REAL ESTATE PURCHASE AND SALE AGREEMENT
This agreement (the "Agreement") is dated AUGUST 11, 1997 and entered into
by and between XXXX XXXXXXX and XXXXXXX XXXXXXX, husband and wife ("Seller") and
EAGLE HARDWARE & GARDEN, INC., a Washington corporation, or assigns ("Buyer")
for purchase and sale of a portion of a larger tract of real property situate in
San Xxxx Obispo County, California, consisting of approximately 15.11 acres of
unimproved real property located on the westerly side of Los Osos Valley Road
commencing approximately 204 feet north of the Froom Ranch access road and
generally located between Xxxxxx Drive to the north and Auto Park Way to the
south, both on the easterly side of Los Osos Valley Road, together with any
improvements thereon and all rights appurtenant thereto (the "Property"). The
Property is shown on the proposed site plan dated August 1, 1997 and numbered
X489D (the "Site Plan") and attached hereto as Exhibit A. The legal description
of Seller's entire tract is set forth in Exhibit B attached hereto. Following
completion of the ALTA/ACSM survey and parcel map described in Section 3.2
below, the legal description and parcel map of the Property shall be attached to
this Agreement as Exhibit C and made a part hereof.
Seller agrees to sell, and Buyer agrees to buy, the Property upon and
subject to the terms and conditions set forth below:
1. PURCHASE PRICE; PAYMENT. The total purchase price for the Property
shall be nine dollars ($9.00) per square foot of land. It is estimated that the
Property contains 658,280 square feet and that the purchase price will be Five
Million Nine Hundred Twenty-four Thousand Five Hundred Twenty Dollars
($5,924,520). The area of Property and the total purchase price shall be
determined by the new ALTA/ACSM survey described below. The purchase price
shall be adjusted to the final certified square footage, which amount, including
the Deposit and interest accrued thereon, shall be paid in cash upon closing.
2. XXXXXXX MONEY DEPOSIT. Within ten (10) business days after the
Effective Date, Buyer will deposit xxxxxxx money of fifty thousand dollars
($50,000) (the "Deposit") with a title insurance company selected by Seller and
located in San Xxxx Obispo (the "Closing Agent"). The Closing Agent shall place
the Deposit in an interest-bearing account, with interest to accrue to Buyer's
benefit. If this transaction does not close for any reason other than default
by Buyer under this Agreement, the Deposit, and all interest accrued thereon,
shall be returned to Buyer. In the event of Buyer's default under this
Agreement, Seller shall have as its sole remedy the right to terminate this
Agreement and retain the Deposit, together with accrued interest thereon, as
liquidated damages.
3. TITLE INSURANCE AND SURVEY.
3.1 PRELIMINARY TITLE INSURANCE COMMITMENT. Within ten (10) days
after the Effective Date, Seller shall provide Buyer with a current preliminary
commitment for owner's title insurance with extended coverage (ALTA Form 1970-B,
as revised in 1984 or if unavailable, Form B-1987) issued by the Closing Agent,
with copies of all documents listed as exceptions set forth therein.
3.2 ALTA/ACSM SURVEY. As soon as possible after the Effective Date,
Buyer shall initiate a new ALTA/ACSM survey with land area certification of the
Property and a parcel map, at Buyer's cost.
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3.3 TITLE AND SURVEY APPROVAL PERIODS. Buyer shall have fifteen (15)
days from the later receipt of either the preliminary commitment or the
completed survey (and any amendments, supplements and revisions to either in
which new or revised exceptions or items first appear) to notify Seller of
its disapproval of any exceptions shown in the preliminary commitment or any
items on the survey. If, within twenty (20) days after the receipt of such
notice Seller has not removed or given reasonable written assurances to Buyer
that such disapproved exceptions or items will be removed on or before
closing, Buyer may, at its option, at any time prior to such removal or
receipt of such reasonable written assurances, terminate this Agreement by
giving notice of such termination to Seller. On such termination Closing
Agent shall refund the Deposit and all interest accrued thereon to Buyer and
all rights and obligations of Seller and Buyer under this Agreement shall
terminate and be of no further force or effect.
4. CONTINGENCIES. Buyer's obligation to purchase the Property is subject
to Buyer's satisfaction or waiver, in writing, of the following conditions
precedent, in Buyer's sole and absolute discretion, on or before the dates
described below:
4.1 FEASIBILITY. Buyer's sole determination that its proposed site
plan, building plan, parking plan and access plan for the Property are
acceptable; that approved sources for utilities are available of adequate
capacity to serve the Property; and that the Property is otherwise feasible for
Buyer's intended use.
4.2 STUDIES. Buyer's approval of all soils, engineering, seismic,
environmental, topography, hazardous waste, geotechnical, wetlands, drainage and
other studies that may be deemed necessary by Buyer or required by any
governmental agency in connection with the Property and Buyer's planned
development and use of the Property.
4.3 APPROVALS AND PERMITS. Issuance of any and all required or
applicable governmental approvals including but not limited to an environmental
impact report (EIR)(if required) and replat or lot line adjustment of the
Property, subdivision approvals, rezoning approvals, annexations (if
applicable), California Department of Transportation approvals (if
applicable), County highway access and traffic signal approvals, County, (or
the City, if applicable) building permits, use permits, sign permits, design
review approvals, site plan approvals, parking variances, street vacancies,
environmental certifications, and approvals of any kind from any and all
governmental agencies having jurisdiction over the Property, necessary for
Buyer to develop, construct its store building, site improvements, building
materials center, garden yard and greenhouse and any other improvements that
Buyer deems necessary in its sole determination to conduct and operate its
selected business operations on the Property. The timing, conditions and cost
of any or all of the permits and approvals (including any mitigation fees)
must be satisfactory to Buyer in its sole discretion. The cost and fees of
all of the above shall be at Buyer's sole expense but Seller agrees to
cooperate fully in creating a separate legal parcel containing only the
Property (the "Eagle Parcel") prior to closing, or sooner, if needed, to
enable Buyer to expeditiously comply and proceed with the requirements of any
governmental authority to obtain any and all permits and approvals.
4.4 TIME PERIODS. Buyer shall have sixty (60) days from the Effective
Date (the "Feasibility Period") to satisfy or waive the contingencies set forth
in Sections 4.1 and 4.2. Buyer shall have one hundred eighty (180) days (the
"Contingency Period") from the end of the Feasibility Period to satisfy or waive
the contingencies set forth in Sections 4.3 and 4.6. If Buyer does not satisfy
or waive the contingencies in writing by the applicable dates, or if Buyer
notifies Seller in writing at any time prior to the end of the Contingency
Period that it has decided not to pursue the project any further and that this
Agreement is terminated, the Deposit, with interest, shall be refunded to Buyer
and the Agreement shall terminate without further action and be of no further
force or effect.
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4.5 EXTENSION PERIODS. If Buyer has satisfied or waived the
contingencies set forth in Sections 4.1 and 4.2 above and is diligently pursuing
the applicable required approvals and permits described in Section 4.3 above,
Buyer shall be entitled to two (2) separate thirty (30) day extensions of the
Contingency Period. Notice of the exercise of each of the extension periods
shall be given by Buyer to Seller at least ten (10) days prior to the end of the
initial Contingency Period or the first extension period, whichever is
applicable.
4.6 ENVIRONMENTALLY CLEAN SITE. Buyer's sole determination that it
will be able to acquire an environmentally clean site with the Property.
Although it will be Buyer's responsibility, at its own cost and expense, to
obtain certifications and other approvals by and from the applicable local,
state and federal agencies that the Property is an environmentally clean site,
including but not limited to the removal of all underground storage tanks,
pipelines, all contaminated soils and any other toxic or contaminated materials,
wastes and other related items. Buyer shall have no duty to incur any such
responsibility or costs and expenses unless it decides to waive all of the other
contingencies in this Agreement and acquires the Property at closing.
5. CLOSING
5.1 TIME FOR CLOSING; TERMINATION DATE. This sale shall be closed in
the office of the Closing Agent within fifteen (15) working days after all of
Buyer's conditions precedent have been satisfied or waived by Buyer on a date
mutually agreeable to Buyer and Seller. Buyer and Seller shall deposit in escrow
with Closing Agent all instruments, documents and monies necessary to complete
the sale in accordance with this Agreement. As used herein, "closing" or "date
of closing" means the date on which all appropriate documents are recorded and
proceeds of sale are available for disbursement to Seller. Funds held in reserve
accounts pursuant to escrow instructions shall be deemed, for purposes of this
definition, as available for disbursement to Seller.
5.2 ACCEPTANCE OF EXCEPTIONS. Neither Seller nor Buyer shall be
required to close, and the Deposit and all interest thereon shall be returned to
Buyer, if any exception or item disapproved by Buyer as herein provided cannot
be removed by the date of closing; provided, however, that Buyer may elect to
waive any disapproved exceptions or items and close on the remaining terms.
Notwithstanding the foregoing, Seller shall remove any defect or encumbrance
attaching by, through or under Seller after the Effective Date of this
Agreement. Exceptions to be discharged by Seller may be paid out of the purchase
price at closing.
5.3 PRORATIONS; CLOSING COSTS. Taxes and assessments for the current
year and utilities constituting liens shall be prorated as of the date of
closing. Seller shall pay the premium for the title insurance policy, real
estate excise, transfer and/or conveyance taxes, the cost of conveyance tax
stamps, if any, and one-half of Closing Agent's escrow fee. Buyer shall pay
the cost of recording the statutory warranty deed, and one-half of Closing
Agent's escrow fee and the difference in the cost of the premium between
standard owner's and extended coverage.
5.4 POSSESSION. Buyer shall be entitled to possession upon closing.
6. CONVEYANCE OF TITLE. On closing, Seller shall execute and deliver to
Buyer a statutory warranty deed conveying good and marketable title to the
Property free and clear of any defects or encumbrances except for the lien of
real estate taxes for the current calendar year not yet due and payable, those
defects or encumbrances appearing on the preliminary commitment for title
insurance that are approved by Buyer (the "Permitted Exceptions"), and other
encumbrances or defects approved by Buyer in writing.
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As soon as available after closing, Seller shall provide to Buyer a
policy of title insurance pursuant to the preliminary commitment, dated as of
the closing date and insuring Buyer in the amount of the purchase price
against loss or damage by reason of defect in Buyer's title to the Property
subject only to the printed exclusions and general exceptions appearing in
the policy form; any Permitted Exceptions; the exceptions specified in the
preliminary commitment which Buyer has not disapproved of as provided herein;
and real property taxes and assessments that are not delinquent.
7. RISK OF LOSS; CONDEMNATION. Risk of loss of or damage to the Property
shall be borne by Seller until the date of closing. Thereafter, Buyer shall
bear the risk of loss. In the event of material loss of or damage to the
Property prior to the date upon which Buyer assumes the risk, Buyer may
terminate this Agreement by giving notice of such termination to Seller and
Closing Agent, and such termination shall be effective and the Deposit and
interest thereon shall be refunded ten (10) days thereafter; provided, however,
that such termination shall not be effective if Seller agrees in writing within
such ten (10) day period to restore the Property substantially to its present
condition by the closing date.
If the Property is or becomes the subject of a condemnation proceeding
prior to closing, Buyer may, at its option, terminate this Agreement by giving
notice of such termination to Seller, and upon such termination the Deposit and
accrued interest shall be returned to Buyer and this Agreement shall be of no
further force or effect; provided, however, that Buyer may elect to purchase the
Property, in which case the total purchase price shall be reduced by the total
of any condemnation award received by Seller. On closing, Seller shall assign
to Buyer all of Seller's rights in and to any future condemnation awards or
other proceeds payable or to become payable by reason of any taking. Seller
agrees to notify Buyer of eminent domain proceedings within five (5) days after
Seller learns thereof.
8. SELLER'S REPRESENTATIONS AND WARRANTIES. In addition to other
representations herein, Seller represents and warrants to Buyer as of the date
of closing that:
8.1 Seller has full power and authority to execute this Agreement and
perform Seller's obligations and duties hereunder:
8.2 The Property is not subject to any leases, tenancies or rights of
persons in possession;
8.3 Neither the Property nor the sale of the Property violates any
applicable statute, ordinance or regulation, nor any order of any court or any
governmental authority or agency, pertaining to the Property or the use
occupancy or condition thereof;
8.4 Seller is unaware of any material defect in the Property;
8.5 All persons and entities supplying labor, materials and
equipment to the Property have been paid and there are no claims or liens;
8.6 There are no currently due and payable assessments for public
improvements against the Property and Seller is not aware of any local
improvement district or other taxing authority having jurisdiction over the
Property in the process of formation;
8.7 The Property has legal access to all streets adjoining the
Property;
8.8 Seller has good and marketable title to the Property;
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8.9 Seller is not a "foreign person" for purposes of Section 1445 of
the Internal Revenue Code. Prior to closing, Seller shall execute and deliver to
Closing Agent an affidavit in order to meet the Foreign Investment in Real
Property Tax Act ("FIRPTA") requirements of I.R.C. # 1445; and
8.10 Seller has not received notification of any kind from any agency
suggesting that the Property is or may be targeted for a Superfund or similar
type of cleanup. To the best of Seller's knowledge, neither the Property nor
any portion thereof is or has been used (i) for the storage, disposal or
discharge of oil, solvents, fuel, chemicals or any type of toxic or dangerous or
hazardous waste or substance, (ii) as a landfill or waste disposal site, and
(iii) does not contain any underground storage tanks. Seller agrees to
indemnify, defend and hold Buyer harmless from and against any and all loss,
damage, claims, penalties, liability, suits, costs and expenses (including,
without limitation, reasonable attorneys' fees) and also including without
limitation, costs of remedial action or cleanup, suffered or incurred by Buyer
arising out of or related to any such use of the Property, or portion thereof,
occurring prior to the conveyance to Buyer, about which Seller knew or
reasonably should have known prior to Closing and did not disclose to Buyer.
9. BUYER'S AUTHORITY. Buyer represents and warrants to Seller that at
the date of execution hereof and at the date of closing Buyer, and the person
signing on behalf of Buyer, has full power and authority to execute this
Agreement and to perform Buyer's obligations hereunder.
10. DEFAULT. If Seller defaults hereunder, Buyer may seek specific
performance of this Agreement, damages or rescission and Buyer shall be entitled
to return of the Deposit with accrued interest, on demand. If Buyer defaults,
the Deposit and accrued interest shall be forfeited to Seller as liquidated
damages and as Seller's sole and exclusive remedy and upon payment thereof to
Seller, Buyer shall have no further obligations or liability hereunder. In any
suit, action or appeal therefrom to enforce this Agreement or any term or
provision hereof, or to interpret this Agreement, the prevailing party shall be
entitled to recover its costs incurred therein, including reasonable attorneys'
fees.
11. NOTICES. All notices, waivers, elections, approvals and demands
required or permitted to be given hereunder shall be in writing and shall be
personally delivered (by overnight courier service or other means of personal
service) or sent by United States certified mail, return receipt requested, to
the addressee's mailing address set forth on the signature page:
and, in the case of Buyer, a copy to: Xxxxxxx X. Xxxxxxx
0000 XX Xxxx Xx.
Xxxxxxxxxx Xxxxxx, XX 00000
and, in the case of Seller, a copy to: Xxxx Xxxxxxx
----------------------------
X.X. Xxx 0000
----------------------------
Xxx Xxxx Xxxxxx, Xx 00000
----------------------------
----------------------------
Either party hereto may, by proper notice to the other, designate any other
address for the giving of notice. Any notice shall be effective when personally
delivered or, if mailed as provided herein, on the date of actual receipt.
12. RECIPROCAL ACCESS EASEMENT AGREEMENT. Buyer and Seller agree to enter
into a reciprocal access easement agreement (the "R.E.A.") for ingress and
egress of Future Development Sites A and B, as depicted on Exhibit A, and for
customer only ingress and egress to any future retail development of Seller's
additional property adjoining either side of the Property. The R.E.A. shall be
prepared and executed during the first sixty (60) days of the Contingency Period
and recorded at the closing.
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13. NO NEGOTIATIONS WITH THIRD PARTY. Seller shall not negotiate nor
commit to sell, lease or otherwise transfer the Property on any portion thereof
to any other person or party as long as Buyer is proceeding in good faith to
perform its duties under this Agreement. This covenant shall remain in full
force and effect and be legally binding upon Seller until termination of this
Agreement.
14. GENERAL. This is the entire agreement of Buyer and Seller with
respect to the matters covered hereby and supersedes all prior agreements
between them, written or oral. This Agreement may be modified only in writing,
signed by Buyer and Seller. Any waivers hereunder must be in writing. No waive
or any right or remedy in the event of default hereunder shall constitute a
waiver of such right or remedy in the event of any subsequent default. This
Agreement is for the benefit only of the parties hereto and shall inure to the
benefit of and bind the heirs, personal representatives, successors and assigns
of the parties hereto. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision hereof.
15. SURVIVAL OF WARRANTIES. The terms, covenants, representations and
warranties shall not merge in the deed of conveyance, but shall survive closing.
16. COMMISSIONS. Each party represents to the other that it has not
engaged any broker or other agent in connection with the negotiations leading to
this Agreement or the sale of the Property and that there are no commissions or
fees of any kind involved in this transaction. Each party agrees to indemnify
and hold the other party harmless from and against all claims and demands of any
and all brokers or agents with respect to the Property.
17. EXHIBITS. Exhibits A, B and C attached hereto are incorporated herein
as if fully set forth.
EXHIBIT A - SITE PLAN
EXHIBIT B - LEGAL DESCRIPTION OF SELLER'S ENTIRE TRACT
EXHIBIT C - LEGAL DESCRIPTION OF THE PROPERTY AND PARCEL MAP
18. EFFECTIVE DATE. The later of the Buyer's signature date and the
Seller's signature date, set forth below, shall be the "Effective Date" of this
Agreement.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Typed Name:
August 11 , 1997
-------------------------
Buyer's signature date Its:
Address:
000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
SELLER: XXXX XXXXXXX AND XXXXXXX XXXXXXX
By: /s/ Xxxx Xxxxxxx
--------------------------------
Typed Name: XXXX XXXXXXX
August 7 , 1997
-------------------------
Seller's signature date
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Typed Name: XXXXXXX XXXXXXX
August 7 , 1997
-------------------------
Seller's signature date
Address:
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EXHIBIT "A"
[MAP]
EXHIBIT "A"
EXHIBIT "B"
LEGAL DESCRIPTION OF SELLER'S ENTIRE TRACT
(To be provided by Seller at time of execution of this Agreement)
EXHIBIT "B"
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EXHIBIT "C"
LEGAL DESCRIPTION OF THE PROPERTY
(To be provided by Seller upon completion of the ALTA/ACSM Class A survey as set
forth in Section 6).
EXHIBIT "C"
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