2015/09/08 City Council Resolution 2015-140RESOLUTION NO. 2015 -140
A RESOLUTION OF THE CITY OF ROHNERT PARK AS SUCCESSOR AGENCY TO
THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT
PARK AUTHORIZING AND APPROVING AN AGREEMENT OF
PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS BETWEEN THE
SUCCESSOR AGENCY AND MCDONALDS CORPORATION AND
FINDING THE ACTION EXEMPT FROM REVIEW UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
WHEREAS, Assembly Bill 1X 26, as subsequently amended by AB 1484 (collectively,
the "Dissolution Act ") dissolved redevelopment agencies formed under the Community
Redevelopment Law (Health and Safety Code Section 33000, et seq.); and
WHEREAS, Section 31419.5(b) of the Dissolution Act required the Successor Agency
City of Rohnert Park ( "Successor Agency ") to prepare and submit for review and approval by
the Oversight Board for the Successor Agency ( "Oversight Board ") and the California
Department of Finance ( "DOF ") a long -range property management plan ( "Property Plan ")
addressing the disposition and use of real property formerly owned by the Community
Development Commission of the City of Rohnert Park; and
WHEREAS, Successor Agency staff prepared a Property Plan that was approved by the
Oversight Board by Resolution No. OSB 2013 -04 adopted on September 16, 2013 and thereafter
submitted to DOF for review and approval; and
WHEREAS, based on DOF's preliminary comments and requests for clarification of
certain items included in the Property Plan, Successor Agency staff prepared an amended
Property Plan that was approved by the Oversight Board by Resolution No. OSB 2014 -03
adopted on April 9, 2014 and thereafter submitted to DOF for review and approval; and
WHEREAS, DOF approved the Successor Agency's Property Plan by letter dated June
19, 2014; and
WHEREAS, the approved Property Plan provides for the disposition of an
approximately 6,875 square foot parcel located in the City of Rohnert Park, identified as "Parcel
5" in the Property Plan and designated as APN 045 -081 -007 ( "Property ") to the developer of the
adjacent property immediately to the west ( "Adjacent Property ") pursuant to Health and Safety
Code Section 34191.5(c)(2)(B), since the Property's only economic value would come through
incorporation into the development of the Adjacent Property; and
WHEREAS, Successor Agency staff have negotiated terms for the disposition of the
Property to the owner of the Adjacent Property, McDonalds's Corporation, a Delaware
corporation ( "Buyer "), and such terms are incorporated into the proposed Agreement of Purchase
and Sale and Joint Escrow Instructions attached as Exhibit A to this Resolution and incorporated
herein by this reference ( "Purchase Agreement "); and
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WHEREAS, the proposed Agreement of Purchase Sale and Joint Escrow Instructions
was reviewed and approved by the Oversight Board by Resolution 2014 -07 on September 10,
2014 and DOF has provided concurrence; and
WHEREAS, the City has adopted the Wilfred Dowdell Specific Plan EIR ( "EIR "),
which addressed eventual development of the Property, and on May 22, 2012, the City of
Rohnert Park approved a Mitigated Negative Declaration ( "MND ") for Buyer's development of
the Adjacent Property, which anticipated Buyer's acquisition and development of the Property;
further, the transfer of ownership of the property from the City to the Buyer is exempt from
CEQA under Section 15061(b)(3) because there is no possibility that the conveyance will have
an effect on the environment; and
WHEREAS, the transfer of ownership was considered by the Successor Agency to the
Community Development Commission of the City of Rohnert Park at a duly noticed public
meeting;
NOW, THEREFORE, BE IT RESOLVED by the Successor Agency, as follows:
1. The Successor Agency hereby finds and determines that the foregoing recitals are
true and correct and are incorporated herein.
2. The Successor Agency hereby further finds approval of the Purchase Agreement
to be consistent with the project evaluated in the EIR and MND and that 1) there are no
substantial changes to the project which would result in the need for major revisions to that
MND, 2) there are no substantial changes with regard to the circumstances surrounding the
proposed action which would require major revisions to that MND, and 3) no substantial new
information exists which was not previously known which would show that the project has new
significant environmental impacts, the project's identified impacts are substantially more severe
than previously disclosed, new alternatives or mitigation measures previously found to be
infeasible are in fact feasible and /or would reduce significant environmental impacts more than
previously disclosed. Further, there is no possibility under Section 15061(b)(3) that the
conveyance will have an effect on the environment.
3. The Purchase Agreement substantially in the form attached hereto as Exhibit A
and incorporated herein by this reference is hereby approved.
4. The City Manager of the City of Rohnert Park ( "City Manager ") is hereby
delegated authority and is authorized and directed to execute the Purchase Agreement on behalf
of the Successor Agency, substantially in the form attached hereto as Exhibit A, subject to minor,
technical changes approved by the Successor Agency's General Counsel.
5. Successor Agency staff are authorized and directed to transfer the net proceeds of
the sale of the Property to the County of Sonoma for distribution to the taxing entities pursuant to
Section 34191.5(c)(2)(B) of the Dissolution Act, as provided in the Property Plan.
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6. The City Manager or his designee is authorized and directed to execute such
additional instruments and to take such actions as are necessary to carry out the intent of this
Resolution.
DULY AND REGULARLY ADOPTED this 8th day of September, 2015.
CITY OF RO H N ERT PARK
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Amy O. Ahanotu, Mayor
ATTEST:
Anne M. Buergler, City Derk
Ole CALLINAN:MACKENZIE: STAFFORD: BELFORTE: , AHANOTU:
AYES: NOES: ( ) ABSENT: ( ) ABSTAIN: ( 0 )
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EXHIBIT A TO RESOLUTION
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
This Agreement of Purchase and Sale and Joint Escrow Instructions ( "Agreement "),
dated as of 2015, ( "Effective Date "), is between the SUCCESSOR AGENCY
TO THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF ROHNERT
PARK, a public body established pursuant to the laws of the State of California ( "Seller" or
"Successor Agency "), and McDonald's Corporation, a Delaware corporation ( "Buyer ").
RECITALS
A. The Community Development Commission of the City of Rohnert Park ( "CDC ")
acquired the Property described in Section 1.2 for redevelopment purposes.
B. Subsequent to the CDC's acquisition of the Property, the California Legislature
enacted Assembly Bill AB 1X 26, as subsequently amended by AB 1484 (collectively, the
"Dissolution Act ") which dissolved redevelopment agencies formed under the Community
Redevelopment Law (Health and Safety Code Section 33000, et seq.).
C. In accordance with Sections 34173 and 34175(b) of the Dissolution Act, the City
of Rohnert Park elected to serve as the successor agency to the CDC and, effective February 1,
2012, all non - housing assets, properties and contracts of the CDC were transferred to the
Successor Agency.
D. Pursuant to Section 34177(h) of the Dissolution Act, Successor Agency is
required to wind down the affairs of the CDC.
E. Section 34191.5(b) of the Dissolution Act requires the Successor Agency, within
six months following issuance of a finding of completion pursuant to Section 34179.5 of the
Dissolution Act, to prepare and submit for Department of Finance ( "DOF ") approval a long -
range property management plan ( "Property Plan ") that addresses the disposition and use of
real properties of the CDC.
F. Following the successful completion of certain statutory prerequisites, the
Successor Agency received a finding of completion from DOF by letter dated April 26, 2013.
G. Successor Agency staff prepared a Property Plan that was approved by the City
Council acting as the Successor Agency by Resolution No. 2013 -125 adopted on August 27,
2013 and by the Oversight Board by Resolution No. OSB 2013 -04 adopted on September 16,
2013, and the Property Plan was thereafter submitted to DOF for review and approval.
H. Based on DOF's preliminary comments and requests for clarification of certain
items included in the Plan, Successor Agency staff prepared an amended Property Plan that was
approved by the City Council acting as the Successor Agency by Resolution No. 2014 -137
adopted on April 8, 2014 and by the Oversight Board by Resolution No. OSB 2014 -03 adopted
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on April 9, 2014, and the amended Property Plan was thereafter submitted to DOF for review
and approval.
I. DOF approved the Property Plan by letter dated June 19, 2014.
J. Successor Agency included in the approved Property Plan the disposition of the
Property (defined below) to the owner of the adjacent property immediately to the west
( "Adjacent Property ") pursuant to Health and Safety Code Section 34191.5(c)(2)(B), since the
Property's only economic value would come through incorporation into the development of the
Adjacent Property.
K. Buyer has submitted a proposal to City to develop the Property, and Buyer desires
to acquire. the Property, at fair market value, for use in connection with Buyer's or its successors'
and /or assigns' development.
L. At its September 10, 2014 meeting, the Oversight Board considered and approved
by Resolution No. OSB 2014 -07 the Successor Agency entering into this Agreement.
AGREEMENT
ARTICLE 1
PURCHASE AND SALE OF PROPERTY
Section 1.1 Incorporation of Recitals. Each of the recitals in Paragraphs A through L,
inclusive, set forth above is incorporated herein by this reference.
Section 1.2 Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, on the terms and conditions set forth herein, that certain property located in Rohnert Park,
California described in Exhibit A attached hereto and made a part hereof and depicted on
Exhibit A -1 attached hereto and made a part hereof ( "Property "), together with any and all
rights, privileges and easements appurtenant thereto owned by Seller.
Section 1.3 Purchase Price. The purchase price for the Property is Ten Thousand
Dollars ($10,000) ( "Purchase Price "). The Purchase Price shall be paid to Seller at Closing in
immediately available funds. The Purchase Price was determined based on a survey of
comparable parcels and an evaluation of potential uses of the Property. Following Closing, as
provided in the Property Plan, the net proceeds of the sale will be distributed as property tax to
the taxing entities pursuant to Health and Safety Code Section 34191.5(c)(2)(B).
Section 1.4 Good Faith Deposit. Within ten (10) business days of the Effective Date,
Buyer shall deliver into escrow a good faith deposit in the amount of One Thousand Dollars
($1,000.00). The Good Faith Deposit shall serve as security for the performance of Buyer's
obligations under this Agreement and shall be applied towards the Purchase Price at Closing,
retained by the Successor Agency as liquidated damages or returned to Buyer, as provided
below. Interest earned on the Good Faith Deposit, if any, shall be deemed to be a part of the
Good Faith Deposit for all purposes hereunder.
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The Good Faith Deposit shall be returned to Buyer upon occurrence of any of the
following: (i) prior to expiration of Buyer's Due Diligence Period and Buyer's acceptance of the
Property, as set forth in Section 3.3, Buyer elects not to proceed with purchase of the Property;
(ii) prior to Closing, as defined in Section 6.2, all Buyer's Conditions Precedent to Conveyance,
as set forth in Section 2.1 have not been satisfied or waived by Buyer; or (iii) if Seller is in
default under this Agreement following notice and expiration of applicable cure periods.
IN THE EVENT BUYER DEFAULTS IN BUYER'S OBLIGATION TO
PURCHASE THE PROPERTY WITHIN THE TIME AND IN THE MANNER
SPECIFIED IN THIS AGREEMENT, AND SELLER IS READY, WILLING
AND ABLE TO CLOSE THIS TRANSACTION, SELLER SHALL BE
RELEASED FROM ALL OBLIGATIONS AT LAW OR IN EQUITY TO
CONVEY THE PROPERTY TO BUYER. BUYER AND SELLER AGREE
THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTIMATE THE AMOUNT OF DAMAGES SUFFERED BY SELLER
BECAUSE OF SUCH DEFAULT; THAT THE GOOD FAITH DEPOSIT
CONSTITUTES A REASONABLE ESTIMATE AND AGREED
STIPULATION OF SUCH DAMAGES; THAT SELLER SHALL RETAIN
SUCH SUM AS LIQUIDATED DAMAGES AS ITS SOLE AND EXCLUSIVE
REMEDY IN THE EVENT OF BUYER'S DEFAULT, WAIVING ANY RIGHT
TO SPECIFIC PERFORMANCE OR ANY OTHER REMEDY AT LAW OR IN
EQUITY.
Seller's Initials Buyer's Initials
If this Agreement shall not have been theretofore cancelled or terminated, or the
Good Faith Deposit shall not have been returned to Buyer or retained by Seller as liquidated
damages, the Good Faith Deposit shall be credited against the Purchase Price at Closing.
ARTICLE 2
CONDITIONS
Section 2.1 Buyer's Conditions Precedent to Conveyance.
Buyer's obligation to purchase the Property is conditioned upon the following:
2.1.1 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.
2.1.2 Pursuant to Section 3.3, Buyer shall have completed its due diligence
within the Due Diligence Period and provided written notice to Successor Agency that all aspects
of the Property are acceptable to Buyer.
2.1.3 Seller shall have provided Buyer with assurance acceptable to Buyer in its
sole and absolute discretion that DOF has either consented, or waived its right to object, to the
sale of the Property to Buyer on the terms set forth herein, which assurance shall be in a form
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sufficient to allow the Title Company to issue the Title Policy as described in Section 4.2 ( "DOF
Approval ").
2.1.4 Seller shall have delivered each of the documents described in 6.3.1, prior
to the Closing date.
2.1.5 Title Company shall have issued an irrevocable and unconditional
commitment to issue the Title Policy (as defined in Section 4.2) upon recordation of the Grant
Deed (as defined in Section 4.1).
2.1.6 Seller shall not be in material default of any of its obligations under this
Agreement following notice and expiration of any applicable cure period.
The conditions precedent to conveyance set forth in this Section 2.1 ( "Buyer's
Conditions Precedent to Conveyance ") are solely for the benefit of Buyer and may be waived
only by Buyer. No such waiver shall be binding upon Buyer unless made in writing by an
authorized representative of Buyer.
Section 2.2 Seller's Conditions Precedent to Convey.
Seller's obligation to sell the Property is conditioned upon the following:
2.2.1 All of the representations and warranties made by Buyer to Seller pursuant
to this Agreement shall be true and correct in all material respects as of the Closing date, as if
made on such date.
2.2.2 Buyer shall have delivered each of the items described in 6.3.2 prior to the
Closing date, and shall have performed all of its obligations under this Agreement in accordance
with the provisions hereof.
2.2.3 Buyer shall not be in material default of any of its obligations under this
Agreement following notice and expiration of any applicable cure period.
2.2.4 Seller shall have received DOF Approval.
The conditions precedent to conveyance set forth in this Section 2.2 ( "Seller's
Conditions Precedent to Conveyance ") are solely for the benefit of Seller and may be waived
only by Seller. No such waiver shall be binding upon Seller unless made in writing by an
authorized representative of Seller.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES, BUYER'S DUE DILIGENCE, AND
DISCLAIMERS AND RELEASES
Section 3.1 Representations and Warranties of Seller.
Seller hereby makes the following representations and warranties.
3.1.1 Seller, as of the Effective Date, owns fee simple title to the Property.
3.1.2 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, or which would have a material adverse effect on the Property or Buyer.
3.1.3 To the best of Seller's knowledge, Seller's execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a breach
under any contract, agreement or order to which Seller is a party or by which it is bound.
3.1.4 To the best of Seller's knowledge, the governmental reports, notices, soils
tests, environmental reports, plans, surveys, engineering reports, and other documents,
information and data relative to the Property delivered or made available by Seller to Buyer
pursuant to Section 3.3 below, represent all Seller Materials that are in Seller's possession or
under Seller's control.
3.1.5 Each of the representations and warranties of Seller contained in this
Section 3.1 is true as of the Effective Date, and shall be deemed remade by Seller and shall be
true as of the Closing date.
3.1.6 All references herein to "Seller's knowledge" means the current, actual
knowledge of Darrin Jenkins ( "Seller's Representative "), without any obligation of inquiry, and
such term shall not include the knowledge of any other person or firm, it being understood by
Buyer that (a) Seller's Representative was not involved in the operation of the Property before
Seller's acquisition of the Property, (b) Seller's Representative is not charged with knowledge of
any of the acts or omissions of predecessors in title to the Property or the management of the
Property before Seller's acquisition of the Property, and (c) Seller's current actual knowledge
shall not apply to, or be construed to include, information or material which may be in the
possession of Seller generally or incidentally, but of which Seller's Representative is not actually
aware.
Section 3.2 Representations and Warranties of Buyer.
Buyer represents and warrants to Seller as follows:
3.2.1 Buyer is a Delaware corporation. Buyer has full right, power and lawful
authority to undertake all obligations of Buyer as provided herein and the execution,
performance and delivery of this Agreement by Buyer has been fully authorized by all requisite
company actions on the part of Buyer.
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3.2.2 To the best of Buyer's knowledge, Buyer's execution, delivery and
performance of its obligations under this Agreement will not constitute a default or a breach
under any contract, agreement or order to which Buyer is a party or by which it is bound.
3.2.3 Buyer is not the subject of any bankruptcy proceeding.
3.2.4 All references herein to `Buyer's knowledge" means the current, actual
knowledge of David Shammas ( "Buyer's Representative "), without any obligation of inquiry
and shall not apply to, or be construed to include, information or material which may be in the
possession of Buyer generally or incidentally, but of which Buyer's Representative is not
actually aware.
3.2.5 Each of the representations and warranties of Buyer contained in this
Section 3.2 is true as of the Effective Date, and shall be deemed remade by Buyer and shall be
true as of the date of Closing.
The representations and warranties of Seller and Buyer contained herein shall
survive for a period of two (2) years after the Closing (the "Survival Period "). Any claim which
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 Buyer's Due Dili eg_nce.
Within ninety (90) days following the Effective Date ( "Due Diligence Period "),
Buyer shall have reviewed, inspected and investigated, at its expense, the Property, either
independently or through agents of Buyer's choosing, including the following:
3.3.1 All matters relating to title, including taxes, assessments, and liens. If the
report on title, binder or commitment discloses any defects in title (other than liens or
encumbrances of a definite or ascertainable amount which may be paid at Closing by Seller),
Seller will have thirty (30) days from the date of Buyer's written notice of such defects to make a
good faith effort to cure such defects and to furnish a later report showing the defects cured or
removed. If such defects are not cured or removed within thirty (30) days, Buyer may terminate
this Agreement or may, at Buyer's election, take the title as it then is with the right to deduct
from the Purchase Price liens or encumbrances of a definite or ascertainable amount by giving
written notice of such election to Seller and tendering performance on Buyer's part.
3.3.2 All legal and governmental laws, statutes, rules, regulations, ordinances,
and restrictions or requirements concerning the use and development of the Property, including
but not limited to approval of this Agreement by the Oversight Board and approval of the
Property Plan, including disposition of the Property to Buyer, by DOF.
3.3.3 The physical, legal, economic and environmental condition and aspects of
the Property, and all other matters concerning the conditions, use, sale or development of the
Property, including any permits, licenses, engineers' reports and studies and similar information
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relating to the Property. Such examination of the condition of the Property may include
examinations for the presence or absence of Hazardous Materials, as defined below, as Buyer
deems 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 but not limited to (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.
3.3.4 Any easements and /or access rights affecting the Property.
3.3.5 Any contracts and other documents or agreements affecting the Property.
3.3.6 All other matters of material significance affecting the Property.
Within ten (10) business days of the Effective Date, Seller shall deliver or make
available to Buyer copies of all governmental reports, notices, soils tests, environmental reports,
plans, surveys, engineering reports, and any other material documents, information and data
relative to the Property that are in Seller's possession or under Seller's control ( "Seller
Materials ").
Prior to expiration of the Due Diligence Period Buyer shall provide written notice
to Seller that it has approved or disapproved the physical, legal, economic and environmental
condition and aspects of the Property, and all other matters concerning the legal status, condition,
use, sale or development of the Property as set forth above in its sole and absolute discretion. If
Buyer fails to notify Seller on or before the last day of the Due Diligence Period, that Buyer has
approved the Property as provided above, Buyer shall be deemed to have elected to terminate
this Agreement.
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, INCLUDING THE ENVIRONMENTAL CONDITIONS DESCRIBED ABOVE
( "AS IS CONDITION ") AND THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION
3.1.5 ABOVE, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR
WARRANTIES FROM SELLER, ITS AGENTS, OR BROKERS AS TO ANY MATTERS
CONCERNING THE PROPERTY.
Section 3.4 Disclaimers and Releases.
Buyer acknowledges and agrees that: (1) the condition of the Property will be
independently evaluated by Buyer during the Buyer's Due Diligence Period; and (ii) any
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information including Seller Materials were and are furnished without warranty of any kind
except as expressly provided in Section 3.1 and on the express condition that Buyer will make its
own independent verification of the accuracy, reliability and thoroughness of such information
and that to the extent Buyer opts to rely on such Seller Materials, Buyer will do so at its sole risk.
Buyer hereby releases Seller from any and all manner of rights, liabilities, claims,
actions, causes of action, suits, proceedings, demands, damages, costs, expenses (including
attorney's 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 (i) 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 or use; (ii) the physical,
environmental or other condition of the Property; (iii) the application of, compliance with or
failure to comply with any Applicable Laws; (iv) Hazardous Materials; and (v) the As Is
Condition (the foregoing are collectively referred to as "Claims ").
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.
Notwithstanding any other provision hereof to the contrary, the foregoing waiver and release
(and the term "Claims ") shall exclude those losses, liabilities, damages, costs or expenses, and
claims therefor, arising from or attributable to: (a) a material matter actually known to Seller
that is (1) not disclosed to Buyer, and (2) not discovered by Buyer prior to the Closing; (b) any
breach by Seller of its representations or warranties under this Agreement; and /or (c) any breach
by Seller of its obligations under this Agreement.
The provisions of this Section 3.4 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.
ARTICLE 4
TITLE
Section 4.1 Condition of Title.
At the Closing, Seller shall convey title to the Property to Buyer by grant deed in
a form substantially similar to that attached hereto as Exhibit B ( "Grant Deed "), free of any
possession or right of possession by any person except that of Buyer and subject only to those
exceptions disclosed in the Title Policy and approved by Buyer.
Section 4.2 Evidence of Title.
Delivery of title in accordance with the foregoing shall be evidenced by the
irrevocable commitment of First American Title Insurance Company, at 8182 Maryland Avenue,
Suite 400, Clayton, MO, 63105 ( "Title Company ") to issue, at Closing, its Owner's ALTA
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Policy of Title Insurance in an amount reasonably acceptable to Buyer showing fee title to the
Property vested in Buyer, free and clear of all recorded liens, encumbrances, leases and taxes
except as are consistent with this Agreement, and with such endorsements as may be requested
by Buyer ( "Title Policy "). Buyer shall be responsible for paying all costs of obtaining all title
policies and endorsements described herein.
ARTICLE 5
BROKERS AND EXPENSES
Section 5.1 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 fmder'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 without limitation, reasonable attorneys' fees and disbursements) incurred by the
Indemnified Party in defending against the claim. The provisions of this Section 5.1 shall
survive the Closing or other termination of this Agreement.
ARTICLE 6
CLOSING AND ESCROW
Section 6.1 Escrow Instructions.
Within ten (10) days following execution of this Agreement, the parties shall open
escrow and 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 6.2 Closing.
6.2.1 "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 the Title Company's recordation and delivery of the Grant Deed, delivery
of the documents as set forth in this Agreement, Title Company's irrevocable and unconditional
commitment to issue the Title Policy upon recordation of the Grant Deed, and the payment of the
Purchase Price by Buyer.
6.2.2 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 the date which is within thirty (30) days of completion of all conditions precedent
to conveyance as set forth in Article II, but in no event later than December 15, 2015 ( "Outside
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Closing Date "). Except as expressly provided above, the Outside Closing Date may not be
extended without the prior written approval of both the Seller's and Buyer's signatories to this
Agreement.
Section 6.3 Deposit of Documents.
6.3.1 At or before the Closing, Seller shall deposit into escrow the following
items:
(a) Documentary transfer taxes and Seller's customary share of the
normal prorations;
(b) Documentation of a credit towards the Purchase Price in the
amount of the Good Faith Deposit;
(c) the duly executed and acknowledged Grant Deed conveying the
Property to Buyer;
(d) an affidavit pursuant to Section 1445(b)(2) of the Internal Revenue
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 Internal Revenue Code; and
(e) California 597 -W Certificate.
6.3.2 At or before Closing, Buyer shall deposit into escrow the funds necessary
to close this transaction, including the Purchase Price, adjusted by a credit towards the Purchase
Price in the amount of the Good Faith Deposit, any normal prorations, the Title Policy premium,
all escrow fees and recording charges, all other closing costs, and the estimated amount of
Seller's administrative costs, including staff time, and legal expenses associated with the transfer
of the Property, to the extent such costs have not previously been reimbursed to Seller by Buyer
as of the Closing (collectively, "Seller's Administrative Costs "). In the event that the actual
amount of Seller's Administrative Costs exceeds the estimated amount deposited prior to
Closing, Buyer shall reimburse Seller the difference within thirty (30) days of receiving notice
and documentation of the actual costs. In the event that the actual amount of Seller's
Administrative Costs is less than the estimated amount deposited prior to Closing, Seller shall
refund the difference to Buyer within thirty (30) days of Closing.
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.
6.3.3 Buyer shall be solely responsible for paying the following costs associated
with the transfer of the Property: (i) the premium for the Title Policy, including any
endorsements; (ii) all escrow fees and recording charges, (iii) Buyer's customary share of other
normal prorations; (iv) all other closing costs; (v) all of Buyer's due diligence expenses; and (vi)
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Seller's administrative costs, including staff time, and legal expenses associated with the transfer
of the Property. Seller shall be solely responsible for paying the following costs associated with
the transfer of the Property: (i) documentary transfer taxes and (ii) Seller's customary share of
normal prorations.
6.3.4 Ad valorem taxes and assessments, if any, on the Property, levied,
assessed or imposed for any period commencing prior to conveyance of title shall be borne by
Seller. All ad valorem taxes and assessments levied or imposed for any period commencing after
Closing shall be paid by Buyer.
6.3.5 The provisions of this Section 6.3 shall survive the Closing.
Section 6.4 Indemnity. Buyer shall indemnify, defend (with counsel reasonably
acceptable to Seller), protect and hold Seller and City, and its and their officers, employees,
agents and representatives, harmless from, all claims, demands, damages, defense costs or
liability of any kind or nature relating to Buyer's performance and activities in connection with
the implementation hereof, including any damages to property or injuries to persons, including
accidental death (including reasonable attorneys fees and costs), whether such activities or
performance thereof be by Buyer or by anyone directly or indirectly employed or contracted with
by Buyer and whether such damage shall accrue or be discovered before or after termination of
this Agreement. Buyer's indemnity obligations under this Section 6.4 shall not extend to claims,
demands, damages, defense costs or liability for property damage, bodily injury or death
occasioned by the sole negligence or willful misconduct of Seller or the City, or its or their
officers, employees, agents or representatives, and in no event shall Buyer have any liability or
responsibility for any discovery or disturbance of any pre- existing Hazardous Materials affecting
the Property, which discovery or disturbance resulted from or related to any non - negligent
invasive testing done on or in the Property by or on behalf of Buyer with the consent of Seller.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Notices.
Any notices required or permitted to be given hereunder shall be given in writing
and shall be delivered (a) by certified mail, postage prepaid, return receipt requested, or (b) by a
commercial overnight courier that guarantees next day delivery and provides a receipt, and such
notices shall be addressed as follows:
To Seller: Successor Agency to the Community Development
Commission of the City of Rohnert Park
130 Avram Avenue
Rohnert Park, California 94928
Attention: City Manager
With a copy to: Burke Williams & Sorensen, LLP
1901 Harrison Street, 9th Floor
Oakland, California 94612
Attention: Karen Murphy
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To Buyer: McDonald's Corporation
One McDonald's Plaza
Oak Brook, IL 60523
LC: 004 -3309
Attention: US Legal — Dept. #091
With a copy to: 299 Oak Road, Suite 900
Walnut Creek, CA 94597
Attention: Development Director, LC: 004 -3309
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 7.2 Assignments; Successors and Assigns.
Neither party may assign its rights or obligations under this Agreement without
the prior written consent of the other party. Subject to the provisions of this Section 7.2, this
Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. No assignment shall release the assigning party from its
obligations or liabilities hereunder accruing prior to the date of such assignment.
Section 7.3 Right of Entry.
Prior to the Effective Date, Seller has provided, and after the Effective Date shall
continue to provide, Buyer with reasonable access to the Property and the records of Seller
relating thereto. Without limiting the foregoing, prior to any entry to perform any invasive on-
site testing, Buyer shall give Seller written notice thereof, including the identity of the company
or persons who will perform such testing and the proposed scope of the testing. Seller or its
representative may be present to observe any testing (whether or not invasive) or other inspection
performed on the Property. Buyer shall maintain, and shall assure that its contractors maintain
public liability and property damage insurance in amounts and in form and substance adequate to
insure against all liability of Buyer and its agents, employees or contractors, arising out of any
entry or inspections of the Property pursuant to the provisions hereof, and Buyer shall provide
Seller with evidence of such insurance coverage upon request by Seller. Buyer shall indemnify
and hold Seller harmless from and against any costs, damages, liabilities, losses, expenses, liens
or claims (including, without limitation, reasonable attorney's fees), arising out of or relating to
any entry on the Property by Buyer, its agents, employees or contractors in the course of
performing the inspections, testings or inquiries provided for in this Agreement. Buyer agrees to
keep the Property free from any liens arising out of any work performed, materials furnished or
obligations incurred by or on behalf of Buyer or Buyer's agents, employees or contractors with
respect to any inspection or investigation of the Property. If any such lien at any time shall be
filed, Buyer shall cause the same to be discharged of record within ten (10) days thereafter by
satisfying the same or, if Buyer, in its discretion and in good faith determines that such lien
should be contested, by recording a bond or providing title insurance insuring over such lien.
Failure by Buyer to discharge or bond over or provide title insurance over such lien shall be a
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material breach of this Agreement and Seller may terminate this Agreement and pursue such
other rights and remedies against Buyer as may be available at law or in equity. Buyer's
indemnity obligations under this Section 7.3 shall survive the Closing or other termination of this
Agreement.
Section 7.4 Default, Remedies.
The failure by any party to perform any obligation under this Agreement, if the
failure has continued for a period of thirty (30) days after the other party demands in writing that
the defaulting party cure the failure, shall be deemed a default hereunder. If, however, by its
nature the failure cannot be cured within thirty (30) days, the defaulting party may have a longer
period as is necessary to cure the failure, in any event not to exceed sixty (60) days, provided,
however, such extended cure period shall be conditioned upon the defaulting party promptly
commencing to cure within the thirty (30) day period and thereafter diligently completing the
cure.
Upon the occurrence of an event of default by Buyer, Seller, subject to the terms
of Section 1.4, shall be entitled to retain the Good Faith Deposit as liquidated damages. Upon
the occurrence of an event of default by Seller, Buyer may either institute an action for specific
performance or other equitable relief to compel sale of the Property to Buyer on the terms set
forth herein or Buyer may opt to terminate this Agreement by written notice to Seller in which
case the Good Faith Deposit shall be immediately returned to Buyer upon unilateral demand to
the Title Company. Except as provided in Section 1.4, neither party shall be entitled to any
monetary damages, and each party hereby waives any and all rights to recover consequential or
special damages arising directly or indirectly from a breach of this Agreement by the other party.
Section 7.5 Governing.
This Agreement shall be governed by and construed in accordance with the laws
of the State of California without regard to its choice of laws rules.
Section 7.6 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. 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."
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Section 7.7 Amendments.
This Agreement may be amended or modified only by a written instrument signed
by Buyer and Seller and duly authorized by the governing body of the Successor Agency, and
such other entities as may be required by the Dissolution Act.
Section 7.8 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 7.9 No Third Party Beneficiary.
The provisions of this Agreement are not intended to benefit any third parties.
Section 7.10 Joint and Several Liability.
If Buyer consists of more than one person or entity the liability of such persons
and entities shall be joint and several.
Section 7.11 Limitation of Liability.
Buyer acknowledges and agrees that City is entering into this Agreement solely in
its capacity as Successor Agency to the CDC, the Successor Agency is a separate legal entity
from the City of Rohnert Park, the liabilities of Successor Agency are payable exclusively from
property tax revenues that Successor Agency may receive from time to time pursuant to the
Dissolution Act and the City of Rohnert Park, a municipal corporation, shall have no liability to
Buyer in the event of any default or breach by Successor Agency, or for any amount which may
become due to Buyer or its successors, or on any obligations under the terms of this Agreement.
Buyer further acknowledges and agrees that no member, official or employee of Successor
Agency or City shall be personally liable to Buyer, or any successor in interest, in the event of
any default or breach by Successor Agency, or for any amount which may become due to Buyer
or its successors, or on any obligations under the terms of this Agreement. Seller acknowledges
and agrees that no member, officer, employee director, member, manager, agent or consultant of
Buyer shall be personally liable to Seller, or any successor in interest, in the event of any default
or breach by Buyer, or for any amount which may become due to Seller or its successors, or on
any obligations under the terms of this Agreement.
Section 7.12 Recordation; Actions to Clear Title.
Prior to Closing 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. If Buyer fails to complete its purchase of the Property for any reason,
or if this Agreement shall terminate for any reason not solely due to Seller's default hereunder,
then Buyer, at no cost to Seller, shall promptly execute, acknowledge and deliver to Seller, all
within thirty (30) days after written request from Seller, a quitclaim deed, in recordable form, in
favor of Seller, and any other documents requested by Seller to remove any cloud on title to the
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Property that may exist as the result of the existence of this Agreement or any escrow relating to
this Agreement. In the event Buyer fails to so execute and deliver any such document, Buyer
shall pay all losses, damages, costs and expenses, including, but not limited to, Seller's
reasonable attorneys' fees, incurred in connection with Buyer's breach of its obligations under
this Section 7.12, including interest, carrying costs associated with the Property from the date of
Buyer's failure to comply with this Section 7.12 and costs of clearing any such cloud on title.
Section 7.13 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 7.14 Waiver of Covenants, Conditions or Remedies.
The waiver by one party of the performance 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 7.15 Termination.
This Agreement may be terminated: (i) by Buyer, if prior to expiration of Buyer's
Due Diligence Period, Buyer elects not to proceed with purchase of the Property; (ii) by Buyer, if
prior to Closing Buyer's Conditions Precedent to Conveyance have not been satisfied or waived;
(iii) by Seller, if prior to Closing Seller's Conditions Precedent to Conveyance have not been
satisfied or waived; (iv) if there is an uncured default, by written notice from the party not in
default pursuant to Section 7.4; (v) if there is a failure of an express condition (which is not
waived by the party whom the condition benefits) by written notice from the party whom the
condition benefits; or (vi) by either party if escrow fails to close by the Outside Closing Date set
forth in Section 6.2.2. The party wishing to terminate the Agreement must provide the other
party with written notice of termination.
Section 7.16 Cooperation in the Event of Third -Party Legal Challenge.
Seller and Buyer shall cooperate in the event of any legal action instituted by a
third party or other governmental entity or official challenging the validity of this Agreement.
To the extent that Buyer determines to contest such litigation challenges, Buyer shall reimburse
Seller and City, within ten (10) days following Seller's written demand therefor which may be
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made from time to time during the course of such litigation, all costs incurred by Seller and City
in connection with the litigation challenge, including Seller and City's administrative, legal and
court costs, provided that Seller and City shall either: (a) elect to joint representation by Buyer's
counsel; or (b) retain an experienced litigation attorney, require such attorney to prepare and
comply with a litigation budget, and present such litigation budget to Buyer prior to incurring
obligations to pay legal fees in excess of $5,000. Buyer further agrees to indemnify and hold
Seller and City harmless from and against any and all claims for recovery of the third party's
litigation expenses, including attorney's fees. If Buyer elects, in its sole and absolute discretion,
not to contest such litigation challenges, then neither Seller nor City shall have any obligation to
contest such challenges.
Section 7.17 Time.
Time is of the essence in the performance of each of the parties' respective
obligations contained herein.
Section 7.18 Entire Agreement.
This Agreement, including 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 7.19 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 7.20 Exhibits.
All exhibits to which reference is made in this Agreement are deemed
incorporated in this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
SELLER:
Successor Agency to the Community
Development Commission of the City of
Rohnert Park, a public body established
pursuant to the laws of the State of California
Darrin Jenkins
City Manager, City of Rohnert Park
Per Resolution No. 2015 - adopted by the
Rohnert Park City Council at its meeting of
September 8, 2015.
ATTEST:
:
Eydie Tacata
Oversight Board Clerk
APPROVED AS TO FORM:
in
Elizabeth Ann Strauss
Oversight Board Counsel
BUYER:
McDonald's Corporation, a Delaware
corporation
By:
Name:
Title:
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Exhibit A
to Grant Deed
DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SONOMA, DESCRIBED AS FOLLOWS:
All that certain real property situate in the City of Rohnert Park, County of Sonoma, State of
California, being a portion of the lands of the CITY OF ROHNERT PARK, a Municipal
Corporation, described in that certain Grant Deed recorded June 16, 19$8 under Document
Number 88048420, being a portion of Lot or farm numbered One Hundred and Sixty - Three
(163) of Santa Rosa Farms Subdivision No. 2, as designated on the plat thereof filed in the office
of the County Recorder of the County of Sonoma, State of California on March 7, 1910 in Book.
21 of Maps, Page 14, being more particularly described as follows:
That portion of said Lot or farm numbered One Hundred and Sixty -Three (163) lying westerly of
the westerly right of way of Redwood Drive as said Redwood Drive is shown on that certain map
titled RECORD OF SURVEY OF REDWOOD DRIVE REALIGNMENT filed January 18, 1990
in Book 451 of Maps at Page 5 in said office of the County Recorder, said portion being shown
on that certain RECORD OF SURVEY filed January-8, 1992 in Book 488.of Maps at Page 20 in'
said office of the County Recorder and being further described as follows:
BEGINNING at the northwesterly comer of said lands; thence southerly, along the westerly line
of said lands, South 00 °06'04 "West, 280.23 feet to the westerly right of way of Redwood Drive,
being a point of crisp on a curve concave southeasterly, having a radius of 551.00 feet; thence
northeasterly along said westerly right of way from a tangent that bears North 00 006104 "East,
through a central angle of 30031'07" an are distance of 29149 feet to the northerly line of said'
lands; thence westerly, along said northerly line, North 89 °34'56 "West, 76.33 feet to the POINT
OF BEGINNING.
Containing 0.16 acres, more or less.
APN: 045 -081 -007
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•
EXHIBIT A -1
DEPICTION OF THE PROPERTY
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FORM OF GRANT DEED
RECORDING REQUESTED BY
Title Insurance Company
AND WHEN RECORDED MAIL TO:
Attention:
(Space Above This Line for Recorder's Use Only)
[Exempt from recording fee per Gov. Code § 27383]
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged,
The SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF ROHNERT PARK, a public body established under the laws
of the State of California ( "Grantor "), hereby grants to McDonald's Corporation, a Delaware
corporation ( "Grantee "), all of Grantor's right, title, and interest in the real property described in
Attachment 1 attached hereto and incorporated herein ( "Property ").
GRANTOR:
Successor Agency to the Community Development Commission of
the City of Rohnert Park, a public body established pursuant to the
laws of the State of California
By: [FORM— DO NOT EXECUTE]
Darrin Jenkins
ATTEST:
(signature rnust be notarized)
City Manager, City of Rohnert Park
JoAnne Buergler, City Clerk
APPROVED AS TO FORM:
:
Michelle Marchetta- Kenyon, City Attorney
EXHIBIT B
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ATTACHMENT I
TO EXHIBIT B
PROPERTY DESCRIPTION
Ito be inserted]
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