Option Agreement 2000-0662214
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DOC4i 2000'-0662214
DEe 06~ 2000 8:21 AM
OFF,ICIAL RECORDS
SAN DIEGO CfiONT'li RECoRDER'S, OFFICE
mGORV J. SMITH, COUNTY RECORDER
FEES: 0.00
1721
RECORDING REQlJESTED BY
ANDWHENRECORDED'MAIL TO:
City Clerk
City of Roway
P;O..Box 789
Poway, California 92074"0789
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"2000.0662214, '
! if' APN 3L7-101-10
Exempt from Recording Fee Pursuantto Government
Code, Section 27383
OPTION AGREEMENT
T)1is OptionAgreement ("Agreement") is made as of 11;;./ ,2000, between the City
of Po way, amunicipaLcorporation organized under the laws ofthe StatecofCa1ifornia ("Optionor"), and
Poway Library Plaza" LLC ("Optionee"),
RECITALS
},:,) Optionorjs the owner of certain real propertysitwlted in San Diego County, California,
cOrrul1only known as 13202 Poway RQad, Poway, CA, more fully described in Exhibit "A" attached hereto
(the "Property"),
B,) Optionee desires to acquire the exclusive righttopurchase the Property or an unimproved
portiontherecif at agreed prices and under the specific terms in this Agreement.
For good and valuable consideration, the receipt and adequacy of which are acknowledged;the
parties agree as follows:
SECTION 1. OPTION TO PURCHASE.
Optionor grants to ,Optionee an Option (the "Option") to purchase the Property onJhe terms and
conditions of this Agreement, and the Purchase Agreement and Instructions to Escrow attached as
Exhibit ',B" and,incorpcirated by reference ("Purchase Agreement"), and the Land Purchase Agreement
and Instructions to Escrow attached as Exhibit "C" and incorporated by reference ("Land Purchase
AgreelIlent").
SECTION 2. CONSlDERATlON'FOR OPTION.
Concurrentlywiih the, execution of this Agreement, Optionee has paid to Optionor as consideration
the sUm ofTen Thousand Dollars ($10;000,00) for the Option (the "Option Price"), If the option granted
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under this Agreement is:exercised by Optionee, Optionbragreesto credit the:OptionPrice to the purchase
pricedfthe Property m.theevent of failure of anyconi:!itiOlbn Section4 hereoffor,any reason or in the
event that tlusoptit,n IS not exercised for any other reas6n, the Optiori Price shall be retained by Optionor
in consideration of the granting of this option,
SECTION 3, TERM.
This Agreement shall be effective as of the date hereof and shall expire automatically atSOO p,m,
on July 1,2001, or earlier in the everit ofa failure of any condition set forth in Section 4 orin the event
that written notice is given by Optionee that Optionee has elected.not to exercise the Option ("Option
Term"), In the eventthat the Option is:exercised in accordance herewith, escrow shall close within forty-
five (45) days of such. exercise or.as soon thereafter as possible,
SECTION 4. CONDITIONS TO EXERCISE OF OPTION.
Optionee shall have the right to exercise this Option within the time limits set forth herein,
However, Optionor shall norbereqllired to close the sale until the following conditions precedent have
been fully satisfied in a timely inaruier
(a) Approval by City and Poway Redevelopment Agency of the development
site plan and conceptual architectural elevations incorporating the subject
property into Library Center Plaza,
(b) Complianceofall of Optionee's rehabilitation plans with the Poway Road
Specific Plan. guidelines,
(c) Compliance of all of Optionee's rehabilitation plans with City building
codes,
(d) Payment by Optionee of all costs associated with preparation and
processing of OptlOnee's rehabilitation plans,
Ie) Detennination byCity Council that the subject property is no longer needed
by City
\f) Approval by the Redevelopment Agency in its sole discretion of a Loan
Participation Agreement on or before 'January 8, 2001; for Optionee's
approved rehabilitation plans including the subject property and Library
Center Plaza in an amount not to exceed 30% of City approved project
rehabilitation costs,
(g;) Approval by City of an appraisal by an independent MAl confirming value
of the Property equal to or greater than the proposed purchase price,
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Failure of any of.the~abovecol1ditions for any reaSon whatsoever; including disapproval of any of
the above by theC\tyCouncil inits sole,discretion, shalIterrilinakthls Option; provided, however, in the
event that Optionee exercises ,the Land Option, Optiond::shall'hold the Option to purchase the property
on the terms and conditions hereof; plus 5% per annum on the'PlIfchase Price, for a jJeriod of thirty-six (36)
months from the date Of execution of the Land Option, exercisableif alLof the conditions precedent are
satisfied,
SECTION 5. LAND OPTION.
Optionor hereby grants Optionee a land option (the "Land Option") to purchase a portion of the
Property which does not include the building, The City-owned site shall retain . square footage of the
minimum lot size in that zone (IO,OOO'square feet), Optionee shall,jJllrchaseapproximately 5,000 square
feet of the northerly portion ofthesite.and'exchange with the Optionor property located to the west of the
site, Optionee's propertyshall.be reco,nfigured to allow for the proposed construction of an approximate
6,900 square feet building on property to be owned by Optionee to the immediate north of.the existing
City-owned building, ReciprocaLparking.easements shall be executedby.the parties to provide common
access and parking rights to botn.isites, The Optionor agrees torel1abilit~te the exterior ofthe land and
building which it Tetains at thesame'time that Optionee rehabilitates the Poway Library Plaza and in a
manner consistent with Optionee's development. The PurchasePnce;shall be $17,00 per square foot, all
payable by Promissory Note' to .Optionor upon sale of the project to a third party, but in any event in
seventy-two (72) months without interest ifpaid within that time; ifnot paid within that time, the note shall
be in defauItand shall bear interest a! 7% compounded annually from the date of close of escrow of the
sale of the portion ofthe Property to:Optionee, The note shall be due'onsale and secured.by a deed of
trust against.theproperty The cost oftl:Je boundary adjustment.andall otherrelated costs shall be borne
by Optionee, ThisLand.Option must.be exercised within the Option Term, If it is exercised,. the Option
Price shall be credited to the purchase price of the land, Ifthe Option is exercised after the Land Option,
Optionor shall cancel the,ProrriissoryNoteTeferred to in this Section 5'upon close of.escrow Upon close
of escrow of the Option, the Option Price shall be credited to the' Purchase Price set forth in the Purchase
Agreement and Instructions to Escrow
SECTION 6. EXERCISE.
Proyided Optionee is notin default under this Agreement and all conditions. of exercis.e have been
satisfied, theOpJionor the Land Option maybe exerCised by Optionee1s delivering to Optionor before the
expiration of the ()ption Term written notice of the exercise ("Exercise Notice"), which..shall state the
option is exercised without qualification, The Exercise Notice for the option must be accompanied by two
(2) copies of the Purchase Agreement executed by Optionee, with the first paragraph ofthe Purchase
Agreement completed by insertion of the date on which the Exercise,Notice is given, The Exercise Notice
forthe Land Option shall be accompanied by a signed copy of this Option Agreement,
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Section 7. Execution of Purchase Agreeinentor
Land Purchase Agreement
On receipt by OptioIlor oDhe Exercise Notice and two (2) copies of the Purchase'Agreement!or
Land Purchase Agreement executed by Optionee, Optionor shallpromptly execute the PUrchase Agreement
or Land'Purchase Agreement and deliver an executed copy to Optionee; Optionor's failure'to execute and
deIivera copy ofthe Purchase Agreement or Land Purchase Agreeinentin accordance with this section
shall not affect the validity of the Purchase Agreement or Land Pirrcliase Agreement The Purchase
Agreement or Land Purchase Agreement shall be irnrnediatelyeffectiveand bindirig. on ,both Optionor and
Optionee without further execution;by the parties, on exerciseofthe'Option in accordance with Section
4
SECTlON8. PROPERTY INVESTlGATlON.
During the Option Term, Optionee shall be entitled to entetthe Property upon reasonable notice
for purposes of inspecting the Property and completing any desired sfudies and analyses concerning the
Property including, but not.Iimited to, soils testing and hazardous'waste.and contamination studies, City
shall provide all soils reports, building and improvement plans, HVAC'arid.electrical plans, ALT A surveys,
'~as"buiIts" and all other plans and studies ofthe Property withinfifteen{15) days of execution hereof,
Optionee shall restore any damage to the Property and shall indemnify arid'hold Optionor. harmless from
and against all c1aims,Josses and damages (including reasonable attorney's fees) which,arise'.inanyway
from Optionee's inspections, Optionee shall not be obligated'to purcl:1ase the PropertY unless Optionee
shall have approved all aspects of the Property including the results ofthe investigatil)Ds or waived its
approvaL If Optionee disapproves oflhetesuIts of inspection and' review;, Optionee may elect to terminate
this Option Agreement by giving Optionor written notification, Failure to give such written notification
shall constitute approval by Optionee of the condition of the Property and Optionee shall thereafter hold
Optionor harmless from any claims in connection therewith,
SECTlON9. REPRESENT A TlONS AND W ARRANTlES.
Optionor warrants that as of the date of transfer Optionor is the'owner of the Property ,and has
marketable and insurable fee simple title to the Property clear of.restrictions; leases, ,liens, and other
encilinbrances, except as permitted inthe Purchase Agi-eement Ifthis Option is consurnmated,Optionor
will convey title to this Property by grant deed, During the Option Term .and until the Property is
conveyed toOptionee,.ifthis Option is exercised, Optionor will notencurnber.the Property ih any way nor
grant any property or contract right relating to the Property withputtheprior written consent of Optionee,
SECTlON 10. TIME OF ESSENCE.
Titneiis ofthe, essence for this Option Agreement Ifthe Option is not exercised in the manner
provided iilSectionA before the expiration of the Option Term, Optionee shall have no interest in the
Property and the Option!may not be revived by any subsequent payment or further action by Optionee,
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SECTION 11. QUITCLAIM DEED.
If this Agreement expires oris terminated, Optionee agrees,.ifrequested by Opti()nor,.toexecute,
acknowledge, and. deliver a quitclaim, deed to Optionor within ten (10) days of demand thereforand,to
execute:. acknowledge, and deliver any other documents required by any title company to removetheclo\ld
of this Option from the Property
SECTION 12. NOTICES.
All notices, demands, requests, exercises, and other communications under this Agreement by
either party shall be in writing, directed to the addressee identified in Section 15 of Exhibit"B," and
(a) sent by Unite,d'StatesCertified Mail, return receipt requested, in which case,
notice shall be deemed delivered three (3) business days after deposit,
postage prepaid, in the United States mail, or
(b) sent by a nationally-recognized overnight courier, in which case, notice
shall.bedeemed delivered on one (1) business,day after deposit with that
couner, or
(c) sent by telecojJy oLsimilar means if a copy ofthenotice is also senLby
United States Certified Mail, in which case, notice shall be deemed
deliveredontiahsriJittalby telecopier or other similar means, provided that
a transmission.report is generated that reflects the 'accurate transmission of
the notices, as follows:
The addresses may be changed by written notice to the other party,
provided no notice of a change of address shall be effective until
actua1.receipl'ofthat notice, Copies of notices are for information
pirrj:JOsesonly,and a failure to give or receive copies of any notice
shall not be,deemed a failure to give notice:
SECTION 13. ASSIGNMENT.
Optioneemily:not assign or transfer this Agreement and the rights under it without Optionor's.prior
written.cons'ent, wliichshallonly be given in the sole and. absolute discretion of Optionor
SECTION 14. LITIGATION COSTS.
If any legal action orany other proceeding, including arbitration or action for declaratory relief,
is brought for the' enforcement of this Agreement or because of anallegei:l dispute, breach, default, or
misrepresentation in connection with this Agreement, the prevailing party shall be entitled to recover
reasonable attorney fees and other costs, in addition to any other reliefto which the party may be entitled,
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"Prevailirigparty" shall include withoui limitation.
(a) a party who dismissed an action in exchange for sums allegedly due;
(b) the party who ,receives performance from the other party of an alleged
breach of covemint or a desired remedy where that is substantially equal to
the relief soughtin an action; or
(c) the party determined to be the prevailing party by a court oflaw
SECTION 15. SURVtVAL.
The terms ofthis.Agreement shall survive the close of escrow of the Property unless there is a
contradiction between the Purchase Agreement or Land Purchase Agreement and this Agreement, in which
event, the Purchase Agreement or Land Purchase Agreement shall control.
SECTloN16. SUCCESSORS.
This Agreement shall bind ancl:iI1ureto the benefit of the respective heirs, personal representatives,
successors, and assignees of the parties to this Agreement.
SECTtON 17. WAIVERS.
No waiver of any breach of any 'covenant or provision in this Agreement shall be deemed a waiver
of any other coven.ant or provision in this Agreement, and no waiver shall be valid unless in'Writing and
executed by the waiving party
SECTION 18. CONSTRUCTION.
Section headings.aresolelyJor the convenience of the partiesand.are.not a part of iilld shall notbe
used to interpret this Agreement. The singular form shall include the' plural and vice versa, This
Agreement shall not'beconstrued as if it had been prepared by one.oftheparties, but rather as ifboth
parties have prepared it. Unless otherwise indicated, all references to sections are to this Agreement.
SECTION 19. FURTHER ASSURANCES.
Wheneverrequesiedby the other party, each party shall execute, acknowledge, and deliver'all
further conveyances; agreements,confiimations, satisfactions, releases"powers of attorney, instruments
of further, asstirances, approvals, consents, and all further instruments and documents as may be necessary,
expedient, or property to complete any conveyances, transfers, sales, and agreements covered by this
Agreement, and to do all ,other acts and to execute, acknowledge, and deliver all requested documents to
carry outthe'intent:artd'purpose of this Agreement.
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'SECTION 20. THIRD-PARTY RtGHTS"
Nothing in this Agreement, express or implied, is intended'to confer on any person, other than the
parties to this Agteementand their respective successors and assigns, any ,rights or remedies under or by
reason of this Agreement.
SECTION 21. INTEGRATION.
This Agreement contains the ,entire agreement between the parties, and expressly supersedes all
previous or contemporaneous agreements, understandings, representations, or statements between the
parties respecting the Option for the Property
SECTION 22. COUNTERPARTS.
This Agreementmay be executed in one or more counterparts, each of which shall be deemed an
original and all of which taken togetlier.shall constitute one and the same instrument,
SECTION 23. AMENDMENT.
This Agreernent may not be amended or altered except bya written instrument executed by
Optionor and Optionee,
SECTION 24. PARTIAL INVALIDITY.
Any provision ofthisAgreementthatis unenforceable or invalid orthe inclusion of which would
adversely affect the validity, legality, or enforceability of this Agreement shall be of no effect, but all the
remaining provisions ofthis Agreement shall remain in full force,
SECTION 25. EXHIBITS.
All attached exhibits'are Incorporated in this Agreement bythisreference,
SECTION 26. AUTHORITY OF PARTIES.
All personsexecutin$this Agreement on behalf of any party to this Agreement warrant that they
have the authority to execute this Agreement on behalf ofthatparty
SECTION 27. GOVERNING LAW.
The validity, meaning, and effect of this Agreement shall be determined in accordance with
Califoniia law
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SECTION 28. RECORDATION.
This Agreementffiay be recorded' by either party hereto,
The parties have executed this Agreement as of the date first above written,
Optionor'CITY"OF POWA Y
Optionee: POW A Y LIBRARY PLAZA, LLc
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By
Michael P
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C\DATAIJOHNS9N\CORR2000\MEISNOPT WPD
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CALIFORNIA ALL.PURPOSEACKNOWLEDGMENT
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CALIFORNIA AtL;PURPQSE ACKNOWLEDGMENT
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Description of Attached Docuineht
Title or Type,of Document:
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Exhibit A
Description
ALL THAT pORTION OF THESm;;rHWEST QUARTER OF THE NORTHWEST
Q!JARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE2WEST, SAN
BERNARDINO BASE AND'MERIDIAN, IN THE COUNTY 0FSAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS
FOLLOWS,
BEGINNING AT THE SOUTHEAST CORNER OF SAID SOUTHWEST QUARTER
OF THE NORTHWEST QUARTER THENCE ALONG THE EAST LINE OF SAID
QUARTER NORTH 1040'30" EAST SO;OO FEET TO A POINTON THE NORTHERLY
BOUNDARYOFTI:IEPUBLIC ROAD KNOWN AS POWAY ROAD'R.S, 944 &
R.S, 1713-, SAID POINT BEING THE TRUE POINT OF BEGIN1\!ING, THENCE
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COt:ITINUING ALONG SAID EAST LINE NORTH 1040'30" EAST 150,00
FEET;TH:l;NCE NORTH 8900S'30" WEST 100,00 FEET; THENCE SOUTH
1 049'30"WEST fSO,OO,FEETTOAPOINT ON THE NORTHERLY BOUNDARY
OFPOW A Y ROAD; THENCE ALONG SAID BOUNDARY SOUTH 8900S'30" EAST
100,00 FEET TO THE TRUE POINT OF BEGINNING.
Exhibit "Aft
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1732
PURCiIASEAGREEMENT XND
INSTRUCTIONS TO ESCROW
The undersigned agree to the purchase and sale of the followlhg,described premises at the price
and on the termsandcdhditions set forth below'
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NAME OF BiJYER,
Poway Library Plaza, LLC
NAME OFSELLER:
City of Po way
Legal description attached as Exhibit "A" coIirmohly
known as 13202 Poway Road, an improved property
consisting of approximately 15,100 square feet of land and
a singie-story building ofapproxirnately 2,380 square feet.
2,
PREMlSES:
3,
PRICE:
Two Hundred Seventy-Three Thousand Nine Hundred
Dollars ($273,916.00),
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ESCROW HOLDER:
Commonwealth Land Title
Attention: Marie Berry
1455 Frazee Road, Suite 600
Sari.Diego, CA 92108-3887
5, PURCHASE PRICE: The purchase price for the property shall be Two Hundred
Seventy-Three Tbousi\lld Nine Hundred Dollars ($273,916,Q.Q) ("Purchase Price"), One
H;undred, Eighty ThousandDollars ($180;000,00) cash at close of-Escrow and a promissorynbte,
alI due'in seventy-two (72) months, secured by deed of trust ofsecond priority in the sum of
$93;916.00'behind the primary financing for the project. Upon. execution of this Agreement by
Buyer, Sellerwilldeliverthis-Agreement,to Escrow, The Option Price ofTen ThousandDollars
($10,000;00) previously paid to Seller outside of Escrow shilllserve as the deposit ("Deposit"),
Upon close of Escrow; the Deposit, without interest, shall be credited towards the PUrchase
Price, In the event that Escrow does not close, Buyer shall pay all costs of Escrow and Escrow
Holder shall not be concerned with the Deposit. The promissory note referred to above shall
bear no interest for seventy"two (72) months if paid within that-time; jf not paid within severity-
two (72) months, this note shall bearihterest at 7% per annum compounded annually from the
date of close of'escrow Said note shall provide that it is due on sale if the premises is sold,
6, OPENING.OF .ESCROW' The Escrow ("Escrow") shall be deemed open when
Escrow Holder receives identical signed instructions from Buyer and Seller,
7, CONDITIONS TO BUYER'S OBLIGATIONS TO CLOSE ESCROW: Buyer's pUrchase of
the property is conditioned upon and subject to the following:
7,1 FINANCING, Buyer shall pay all cash at close of Escrow The sale is not
cohtingentupon Buyer obtaining financing,
Page 1 of 6
Exhibit "B"
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7,2 Trn.E' ApPRbVAL. Promptly after the opening of Escrow, Buyer shall
cause Escrow Holder to 'issue ,to,Buyef'(with a copy to Seller) a preliminary report for an AL T A
Owner's Policy for the Property,;setting" forth all liens, encumbrances, easements, restnctions,
conditions, pending litigation, judgments, administrative proceedings, and other matters affecting
title to'the Property ("Preliminary Rliport"), together with copies of all documents relating to title
exceptions referred to in the Prelifuinary Report, Within ten (lO}days of Buyer's receipt ofthe
Preliminary Report, Buyer shall notifY Escrow Holder in writing of any unacceptable exceptions
in the Preliminary Report, If Buyer fails during such ten (10) day period to approve or
disapprove in writing any such exceptions shown on the Preliminary Report, Buyer shall be
deemed to have approved the Preliminary Report, Failure of Buyer, to disapprove any matter
shall be deemed Buyer's acceptance' of same, Should Buyer disapprove of any title matter,
Seller shall notifY Buyer witliih ten (10) business days whether Seller is willing or able to
provide for the removal of such ' title' matter, If Seller notifies Buyerthat 'Seller is either tinable or
unwilling to refuove the objectionable title matter, Buyer shall within three (3) calendar days,
either waive its objection. or termiIiate this Agreement. Failure of'Seller to notify Buyer that
Seller iseith~r unwilling or umibie'to remove such title objections shall be deemed Seller's
election not to cure such defect. In the event that any revised Preliminary Report contains an
exception(s), which was not contained in the original Preliminary Report, which exception first
appears of record after the ' effective ' dilte, of the original Preliminary , Report (a "New Exception"),
Buyer shall have thli,same rights to,.object to such New Exception and Seller shall have the same
rights to elect whether ot,noLto remove such New Exception as are'iset forth above withtespect
to exceptions referred to in the Preliminary Report,
8. CLOSE OF ESCROW'
8,1 TITLE INSURANCE POLICY Simultaneously with the Close of Escrow,
Escrow Holder shall issue an ,ALTA 'Owner's Policy of Title Insurance ("TitkPolicy") in the
amount of the Purchase Price, subject only to the following matters ("Approved Excepti'ons"):
(i) a lien for real property taxes, not,then due; and
(ii) exceptions approved by Buyer in accordance with Section 7.3
8.2, SELLER'S DEPOSITS INTO ESCROW' Seller shall.deposit with Escrow Holder
on or prior to the.Close of Escrow the'following documents:
(i)
A grant deed executed and acknowledged by Seller conveying to
Buyer good and marketable fee, simple title to the Property
("Grant"), subject only to the Approved Exceptions;
(ii)
Seller's affidavit of nonforeign status as contemplated by Section
1445 of the Internal Revenue Code of 1986, as amended
("FIRPT A Affidavit"); and
(iii)
Seller's affidavit as contemplated by the Revenue and Taxation
Code SS1880S and 26131 ("Withholding Affidavit"),
Page 2 of 6
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1.4
8,3 CLOSING'DATE: The conveyance of'theProperty to Buyer and ,the cl()sing
of this transaction ("diose of Escrow") shall take place within forty-five (45) days following the
opening of Escrow ("ClOsing Date");,or as soon thereafter as possible, but in anyeverit, not later
than ninety (90) days after the date ohhis Agreement.
8.4 ON, THE CLOSINGDAl'E: On the Closing Date, Escrow Holdershall.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
Record the Grant (marked for return to Buyer) with the County
RecorctetfOrSan Diego County (which shall be deemed delivery to
Buyer);
Issue the Title Policy;
DisbUrse to Seller the Purchase Price less prorated amounts and
charges to be paid by or on behalf of Seller;
Charge Buyer and Seller for those costs and expenses to be paid by
each pursuant to this Agreement and disburse any net funds
remaining after the preceding disbursements to Buyer;
Prepare ,and deliver to both Buyer and Seller one signed copy of
Escrow Agent's closing statement showing all receipts and
disbursements of the Escrow; and
Deliver to Buyer the FIRPTA Affidavit and the Withholding
Affidavit.
If Escrow Holder is unable to simultaneously perform all of the instructions set
forth above, Escrow Holder shall notjfy Buyer and Seller and' retain all funds and docuIlients
pending receipt of further instructions jointly issued by Buyer and Seller.
8,5 CLOSING COSTS: Seller shall pay all charges in connection with issuance,of
the Title Policy in the amount of. the Purchase Price (without any endOrsements), Buyer arid,
Seller shall pay equally the <eost of recording the Grant Deed, the Escrow Holder's fee, the
documentary trarisfer'taxi"fot..recording the Grant Deed (if any) and all other miscellaneoll,s,costs
ofc1osirtg Escrow Buyer shall pay the difference in premium cost between a CL T A policy ilnd
the ALTA policy, Escrow Holder shall notify Buyer and Seller'iri writing of closing costs no
later than three (3) business days prior to the Closing Date, Taxes and assessments shall be
adjusted and.prorated through the Closing Date,
9 REPRESENTNtIONS AND WARRANTIES: Seller and Buyer represent, warrant and
covenantthat"(each with,respect to its own conduct only) (i) Seller and Buyer have the right;
power, legal capacity and authority to execute, deliver and perform this Agreement; (ii) all
consents required as a condition to Seller and Buyer's authority to execute, deliver and perform
this Agreement have,'been obtained; Seller represents that (iii) to Seller's knowledge, there are no
toxic or hazardous waStes or materials including asbestos in, attributable to or affecting the
Property (exceptas maybe set forth in any environmental assessment reports obtained by Seller
and delivered to Buyer) and if there is any contamination Buyer may elect to terminate this
Page 3 of 6
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1735
Agreement pri()r to tl1e- Closing Date by giving Seller written notification, and the Deposit
together with all interest shall be retUrned to Buyer; (iv) at the time of the exeq.lt(on of this
Agreement and as of the. closing,. no leases of the ']:5ropertyandi no contracts affecting the
Propertyiare orwill be in force except as'jdentified in Exhi]:>i! "B" and those disclosed in writing
five (S) days after0pening of .Escrow and no one else .has' a right of possession, no leasing
commissioI1s will be due or owing, ,no rent concessions have been or will be given, no other
agreements were' made or will be;made with the tenants, andneitl1er Seller nor any tenant is in
default'under any' lease; (v) after execution of this Agreement, 'Seller shall not enter mtoany new
leases or contracts affecting the Property, without Buyer's written consent; (vi) to Seller's
knowledge there are not now and, as ofthe Close of Escrow, there will not be any violations of
tiny law, ordinance, fJlle or adminiStrative or judicial order affecting the Property; and (vii)'to
Seller's knowledge there is'no litigation pending respecting the Property, or the use or operation
ofthe Property
10, POSSESSION, Possession shall be delivered to Buyer'atthe Close of Escrow
11 LEASEBACK CONTINGENCY The Seller may leaseithe subject improvements and
adequate adjacent parking frO!ll Buyer after close of Escrow for a period not to exceed 'forty-
eight (48) months, . Seller may exercise such lease at any time prior to close of Escrow by
tendering to Buyer through ,Escrow a,.written lease approved by BuyeL If such lease is deposited
into Escrow, Escrow shall not close until Buyer executes said lease and authorizes delivery to
Seller. . Rent shall be $l,2Striple net per square foot of building per month, Annual rental
increase shall be limited to $,05 per square foot of building per month, Said lease shall be for
any lawful use by Seller and shal1 be lertiiinable by Seller on Ninety (90) days written notice,
While the Seller is an occupant of the subject building, a remodel and expansion
of the property will occur in' conformance with the City,approved redevelopment plan,
Accommodations will be made by Buyer to ensure that the City occupant in the building will
remain open for business in a safe, clean environment while remodel of the exterior building
occurs,
12, SUCCESSORS.AND ASSIGNS, This Agreement shall'be binding upon and shall inure
to the benefit of the parties hereto, .a:nd their respective heirs, successors and assigns, BlIyer
reserves the right to assign its interest in this Agreement to another party or entity which
develops or owns the adjoining Library Center Plaza, in which event the assuming party or entity
sQallbe bound by all terms and conditions of this Agreement and Buyer shall remain fUllY' liable
a:nrl responsible hereunder; such assignment shall be subject to the approval of Seller, which
approval, shall not'be umeasonably withheld, Any other assignment by Buyer shall be subject to
approval of Seller in Seller's sole and absolute discretion,
13 LIQUIDATED DAMAGES, If the Escrow fails to close for any reason, neither Seller-
nor Buyer shall be damaged nor entitled to compensation for damages, except as provided
Page 4 of 6
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171>
herein, By placing their.jriitiais' here, the Parties mutually agree that neither party shall be
entitled to liquidated datnages,andBuyer's Deposit shall be retained by Seller
BUYER'S INITIALS
'SELLER'S INITIALS
14 'BROKERS, Each party warrants and represents to the other that no third~party
brokers have been retained or consUlted in connection with this transaction and that no broker
commissions are payable OIl this sale, Each party agrees to defend, indemnify, and hold
harmless the other party from any c1a,ims, expenses, costs, or liabilities. arising in coimection with
a breach of that party's representations, warranties, or covenants under this Agreement.
15 NOTICES, All notices to be given under this Agreement shall be in writing'and
sent via certified mail, return receipt -requested, and deemed delivered three (3) business days
after deposit, postage prepaid in the United States Mail as follows:
SELLER,
Deborah Johnson, Director of Redevelopment Services
City of Po way
13325 Civic Center Drive
Poway, CA 92064
BUYER,
TimMeissner
Meissn~rJacquet Investment Management Services
8525 Gibbs Drive, Suite 200
San Diego, CA 92123
16, ENTIRE AGREEMENT Thi~ Agreement contains the entire agreement between the
parties to this Agreement and shall,hot be modified in any manner except by an instrument in
writing executed by the parties or their. respective successors in interest.
17 SEVERABILITY Ifany term or provision of this Agreement shall, to any extent, be
held invalid or unenforceable, theTemaiIlder of this Agreementshall not be affected,
18. MERGER, All ofthe.terms, provisions, representations, warranties, and covenants
of the parties under this Agreement"shall survive the Close of Escfowfor a period of one (1) year
and shall not.be m.erged in'the QUitclaim or other documents,
19 TIME OF THE ESSENCE. Time is of the essence in'this Agreement,
The parties have executed this Agreement as of the _day of
2000,
BUYER, POW A Y LIBRARY PLAZA, LLC
Dated,
By
Timothy P Meissner
Page 5 of 6
.
Dated.
1!V10MIN:m1l'OWAlllM<>.I...M.iM.....uNu"'{'.....~............,...u.."wl.,".."~....w
.
173'('
SELLER, CITY OF POWAY
By'
Michael P Cafagna, Mayor
Page 6 of 6
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1738
Exhibit A
Description
ALL THAT PORTION OF THE SOUTHWEST QUARTER OF HIE NORTHWEST
QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS
FOLLOWS,
BEGINNING ATTHE SOUTHE.AH CORNER OF SAID SOUTHWEST QUARTER
OF THE NORTHWEST QUARTER TI:IENCE ALONG THE EAST LINE OF SAID
QUARTER NORTH.l 040'30" E~ST50,OO FEET TO A POll:IT ON THE,NORTHERL Y
BOUNDARY OF THE PUBLIC ROfJ),KNOWN AS POWA Y ROAD~R,S, 944 &
R.S, 1713-, SAID POINT BEING' THE TRUE POINT OF BEGINNING, THENCE
CONTINUING ALONG SAID EAST LINE NORTH 1 040'30" EAST 150,00
FEET, THENCE NORlli89008'30" WEST 100,00 FEET; THENCE SOUTH
1 049'30" WEST 150,00 FEET TO A POINT ON THE NORTHERLY BOUNDARY
OF POWAY ROAD; THENCE ALONG SAID BOUNDARY SOUTH 89008'30" EAST
100,00 FEET TO lliETRUE POINT 'OF BEGINNING.
Exhibit "A"
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1739
Exhibit "B" to the
Purchase, Agreement and Instructions to Escrow
There are nokriown existing leases on the property
Exhibit "B"
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1740
LAND PURCHASE AGREEMENT AND
INSTRUCTIONS TO ESCROW
TI1e:undersigned agree to the purchas_e:and sale of the following describedpremises"at the price and
on fuetermsand conditions set forth below'
1
NAME OFBuvER,
Poway Library Plaza, LLC
NAME OF SELLER:
City ofPoway
2, PREMISES: Legal description attach~d as:Exhibit "A" commonly known
asa portion of 13202 Poway Road, an improved property,
consisting of all but 10;000 square feet of 13202 Poway Road;
3 PRICE: Seventeen Dollars ($17 00). per square foot.
4 ESCROW HOLDER: Commonwealth Land Title
Attention: Marie Berry
1455 Frazee Road, Suite 600
SanDiego, CA 92108-3887
5 PURCHASE PRICE: The purchase price for the property shall be Seventeen Dollars
($17,00) per square foot ("PurchaSe. Price';), all (subject to the credit'-forthe Option Price) payable
by the terms of a promissory note,all.duein seventy-two (72) months, secured by deed oftnist'of
second priority in the sum of the Purchase Price behind the primary financing.for the project The
note shall be payable without interest ifpaidin full within its term, ifit is not, the note shallbe:in
default and shall bear interest at the rate of seven percent (7 00%) per annum compounderlannuaiiy
from the dateofc1ose'ofescrow.ofthe sale to Buyer. The note shall be due on sale of any, portion
of the property Upon.execution of this Agreement by Buyer, Seller will deliver this Agteementto
Escrow The Option Price ofTen Thousand Dollars ($10,000,00) previously paid to Seller outside
of Escrow shall serve as the deposit ("Deposit"), Upon close of Escrow, the Deposit, without
interest; shall be credited towards thePlU'chase Price, In the event that'Escrow does not c1ose,Buyer
shall pay all costs of Escrow and Esc,owholdershall not be concerned with the Deposit. Said note
shall provide that it is due on sale ifthe'premises is sold,
6, OPENING OF ESCROW: The Escrow ("Escrow'') shall be deemed open when Escrow
Holder receives iuentlcal signed instructions from Buyer and Seller
7, CONDmONS TO BOYER'S OBLIGATIONS mCLOSE ESCROW' Buyer's purchase of the
property is conditioned ,upon and subject to the following:
7,1 FINANCING, The sale is not contingent upon Buyer obtaining fmancing,
7,:2 TIThEApPROV AI.. Promptly after the opening of Escrow, Buyer shall cause
Escrow Holderto issue to Buyer (with a copy to Seller) a preliminary report for an ALTA Owner's
Page 1 of5
Exhibit "e"
" I"
.
17ft
Policy for the Property,settihg forth. all liens, encumbrances,e<isements, restrictions, conditions,
pending litigation,judgments;;administrative proceedings, andothercmatters affecting title to the
.Property ("Preliminary Report"), together with copies of all documents;relating to title exceptions
referred to in the Preliminary Report, Within ten (10) days of Buyer's receipt of the Preliminary
Report, Buyer shall notify Escrow Holder in writing of any unacceptable exceptions.,in the
Preliminary Report: If Buyer fails dllring such ten (10) day period to approve or disapprove in
writing any such exceptions shown on the Preliminary Report, Buyer shall be deemed to have
approved the Preliminary Report failure of Buyer to disapprove any matter shail be deerned
Buyer's acceptance of same, Should Buyer disapprove of any title matter, Seller shall notif);Buyer
within ten (1 O}business daynvhether Seller is willing or able to prOVide for the removal of such title
matter If Seller notifies Buyer that S~ller is either unable or unwilling to remove the objectionable
title matter, Buyer shall within three (3) calendar days either waive its objection or terminate this
Agreement. Failure of Seller to notifyBuyer that Seller is either unwillihgor unable to remove such
title objections;shall be deemed Seller's election not to cure such defect In the event.,that any
revised Preliminary Report contains an exception(s), which vias not contained in the original
Preliminary Report, wl1ichexception first appears of record after the effective date of the original
Preliminary Report (a"New.Exception"), Buyer shall have.the,same.rights to object to such New
Exception and Seller shall l1ave the sariie rights to elect whether or not to remove such New
Exception as are set forth.above with respectto exceptions referred. to in the Preliminary Report,
7,3 BOUNDARVADJUSTMENT' Close of escrow is contingent upon the final
approval of a boundaryadjhstment legalizing the property sold as a.part of Buyer"s adjoining parcel.
8, CLOSE OFEsCROW'
8,1 T1TLEINSURANCE POLICY Simultaneously with the Close of Escrow, Escrow
Holder shall is-sue ail AtTA Ownei'sPolicy ofTitle Insurance ("Title Policy") in the amount of the
Purchase Price, subject only to the following matters ("Approved Exceptions"):
(I) a lien for real property taxes, not then due; and
(ii) exceptions approved by Buyer in accordance with Section 7,3
82, SELLER'S DEPOSITS INTO ESCROW, Seller shall deposit with Escrow Holder
on or prior to the€lose:ofEscrow the following documents:
(I) A grant deed executed and acknowledged by Seller conveying to
Buyer good and marketable fee simpktitle to the Property{"Grant"),
subject only to the Approved Exceptions;
(ii) Seller's affidavit of nonforeign status as contemplated by Section
1445 of the Internal Revenue Code of 1986, as amended ("FIRPT A
Affidavit"); and
(iii) Seller's affidavit as contemplated by the Revenue and Taxation Code
~~18805 and 26131 ("Withholding Affidavit"),
Page 2 of 5
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8} .' CLO~INGDATE: The conveyance ofthe Property to Buyer and the closing of
this transaction ("Close 'o(Escrow") shall take place within forty-five {45} days following the
opening ofEstrow("Closihg Date"), or as soon thereafter as possible, but in any event, not later than
ninety (90) days'after the date ofthis Agreement.
8.4 ON THE CLOSING DATE: On the Closing Date, Escrow Holder shall.
(1) Record the Grant (marked for return to Buyer) with the County
Recorder for San Diego County (which shall be deemed delivery to
Buyer);
(ii) Issue the Title Policy;
(iii) Disburse to Seller the Purchase Price less prorated amounts and
charges tobe paid by or on behalf of Seller;
(iv) Charge Buyer and Seller for those costs and expenses to be,paid by
each pur$uant to this Agreement and disburse any net funds
remaining after the preceding disbursements to Buyer;
(v) Prepare and deliver to both Buyer and Seller one signed copy of
Escrow Agent's closing statement showing all receipts and
disbursements of the Escrow; and
(vi) Deliver to Buyer the FIRPTAAffidavit and the Withholding
Affidavit.
If Escrow Holder is Uilalile to simultaneously perfofm all of the instructions set forth
above, Escrow HoldershalLnotify Buyer and Seller and retain all. funds and documents pending
receipt of further instructionsjoiIitly issued by Buyer and Seller
8,5 CLOSING COSTS: Seller shall pay all chargesjn connection with issuance. of
the Title Po1icy,in the amOlint of the Purchase Price (without any endorsements). Buyerand Seller
shall pay equally the cost of recording the Grant Deed, ,the Escrow Holder's fee, the documentary
transfer tax for recor'ding the Grant peed (if any) and all other miscellaneous cost.of closing Escrow;
Buyer shall pay the'difference in premium cost between a CLTA policy and the AL T A policy
Escrow Holder shall notify Buyer and Seller in writing of closing costs no later than three (3)
business days prior to the Closing Date, Taxes and assessments shall be adjusted and prorated
through ,the Closing Date,
9 REPRESENTATIONS AND WARRANTIES: Seller and Buyer represent, warrant and
covenant that( each.witrl'fespecHo its own conduct only) (I) Seller and Buyer have the right, power,
legal capacity and authority to execute, deliver and perform this Agreement; (ii) all consents required
as a condition to,Seller and Buyer's authority to execute, deliver and perform this Agreement have
been obtained;,Seller repres(:nts that (iii) to Seller's knowledge, there are no toxic or hazardous
wastes or materials including' asbestos in, attributable to or affecting the Property (except as may be
Page3 of 5
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17f3
set forth'in any environmental assessment reports obtained,by'Sellerand delivered to Buyer) and if
therej_s'anY contamiiujtion Buyermayelect to terminate this Agreement prioi-to the Closing Date
bygiyiJlg:S~ller writtennotiJication, and the Dep6slUogether,with allinterest'shaiibe returned to
Buyer; (iv) ,at the time of the exeyution,ofthis Agreement and as ofthe closing, no leaseswf the
Property'and,nocol).tracts affecting the Property are or will be in force except as identified in,EXhibit
"B"and those disclosed in writing five'(5) days after Opening of Escrow and no one else has a right
of possession, noJeasing comrnissionswill be due or owing, no tent concessions have been or will
be given, no other agreements weremaue or will be made with the;tenants, and neither Seller nor
any tenantis in default under any-iease;'(v) after execution of this Agreement, Seller shall not enter
into any new leases or contracts affecting the Property, without Buyer's written consent; (vi) to
Sellet's knowledge there atenoUiow'ahd, as ofthe Close of Escrow, there will not be any violations
of any law, ordinance, rule ot,a:dihinistrative or judicial order affecting the Property; and (vii) to
Seller's'knowledge there is no litigation pending respecting the Property, or the use or operation of
the Property,
10, POSSESSION, Possession shall be delivered to Buyetat the Close of Escrow
11 REHABILITATION OF SELLER'S RETAINED PARCEL. The:Seller agrees to rehabilitate
the exterior of the building 'and'site, improvements on the parcel thaLSeller retains at the same time
that the Buyer rehabilitates the Poway Library Plaza and in a manner consistent therewith, Escrow
shall not be concerned with this covenant,
12, SUCCESSORS,ANDAsSIGNS, This Agreement shalLbe binding upon and shall inure
to the, benefit of the parties hereto" and their respective heirs, successors and assigns, Buyer reserves
therightto assign its interest in,thisAgreement to another party or, entity which develops or owns
the adjoining Library Center Plaza, in which event the assuming party or entity shall be bound by
all terms and conditions of this Agreement and Buyer shall remain fully liable and responsible
hereunder; such assignment shall be subject to the approval of Seller,-which approval shall not be
unreasonably withheld, Any other assignment by Buyer shall be'subject to approval of Seller in
Seller's sole and absolute discretion,
13 LIOUIDATED DAMAGES, If the Escrow fails to close for any reason, neither Seller nor
Buyer shall be damaged nor entitled to compensation for damages, except as provided herein, By
placing their initials here, the'Parties mutually agree that.neither party shall be entitled to liquidated
damages and Buyer's Deposit shall be retained by Seller.
BUYER'S INITIALS
SELLER'S INITIALS
14 BROKERS. Each party warrants and represents to the other that no third-party brokers
have been retained or, consulted in connection with ihis transaction and that no broker commissions
are payable on this sale, Each party agrees to defend, indemnify, and hold hannless the other party
from any'Ciaims, expenses, costs, or liabilities arising in connection with a breach of that party's
representations, warranties, or covenants under this Agreement.
Page 40f 5
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15 NOTICES',. AIl.llotices to be given under this,Agreementshall be in writing and sent
via certified ,mail, retUrnreceiptreqilested, and deemed.,delivered'three (3) business days after
deposit, postagepiepaidin'the UnitedStatesMaii as f6i16ws:
SELLER,
DeborahJolfuson, Director of Redevelopment Services
City of Po way
13325 Civic Center Drive
P()way, CA 92064
BUYER:
Tiin Meissner
Meissner.,Jacquet Investment Management Services
8525!GibbsDrive, Suite 200
San Diego, CA 92123
16, ENTIRE AGREEMENT This Agreement contains the, entire agreement between the
parties to this Agreementandshallnot1be modified in any manner except by an instrument in writiog
executed by the parties or their respective successors in interest.
17 SEVERABILITY If any term,' or provision of this Agreemerit shall, to any extent, be
held invalid or unenforceable, the remainder of this Agreement shall not be affected,
18, . MERGER! Ail of the terms, provisions, representations, warranties, and covenants of
the parties under this Agreement shall ~urvive the Close of Escrow for a period of one (1) year and
shall not be merged in the Quitc1aim or other documents,
19 TIM'EOF THE ESSENCE, Time is of the essence in this Agreement.
The partieshave.executed this Agreement as of the _day of
,2000,
BUYER, POW A Y LillRARY PLAZA, LLC
Dated:
By
Timothy P Meissner
SELLER, CITY OF POW A Y
Dated:
BY'
Michael PCafagna, Mayor
C..\llATAVOIfNllOl>"COR1I.:!OOOWEiSNj..DRPD
Page 5 of5
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17!
Exhibit "A" to the
Land Purchase Agreement and Instructions'to Escrow
Will be inserted at a later date,
Exhibit "A"
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1746
Exhibit "B"'to the
Land Purchase Agreement and Instructions to Escrow
There are no known existing:Ieases:on the property
Exhibit "B"