HomeMy WebLinkAbout8.1 SalePblcPropDB ExtAcqCITY CLERK
AGENDA STATEMENT
CITY COUNCIL MEETING DATE August 19, 1997
SUBJECT:
Sale of Public Property - Remnant Parcels from Dublin
Boulevard Extension Acquisition.
Report by: Greg Reuel, Economic Development Director
EXHIBITS ATTACHED:
RECOMMENDATION:
Exhibit 1:
Exhibit 2:
Location Map
Purchase and Sale Contract, The City of Dublin
and IHOP Realty Corp.
Authorize Mayor to sign a Purchase and Sales Contract with IHOP
Realty Corporation per the terms and conditions of the contract.
FINANCIAL STATEMENT:
The City's remnant parcels, that combined equal 22,000 sq. ft.,
are being offered for sale at a price of $245,000
DESCRIPTION: In the process of purchasing property for the Dublin -Boulevard
Extension, two small parcels of land were leg over as excess property on the north side of Dublin
Boulevard. The two parcels are contiguous and represent 22,337 sq. ft.
Government Code requires that prior to sale of public property, the City must offer the property to area
recreational and housing agencies. This was done and none of the agencies were interested in purchasing
the parcels. Municipal Code (2.38) also requires the City to offer the property to adjacent land owners
and if not acquired by these entities, to notice the property for sealed bids. The remnant parcels were
offered to the adjacent properties owners and publicly offered through a sealed bid procedure in 1995.
The City did not receive any offers for the remnant parcels from the adjacent property owners or through
the sealed bid process.
The City has sold an access easement over a comer of the westerly remnant parcel to allow the adjacent
property owner to the west to have driveway access onto Dublin Boulevard. This easement was sold for a
value of $19,312.
The development of the northeast comer of Dublin Boulevard and Dougherty Road is an important visual
area of the City. Planning and Economic Development Staff have been working with the owners of this
land for a coordinated and quality development. Shell Oil Company and C & J Cox Corp. have begun
construction on a new Shell Station on the comer of Dublin Boulevard and Dougherty Road. The
undeveloped property wrapping around the newly proposed Shell Station is a 6 acre parcel owned by J.
Patrick Land Company (JPLC). Management of JPLC has been working with City Staff on a Planned
Development for their property that would work in conjunction with the City's remnant parcels. A
concern was voiced by City Staff of chopping up the JPLC parcel into too many small parcels which
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ITEM NO. __~
started the idea of combining the City's remnant parcels with part of JPLC land for a sit-down restaurant
site. When JPLC received a contract for a 92 unit hotel on part of their property, the idea of creating a site
large enough for a sit-down restaurant next to the hotel seemed even more desirable for the area.
Although the two City remnant parcels are irregular in shape and too small individually for development,
when combined with part of the contiguous property owned by JPLC, a building site of approximately
42,000 sq. ft. is created which is large enough for most sit-down restaurants.
Staff presented the idea of combining the two sites to a number of restaurant operators and developers and
subsequently, received a Letter of Interest from Main Street Properties through their broker DCI for the
full asking price of the property. The request by Main Street Properties to purchase the City's remnant
parcels was brought to the City Council on January 7, 1997 with the Council agreeing to the terms of the
sale and authorizing Staff to proceed with preparing a purchase and sales agreement. The finalized
purchase and sales agreement was signed and returned by Main Street Properties but modified t9 reflex an
offer $58,000 less than the original terms of the contract. The City rejected this modified proposal, and
terminated negotiations with Main Street Properties and DCI.
After terminating negotiations with Main Street Properties, Staff.proceeded to market the City's property
to prospective restaurants and found IHOP interested in purchasing the City's property for the asking
price of $245,000. IHOP is also prepared to purchase lot 2 owned by JPLC in order to assemble enough
property necessary for the development of an approximate 4,000 sq. ft. restaurant.
ANALYSIS Although Dublin has 57 restaurants, the majority of eateries in the City are fast food
oriented with limited sit-down service. Also, there is a lack of restaurants on the eastern side of Dublin
with no restaurant establishments along Dougherty Road.
IHOP is a well recognized, 35 year old national restaurant chain that will add dining services to the
eastern part of the City. IHOP serves breakfast, lunch and dinner with sit-down accommodations for 132
patrons. Ideally located, the proposed Dublin IHOP will attract patronage from freeway traffic that exits
at Dougherty Road, BART commuters, area residents and provide convenient food and beverage service
to the new proposed Holiday Inn Express Hotel.
IHOP Reality Corp. is prepared to enter into a purchase agreement with JPLC within 90 days of
executing a purchase and sales contract with the City. This is a necessary step in assembling enough
property for the proposed restaurant.
PROCESS The purchase and sales contract establishes a 60 day feasibility period that allows IHOP to
conduct tests and surveys on the property. At the end of the 60 day feasibility period, they would submit
an SDR application. Plans for a building permit would be submitted no later than 30 days after getting
approval of their SDR application. Closing on the property would happen within 10 days of completion
of items 6-10 in contract.
Staff recommends the Council authorize the Mayor to sign a Purchase and Sales Contract with IHOP
Realty Corporation per the terms and conditions of the contract.
PROPOSED RI~STAURANT SI-l-F:
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Dublin Blvd.
CONTACT:
Greg Reuel, Economic Development Manager
City of Dublin, P O Box 2340, Dublin CA 94568
(5i0) 833-6650 fax (510) 833-6651
DUBLIN, CA
PURCHASE AND SALE CONTRACT
THE CITY OF DUBLIN,
a Municipal Corporation,
Seller,
and
IHOP REALTY CORP.,
a Delaware corporation,
Buyer
Dated:
,1997
DUBLIN. CA CTYCNTCT.3
PURCHASE AND SALE CONTRACT
The City of Dublin, a Municipal Corporation
Seller,
and
IHOP Realty Corp., a Delaware corporation,
Buyer
,TABLE OF CONTENT,C;
1. PARTIES ........................................... 1
2. PROPERTY ........................................................ 1
3. PURCHASE AND SALE
4. PURCHASE PRICE
5. EARNEST MONEY
6.
8o
12.
TITLE REPRESENTATIONS, WARRANTIES AND CONDITIONS ............. 1
6.1 Seller's Title Representations
6.2 Title Commitment
6.3 Seller's Title Requirements ...................................... 2
6.4 Buyer's Remedies ............................................. 2
SURVEY
7.1 Current Survey .................................. ' ' 2
7.2 Survey Review ................................................ 3
7.3 Buyer's Remedies ............................ : ................ 3
MISCELLANEOUS REVIEW
8.1
8.2
8.3
8.4
8.5
8.6
Soils Investigation ............................................. 3
Hazardous Substances ......................................... 3
8.2.1 Phase 1 Environmental Report ............................. 3
8.2.2 Supplemental Report .................................... 4
8.2.3 Underground Storage Tanks ............................... 4
Availability of Utilities .......................................... '4
Vadance/Conditiona Use ........................................ 4
Restoration of Property ......................................... 4
Disapproval by Buyer ........................................... 4 '
PROPERTY ASSEMBLAGE .......................................... 5
DEVELOPMENT REVIEW
REPRESENTATIONS AND WARRANTIES ............................... 6
11.1 Ownership and Authority ........................................ 6
1 1.2 Parties in Possession
11.3 Condemnation ........................................... 6
11.4 Environmental ................................................ 6
11.5 Floodplain ................................................ 6
11.6 Utility District .................................................. 6
11.7 Subdivision Compliance ......................................... 7
11.8 Remedies .................................................... 7
11.9 Continuing Representations and Warranties ' 7
CLOSING
12.1 Place, Time, Date
12.2 Seller's Responsibilities .........................................
DUBLIN. CA i
CTYCN'T CT.3 (8/4.'97)
DUBLIN, CA
'PURCHASE AND SALE CONTRACT
1. PARTIES.
"Seller":
The City of Dublin
Economic Development Department
Attention: Greg Reuel, Manager
100 Civic A
Dublin, California 94568
"Buyer":
IHOP Realty Corp., a Delaware corporation
525 N. Brand Boulevard, Third Floor
Glendale, California 91203-1903
'q-itle Company":
Commonwealth Land Title Insurance Company
1855 Gateway Boulevard, Suite 140
Concord, California 94520
Attention: Toni Pink
"Escrow Agent":
Commonwealth Land Title Insurance Company
4691 Clayton Road, Unit C
Concord, California 94521
Attention: Lorrie Fowler
2. PROPERTY. The property which is the subject of this Contract is that certain real
property consisting of approximately twenty-two thousand three hundred thirty-seven (22,337)
square.'feet of land, located nodheast of the intersection of Dougherty Road and Dublin
Boulevard in the City of Dublin, County of Alameda, State of California, identified as "City
Remnant Parcel" on Exhibit A attached hereto, and more particularly described on Exhibit B
attached h~'~to, together with, all and singular, all rights and appurtenances pertaining thereto
(the "Property").
3. PURCHASE AND SALE. Subject to the terms of this Contract, Seller agrees to sell and
convey title to the Property to Buyer, and Buyer agrees to purchase the Property from Seller.
4. PURCHASE PRICE. The purchase price for the Property shall be Two Hundred Fody
Five Thousand Dollars ($245,000.00) payable in cash at Closing. The purchase price is not
based upon the area of the Property and shall not change regardless of the precise square.
footage of the Property.
5. EARNEST MONEY. Within three (3) business days after the date of this Contract, Buyer
shall deliver the sum of Ten Thousand Dollars ($10,000.00) to Escrow Agent to be held by
Escrow Agent as earnest money in accordance with the terms of this Contract. "Earnest
Money" shall mean all money deposited in accordance with this Section 5 and all interest
earned thereon. At Buyer's option, the Earnest Money shall be in the form of either cash or a
check to be negotiated upon receipt by Escrow Agent. The Earnest Money shall be placed in
an interest-bearing account with a sound financial institution, with interest being payable to
Buyer. Buyer's taxpayer identification number is 95-6854343.
6. TITLE REPRESENTATIONS, WARRANTIES AND CONDITIONS.
6.1 Seller's Title Representations. Seller represents to Buyer that Seller now holds
fee simple title to the Property, and at Closing Seller shall have and shall convey to Buyer fee
simple title to the Property, free and clear of any and all covenants, conditions, restrictions and
encumbrances, except those set forth on Exhibit D attached hereto ("Permitted Exceptions")
and those, if any, which become additional Permitted Exceptions pursuant to Section 6.4 below.
Buyer understands that pursuant to Section 2.38.060 of the Dublin Municipal Code Seller's
deed to Buyer at Closing will be a Quitclaim Deed in substantially the same form as Exhibit C
attached hereto (the "Deed") and Buyer agrees to accept such Quitclaim Deed as the
instrument conveying title to Buyer.
DUBLIN. CA CTYCNTCT,3 (8/4/97)
13.
14.
15.
16.
12.3 Buyer's Responsibilities ......................................... 7
12.4 Prorations and Expenses ........................................ 7
DEFAULT
13.1
13.2
13.3
13.4
13.5
Seller's Default ................................................ 8
Buyer's Default .............. ~ ................................. 8
Court Costs and Attorneys' Fees .................................. 8
Escrow Instructions ............................................ 8
13.4.! Return of Earnest Money Without Seller's Approval ............. 8
13.4.2 Payment of Earnest Money Without Buyer's Approval ........... 8
13.4.3 Disbursement of Earnest Money by Mutual Direction ............ 9
Agreement of Escrow Agent ..................................... 9
CASUALTY ........................................................ 9
BROKERAGE COMMISSIONS ........................................ 9
GENERAL PROVISIONS
16.1
16.2
16.3
16.4
16.5
16.6
16.7
16.8
'1..6.9
16.1o
16.11
16.12
16.13
16.14
16.15
16.16
16.17
Date of Contract ............................................... 9
Notices ...................................................... 9
Integration; No Implied Warranties ................. , ................ 9
Survival .................................................... 10
Binding Effect ................................................ 10
Place of Performance .......................................... 10
Governing Law ............................................... 10
Severability ................................................. 10
Rules of Construction .......................................... 10
Authority .................................................... 10
Time Periods Defined .......................................... 10
Time of the Essence .......................... , ............... 10
Descriptive Headings .......................................... 10
Counterparts ................................................ 10
No Third Party Rights .......................................... 10
Assignment ................................................. 10
Incorporation of Exh b ts ........................................ 11
17, SIGNATURE AS OFFER
B -
C -
D
E
F
EXHIBITS
Site Plan of the Property
Legal Description of the Property
Deed Form
[Intentionally Omitted]
Surveyor's Cediflcate
Title Commitment
DUB LII'4, CA ii CTYCNTCT ;3
6.2 Title Commitment. Buyer has obtained a title comr:nitment effective July 25,
1997, issu~d under Order No. 86140522 by the TiIle Company (the "Title Commitment"), with
copies of all instruments referred to in Schedule B of the Title Commitment. A copy of the Title
Commitment is attached hereto as Exhibit F. Buyer hereby approves the condition of title to
the Property as disclosed by the Title Commitment. Closing shall not occur until the Title
Company has informed Buyer that it is ready, willing and able to issue to Buyer an Owner's
Policy of Title Insurance covering the Properly on the standard form prescribed by the
American Land Tittle Association, with extended coverage and such endorsements as Buyer
may reasonably request, in the amount of Seven Hundred Fifty Thousand Dollars
($750,000.00), subject to a "pending improvements" exception, and conforming in all material
respects to the following requirements: (a) Schedule B shall list only the Permitted Exceptions;
(b) any exception for taxes shall show only taxes for the current and subsequent tax years and
shall reflect that no installment of taxes which became due prior to Closing is delinquent; (c) no
exception shall be permitted for "visible and apparent easements" or words to that effect,
although reference may be made to any specific easement or use shown on a survey in the
possession of the Title Company; (d) no exception shall be permitted for "rights of padies in
possession"; (e) no UCC financing statement shall be shown on Schedule B; and (f) no
mortgage or deed of trust shall be shown on Schedule B other than a modgage or deed of trust,
if any, which is made by Buyer and recorded at Closing. The cost of the Title Commitment and
the cost of the Owner's Title Policy, including all title search fees, if any, shall be paid by Buyer.
6.3 Seller's Title Requirements. Seller shall comply with all reasonable
requirements applicable to Seller which are required by the Title Company as a condition to
issuance of the Title Policy; provided, however, that Seller shall have twenty (20) days from the
date of this Contract to review the "requirements" in the Title Commitment applicable to Seller
and to deliver in writing to Buyer any objections Seller may have to any such requirements.
Any requirement in the Title Commitment applicable to Seller to which Seller does not object
during the Title Review Period shall be deemed approved and an undertaking of Seller to
perform or satisfy at or before Closing.
6.4 Buyer's Remedies. If Seller objects to any requirements in the Title Commitment
applicable to Seller as provided in Section 6.3 above, or if within sixty (60) days from tile date
of this Contract the Title Company has not to agreed to delete Exception 1 from Schedule B -
Section 2 of the Title Commitment, then Buyer shall either (a) terminate this Contract and
receive a full refund of the Earnest Money, less Ten Dollars ($10.00) to be delivered to Seller
as consideration for this Contract and for Buyer's termination right hereunder, or (b) waive
Buyer's objections and accept such title as Seller is able to convey, in which case each uncured
objection and unsatisfied requirement of Seller shall be deemed an additional Permitted
Exception. Buyer's failure to notify Seller of its election within seven (7) days from (1) the date
of Buyer's receipt of notice of Seller's objection to any requirement in the Title Commitment as
provided in Section 6.3 above, or (2) the expiration of the sixty (60) day period set forth in this
Section 6.4, shall be deemed to constitute Buyer's election to terminate this Contract.
7. SURVEY.
7.1 Current Survey. Buyer shall cause its project engineer, a duly licensed public
surveyor, or a professional engineer, to prepare and deliver to Buyer and to the Title Company,
within sixty (60) days from the date of this Contract, a current land title and topographical
survey of the Property according to the specifications provided below and otherwise in form
acceptable to the Title Company for the purpose of deleting its standard exception pertaining
to matters revealed by an accurate survey of the Property (the "Survey"). If the Property does
not now constitute a separate, legally subdivided parcel referred to by plat, tract or parcel
number identified on a duly recorded map or plat, then in addition to showing the metes and
bounds the Survey shall include a narrative metes and bounds description of the Properly
cedified by the surveyor. The Survey shall: (i) be currently dated; (ii) be staked on the ground;
(iii) show the location on the Property of (a) all buildings, structures and other improvements
"as built," (b) natural monuments, (c) fences and evidences of abandoned fences, (d) lakes,
ponds, creeks, streams, rivers, ditches or other water courses, (e) water flood zones,
(0 easements, roads, alleys and rights-of-way, (g) electric, telephone, water, sewer and gas
facilities serving the Property and available to serve the Property, together wilh the size of such
water and sewer lines, and (h) all required building setback lines; (iv) correctly identify all public
DUBLIN, CA 2 CTYCNTCT.3 (B/'~197}
streets and roads which are adjacent and contiguous to the Property and the distance from the
Property to such streets and roads; (v) recite the exact number of square feet in the Property;
(vi) show the topographical profiles, contours and elevations of the Property; and (vii) contain
a certificate in substantially the same form as .Exhibit E attached hereto and, by this reference,
incorporated herein. If the Property is described by metes and bounds and the metes and
bounds description on the Survey differs from the Properly description on Exhibit B, the Deed
shall conform to the metes and bounds description on the Survey. All matters affecting the title
to the Property (other than monetary encumbrances, leases and use restrictions) which are
evidenced by a recorded document shall be further identified on the Survey by reference to the
document number and the book and page where each is recorded. The cost of the Survey
shall be paid by Buyer.
;'.2 Survey Review. Buyer shall have thirty (30) days after receipt to review the
Survey and to deliver in writing to Seller such objections, if any, as Buyer may have to anything
shown on the Survey ("Survey Review Period"). If Buyer delivers to Seller written objections
as provided herein, Seller shall diligently and in good faith attempt to cure the conditions giving
rise to Buyer's objections within thidy (30) days from its receipt thereof; provided, however, that
Seller shall not be required to incur any cost to do so. Seller and Buyer agree that the Survey
Review Period shall not commence until Buyer has received a Survey in compliance with
Section 7.1 above. Any matter shown on the Survey to which Buyer does not object in writing
during the Survey Review Period shall be deemed approved by Buyer.
7.3 Buyer's Remedies. If, within the earlier of thirty (30) days after the expiration of
the Survey Review Period or thirty (30) days after Seller's receipt of Buyer's written objections,
Seller has not cured all conditions to which Buyer objected during the Survey Reviev~ Period,
then Buyer shall either (a) as its sole remedy, terminate this Contract and receive a full refund
of its Earnest Money, less Ten Dollars ($10.00) to be delivered to Seller as consideration for
this Contract and for Buyer's termination rights during the Survey Review Period, in which case
neither pady shall have any further rights or obligations under this Contract, or (b) waive
Buyer's objections and proceed with this Contract notwithstanding the same.
8. MISCELLANEOUS REVIEW. Independent of the Survey Review Period, and
Development Review Period (as defined in Section 10 below), Buyer shall have the following
periods of time (the "Miscellaneous Review Periods") to obtain and review the following matters
related to the Property or the'development thereof.
8.1 Soils Investiqation. Within sixty (60) days from the date of execution of this
Contract, Buyer shall obtain a complete soil test report and investigation for the Property, which
shall include at least two (2) borings on the building site and one (1) boring in the parking lot
area, together with the recommendations of the testing laboratory or agency (the "Soils
Report"). The Soils Report shall be prepared by a duly licensed soils engineer. The cost of the
Soils Repod shall be paid by Buyer. Buyer shall I~ave thirty (30) days from its receipt of the
Soils Report to approve or disapprove the same. Seller hereby authorizes Buyer, Buyer's soils
engineer, and their respective agents and employees to enter upon the Property for the
purpose of conducting the soils tests and investigations.
8.2 Hazardous Substances.
8.2.1 phase I Environmental Report. Within sixty (60) days from the date
of this Contract, Buyer shall obtain, at its sole cost and expense, a so-called "Phase I"
Environmental Report (the "Phase I Report") for the Property. If the Phase I Report reveals the
presence of any hazardous or toxic substance or waste, as defined under federal and state
environmental laws, including, without limitation, petroleum and petroleum products or
asbestos-containing materials ("Hazardous Substance"), on, under or otherwise affecting the
Property, Buyer shall have the right to elect to either cause the required clean-up and/or
remediafion work to be completed before Closing or terminate this Contract. Buyer shall give
written notice of its election to Seller, along with a copy of the Phase I Report, within thirty (30)
days after Buyer's receipt of the Phase I Repod. If Buyer elects to cause the required clean-up
and/or remediation to be performed, Buyer shall provide Seller with a copy of the clean-up or
remediation plan before commencing the work and Seller shall permit Buyer and its contractors
and representative to enter upon the Property and perform the clean-up and/or remediation
DUBLIN, CA 3 C'FYCNTCT.3 (BI4/97)
work in accordance'with said plan. If this Contract is terminated pursuant to this Section 8.2,
upon such termination Buyer shall receive a full refund of the Earnest Money, less Ten Dollars
($10.00) to be delivered to Seller as consideration for this Contract, and neither party shall have
any further rights or obligations under this Contract. If the Phase I concludes that there is no
Hazardous Substance present and no potential for the presence of any Hazardous Substance
on, under, or otherwise affecting the Property then the condition for Buyer's approval of the
environmental condition of the Property shall be deemed satisfied.
8.2.2. Supplemental Report. If the Phase I Report reveals the potential for
the presence of any Hazardous Substance on, under, or otherwise affecting the Property and,
in the opinion of the firm providing the Phase I Report, the presence or absence of any
Hazardous Substance can be confirmed by conducting a further environmental investigation
which can be completed within a thirty (30) day period, then Buyer shall have the right, but not
the obligation, to cause such further investigation to be completed and a written report thereof
(the "Supplemental Report") delivered to Buyer and Seller. If the Supplemental Report
concludes that there is no Hazardous Substance present or potential for the presence of any
Hazardous Substance on, under or otherwise affecting the Property, then the condition for
Buyer's approval of the environmental condition of the Property shall be deemed satisfied. If
the Supplemental Report reveals the presence of any Hazardous Substance on, under or
otherwise affecting the Property, then the parties shall proceed as set forth in Section 8.2.1
above.
8.2.3 Underground Storage Tanks. For purposes of this Section 8.2,
Hazardous Substance shall be deemed to include any underground storage tanks ("ust's")
located beneath the surface of the Property. If the Phase 1 Report obtained by Buyer discloses
either that there are one or more ust's located beneath the surface or the Property or that there
may be..ust's located beneath the surface of the Property, the parties shall proceed as provided
in Sections 8.2.1 and 8.2.2 above with regard to disclosure of the presence or the potential for
the presence of any Hazardous Material; provided, however, regardless of whether the local
laws then in effect for the jurisdiction in which the Property is located expressly require removal
of the ust's, the remedial action to be taken under Section 8.2.1 shall be causing any and all
such ust's to be removed in accordance with all applicable federal, state and local laws, rules
and regulations, the clean-up and/or remediation of any soil and/or groundwater contamination
resulting from any release from such ust's either before or during removal, and the backfill and
compaction of the excavated- area.
8.3 Availability of Utilities. Within ninety (90) days from the date of this Contract,
Buyer shall determine whether utilities, including gas, water, electricity, telephone, sanitary
sewers, and drainage facilities, are available and accessible to the Property in sufficient
quantities for Buyer's intended use of the Property.
8.4 Variance/Conditional Use. Within sixty (60) days from the date of this Contract,
Buyer shall determine whether any variance or conditional use permit will be required for
Buyer's intended use of the Property. If a variance or conditional use permit is required, Buyer
shall make application therefor within the sixty (60) day period and thereafter have a
reasonable period of time, not exceeding sixty (60) days from the date of application therefor,
to obtain any required variance or conditional use permit.
8.5 Restoration of Property. Subject to the provisions of Section 8.2.1, after any
entry upon the Property pursuant to this Section 8 by Buyer, Buyer's engineers, or its or their
respective agenls or employees, Buyer shall cause the surface of the Property to be restored
to a condition substantially identical to that which existed prior to such entry and shall indemnify
Seller against, defend, and save Seller harmless from all loss, damage or liability which Seller
may suffer by reason of any such entry by Buyer prior to Closing.
8.6 Disapproval by Buyer. If (a) Buyer disapproves the Soils Report, (b) the
necessary utilities are either not available in sufficient quantities or not accessible, or (c) Buyer
is unable to obtain any required variance or conditional use permit within sixty (60) days from
the date of application therefor, then Buyer may terminate this Contract by delivering written
notice of termination to Seller prior to the expiration of the applicable Miscellaneous Review
Period, specifying those conditions wl~ich have not been satisfied, whereupon this Contract
DUBLIN. CA 4
CTYCNTCT 31~4/g7)
shall automatically terminate, the Earnest Money shall be immediately refunded to Buyer, less
Ten Dollars ($10.00) to be delivered to Seller as consideration for this Contract and for Buyer's
termination rights during the Miscellaneous Review Period, and neither party shall have any
further rights or obligations under this Contract. If Buyer fails to deliver such notice of
termination prior to expiration of the applicable Miscellaneous Review Period, then the condition
covered by the applicable Miscellaneous Review Period shall be deemed to have been either
satisfied or waived by Buyer.
9. PROPERTY. ASSEMBLAGE. Seller acknowledges that the Property has too small an
area to enable Buyer to develop and operate a restaurant thereon as contemplated by Buyer,
Buyer anticipates entering into a contract to purchase the adjoining parcel identified as "Lot 2B'
on Exhibit A, and unless Buyer is able to purchase Lot 2B more or less simultaneously with its
purchase of the Property, the Properly will be of little or no value to Buyer. Therefore, Seller
expressly agrees that unless, within ninety (90) days from the date of this Contract, Buyer is
able to enter into a purchase contract with B.J. Dublin Commercial pursuant to which B.J.
Dublin Commercial agrees to convey title to Lot 2B (consisting of approximately 22,770 square
feet) to Buyer for a purchase price of $193,500.00, Buyer shall have the right to terminate this
Contract by delivering written notice of termination to Seller within ten (10) days after expiration
of the ninety (90) day period. Upon Seller's receipt of such notice this Contract shall terminate,
the Earnest Money shall be refunded in full to Buyer, less Ten Dollars ($10.00) to be paid to
Seller as consideration for this Contract, and neither party shall have any further rights or
obligations under this Contract.
10. DEVELOPMENT REVIEW. Within (a) sixty (60) days from the date of this Contract, or
(b) thirty (30) days from the date Buyer obtains any required variance or conditional use permit
pursuant to Section 8.4 above, whichever shall last occur, Buyer shall submit plans and
specifications for construction of the improvements on the Property, together with an application
for a building permit, to the appropriate governmental authorities. The improvements shall
initially consist of a single-level International House of Pancakes® restaurant having
approximately three thousand nine hundred seventy (3,970) square feet of floor area,
conforming generally to such restaurants operating throughout the United States, but reflecting
Buyer's current design plans, modified as required to conform to the configuration of the
Properly, including a parking lot, a free-standing sign and, at the option of Buyer, an adjacent
patio area Notwithstanding the foregoing, if the governmental review/approval process requires
design review/approval prior to submission of plans and specifications, Buyer shall be deemed
to have complied with the foregoing provisions if it submits schematic plans for the proposed
improvements in a form reasonably sufficient to obtain design review, provided that it shall
submit plans and specifications for the proposed improvements, together with its application
for a building permit, to the appropriate governmental authorities within thirty (30) days aflei-
obtaining design review/approval. Buyer shall have a reasonable period, not exceeding sixty
(60) days, after the date of its submission of the plans and specifications and application for a
building permit (the "Development Review Period") to (i) obtain all necessary approvals and
permits from all applicable governmental authorities having jurisdiction therefor, authorizing and
permitting the development, operation and maintenance of an International House of
Pancakes® restaurant on the Property, and (ii) determine in good faith whether Buyer can
construct the restaurant building and related improvements for a Total Development Cost (as
defined below) of Nine Hundred Eight-eight Thousand Dollars ($988,000.00) or less. Buyer
agrees to promptly notify Seller in writing upon its receipt of the approvals and building permits.
If Buyer is unable to obtain the approvals and permits or satisfy itself that it can obtain the same
within the Development Review Pedod or, if Buyer determines in good faith that it cannot
construct the restaurant building and related improvements for a Total Development Cost of
Nine Hundred Eight-eight Thousand Dollars ($988,000.00) or less, then Buyer may terminate
this Contract by delivering written notice of termination to Seller prior to the expiration of the
Development Review Period, which notice shall specify the reasons for the termination in
accordance with the foregoing. Notwithstanding the foregoing, if Buyer has been unable to
obtain the approvals and permits or satisfy itself that it can obtain the same within the
Development Review Period, but believes that given an additional period of time not exceeding
fifteen (15) days, it can obtain the approvals and permits, or satisfy itself that it can, then Buyer
shall have the right to extend the Development Review Period for an additional fifteen (15) days
by providing Seller and Escrow Agent, respectively, with written notice of its election to so
extend on or before the expiration of the Development Review Period, in which case the
DtJBLIN, CA 5
O~YCNTCT 3
Development Review Period shall be extended for an additional fifteen (15) days. Upon
delivery by Buyer of written notice of termination prior to expiration of the Development Review
Period, as the same may be extended, this Contract shall automatically terminate, and the
Earnest Money shall be immediately refunded to Buyer, less Ten Dollars ($10.00) to be
delivered to Seller as consideration for this Contract and for Buyer's termination rights during
the Development Review Period, and neither party shall have any further rights or obligations
under this Contract. If Buyer fails to deliver written notice of termination prior to expiration of
the Development Review Period, as the same may be extended, then the contingencies set
forth in this Section 10 shall be deemed to have been satisfied or waived. The term "Total
Development Cost" shall mean the total costs and expenses, direct and indirect, which are
likely to be incurred by Buyer in the investigation, planning and development of an International
House of Pancakes® restaurant and related improvements on the Property, including, without
limitation, all fees, costs and expenses associated with the design and construction of the
restaurant building, all related systems and components thereof, such as the HVAC system,
all off-site and on-site improvements (excluding any that are the responsibility of Seller), all
architectural and engineering work, the Survey, Soils Report, Phase I Report, and all plan
check, building permit and exaction fees, excluding only the acquisition cost of the Property and
the cost of Buyer's trade fixtures, building signs, and the free-standing sign. Notwithstanding
anything to the contrary set forth in this Section 10, Buyer understands that when issued by the
City of Dublin, the building'permits will include conditions to Buyer's right to commence
construction on the Property requiring that (x) Buyer have obtained fee title to both the Property
and Lot 2B, and (y) a lot line merger making the Property and Lot 2B a single parcel have been
applied for by Buyer and approved by the City. Buyer agrees that the issuance of the building
permit with such conditions attached thereto shall not be a basis for termination of this Contract.
11. REPRESENTATIONS AND WARRANTIES. In addition to any other representations
and warranties set forth in this Contract, Seller hereby represents and warrants to Buyer, its
successors and assigns, as follows:
11.1 Ownership and Authority. Seller is the owner of the Property, has full power
and authority to sell and convey title to the Property to Buyer, and all actions required by law,
ordinance, regulation, or any city governing instrument, to authorize and enable Seller to duly
convey title to the Property to Buyer have been taken.
11.2 Parties in Possession. There are no parties in possession of any podion of the
Property as lessees, tenants at will, trespassers or otherwise, except as may be permitted or
authorized by any of the instruments referenced in the Permitted Exceptions.
11.3 Condemnation. There is no pending or threatened condemnation or similar
proceeding affecting all or any part of the Property.
11.4 Environmental. Seller has previously caused to prepared by Terrasearch, Inc.,
as Project No. E6298.002, a Preliminary Environmental Site Assessment Phase II - Testing for
Hydrocarbons at the Southeast Corner of Site on Dublin Boulevard Extension, dated
September 4, 1991, and a report of Sampling and Chemical Testing, Soil Contamination, Dublin
Boulevard Extension Road of Former Dodge Dealership, Dublin, California, dated June 29,
1992, prepared by BSK & Associates as Project No. P92092 (jointly, the "City Reports"), copies
of which have been deliver to Buyer. Seller makes no representations regarding the
environmental condition of the Property except as set forth in the City Reports.
11.5 Floodplain. No podion of the Property has been designated by the U.S. Corps
of Engineers or Federal Emergency Management Agency, nor by the municipality in which the
Property is located, as being in a 100 year floodplain or other flood hazard area.
11.6 Utility District. Water and sewer services are provided to the Property by the
Dublin San Ramon Services District, a legal entity separate from the City of Dublin.
DUBLIN, CA 6 CTYCNTCT 3 (B/4FJ7)
11.7 Subdivision Compliance. The transfer o'f title to the Property and the creation
of the easements at Closing, as provided in Section 11 above, will not constitute a violation of
any applicable subdivision law or ordinance and, at Closing, the Property shall be a separate
and complete legal parcel. If required to validate the foregoing, Seller shall cause the Property
to be replatted, at its sole cost and expense, before Closing.
11.8 Remedies. If, at or before Closing, Buyer learns that any of the above
representations are incorrect, then Buyer, as its sole remedy, may terminate this Contract and
receive a full refund of the Earnest Money; provided, however, that with respect to the warranty
and representation in Section 11.7, Buyer may instead require that Seller cure the same.
11.9 Continuing Representations and Warranties. All statements set forth above,
to the extent not actually known by Buyer to be inaccurate as of the date of Closing, shall be
deemed continuing representations and warranties of Seller which shall survive Closing and
delivery of the Deed to Buyer for a period of one (1) year, but only as to facts as they existed
prior to and as of Closing.
12. CLOSING.
12.1 Place Time Date. Subject to the terms and conditions of this Contract, the
closing of this sale ("Closing") shall be held at the office of Escrow Agent, between the hours
of 9:00 a.m. and 1:00 p.m. (unless otherwise agreed by the parties), on the first business day
which is ten (10) days after the date on which all of the conditions set forth in Sections 6
through 10, inclusive, of this Contract have been satisfied, waived by Buyer, or otherwise
provided for, as set forth in the applicable Section, and the Title Company has informed Buyer
that it is ready, willing and able to issue an Owner's Policy of Title Insurance in conformance
with the Title Commitment, subject to any changes prescribed by this Contract.
12.2 Seller's Responsibilitie.~. At Closing, Seller shall deliver to Buyer, through
Escrow Agent, the following:
(A) A Deed in the same form as Exhibit C, duly executed and acknowledged,
and in recordable and insurable form;
(B) Reasonable evidence of Seller's capacity and authority to perform this
Contract and convey title to the Property to Buyer, including, without limitation, a resolution of
the City Council or other appropriate City body; and
(C) Any other documents reasonably requested by Escrow Agent to satisfy its
administrative requirements for closing this transaction.
12.3 Buyer's Responsibilities. At Closing, Buyer shall deliver to Seller, through
Escrow Agent, the following:
(A) The purchase price in cash or in the form of a cashier's or certified check,
or by federal funds wire transfer;
(B) Reasonable evidence of Buyer's capacity and authority to perform this
Contract; and
(C) Any other documents reasonably requested by Escrow Agent to satisfy its
administrative requirements for closing this transaction.
12.4 Prorations and Expenses. Real property taxes and assessments shall be
prorated at, and as of the date of, Closing. As provided in City of Dublin Ordinance 2.38.060,
Buyer shall pay all Closing costs associated with the subject transaction.
DUBLIN, CA 7
CTYCNTCT 3 (814~97)
13. DEFAULT.
13.1 Seller's Default. If Seller shall default in its obligations under this Contract, Buyer
may enforce specific performance of this Contract and recover any incidental damages as
Buyer's sole remedy.
13.2 Buyer's Default. BY INITIALING THIS SECTION 13.2, SELLER
AND BUYER AGREE THAT IF BUYER BREACHES THIS CONTRACT AFTER
FAILING TO TERMINATE THIS CONTRACT BY NOTICE TIMELY GIVEN AT THE
EXPIRATION OF ANY PERIOD CONTAINED HEREIN PERMITTING BUYER TO
TERMINATE, SELLER SHOULD BE ENTITLED TO COMPENSATION, BUT THAT IT WILL
BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO FIX THE ACTUAL DAMAGES
SUFFERED BY SELLER AS A RESULT OF SUCH BREACH. THEREFORE, THE PARTIES
AGREE TO LIQUIDATED DAMAGES IN ACCORDANCE WITH THIS SECTION 13.2 AND
AGREE THAT THE LIQUIDATED DAMAGES SET FORTH IN THIS SECTION 13.2 ARE
REASONABLE UNDER THE CIRCUMSTANCES EXISTING AT THE DATE OF THIS
CONTRACT. IF ESCROW FAILS TO CLOSE BECAUSE OF A BREACH BY BUYER,
SELLER SHALL BE ENTITLED TO RETAIN, AS LIQUIDATED DAMAGES, THE EARNEST
MONEY DESCRIBED IN SECTION 5 ABOVE. BOTH PARTIES AGREE THAT THE
LIQUIDATED DAMAGES SET FORTH IN THIS SECTION 13.2 SHALL BE IN LIEU OF ANY
OTHER MONETARY RELIEF TO WHICH SELLER MIGHT OTHERWISE BE ENTITLED BY
OPERATION OF LAW OR OTHERWISE, EXCEPT AS PROVIDED IN SECTION 13.3
BELOW.
13.3 Court Costs and Attorneys' Fees. In addition to the remedies specified above,
in any legal proceeding instituted by Seller or Buyer against the other under, or with regard to,
this Coatract or the subject transaction, the prevailing party shall be entitled to recover as part
of a judgment its costs, including reasonable attorneys' fees and costs, from the non-prevailing
party. This provision shall survive Closing and shall not be deemed to have merged with or into
the deed to be delivered at Closing.
13.4 Escrow Instructions. In order to reduce the administrative difficulties sometimes
encountered by escrow agents in determining the correct disposition of earnest money, in
connection with the Earnest Money described in this Contract, Seller and Buyer hereby
irrevocably instruct Escrow Agent as follows:
13.4.1 Return of Earnest Money Without Seller's Approval. If at any time
before the expiration of the Title Review Period, Survey Review Period, Miscellaneous Review
Periods, or Development Review Period, as the case may be, Buyer delivers to Escrow Agent
a written demand for return of the Earnest Money and a certification that (i) this Contract has
been terminated through no material default by Buyer, and (ii) Buyer has given Seller at least
seven (7) days' prior written notice of Buyer's intention to make said demand, then, unless
precluded by an order of a court asserting jurisdiction over the matter, Escrow Agent shall
immediately return the Earnest Money to Buyer, without the need for any approval by Seller
and despite any potential or actual objection by Seller, it being agreed that Escrow Agent may
conclusively rely upon the certification of Buyer and that Seller's sole remedy, if the certification
is incorrect, shall be against Buyer, and Escrow Agent shall have no liability therefor.
13.4.2 payment of Earnest Money Without Buyer's Approval. If,
subsequent to the date scheduled for Closing pursuant to Section 12 above, Seller delivers to
Escrow Agent a written demand to pay over to Seller the Earnest Money and a cedification that
(i) this Contract has been terminated because of a material default by Buyer, and (ii) Seller has
given Buyer at least seven (7) days' prior written notice of Buyer's default and of Seller's
intention to make said demand, then, unless precluded by an order of a court asserting
jurisdiction over the matter, Escrow Agent shall immediately deliver the Earnest Money to
Seller, without the need for any approval by Buyer and despite any potential or actual objection
by Buyer, it being agreed that Escrow Agent may conclusively rely upon the certification of
Seller, and that Buyer's sole remedy, if the certification is incorrect, shall be against Seller, and
Escrow Agent shall have no liability therefor.
DUBLIN, CA 8 C'[YCN?CT 3 1814/97)
13.4.3 .Disbursement of Earnest Money by Mutual Direction. In any event
other than those described above, Escrow Agent shall disburse the Earnest Money only as
provided in this Contract, or as may be subsequently, mutually directed by Seller and Buyer,
or as may be required by law.
13.5 .Agreement of Escrow Agent; General Instruction.,-.. This Contract shall
constitute instructions to Escrow Agent. By accepting the Earnest Money and opening an
escrow for this transaction, Escrow Agent shall be deemed to have acknowledged and agreed
to comply with the foregoing ihstructions; provided, however, Seller and Buyer agree that
Escrow Agent shall have the right, without incurring any liability to either party, to seek
injunctive or interpleader relief from a court of competent jurisdiction if Escrow Agent has a
bona fide concern as to an ambiguity in these instructions. The parties agree that Escrow
Agent may attach to this Contract its standard general escrow instructions and the parties
agree to be bound thereby to the extent such general escrow instructions are not contrary to
or in conflict with any provision of this Contract.
14. CASUALTY. The improvements now existing on the Property, if any, are irrelevant to
this transaction. Therefore, all risk of loss with regard to such improvements shall be with
Buyer if this transaction closes, and shall remain with Seller if this transaction does not close.
Seller agrees that the physical condition of the Property as of the date of Closing shall not be
materially different than the physical condition of the Property as of the date of this Contract.
15. BROKERAGE COMMISSIONS. Buyer has informed Seller that Deborah Karbo of CPS
Commercial Real Estate ("Agent") has assisted Buyer in this transaction and will be paid a
commission in an amount specified in a separate contract between Buyer and Agent. Each
party represents to the other that, except for Agent, it has not dealt with any real estate broker
or other person acting in a similar capacity who might be entitled to a commission or finder's
fee in this transaction; and each party hereby indemnifies the other and agrees to hold the other
harmless from any commission and/or finder's fee claims arising through actions of the
indemnifying party in contravention of the representations contained herein.
16. GENERAL PROVISIONS.
16.1 Date of Contract. The term "date of this Contract" or the "date of mutual
execution of this Contract".shall mean the later of the two dates on which this Contract is
signed by Seller and Buyer, as indicated by the dates accompanying their respective signatures
below; provided, however, that if either party fails to date its signature (or if having dated a
signature, fails to bring the date current upon any updated signature, initialing or similar
confirmation of any change to the form or content of the Contract), then the parties shall use
the best extrinsic evidence available to determine the date of final agreement by the parties
and, accordingly, the "date of this Contract" or the "date of mutual execution of this Contract."
16.2 .Notices. Any notice, demand, or other communication to be given or served
on either party shall be in writing, addressed to the party at the address set forth on page 1 of
this Contract, or such other address as the party may designate from time to time by notice,
and (a) deposited in the United States mail, registered or certified, return receipt requested,
postage prepaid, (b) delivered by an overnight private mail service Which provides delivery
confirmation such as, without limitation, Federal Express, Airborne or UPS, or (c) personally
delivered at such address. All communications delivered as set forth herein shall be deemed
received by the addressee on the delivery date or the delivery refusal date shown on the return
receipt or the delivery confirmation.
16.3 Integration; No Implied Warranties. This Contract contains the complete
agreement between the parties and cannot be varied except by the written agreement of the
parties. The padies agree that there are no oral agreements, understandings, representations
or warranties which are not expressly set forth herein. Without limiting the generality of the
foregoing, Buyer understands that Seller has made no implied representations or warranties
regarding the Property or its suitability for any particular use and that, except as is expressly
stated in this Contract, the Property is being conveyed in its "as is" condition.
DUBLIN, CA 9
CTYCNTCT 3
16.4 Survival. Any portion of this Contract which is (a) not fully performed at Closing,
or (b) expressly stated to survive Closing, shall survive Closing as a continuing agreement
between the parties, or an obligation of the applicable party, as the case may be.
16.5 Binding Effect. This Contract shall inure to the benefit of and bind the parties
hereto and their respective heirs, representatives, successors and assigns.
16.6 Place of Performance. The obligations of the parties hereto shall be performable
in Alameda County, California, and any and all payments under the terms of this Contract are
to be made in Alameda County, California.
16.7 Governing Law. This Contract shall be construed and interpreted in accordance
with the laws of the State of California.
16.8 Severability. If any term or provision of this Contract or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder
of this Contract, or the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be affected thereby, and the
term or provision shall be construed so as to give effect as nearly as possible to the original
intent of the parties. Each term and provision of this Contract shall be valid and enforceable
to the maximum extent permitted by law.
16.9 Rules of Construction. The parties acknowledge that each party and/or its
counsel have reviewed and revised this Contract and that the normal rule of construction to the
effect that any ambiguities in the Contract are to be resolved against the drafting party shall not
be employed in the interpretation of this Contract or any amendments or exhibits hereto.
'~16.10 Authority. Each person executing this Contract and each document delivered
at Closing on behalf of Seller and Buyer, respectively, warrants and represents that the
partnership, joint venture, corporation, trust, or other entity, as the ca.se may be, for whom he
or she is acting has duly authorized the transactions contemplated herein and the execution
and performance of this Contract by him or her and that, when so executed, this Contract shall
constitute a valid and binding obligation of the party on whose behalf it is so executed.
16.11 Time Periods Defined. If a date set forth herein for the performance of any
obligation, or defining the time within which performance must be completed or notification
given, falls upon a Saturday, Sunday or legal holiday under the laws of the State of California,
then such date shall be read and construed for all purposes herein to mean the next day which
is not a Saturday, Sunday, or legal holiday under the laws of the State of California.
16.12 Time of the Essence. Time is of the essence in this Contract and the
performance of each and every provision contained herein and in all exhibits hereto.
16.13 Descriptive .Headings. The headings of the sections, paragraphs, and
subparagraphs in this Contract are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
16.14 Counterparts. This Contract may be executed in any number of counterpads,
each of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
16.15 No Third Party Rights. The terms and provisions of this Contract shall not be
deemed to confer any rights upon, nor obligate any party hereto to, any person or entity other
than the parties hereto.
16.16 Assignment. Except as hereinafter provided, neither party shall have the right
to assign its rights and/or obligations under this Contract to any other person or entity without
the prior written consent of the other party, and in the event of such assignment with the
consent of the other party, the assigning party shall not be relieved of its obligations hereunder;
provided, however, Buyer shall have the right to assign its rights and interest under this
Contract or nominate another person or entity to perform its obligations under this Contract in
DUBLIN. CA 1 o CT¥CNTCT 3 (§;4/97)
conjunction with a sale/leaseback agreement whereby Buyer or its corporate affiliate will lease
the Property back on a long-term basis, i.e., twenty (20) years or longer.
16.17 Incorporation of Exhibits. All exhibits referred to in this Contract are hereby
incorporated herein as though set fodh in full in this Contract itself.
17. SIGNATURE AS OFFER. The signing of this Contract by the first party to do so shall
constitute an offer to purchase or sell the Property. Unless this Contract is accepted by the
other party and a fully executed copy is delivered to the first party within seven (7) days from
the date of signa{ure of this Contract by the first party, the offer of this Contract shall be
automatically revoked and terminated, and the Earnest Money, if any, shall be returned to
Buyer. If the second party either (a) signs and delivers this Contract after the deadline
specified in the immediately preceding sentence, or (b) changes one or more terms prior to
signing and delivering this Contract to the first party, then in either or both of such events, the
act of the second party shall constitute a rejection of the first party's offer and a substitute offer
by the second party to purchase or sell the Property. Such substitute offer shall be subject to
acceptance within the time period set forth above for the original offer, unless the number of
days is specifically amended in the substitute offer, and each successive substitute offer, if any,
shall likewise be subject to the same time limit for acceptance. Notwithstanding the foregoing
time limits, the parties further agree that if all of the following events occur:
(A) Both Seller and Buyer sign this Contract;
(B) This Contract is delivered to Escrow Agent and both Seller and Buyer
receive written notice of the delivery;
(C) Buyer deposits the Earnest Money with Escrow Agent and Seller receives
writted' notice thereof;
(D) The Title Company delivers the Title Commitment to Buyer and to Seller;
and
(E) At least fifteen (15) days pass after the last to occur of the above-listed
events without either Seller or Buyer delivering to the other party or to Escrow Agent a written
notice that the Contract is nqt in effect;
then the time limits set forth above shall automatically be deemed ex[ended so as to cause this
Contract to be in full force and effect.
IN WITNESS WHEREOF, this Contract has been duly executed by the 9adios hereto
as of the day and year last below written.
SELLER:
THE CITY OF DUBLIN,
a Municipal Corporation
By:.
Its:
Date of Signature:
[SIGNATURES CONTINUE ON NEXT PAGE.]
DUBLIN, CA 11 CTYCNTCT.3 18/4/97)
BUYER:
IHOP REALTY CORP.,
a Delaware corporation
By:
Richard K. Herzer
Its: President
Date of Signature:
ESCROW AGENT HEREBY ACKNOWLEDGES RECEIPT OF THE EARNEST MONEY
DEPOSIT OF $10,000,00 AND A COPY OF THE CONTRACT, AND AGREES TO ACT IN
ACCORDANCE WITH THE TERMS OF THE CONTRACT.
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By:.
Its:
Date;
[ACKNOWLEDGMENT OF SELLER]
State df California )
County of )
On , before me, , a Notary
Public, personally appeared , personally known to me to be
the person whose name is subscribed to the within instrument and acknowledged to me that
he executed the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon. behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
[ACKNOWLEDGMENT OF BUYER]
State of California )
County of Los Angeles )
On ., before me, , a Notary
Public, personally appeared RICHARD K. HERZER, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
DUBLIN. CA 12 CTYCNTCT.3
CITY' O~ ~U~U~
PROPOSED RESTAURANT SITE
EXHIBIT B
.LEGAL DESCRIPTION OF THE PROPERTY
(City of Dublin)'
Beginning at the Southeasterly terminus of the course designated "North 32 degrees 48
minutes 00 seconds West, 53.02 feet" In the certain Deed to the $[ate of California,
recorded October I, 1964, Reel 1327, Image 66, Alameda County Records; thence from
said point of beginning along the Northerly line of the parcel described In said Deed North
32 degrees 48 minutes 00 seconds West, 53.02 feet; thence along a tangent curve to the left
with a radius of 128.00 feet; through an angle of 54 degrees l0 minutes 16 seconds an are
length of 121.02 feet to the Easterly line of the parcel of land described In the Deed to Phil
E. Howard, recorded March 22, 1973, Reel 3370, Image 10, Alameda County Records;
thence along said Easterly line, North 00 degrees 31 minutes 00 seconds East to the North
line of the parcel of land described in the Deed to George Burehko, .et ux, recorded May 2,
1955, Book 7646, Page 438, Alameda County Records; thence along said North line, 89
degrees 30 minutes East 131.31 feet, more or less, to the Westerly line of the parcel of
land described In the deed to Gertrude B. Gimpher, recorded in Book 2872 of Deeds, Page
351, Alameda County Records; thence South 0 degrees 30 minutes West along the last
named line, 325.95 feet, more or less, to the point of beginning.
Being portions of Lots "C" and "D", map of the property of the Estate of Elizabeth A.
Dougherty, deceased, filed May 11, 1891, Book 8 of Maps, Page 75, Alameda County
Records.
Being also Parcel A of Parcel Map 1043 filed September 28, 1973 ia Book 80 of Parcel
Maps, Page 29, Alameda County Records.
Excepting therefrom those portions described in a Final Judgment Action in Eminent
Domain (Case No. V-003788-6) recorded March 17, 1993, Series No. 93-84405 of
Alameda County Records.
Assessor's Parcel Number: 941-0550-010-18
DUBLIN. CA
EXHIBIT C
RECORDING REQUES"TED BY AND
AFl'ER RECORDING RETURN TO:
Carol Lavender
Law Office of Carol Lavender
4533 La Granada Way
La Ca~lada, California 91011-2017
QUITCLAIM DEED
THE UNDERSIGNED GRANTOR DECLARES
Documentary Transfer Tax is $
~ Unincorporated area; City of
Parcel No.
__ Computed on full value of interest or property conveyed, or
__ Computed on full value less value of liens or encumbrances remaining at time of sale, and
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF
DUBLIN, a Municipal Corporation, hereby REMISES, RELEASES AND FOREVER QUITCLAIMS to IHOP
REALTY CORP., a Delaware corporation, the following described real property in the City of Dublin, County
of Alameda, State of California:
See Exhibit ,~ attached hereto and by this reference incorporated herein.
Dated 1997.
State of California )
County of Alameda ) ss.
THE CITY OF DUBLIN(
a Municipal corpor~)~\ ~..'~
By:
Its: _.Mayor
On , before me, a Notary Public,
personally appeared. , personally known to me to be the person whose name is sul~scribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the j~ersor~ or the entity upon behalf of which the person acted, executed the
instrumenL
WITNESS my han~? ~(~seal.
Signature
(Sea[)
MAIL TAX STATEMENTS TO: IHOP CORP., 525 N. BRAND BLVD., GLENDALE, CA 91203-1903
DUBLIN. CA
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
.
State of
County of
On before me, ,
Date Name and Title of Officer (e.g., "Jane Doe, Notary Public")
personally appeared Name(s) of Signer(s) '
.~ personally known to me - OR - ~ proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(les), and that by
his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Pubiic
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reat"tachment of this form to another document.
{ Description of Attached Document
~ Title or Type of Document:
~ Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer(s)
i Signer's Name: Signer's Name:
_~ Individual [] Individual
_~ Corporate Officer [] Corporate Officer
Title(s): Title(s):
~ ~ Partner--_~ Limited [] General Fi Partner--~ Limited ~ General
¢ ~ Attorney-in-Fact [] Attorney-in-Fact
~ Trustee [] Trustee
~ ~ Guardian or Conservator [] Guardian or Conservator
! ~Other: Top of thumb here [] Other: TOp Of thumb here
Signer Is Representing: Signer Representing:
Is
1995 Nat~ona~ Nota~ Association · 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder: Call Toll-Free 1-800-876~6827
EXHIBIT D
[THIS PAGE INTENTIONALLY LEFT BLANK.]
DUBLIN,
K2F-,XD.CTY
EXHIBIT E
SURVEYOR'S CERTIFICATE
The undersigned hereby certifies to IHOP Realty Corp., a Delaware corporation, and
Chicago Title Insurance Company, as of the date below, that this survey (1) was made on
the ground as per the legal description shown hereon; (2) correctly shows (a) the boundary
lines and dimensions and area of the land indicated hereon, (b) the location of all buildings,
structures and other improvements and visible items on the subject property, (c) the location
and dimensions of all alleys, streets, roads, rights-of-way, easements and other matters
of record affecting the subject property according to the legal description of such easements
and other matters (with instrument, volume and page number indicated), (d) the location
of all electric, telephone, water, sewer and gas facilities serving the subject property,
together with the names and phone numbers of such utility providers and the size of such
water and sewer lines, and (e) the topographical profiles, contours and elevations of the
subject property; (3) except as shown, there are no visible (i) easements, rights-of-way,
party walls or conflicts, (ii) protrusions on adjoining premises, streets or improvements, or
(iii) encroachments on the subject property by buildings, structures, other improvements
or rights-of-way situated in adjoining premises; (4) the distance fr. om the nearest inter-
section, street and road is as shown hereon; (5) except as shown, the subject property does
not serve any adjoining property for drainage, ingress and egress or any other purpose;
(6) all required building setback lines on the subject property are located as shown hereon;'
(7) the subject property has access to and from a public roadway; (8) the subject property
is not located in a 100 year flood plain or in a flood or mudslide hazard area designated by
the F'ederal Emergency Management Agency, as defined by the U.S. Department of
Housing and Urban Development under the Flood Disaster Protection Act of 1973, as
amended; and (9) the subject property contains total square feet
of land within the exterior boundaries of the Property.
Executed on the day of ., 199__.
Registered Public Surveyor
Registration No.
[SEAL]
DUBLIN, CA EXE
EXHIBIT F
TITLE COMMITMENT
(Consisting of 5 pages)
Comrnonu~alth Concord T/0 T0 181~04081
P. 02
SCHEDULE A
87140522
Effective date: July 25, 1997 al 7:00 A.M.
Policy or Polici~ to be issued: Amount
(a) ALTA Leasehold Owners ' $600,000.00
Proposed Insured:
~HOP Propertic~ Inc.
The e~tate or imerest in the land dascrib~ or referred to in the Commitment and covered
herein is a Fee and is at the effective date hereof ve~ted in:
The City of Dublin, a Municipal Corporation
The land referred to in this Commitment is situated in the County Of Alameda, Sate of
Callfomia, and is described as follows:
See Exhibit "A" attached h~reto and made a part hereof.
Countersigned:
· ~A~cer-or(~7'f'~OAgent
American Land Title Alsocialion Coa.mimnt
DUBLIN. CA
K3EXF.CTY(aWdgT}
08-(~6-19~?? 02::I~PM FPJ3M Commonwealth Concord T/O TO
~B1879040B1 P.03
' 87140522
(Ci~ of Dublin)
EXHIBIT
Beginning at the Southeasterly terminus of the course designated "North 3~ degrees 48
.minutes 00 seconds West, 53.02 feet" in the certain Deed to the State of California,
recorded October 1, 1964, Reel 1327, Image 66, Alameda County Records; thence from
said point of beginning along the Northerly line of the pamel descn'bed in said Deed North
32 degrees 49 minutes iX) seconds West, 53.02 feet; thence along a tangent curve to the left
with a radius of 12B.00 feet; through an angle of 54 degrees 10 minutes 16 seconds an arc
length of 121.02 feet to the Easterly line of the parcel of land descn'bed in the Deed to Phll
E. Howard, recorded March 22, 1973, Reel 3370, Image 10, Alameda County Records;
thence along said F_msmrly line, North 00 degrees 31 minums 00 seconds East to the North
line of the parcel of land described in the Deed to George Burchko, et ux, recorded May .2,
1955, Book 7646, Page'438, Alam~a County Records; theme along said North line, 89
degrees 30 minutes East 131.31 feet, more or less, to the Westerly linc of the pamel of
land described in the Deed to Oera'ude B. Oimphcr, recorded in Book 2872 of Deeds, Page
351, Alameda County Records; thence South 0 degrees 30 minutes West along ti~ last"
named line, 325.95 feet, more or less, to the point of beginning.
Being portions of Lots 'C" and 'D', map of the property of the Estate of EUzabeth A.
Dougherty, deceased, filed May 11, 1891, Book 8 of Maps, Page 75, Alameda County
Records.
Being also Pax'eel A of Parcel Map 1043 filed September 28, 1973 in Book 80 of Parcel
Maps, Page 29, Alameda County Records.
Exeapting therefrom those portions described in a Final Judgment Action in Eminent
Domain (Case No. V-O03788-6) recorded March 17, 1993, Series No. 93-84406 of
Alalm~a County R~ords.
Assessor's Pamel Number: 941-0550-010-! 8
Amcrir. nn Land TiO- A.~och~on Commiun~nt
B8-9~6-1997 ~:3~Pi9 FRO~9 Commonwea]th Concord T~93 TO
87140522 ' ':- >'.'
Page
3
" SC DVrE B- s cnoN
The following are the requirements to be complied with: '
1. Irmtnunent creating the estate or interest to be insured must be executed and filed for
record.
Pay the full consideration to, or for the account of, the grantors or mortgagors.
Pay all taxes, charge.s, assessments, levied and assessed against subject premises, which are
due and payable.
Satisfactory evidcnc~ should be had that improvements and/or repairs or alterations thereto
are compl=ted; that contractor, sub-contractors, labor and materialmen are all paid; and have
released of record all liens or notice of.intent to perfect a lien for labor or material.
Amcdcan L~nd T~flc A~oclntion Commitment
BB-BF=-1997 (~:;;34PN IRON Commonme~l~,h Concord T/O TO :lB187984081 P.05
87140522
Page 4
SCI~DULE B - SECTION 2
Seh~ule B of the policy or poli~ies io'~e tssued will contain exceptions to the following mauers
unl~s the sam6 are disposed of to the satisfaction of the Company:
A. G-en~ral and special taxes, including any assessments collected with taxes, to be
levied for the fiscal year. 19~7-.1.998, which are a lien not yet payable.
'fl. Any City or County tax~s which may be levied against the herein described land by
reason of the fact that said land was not included on the Tax Assessor's Roll for the fiscal
year 1996 to 1997, and_subsequent years.
C. The lien of supplemental taxes, it' any, assessed pursuant to the provisions of Section
75, et seq. of th~ 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 document
Granted to:
R~.orded:
Affects:
' Kanaris and Maria Vaagelatos and Nikolaos Startitsa,s
Access
April 27, 1994, Series No. 94-164501, Official Records
A portion of said premises
2. Defects, lien~, encumbrances, adverse claims or other roarers, if any, created, first
appearing ia the public. ~cords or attaching subsequent to the effective date hereof but prior
to the date the proposed Ia~ured acquires for value of record the ~tate or inlerest or
mortgage thereon covered by ~ Commitment.
NOTE: AN OWNER'S POLIL'q~ ISSUF_~ IN CONNECTION ~ TI~s COMMITMENT
WILL CONTAIN TI~ FOLLOWING PRE-PRINTED gXL~PTION$:
1. Right~ or claima' Of pavfle~ other than the In~ured in actual poss~slon of any or all of the
property. · ·
2. Unrecorded casemems, diaer~anci~ or conflicts in boundary iin~, shortage in area
eacroachm,.nts which an a¢~u'ate and complete survey would disclose.
3. Unfiled mw. hani¢'s or materialmen's llena.
Arn~i~a ~ Tide Assoc~ion Commitmc~
.!
~771
1B1879B40B1 P. 1~5
D
· .. '.95G/I
TOTClL P. ~B