That there shall be no discrimination against or segregation
of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of
the Government Code in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the premises, nor shall the transferee himself or herself, or any person claiming under or
through him or her, establish or permit any practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
sublessees, subtenants or vendees in the premises."
08296.003.558538v3 2
QQ1nr,h,s xnmxmna')
IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers thereunto duly authorized as of the dates set
forth below. By its signature, Grantee further acknowledges and agrees that it expressly approves
and accepts the provisions of this Grant Deed.
CITY OF ROHNERT PARK, a municipal
corporation
Dated: .200 By:
APPROVED AS TO FORM:
Assistant City Attorney
Print Name:
Its:
GRANTEE:
Dated: , 200_ By:
Print Name
Its:
08296.003.558538v3
99�n�i.,s Rnmxmna?
a
ATTACHMENT I to EXHIBIT B
Property
08296.003.558538v3
991061.,5 Rn07R/nna?
State of California
County of
On before me, ,
Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me
that he /she /they executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
State of California
County of
(Seal)
On before me, ,
Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me
that he /she /they executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
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(Seal)
EXHIBIT C
Lease Termination Agreement
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F.XHTRTT T)
Permitted Exceptions
[insert list of exceptions that are contained in the "Preliminary Report" as defined in
Section V.2(a) of the Lease and any other exceptions caused by Buyer]
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EXHIBIT E
Estoppel Certificate
Date:
[Name and address of Buyer]
( "Tenant ") certifies as follows to Seller /Landlord and ( "Buyer "):
1. Tenant and City of Rohnert Park ( "Seller /Landlord ") entered into a written
ground lease dated ( "the Lease "), in which Seller /Landlord leased to
Tenant and Tenant leased from Seller /Landlord, real property located in the City of
Rohnert Park, County of Sonoma, State of California, commonly known as 1350 Oak
View Drive (the "Property ").
2. The Lease constitutes the only agreement between Seller /Landlord and
Tenant with respect to the Property.
3. The Lease is in full force and effect; Tenant has accepted the Property and
presently occupies it, and is paying rent on a current basis; Tenant has no setoffs, claims
or defenses to the enforcement of the Lease.
4. As of the date of this certificate, Tenant is not in default in the
performance of the Lease, and has not committed any breach of the Lease, and no notice
of default has been given to Tenant.
5. As of the date of this certificate, Seller /Landlord is not in default in the
performance of the Lease and has not committed any breach of the Lease.
6. No rent has been paid by Tenant in advance under the Lease except for _
7. No security deposit has been paid by Tenant under the Lease except for
8. Tenant has no claim against Seller /Landlord for any security deposit or
prepaid rent except as provided in items 6 and 7 of this estoppel certificate.
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There are no outstanding obligations of Seller /Landlord under the Lease.
Executed on ,
1RM
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