HomeMy WebLinkAboutHousing Authority - Purchase and Sale Agreement - 12-15-2022ASSIGNMENT AND DELEGATION OF PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT AND DELEGATION OF PURCHASE AND SALE
AGREEMENT (this Assignment) is made and entered into this 15th day of December,
2022 (Effective Date), by and between the HOUSING AUTHORITY OF THE CITY OF
FRESNO, a California public body corporate and politic (Assignor), and the CITY OF
FRESNO, a California municipal corporation (Assignee). All capitalized terms used in this
Assignment shall have the same meanings as set forth in the Purchase Agreement
(defined below).
RECITALS:
A. Assignor, as Buyer, and JOSE VILLA and EDWIN LOZANO, collectively, as
sellers (Seller), are parties to that certain Real Estate Purchase Agreement and Joint
Escrow Instructions, dated July 20, 2022 (Purchase Agreement) for approximately 0.28
acres located in the City of Fresno, County of Fresno, State of California, identified as
Assessor's Parcel Number 449-342-02 (Property). The Purchase Agreement is attached
hereto as Exhibit "A" and is incorporated herein by this reference.
B. Assignor's mission is, in part, to support families and individuals by providing
access to quality affordable housing within the City and County of Fresno.
C. The Purchase Agreement permits Assignor, as Buyer, to assign Buyer's
rights, title, obligations, and interest under the Purchase Agreement to a third party with
Seller's consent. Seller's Acknowledgment of Assignment is attached hereto as Exhibit
"C" and incorporated by reference.
D. Pursuant to the Purchase Agreement, Assignor has deposited $2,000 into
escrow to apply to the Purchase Price for the Property (the Deposit).
E. Assignor now desires to assign and delegate to Assignee, and Assignee
desires such assignment and delegation of, all of its rights, interests, and obligations
under the Purchase Agreement for the Property pursuant to the terms and subject to the
conditions set forth in this Assignment.
F. On November 15, 2022, Assignor's Board of Commissioners authorized the
assignment and delegation of the Purchase Agreement to Assignee.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereby agree as follows:
1. Assignment and Delegation. Pursuant to the Purchase Agreement, Assignor
may assign its interest in the Property without Seller's consent. Effective as of the
Effective Date, Assignor hereby assigns all of its rights, interests, and obligations under
the Purchase Agreement to Assignee, and delegates to Assignee all of its duties,
responsibilities, and obligations under the Purchase Agreement relating to the Property.
Any reference to "Buyer" in the Purchase Agreement shall apply to Assignee.
2. Acceptance of Assignment and Delegation. Effective as of the Effective
Date, Assignee hereby accepts Assignor's assignment of all of Assignor's rights, interest,
and obligations under the Purchase Agreement and hereby accepts Assignor's delegation
of all of Assignor's duties, responsibilities, and obligations under the Purchase
Agreement. On and after the Effective Date, Assignee shall perform all of the duties,
responsibilities, and obligations of Assignor under the Purchase Agreement except that
Assignee's City Council must agree to accept the Property prior to the Close of Escrow,
as defined in the Purchase Agreement. Assignee covenants that it (1) approves, ratifies
and confirms all terms, covenants, conditions and provisions of this Assignment, (2) will
perform at Assignee's own expense all duties and obligation imposed on Assignee by the
Assignment, and (3) expressly assumes and agrees to keep, perform, and fulfill all the
terms, covenants, conditions, duties, and obligations, required to be kept, performed, and
fulfilled by Buyer under the Purchase Agreement on and after the Effective Date.
3. Deposit: Reimbursement. Upon the Closing of Escrow, as defined in the
Purchase Agreement, the Assignee shall prepare and execute escrow instructions directing
the Escrow Holder to remit the following funds to Assignor: (1) the full amount of the Deposit
of $2,000; and (2) as valuable consideration for this Assignment, the sum of One Dollar
($1.00); and (3) reimbursement of due diligence expenses in the amount of $5,600.00 as
more specifically described in Exhibit "B" attached hereto and incorporated herein by this
reference. In the event that Assignor does not receive such funds either prior to the Close
of Escrow through electronic deposit or cashier's check as specified in this Section 3, this
Assignment shall be void and the obligations contained herein shall be of no force and effect.
4. Indemnification. Assignee agrees to indemnify and hold Assignor harmless
from and against any and all costs, liabilities, damages, expenses, or claims, including
without limitation reasonable attorney fees, arising from or in connection with the
Purchase Agreement after the Effective Date of this Assignment.
5. Further Assurances. Each party shall, at its own cost and expense, execute
and deliver any such further documents and instruments and shall take such other actions
as may be reasonably necessary to carry out this Assignment.
6. Governing Law: This Assignment shall be governed by, and construed in
accordance with, the laws of the State of California (without regard to the conflicts of laws
provisions thereof).
7. Counterpart Execution. This Assignment may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original instrument,
all of which together shall constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date set forth above.
CITY OF FRESNO
A California municipal corporation
By:
Geodgernne A. White,
Cityager
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By Q Lvm vaAw
Tracy N_ Pkvanian Date
Supervis Deputy City Attorney
A?
ATTEST:
TODD STERMER, CMC
City Clerk
By:bg -
I" F
ate
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Attachments:
HOUSING AUTHORITY OF THE CITY
OF FRESNO, a California public body
corporate and politic
By: �
Name: r' r'yTG
Title:
(If corporation of LLC., Board Chair,
Pres. or Vice Pres.)
Name:
Title:
(If corporation of LLC., CFO, Treasurer,
Secretary of Assistant Secretary)
1. Exhibit A — Purchase Agreement
2. Exhibit B — Reimbursement Expenses
3. Exhibit C — Seller's Acknowledgement of Assignment
Exhibit A
REAL ESTATE PURCHASE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
0 This Real Estate Purchase Agreement and Joint Escrow Instructions (" ee nt') is made and
�v 0 entered into as of IMy ....�022 ("Effective Date") by and between HOUSING AUTHORITY OF THE
CITY OF FRESNO, a California body corporate and politic ("Buyer") and JOSE VILLA & EDWIN
LOZANO ("Seller" or "Sellers"). Buyer and Seller shall individually be referred to in this Agreement as a
"Party" and collectively as "the Parties."
RECITALS
A. Seller owns that certain real property identified as APN 449-342-02 located near N. Warren
Ave. and N. Parkview Dr. in the City of Fresno, CA 93728 consisting of approximately 0.28 acres
collectively as more particularly described on Exhibit A and depicted on Exhibit B attached hereto
("Seller's Property"); and
B. Buyer is a housing authority public body corporate and politic organized under Housing
Authority Law (Health & Safety.. Code §§ 34200, et seq.) and authorized to enter into contracts to provide for
the construction and development of affordable housing; and
C. Seller desires to sell and transfer to Buyer, and Buyer desires to purchase from Seller,
Seller's Property, all upon the terms and subject to the conditions set forth in this Agreement.
AGREEMENT
In consideration of the premises, mutual covenants, agreements, representations and warranties
contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows.
ARTICLE 1
PURCHASE AND SALE
1.1 Purchase and Sale of Real Property. At the Closing (as defined below), Seller hereby agrees
to sell, transfer, convey, assign and deliver to Buyer, and Buyer agrees to purchase, acquire and assume from
Seller, title in fee simple to all the following, hereinafter collectively called the "Real Property":
(a) Land. All of the land composed of Seller's Property ("Land").
(b) Property Rights. All right, title, and interest, if any, of Seller, in and to any land
lying in the bed of any dedicated street, road, or access way, opened or proposed, in front of, a side of or
adjoining the Land and any easements, rights -of -way, or licenses of any kind relating to the Land (collectively,
the "Property Rights").
(c) Appurtenances. All right, title, and interest of Seller, reversionary or otherwise, in
and to all easements in or upon the Land, mineral rights, water rights, water stock, and all other rights,
privileges, entitlements and appurtenances belonging or in anywise pertaining to the ownership, management
or operation of the Land, if any (collective, the "Appurtenances').
(d) Permits. All right, title, and interest, if any, of Seller in and to any all transferable
permits, certificates, approvals, authorizations, variances, and consents (collectively, the "Permits") issued or
granted by governmental or quasi -governmental bodies, officers, or authorities with respect to the ownership
of the Real Property.
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(e) Plans. Seller's interest in all plans, specifications, drawings, reports, studies and other
similar matters, relating to the Land and in possession or control of Seller or Seller's agents or affiliates to the
extent assignable (collectively, the "Plans").
1.2 Condition of Real Property. Buyer acknowledges and agrees that no representations or
warranties have been made by Seller, or by any person, firm or agent acting or purporting to act on behalf
of Seller, as to (i) the condition or repair of the Real Property or any portion thereof, (ii) the value, expense
of operation or income potential of the Real Property, or (iii) any other fact or condition which has or might
affect the Real Property or the condition, repair, value, expense of operation or income potential thereof.
At Closing, Buyer agrees to accept the Real Property in its "AS -IS" "WHERE IS" condition, with all faults,
known or unknown, patent or latent. Seller and its affiliates shall have no liability for the condition of the
Real Property from and after the Closing. The covenants contained in this Section shall survive Closing.
Buyer acknowledges that it is in the business of owning and operating residential properties and that it has had
the opportunity to examine the Real Property to its satisfaction in light of the foregoing disclaimers.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price.
(a) Purchase Price and Financing. Subject to adjustments set forth below, the purchase
price ("Purchase Price") for the Real Property shall be Sixty -Nine Thousand and 00/100 Dollars ($69,000.00).
(b) Earnest Money Deposit. Within five (5) business days following the execution
of this Agreement, Buyer shall deposit with Placer Title Company, Attn: Darryl Evans ("Ti[ie Company" ),
in escrow ("Escrow"), a deposit on the Purchase Price in the amount of Two Thousand and 00/100 Dollars
($2,000.00) ("Earnest Money Dengsit")_ Title Company shall deposit such Earnest Money Deposit into an
interest bearing money market account maintained at a federally insured bank. The Earnest Money Deposit
shall be fully refundable to Buyer up to and until 5:00 pm on the one hundred and fiftieth (150") day after
opening Escrow (the "Earnest Deposit Refund Period"). On the day after the Earnest Deposit Refund
Period, the Earnest Money Deposit shall become non-refundable, forfeitable and released by Title Company
to Seller, but shall be applied to the Purchase Price if there is a Closing. In the event the transaction
contemplated by this Agreement does not close, the Earnest Money Deposit shall be handled in accordance
with Article X or as otherwise set forth in this Agreement.
2.2 Prorations and Adjustments. The Purchase Price shall be subject to adjustment at Closing
for payments due under any leases, real and personal property taxes and assessments (excluding sums not yet
due and payable) utilities, and other similar items. Buyer shall receive a credit from Seller for all unpaid real
and personal property taxes and assessments for the fiscal tax year of the purchase prorated through the Closing
Date. The prorations shall be calculated based on the actual amounts of for that calendar year real and personal
property taxes and assessments. If such amounts are not available, the prorations shall be calculated based on
the tax amounts for the prior year, subject to re -proration when the actual amounts become available. Rents
and other charges paid or due under any leases and any other expense for the month of Closing will be prorated
between Seller and Buyer. Buyer shall pay to Seller at the Closing a prorated amount, as of the Closing Date,
of all prepaid real and personal property taxes and assessments for the fiscal year of the purchase. Seller will
cooperate with Buyer in having all utilities switched to Buyer's name and account as of the Closing Date.
2.3 Closing Costs. Except as expressly set forth herein, all costs associated with the transfer of
title and the associated Escrow shall be in accordance with the customary practices in Fresno County. At
Closing, Seller shall obtain from the Title Company a Standard Owner's Title Policy in the amount of the
Purchase Price insuring fee simple title to the Property in Buyer (the "CLTA Polic ') and paid for by the
Buyer. Buyer shall pay the documentary county and city transfer taxes. Buyer may elect to cause the Title
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Company to issue an ALTA Owner's Policy of Title Insurance (Form 1992) (the "ALTA Policy") and if
Buyer so elects in writing, Buyer shall timely provide the Title Company with an insurable ALTA Survey of
the Property (and as is reasonably acceptable to the Title Company), and Buyer shall be responsible for the
difference in the premiums between the CLTA Policy and the ALTA Policy. At Closing, Buyer shall pay any
and all costs and incremental premiums or other charges related to the ALTA Policy (including all
endorsements thereto), the recording fees, and the Title Company's fees. Buyer shall pay the escrow fee.
Each Party shall be solely responsible for its own legal fees and costs.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Representations. Seller represents and warrants to Buyer as follows:
(a) Seller has the full power and authority to enter into and perform this Agreement and
to consummate the transactions contemplated by this Agreement in accordance with the terms of this
Agreement.
(b) Seller has taken all necessary actions to authorize and approve the execution, delivery,
and performance of this Agreement and the transactions contemplated by this Agreement. This Agreement
constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its
terms.
(c) This Agreement has been duly executed and delivered by Seller and constitutes a
legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with the terms hereof,
except as enforceability hereof may be limited by bankruptcy, insolvency, or reorganization laws or applicable
principles of equity.
(d) Seller has not (i) made a general assignment for the benefit of creditors, (ii) filed
any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors,
(iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets,
(iv) suffered the attachment or other judicial seizure of all or substantially all of its assets, or (v) admitted
in writing its inability to pay its debts as they become due.
(e) To the best of Seller's knowledge, Seller has received no written notice of any
violation of any applicable statutes, regulations, rules or ordinances with respect to the Real Property, including,
without limitation, those related to environmental, zoning or other land -use regulations.
(f) To the best of Seller's knowledge, there are no actions or proceedings pending
against or involving Seller before any governmental authority which in any way adversely affect or may
adversely affect Seller or Seller's ability to perform under this Agreement.
(g) Seller has not granted to any third party any lease, license, or use with respect to
the Real Property.
(h) The Provisions of this Article III and all representations and warranties contained
therein shall be true as of the Closing Date and shall survive the Closing of the transaction contemplated
herein and the conveyance of the Real Property to Buyer. Seller shall make additional disclosures as
necessary to ensure the truthfulness, completeness, and accuracy of any representation and warranty. "To
the best of Seller's knowledge" means the knowledge of Seller, who has no personal liability related thereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Representations. Buyer represents and warrants to Seller as follows:
(a) Buyer is duly organized public corporation, validly existing and in good standing
under the laws of the State of California with full power and authority to own its assets and to conduct its
business as now conducted or proposed to be conducted.
(b) Subject to Article V1I below, Buyer has taken all necessary actions to authorize and
approve the execution, delivery and performance of this Agreement and the transactions contemplated by this
Agreement. This Agreement constitutes a legal, valid and binding obligation of Buyer enforceable against
Buyer in accordance with its terms.
(c) This Agreement has been duly executed and delivered by Buyer and constitutes a
legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with the terns hereof,
except as enforceability hereof may be limited by bankruptcy, insolvency, or reorganization laws or applicable
principles of equity.
(d) Buyer has made such investigation as it has deemed appropriate in connection with
the decision to enter into this Agreement. Upon the expiration of the Due Diligence Period provided in section
5.3, Buyer will have had the opportunity to inspect the Real Property, visit with Seller and meet with Seller's
representatives to discuss the Real Property. Buyer has relied and will rely on the results of such investigations
and the advice of its own advisors and has not relied upon any statement or representation made by Seller or
any director, officer, employee, agent, attorney, accountant, or affiliate thereof, other than the covenants,
representations, and warranties of Seller set forth in this Agreement. Buyer acknowledges that Seller makes
no representations or warranties, express or implied, of any kind concerning the past, present or future
profitability or viability of the Real Property.
(e) The provisions of this Article IV and all representations and warranties contained
therein shall be true as of the Closing Date and shall survive the closing of the transaction contemplated
herein and the conveyance of the Real Property to Buyer. Buyer shall make additional disclosures as
necessary to ensure the truthfulness, completeness, and accuracy of any representation and warranty.
ARTICLE V
COVENANTS OF SELLER AND BUYER
Seller and Buyer each covenant with the other as follows:
5.1 The Closing. The closing of the transactions contemplated by this Agreement (the "Closes")
will take place in Escrow at the offices of the Title Company within thirty (30) days after the removal or waiver
of the contingencies at the Due Diligence Deadline under section 5.3 below (the "Closing Date '), or such other
time and place as Seller and Buyer may agree in writing. Title to and possession of the Real Property shall be
transferred and delivered no later than 11:59 p.m. on the Closing Date. The obligations of the Parties to close
or effect the transactions contemplated by this Agreement will be subject to satisfaction, unless duly waived,
of the applicable conditions set forth in this Agreement, and, subject to the Parties' termination rights expressly
set forth herein, if any said condition is not satisfied or waived, the Closing Date may be extended until
satisfaction of such condition upon mutual agreement of the Parties hereto.
5.2 Escrow Instructions. The Parties intend this Agreement, when submitted to the Title
Company, to constitute joint escrow instructions by the Parties, who agree to execute further or subordinate
escrow instructions that are not inconsistent with this Agreement as reasonably requested by Title Company,
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as well as any other documents reasonably required to complete the transaction set forth herein. Such
instruction shall not vary or modify this Agreement.
5.3 Due Diligence Review.
(a) Diligence Materials. From the Effective Date of this Agreement through and
including the date that is one hundred and fifty (150) days thereafter (the `'Due Dili ence Deadline") or the date
of termination of this Agreement, if earlier, Seller will afford to the officers, attorneys, accountants and other
representatives of Buyer reasonable access during normal business hours to the following books and records
of Seller relating to the Real Property (collectively, "Seller's Documents"): environmental reports, land use
applications and approvals, entitlement documents, and title reports in each case to the extent related to the
Real Property and in possession of Seller. Buyer will have the option of either accepting the Seller's Documents
or terminating this Agreement on or before the Due Diligence Deadline. Seller shall provide Buyer with
Seller's Documents within fifteen (15) business days of the Effective Date of this Agreement.
(b) Title Commitments. From the Effective Date through and including the date that is
one hundred and fifty (150) days thereafter (the "Contingency deadline"), Buyer may procure title insurance
commitments from the Title Company concerning the Real Property (the "Commitments"). Buyer will, on or
before the Contingency Deadline, notify Seller in writing of the specific matters to which Buyer objects (the
"Contingencies"). If Seller cannot or elects not to correct all of the Contingencies within ten (10) days ("Cure
Deadline") of the foregoing notification, Buyer will have the option of either accepting the title as it then is or
terminating this Agreement within five (5) days of the Cure Deadline, in which event the Earnest Money
Deposit shall be returned to Buyer without any further liability to any Party.
(c) Inspection. From the Effective Date of this Agreement up to and including the Due
Diligence Deadline, Buyer shall have the right to inspect the Real Property (the "In ns� ections"). Seller shall
coordinate all Inspections and, unless otherwise expressly agreed by Seller, all Inspections shall be performed
in the presence of Seller. Buyer and its agents, engineers, surveyors, appraisers, auditors and other
representatives shall have the right, upon two (2) business days' notice to Seller, to enter upon the Real Property
to perform the Inspections, which include but will not be limited to inspecting, examining, surveying, obtaining
engineering inspections, performing a "Phase I" and "Phase II" environmental inspection, appraising, and
otherwise doing that which, in the opinion of Buyer, is reasonably necessary to determine the condition of the
Real Property and to determine the suitability of the Real Property for the uses intended by Buyer; provided,
however, that Buyer shall use reasonable efforts to ensure that such activities by or on behalf of Buyer do not
damage the Real Property. In the event that Buyer wants to carry out any invasive work, Buyer must first
provide Seller with the proposal and plans for the work for Seller's approval prior to conducting such work.
Any agent or contractor for such invasive work shall add Seller to their commercial general liability policy as
an additional insured in an amount not less than One Million and 00/100 Dollars ($1,000,000.00) in coverage
with the applicable certificate of insurance to Seller. Buyer shall permit Seller to have a representative present
during all inspections conducted at the Real Property by or on behalf of Buyer. Buyer shall indemnify, defend
and hold Seller harmless from and against any and all claims, obligations, liens, penalties and liabilities as a
result of injury to persons or damage to property resulting from Buyer and/or Buyer's consultants entering onto
the Real Property, provided, however, Buyer's indemnity shall not apply to the extent such liability arises in
connection with the negligence or willful misconduct of Seller or to the extent that liability arises in connection
with a pre-existing condition discovered on the Property, environmental or otherwise.
(i) Hazardous Substances. The Closing of this transaction is contingent
upon the satisfaction or waiver by Buyer of a Hazardous Substance Conditions report. Buyer shall
give written approval following the receipt of a Hazardous Substance Conditions report concerning
the Property and relevant adjoining properties. Such approval or waiver must be given within one
hundred and fifty (150) days of the Effective Date. Such report will be obtained at Buyer's direction
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and expense. An unacceptable Hazardous Substance Conditions report will provide Buyer with a
basis for termination of this Agreement. A "Hazardous Substance" for purposes of this Agreement
shall mean without limitation: (i) those substances included within the definitions of "hazardous
substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," or
"pollutant or contaminant" in CERCLA, RCRA, TSCA, MAT, or under any other environmental
law; (ii) those substances listed in the United States Department of Transportation (DOT) Table
[49 CFR 172.101 ], or by the Environmental Protection Agency (EPA), or any successor agency, as
hazardous substances [40 CFR Part 302]; (iii) other substances, materials, and wastes that are or
become regulated or classified as hazardous or toxic under federal, state, or local laws or
regulations; and (iv) any material, waste, or substance that is: (a) a petroleum or refined petroleum
product, (b) asbestos, (c) polychlorinated biphenyl, (d) designated as a hazardous substance
pursuant to 33 U.S.C.A. § 1321 or listed pursuant to 33 U.S.C.A. § 1317, (e) a flammable explosive,
or (f) a radioactive material.
(ii) Development Approvals. If the Real Property must be re -entitled,
rezoned, replatted, its permitted use changed or similarly redesignated or have building permits
issued ("Development Approvals") then Seller authorizes Buyer to prepare and submit to any
governmental agency having jurisdiction over the Real Property any necessary applications for
development needing Development Approvals. Buyer shall pay all costs of Development
Approvals, and Seller will reasonably cooperate (at no cost to Seller) in that effort.
(iii) Termination Based on Inspection. If Buyer shall determine that the Real
Property is not suitable for its intended purposes' or is not satisfied with the Real Property for any
reason whatsoever (an "Ins tion Contingency"), then Purchaser may terminate this Agreement at
any time prior to the expiration of the Due Diligence Deadline by delivering written notice of
termination to Seller and Title Company, and (i) this Agreement shall immediately become null and
void for all purposes and, except as otherwise expressly provided in this Agreement, neither Party
hereto shall have any further rights or obligations hereunder, (ii) the Earnest Money Deposit excluding
any released amount shall be forthwith returned by the Title Company to Buyer. Notwithstanding any
provision of this Agreement to the contrary, the provisions of this Section 5.3 shall survive Closing or
earlier termination of this Agreement.
(d) Passive Removal of Due Diligence Contingency. If Buyer does not provide written
notice to Seller as described in Section 5.3(a) above before the Due Diligence Deadline, Buyer will be deemed
to have accepted the documents and condition and value of the Real Property and the Earnest Money Deposit
shall become non-refundable.
(e) Passive Removal of Title Contingency. If Buyer does not provide written notice of
the Contingencies to Seller as described in Section 5.3(b) above before the Contingency Deadline, Buyer will
be deemed to have accepted the condition of the title for the Real Property and the Earnest Money Deposit shall
become non-refundable.
(f) Passive Removal of Inspection Contingency. If Buyer does not provide written
notice of an Inspection Contingency as described in Section 5.4(c) above before the Due Diligence Deadline,
Buyer will be deemed to have accepted the condition of the Real Property and the Earnest Money Deposit shall
become nonrefundable.
5.4 Risk of Loss. The risk of any loss or damage to the Real Property prior to the Closing will
remain upon the Seller. In the event any property is damaged, destroyed, or condemned prior to the Closing
Date, Buyer will have the option of terminating this Agreement on or before the Closing Date, in which event
the Earnest Money Deposit shall be returned to Buyer without any further liability to either Party. If Buyer
does not terminate this Agreement, the Seller will assign to Buyer any proceeds of insurance (including
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rental interruption and business interruption insurance) awards and the Purchase Price will be reduced by
the amount of the Seller's deductible, the amount of insurance proceeds retained by the Seller. in the event
of a condemnation, the Seller will assign the Buyer the condemnation award.
5.5 Miscellaneous Agreements. Subject to terms and conditions herein provided, each Party
shall use its commercially reasonable best efforts to take or cause to be taken, all action and to do or cause to
be done, all things necessary, appropriate or desirable under applicable laws and regulations to consummate
and make effective the transactions contemplated by this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
SELLER AND BUYER
The respective obligations of each Party to effect the transactions contemplated by this Agreement
shall be subject to the fulfillment or waiver at or prior to the Closing Date of the following conditions set forth
below:
6.1 Litigation. Neither Seller nor Buyer shall be subject to any order, decree, or injunction of a
court or agency of competent jurisdiction that enjoins or prohibits the consummation of the transactions
contemplated by this Agreement.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer to effect the transactions contemplated by this Agreement shall be subject
to fulfillment or waiver at or prior to the Closing Date of the following conditions set forth below:
7.1 Performance of Obligations. Seller shall have performed in all material respects all
obligations required to be performedby them under this Agreement on or prior to the Closing Date.
7.2 Documents. Buyer shall have received the documents specified in Section 9.1 of this
Agreement.
7.3 Representations. All representations and warranties of Seller in this Agreement shall be true
and correct in all material respects on and as of the Closing Date.
7.4 Release of Liens. Upon payment of the Purchase Price, any lienholder shall have released all
liens they may have on the Real Property.
7.5 Board Approvals. Within one hundred eighty (180) days from the Effective Date, Buyer's
board of directors shall have approved by resolution the transactions contemplated herein. If the foregoing
written approvals are not granted by the Closing Date, Buyer shall have the right to terminate this Agreement,
but the same shall not affect in any way the non-refundability of any Earnest Money Deposit made and
disbursed to Seller herein.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to effect the transactions contemplated by this Agreement shall be subject
to the fulfillment or waiver at or prior to the Closing Date of the following conditions set forth below.
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8.1 Performance of Obligations. Buyer shall have performed in all material respects all
obligations required to be performed by it under this Agreement on or prior to the Closing Date, including the
deposit with Title Company of the Purchase Price at least two (2) business days prior to the Closing.
8.2 Documents. Seller shall have received the documents specified in Section 9.2 of this
Agreement.
8.3 Representations. All representations and warranties of Buyer in this Agreement shall be true
and correct in all material respects on and as of the Closing Date.
ARTICLE IX
DOCUMENTS TO BE DELIVERED AT CLOSING
9.1 By Seller. At Closing, Seller shall deliver to Buyer the following documents duly executed
by the Seller:
(a) Grant Deed. Grant deed conveying ownership of the Real Property to Buyer in form
acceptable to Buyer.
(b) Certificate. A certificate of Seller respecting the non -foreign status of Seller.
(c) Other Instruments of Transfer. Such other instruments of assignment or transfer
as shall be reasonably requested by Buyer to confirm and vest in Buyer ownership of all of the Real Property
and other documents and instruments as required by the terms and conditions of this Agreement.
(d) Other Documents. Such other documents as shall be reasonably requested by Buyer
and its counsel or required to be deiivered pursuant to this Agreement.
9.2 By Buyer. At Closing, Buyer shall deliver to Seller the following documents duly executed
by Buyer:
(a) Board Approval. A resolution signed by the Secretary of Buyer's board of directors
approving the transactions contemplated herein.
(b) Other Documents. Such other documents as shall be reasonably requested by Seller,
the Title Company, or as otherwise required to be delivered pursuant to this Agreement.
ARTICLE X
TERMINATION
10.1 Events of Termination. In addition to the other termination rights set forth in this Agreement,
this Agreement may be terminated, without liability on the part of the terminating party to the other parties, at
any time before the Closing Date: (i) by mutual consent of Buyer and Seller; (ii) by Buyer if any of the
conditions precedent found in Articles VI, V11 and VIII of this Agreement shall have become incapable of
fulfillment by the Closing Date through no fault of Buyer and provided Buyer has proceeded with
reasonable diligence and has not waived the same; (iii) by Seller if any of the conditions precedent found in
Articles VT Vll, and VIII of this AgreemcElt shall have become incapable of fulfillment by the Closing Date
through no fault of Seller and have not been waived in writing by Seller; (iv) by Buyer if there is a breach of
or failure by Seller to perform in any material respect any of the representations, warranties, commitments,
covenants or conditions under this Agreement, which breach or failure is not cured after 72-hour written notice
thereof is given to Seller and prior to the Closing Date; (v) by Seller if there is a breach of or failure by Buyer
to perform in any material respect any of the representations, warranties, commitments, covenants or conditions
2994150v1 / 18621.0003
under this Agreement, which breach or failure is not cured after 72-hour written notice thereof is given to the
Buyer and prior to the Closing Date; (vi) by Buyer if it does not receive Board of Directors approvals as
described in paragraph 7.6; or (vii) by Buyer as a result of an Inspection Contingency pursuant to paragraph
5.3(c)(2). Notwithstanding any provision of this Agreement, unless the termination is a result of Seller's
material breach causing this Agreement not to close, any non-refundable Earnest Money Deposit as specified
in this Agreement shall remain non-refundable to Buyer. Further, any termination of this Agreement shall not
affect Buyer's indemnity, defense, and hold harmless of Seller obligations provided for in Section 5.3(c).
10.2 Survival After Termination. If this Agreement is terminated and the transactions
contemplated hereby are abandoned pursuant to Section 10.1, then this Agreement shall become null and
void and of no effect, except for the provisions of 5.3(c), 10.1, 10.2, 11.2, 11.5, 11.6, 11.7, 11.8, 11.14,
11.17, 11.18, 11.19, 11.21 and 11.22 of this Agreement and as may be otherwise provided herein, which shall
survive the termination of this Agreement; provided, however, that such termination shall not affect the right
of any Party (i) to bring an action against another Party for a breach occurring prior to the termination or
for a wrongful termination, (ii) to bring an action based on a misrepresentation or breach of warranty under
this Agreement, or (iii) to be indemnified under Artic[e XI with respect to any Damages (as defined below)
attributable to any such breach or misrepresentation.
ARTICLE XI
MISCELLANEOUS
11.1. Time is of the Essence. Time is of the essence of all provisions of this Agreement.
11.2 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the
Parties and their respective successors and permitted assigns.
11.3 Exhibits. All of the Exhibits attached hereto, as well as the Recitals are incorporated
herein.
11.4 Counterparts and Electronic Signature. This Agreement may be executed in any number
of counterparts each of which shall be an original, and such counterparts shall together constitute one and the
same instrument. For purposes of this Agreement, a document (or signature page thereto) signed by hand or
electronically and transmitted by facsimile or as a .PDF attachment to e-mail is to be treated as an original
document, the signature of any party or electronic signature thereon, for purposes hereof, is to be considered as
an original signature, and the document transmitted is to be considered to have the same binding effect as an
original signature on an original document.
11.5 Indemnification. Seller shall indemnify, defend and hold Buyer harmless from and against
any claims, demands, liens, or judgments associated with the payment of any cancellation or termination fee
related to the Williamson Act Contract. This indemnification obligation in Section 11.5 shall survive Closing.
11.6 Governing Law and Consent. This Agreement shall be construed in accordance with the
laws of the State of California without regard to any applicable conflicts of law. This Agreement was negotiated
and entered into in Fresno County, California. The Parties each hereby consents to personal jurisdiction and
venue in the California Superior Court, County of Fresno, or the United States District Court for the Eastern
District of California, Fresno Division for any action brought by any Party arising out of the breach or
threatened breach of this Agreement.
11.7 Expenses. Except as otherwise herein provided, each of the Parties shall pay its respective
costs and expenses incurred or to be incurred by it in connection with the negotiations respecting this
Agreement and the transactions contemplated by this Agreement, including without limitation, preparation of
2994150v1 / 18621.0003
documents, legal and accounting fees, and obtaining any necessary approvals and the consummation of the
other transactions contemplated by this Agreement.
11.8 Assignment. Neither Party shall assign, transfer, or subcontract this Agreement, nor their
rights or duties under this Agreement, without the prior express, written consent of the other Party, which shall
not be unreasonably withheld or delayed. Notwithstanding any provision in this Agreement, the Parties agree
and consent to Buyer's assignment to a subsidiary or related party the rights to acquire the Real Property without
the prior consent of the Seller.
11.9 Entire Agreement. This Agreement comprises the entire agreement among the Parties with
respect to the transactions contemplated by this Agreement and supersedes all other prior agreements,
understandings and letters related to this Agreement. Any and all prior agreements are hereby revoked and
cancelled and superseded by this Agreement.
11.10 Notices. Any notices, requests, or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by e-mail with electronic confirmation of receipt, hand or
overnight commercial courier, or mailed by United States certified mail, return receipt requested, postage
prepaid and addressed to each Party at its address as set forth below. Any such notices, requests or other
communications shall be considered received on the date that is two (2) business days after mailing, on the date
of receipt if hand -delivered or sent by overnight commercial courier or on the day e-mailed if the electronic
confirmation of receipt is time -stamped before 4:00 p.m. Pacific Standard Time or the day after if the time
stamp is at 4:00 p.m. or later Pacific Standard Time. Rejection of or other refusal to accept delivery, or inability
to deliver because of change of address of which timely notice was not given, shall be deemed to be receipt of
the notice, request, or other communication. By giving at least five (5) days prior to written notice thereof to
the other Parties, a Party hereto may from time to time and at any time change its notice address hereunder:
If to Seller, to: Jose Villa & Edwin Lozano
1650 Gibson Ave
Clovis, CA 93611
Attn:
Tel:
E-Mail:
If to Buyer, to: Housing Authority of the City of Fresno
1331 Fulton Mall
Fresno, CA 93721
Attn: Michael Duarte
Tel: (559) 513-5848
E-Mail: MDuarte@fresnohousing.org
Courtesy Copy to: Baker Manock & Jensen, PC
5260 N. Palm Avenue, Suite 421
Fresno, CA 93704
Attn: Kenneth J. Price, Esq.
Tel: (559) 432-5400
E-mail: kprice@bakermanock.com
11.11 Amendment. This Agreement may not be amended except by an instrument in writing signed
by each of the Parties.
10
2994150v1/19621.0003
11.12 Waiver. Any Party may, by written notice to the other Party, (i) waive any inaccuracies in
the representations or warranties of such other Party contained in this Agreement or in any document delivered
pursuant to this Agreement, (ii) waive compliance with any of the conditions and covenants of such other Party
contained in this Agreement or (iii) waive or modify performance of any of the obligations of such other Party
under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this
Agreement shall be deemed to constitute a waiver by the Party taking such action of compliance with any of
the representations, warranties, covenants, conditions or agreements contained in the Agreement. The waiver
by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.
11.13 Construction. Each Party acknowledges and agrees that it has read and understands each and
every provision of this Agreement, the Schedules and the Exhibits hereto and has considered all relevant
business and tax aspects related thereto. The Parties hereto further acknowledge and agree that each Party has
had the opportunity to consult with and obtain legal advice and counseling from an attorney in relation to each
and every provision of this Agreement and the Exhibits hereto, and each Party acknowledges and agrees for
itself it has either availed itself of that opportunity or has knowingly and willfully declined such representation.
Therefore, the language used in this Agreement shall be deemed to be the language chosen by the Parties hereto
to express their mutual intent, and no rule of strict construction shall be applied against either Party.
11.14 Severability. The invalidity or unenforceability of any provision of this Agreement, whether
in whole or in part, shall not in any way affect the validity and/or enforceability of any other provision of this
Agreement. Any invalid or unenforceable provisions shall be deemed severable to the extent of any such
invalidity or unenforceability.
11.15 Gender. Whenever any word is used in the Agreement in one gender, it shall also be
construed as being used in the other genders, and singular usage shall include the plural and vice versa, all
as the context shall require.
11.16 Captions. Captions and paragraph headings used herein are for convenience only and shall
not be deemed relevant in construing this Agreement.
11.17 Broker's Fees. Buyer and Seller represent and warrant that they have dealt with the
following broker in connection with this sale, Joshua Mettee. Buyer is solely responsible for all brokerage
fees and commissions totaling four percent (4%) of the Purchase Price.
11.18 Attorneys' Fees and Expenses. If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in
connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled
to recover reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to
any other relief to which it may be entitled.
11.19 No Third Party Beneficiaries. Except as otherwise expressly set forth herein, Seller and
Buyer do not intend, and this Agreement shall not be construed, to create a third -party beneficiary status or
interest in, nor give any third -party beneficiary rights or remedies to, any other person or entity not a Party to
this Agreement.
11.20 Drafts Not An Offer to Enter Into A Legally Binding Contract. The Parties hereto agree
that the submission of a draft of this Agreement by one Party to another is not intended by either Party to be
an offer to enter into a legally binding contract with respect to the purchase and sale of the Real Property. The
Parties shall be legally bound with respect to the purchase and sale of the Real Property pursuant to the terms
of this Agreement only if and when the Parties have been able to negotiate all of the terns and provisions of
this Agreement in a manner acceptable to each of the Parties in their respective sole discretion, including
11
2994150v1 / 18621.0003
without limitation, all of the exhibits hereto, and each of Seller and Buyer have fully executed and delivered
(or caused the delivery) to each other a counterpart of this Agreement, including without limitation, all exhibits
hereto.
11.21 Confidentiality. Each Party shall maintain as confidential any non-public, confidential
and -proprietary information (collectively, "Confidential Information") provided by one Party to the other
regarding the matters contained herein or with respect to the other Party or the Real Property. Each Party
hereto and its partners, officers, directors, employees, agents and representatives (collectively, "Represent-
atives") will not disclose, use, or otherwise appropriate the Confidential Information in any way detrimental
to the other Party; provided however, that any Confidential Information may be disclosed as required by
law and to Representatives who need to know such information for the purpose of evaluating the transaction
contemplated herein to the extent not otherwise compelled by law. Seller acknowledges that Buyer is a
California public agency and must comply the California Public Records Act and other transparency laws.
IN WITNESS WHEREOF, Seller and Buyer have caused this Agreement to be executed by their
respective duly authorized representatives as of the day and year first above written.
"SELLERS"
Jose Villa
By:
Q. Aa 0 07/20/2022
Name: Jose Villa
Edwin Lozano
By:
QWjVl �02aM O 07/20/2022
Name: Edwin Lozano
013743-000000-02849262-2
2994150v1 / 18621.0003
"BUYER"
HOUSING AUTHORITY OF THE CITY OF
FRESNO, a California body corporate and politic
TronL>eo cien Lr k Vz a.na,
Name: Tyrone Roderick Williams
Title: Chief Executive Officer
12
EXHIBIT A
The land described herein is situated in the State of California, County of Fresno, City of
Fresno, described as
follows:
Lot 34 of Roeding Park Gardens, in the City of Fresno, County of Fresno, State of
California, according to the map
recorded in Book 13 Pages 37 and 38 of Plats, Fresno County Records.
APN: 449-342-02
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DocuSign Envelope ID: 9BE92D60-BB33-4548-A538-B15D46D01820
Exhibit C
Seller Acknowledgement of Assignment of Real Estate Purchase Agreement and Joint Escrow
Instructions
The undersigned, JOSE VILLA and EDWIN LOZANO ("Seller"), hereby acknowledges
and consents to the assignment by HOUSING AUTHORITY OF THE CITY OF FRESNO
("Assignor") to CITY OF FRESNO ("Assignee"), of all of Assignor's right, title and interest in
and to that certain Real Estate Purchase Agreement and Joint Escrow Instructions ("Purchase
Agreement") dated and effective on July 20`h, 2022. Seller expressly acknowledges and consents
to the Assignment of said Purchase Agreement per Section 11.8 of the Purchase Agreement.
"Seller"
DoeuSignto by:
By:
Date: 11/25/2022
ose i a
By: 63acu54gwd by:
W ( A co-z O vb Date: 11/25/2022
w>n aano