HomeMy WebLinkAboutReso 180-11 Purchase 6363 Clark Ave
RESOLUTION NO. 180-11
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING A PURCHASE AND SALE AGREEMENT WITH ALlSUE, LLC AND ANEFF, LLC
FOR THE PURCHASE OF PROPERTY LOCATED AT 6363 CLARK AVENUE
WHEREAS, the City Council ("City Council") of the City of Dublin desires to purchase
the property located at 6363 Clark Avenue in Dublin (APN 941-1401-012-05), the former site of
the National Food Lab ("Property"); and
WHEREAS, while no specific use for the site has been determined, Staff believes that
the adjacency to the existing Civic Center complex could provide for the City's future public
facility needs; and
WHEREAS, the City and ALlSUE, LLC and ANEFF, LLC have negotiated a Purchase
and Sale Agreement substantially in the form attached hereto as Exhibit A ("Purchase and
Sale Agreement"); and
WHEREAS, pursuant to the terms of the Purchase and Sale Agreement, (1) the City will
purchase the Property from ALlSUE, LLC and ANEFF, LLC for $5,620,000; (2) the City will
receive a $120,000 improvement credit upon purchase relating to the existing condition of the
building, and the City's costs toward securing the property for its use over the long term; (3) the
credit results in a net purchase price of $5,500,000; abd
WHEREAS, the purchase price is based on the fair market value appraisal of the
property; and
WHEREAS, the Seller is motivated to conclude the sale and offered the credit in
consideration for the cost of the City's due diligence and development study costs.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve the Purchase and Sale Agreement with ALlSUE, LLC and ANEFF, LLC.
BE IT FURTHER RESOLVED that the City Council does hereby authorize the City
Manager to execute the Purchase and Sale Agreement substantially in the form attached
hereto; to make revisions to the Purchase and Sale Agreement, with the advice of counsel,
which do not materially or substantially increase the City's obligations thereunder; to sign all
documents, to make all approvals and take all actions necessary or appropriate to carry out and
implement the Purchase and Sale Agreement and to administer the City's obligations,
responsibilities and duties to be performed under the Purchase and Sale Agreement.
Page 1 of 2
PASSED, APPROVED AND ADOPTED this 18th day of October, 2011 by the following
vote:
AYES: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
J{.~-
Mayor
ATTEST:
~t, f?~
City Clerk
Reso No. 180-11, Adopted 10-18-11, Item 4.8
Page 2 of 2
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#3237 - Dublin, CA
CONTRACT OF SALE AND PURCHASE
THIS CONTRACT OF SALE AND PURCHASE ("Contract") made as of the _ day
of ,2011 (the "Effective Date"), between ALISUE LLC, a Delaware limited
liability company, as to an undivided one-half interest, and ANEFF LLC, a Delaware limited
liability company, as to an undivided one-half interest, having an address care of Kin Properties,
Inc., 185 NW Spanish River Boulevard, Suite 100, Boca Raton, Florida 33431 (collectively,
"Seller"), and the CITY OF DUBLLN, a California municipal corporation, having an address at
100 Civic Plaza, Dublin, California 94568 CPurchaser"). Seller and Purchaser are hereinafter
referred to individually as "Partv" and collectively as the "Parties."
WITNESSETH
WHEREAS, Seller is the owner of that certain lot, tract and parcel ofland known as 6363
Clark Street, in the City of Dublin, County of Alameda, State of California; and
WHEREAS, Purchaser has expressed a desire to acquire from Seller said lot, tract and
parcel of land at the price and upon the terms and conditions herein set forth; and
WHEREAS, Seller desires to sell said lot, tract and parcel ofland to Purchaser at the
price and upon the terms and conditions herein set forth; and
NOW, THEREFORE, the Parties intending to be legally bound, and for good and
valuable consideration, the receipt and sufliciency of which are hereby acknowledged, agree as
follows:
1. Sale of the Property: Subject to the conditions set forth herein, Seller agrees to
sell and convey, and the Purchaser agrees to purchase, all that certain lot, piece or parcel ofland,
with the buildings and improvements thereon erected, situate, lying and being located at 6363
Clark Street, in the City of Dublin, County of Alameda, State of California, (APN 941-1401-
012-05) as described on Exhibit A, attached he'reto and made part hereof (the "Property").
2. Street and Road Bed: This sale includes all right, title and interest, if any, of
Seller, in and to any land lying in the bed of any street, road or avenue, opened or proposed in
front of or adjoining the Property, to the center line thereof.
3. Purchase Price The purchase price is Five Million Six Hundred Twenty
Thousand and 00/100 Dollars ($5,620,000.00) ("Purchase Price")
The Purchase Price is to be payable as follows:
(a) Deposit: Upon execution of this Agreement, Purchaser shall make a deposit for
the benefit of Seller in the amount of Twenty Thousand and 00/100 Dollars ($20,000.00)
("Deposit") to be paid by certified or cashier's check or by wire transfer in readily available
Federal Funds payable to Title Company for the benefit of Seller and as agent for Seller at the
Closing. which Deposit shall be held in escrow by First American Title Company, 6665 Owens
Drive, Pleasanton, California 94588, to the attention of Diane Burton CTitle Company"). Seller
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and Purchaser agree to provide Title Company with their taxpayer identification numbers. The
Deposit shall be applied to the Purchase Price at Closing (defined below) or shall be paid to
Seller, unless Purchaser shall be entitled to the return of the Deposit or any portion thereof
pursuant to an express provision hereof If for any reason the Closing does not occur and either
Party makes a written demand upon Title Company for payment of the Deposit, Title Company
shall give written notice to the other Party of such demand. If Title Company does not receive a
written objection from the other Party to the proposed payment within ten (10) business days
after the giving of such notice, Title Company is hereby authorized to make such payment. If
Title Company does receive such written objection within such ten (10) day period or iffor any
other reason Title Company in good faith shall elect not to make such payment, Title Company
. shall continue to hold such amount until otherwise directed by written instructions from the
Parties or a final judgment of a court. The Parties acknowledge that Title Company is acting
solely as a stakeholder at their request and for their convenience, that Title Company shall not be
deemed to be the agent of ei ther of the Parties, except as expressly set forth herein, and that Ti tIe
Company shall not be liable to either of the Parties for any act or omission on its part unless
taken or suffered in bad faith, in willful disregard of this Contract or of any escrow agreement, or
involving gross negligence.
(b) Balance at Closing By payment of Five Million Six Hundred Thousand and
001100 Dollars ($5,600,000.00), plus or minus any adjustments and prorations, as set forth
herein, by certified or cashier's check or by wire transfer in readily available Federal Funds
payable to Seller or at Seller's direction to Title Company for the benefit of Seller and as agent
for Seller at the Closing.
"
4. Title, Possession, Condition of Premises:
(a) Purchaser hereby is granted a period commencing upon full execution of this
Contract by the Parties and terminating on the date which is forty-five (45) days thereafter as a
period of due diligence ("Purchaser's Due Diligence Period") during which Purchaser shall be
entitled to investigate any and all aspects of the Property, including, but not limited to, the
physical condition of the Propel1y and the buildings and improvements thereon. In connection
therewith, at Purchaser's sole expense it may obtain a survey of the Property, and perform an
environmental inspection of the Property, including without limitation a Phase One
Environmental Site Assessment, a Phase Two Environmental Site Assessment, and such
supplemental testing and assessments as it deems necessary or appropriate; Provided, however,
that Purchaser may not core or bore into the Property without the prior consent of the Seller,
. which consent shall not be unreasonably withheld. In no event shall there be a delay in Closing
or extension of the Purchaser's Due Diligence Period because of these items. In the event that
this transaction does not close, Purchaser shall provide Seller with copies of any and all physical
inspection reports and examinations at Purchaser's cost and expense.
Purchaser shall have the right at any time prior to the expiration of said Due Diligence
Period to elect not to purchase the Property by giving effective written notice to the Seller in
accordance with the provisions of Section 16 below. In the event Purchaser duly elects prior to
or at the end of Purchaser's Due Diligence Period not to purchase the Property in accordance
with the above, this Contract shall become null and void with neither Party having any liability to .
the other hereunder except as expressly set forth herein. At that time, one-half (1/2) of the
Deposit shall be returned by Title Company to Purchaser, and the remaining one-half(I/2) of the
Deposit shall be paid to Seller as an carned considcration for entering into this Contract. Upon
expiration of the Purchaser's Due Diligence Period, Purchaser no longer shall have any right
pursuant to this Section 4(a) to terminate this Contract and demand return of the Deposit. Time
shall be of the essence with respect to Purchaser's Due Diligence Period, and any election by the
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Purchaser not to purchase the Property pursuant to this Scction 4(a), and there shall be no
extensions of Purchaser's Due Diligence Period. Purchaser hereby covenants and agrees to
defend, indemnify and hold harmless Seller from any and all losses, liabilities, costs, repairs,
expenses (including reasonable attorneys' fees and fees of other experts), claims, demands, suits,
actions, causes of action and damages of any kind or nature (collectively, "Liability") relating
directly or indirectly to and caused by Purchaser, its agents, employees or contractors on the
Property and the exercise by Purchaser of its right to review the Property during Purchaser's Due
Diligencc Period, except to the extent that such Liability arises as a result of the negligence or
other wrongful conduct of Seller or its agents. Purchaser shall repair all damages to the Property
caused by Purchaser, its agents, employees or contractors, all at Purchaser's sole cost and
expense. Purchaser's obligations to defend, indemnify, hold harmless, and repair pursuant to
this Section 4(a) shall survive any termination of this Contract.
Seller has delivered or will deliver to Purchaser within five (5) days of the date of full
execution of this Contract, copies of the documents, in Seller's possession and control, listed on
Exhibit B, attached hereto and made a part hereof.
(b) The Property is to be sold and shall be conveyed subject to the following matters:
(I) All present and future zoning, building and environmental laws,
ordinances, codes, restrictions and regulations of any municipal, state, Federal or other
governmental authority, including without limitation, all boards, bureaus, commissions,
departments and bodies thereof, now or hereafter having or acquiring jurisdiction over the
Property or the use and improvement thereof.
(2) All covenants, restrictions, easements, reservations, conditions, consents
and agreements of record, provided that Purchaser shall have the right to review title to the
Property pursuant to Section 5 below. .
(3) The state offacts which would be shown by a current survey and
inspection of the Property.
(4) The rights, if any, relating to construction, maintenance and operation of
public utility lines, wires, poles, cables, pipes, distributing boxes and other equipment and
installations on, over and under the Property.
(5) Encroachments and projections of walls, foundations, stoops, cellar steps,
areas, cornices, trim or other improvements or installations onto the Property or from the
Property onto adjoining property; party walls and party wall rights; variations between the record
lot lines of the Property and those shown on the tax map; and consents of record for the erection
and maintenance of any structures on, under or above any streets or roads in front of or adjoining
the Property.
(6) Real estate taxes, assessments, water charges, sewer rents and municipal
charges, which are not yet due and payable.
(7) Any facts, rights, interests or claims which are not shown by the public
records, but which could be ascertained by an inspection of said land.
(c) At the time of delivery of the Deed the Property shall be conveyed free from all
mortgages, liens and monetary encumbrances placed upon the fee title to the same by Seller or
others.
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(d) Purchaser agrees to accept possession of the Property in its "AS IS" physical
condition and "WITH ALL FAULTS" as of the date of this Contract and Purchaser assumes the
responsibility-of all ordinary use, wear, tear and deterioration between the date of this-Contract
and the Closing date. Seller makes no representation or warranty of any kind or nature
whatsoever with respect to the suitability of the Property for Purchaser's intended use or any
other representation of warranty concerning the Property, including, but not limited to,
environmental matters; Provided, however, that nothing herein is intended to excuse Seller's
obligations pursuant to California Health and Safety Code Section 25359.7, which requires
owners of non-residential real property who know, or have reasonable cause to believe, that any
release of Hazardous Substances has come to be located on or beneath the real property to
provide written notice of same to the buyer ofreal property. As used in this Contract,
"Hazardous Substances" means any chemical, compound, material, mixture; or substance that is
now or may in the future be defined or listed in, or otherwise classified pursuant to any Federal,
state or local environmental law, as a "hazardous substance", :'hazardous material", "hazardous
waste", "extremely hazardous waste", "infectious waste", "toxic substance", "toxic pollutant", or
any other formulation intended to define, list or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity, and shall also
include asbestos or asbestos-containing materials, radon, chrome and/or chromium,
polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum
components, oil, mineral spirits, natural gas, natural gas liquids, liquefied natural gas, and
synthetic gas usable as fuel, perchlorate, and methyl tert butyl ether, whether or not defined as a
hazardous waste or hazardous substance in any Federal, state or local environmental law.
Provided that Seller has complied with California Health and Safety Code Section
25359.7 and Purchaser has been perrnitted a right of entry and consent to perform due diligence
to Purchaser's satisfaction, Purchaser agrees to assume any and all liabilities in connection with
the current physical condition of the Property and with any hazardous, dangerous or toxic
conditions or substances located or to be found on the Property or any violation of any Federal,
state, city, county, town or municipal laws, statutes, ordinances, rules and regulations relating to
toxic wastes or asbestos containing materials or any other hazardous or dangerous substances of
any kind or nature whatsoever. Upon Closing, Purchaser agrees to indemnify Seller and hold
Seller harrnless with respect to any and all liability of any kind or nature whatsoever which may
arise at any time or under any circumstances in connection with the physical condition of the
Property, any substances found thereon or any violation of law in connection therewith.
Purchaser agrees to indemnify and hold Seller harrnless with respect to any and all violations of
health, safety, zoning, building and environmental laws, statutes, ordinances, rules and
regulations of any Federal, state, county, city, town, municipal or governmental authority having
jurisdiction with respect to the Property. Purchaser agrees to assume all of the responsibilities
imposed by all such laws, statutes, ordinances, rules and regulations with respect to the Property
and to hold Seller harmless in connection therewith. These provisions shall survive the delivery
of the Deed.
5. Title Review and Insurance:
(a) Title Review. Purchaser's obligations hereunder are conditioned upon Purchaser _
reviewing the title to the Property. In the event Purchaser wishes to raise any objections to the
title to the Property, Purchaser shall follow the procedure as set forth in Section 51b) below. In
the event that Purchaser does not raise any objections to the title of the Property in accordance
with Section 51b) below, then Purchaser shall be deemed to have agreed to accept title to the
Property in the state as set forth in the title insurance commitment.
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(b) Title Commitments and Insurance: Purchaser agrees to order within five (5) days
of the full execution of this Contract by the Parties, a current title report ("Title Report") on the
Property issued by the Title Company, setting forth all liens, encumbrances, easements,
restrictions, conditions, pending litigation, judgments, administrative proceedings, and other
matters of record affecting Seller's title to the Property, together with complete and legible
copies of all documents relating to exceptions listed in the Title Report ("Title Exceptions").
Upon receipt of the documents so ordered, Purchaser shall furnish copies of them to Seller. It
shall be a condition to Closing that Purchaser receive a title commitment for a CL T A Owner's
Title Insurance Policy ("Title Policv") or, at Purchaser's election, an AL T A Owner's Title
Insurance Policy, to be issued by the Title Company in the amount of the Purchase Price for the
benefit and protection of Purchaser, showing fee simple title to the Property vested in Purchaser,
subject only to Permitted Exceptions (defined below), including such endorsements as may
reasonably be requested by Purchaser, and committing Title Company to issue the Title Policy to
Purchaser upon Closing. In no event shall there be a delay in Closing or extension of the
Purchaser's Due Diligence Period because of Purchaser's request for the issuance of an ALTA
policy rather than a CLT A commitment or policy. In the event that the Property is not conveyed
by Seller to Purchaser for any reason whatsoever, the cost of the Title Policy commitment for the
Property and any related escrow fees and cancellation charges shall be paid by Purchaser. In the
event the Property is conveyed by Seller to Purchaser as called for in this Contract, then
Purchaser shall pay upon Closing the cost for said commitment and all premiums charged by
Title Company for any Title Policy for the Propel1y in the amount of the Purchase Price as set
forth in Section 3 above. The cost or expense for any endorsements to the Title Policy or
requests to the Title Company shall be paid for by Purchaser.
Within seven (7) business days after receipt of said Title Report, Purchaser shall
notify Seller and shall deliver to Seller a written statement of objections as to any of the Title
Exceptions. In the event Purchaser does not furnish Seller with such a written statement of
objcctions within seven (7) business days ofreccipt of said Title Rcport, Purchaser shall be
deemed to have waived any and all objections to said Title Report and the status of title of the
Property. Any Title Exceptions to which Purchaser does not object to in writing shall be deemed
"Permitted Exceptions" If Purchaser shall advise as to any objections to Title Exceptions as
reflected in said Title Report, then Seller shall have the right at its option to cure said objections
or the right not to cure said objections. Seller shall notify Purchaser as to its election within
seven (7) days after receipt of Purchaser's notice of objections. If Seller shall elect not to cure
said objections, then Purchaser shall have the right to elect to either accept title or to terminate
this Contract. Purchaser shall notify Seller as to its election within seven (7) days of receipt of
Seller's notice to Purchaser of its election not to cure said objections. If Purchaser shall fail to
give Seller such notice of Purchaser's election to either accept title or ternlinate this Contract
within the time specified, it shall be presumed conclusively that Purchaser has elected to accept
title to the Property subject to such objected items. If Purchaser elects to terminate this
transaction within the time specified abovc ncither Purchaser nor Scller shall have any further
liability hereunder, except that Purchaser shall be entitled to the return of one-half of the Deposit
and Purchaser shall be obligated to pay all charges relating to said Title Policy commitment and
to repair any damages to the Property caused by Purchaser as a result of its review of the Property
during Purchaser's Due Diligence Period. The balance of the Deposit shall be paid to Seller as an
eamed consideration for entering into this Contract. Any interest accrued on the Deposit shall be
divided evenly between Seller and Purchaser. In the event Seller elects to cure any objections
raised by Purchaser concerning Title Exceptions, Seller shall have a reasonable peliod of time
viithin which to cure such objections, including any period of time up to the Closing date, and
Purchaser shall grant Seller one (I) extension of time of Closing of up to thirty (30) days for such
purpose, In the event such title objections have not been cured by such time, including such
extension of time, either Party shall have the right to terminate this Contract. After Purchaser
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has approved the state of title as per the above, Purchaser shall have no right to object to the state
of title to the Property, except as to any encumbrances on title caused by Seller or arising as a
result of the actions of Seller between said time and the date of Closing. Purchaser further agrees
that no item shall be deemed to be an objection to the marketability of title in the event Purchaser
is able to obtain at a reasonable cost affirmative insurance against loss with respect to any such
item and/or insurance against the collection of such item from the Property or enforcement of
such item against the Property.
6. Deed: At closing, Seller shall convey title to the Property to the Purchaser by
grant deed ("Deed"), substantially in the form of Exhibit C attached hereto and made a part
hereof
7. Destruction or Condemnation: If prior to the date of Closing (a) the whole or any
portion of any building on the Property shall be destroyed by fire or other casualty, or (b) all or
any portion of the Property shall be condemned or taken by eminent domain by any competent
authority for any public or quasi-public use or purpose, then in any such event, Seller shall have
the option to cancel this Contract or conclude the transaction herein provided for. If Seller shall
elect pursuant to such option to cancel this Contract, it shall do so by written notice to the
Purchaser within a period of not more than ten (10) days alter Seller's receipt of notice of the
occurrence of any of the events set forth. above. In such event, both Parties shall be relieved and
discharged of all further liability hereunder, and the Deposit, with interest, shall be returned to
Purchaser. If, however, Seller shall not so elect to cancel this Contract, then there shall be no
reduction in the Purchase Price and Purchaser shall be entitled, on or after Closing, in the case of
fire or other casualty, to receive from insurance carriers all insurance proceeds or, in the case of
condemnation or taking by eminent domain, to receive the entire award for the Property or the
pOltion thereof so taken and Seller will execute and deliver to Purchaser on the Closing
hereunder all proper instruments for the assignment and collection of such proceeds or award.
Seller agrees to notify Purchaser in the event of any casualty or in the event it receives notice of
any condemnation or taking by eminent domain.
8. Seller's Inabilitv to Convev Title In the event that Seller is unable to convey title
in accordance with the terms of this Contract for any reason whatsoever, the sole liability of the
Seller shall be to cause Title Company to refund to the Purchaser the Deposit (or so much thereof
as has been delivered to Title Company) and upon such return this Contract and the lien, if any,
of Purchaser against the Property shall wholly cease. Purchaser may, nevertheless, at its option
accept such title as Seller may be able to convey, without reduction of the Purchase Price and
without any other liability on the part of the Seller.
9. Prior Understandings and Agreements: All understandings and agreements
heretofore had between the Parties are merged in this Contract, which alone fully and complete]y
expresses their agreement and that the same is entered into after full investigation, neither Party
relying upon any statement or representation not embodied in this Contract, made by the other.
Seller has determined to sell the Property to Purchaser under threat of condemnation by
Purchaser.
10. Dates and Place of Closing: The Closing of the transaction contemplated
hereunder (the "Closing") shall lake place in escrow at the offices of Title Company's offices on
the date which is fltteen (15) days after the expiration of Purchaser's Due Di]igence Period (the
"Closing Date"), or such other date or place as may be agreed to by the Parties, but in no event
after December.31, 20] ]. Whenever the word "day" or "days" is used, in the absence of any
other adjective, it shall be deemed to be, "calendar days." Should any time period elapse on a
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~. . "
Saturday, Sunday or National Holiday, the date of termination of such period shall be the next
business day thereafter.
II. Deliverv of Deed in Escrow: Seller reserves the right to deliver the Deed in
escrow to Title Company as set forth above, which shall record the Deed to the Purchaser after
payment of the balance of the Purchase Price and remission of said sum and the Deposit to the
Seller.
12. Applicable Law: This Contract shall be governed by and construed in accordance
with the laws of the State of California.
13. No Offer. This Contract is not an offer and shall not be binding upon the Seller
unless and until it is signed by Seller, approved by Purchaser's City Council, and thereafter is
executed by Purchaser.
14. DEFAULT: SHOULD PURCHASER DEFAULT IN THE PERFORMANCE OF
ANY OF ITS OBLlGA nONS OR DUTIES UNDER THE TERMS OF THIS CONTRACT,
THE DEPOSIT PAID ON ACCOUNT OF THIS CONTRACT MA Y BE RETAINED BY THE
SELLER AS LIQUIDATED DAMAGES AS THE SOLE REMEDY A V AILABLE TO SELLER
. AND THIS CONTRACT THEREUPON SHALL BECOME NULL AND VOID, NEITHER
PARTY HAVING ANY FURTHER RIGHTS AGAINST THE OTHER, EXCEPT TO THE
EXTENT EXPRESSLY STATED TO THE CONTRARY IN THIS CONTRACT. SHOULD
SELLER DEF AUL l' IN THE CONVEYANCE OF THE PROPERTY, THE PURCHASER'S
SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE A REFUND OF THE
DEPOSIT.
Purchaser's Initials:
Seller's Initials:
15. No Oral Modification: This Contract may not be changed or terminated orally but
only by an agreement in writing signed by the Parties.
16. Notices: All notices given or required to be sent by the Parties shall be deemed to
be duly given only if sent by registered or certified mail, return receipt requested, and deposited
postage prepaid in a post office box regularly maintained or if sent by overnight delivery service
as provided by Federal Express Corporation or other overnight delivery service of national
reputation ("Other Carrier") with all charges prepaid and delivered to a Federal Express
Corporation authorized office or agent or office or agent of Other Carrier addressed to the parties
hereto at their respective addresses as set forth herein. Said notices shall be deemed given upon
the earlier of the actual receipt of said notice by the party to whom it is sent or the date which
postal records or Federal Express. Corporation records or the records of Other Carrierfirst
indicate that delivery was attempted..
The addresses of the Parties for notices hereunder are:
Seller.
Alisue LLC and AneffLLC
c/o Kin Properties, Inc.
185 NW Spanish River Boulevard
Suite 100
Boca Raton, Florida 33431
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Purchaser:
City of Dublin
100 Civic Plaza'
Dublin, California 94568
Attention: City Manager
With a copy to:
John Bakker, Esq
Meyers Nave
555 12'h Street, Suite 1500
Oakland, California 94607
or at such other address as a Party shall have designated by written notice to the other Party as
herein provided.
17. Closing Costs: Any and all transfer taxes, state and local documentary stamp fees
and recording charges required to be paid in connection with the conveyance provided for
hereunder shall be paid for by Purchaser notwithstanding local custom. Purchaser shall pay any
and all escrow fees payable to Title Company in connection herewith. Purchaser shall pay the
costs associated with the title commitment, the Title Policy as per Section 5(b), and any survey as
per Section 4(b) above, regardless of whether or not the Closing occurs. Each Party shall bear its
own legal fees incurred in conne"ction with the negotiation of this Contract and the Closing.
18. Documents to be Delivered at Closing (a) At or before Closing, Seller will
furnish to Purchascr or to Title Company the following documents:
. (I) The Deed as required hereunder, substantially in the fomr attached hereto
as Exhibit C, duly executed and acknowledged, conveying to Purchaser fee simple title to the
Property, subject only toPemritted Exceptions.
(2) An Affidavit as required by the Foreign Investment in Real Property Tax
Act.
(3) Any applicable transfer tax return fomrs.
(4) The documents required pursuant to Se"ction 23 below, ifany.
. (b) At or before Closing, Purchaser will deliver to Title Company the following:
(1) The balance of the Purchase Price.
(2) A duly executed Certificate of Acceptance substantially in the fomr
attached hereto as Exhibit D, as required by California Government Code Section 27281
(3) The documents required pursuant to Section 23 below, ifany.
(4) Any applicable transfer tax return fornls.
(c) The Parties hereby agree to execute and deliver to Title Company such additional
instlUments as may be nccessary and appropriate to close the transaction contemplated hereunder,
including but not limited to, a Closing Statement.
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19. Brokerage: The Parties agree that no broker brought about this sale other than
Cassidy Turley BT Commercial (the "Broker"). Seller agrees to pay a brokerage agreement to
Broker, and Purchaser shall have no responsibility to make any payment to Broker. Seller agrees
to indemnify and hold Purchaser harmless from and against any and all other claims for
brokerage commissions (including reasonable attorneys' fees) incurred by reason of a claim
against Purchaser for a commission or finder's fee as a result of Seller having dealt with any
other real estate brokers or finders in connection therewith other than Cassidy Turley BT
Commercial, or for Seller's failure to pay Broker as provided above The provisions of this
Section 12-shall survive the termination of this Contract or delivery of the Deed.
20. No Assignment: This Contract may not be assigned by Purchaser without Seller's
written consent:
21. Taxpaver Identification Numbers: The taxpayer identification numbers of the
parties to this Contract are as follows:
(a)
Seller:
Aneff LLC
Alisue LLC
# 13-6777071
#13-6703115
(b)
Purchaser:
City of Dublin #94-2825202
22. Apportionments: Notwithstanding Section 4(b)(6) of this Contract, all
adjustments and prorations, including, but not limited to adjustments and prorations with respect
to real estate taxes, assessments and utility charges shall be made as of midnight of the day
immediately preceding the actual Closing date. Property taxes prorations shall be based on the
most recent tax bill available, including any property taxes which may be assessed after the date
of Closing but which pertain to the period prior to the transfer of title to the Property to .
Purchaser, regardless of when or to whom noticc thereof is mailed. At Closing, Purchascr shall
receive a credit in the amount of One Hundred Twenty Thousand Dollars ($120,000.00)
("Purchaser's Credit").
23. Exchange: Seller has advised Purchaser of its intention to seek to effect a tax
deferred exchange pursuant to Section 1031 of the Internal Revenue Code, in connection with the
conveyancc of the Property. If Scller is able to negotiate terms acceptable to Seller for the
transfer or acquisition of an exchange property or properties, then Purchaser agrees to
accommodate Seller in seeking to effect a tax deferred exchange for that property or properties.
Seller shall have the right, expressly reserved here, to transfer the Property in exchange for such
exchange property or exchange properties so identified by Seller so that Seller shall become the
owner of the exchange property or properties and the owner of the exchange property or
properties shall become the owner of the Property subject to all obligations of Seller hereunder.
The owner of the exchange property thcn shall complete this Contract: In the alternative,
Purchaser agrees to cooperate with Seller with respect to such exchange and agrees to execute all
documentation required to effectuate such exchange, including, but not limited to, an Exch'arige
Trust Agreerilentand Designation of Exchange Property. Purchaser makes no warranty
whatsoever with respect to the qualification of the transaction for tax deferred exchange
treatment under Section 1031 and Purchaser shall have no responsibility, obligation or liability
with respect to the tax consequences to Seller. Purchaser shall incur no additional costs or
expenses in this transaction as a result of or connected with the exchange (although Purchaser
shall be responsible for its own attorneys' fees). The covenants, obligations and indemnities
contained in this Section 23 shall survive the Closing of the Property and delivery of the Deed.
9
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24. Purchaser's Acknowledgment: In entering into this Contract, Purchaser has not
been induced by and has not relied upon any representations, warranties or statements, whether
express or implied, made by Seller or any agent, employee or other representative of Seller or by
any broker or any other person representing or purporting to represent Seller, which are not.
expressly set forth in this Contract, whether or not any such representations, warranties or
statements were made in writing or orally.
25. Survival: The delivery of the Deed by Seller and the acceptance thereof by
Purchaser shall be deemed the full performance and discharge of every obligation on the part of
the Seller and Purchaser to be performed hereunder, except to the extent expressly
stated to the contrary in this Contract or in any Exhibits attached hereto.
26. Prior Agreements: This Contract and the Exhibits attached hereto embody and
constitute the entire understanding between the parties with respect to the transaction herein, and
all prior agreements, oral or written, are merged into this Contract. Neither this Contract nor any
provision hereof may be waived, modified, amended, discharged or terminated except by an
instmment signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set forth in such
instmment.
27. Captions: The captions in this Contract are inserted for convenience of reference
only and in no way define, describe or limit the scope or intent of this Contract or any of the
provisions hereof
28. Binding Effect: This Contract shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators, successors and assigns.
29. Counterparts: This Contract may be executed in counterparts, eaeh of which shall
be deemed an original and all of which, when taken together, shall constitute one and the same
instmment, binding on the Seller and Purchaser, and the signature of any party to any counterpart
shall be deemed a signature to, and may be appended to, any other counterpart.
30. No Third Partv Beneficiaries Nothing in this Contract is intended to or shall
confer upon any person, other than the Parties and their respective successors and assigns, any
rights or remedies hereunder.
31. Parties Not Co-Venturers. Nothing in this Contract is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
32. Non-Liabilitv of Officials, Emplovees and Agents. No member, official,
employee or agent of Purchaser shall be personally liable to Seller or its successors in interest in
the event of any default or breach by Purchaser or for any amount which may become due to
Seller or its successors in interest pursuant to this Contract.
33. Litigation Costs. If any legal action or any other proceeding, including without
limitation arbitration or action for declaratory relief, is brought for the enforcement of this
Contract or because of an alleged breach or default in connection with this Contract, the
prevailing Party shall be entitled to recover its reasonable attorneys' fees and other costs, in
addition to any other relief to which such Party may be entitled
34. Authority: Due Execution: Enforceabilitv Seller has the full right, power and
authority to execute, deliver and perform all obligations of Seller under this Contract and all
10
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other instruments delivered or to be delivered by Seller prior to Closing (collectively, the
"Documents"), and the execution, performance and delivery of this Contract and the Documents
by Seller have been duly authorized by all requisite actions. The person or persons executing this
Contract on behalf of Seller is/are duly authorized to do so. This Contract and the Documents
constitute valid and binding obligations of Seller, enforceable in accordance with their respective
terms.
35. Severability If any term, provision or condition of this Contract is held by acourt
of competent jurisdiction to be invalid or unenforceable, the remainder of this Contract shall
continue in full force and effect unless the rights and obligations of the Parties have been
materially altered or abridged thereby.
36. Governing Law. This Contract shall be governed by and construed in accordance
with the laws of the State of California without regard to principles of conflicts oflaws.
[Signature Page Follows]
11
G:\,CC-MTGS\Temporary SlaffRepons to PDF\llem 4.8 Artactunenl: 2.doc
IN WITNESS WHEREOF, this Contract has been duly executed to be effective as of the
day and year first above written.
SELU:R:
AUSUE LLC, a Delaware limited liability
company
By: Kinsan Management Corp., a
Delaware corporation, Its Manager
By:
Name:
Title:
ANEFF LLC, a Delaware limited liability
company
By
Kinsan Management Corp., a
Delaware corporation, Its Manager
By
Name:
Title:
Attachments:
Exhibit A - Legal Description
Exhibit B - Seller's Informational Items
Exhibit C - Form of Grant Deed
Exhibit D - Form of Certificate of Acceptance
G:\CC-MTGS\Temponu)' SlaffReport5 10 POFl]I= 48 Atl:lchmenl2.do\:
PURCHASER:
,
CITY OF DUBUN, a California municipal
corporati on
By:
Name: Joni Pattillo
Its: City Manager
ATTEST
Caroline Soto, City Clerk
APPROVED AS TO FORM:
John Bakker, City Attorney
12
Exhibit A
To Contract of Sale and Purchaser
Lel!al Description
The land referred to herein is situated in the State of California, County of Alameda, City of .
- Dublin, described as follows:
BEGINNING at a point on the Eastern line of Clark Avenue, as said line was established by the
Grant of Right of Way by Foremost Dairies, Inc., to the County of Alameda, rec\,rded October 5,
1966, on Reel 1852, Image 760, under Recorder's Series No. AY 115696, Alameda County,
Records, said point being the Southern terminus of the course South 210 12' 43' West 358.81
feet, as said course is shown in said Grant;
RUNNING THENCE along said Eastern line of Clark Avenue North 210 ]2' 43" East 358.81
feet to the beginning of a tangent 42.00 foot radius curve;
THENCE along said 42.00 foot radius curve to the right, through a central angle of 860 03' 25", a
distance of 63.08 feet to a point on the Southerly line of Dublin Boulevard, as said line was
established by the Grant of Right of Way by Volk-McLain Communities, Inc. to the County of
Alameda, dated August 19, 1964, recorded August 28, 1964, on Reel 1298, Image 16, under
Recorder's Series No. A W -138893, Alameda County Records;
THENCE along said Southerly line of Dublin Boulevard, and tangent to the last mentioned
< curve, South 72043' 54" East 371.55 feet to a point on the Eastern line of the parcel of land
described in the deed by Yolk-McLain Communities, Inc. to Foremost Dailies, Inc. dated May
26, 1965, recorded June 2, 1965, under Recorder's Series No. AX-75362, Alameda County .
Records;
THENCE along the last named line, South 20049' 00" West 134.48 feet to the beginning of a.
tangent 439.05 foot radius curve;
D-lENCE along said 439.05 foot radius curve to the right, through a central angle of 8049' 55" a
distance of 67.68 feet;
D-IENCE tangent to said curve, South 29038' 55" West 541.48 feet;
THENCE leaving said Westerly line, North 420 22' 20" West 409.02 feet to the Southeasterly
line of Clark Avenue;
THENCE along the last named line, from a tangent that bears North 55025' 16" East, and along
a curve to the left with a radius of230 feet, through a central angle of340 12' 33", a distance of
137.32 feet, to the POINT OF BEGINNING.
EXCEPTING THEREFROM y, of all oil, gas and other hydrocarbon substances below a depth of
13
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500 feet, without surface entry rights, contained in the Deed by Yolk-McLain Communities,
Inc., formerly The Yolk-McLain Co., a corporation, dated May 16, 1965, and recorded June 2,
1965, Reel 1517, Image 925, Official Records, Instrument No. AX-75362.
FURTHER EXCEPTING THEREFROM property conveyed by Grant Deed dated February 15,
2002, from Sanford Sandel man, as Trustee of the Alisue Trust, under Trust Agreement made
August 27, 1975, as to an undivided 50% interest, and Susan Sandelman, as Successor Trustee of
the Aneff Trust, under Trust Agreement made December 5, 1979, as to an undivided 50%
interest, (as Grantor) to the City of Dublin, a Municipal Corporation, (as Grantee) described as
follows:
BEGINJ\'1NG at the most easterly corner of said lands at a point on the Southerly line of Dublin
Boulevard as established by the Grant of light of way by Yolk-McLain Communities, Inc. to the
County of Alameda, dated August 19,1964, recorded August 28,1964, on Reel 1298, Image 16
under Recorder's Series No. A W -138893 of Alameda County Records;
THENCE along the Northerly line of said lands and the Southerly line of Dublin Boulevard N
no 43' 46" W 113.207 meters;
THENCE along last said line along a curve to the left having a radius of 12.803 meters, through a
central angle of 860 03' 23" for an arc length of 19.228 meters;
THENCE S 21012' 51" W 3.120 meters;
THENCE along a non-tangent curve to the right having a radius of 12.562 meters, from a tangent
that bears N 210 12' 5 I" E, through a central angle of 860 03' 15" for an arc length of 18.867
meters;
THENCE S no 43' 54" E, 113396 meters to the Southeasterly line of said lands;
THENCE N 21049' 31" E 3.342 meters to the POINT OF BEGINNI~G.
Containing 416. I square meters, more or less.
Assessor Parcel Number 94]-1401-12-4
Property Address: 6363 Clark Avenue, Dublin, CA 94568
14
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Exhibit B
To Contract of Sale and Purchaser
Seller's Deliveries Under Section 4(a)
Documents Delivered to Purchaser From Seller
-"Supplemental Asbestos Survey Report" dated October 8, 2008, prepared by RGA
Envirorunental, Inc. (62 pages)
-"Additional Site Investigation Report" dated October 31, 2007, prepared by Groundwater &
Environmental Services, Ine. (72 pages)
- Letter re: Additional Site Investigation Report, dated November 5, 2007, from EMG to Kin
Properties (one page)
-ALTAI ACSM Land Title Survey, prepared by Kier & Wright (one page)
-Preliminary Report dated May 18,2007, prepared by First American Title (18 pages)
-Letter re: Facility Closure - National Food Laboratory, dated February 11, 2009, from Alameda
County Health Care Services to The National Food Laboratory, lne. (one page)
-Preliminary Report dated July 29,2011, with related instruments, prepared by First American
Title Company (94 pages)
-Preliminary Report dated Decc'1l1ber 10, 2010 Oanuary 14,2011 Update), prepared by First
American Title (nine pages) .
-Letter re: Additional Groundwater Sampling Rq,ort, dated December 12, 2007, from EMG to
Kin Properties (one page)
-Letter re: Additional Groundwater Sampling, ebted DeccmberlO, 2007, from Groundwater &
Environmental Services, Inc. to EMG, with results (39 pages)
1721974.2
15
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Exhibit C
To Contract of Sale and Purchaser
Form of Grant Deed
RECORDING REQUESTED BYAND
WHEN RECORDED MAIL TO:
City of Dublin
] 00 Civic Plaza
Dublin, California 94568
Attention: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE Scction 27383
SPACE ABOVE THIS LINE FOR RECORDER'S
USE
Mail Tax Statements to:
The undersigned grantor declares:
Documentary Transfer Tax is shown on a separate sheet
attached to this deed and is not a part of the public
record.
(signature of grantor above)
Assessor Parcel Number: 941-140] -12-4
GRANT DEED
FOR VALUABLE CONSIDERA TlON, receipt of which is hereby acknowledged, ALlSUE
LLC, a Delaware limited liability company, and ANEFF LLC, a Delaware limited liability
company, (collectively, "GRANTOR") hereby GRANT to THE CITY OF DUBLIN, a
California municipal corporation ("GRANTEE"), that certain real property in the City of Dublin,
County of Alameda, State of California, more particularly described as follows
See Exhibit "A" attached hereto and incorporated herein by reference
]6
G:\CC-MTGS\Temporal)'StafrRep:ms 10 PDF\ltem 4.8 Altadlmcld 2.doc
J.; ~.'
IN WITNESS WHEREOF, this Grant Deed has been duly executed as of the _ day of
,2011.
ANEFF LLC, a Delaware limited liability
company
By: Kinsan Management Corp., a Delaware
corporation, Its Manager
By:
Name:
Title
STATE OF FLORIDA )
)SS
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this _ day of
,2011, by ,the of
Kinsan Management Corp., the Manager of Aneff LLC, on behalf of the limited liability
company.
I certify under PENALTY OF PERJURY under the laws of the State of Cali fomi a that the
foregoing paragraph is true and correct.
[NOTARY STAMP]
Notary Public
ALISUE LLC, a Delaware limited liability
company
By:' Kinsan Management Corp., a Delaware
corporation, Its Manager
By:
Name:
Title:
17
G:\CC-MfG::'ITemporouy StalfReports to PDF\llem 4.8 Attachment 2.doc
STATE OF FLORIDA )
)SS
COUNTY OF PALM BEACH )
The foregoing instmment was acknowledged before me this _ day of
,2011,by ,the of
Kinsan Management Corp., the Manager of Alisue LLC, on behalf of the limited liability
company.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is tme and correct.
[NOTARY STAMP]
Notary Public
18
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Exhibit A
To Grant Deed
Legal Description
The land referred to herein is situated in the State of California, County of Alameda, City of
Dublin, described as follows:
BEGINNING at a point on the Eastern line of Clark Avenue, as said line was established by the
Grant of Right of Way by Foremost Dairies, Inc., to the County of Alameda, recorded October 5,
1966, on Reel 1852, Image 760, under Recorder's Series No. AY 115696, Alameda County,
Records, said point being the Southern terminus of the course South 210 12' 43' West 358.81
feet, as said course is shown in said Grant;
RUNNING THENCE along said Eastern line of Clark Avenue North 210 12' 43" East 358.81
feet to the beginning of a tangent 42.00 foot radius curve;
THENCE along said 42.00 foot radius curve to the light, through a central angle of860 03' 25", a
distance of 63.08 feet to a point on the Southerly line of Dublin Boulevard, as said line was
established by the Grant of Right of Way by Volk-McLain Communities, Inc. to the County of
Alameda, dated August 19, 1964, recorded August 28, 1964, on Reel 1298, Image 16, under
Recorder's Series No. AW-138893, Alameda County Records;
THENCE along said Southerly line of Dublin Boulevard, and tangent to the last mentioned
curve, South 72043' 54" East 371.55 feet to a point on the Eastern line of the parcel of land
described in the deed by Volk-McLain Communities, Inc. to Foremost Dairies, Inc. dated May
26, 1965, recorded June 2, 1965, under Recorder's Series No. AX-75362, Alameda County
Records;
c
THENCE along the last named line, South 200 49' 00" West 134.48 feet to the beginning of a
tangent 439.05 foot radius curve;
THENCE along said 439.05 foot radius curve to the right, through a central angle of 8049' 55" a
distance of 67.68 feet;
THENCE tangent to said curve, South 29038' 55" West 541.48 feet;
THENCE leaving said Westerly line, North 420 22' 20" West 409.02 feet to the Southeasterly
line of Clark Avenue;
THENCE along the last named line, from a tangent that bears North 550 25' 16" East, and along
a curve to the left with a radius of 230 feet, through a central angle of 340 12' 33", a distance of
137.32 feet, to the POINT OF BEGINNING.
19
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EXCEPTING THEREFROM 112 of all oil, gas and other hydrocarbon substances below a depth of
500 feet, without surface entry tights, contained in the Deed by Volk-McLain Communities,
Inc., formerly The Volk-McLain Co., a corporation, dated May 16, 1965, and recorded June 2,
1965, Reel 1517, Image 925, Official Records, Instrument No. AX-75362.
FURTHER EXCEPTING THEREFROM property conveyed by Grant Deed dated February 15,
2002, from Sanford Sandelman, as Trustee of the Alisue Trust, under Trust Agreement made
August 27, 1975, as to an undivided 50% interest, and Susan Sandelman, as Successor Trustee of
the Aneff Trust, under Trust Agreement made December 5, 1979, as to an undivided 50%
interest, (as Grantor) to the City of Dublin, a Municipal Corporation, (as Grantee) described as
follows:
BEG1NNlNG at the most easterly corner of said lands at a point on the Southerly line of Dublin
Boulevard as established by the Grant of tight of way by Volk-McLain Communities, Inc. to the
County of Alameda, dated August 19, 1964, recorded August 28, 1964, on Reel 1298, Image 16
under Recorder's Series No A W-138893 of Alameda County Records;
THENCE along the Northerly line of said lands and the Southerly line of Dublin Boulevard N
72043' 46" W 113.207 meters;
THENCE along last said line along a curve to the left having a radius of 12.803 meters, through a
central angle of860 03' 23" for an arc length of 19.228 meters;
THENCE S 210 12' 51" W 3.120 meters;
THENCE along a non-tangent curve to the right having a radius of 12.562 meters, from a tangent
that bears N 2]012' 51" E, through a central angle of 86003' 15" for an arc length of 18.867
meters;
THENCE S 72043' 54" E, 113.396 meters to the Southeasterly line of said lands;
THENCE N 21049' 31" E 3.342 meters to the POINT OF BEGINNING.
Containing 416.1 square meters, more or less.
Assessor Parcel Number: 941-1401-12-4
Property Address: 6363 Clark Avenue, Dublin (San Ramone), CA 94568
20
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Exhibit D
Form of Certificate of Acceptance
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed' by the Grant Deed dated
,20_, executed by Alisue LLC, a Delaware limited liability company, and
AneffLLC, a Delaware limited liability company (collectively, "Grantor") to the City of Dublin,
a California municipal corporation ("Grantee"), is hereby accepted on behalf of the City of
Dublin by its City Manager pursuant to authority conferred by Resolution No. _, adopted by
the City COllncil of the City of Dublin on , 20~ and that the Grantee consents
to recordation of the Grant Deed by its duly authorized officer.
Dated
,2011
By
Joni Pattillo, City Manager
ATTEST:
By
Caroline Soto, City Clerk
APPROVED AS TO FORM:
By:
John Bakker, City Attorney
21
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ST A TE OF CAUFORNJA )
)
COUNTY OF ALAMEDA )
On ,20_, before me, , (here insert name and title of the otTicer),
personally appeared , who proved to me on the basis of
satisfactory evidence to be the pcrson(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/hcr/thcir authorized capacily(ics), and that by his/hcr/thcir
signaturc(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENAL TY OF PERJURY lmder the laws of the State of California that the foregoing paragraph is
tme and concet.
WITNESS my hand and ol11ciaI seaL
Signature
(Seal)
1726452.1
22
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