HomeMy WebLinkAboutItem No. 09 Agreement USPS and City APN 374-062-005, 006, 015, 020City Council Agenda Report
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 19-360
Agenda Date: 10/22/2019 Status: PassedVersion: 2
File Type: ReportIn Control: City Council / Successor Agency
Agenda Number: 9)
Purchase and Sale Agreement By and Between the United States Postal Service and the City
of Lake Elsinore: APNs 374-062-005, 374-062-006, 374-062-015, 374-062-020 (City Property)
1) Approve the Purchase and Sale Agreement in substantially the form attached, authorize the Mayor to
execute the Agreement and the Grant Deed in such final form as approved by the City Attorney; and,
2) Direct staff to deposit all proceeds from the sale of the City Property into the Low and Moderate
Income Housing Asset Fund.
Page 1 City of Lake Elsinore Printed on 5/10/2023
REPORT TO CITY COUNCIL
To:Honorable Mayor and Members of the City Council
From:Grant Yates, City Manager
Prepared by:Barbara Leibold, City Attorney
Date:October 22, 2019
Subject:Purchase and Sale Agreement By and Between the United States Postal
Service and the City of Lake Elsinore: APNs 374-062-005, 374-062-006, 374-
062-015, 374-062-020(City Property)
Recommendation
It is recommended that the City Council:
1)approve the Purchase and Sale Agreement in substantially the form attached, authorize
the Mayor to execute the Agreement and the Grant Deed in such final form as approved
by the City Attorney,and
2)direct staff to deposit all proceeds from the sale of the City Property into the Low and
Moderate Income Housing Asset Fund.
Background
The United States Postal Service (USPS) has expressed an interest in developing a new Post
Office facility in the downtown area of Lake Elsinore on an approximately 3.44 acre site bounded
by Pottery Street/Spring Street/ Flint Street. This includes four parcels (approximately 1.41
acres) owned by the City of Lake Elsinore (“City Property”).
The City Property was acquired by the City from the Successor Agency in May 2017 following
approval by the Successor Agency, the Oversight Board and the State Department of Finance.
The City, in capacity as housing successor to the former Redevelopment Agency’s affordable
housing assets and obligations, acquired the City Property for $370,000.
Discussion
The USPSand the City have negotiateda proposed Purchaseand Sale Agreement (PSA) for the
USPS acquisition of the City Property for the appraised fair market value of $400,000. The
purchase is contingent on the successful acquisition by the USPS of the balance of the proposed
site.
Although the City Propertywas acquiredfor affordable housing purposes,the proposed Post
Office facility is a preferredand more appropriateuse of the City Propertythat will stimulate
activity in the downtown area, provide valuable public services and a greater public benefit.
Purchase and Sale Agreement
October 22, 2019
Page 2
There are no current affordable housing project proposals for the City Propertyand alternative
sites are available in the downtown area and citywide for affordable housing purposes.
Fiscal Impact
The proceeds from the sale of the City Property will be deposited into the Low and Moderate
Income Housing Asset Fund to be used solely for affordable housing purposes.
Attachments:
A -Purchase and Sale Agreement
B -Vicinity Map
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PURCHASE AND SALEAGREEMENT
THISPURCHASE AND SALE AGREEMENT (“Agreement”) is entered into by the United States
Postal Service (“USPS”) and the City of Lake Elsinore(“Seller”) effective as of the date indicated below
the USPS signature on the execution page of this Agreement (the Effective Date”).
In consideration of the mutual agreements set forth below, USPS and Selleragree as follows:
1.KEY DEFINED TERMS.
The terms below have the meanings ascribed to them:
Closing Date: Within seventy-five(75)days after the Contingency Removal Date.
Contingency Period: The period beginning on the Effective Date and ending on the earlier of the
Contingency Removal Date or the date of either party’s termination of its purchase or sale obligations
in accordance with this Agreement.
ContingencyRemoval Date: Withinone hundred eighty(180)daysafter the Effective Date.
Day or day shall mean a calendar day; business day shall mean those days of the week that are not
a Saturday, Sunday or federal holiday.
Deposit: the combined Initial Deposit and Additional Deposit,(if any) and any other funds USPS
places into escrow with the Escrow Agent, plus all interest earned on all such funds.
Initial Deposit: USD$40,000.00, payable in immediately available funds by wire transfer is due
within five business days ofUSPS’sexecution and delivery of this Agreement.
Additional Deposit(s): USD$10,000.00, payable in immediately available funds by wire transfer,
is due within one (1) day of each Extension Notice, as defined below(if USPS exercises its right,
pursuant to Paragraph 2.3.1,to extend the Contingency Removal Date).
EffectiveDate: as defined in the opening paragraph.
EscrowAgent: Chicago Title Insurance Company, 10 South LaSalle St. Suite 3100, Chicago, IL
60603.
NoticeAddresses:For purposes of notices pursuant to Section 13.4, Notice Addresses are:
Seller:
Attention: Grant Yates, City Manager
City of Lake Elsinore
130 S. Main Street
Lake Elsinore, CA 92530
USPS:
Attention: Patricia Webb, Real Estate & Assets
USPostal Service
PO Box 27497
Greensboro, NC 27498-1103
With a Copy To:
Attention: Barbara Leibold
Leibold McClendon & Mann
9841 Irvine Center Drive, Suite 230
Irvine, CA 92618
With a Copy To:
Attention:Joseph B. Fray, Attorney
US Postal Service
475 L’Enfant PlazaSW, Room 6303
Washington, DC 20260
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Property: that certain real property commonly known as the City-owned site consisting of 1.37 acres
at the corner of Pottery and Spring Streets,located in the City of Lake Elsinore, County of Riverside,
Californiawith tax parcel numbersof 374-062-005, 374-062-006, 374-062-015, 374-062-020and
more particularly described on Exhibit Aattached hereto and incorporated herein by this reference,
including all fixtures and improvements located on the real property and all other rights, easements,
rights of ingress and egress, appurtenances, hereditaments, and tenements appurtenant thereto.
The Property also includes all intangible property related to the real property, including all of Seller’s
right, title and interest in and to all permits, licenses, approvals, entitlements and other governmental
authorizations, water rights and reservations, and zoning rights related to the real property, or any
part thereof, to the extent the same are assignable by Seller, but not including the general corporate
trademarks, tradenames service marks, logos or insignia or the books and records or other
proprietary information of Seller.
PurchasePrice: USD$400,000.00 payable in immediately available funds by wire transfer.
Seller Representative:
SurvivingRights: USPS and Sellerrights and obligations underthe following sections shall survive
the Closing of this transaction:
Section 4.4(Restorationof Property)
Section 6.5 (Apportionments)
Section 6.7 (Title Insurance Policy)
Section 8.3(Indemnification)
Section 9 (Environmental Matters)
Section 10 (Condition of Property)
Section 11 (Remedies)
Section 13.5(Brokerage)
USPSRepresentative:Patricia Webb Patricia.L.Webb2@usps.gov
2.AGREEMENT TO PURCHASE AND TO SELL.
2.1.Purchaseand Sale. USPS shall purchase the Property from Seller, and Seller shall sell the
Property to USPS, for the Purchase Price on the terms and conditions contained in this
Agreement.
2.2.Escrow Agreement. Seller, Escrow Agent,and USPS shall mutually execute and deliver an
escrow agreement (“Escrow Agreement”) substantially in the form attached as Exhibit Bnot
later than five (5) business days after the Effective Date. If such parties do not timely execute
and deliver the Escrow Agreement, then by notice to Seller, USPS may terminate its obligation
to purchase the Propertyand Escrow Agent will promptly refundany Depositto USPS.
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2.3.Contingency. USPS may terminate its purchase obligation for any reason or no reason by
notifyingSeller of such termination (“Termination Notice”) not later than 4:00 p.m. EasternTime
on or before the Contingency Removal Date. Notwithstanding the provisions of Section 13.4,
USPS may deliver the Termination Notice via electronic mail to the Seller Representative,
which shall be effective to terminate USPS’s purchase obligation if timely delivered.Upon
receipt of a copy of a timely delivered Termination Notice, Escrow Agent shall promptly refund
the Deposit to USPS in accordance with the terms of the Escrow Agreement and neither party
shall have any further rights or liabilities hereunder except for the Surviving Rights.
2.3.1 USPS, at its sole option and discretion, may extend the Contingency Removal Date, up
to two (2) times, for 60 days each time, under the following conditions:
(i) USPS shall provide a written notice (“Extension Notice”) not later than 4:00 p.m. Eastern
Time on or before the current Contingency Removal Date. Notwithstanding the provisions of
Section 13.4, USPS may deliver the Extension Notice via electronic mail tothe Seller
Representative, which shall be effective to extend the Contingency Removal Date, if timely
delivered.
(ii) USPS shall pay an Additional Deposit to the Escrow Agent within one (1) business day of
the Extension Notice for each 60-day extension.
2.3.2 This transaction is contingent upon the simultaneous closing of a transaction for the
neighboring lot, further described in Exhibit A1, pursuant to the Purchase and Sale Agreement
with Karen Blackburn effective on the Effective Date. Closing of both transactions shall be
performed simultaneously with one closing agent and failure of one transaction to close will
relieve Postal Service of all responsibilities and obligations under the other.
2.4.Failure to Terminate. If USPS fails to terminate its purchase obligation as provided in Section
2.3above, then (i) the Deposit shall be non-refundable, except as otherwise provided in this
Agreement, and (ii) Seller shall be obligated to sell and USPS shall be obligated to purchase
the Property on the terms set forth herein. USPS’s failure to terminate as set forth in this
Section 2.4 will not waive any other termination rights of USPS set forth herein, including
without limitation those set forth in Section 4.2.3, Section 4.3, Section 5, Section 8.2, Section
11.1, and Section12of this Agreement.
2.5.Surviving Rights. If USPS properly exercises a termination right in accordance with this
Agreement, then neither party shall have any further obligations or rights under this Agreement,
except the Surviving Rights. Following such termination, USPSmay notify the Escrow Agent
to return the Deposit to USPS in accordance with the termsof the Escrow Agreement. If Seller
exercises a termination right in accordance with this Agreement, other than under Section 11.2
below, then either or both of USPS and Seller shall notify Escrow Agent to return the Deposit to
USPSin accordance with the terms of the Escrow Agreement and neither party shall have any
further obligations or rights under this Agreement, except the Surviving Rights. If Seller
exercises a termination right in accordance with Section 11.2 below, then Seller may notify
Escrow Agent to disburse the Deposit to Sellerin accordance with the terms of the Escrow
Agreement and neither party shall have any further obligations or rights under this Agreement,
except the Surviving Rights. During any period in which a party is in default under this
Agreement, such party shall not be entitled to a return or disbursement of the Deposit from the
Escrow Agent.
3.PAYMENT OF PURCHASE PRICE..Subject to termination of the purchase and sale obligations as
permitted by this Agreement, USPS shall pay Seller the Purchase Price as follows:
3.1.Initial Deposit. Within five (5) business days ofUSPS’s execution and delivery ofthis
Agreement to Seller, USPS shall deposit the Initial Deposit with the Escrow Agent. The Initial
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Deposit shall be held and disbursed pursuant to the terms hereof and of the Escrow
Agreement.
3.2.Additional Deposit. Within one (1) business day of USPS’s delivery of an Extension Notice,
USPS shall deposit an Additional Deposit with the Escrow Agent. The Additional Deposit shall
be held and disbursed pursuant to the terms hereof and of the Escrow Agreement.
3.3.Application of Deposit. Subject to the terms of this Agreement, the Deposit shall be (i)
applied against the Purchase Price, (ii) refunded to USPS if either party terminates its
obligations in accordance with this Agreement unless terminated by Seller as permitted under
Section 11.2 belowfollowing a default by USPS. If Seller terminates this Agreement following
a default by USPSunderSection 11.2 hereof, then the Deposit shall be paid to Seller.
3.4.Balance of Purchase Price. USPSshall pay the balance of the Purchase Price (net of the
Deposit), plus all Closing costs payable by USPS, plus or minus prorations and adjustments
shown on the closing statement approved by USPS and Seller, all by wire transfer to the
Escrow Agent.
4.DUE DILIGENCE.
4.1.Property Documents.Within fivefifteen(15)businessdays following the Effective Date,
Seller will deliver to USPS, at Seller’s expense, copies of all documents in Seller’s possession
with respect to the Property, including without limitation, all deeds, title policies, surveys,
appraisals, plans and specifications for any improvements, environmental reports, tax bills and
special assessments, utility bills, copies of any citations or correspondence from or with any
local, state, or federal authorities regarding the Property, copies of all lease agreements,
licenses, easements, maintenance contracts, service agreements, andother contracts of any
nature that pertain to, cover, or affect the Property or anypart of itby their terms may continue
beyond the Closing Date, and copies of all permits and any applications therefor (collectively,
the “Property Documents”).
4.2.Titleand Survey.
4.2.1.On or after the Effective Date, USPS may obtain, at Seller’s sole cost and expense, a
title insurance commitment (the “Title Commitment”) covering the Property and issued by the
national office of Chicago Title Insurance Companyor a local affiliate thereof(the “Title
Company”), accompanied by copies of all exceptions to title referenced in the Title
Commitment(the “Exceptions”). USPS may also obtain, at USPS’s sole cost and expense, a
survey of the Real Property or an update to any existing survey provided by Seller.
4.2.2.Within forty-five (45) business days after the Effective Date, USPS maygive written
notice (the “Initial Notice”) to Seller of the Exceptions that USPS will request that Seller
remove of record at or before Closing and any objections that USPS has to matters disclosed
by the Survey (the “Title and Survey Objections”). Seller has fifteen (15) business days
following receipt of the Initial Notice to give written notice (the “Reply Notice”) to USPS of
those Title and Survey Objections that Seller cannot or will not remove at or before Closing. In
the event that any update to the Title Commitment or any Survey reveals additional
encumbrances on titleor survey matters to which USPS objects, USPS shall have fifteen (15)
business days from the receipt thereof to provide Seller with written notice of any additional
Title and Survey Objections and Seller shall have five (5) business days from the receipt of
such notice to provide an additional Reply Noticewith respect to such additional Title and
Survey Objections.Failure bySellerto timely give any Reply Notice, shall be deemed
notification to USPS that Seller cannot or will not remove such Title and Survey objections.If
Seller commits to cure any Title and Survey Objection and then fails to do so at or before
Closing, such failure shall be a default by Seller hereunder. Seller shall, at its sole cost,
remove, at or before Closing, all matters of record that evidence security for payment of a sum
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of money (including mortgages, deeds of trust, tax liens, contractor’s liens, and judgment liens)
regardless of whether USPS objects to such matters or not.
4.2.3.Within ten (10) business days after receipt of anyReply Notice or deemed notification in
which Seller indicates it cannot or will not remove any of USPS’s Title and Survey Objections
at or before Closing: (a) USPS may terminate this Agreement, whereupon neither party will
have any further liability under this Agreement, except the Surviving Rights, (b) USPS may
accept title to the Property subject to the Title and Survey Objections which Seller’s Reply
Notice indicated Seller would not cure, or (c) USPS may attempt to cure the Title and Survey
Objections or any of them without cost or liability to Seller (but Seller will be obligated to
reasonably cooperate with the cure efforts and to join in the execution of any curative
instruments that will operate to remove the Title and Survey Objections). The foregoing rights
of USPS will not be deemed waived by failing to give a timely Termination Notice, nor shall
they be construed as limiting USPS’ rights as found elsewhere in this Agreement. Matters of
record other than monetary liens that are shown on the Title Commitment and are not included
as Title and Survey Objections by USPS or which are identified in Seller’s Reply Notice as
matters that Seller cannot or will not remove at or before Closing and are not thereafter
removed by USPS, are collectively referred herein to as the “Permitted Exceptions.”
4.3.Inspection of Property.Seller grants to USPS and its agents and contractors the right to
enter on the Property at any reasonable times before the Closing Date for the purpose of
conducting inspections, tests, studies or surveys, including without limitation a Phase I
Environmental Assessment in accordance with ASTM standards (a “Phase I”),that USPS may
deem necessary or appropriate in connection with USPS’s acquisition of the Property or
construction of USPS’s intended improvements, if any. USPS will notify Seller in advance if
and when USPS, its agents or contractors plan to conduct any tests, inspections or studies on
the Property, and to the extent reasonably possible, will schedule such tests, inspection and
studies at a time that is agreeable to Seller in its reasonable discretion. All tests, studies,
surveys or inspections performed by USPS shall be performed at USPS’s sole expense.In
addition, prior to any entry onto the Property by USPS or its contractors, consultants, or
representative that involves physical testing, drilling or other physical disturbance, USPS shall
provide Seller with proof of comprehensive or commercial general liability insurance covering
its consultant or contractor performing the work, which insurance shall include, but not be
limited to, completed operations and broad form property damage coverage and which shall
name Seller as an additional insured. In theevent of termination, USPS shall provide Seller
copies of all inspection, test, study or survey reports obtained by USPS pursuant to this
Section 4.3
4.4.Restoration of Property. If USPS fails to purchase the Property, USPS will fully compensate
Seller for any physical damage to the Property or any lien, encumbrance, or charge on it
directly attributable to USPS’s activities under this paragraph. Notwithstanding anything to the
contrary, USPS’s liability under this Section 4.3.1shall be limited to actual damages permitted
by the Federal Torts Claims Act and shall exclude punitive, special and consequential
damages.If USPS fails to purchase the property, then USPSshall not be liable for any liability
or costs imposed by law or regulations, including without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, the Hazardous
Materials Transportation Act, as amended, the Resource Conservation and Recovery Act, as
amended, the Federal Water Pollution Control Act, as amended, and all other federal, state or
local statutes, laws, ordinances, codes, rules or regulations relating to the protection of human
health, safety or welfare or the environment, including (i) all laws relating to reporting, licensing,
permitting, investigating or remediating emissions, discharges, releases or threatened releases
of a Hazardous Substance into the air, surface water, groundwater, or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling
of a Hazardous Substance; and (ii) all laws pertaining to the protection of the health and safety
of employees or the public.
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5.CONDITIONS PRECEDENT TO CLOSING. In addition to any other conditions contained in this
Agreement, set forth below are certain conditions precedent to the closing of the transaction
contemplated by this Agreement (the “ClosingConditions”). These Closing Conditions are intended
solely for the benefit of USPSand USPSwill have the right to waive, by written notice to Seller, any of
the Closing Conditions, in USPS’s sole discretion. Failure to give a Termination Notice or Title and
Survey Objection will not constitute a waiver of a Closing Condition. If any Closing Condition is not
satisfied or waived on or before the deadline for satisfaction specified below, then USPSwill have the
right to terminate this Agreement, at its sole election, by giving Seller notice of termination on or after
the specified deadline, but before the Closing occurs,and neither party shall have any further
obligation hereunder except for the Surviving Rights. The Closing Conditions include the following:
5.1.On or before the Closing Date, Seller will have performed all the covenants, conditions,
agreements, and promises to be performed by it under this Agreement.
5.2.On the Closing Date, all of Seller’s representations are true and correct as if made as of the
Closing Date.
5.3.On or before theClosing Date, Seller has delivered into Escrow (as defined below) all
deliveries required by Section 6.2. Notwithstanding the foregoing, Seller shall deliver to USPS
and the Title Company a draft version of the Grant Deed at least ten (10) business days prior
to the Closing Date for review and approval.
5.4.On the Closing Date, the Title Company will issue toUSPS the Title Policy required by Section
6.7below.
5.5.As of the Closing Date, Seller shall be in good standing in the jurisdiction in which Seller is
formed and shall not be in receivership or dissolution or have made any assignment for the
benefit of creditors, or admitted in writing its inability to pay its debts as they mature, or have
been adjudicated a bankrupt, or have filed a petition in voluntary bankruptcy, a petition or
answer seeking reorganization or an arrangement with creditors under the federal bankruptcy
law or any other similar law or statute of the United States or any state and no such petition
shall have been filed against it.
5.6.As of the Closing Date, there has been no casualty or materially adverse change to the
Property since the Effective Date and no fact or condition exists that would result in the
termination of the current access from the Property to any presently existing public highways
and/or roads adjoining or situated on the Property.
5.7.As of the Closing Date, ingress and egressto the Property has been established and approved
by the City of Lake Elsinore, and/or the County of Riverside, and/orany other required entity.
6.CLOSING.
6.1.Time and Place. Closing of the sale and purchase of the Property (the “Closing”) will occur on
or before the Closing Date, unless extended pursuant to Section 8.2 below,or by mutual
agreement of the parties. The escrow for the Closing (“Escrow”) will be established at the
national office of the Title Company and the Title Company will close Escrowin accordance
with the terms of this Agreement, the Escrow Agreement and the instructions provided by
Seller and USPS.
6.2.Seller’s Closing Obligations. On or before the Closing Date, Seller will execute,
acknowledge, and deliver into Escrow the following documents:
6.2.1.A GrantDeed (the “Deed”) in the form attached hereto as Exhibit C, in recordable form
and duly executed and acknowledged;
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6.2.2.An easement or other access agreement establishing ingress and egress to the Property,
as referenced in 5.7;
6.2.3.RESERVED
6.2.4.A closing or settlement statement identifying the sources and disbursements of funds at
Closing;
6.2.5.An owner’s affidavit and other certificates and documents required by the Title Company
in order to issue the Title Policy (defined in Section 6.7 below) andremove all monetary liens
and other exceptions to title other than Permitted Exceptions;
6.2.6.A duly executed affidavit certifying that Seller is not a foreign person, trust, partnership,
or corporation in compliance with the requirements of IRC §1445(b) and any documents
required to comply with income tax withholding obligations in the state in which the Property is
located;
6.2.7.Such documents as the Title Company may require to evidence the authority of Seller to
consummate this transaction;
6.2.8.Such other documents and funds, including without limitation, escrow instructions, that
are required of Seller or reasonably requested by USPS or the Title Company to close the sale
in accordance with this Agreement.
6.2.9.Such other documents, including without limitation, Preliminary Change of Ownership
Report, Documentary Transfer Tax Affidavit noting exemption, that are required by the County
of Riverside to record the transaction,
6.3.USPS’s Closing Obligations. On the Closing Date, USPS will execute, acknowledge, and
deliver into Escrow the following documents:
6.3.1.Payment for the balance of the Purchase Price, minus any credits due USPS under the
terms of this Agreement;
6.3.2.A closing or settlement statement identifying the sources and disbursements of funds at
Closing;
6.3.3.Reserved;and
6.3.4.Any other documents and funds,including without limitation,escrow instructions, that
are required of USPS or reasonably requested by the Title Company to close the sale and
purchase of the Property in accordance with this Agreement.
6.4.Closing Costs.
6.4.1.Seller’s Closing Costs. Seller will pay its own attorney fees as well as one-half of the
escrow and closing fees; the cost of recording the Deed; the cost of all documentary transfer
taxes, documentary stamps, city, county or state transfer taxes and other similar real property
transfer fees or taxes; the cost of the standard owner’s coverage premium for the Title Policy;
all costs of curing or removing all encumbrances other than the Permitted Exceptions; any
finder’s fees and brokerage commissions; and all other expenses not addressed herein and
customarily charged to a seller in the county in which the Property is located.
6.4.2.USPS’s Closing Costs. USPS will pay its own attorney fees,as well as one-half of the
escrow and closing fees; any additionalcostsor premiums for title endorsements or the ALTA
extended overage portion of the Title Policy in excess of the standard owner’s coverage
premium; USPS’s due diligence and other expenses incurred in studying the Property; and all
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other expenses not otherwiseaddressed herein and customarily charged to a buyer of real
estate in the county in which the Property is located.
6.5.Apportionments. All rents, utilities,and real property taxes and assessments payable with
respect to the tax year in which Closing occurs will be prorated between Seller and USPS as of
the Closing Date. If the actual amounts to be prorated are unknown at the time of Closing,
then the proration shall be made on the basis of the best information then available. The
parties will make appropriate adjustments when the actual amounts are known and USPS or
Seller, as applicable, will pay the other on demand such amounts as may be appropriate based
on such adjustment. The parties’ obligations under this Section 6.5 shall survive Closing.
6.6.Conveyance.At Closing, Seller will execute, acknowledge, and deliver to USPS the Deed, the
Bill of Sale, to convey, sell,and deliver the Property to USPS, subject only to the Permitted
Exceptions.
6.7.Title Insurance Policy.At Closing, Seller will cause the Title Company to issue USPS an
ALTA US Title Policy, effective as of the Closing Date in the amount of the Purchase Price,
insuring fee simple title to the Property is vested in USPS, subject only to the Permitted
Exceptions and the standard printed exceptions which may not be removed by the provision of
an owner’s affidavit, evidence of payment of taxesand special assessmentsor a survey
acceptable to the Title Company. Any title insurance endorsements or extended coverage
shall be obtained and paid for by USPS. Seller may elect to purchase, at its expense, a seller
policy of title insurance. Seller will cause the Title Company to issue USPS a final Title Policy
on the same terms as the ALTA USTitle Policy not more than ten (10) days after the Closing
Date.
6.8.Possession.Seller shall deliver exclusive possession of the Property to USPS on the Closing
Date.
7.SELLER COVENANTS.
7.1.Maintenance. Before the Closing Date, Seller will maintain the Property in the same condition
as it now exists, ordinary wear and tear excepted, and will not cause or permit any waste.
7.2.Lease/Transfers. Before the Closing Date, Seller will not sell, contract to sell, assign, lease,
or otherwise transfer or encumber the Property or any part of it, nor grant an option to any third
party to acquire all or any portion of it.
7.3.Liens and Encumbrances. Before the Closing Date, other than permitted hereunder, Seller
shall not create or permit to be created any liens, easements or other conditions affecting any
portion of the Property or the uses thereof.
7.4.Approvals. USPS has the right to apply for and obtain any governmental approvals to use
and develop the Property as USPS may desire provided such governmental approvals will not
conflict with Seller’s permits or approvals for the Property. Seller will reasonably assist and
cooperate with USPS in obtaining USPS’s approvals and permits, but all costs and expenses
incurred with respect to such approvals or permits will be paid for by USPS.
8.SELLER REPRESENTATIONS AND WARRANTIES.Seller acknowledges that the representations
of Seller contained in this Agreement (the “Representations”), are material inducements to USPS to
enter into this Agreement. All Representations will survive transfer of title.
8.1.Seller represents to USPS that the following matters are true and correct as of the Effective
Date:
8.1.1.Litigation; Law. There is no litigation, arbitration, or administrative hearing pending
before any governmental authority that concerns or affects Seller or the Property or any
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portion of it and, to the knowledge of Seller, no such proceeding is threatened. Seller has
received no written notice that the Property is not in compliance with any applicable law,
ordinance, or governmental approval regarding the Property. There are not presently pending
any special assessments or condemnation actions against the Property or any part thereof,
nor does Seller have any knowledge of any pending litigation, liens, special assessments, or
condemnation actions being contemplated, nor does Seller know of the existence of any fact
which might give rise to such action or proceeding.
8.1.2.Status of Seller. Seller is not a foreign person, foreign partnership, foreign corporation,
or foreign trust, as those terms are defined in IRC §1445.
8.1.3.Breach of Agreements. Neither the execution of this Agreement, nor the execution,
delivery, or recordation of any document or agreement referenced herein, nor the closing of
the transaction contemplated herein, constitutes or will constitute a default under any other
agreement or contract that relates to the Property or to which Seller is a party.
8.1.4.Authority. No consents, documents, or approvals that have not been obtained are
necessary to the effectiveness and enforceability of this Agreement against Seller. Seller has
all legal rights, power and authority to execute, deliver, and perform this Agreement.
8.1.5.Contracts and Encumbrances. There are no lease agreements, maintenance
contracts, service agreements, or other contracts of any nature that pertain to, cover, or affect
the Property or any part of it which would survive Closing. To Seller’s knowledge, there are no
easements, licenses or other rights, claims or interests affecting the Real Property which are
not disclosed by the public records in the county in which the Property is located.
8.1.6.Due Diligence Deliveries. To the best knowledge of Seller, the Property Documents
delivered to USPS by Seller are true and accurate in all respects.
8.1.7.Payment of Current Property Taxes. Seller has paid all real property taxes and
assessments and all other impositions of any kind imposed or levied by any governmental
authority on the Property due and payable with respect to the tax year in which the Effective
Date occurs and all prior tax years during which Seller has owned the Property, together with
all interest and penalties due thereon.
8.2.Changed Condition. If prior to Closing, Seller discovers that one or more of the
Representations or one of the conditions referred to in the Representations has changed after
this Agreement is executed, Seller will immediately inform USPS, in writing, of that discovery
(each, a “ChangedCondition”). USPS may thereafter either (a) terminate this Agreementby
giving written notice of termination to Seller, within ten (10) days after receiving the notice from
Seller, or (b) proceed to close subject to the Changed Condition. If Seller notifies USPS of a
Changed Condition less than ten (10) days before the Closing Date, the Closing shall be
extended to accommodate such review period.
8.3.False Representation; Indemnification. If, after Closing, USPS discovers or is advised that
any of the Representationswas untrue when made as of the Effective Date or as of the Closing
Date, then USPS may pursue any remedy available to USPS at law or in equity by reason of
the breach of the Representation.Seller agrees to indemnify and hold harmless USPS from
and against all claims, losses, liabilities, damages, costs and expenses, including, without
limitation, reasonable legal, accounting, consulting, engineering and other expenses, incurred
by USPS arising out of the breach, inaccuracy, incompleteness or non-fulfillment of any
covenant, Representation or agreement given by Seller in this Agreement. This indemnity shall
survive transfer of title and be in addition to the Seller’s obligation for breach of a covenant,
representation or warranty set forth herein.
9.ENVIRONMENTAL CONDITIONS.
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9.1.Environmental Representation and Warranty. Seller represents and warrants that, to the
best of its knowledge, after making diligent inquiry of its employees, partners, managers,
officers and board, and itsattorneys, consultants, brokers, and contractors: (i) the Property is
free of Environmental Contamination; (ii) there are no underground storage tanks or associated
piping on, in, or under the Property; (iii) there are no ACMs, radon, lead-based paint, or lead
piping or solder in drinking water systems, or in or on the Property; and (iv) Seller has not
received, nor is Seller aware of, any notification or other communication from any party
concerning any environmental condition, or violation or potentialviolation of any Environmental
Law, regarding the Property or in its vicinity.
9.2.RESERVED.
9.3.RESERVED.
9.4.Definitions. As used herein the following terms have the following definitions:
“Environmental Laws” mean all federal, state or local statutes, laws,ordinances, rules or
regulations, relating to protection of human health or the environment, including but not
limited to (i)all laws relating to the release of Hazardous Materials into the air, surface
water, groundwater or land, or relating to the reporting, investigation or remediation of,
licensing, manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials; (ii)all laws pertaining to the protection of the
health and safety of employees; and (iii)the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601 et seq.; the
Hazardous Materials Transportation Act as amended 49 U.S.C. §1801 et seq.; the
Resource Conservation and Recovery Act, as amended 42 U.S.C. §6901 et seq.; and the
Federal Water Pollution Control Act, as amended, 33 U.S.C. §1251 et seq.
“Hazardous Materials” mean (i) any toxic substance or hazardous waste, substance or related
material, or any pollutant or contaminant that is or may hereafter be defined as or included in the
definition of “hazardous substances,” “toxic substances,” “hazardous materials,” “hazardous
waste” or words of similar import under any and all Environmental Laws; (ii) petroleum, radon
gas, asbestos in any form that is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment that contain dielectric fluid containing levels of polychlorinated
biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent; and
(iii) any substance, gas material or chemical that is or may hereafter be defined as or included in
the definition of “hazardous substances,” “toxic substances,” “hazardous materials,” “hazardous
waste” or words of similar import under any Environmental Laws.
“Environmental Contamination” means the presence of any Hazardous Materials which includes
the presence of friable asbestos materials at any level, in, on, or under the Property at levels that
require reporting to the enforcing environmental regulatory agency and/or environmental
response action (s) under applicable Environmental Laws.
“Asbestos-Containing Material” or “ACM”means any material containing more than 1% asbestos
as determined by using the method specified in 40 CFR Part 763, Subpart E, Appendix E.
“Friable asbestos material” means any ACM that, when dry, can be crumbled, pulverized, or
reduced to powder by hand pressure.
10.CONDITION OF PROPERTY
10.1.“As Is” Condition. The Property is purchased and sold in “AS IS” condition. USPS, as
specified in Section 4.3, has or shall have inspected and conducted tests, inspections,
investigations and studies of the Property as USPS, in USPS’s discretion, deems necessary.
USPS acknowledges and agrees that, except as specifically provided in Section 9.1, Seller has
not made, does not make and specifically negates and disclaims any representations,
warranties, promises, covenants, agreements or guaranties of any kind or character
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whatsoever, whether express or implied, oral or written, past, present or future, of, as to,
concerning or with respect to (i) value; (ii) the income to be derived from the Property; (iii) the
nature, quality or condition of the Property, including, without limitation, the water, soil and
geology; (iv) the compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body; (v) compliance
with any environmental protection, pollution orland use laws, rules, regulation, orders or
requirements, including but not limited to, the Federal Water Pollution Control Act, the Federal
Resource Conservation And Recovery Act, the U.S. Environmental Protection Agency
Regulations at 40 C.F.R., Part 261, the Comprehensive Environmental Response,
Compensation And Liability Act of 1980, as amended, the Resource Conservation And
Recovery Act of 1976, the Clean Water Act, the Safe Drinking Water Act, the Hazardous
Materials Transportation Act, the Toxic Substance Control Act, and regulations promulgated
under any of the foregoing; (vi) the presence or absence of Hazardous Materials at, on, under,
or adjacent to the Property; (vii) the content, completeness or accuracy of any due diligence
materials deliveredby Seller to USPS or preliminary report regarding title; (viii) deficiency of
any undershoring; (ix) deficiency of any drainage; (x) the fact that all or a portion of the
Property may be located on or near an earthquake fault line or a flood zone; or (xi)with respect
to any other matter. USPS further acknowledges and agrees that it has or will have been given
the opportunity to inspect the Property and review information and documentation affecting the
Property, and that, except for Seller’s express representations and warranties contained
herein, USPS is relying solely on its own investigation of the Property and review of such
information and documentation, and not on any information provided or to be provided by
Seller. USPS further acknowledges and agrees that any information made available to USPS
or provided or to be provided by or on behalf of Seller with respect to the Property was
obtained from a variety of sources and that Seller has not made any independent investigation
or verification of such information and makes no representations as to the accuracy or
completeness of such information. USPS agrees to fully and irrevocably release all such
sources of information and preparers of information and documentation affecting the Property
which were retained by Seller from any and all claims that they may now have or hereafter
acquire against such sources and preparers of information for any costs, loss, liability, damage,
expense, demand, action or cause of action arising from such information or documentation.
except for Seller’s express representations and warranties contained in Sections 8.1 and 9.1,
Seller is not liable or bound in any manner by any oral or written statements, representations or
information pertaining to the Property, or the operation thereof, furnished by any real estate
broker, agent, employee, servant or other person. USPS further acknowledges and agrees that
to the maximum extent permitted by law, except for Seller’s express representations and
warranties contained in Section 8.1and 9.1, the conveyance of the Property as provided for
herein is made on an "as is" condition and basis with all faults, and that Seller has no
obligations to make repairs, replacements or improvements except as may otherwise be
expressly stated herein. USPS represents, warrants and covenants to Seller that, except for
Seller’s express representations and warranties specified in this Agreement, USPS is relying
solely upon USPS’s own investigation of the Property.
10.2.General Waiver. With respect to the waivers and releases set forth in Section 10.1, above,
USPS expressly waives any of its rights granted under California Civil Code Section 1542,
which provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
___________________________
USPS Contracting Officer Initials
11.REMEDIES.
11.1.USPS Remedies. If Seller breaches any term or provision of this Agreement or any warranty
or representation of Seller, including those made in Sections 8 and 9 hereof, is false as of the
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Closing Date, then USPS may either (a) waive the default and proceed to Closing, (b)
terminate this Agreement and USPS’s obligations hereunder and obtain a refund of the Deposit,
or (c) tender performance of the obligations of USPS and seek specific performance of all
obligations of Seller under this Agreement within the applicable statute of limitation period. If
USPS has pursued specific performance of this Agreement and specific performance is
unavailable as a judicial remedy, then USPS may exercise any other right or remedy which
USPS may have at law or in equity by reason of such default including, but not limited to,
obtaining a refund of the Deposit from Seller, recoveringreasonable attorney fees and court
costs incurred by USPS, obtaining reimbursement of actualreasonable out-of-pocket costs
expended by USPS in the performance of this Agreement; provided, however, USPS shall not
be entitled to punitive, special or consequential damages.
11.2.Seller Remedies. If USPS breaches any term or provision of this Agreement, then Seller, as
its exclusive remedy and in lieu of any other relief, will be entitled to terminate this Agreement
by giving USPS written notice of termination and to retain theDeposit. Seller acknowledges (a)
the adequacy of this exclusive remedy and (b) that this limitation of remedies is an essential
part of this Agreement from the perspective of USPS. Except for a claim to enforce USPS’s
obligations in Section 4.3.1,Seller expressly waives the right to pursue any other right or
remedy in law or equity other than the remedy specified above, including the right of specific
performance and the right to sue for damages, in the event of a default by USPS. USPS and
Sellerhave established the foregoing remedy in favor of Seller because of the difficulty and
inconvenience of ascertaining the actual damages Seller may suffer as a result of a breach of
this Agreement by USPS.
12.RISK OF LOSS. All risk of loss shall remain withSeller until Closing. In the event the Property is
destroyed or damaged prior to Closingbeyond ordinary and reasonable wear and tear, USPS may
terminate this Agreement, or if insurance proceeds are available and USPS decides to proceed to
close, then Seller agrees to assign such available insurance proceeds to USPS as soon as practical
as of or following the Closing Date. If USPS so terminates, then the Deposit shall be refunded to
USPS and neither party shall have any further liability under this Agreement other than the Surviving
Rights. Nothing in this paragraph shall be deemed to release USPS from its restoration obligations
under Section 4.3.1 of this Agreement; however, such restoration obligation will be limited to those
portions of the Property not otherwise damaged or destroyed through no fault of USPS.
13.MISCELLANEOUS PROVISIONS.
13.1.Additional Documents. Seller and USPS agree to execute such additional documents,
including escrow instructions, as may be reasonable and necessary to carry out the provisions
of this Agreement.
13.2.Waiver. Failure of either party at any time to require performance of any provision of this
Agreement shall not limit such party’s right to enforce such provision, nor shall any waiver of
any breach of any provision of this Agreement constitute a waiver of any succeeding breach of
such provision or a waiver of such provision itself. Any waiver of any provision of this
Agreement shall be effective only if set forth in writing and signed by the party to be bound.
13.3.Successors andAssigns.The terms, covenants, and conditions herein contained are binding
on and inure to the benefit of the heirs, successors, and assigns of Seller and USPS.
13.4.Notices. All notices approvals, consents and other communications required or permitted
hereunder shall be in writing and delivered to the parties hereto by fax transmission, personally
by hand, courier service or by United States Postal Service Express Mail overnight service, or
by first class mail, postage prepaid, to the addresses set forth in Section 1 of this Agreement.
All notices shall be deemed given when received or refused, if addressed to the party to be
notified. The parties may, by notice as provided above, designate a different address to which
notice shall be given.
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13.5.Brokerage. Other than Jones Lang LaSalle Americas, Inc.representing USPS, for which
Seller is responsible to pay any applicable commission due,each party represents to the other
that it has not used a real estate broker in connection with this Agreement or the transaction
contemplated by this Agreement. Seller shall pay four percent (4%) commission to USPS’
Brokers upon the successful Closing of this transaction.In the event any person asserts a
claim for a broker’s commission or finder’s fee against one of theparties to this Agreement, the
party against whom the claim is asserted will indemnify and hold the other party harmless from
said claim. The provisions of this section shall survive the Closing.
13.6.Integration, Modification, and Amendments. This Agreement (including all Exhibits
attached hereto, which are incorporated herein by this reference) contains the entire
agreement of the parties with respect to the purchase and sale of the Property and supersedes
all prior written and oral negotiations and agreements with respect to the purchase and sale of
the Property. No supplement, modification, or amendment of this Agreement shall be binding
and no waiver of any provision in this Agreement effective, unless executed in writing by all the
parties.
13.7.GoverningLaw.This Agreement shall be governed by and construed in accordance with
federal law.
13.8.Interpretation. If a court of competent jurisdiction holds any portion of this Agreement to be
void or unenforceable as written, Seller and USPS intend that the portion of this Agreement be
enforced to the extent permitted by law and the balance of this Agreement remain in full force
and effect.With respect to any pronouns used, each gender used includes the other gender
and the singular and the plural, as the context may require.
13.9.Representation by Counsel. Seller and USPS have each been represented by separate
legal counsel of choice with respect to this transaction and each party will be responsible for all
attorney fees incurred by it with respect to this Agreement.
13.10.Patriot Act Disclosure. Seller represents and warrants that neither Seller nor any person or
entity holding any legal or beneficial interest whatsoever in the Property, whether directly or
indirectly, is named on any list of persons, entities and governments issued by the Office of
Foreign Assets Control of the United States Department of the Treasury (“OFAC”) pursuant to
Executive Order 13224 —Blocking Property and Prohibiting Transactions with persons Who
Commit, Threaten to Commit or Support Terrorism, as in effect on the date hereof, or any
similar list issued by OFAC or any other department or agency of the United States (collectively,
the “OFAC Lists”), or included in, owned by, controlled by, acting for or on behalf of, providing
assistance, support, sponsorship, or services of any kind to, or otherwise associated with any
persons or entities referred to or described in any OFAC Lists (collectively, “Blocked Persons”).
In the event USPS learns that Seller’s name appears on the OFAC Lists, USPS reserves the
right to delay the closing contemplated by this Agreement pending USPS’s investigation into
the matter. If USPS is advised and/or determines that Seller is a Blocked Person, USPS
reserves the right to terminate this Agreement and take all other actions necessary to comply
with the requirements of the Executive Order.
13.11.Time is of the Essence. Time is of the essence in the performance of this Agreement.
13.12.Authority. Each person executing this Agreement on behalf of Seller and USPS, respectively,
warrants his or her authority to do so.
13.13.Confidentiality. Except as otherwise agreed, Seller and USPS and their agents, accountants,
lawyers, and consultants will treat this Agreement and all information obtained or exchanged in
connection with it as confidential and will not disclose the terms of this Agreement or any
information relating to it to any person, other than persons engaged to assist in the
consummation of this Agreement and except as required by law or regulation, public disclosure
laws and regulations, including the Freedom of Information Act, or orders of a court or in an
14
administrative proceeding. Nothing contained herein operates to prevent or limit the right of
Seller or USPS to disclose the terms of this Agreement or any other information relating to it in
conjunction with any litigation, land use proceeding, or other proceeding instituted with respect
to this Agreement or the Property or as may be mandated by applicable laws or regulations.
13.14.Consents. The parties agree toact in good faith and with fair dealing with one another in the
execution, performance, and implementation of the terms and provisions of this Agreement.
Whenever the consent, approval, or other action of a party is required under any provision of
this Agreement, the consent, approval, or other action will not be unreasonably withheld,
delayed, or conditioned by a party unless the provision in question expressly authorizes the
party to withhold or deny consent or approval or to decline to take action in accordance with a
different standard, in which case the consent or approval or the decision to not take action may
be withheld, delayed, or conditioned in accordance with the different standard. (Any provision
indicating that consent is not to be unreasonably withheld is to be interpreted to mean that
consent will not be unreasonably withheld, delayed, or conditioned.) In all events, however,
USPS may provide a Termination Noticein its sole and absolute discretion for any reason or
no reason.
13.15.Calculation of Time Periods. Unless otherwise specified herein, in computing any period of
time described in this Agreement, the day of the act or event after which the designated period
of time begins to run is not to be included and the last day of the period so computed is to be
included, unless such last day is not a business day, in which event the last day of the
applicable period shall be the next business day. The final day of any such period shall be
deemed to end at 4 p.m. Washington, D.C. time. Day or day shall mean a calendar day;
business day shall mean those days of the week that are not a Saturday, Sunday or federal
holiday.
13.16.Joint and Several. If the Seller is comprised of more than a single entity, then Seller’s
obligations are joint and several and USPS may pursue (and recover from) either or both
entities in any equitable or legal action without obligation to join or notify the other entity, if
pursuing one entity, consistent with the remedies set forth herein.
13.17.Counterparts. This Agreement may be executed in one or more counterparts, all of which will
be considered one and the same Agreement and will be effective when one or more
counterparts have been signed and delivered by Seller and USPS. Signatures required under
this Agreement may be transmitted by email or by fax and, once received by the party to the
Agreement to whom such signatures were transmitted, shall be binding on the party
transmitting its signatures as though they were an original signature of such party.
LIST OF SCHEDULES AND EXHIBITS
Exhibit A: Legal Description
Exhibit A1: Legal Description of Neighboring Lot
Exhibit B: Escrow Agreement
Exhibit C: GrantDeed
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective
Date set forth above.
“SELLER”
CITY OF LAKE ELSINORE
By:_____________________________
Name:Grant Yates
Title:City Manager
“USPS”
UNITED STATES POSTAL SERVICE
By:_____________________________
Name:Joseph D. Lowe
Title:Contracting Officer
Date:
ATTEST:
________________________________________
City Clerk, City of Lake Elsinore
APPROVED AS TO FORM:
Leibold McClendon & Mann, P.C.
_________________________________________
Barbara Leibold, City Attorney
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EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
LEGAL DESCRIPTION
A 1.37 acre tract of land located on the corner of Pottery and Spring Streets consisting of the following
Parcel Numbers:
374-062-005
Lot 9recorded in Map Book 8/378, Block 82 in Riverside County, CA
374-062-006
Lot 7 recorded in Map Book 8/378, Block 82 in Riverside County, CA
374-062-015
Lot 5 recorded in Map Book 8/378, Block 82 in Riverside County, CA
374-062-020
Lot 9999 recorded in Map Book 999/999, Block 999 in Riverside County, CA
2
EXHIBIT A-1
TO PURCHASE AND SALE AGREEMENT
Neighboring Lot Legal Description
A 1.97 acre tract of land located on the corner of Spring and Flint Streets consisting of the following
Parcel Number’s:
374-062-004
0.01acres and recorded in Map Book 8/378, Lot/Parcel: 17 in Riverside County, CA
374-062-016
0.33 acres and recorded in Map Book 999/999 in Riverside County, CA
374-062-024
1.63 acres and recorded in Map Book 999/999 in Riverside County, CA
3
EXHIBIT B
TO PURCHASE AND SALE AGREEMENT
FORM OF ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of the ___ day of _________, 20__, is made by and
among The City of Lake Elsinore(“Seller”), the United States Postal Service (“USPS”) and Chicago Title
Insurance Company(the “Escrow Agent”).
1.Escrow Agreement and Agreement of Purchase and Sale.
Seller and USPS have entered into a Purchase and Sale Agreement(“Purchase Agreement”) with an
effective date of ______________ pursuant to which USPSwill acquire from Seller the Property (as such
term is defined in the Purchase Agreement. Escrow Agent acknowledges receipt of a copy of the fully
executed PurchaseAgreement. Unless otherwise defined in this Escrow Agreement, each capitalized
term in this Escrow Agreement shall have the meaning ascribed to it in the PurchaseAgreement.
2.Deposits and Escrow Account.
2.1.Deposit. Pursuant to the PurchaseAgreement, Escrow Agent shall receive and hold the
Depositin escrow, and disburse funds from escrow, solely in accordance with this Escrow
Agreement. Not later than one business day after each receipt of funds, Escrow Agent shall
confirm by notice to Seller and USPS (1) the amount of funds received and (2) that Escrow
Agent is holding the same in accordance with the terms of this Escrow Agreement.
2.2.Escrow Account. Escrow Agent shall keep the Depositin an interest bearing account (the
“Escrow Account”) that at all times: permits immediate disbursement without penalty or loss of
principal or interest, is titled solely in Escrow Agent’s name, and is maintained (i)in an FDIC
insured single owner deposit account for so long as the Deposit amount is not greater than the
applicable maximum FDIC Deposit Insurance Coverage Limit, or otherwise (ii)in a bank that
BankRate.com lists on its site (http://www.bankrate.com/rates/safe-sound/bank-ratings-
search.aspx?t=cb) as having greater than $5 Billion in assets and 4 or more stars. Escrow
Agent shall notify Seller and USPS with all specific information concerning the Escrow
Account, including bank name, address, and account number within two business days after
the date of this Escrow Agreement and immediately following any change in such information.
Interest earned on the Deposit shall constitute a part of the Deposit and shall be disbursed at
the time and to the same party as theDeposit is disbursed.
2.3.Remittance and Disbursement of Funds. All remittancesin connection with this Escrow
Agreement, including USPS’s delivery of the Depositto Escrow Agent and Escrow Agent’s
disbursement of the Deposit,shall be made by wire transfer of immediately available funds in
US Dollars.Escrow Agent shall disburse the Depositstrictly in accordance with this Escrow
Agreement to an account designated by the party receiving the Deposit. Escrow Agent shall
provide such party with the federal funds wire number as soon as the same is available to
Escrow Agent. Escrow Agent may act and rely on any written notice, instruction, direction or
other document that Escrow Agent in good faith believes to be genuine and to have been
signed or presented by the proper party or parties.
2.3.1.Disbursement on Termination. If either Seller or USPS certifies to Escrow Agent by
notice that either party has terminated obligations under the PurchaseAgreement or is
otherwise entitled to the Depositand includes instructions for disbursement thereof, then the
Escrow Agent shall forward such certification by notice to the other party and not less than five
business days nor more than tenbusiness days after the dateof such notice shall disburse the
Depositin accordance withsuch certification, unless prior to such disbursement the other party
notifies Escrow Agent that it disputes such certification or instructions. If the other party gives
such dispute notice, then Escrow Agent shall retain the Depositin the Escrow Account until
both Seller and USPS provide Escrow Agent with jointly executed instructions for releasing the
Deposit, or Escrow Agent interpleads the Depositpursuant to Section 4.1 below.
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2.3.2.Disbursement at Closing. If Escrow Agent receives no such certification, then Escrow
Agent shall disburse the Depositin accordance with the Closing Statement defined in Section
3.1 belowat the Closing.
3.Escrow Agent’s Closing Duties.
3.1.Closing Statement. At least five business days prior to the Closing Date, Escrow Agent shall
provide USPS and Seller with a draft closing statement setting forth all cash flows for the
Closing, including application of the Deposit, payment of the Purchase Price, prorated
allocations of Property income, expenses and amounts due third-parties (to the extent known
to Escrow Agent), Escrow Agent fees, expenses and premiums, and the resulting net amount
due to or from each of Seller and USPS. Seller and USPS shall make good faith efforts to
review such draft closing statement and either sign and return it, or identify corrections,
promptly and in sufficient time for USPS to meet its obligations with respect to the delivery of
the Purchase Price to Escrow Agent as required by the PurchaseAgreement. (Such closing
statement, when approved in writing by Seller and USPS, is the “Closing Statement.”)
3.2.Closing. On the Closing Date, when authorized by Seller and USPS, the Escrow Agent shall
complete the following steps in the following order: (i) verify that USPS has delivered funds that
together with the Depositare sufficient to permit Escrow Agent to make all disbursements
shown on the Closing Statement, including disbursement to Seller of the net cash amount due
Seller as shown the Closing Statement (“Cash Due Seller”), (ii) disburse to Seller the Cash
Due Seller, (iii)disburse cash to satisfy all other charges and allocations on the Closing
Statement, and (iv)record the deed in accordance with local law.
4.Disputes, Liabilities and Fees.
4.1.Disputes. Should any dispute arise concerning the Depositor its disposition, including a
dispute under Section 2.3.1, then the Escrow Agent may, and upon request by notice of either
Seller or USPS shall, interplead the money into the registry of a federal court having jurisdiction
and concurrently notify each party of such action, whereupon the Escrow Agent will be relieved
of further responsibility for disposition of the Deposit.
4.2.Liabilities and Indemnities. Except for breach of this Escrow Agreement and its own bad faith,
negligence or willful misconduct, Escrow Agent shall not be liable for an act done or omitted by
it in good faith in connection with this Escrow Agreement. USPS and Seller shall be jointly
liable to indemnify Escrow Agent for any loss, liability or expense, including up to $10,000 of
reasonable attorneys’ fees, incurred without breach of this Escrow Agreement, negligence, bad
faith or willful misconduct by Escrow Agent, arising out of, or in connection with its acceptance
of, or the performance of its duties and obligations under this Escrow Agreement. As between
USPS and Seller, each shall be liable for 50% of payments made under the preceding
sentence. To the extent a party pays more than its 50% share, any portion of the Deposit
payable to the other party shall be applied first toward reimbursing the first party for such
excess.
4.3.Fees. Unless otherwise shown on the Closing Statement, each of USPS and Seller shall pay
one-half of the reasonable and customary fees and expenses of the Escrow Agent, or if no
Closing occurs, upon a termination described in Section 2.3.1 above, provided in either case
such fees and expenses not to exceed $3,000 in the aggregate.
5.Notices.
All notices under this Agreement shall be in writing, shall be effective when received or refused, and shall
be delivered by hand, by certified or registered mail with return receipt requested, or by USPS Priority
Express Mail with confirmation of receipt, to the respective parties at following addresses (or such
substitute address as a party may specify by notice to the other party):
5
Seller:The City of Lake Elsinore
Grant Yates, City Manager
130 S. Main Street
Lake Elsinore, CA 92530
With a Copy To: Leibold McClendon & Mann
Attention: Barbara Leibold
9841 Irvine Center Drive, Suite 230
Irvine, CA 92618
USPS:United StatesPostal Service
Patricia Webb, Real Estate Specialist
PO Box 27497
Greensboro NC 27498-1103
With a Copy To:Joseph B. Fray, Attorney
US Postal Service
475 L’Enfant Plaza SW, Room 6303
Washington, DC 20260
Escrow Agent: Chicago Title Insurance Company
Brad Mulay
10 South LaSalle St
Suite 3100
Chicago, IL 60603
Notices shall be deemed effective only if delivered to the parties to this Agreement, notwithstanding any
delivery or failure of delivery of such notices to the recipients listed as “With a Copy to” set forth above.
Notwithstanding the foregoing, the confirmations required by Section 2.1, the notice of escrow information
required by 2.2 aboveand closing instructions may be delivered electronically.
6.Miscellaneous.
This Escrow Agreement shall be governed by, and construed in accordance with, federal law. This
Escrow Agreement is for the sole benefit of the parties hereto and shall not be construed or deemed to
have been made for the benefit of any third party or parties. This Escrow Agreement may be executed in
any number of counterparts each of which, when so executed and delivered, shall be deemed an original,
but such counterparts together shall constitute but one agreement. This Agreement and any amendments
may be delivered electronically with the same legal effect as if delivered in paper form by hand. The
provisions of this Escrow Agreement shall survive its termination and the termination of, or Closing under,
the PurchaseAgreement. This Escrow Agreement shall not be modified by oral agreements. All
modifications to this Escrow Agreement must be in writing and executed by bothParties. Failure to insist
upon strict compliance with any provision hereof shall not be deemed a waiver of such provision or any
other provision hereof. The waiver by any party of any breach of any of the provisions of this Escrow
Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of the same, or
of any other provision of this Escrow Agreement. “Including” shall mean “including, without limitation.”
[Signature Page Follows]
6
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed
on the dates set forth below and to be effective for all purposes on the _______________ day of
_______________, 20__.
ESCROW AGENT:Chicago Title Insurance Company
By: _____________________________
Its:
USPS: United States Postal Service
By: ______________________________
Its: Contracting Officer
SELLER: The City of Lake Elsinore
By: ____________________________
Its: City Manager
ATTEST:
________________________________________
City Clerk, City of Lake Elsinore
APPROVED AS TO FORM:
Leibold McClendon & Mann, P.C.
_________________________________________
Barbara Leibold, City Attorney
EXHIBIT C
TO PURCHASE AND SALE AGREEMENT
FORM OF GRANT DEED
Prepared and Recording Requested By:
Name: ____________________________
Address: __________________________
__________________________________
State: ____________ Zip Code: ________
After Recording (with Tax Statements) to:
Name: United States Postal Service
Attn: Real Estate & Assets
Address: P.O. Box 27497
Greensboro, NC 27498-1103
Space Above This Line for Recorder’s Use
Title Order No. __________Escrow No. ____________APNs 374-062-005, -006, -015, -020
TRA _______________
CALIFORNIA GRANT DEED
THE UNDERSIGNED GRANTOR(S) DECLARE(S) DOCUMENTARY TRANSFER TAX is $ 0 (exempt
under § 11922.
☐Computed on full value of property conveyed, or
☐Computed on full value of items or encumbrances remaining at time of sale,
☐Unincorporated area City of __________________________
STATE OF CALIFORNIA
RIVERSIDE COUNTY
KNOW ALL MEN BY THESE PRESENTS, That for valuable consideration, receipt of
which is hereby acknowledged,in hand paid to City of Lake Elsinore, a California
municipal corporation, County of Riverside, State of California (hereinafter known as the
“Grantor”) hereby grants to the United States Postal Service, an independent
establishment of the Executive Branch of the federal government, having a place of
business at P.O. Box 27497, County of Guilford, City of Greensboro, State of North
Carolina, (hereinafter known as the “Grantee”) all the rights, title, interest, and claim
against all persons whomsoever in the following *described real property (*and in
Exhibit A if attached), situated in RiversideCounty, California to-wit:
______________________________________________________________________
______________________________________________________________________
[INSERT LEGAL DESCRIPTION HERE AND/OR ATTACH EXHIBIT A]
TOGETHER WITH all the rights, members and appurtenances to the Real Estate in
anywise appertaining or belonging thereto.
TO HAVE AND TO HOLD, the tract or parcel of land above described together with all
and singular the rights, privileges, tenements, appurtenances, and improvements unto
the said Grantee, itsheirs and assigns forever.
And said Grantor, for said Grantor, itsheirs, successors, executors and administrators,
covenants with Grantee, and with itsheirs and assigns, that Grantorislawfully seized in
fee simple of the said Real Estate; that said Real Estate is free and clear from all Liens
and Encumbrances, except as hereinabove set forth, and except for taxes due for the
current and subsequent years, and except for any Restrictions pertaining to the Real
Estate of record in the Probate Office of said County; and that Grantorwill, and itsheirs,
executors and administrators shall, warrant and defend the same to said Grantee, and
itsheirs and assigns, forever against the lawful claims of all persons.
IN WITNESS WHEREOF, Grantor has executed and delivered this GrantDeed under
seal as of the day and year first above written.
________________________________
Grantor’s Signature
________________________________
Grantor’s Name
________________________________
Address
________________________________
City, State & Zip
STATE OF CALIFORNIA)
COUNTY OF ___________________)
On ______________________ before me, ______________________, Notary Public,
personally appeared ______________________ who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/their/her
authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument. I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
Witness my hand and official seal this ____ day of ____________________, 20___.
____________________________________
Notary Public
My Commission Expires: ______________
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
EXHIBIT A to GrantDeed
LEGAL DESCRIPTION
(to be attached)
EXHIBIT B to GrantDeed
PERMITTED EXCEPTIONS
(to be attached, if any)
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