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HomeMy WebLinkAboutReso 219-08 Purch & Sale 5777 Scarlett CtRESOLUTION NO. 219-08 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A PURCHASE AND SALE AGREEMENT WITH 84 LUMBER COMPANY FOR A PROPERTY LOCATED AT 5777 SCARLETT COURT WHEREAS, in the 2008-2013 Capital Improvement Program (CIP) the City identified the need for a Maintenance Yard Facility/Emergency Operations Center; and WHEREAS, the industrial real property commonly known as 5777 Scarlett Court was recently listed for sale due to a business closure and is suitable for the purpose of the City's Maintenance Yard Facility; and WHEREAS, City staff and the property owner have reached proposed terms on the City's acquisition of the property at 5777 Scarlett Court, and the City Council hereby finds that the acquisition is necessary and appropriate for the completion of the Maintenance Yard Facility component of the CIP; and WHEREAS, the acquisition of the property is exempt from CEQA under the Class 1, Existing Facilities and Class 32, Infill Development categorical exemptions. The property is currently developed with paved storage and parking areas, a metal storage building and two other structures that will accommodate the City's Maintenance Yard Facility. The operation of the facility will involve outdoor storage, vehicle storage, maintenance and related administrative office use and will involve negligible or no expansion of the recent lumber yard .use. The maintenance yard would be consistent with the applicable general plan and zoning, is in a developed area, is fully served by public utilities and services, and is a developed site with no habitat value. The area is developed with service commercial and light industrial uses with no residential uses nearby; the acquisition and maintenance yard use would have no potential for traffic, noise, air quality or water quality impacts. NOW, THEREFORE, BE IT RESOLVED that the City Council of Dublin approves the Purchase and Sale Agreement (attached as Exhibit A and titled "Real Estate Sale Agreement and Joint Escrow Instructions")between the City of Dublin and 84 Lumber Company. BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute the agreement and is authorized to execute any other documents necessary and appropriate to complete the acquisition of the property pursuant to the terms of the agreement. Page 1 of 2 PASSED, APPROVED AND ADOPTED this 16th day of December , 2008 by the following vote: AYES: Councilmembers Hart, Hildenbrand, Scholz, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None / V ~^-- Mayor ATTEST: ~~ P City Clerk Reso No. 219-08, Adopted 12-16-08, Item 4.7 Pagd 2 of 2 REAL ESTATE SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS THIS REAL ESTATE SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this "Agreement") is made and entered into this day of December, 2008, by 84 Lumber Company, a Pennsylvania Corporation, dba Pierce Hardy Real Estate, Inc. and Pierce Hardy Real Estate, Inc. having merged into Pierce Hardy Real Estate Co., a Pennsylvania Business Trust on June 29, 1992 and Pierce Hardy Real Estate Co. having merged into Pierce Hardy Real Estate Co., a Pennsylvania Corporation on February 9, 1995 and Pierce Hardy Real Estate Co. changed its name to the Magerko Corporation, a Pennsylvania Corporation on March 8, 1995 and the Magerko Corporation, a Pennsylvania Corporation having merged into Hardy Management Company, Inc. a Pennsylvania Corporation on December 31, 1998 and having merged into Hardy Management Company, a Nevada Corporation on January 1, 2003 the said Hardy Management Company, Inc. a Nevada corporation now conveying title individually and as nominee for Pierce Hardy Limited Partnership, a Pennsylvania limited partnership, said Pierce Hardy Limited Partnership having a beneficial interest in the subject property pursuant to Nominee Agreement dated January 1, 1995 (herein "Seller") and the City of Dublin, a municipal corporation (herein "Purchaser"). 1. REAL ESTATE. Seller agrees to sell and Purchaser agrees to purchase, all upon the terms and subject to the conditions contained in this Agreement, that certain real property in the City of Dublin, County of Alameda, State of California as more particularly described in Exhibit A to this Agreement (the "Real Estate") and all improvements thereon (together, the "Subject Property"). Specifically included as part of the Subject Property are all plumbing, heating, cooling and electrical fixtures and systems, all trees, shrubbery and plantings and fencing. 2. PURCHASE PRICE. Purchaser agrees to purchase the Subject Property at a price of Three Million Eight Hundred Seventy-Five Thousand Dollars ($3,875,000.00) (the "Purchase Price"), payable as follows: 2.1 Earnest money in the amount of One Hundred Thirty-Five Thousand Dollars ($135,000.00) paid in accordance with the provisions of Paragraph 4 of this Agreement; and 2.2 The balance of the Purchase Price paid in accordance with Paragraph 4 of this Agreement, subject to adjustments and pro-rations as provided for herein. 3. DEED OF CONVEYANCE; STATUS OF TITLE. At closing of the purchase and sale of the Subject Property pursuant to this Agreement (the "Closing"), Seller shall convey title to the Real Estate to the Purchaser by a Grant Deed (the "Deed"), subject only to the Permitted Exceptions (as such term is defined below). Exhibit A 4. ESCROW; EARNEST MONEY; PAYMENT OF BALANCE OF PURCHASE PRICE.. Contemporaneously with the execution of this Agreement by Purchaser, Purchaser will deposit directly with the office of LandAmerica c/o Kristen L. Hoovler LandAmerica Financial Group, Inc. 411.1 Executive Parkway, Suite 304, Westerville, OH 43081-3682, in the form of a wire transfer of funds or a bank cashier's check ("Cash Equivalent") the sum of One Hundred Thirty-Five Thousand Dollars ($135,000.00) (the "Escrow Deposit"). The Escrow Deposit will be held by LandAmerica in anon-interest bearing trust or escrow account and disbursed by LandAmerica strictly in accordance with the provisions hereof. On the "Closing Date" (as that term is defined in Paragraph 5, below), but in no event later than required to permit the timely closing of the Agreement by the Closing Date, Purchaser will cause the balance of the Purchase Price, plus all costs and prorations for which Purchaser is responsible hereunder, but less all proper credits due Purchaser from Seller hereunder, to be paid, in the form of Cash Equivalent, to LandAmerica for the benefit of Seller. Escrow Agent shall disburse the Escrow Deposit and any other sums received from Purchaser on account as follows: (i) To Seller, if and when the Closing occurs; or (ii) To either Seller or Purchaser (as the case maybe) after receiving written notice from one of said parties stating that the other party to this Agreement is in default, and requesting remittance of the Escrow Deposit; provided, however, that Escrow Agent shall not remit the Escrow Deposit until it has first delivered a copy of said notice to the other party and five (5) days have elapsed without the other party objecting to said disbursement. In the event of any objection to said disbursement by the said other party, Escrow Agent shall either continue to hold said Escrow Deposit in escrow until it receives written disbursement directions agreed to by both parties, or until a final court order with. all appeals and appeals periods having expired; or it may, at any time, deposit the Escrow Deposit with a court of competent jurisdiction selected by it, and in such event, Escrow Agent shall be fully released and discharged from all obligations hereunder. By its joinder in this Agreement, Escrow Agent agrees to act as escrow agent for Seller and Purchaser in accordance with the provisions of this Paragraph 4. The duties of Escrow Agent hereunder are only as specifically provided and are purely ministerial in nature. Escrow Agent shall incur no liability to the parties except for the good faith performance of its duties as described herein. Purchaser shall be responsible for the payment of all fees of Escrow Agent. 5. CLOSING DATE. The Closing shall take place on or before Sixty (60) days from full execution of this Agreement of Sale (the "Closing Date"), at a mutually agreeable location in Alameda County, or at such other date, time or place upon which the parties mutually agree or by mail. 6. SELLER'S TITLE INSURANCE POLICY. Attached to this Agreement as Exhibit B is a copy of the title insurance commitment covering the Real Estate ("Seller's Title Policy"). 1173846-7 7. PERMITTED EXCEPTIONS. At Closing, the Subject Property shall be conveyed to Purchaser free and clear of all liens and encumbrances except as follows: (i) the lien of any real estate taxes which are not yet due and payable, (ii) the matters listed in Paragraphs B 1 through 4 of Schedule B - Section II on Seller's Title Insurance Policy; (The matters set forth in clauses (i) through (ii) are hereinafter referred to as the "Permitted Exceptions.") Purchaser will, at Purchaser's sole cost and expense, obtain a preliminary title report for the Subject Property from LandAmerica/Lawyer's Title (the "Preliminary Title Report"). If the Preliminary Title Report discloses any matter which needs to be released or removed in order for title to the Subject Property to be conveyed to Purchaser in accordance with the provisions of this Paragraph 7 (other than release or satisfaction of any mortgage or security interest granted by Seller with respect to the Subject Property, which Seller hereby agrees to release or satisfy at Closing), at least thirty (30) days following the date of this Agreement, time being of the essence, Purchaser will notify Seller in writing of such matter (a "Title Objection"). The failure of Purchaser to give notice to Seller within thirty (30) days following the date of this Agreement of any matter to which Purchaser has objection-shall constitute an irrevocable waiver of Purchaser's right to raise such matter as a Title Objection. Upon receipt of a timely notice of a Title Objection, Seller will undertake such steps as Seller, acting in good faith, deems reasonable under the circumstance either (a) to cause such Title Objection to be released or satisfied or (b) to induce the title insurance company which issued the Preliminary Title Report to issue a title insurance policy to Purchaser without the Title Objection, it being understood that Seller shall have no obligation whatsoever to expend any sum or undertake any actual or potential liability in excess of $500 in connection therewith. If at Closing, any Title Objection has not been released or removed despite Seller's good faith efforts as aforesaid, then Purchaser shall have the option to either (x) terminate this Agreement forthwith (in which event the Escrow Deposit and all other sums paid on account shall be repaid to Purchaser), or (y) accept title to the Subject Property subject to the Title Objection without any change in the Purchase Price. 8. PRORATE EXPENSES.. General and special real estate for 2009, municipal service charges, personal property taxes and assessments, and utility and service charges (including any that maybe assessed after Close of Escrow but which pertain to the period prior to the transfer of title to the Subject Property to Purchaser, regardless of when or to whom notice thereof is delivered) shall be prorated between Purchaser and Seller as of the Closing Date based on a fiscal year,, and all based upon the most current available bills. Except as otherwise provided in Paragraph 21.18, such proration shall be final. Purchaser shall be solely responsible for any and all charges for municipal improvements assessed or becoming due from and after the date of Closing including future installments thereof. Alt prorations shall be made on the basis of the actual days in a month and a three hundred sixty-five (365) day year. 9. TAXES ON TRANSACTION. Purchaser shall be fully responsible for any transfer taxes (including, without limitation, real estate transfer taxes) and real estate recording taxes and fees due in respect of the sale of the Real Estate pursuant to this Agreement. 1173846-7 3 10. TITLE INSURANCE COSTS AND SURVEY. Purchaser shall pay the cost of all title examinations done and title insurance obtained on the Subject Property, as well as the cost of a survey. 11. SELLER'S CLOSING DELNERIES. Seller shall deliver the following documents at Closing: 11.1 Grant Deed conveying the Real Estate; and 11.2 Such other instruments of conveyance and transfer as shall be reasonably necessary to transfer to Purchaser all of Seller's right, title and interest to the Subject Property. 12. PURCHASER'S DELIVERIES. The following shall be delivered by Purchaser at Closing: 12.1 The payment as set forth in Paragraph 4; and 12.2 The Declaration of Restrictive Covenants as set forth in Paragraph 21.20. 13. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents and warrants to Purchaser as follows. 13.1 AUTHORITY. Seller has the right, power and authority to enter into this Agreement and to sell, assign, transfer and convey to Purchaser the Subject Property and perform its obligations under the terms of this Agreement. All action necessary for the execution, delivery and performance of this Agreement by Seller has been taken and this Agreement is legally binding upon Seller. The individuals executing this Agreement and the instruments referenced herein on behalf of Seller have the power, right and authority to bind Seller. 13.2 NO CONFLICT. Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result in a breach of or constitute a default under any agreement, instrument, or other obligation to which Seller is a party or by which Seller or the Subject Property may be bound. 13.3 ORGANIZATION. Seller is a Nevada Corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and a limited partnership duly organized, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania. 13.4 NO LITIGATION. There is no claim, action, litigation, arbitration or other proceeding pending or, to the best of Seller's knowledge, threatened against Seller which relates to the Subject Property or the transactions contemplated hereby or which could result in the imposition of a lien against the Subject Property or have an adverse effect on 1173846-7 the Subject Property or its operation. If Seller receives notice of any such claim, litigation, arbitration or proceeding prior to the Closing Date, Seller shall promptly notify Purchaser of the same in writing. 13.5 CONTRACTS. There are no leases, rental agreements, management agreements, contracts, warranties, guaranties, bonds or other agreements which will affect the Subject Property or which will be obligations of Purchaser after the Closing Date, other than as disclosed in writing to Purchaser or as specifically approved by Purchaser. 13.6 BROKERAGE OR FINDER'S FEES. Neither Seller nor any of Seller's officers, agents, employees or stockholders has employed any brokers, finders or other intermediaries, or incurred any liability for any brokerage fees, finder's fees, commissions or other amounts, with respect to the transaction contemplated by this Agreement, which liabilities can be asserted against Purchaser or the Subject Property, or require payment by Purchaser, except the following: Seller shall pay a three (3%) percent commission to Colliers International should this transaction proceed to Closing. Purchaser shall have no liability for payment of sales commissions in connection with this transaction. 13.7 CONDITION OF PROPERTY. At the time of Closing, the improvements on the Subject Property will be in the same condition as they are on the date of this Agreement, ordinarywear and tear excepted. 13.8 DISCLAIMER. SELLER IS MAKING NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER WITH RESPECT TO THE SUBJECT PROPERTY, (INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY AS TO THE CONDITION, HABITABILITY, OR FITNESS OF THE SUBJECT PROPERTY FOR A PARTICULAR PURPOSE). 13.9 SELLER'S COVENANTS. Seller covenants that (i) absent the written consent of Purchaser, Seller shall not enter into or renew, replace or modify any agreement regarding the sale, rental, use, management, repair, improvement, or any other matter affecting the Subject Property that will be binding on Purchaser or the Subject Property after the Closing Date; (ii) Seller shall not permit any liens, encumbrances, or easements to be placed on the Subject Property, other than as approved in writing by Purchaser; (iii) Seller shall not permit any act of waste or act that would tend to diminish the value of the Subject Property for any reason, except that caused by ordinary wear and tear; (iv) until the Close of Escrow, Seller shall maintain the Subject Property in accordance with Seller's established practices, and in a condition as of the Effective Date, ordinary wear and tear excepted, and shall, at Seller's expense, make all repairs necessary to maintain the Subject Property in such condition; and (v) Seller shall make no material alteration to the Subject Property or the improvements located thereon without Purchaser's prior written consent. 14. Purchaser hereby represents and warrants to Seller as follows: REPRESENTATIONS AND WARRANTIES OF PURCHASER. 1173846-7 14.1 ORGANIZATION. Purchaser is a municipal corporation, duly organized, validly existing and in good standing under the laws of the State of California. 14.2 AUTHORITY. Purchaser has the right, power and authority to enter into this Agreement and to purchase from Seller the Subject Property and perform its obligations under the terms of this Agreement. All action necessary for the execution, delivery and performance of this Agreement by Purchaser has been taken and this Agreement is legally binding upon Purchaser. 14.3 BROKERAGE OR FINDER'S FEES. Neither Purchaser nor any of Purchaser's officers, agents, employees or stockholders has employed any brokers, finders or other intermediaries, or incurred any liability for any brokerage fees, finder's fees, commissions or other amounts, with respect to the transaction contemplated by this Agreement, which liabilities can be asserted against Seller or the Subject Property, or require payment by Seller, except as set forth below: See Paragraph 13.6. 15. DISCLAIMER BY PURCHASER OF WARRANTIES OF SELLER. PURCHASER ACKNOWLEDGES THAT (I) IT AND ITS OFFICERS, AGENTS, EMPLOYEES, AND ADVISERS HAVE BEEN GIVEN FULL AND COMPLETE OPPORTUNITY TO EXAMINE THE SUBJECT PROPERTY AND RECORDS AND OTHER INFORMATION WITH RESPECT TO THE SUBJECT PROPERTY PRIOR TO ENTERING INTO THIS AGREEMENT AND / OR DURING THE DUE DILIGENCE PERIGD OF THIS AGREEMENT AND SUCH PARTIES HAVE FULLY AVAILED THEMSELVES OF SUCH OPPORTUNITY TO THE EXTENT THAT THEY IN THEIR SOLE JUDGMENT DEEMED APPROPRIATE, DESIRABLE AND PRUDENT, (II) PURCHASER AND SUCH PARTIES TAKE FULL RESPONSIBILITY FOR DETERMINING THE SCOPE OF THEIR INVESTIGATIONS OF THE SUBJECT PROPERTY AND FOR THE MANNER IN WHICH SUCH INVESTIGATIONS HAVE BEEN CONDUCTED, (III) PURCHASER, TOGETHER WITH SUCH OTHER PARTIES, ARE FULLY CAPABLE OF EVALUATING THE ACCURACY OF THE INFORMATION AND MATERIAL OBTAINED BY PURCHASER IN THE COURSE OF SUCH INVESTIGATION, AND (IV) PURCHASER AND SUCH PARTIES HAVE NOT RELIED ON SELLER OR ON ANY OFFICER, EMPLOYEE OR AGENT OF SELLER OR UPON ANY WRITTEN OR ORAL INFORMATION, REPRESENTATION OR FACT PROVIDED BY ANY SUCH PARTY WITH RESPECT TO ANY MATTER IN CONNECTION WITH PURCHASER'S EVALUATION OF THE SUBJECT PROPERTY, INCLUDING, BUT NOT LIMITED TO THE PHYSICAL CONDITION THEREOF. . ACCORDINGLY, PURCHASER AGREES TO PURCHASE THE SUBJECT PROPERTY "AS IS" AND "WHERE IS," WITHOUT ANY WARRANTY WHATSOEVER EXPRESS OR IMPLIED FROM SELLER TO PURCHASER. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, AND EXPRESSLY DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY 1173846-7 6 REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (I} VALUE OF THE SUBJECT PROPERTY; (II) THE INCOME TO BE DERNED FROM THE SUBJECT PROPERTY; (III) THE NATURE, QUALITY OR CONDITION OF THE SUBJECT PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (N) THE COMPLIANCE OF OR BY THE SUBJECT 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 OR LAND USE LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS, INCLUDING BUT NOT LIMITED TO, TITLE III OF THE AMERICANS WITH DISABILITIES ACT OF 1990, CALIFORNIA HEALTH & SAFETY CODE, 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 COMPREHENSNE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976, THE CLEAN WATER ACT, THE SAFE DRINKIlVG 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 SUBJECT PROPERTY; (VII) THE CONTENT, COMPLETENESS OR ACCURACY OF REPORT REGARDING TITLE; (VIII) DEFICIENCY OF ANY IJNDERSHORING; (IX) DEFICIENCY OF ANY DRAINAGE; (X) THE FACT THAT ALL OR A PORTION OF THE SUBJECT PROPERTY MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE OR A FLOOD ZONE; OR (XI) WITH RESPECT TO ANY OTHER MATTER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT IT HAS OR WILL HAVE BEEN GNEN THE OPPORTUNITY TO INSPECT THE SUBJECT PROPERTY AND REVIEW INFORMATION AND DOCUMENTATION AFFECTING THE SUBJECT PROPERTY AND, PURCHASER 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. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION MADE AVAILABLE TO PURCHASER 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 MADE NO INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. PURCHASER 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, 1173846-7 ~ ACTION OR CAUSE OF ACTION ARISING FROM SUCH INFORMATION OR DOCUMENTATION; PROVIDED, HOWEVER, THAT SUCH RELEASE SHALL NOT APPLY TO ANY CLAIMS THAT PURCHASER MAY HAVE BASED ON 1NFORMATION OR DOCUMENTATION PREPARED FOR PURCHASER BY SUCH SOURCES OR PREPARERS PURSUANT TO A DIRECT AGREEMENT BETWEEN PURCHASER AND SUCH SOURCE OR PREPARER. 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 EMPLOYEE OF SELLER, SERVANT OR OTHER PERSON. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE 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 REPAIlZS, REPLACEMENTS OR IMPROVEMENTS. PURCHASER REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT, PURCHASER IS RELYING SOLELY UPON PURCHASER'S OWN INVESTIGATION OF THE PROPERTY. PURCHASER 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 FAVOR AT THE TIME OR EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." NOTWITHSTANDING THE FOREGOING, THIS RELEASE DOES NOT EXTEND OR OTHERWISE APPLY TO ANY CLAIM ARISING FROM SELLER'S FRAUD OR WILLFUL MISCONDUCT. Purchaser's Initials 16. CONFIDENTIALITY OF INFORMATION PROVIDED BY SELLER. Purchaser acknowledges that all non-public information of Seller, including but not limited to any financial and customer information, this Agreement and all terms hereof, all drafts of this Agreement and all terms thereof, and all documents delivered pursuant to this Agreement, is secret and confidential proprietary information and as such will continue to constitute a valuable, unique asset of Seller. Purchaser covenants that it will not either use or disclose any such information to any person, firm, corporation, association or other entity for any reason or purpose whatsoever, unless (a) such disclosure is to its accountants, lawyers, and other advisors in connection with the transactions contemplated by this Agreement and the recipient of such information has agreed to be bound by this Paragraph 16, or (b) such information is otherwise publicly available, or (c) such disclosure is required by law, or (d) Purchaser receives Seller's prior written consent to disclose such information. In the event this Agreement is terminated, Purchaser and its representative shall continue to keep such information confidential, except as specified in clauses (b), (c) and (d) above. ]173846-7 8 17. PURCHASER'S INDEMNITY. Purchaser shall hold hazmless, indemnify and defend Seller (by counsel reasonably satisfying to Seller) from and against any and all loss, claim damage, liability or expense which Seller may incur by reason of Purchaser's breach of or failure to perform any of its covenants, representations orwarranties in this Agreement or in any schedule, certificate, exhibit, or other instrument furnished or to be furnished under this Agreement. 18. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. All obligations of Seller under this Agreement are subject to the fulfillment, on or prior to Closing, of each of the following conditions: 18.1 PERFORMANCE OF OBLIGATIONS. All the terms, conditions, covenants and obligations of this Agreement to be complied with and performed by Purchaser on or before Closing shall have been complied with and performed in all material respects. 18.2 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The representations and warranties made by Purchaser herein shall be correct in all material respects on and as of Closing, with the same force and effect as though such representations and warranties had been made on and as of Closing, and by consummation of the transactions contemplated by this Agreement, Purchaser shall be deemed to affirm that the representations and warranties made by Purchaser herein are correct in all material respects on and as of Closing, with the same force and effect as though such representations and warranties had been made on and as of Closing. 18.3 NO INJtTNCTION. No injunction, temporary restraining order or other administrative or judicial order shall have been issued enjoining or restraining the transactions contemplated hereby in whole or in part. 19. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. All obligations of Purchaser under this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions: 19.1 PERFORMANCE OF OBLIGATIONS. All the terms, conditions, covenants and obligations of this Agreement to be complied with and performed by Seller on or before the Closing Date shall have been complied with and performed in all material respects. 19.2 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. The representations and warranties made by Seller herein shall be correct in all material respects on and as of Closing, with the same force and effect as though such representations and warranties had been made on and as of Closing, and by consummation of the transactions contemplated by this Agreement, Seller shall be deemed to affirm that the representations and warranties made by Seller herein are correct in all material respects as though such representations and warranties had been made on and as of Closing. 1173846-7 9 19.3 NO INJUNCTION. No injunction, temporary restraining order or other administrative or judicial order shall have been issued enjoining or restraining the transactions contemplated hereby in whole or in part. 20. SURVNAL OF REPRESENTATIONS AND WARRANTIES. All covenants, other representations and warranties made by Seller or Purchaser contained in this Agreement shall terminate at Closing. 21. MISCELLANEOUS PROVISIONS. 21.1 FURTHER ASSURANCES. Each of the parties hereto agrees to execute such further documents and to take such further actions as may be reasonably necessary in order to effect consummation of the transactions contemplated hereby. 21.2 CONTINGENCIES. This agreement shall be contingent upon the following: (a) Environmental Audit. Purchaser will, at Purchaser's sole cost and expense, obtain a Phase I environmental audit of the Subject Property (the "Audit"). If the Audit discloses that the Subject Property has been used for-the handling, treatment, storage or disposal of any hazardous or toxic substances as defined under any applicable state or federal laws or regulations ("Contamination") or otherwise reveals that hazardous materials maybe present in, on, under or adjacent to the Subject Property, then at least forty-five (45) days following the date of this Agreement, time being of the essence, Purchaser will so notify Seller in writing and the date for Closing shall be extended by an additional thirty (30) days in order to enable Purchaser to obtain a Phase II report for the Subject Property. The failure of Purchaser to give such notice to Seller within forty-five (45) days following the date of this Agreement shall constitute an irrevocable waiver of this contingency and the parties shall proceed to Closing. Upon receipt of a timely notice that the Audit discloses Contamination, Seller will undertake such steps as Seller, acting in good faith, deems reasonable under the circumstances to cause such Contamination to be remedied, it being understood that Seller shall have no obligation whatsoever to expend any sum or undertake any actual or potential liability in excess of $500 in connection therewith. If at Closing, any Contamination has not been remedied despite Seller's good faith efforts as aforesaid, then Purchaser shall have the option to either (a) terminate this Agreement forthwith (in which event the Escrow Deposit shall be repaid to Purchaser), or (b) accept title to the Subject Property subject to the Contamination without any change in Purchase Price. (b) Property Review. Purchaser will, at Purchaser's sole cost and expense, conduct a review of the zoning and building laws, ordinances and regulations affecting the Subject Property to determine if the Purchaser's intended use of the property for municipal corporation yard purposes is permitted, the City Council of Dublin approves the purchase and any other tests, appraisals, surveys or other inspections the Purchaser deems reasonable and/or necessary (the "Property Review"). If the Property Review reveals that the Subject Property cannot be used for Purchaser's intended use or the Property Review reveals a condition unacceptable to Purchaser, then at least forty-five (45) days following the date of this Agreement, 1173846-7 10 time being of the essence, Purchaser will so notify Seller in writing at which time the Escrow Deposit shall be returned to Purchaser and neither party shall have any further obligation or liability hereunder. The failure of Purchaser to give such notice to Seller within forty-five (45) days following the date of this Agreement shall constitute an irrevocable waiver of this contingency and the parties shall proceed to Closing. (c) Appraisal. Purchaser will, at Purchaser's sole cost and expense, have the Subject Property appraised by an MAI appraiser. If the City's appraiser determines that the appraised value of the Subject Property is less than the Purchase Price, then by not later than forty-five (45) days following the date of this Agreement, time being of the essence, Purchaser will so notify Seller in writing at which time the Escrow Deposit shall be returned to Purchaser and neither party shall have any further obligation or liability hereunder. The failure of Purchaser to give such notice to Seller within forty-five (45) days following the date of this Agreement shall constitute an irrevocable waiver of this contingency and the parties shall proceed to Closing. (d) Inspections. Seller authorizes Purchaser and its engineer and/or other experts, at Purchaser's expense, to go upon the Subject Property, at any reasonable time for the purpose of making inspections. Such inspections shall be performed to cause no damage to the Subject Property or improvements thereon, and Purchaser shall repair any damage to the Subject Property or improvements caused by Purchaser's or its agent's entry. Purchaser agrees to defend and hold Seller and the Subject Property harmless from all claims and liabilities (including reasonable attorney's fees, costs and expenses) for personal injury, physical damage to any person or the Subject Property, or mechanic's or materialmen's liens which maybe asserted against the Subject Property solely as a result of any such entry by Purchaser, its agents or designees. 21.3 DEFAULT. (a) By Purchaser. In the event of a default under this Agreement by Purchaser, Seller may terminate this Agreement by written notice to Purchaser and, at Seller's option, elect to: (i) accept payment of the Escrow Deposit as liquidated damages, in which event Seller shall waive all claims for loss of bargain, and for all direct, out-of-pocket costs and expenses incurred by Seller, including, but not limited to attorney's fees, or (ii) seek relief in an action for specific performance; provided, however, that an election by Seller to pursue one or the other of the foregoing remedies shall not preclude Seller from pursuing the other remedy until full satisfaction shall have been received on the remedy pursued. Notwithstanding the foregoing, in the event that Purchaser increases the total amount of the Escrow Deposit by $58,750 to a total of $193,750 not later than 45 days following the date of this Agreement, Developer's sole remedy in the event of default by Purchaser thereafter shall be to terminate this Agreement by written notice to Purchaser and accept payment of the Escrow Deposit as liquidated damages, in which event Seller shall-waive all claims for loss of bargain, and for all direct, out-of-pocket costs and expenses incurred by Seller, including, but not limited to attorney's fees. 1173846-7 ll (b) By Seller. In the event of a default under this Agreement by Seller, Purchaser may terminate this Agreement by written notice to Seller and, in addition, at Purchaser's option, elect to: (i) waive any claim for loss of bargain, in which event all monies paid on account, including, but not limited to, the Escrow Deposit, shall be repaid to Purchaser and in addition, Seller shall pay to Purchaser an amount equal to all of Purchaser's direct out-of- pocket costs and expenses arising out of the transactions contemplated by this Agreement including, but not limited to, title examination and attorney's fees (in a total amount not exceeding $1,000), or (ii) seek relief in an action for specific performance; provided, however, that an election by Purchaser to pursue one or the other of the foregoing remedies shall not preclude Purchaser from pursuing the other remedy until full satisfaction shall have been received on the remedy pursued. 21.3.1 LIQUIDATED DAMAGES. If the escrow and this transaction fail to close as a result of the default of Purchaser in the performance of its obligations under this Agreement, Purchaser and Seller agree that Seller will sustain damages, and that Seller's actual damages would be impracticable or extremely difficult to determine. The Parties therefore agree that if escrow and this transaction fail to close as a result of default of Purchaser, and Seller is ready, willing and able to perform its obligations hereunder, Seller, as Seller's sole and exclusive remedy, shall be entitled, under the circumstances specified in section 21.3(a), to retain the Escrow Deposit as liquidated damages and as consideration for entering into this Agreement. By placing their initials in the spaces below, both Parties agree to the liquidated damages as set forth above. In the event escrow fails to close as a result of Purchaser's default and Seller is ready, willing and able to perform its obligations hereunder, then (a) following Seller's receipt of the Escrow Deposit, this Agreement and the rights and obligations of Purchaser and Seller hereunder and the escrow created hereby shall terminate (except those provisions specified to survive the termination of this Agreement), and (b) Escrow Agent shall, and is hereby authorized and instructed to, return promptly to Purchaser and Seller all documents and instruments to the Parties who deposited the same. The payment of such amount as liquidated damages is not intended as a forfeiture or penalty within the meaning of California Civil Code Sections 3275 or 3369, but is intended to constitute liquidated damages to Seller pursuant to California Civil Code Sections 1671, 1676 and 1677. Seller hereby waives the provisions of California Civil Code Section 3389. Seller and Purchaser acknowledge that they have read and understand the provisions of this Section 21.3.1, and by their initials immediately below agree to be bound by its terms. SELLER'S INITIALS: PURCHASER'S INITIALS 21.4 ASSIGNMENT. Purchaser may not assign this Agreement or any of its rights, interests or obligations hereunder without the express prior written consent of Seller; provided that Purchaser may assign the contract to an entity to be formed after the date hereof as long as Purchaser continues to be obligated hereunder and the appropriate representations and warranties are incorporated into the assignment. Any assignment by Purchaser which is consented to by Seller shall not relieve Purchaser of any further liability under this Agreement 1173846-7 12 even though the assignee assumes all of Purchaser's obligations hereunder. Any attempted assignment which fails to comply with this Paragraph 21.4 shall be void. 21.5 APPLICABLE LAW. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of California without regard to principles of conflicts of laws. 21.6 NOTICE. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given or made when (i) delivered by hand, or (ii) five (5) business days after deposit in the United States Mail, certified or registered, postage pre-paid, return receipt requested, or (iii) the business day immediately following timely deposit with a nationally recognized overnight courier service (which shall include Federal Express) to the parties at the following addresses: If to Purchaser, to: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Fax: (925) 833-6651 With a copy' to: John Steinbuch, SIOR Senior Vice President Colliers International 5050 Hopyard Road Suite 180 Pleasanton, CA 94588 If to Seller, to: Pierce Hardy Limited Partnership 1019 Route 519, Building 5 Eighty Four, PA 15330 Attn: Cheri B. Bomar, Esquire Telephone: (724) 228-3636 Fax: 877-333-2291 By notice complying with the requirements of this Paragraph 21.6, each party shall have the right to change the address for all future notices, or other communications and payments to such party; provided, however, that the designation of a change of addressee or address, or both, by notice given hereunder shall not be effective until actually received. Any addressee designated above to 1173846-7 13 whom copies of notices are designated to be sent shall be provided copies of notices for informational purposes only, any such copies maybe sent via regular mail and a failure to give or to receive copies of notices shall not affect the validity of notice given to the parties or otherwise be construed as a failure to give notice. 21.7 AMENDMENT AND WAIVER. No term or provision of this Agreement maybe altered, amended, changed, waived, terminated or modified in any respect or particular except by written instrument signed by or on behalf of the party to be charged therewith. No waiver by either party of any breach hereunder shall be deemed a waiver of any other or any subsequent breach. 21.8 SUCCESSORS AND ASSIGNS. All covenants, representations, warranties and agreements of the parties contained herein shall be binding upon and inure to the benefit of its respective successors and permitted assigns. 21.9 ENTIRE AND SOLE AGREEMENT. This Agreement and the schedules hereto constitute the entire agreement between the parties and supersede all prior agreements, representations, warranties, statements, promises and understandings, whether written or oral, with respect to the subject matter hereof and thereof. Neither party hereto shall be bound by or charged with any written or oral agreements, representations, warranties, statements, promises or understandings not specifically set forth in this Agreement or in the exhibits hereto, or in the documents and instruments to be delivered on or before Closing. 21.10 SEVERABILITY. Whenever possible, each provision of this Agreement and any other statement, instrument or transaction contemplated hereby or relating hereto shall be interpreted in such manner as to be effective and valid under such applicable law, but, if any provision of this Agreement or any other statement, instrument or transaction contemplated hereby or relating hereto shall be held to be prohibited or invalid under such applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any other statement, instrument or transaction contemplated hereby or relating hereto. 21.11 COUNTERPARTS; CAPTIONS- This Agreement maybe executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All paragraph headings and other captions used in this Agreement and the table of contents are for convenience only, are not a part of this Agreement and shall not be used in construing it. 21.12 PUBLIC ANNOUNCEMENTS. Except to the extent required by law, neither party shall make any public announcement or public filing with respect to this Agreement or the transactions contemplated hereby without first obtaining the approval of the other party of the text and substance thereof, which approval shall not be unreasonably withheld. 1173846-7 14 21.13 EXPENSES. Except as otherwise expressly set forth herein, each party shall pay and be solely responsible for the expenses incurred by it under this Agreement or in connection herewith, including counsel fees and expenses of its representatives, whether or not the transactions contemplated by this Agreement are consummated. 21.14 CASUALTY OR CONDEMNATION. If, prior to Closing, all or a material part of the Subject Property is destroyed or is subject to condemnation, Seller shall so notify Purchaser and either party shall have the right to terminate this Agreement. If the Agreement is not so terminated, there will be no adjustment in the Purchase Price provided for herein; however, at Closing, Seller shall assign to Purchaser any insurance or condemnation proceeds to which Seller may be entitled in connection with such casualty or condemnation. 21.15 TIME. Time is of the essence in this Agreement and of each and every provision contained in this Agreement. If the date for performance of either Purchaser's or Seller's obligations under this Agreement falls on a Saturday, Sunday or a legal holiday, the time for performance shall be extended to the next succeeding business day. 21.16 TAX DEFERRED EXCHANGE PURSUANT TO SECTION 1031 OF INTERNAL REVENUE CODE. It is understood and agreed that, at Seller's option and provided Purchaser incurs no delay or additional cost or expense, the Closing maybe effectuated as a tax-free exchange or tax free deferred exchange (pursuant to Section 1031 of the Internal Revenue Code) ("IRC")), and Purchaser agrees to cooperate in any exchange. Both parties acknowledge that it is Seller's sole responsibility to desigriate and to provide any exchange property that may become a part of any exchange. Seller shall be responsible for any and all costs of the tax free exchange pursuant to Section 1031 of the IRC and Purchaser shall have no responsibility or obligation for any costs associated with the tax free exchange. 21.17 TAX WITHHOLDING. Under the Foreign Investment in Real Property Tax Act (FIlZPTA), IRC § 1445, every buyer of U.S. real property must, unless, an exemption applies, deduct and withhold from seller's proceeds 10% of the gross sales price. The primary FIItPTA exemptions for rion-residential property are: No withholding is required if (i) Seller provides Purchaser with an affidavit, under penalty of perjury, that Seller is not a "foreign person," or (ii) Seller provide Purchaser with a "qualifying statement" issued by the Internal Revenue Service. 21.18 TAX ABATEMENT Should Seller contest the taxes assessed on the Subject Property, any tax abatement and/or refund received for a period up to the Closing Date as part of such action whether payment andlor refund is received prior to or after Closing shall be the property of Seller. 21.19. REVOCABILITY. It is understood that the Seller is negotiating an agreement with other potential Purchasers. This Agreement shall not be binding upon the parties until fully executed by both parties and the earnest money deposited in accordance with this Agreement. 1173846-7 l 5 21.20 RESTRICTIVE COVENANT. Purchaser represents and warrants to Seller that neither Purchaser nor any corporation, partnership or trust controlled by Purchaser, nor their respective heirs, representatives, successors, assigns and tenants shall use the Subject Property for the operation of a retail lumber or building supply business or a truss plant facility for a period of twenty (20) years after the date hereof. At Closing, Purchaser agrees to execute, deliver and record the Declaration of Restrictive Covenant in the form attached as Exhibit C. [EXECUTION PAGE FOLLOWS] 1173846-7 16 IN WITNESS WHEREOF, the parties have duly executed this Agreement effective as of the day and year first above written. ATTEST: Attest: Caroline Soto, City Clerk SELLER: Hardy Management Company, Inc., a corporation By: Its: Pierce Hardy Limited Partnership, a limited partnership By: Peter Jon Co., LLC By: Its: PURCHASER: CITY OF DUBLIN By: Joni Pattillo, City Manager. Approved as to form John Bakker, City Attorney 1173846-7 17 JOINDER AND, NOW, this day of , 200_, LandAmerica Financial Group, Inc. joins in this Real Estate Sale Agreement with Joint Escrow Instructions for the purposes stated in Paragraph 4, agreeing to act as Escrow Agent as therein provided. ATTEST: ESCROW AGENT: LandAmerica Financial Group, Inc. Secretary By:_ Title: 1173846-7 18 Exhibit A All that certain real property situated in the County of Alameda, State of California, described as follows: Parcel A, of Parcel Map 1177, recorded June 10, 1975,. in Book 87, of Maps Page 69, Alameda County Records AP No. 941-0550-029 1173846.5 1173846-7 19 ty~hi~~''1_ Policy/Fle No.: 08011804 LA`YYERS TITLE INSiTI~,.ANCE CORPORATION COMMITMENT FOR TITLE INSURANCE 1'ssued by Lawyers Title Insurance Corporation SCHEDULE A 1. Effective Date: January 25, 2008 2. Policy or Policies to be issued: ALTA Loan 1992 Proposed Insured: 84 Lumber Company Liability: $TO COME 3. The estate or interest fn the land described or referred to in the Commitment and covered herein is p FEE and is at the effective date hereof vested in: 84 Lumber Company, a Pennsylvania corporation by document dated September 13, 1976 recorded December 30, 1976 in Reel 4662, Image 706 Instrument No. 76- 22.1984, Official Records 4. The land referred to in this Commitment is situated in the County of Alameda, State of California, and is described as follows: As Fufiy Set forth on Exhibit "A" attached hereto and by this reference incorporated herein. by U~~~ Authorized Signatory ALTA Commitment Page 1 ofi 6 Exhibit B File No.: 08011804 EXHIBIT "A All that certain real property situated in the County of Alameda, State of California, described as follows: Parcel A, of Parcel Map 1177, recorded June 10, 1975, in Book 87, of Maps Page 69, Alameda County Records. A.P.No.: 941-0550-029 ALTA Commitment Page 2 of 6 File No.: 08011804 SCHEDULE B -SECTION I The following are requirements to be complied with: 1. Instrument creating the estate or interest to be insured must be executed and filed for record, to wit: 2. Pay the full consideration to, or for the account of, the grantors or mortgagors. 3. Pay all taxes, charges, assessments, levied and assessed against subject premises, which are due and payable. 4. Satisfactory evidence should be had that improvements and/or repairs or alterations thereto are completed; that contractor, sub-contractors, labor and materialmen are all paid; and have released of record all liens or notice of intent to pertect a lien for labor or material. END OF SCHEDULE B -SECTION Y ALTA Commitment Page 3 of 6 File No.: 08011804 SCHEDULE 8 -SECTION II EXCEPTIONS Schedule 8 of policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company: A. Property taxes, including general and special taxes, personal properly taxes, if any, and any assessments collected with taxes, to be lev[ed for the fiscal year 2008 - 2009 which are a lien not yet due or payable. B. Supplemental or escaped assessments of property taxes, if any, assessed pursuant to the Revenue and Taxation Code of the State of California. 1. An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: Alameda County Flood Control and Water Conservation District, a body corporate and politic Purpose: Right of way for the transmission and distribution of water, a pipe or pipelines Recorded: October 18, 1981 in Reel 432, Image 541 Instrument No. AS 128887, Official Records Affects: An easterly 15 foot portion of said land Z. A waiver of any claims for damages to said land by reason of the location of a freeway or highway contiguous thereto as contained in a document In Favor of: The State of California Recorded: Apri! 2Z, 1966 in Ree! 1753, Image 683 Instrument No. AY51516, Official Records 3. An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: Valley Community Services District, a political subdivision Purpose: Sanitary sewer mains and water supply mains Recorded: October 9, 1969 In Reel 2493, Image 656 Instrument No. 69-114732, Official Records Affects: The southerly 20 feet of said land 4. An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: Valley Community Services District, a political subdivision Purpose: Public utilities Recorded; November 2, 1977 in Reel 5120, Image 369 Instrument No. 77-218438 Official Records Affects: An easterly portion of said land ALTA Commitment Page 4 of 6 ,-- _ , SCHEDULE S -SECTION II continued File No.: 08011804 5. Defects, Ifens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this commitment. REQUIREMENTS: NO.1: The Company will require a certified copy of the Resolution of the Board of Directors of the following corporation authorizing the transaction for which this Commitment was ordered. Corporation: ~ 84 LUMBER COMPANY, A PENNSYLVANIA CORPORATION NOT1:S: NO. 1: Property taxes, including general and specia{ taxes, personal property taxes, if any, and any the fiscal year shown below, are paid. For proration f assessments co or ilected with taxes, purposes the amounts are: Fiscal year 2007 -- 2008 1st Installment: $4,728.25 2nd Installment: $4,728.25 Land Value: $270,747 Improvement Value; $494,634 Personal: $35,019 Code Area: 26-001 Assessment No.: 941-0550-029 NO. 2: THE FOLLOWING INFORMATION WILL BE INCLUDED IN THE CLTA FORM 116 or ALTA FORM 22-06 ENDORSEMENT TO BE ISSUED PURSUANT TO THIS ORDER: THERE IS LOCATED ON Said land: A Commercial Structure Known as; 5777 Scarlett Court, Dublin, California ALTA Commitment Page 5 of 6 SCHEDULE B -SECTION II Continued PRIVACY NOTICE (iS U.S.C. 6801 AND 16 CFR PART 313): File No.: 08011804 WE COLLECT NONPUBLIC PERSONAL INFORMATION ABOUT YOU FROM INFORMATION YOU PROVIDE ON FORMS AND DOCUMENTS AND FROM OTHER PEOPLE SUCH AS YOUR LENDER, REAL ESTATE AGENT, ATTORNEY, ESCROW, ETC. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT OUR CUSTOMERS OR FORMER CUSTOMERS 70 ANYONE, IXCEPT AS PERMITTED BY LAW. WE RESTRICT ACCESS TO NONPUBLIC PERSONAL INFORMATION ABOUT YOU TO THOSE EMPLOYEES WHO NEED TO KNOW THAT INFORMATION IN ORDER TO PROVIDE PRODUCTS OR SERVICES TO YOU. WE MAINTAIN PHYSICAL, ELECTRONIC AND PROCEDURAL SAFEGUARDS THAT COMPLY WITH FEDERAL REGULATIONS TO GUARD YOUR NONPUBLIC PERSONAL INFORMATION. NOTE: CALIFORNIA INSURANCE CODE 12413.1 REGULATES THE DISBURSEMENT OF ESCROW AND SUB-ESCROW FUNDS BY TITLE COMPANIES. THE LAW REQUIRES THAT FUNDS BE DEPOSITED IN THE TITLE COMPANY ESCROW ACCOUNT AND AVAILABLE FOR WITHDRAWAL PRIOR TO DISBURSEMENT. FUNDS DEPOSITED WITH THE COMPANY VIA WIRE TRANSFER MAY BE DISBURSED UPON RECEIPT. FUNDS DEPOSITED WITH THE COMPANY VIA CASHIER'S OR TELLER'S CHECKS DRAWN ON A CALIFORNIA BASED BANK MAY BE DISBURSED THE NEXT BUSINESS DAY AFTER THE DAY OF DEPOSIT. IF FUNDS ARE DEPOSITED WITH THE COMPANY BY OTHER METHODS RECORDING AND/OR DISBURSEMENT MAY BE DELAYED. ALL ESCROW AND SUS-ESCROW FUNDS RECEIVED BY THE COMPANY WILL BE DEPOSITED IN AN ESCROW ACCOUNT OF THE COMPANY IN A STATE OR NATIONAL BANK. THE COMPANY MAY RECEIVE CERTAIN DIRECT OR INDIRECT BENEFITS FROM THE BANK BY REASON OF THE DEPOSIT OF ANY SUCH FUNDS. OR THE MAINTENANCE OF SUCH ACCOUNTS WITH SUCH BANK, AND THE COMPANY SHALL HAVE NO OBLIGATION TO ACCOUNT TO THE PARTIES TO ANY ESCROW IN ANY MANNER FOR THE VALUE OF, OR TO PAY TO SUCH PARTY ANY BENEFIT RECEIVED BY THE COMPANY. THOSE BENEFITS MAY INCLUDE, WITHOUT LIMITATION, CREDITS ALLOWED BY SUCH- BANK ON LOANS TO THE COMPANY OR ITS PARENT COMPANY AND EARNINGS ON INVESTMENTS MADE WITH THE PROCEEDS OF SUCH LOANS, ACEOUNTING~ REPORTING AND OTHER SERVICES AND PRODUCTS OF SUCH BANK. SUCH BENEFITS WILL BE RETAINED BY THE COMPANY AS PART OF ITS COMPENSATION FOR HANDLING SUCH FUNDS. NOTE: AN OWNER'S POLICY ISSUED IN CONNECTION WITH THIS COMMITMENT WILL CONTAIN THE FOLLOWING PRE-PRINTED EXCEPTIONS: 1. Rights or claims of parties other than the Insured 1n actual possession of any or all of the property. 2. Unrecorded easements, discrepancies or conflicts in boundary lines, shortage in area and encroachments which an accurate and complete survey would disclose. 3. Unfiled mechanic's or materialmen's liens. END OF SCHEDULE B -SECTION II fRF2 ALTA Commitment page 6 of 6 decIWlNLcx/f 1 /26/99 EXHIBIT C DECLARATION OF RESTRICTIVE COVENANT This Declaration is made as of the day of , 2008, by The City of Dublin, a ("Declarant") to and far the benefit of Pierce Hardy Limited Partnetship, a Pennsylvania limited partnership ("Seller"), having a mailing address of 1019 Route 519, Eighty Four, PA 15330. RECITALS A. On the day of , 2008, Seller has conveyed to Declarant a certain parcel of land located in the City of Dublin, County of Alameda and State of California, as more fully described on Schedule A herein (the "Subject Property"). B. In consideration of the purchase and sale of the Subject Property, Declarant has agreed to make this Declaration upon the terms and conditions hereinafter set forth. NOW THEREFORE, for good and valuable consideration, intending to be legally bound, Declarant hereby covenants, declares and agrees as follows: l . Incorporation By Reference -The above recitals are incorporated herein and made a part hereof. 2. Declaration - None of the Subject Property as described more fully on Schedule A herein (collectively the "Encumbered Property") shall be used for the operation of a retail lumber or building supply business or truss manufacturing company for a period of twenty (20) years after the date hereof. 3. Run With The Land -The terms and conditions of this Declaration shall run with the land and shall be binding upon Declarant and its representatives, successors, assigns and tenants and shall benefit Seller and its successors and assigns. 4. Recordation -This Declaration shall be recorded in the appropriate land records of each county or appropriate local jurisdiction within the location of the Encumbered Property. 5. Modifications -This Declaration may not be modified, waived or amended except by a written instrument executed by Seller, its successors or assigns. 6. Headings Not Controlling -Headings used in this Declaration are for reference purposes only and shall not be deemed a part of this Declaration. IN WITNESS WHEREOF, Declarant has executed this Declaration as of the date first written above. The City of Dublin. Witness: ay: (ts: 2007 Notary Public on this day of (All Declarants Must Sign) This Instrument was prepared by and after recording should be returned to: Pierce Hardy Limited Partnership 1019 Route 519 Eighty Four, PA 15330 ATTN: Kelly Holmes Swom to and subscribed before me by .( Exhibit C Schedule A (Legal Description of Subject Property) See Schedule A Attached Hereto