Unit:______________
Buyer:______________
Date:______________
Purchase and Sale Agreement, Earnest Money Receipt
and Escrow Instructions
(The Casitas at Terranea Resort)
(The Villas at Terranea Resort)
Obtain the Property Report or its equivalent, required by Federal and State law, and read it before signing
anything. No Federal or State agency has judged the merits or value, if any, of the Property.
40913270.32
Purchase and Sale Agreement, Earnest Money Receipt
and Escrow Instructions
(The Villas at Terranea Resort)
(The Casitas at Terranea Resort)
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES AND SHOULD BE READ
THOROUGHLY PRIOR TO SIGNING. IF YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS OR
OBLIGATIONS UNDER THIS DOCUMENT, YOU MAY WISH TO CONSULT AN ATTORNEY.
This Purchase and Sale Agreement, Earnest Money Receipt and Escrow Instructions (the “Agreement”) is entered into
by and between the parties identified in Paragraph 1, below, and with regard to the Property described in Paragraph 2,
below, which Property is part of a common interest development (“Project”), within a development commonly known
as Terranea Resort (“Resort”).
1.
Parties to this Agreement.
Buyer(s):
__________________________________________________
Buyer(s) Address:
__________________________________________________
__________________________________________________
Buyer(s) Tel. No(s):
__________________________________________________
Buyer(s) Fax No(s):
__________________________________________________
Buyers(s) Email:
__________________________________________________
Buyer(s) Vesting Information (name in which Buyer intends to take title)*:
__ A Single Man
__ A Widower
__ As Community Property
__ A Single Woman
__ As Joint Tenants
__ Husband and Wife
__ As Community Property with Right of Survivorship
__ Trust (specify name): ___________________________________________________
__ Tenants in common (specify undivided interest of each buyer party):
________________________________________________________________________
_______________________________________________________________________.
__ Other (specify): _______________________________________________________
*Note: The manner of taking title may have significant legal and tax consequences.
Buyer should consult with a professional regarding such consequences. Unless
Buyer otherwise designates in further instructions to Escrow Holder, the title to the
Property shall be vested as stated above.
Seller:
Long Point Development, LLC, a Delaware limited liability company
Seller(s) Address:
100 Terranea Way, Rancho Palos Verdes, CA 92075
Seller(s) Tel. No(s):
310/802-7472
Seller(s) Fax No(s):
310/802-7450
Seller(s) Website:
www.terranea.com
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INITIALS:
Buyer:
Buyer:
Seller:
40913270.32
2.
Description of the Property. Seller shall sell to Buyer and Buyer shall buy from Seller the real property referred to as
______________________________________, as more particularly described on Exhibit A attached hereto (the “Property”) subject to
any and all covenants, conditions, easements, restrictions, reservations, encumbrances, dedications and rights of way of record. Buyer shall
also receive a membership in the Association (“Association”) identified in the Declaration, if and when formed. The Property is furnished.
The furnishings consist of the items listed on Exhibit A-1 attached hereto, the price of which is included in the Purchase Price. Any
furnishings that are being included are being sold as-is where is.
3.
Purchase Price of the Property. Purchase Price of the Property. The purchase price of the Property (“Purchase Price”) shall
be $________________. The Purchase Price does not include closing costs (see Paragraph 4(h) below) or loan fees or loan costs. The
Purchase Price shall be paid as follows:
(a)
Purchase Price::
(b)
Credits against Purchase Price:
$____________________
Earnest Money Deposit:
$____________________
Additional Earnest Money:
$____________________
(c)
Gross amount due at Close of Escrow*:
$____________________
(d)
Other:
Other (Specify):
(__________________________________)
Other (Specify):
(__________________________________)
$____________________
$____________________
*The Purchase Price does not include closing costs (see Paragraph 4(h) below) or loan fees or loan costs.
In addition, at Close of Escrow (as defined below), Buyer shall pay (i) the Maintenance and Operations Fee (as defined and described in the
Unit Management Agreement attached hereto as Exhibit L) required for the first month of Buyer’s ownership of the Unit, (ii) an amount
equal to two (2) months of working capital pursuant to the Unit Management Agreement, (iii) an amount equal to two (2) months of
reserves pursuant to the Unit Management Agreement, and (iv) title insurance fees, recording costs, escrow fees, loan fees, inspection fees,
and all fees and impounds required by Buyer’s lender. Seller shall pay those costs of closing identified as Seller’s obligations in Paragraph
4, below. All funds required to be provided by Buyer pursuant to this Agreement shall be provided via wire transfer in accordance with
Seller’s wiring instructions.
BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ITEMS (c), (d) and (e), ABOVE, CONSTITUTE
ESTIMATES ONLY. ACCORDINGLY, THE TOTAL PURCHASE PRICE SHALL BE ADJUSTED AT THE CLOSE OF
ESCROW TO REFLECT THE ACTUAL CLOSING COSTS. BUYER SHALL PAY THE ACTUAL CLOSING COSTS, EVEN
IF THE ACTUAL CLOSING COSTS EXCEED THE ESTIMATES. BUYER’S LENDER AND THE ESCROW HOLDER
(DEFINED BELOW) SHALL ADD BUYER'S SHARE OF CLOSING COSTS AND FEES TO THE ESTIMATED TOTAL
PURCHASE PRICE ABOVE (THE “TOTAL PURCHASE PRICE”).
4.
Escrow and Title.
(a)
Opening of Escrow. Buyer and Seller do hereby employ and name First American Title Company as the title company
and escrow holder for this transaction (the “Escrow Holder”). Buyer understands, acknowledges and agrees that Escrow Holder may
retain the Earnest Money Deposit and Additional Earnest Money (collectively referred to herein as the “Deposit”) in its possession until the
close or termination of the escrow. Escrow Holder is hereby authorized to deposit any funds or documents pursuant to these escrow
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INITIALS:
Buyer:
Buyer:
Seller:
40913270.32
instructions, or cause the same to be deposited with an appropriate financial institution. Buyer shall deliver to Escrow Holder all additional
funds and documents required of Buyer to enable Escrow Holder to comply with these instructions on or before the Close of Escrow (as
defined below). Buyer shall also execute promptly all documents and make all deposits required by Seller, Escrow Holder, Buyer’s lender
or governmental agency having jurisdiction over matters in question.
(b)
Interest on Deposit. Buyer shall not be entitled to receive and Seller shall not be entitled to pay any interest on the
Deposit. In lieu thereof, if Buyer provides the Deposit and if Buyer thereafter becomes entitled to a return of the Deposit in accordance
with the express terms and provisions hereof, then Buyer shall be entitled to receive an additional amount of One Hundred Dollars
($100.00).
(c)
Preliminary Title Report. Buyer has received, concurrently with the execution of this Agreement, a copy of the
preliminary title report for the Property (“Title Report”) for Buyer's review and approval. Buyer shall have until five (5) days after the
date this Agreement is accepted by Seller (“Effective Date”) to give Seller and Escrow Holder written notice (“Buyer's Title Notice”) of
Buyer's disapproval of any matters shown in the Title Report. The failure of Buyer to give Buyer’s Title Notice on or before the end of the
title review period shall be conclusively deemed to constitute Buyer's approval of the condition of title to the Property. If Buyer
disapproves any matter shown on the Title Report within such five (5) day period, then Seller shall have the right, but not the obligation,
within five (5) days after Seller's receipt of Buyer's Title Notice (“Seller's Election Period”) to elect to (i) eliminate (or provide a title
policy endorsement eliminating) each disapproved title matter by giving Buyer written notice (“Seller's Title Notice”) of those disapproved
title matters, if any, that the Seller is willing to eliminate (or provide a title policy endorsement eliminating), on or before the Closing Date
or (ii) terminate this Agreement. If Seller does not timely deliver Seller's Title Notice, then Buyer shall have the right, upon delivery to
Seller and Escrow Holder (on or before three (3) business days following the expiration of Seller's Election Period) of a written notice to
Seller and Escrow Holder to either waive Buyer's prior disapproval or to terminate this Agreement. If Buyer fails to take either action,
Buyer shall be deemed to have elected to waive Buyer's prior disapproval. If Buyer elects to terminate this Agreement pursuant to the
provisions of this subparagraph (c), then Seller shall direct Escrow Holder to refund the Earnest Money Deposit to Buyer and neither party
shall have any further rights or obligations under this Agreement.
(d)
Condition of Title. Title to the Property shall be conveyed to Buyer at the Close of Escrow by Grant Deed (the “Deed”)
subject to the following (collectively, the “Permitted Exceptions”):
(i)
a lien to secure payment of general and special real property taxes and assessments that are not yet delinquent
as of the Close of Escrow (as defined below);
(ii)
matters affecting the condition of title created by or with the written consent of Buyer, including, but not limited
to, the deed of trust securing Buyer's loan, if any;
(iii)
all exceptions that are disclosed by the Title Report delivered to Buyer at the time of Buyer's execution of this
Agreement (excluding the lien(s) of any deeds of trust shown thereon, which Seller agrees shall be released at Close of Escrow (as defined
below)) which are approved or deemed approved by Buyer as provided herein, including, but not limited to, the Plan, that certain
Declaration of Covenants, Conditions, Restrictions, and Reservation of Easements (Casitas at Terranea Resort) (Villas at Terranea Resort)
recorded in the Official Records of Los Angeles County, California (the “Declaration”), the Unit Management Agreement and the Notice
of Transfer Fee attached hereto as Exhibit L (collectively, the “Governing Documents”); and
(iv)
all applicable laws, ordinances, rules and governmental regulations affecting the development, use, occupancy
or enjoyment of the Property and all documents recorded to satisfy such laws, ordinances, rules and governmental regulations.
(e)
Close of Escrow. The close of Escrow (“Close of Escrow”) shall occur on _______________ (the “Closing Date”).
Seller shall have the right, in its sole and absolute discretion, to extend such outside deadline for delays which are outside of Seller’s
reasonable control, such as Acts of God, inclement weather (in excess of the seasonal average climate experience for the region in which
the Property is located), labor or material shortages, governmental action or inaction, riot, insurrection, acts of terrorism or war, or Force
Majeure Events as described in Paragraph 15(c), below. If Seller elects to extend the closing for any of the foregoing reasons, then Seller
shall provide Buyer with written notice of that election within five (5) days of the event giving rise to the extension right and that notice
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Buyer:
Buyer:
Seller:
40913270.32
shall include a reasonably detailed explanation of the reason why the extension is warranted. Buyer and Seller agree to execute such
escrow instructions as Escrow Holder may reasonably request in accordance with this Agreement.
(f)
No Right to Delay in Closing. If Buyer is unable or unwilling to close escrow in accordance with this Paragraph 4, then
Buyer shall be deemed to be in default under the terms of this Agreement, and, unless Buyer cures such default no later than twenty (20)
days after the date said notice is deemed received in accordance with Paragraph 13(a), Seller may, in Seller’s sole and absolute discretion,
elect to either:
(i)
terminate this Agreement, in which case Seller may retain the Deposit as liquidated damages as provided
herein, and Buyer shall have no further right or interest in the Property; or
(ii)
extend Buyer’s time to close provided that Buyer, upon Seller’s demand, pays to Seller an amount equal to one
percent (1%) of the Total Purchase Price for each month that the Close of Escrow is extended by Seller. Such payment shall be prorated
and shall not be credited against the Purchase Price. Seller may terminate this Agreement at any time during the extended escrow period.
Should Seller fail to specify to Buyer which option has been selected, it shall be assumed that this option (ii) has been elected and that
Seller has extended the date for Close of Escrow by thirty (30) days upon which time the extension fee described above will become
immediately due and payable.
In addition to the foregoing, if the Close of Escrow does not occur on the scheduled date (in accordance with Paragraph 4(e) hereof) as a
result of events or circumstances that are not within the reasonable control of either Buyer or Seller, then Seller may, in Seller’s sole and
absolute discretion, elect to either (a) terminate this Agreement, in which case Seller shall return the Deposit to Buyer, this Agreement shall
terminate and neither party hereto shall have any further rights or obligations hereunder, or (b) extend the Close of Escrow.
If, through no fault of the Buyer, the Close of Escrow does not occur within one (1) year after the date on which this Agreement is accepted
by Seller, then Buyer and Seller may mutually agree in writing to an extension of the Closing Date, or Buyer may terminate this
Agreement, cancel Escrow and, within fifteen (15) days after Seller and Escrow Holder receive written notice of such termination and
cancellation, Buyer shall receive a refund of all amounts Buyer has deposited by Buyer into Escrow. In compliance with subsection (a) of
Section 2791 of the Regulations of the Real Estate Commissioner, Buyer shall, except to the extent set forth in subsections (b) and (c)
thereof, receive a full refund of all purchase money deposited by Buyer within fifteen (15) days after the later of Closing Date or such later
extended closing date as may be mutually agreed upon by Buyer and Seller.
(g)
Obligations of Escrow Holder At Closing. At the Close of Escrow, Escrow Holder shall: (i) record all necessary
documents in the Official Records; (ii) disburse all funds; (iii) at Buyer’s expense, issue to Buyer’s lender, if any, a lender’s standard title
policy insuring the lender’s interest in the Property in the amount of the loan; (iv) at Buyer’s expense, issue to Buyer an Eagle policy of title
insurance insuring Buyer’s title in the Property in the amount of the Total Purchase Price, free and clear of liens and encumbrances except
the Permitted Exceptions, encumbrances and liens created by Buyer and current taxes (not yet delinquent); and (v) issue to Buyer a grant
deed (the “Grant Deed”) conveying title to the Property to Buyer free and clear of all encumbrances except the Permitted Exceptions,
encumbrances and liens created by Buyer and current taxes (not yet delinquent).
(h)
Closing Costs. At the Close of Escrow, Buyer shall pay all closing costs including, without limitation: (i) extended
coverage fire and hazard insurance costs and expenses; (ii) credit report fees, costs and expenses; (iii) owner's and Buyer’s lender's Eagle
policy premiums; (iv) appraisal fees; (v) tax service fees; (vi) loan origination fees; (vii) processing fees; (viii) funding fees; (ix) city/county
recording fees; (x) notary fees; (xi) real property tax impounds required by Buyer's lending institution; (xii) prepaid interest required by
Buyer's lender; (xiii) prorated share of real property taxes currently due; (xiv) escrow fees; and (xv) all other closing costs not expressly
required to be paid by Seller. At the Close of Escrow, Seller shall pay (i) city transfer tax, if any; (ii) county transfer tax and (iii) any 111.1
endorsement for the pay down of Seller’s lender.
(i)
Prorations. Prorations and adjustments of taxes and assessments shall be made by the Escrow Holder effective as of the
Closing Date on the basis of a 30-day month and shall be made as of the date Buyer is given possession of the Property or upon the Closing
Date, whichever shall first occur. Buyer is aware there is a possibility of additional taxes which may be assessed by the County Assessor
after the Close of Escrow, due to improvements made to the Property and transfer of title, and Buyer agrees to be responsible for any
additional taxes that may be attributable to the Property and therefore due as a result of such assessment.
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Buyer:
Buyer:
Seller:
40913270.32
5.
Contingencies and Financing.
(a)
Check Here, If Applicable. ______ NO FINANCING CONTINGENCY. Buyer acknowledges that this Agreement
is not contingent upon Buyer obtaining financing for the purchase of the Property.
Initials:
Buyer_________
Buyer_________
Seller_________
OR
(b)
Check Here, If Applicable. ______ FINANCING CONTINGENCY. This Agreement is contingent upon Buyer obtaining
from a financial institution or other lender (“Buyer’s Lender”), a commitment to lend to Buyer on terms reasonably acceptable to Buyer
(“New Loan”). Buyer hereby agrees to diligently pursue obtaining the New Loan. If, within twenty one (21) days following the Effective
Date, Buyer either provides to Seller and Escrow Holder a commitment setting forth the proposed terms of a New Loan, or notifies Escrow
Holder and Seller in writing that it has obtained a New Loan, then Buyer shall be deemed to have waived the contingency described in this
Paragraph. Seller shall have seven (7) days from receipt of the commitment setting forth the proposed terms of the New Loan to approve or
disapprove of such proposed terms. If Seller fails to notify Escrow Holder, in writing, of the disapproval within said seven (7) days it shall
be conclusively presumed that Seller has approved the terms of the New Loan. If Buyer fails to notify Escrow Holder and Seller, in writing
within twenty one (21) days following the Effective Date, that the New Loan has not been obtained, it shall be conclusively presumed that
Buyer has either obtained said New Loan or has waived the contingency described in this Paragraph. If Buyer shall notify Escrow Holder
and Seller, in writing, within such twenty one (21) day period that Buyer has not obtained said New Loan, then this Agreement shall be
terminated, and the Deposit (to the extent it has been actually deposited), plus any interest earned thereon shall be returned to Buyer.
No later than ten (10) business days after Seller’s request, Buyer shall provide to Seller satisfactory evidence of Buyer’s diligent efforts to
pursue obtain the New Loan, including but not limited to a copy of the loan qualification letter from Buyer’s Lender together with the
corresponding Lender Documentation (defined in subparagraph (f), below), or has provided to Seller written documentation in another
form acceptable to Seller that shows to Seller’s reasonable satisfaction that Buyer will have sufficient funds available to consummate the
purchase of the Property as provided in this Agreement. During the term of this Agreement, Buyer shall provide Seller with copies of all
material changes, modifications and amendments to the terms of the loan qualification letter and corresponding New Loan documentation.
If Buyer fails to satisfy any of the conditions set forth in this subparagraph (b), within the applicable stated time period, Seller shall have the
right to terminate this Agreement unless Buyers remedies such failure no later than ten (10) days after Buyer receives written notice thereof
from Seller. In the event of such termination, Buyer and Seller shall have no further duties and obligations to each other resulting from this
Agreement. Should Seller elect to terminate this Agreement pursuant to this Paragraph, Seller shall direct the Escrow Holder to return the
Deposit (to the extent made) and Buyer and Seller shall be relieved of any further duties and obligations to each other resulting from this
Agreement.
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INITIALS:
Buyer:
Buyer:
Seller:
40913270.32
(c)
Check Here, If Applicable. ______ BUYER INTENDS TO PAY CASH TO PURCHASE THE PROPERTY.
Buyer intends to pay cash to complete the purchase of the Property and agrees to provide satisfactory evidence of Buyer’s ability to pay the
Purchase Price and Buyer’s share of closing costs within ten (10) business days following any request by Seller therefor. Should Buyer fail
to timely provide such evidence and should such failure continue for more than ten (10) days after the date on which Buyer receives written
notice thereof from Seller, Seller may elect to terminate this Agreement and direct the Escrow Holder to return the Deposit (to extent made
but less escrow costs, charges, and any and all other appropriate fees or charges). Should Seller elect to terminate this Agreement, Buyer
and Seller shall be relieved of any further duties and obligations to each other resulting from this Agreement.
(d)
Check Here, if Applicable.
_______ BUYER INTENDS TO PERFORM A 1031 TAX DEFERRED
EXCHANGE PURSUANT TO SECTION 1031 OF THE INTERNAL REVENUE CODE. Seller agrees to cooperate in such
exchange at no cost, liability or delay to Seller.
(e)
Interest Rate Fluctuations. Buyer acknowledges that interest rates may increase or decrease between the date of the
Agreement and the date the Buyer’s lender commits to an interest rate on Buyer’s loan. Fluctuations in the interest rate for Buyer’s loan
and the terms and conditions of the loan are solely between the Buyer and the Buyer’s lender and Buyer assumes the risk of rate
fluctuations. In no way shall interest rate fluctuations or changes in the terms of Buyer’s loan relieve Buyer of any duty and obligation with
respect to this Agreement.
(f)
Lender Documentation. Upon Seller’s request, Buyer further agrees to promptly provide Seller with the following
(collectively, the “Lender Documentation”) in writing:
(i)
The name, address and telephone number of Buyer’s lender;
(ii)
Lender’s confirmation of approval of the loan without any funding conditions on the part of the Buyer;
(iii)
The duration of the loan commitment; and
(iv)
Terms of the loan and funding.
Should Buyer fail to comply with the aforementioned condition, Seller may elect to terminate this Agreement unless Buyer complies no
later than seventeen (17) days after the date on which Buyer receives written notice thereof from Seller. In the event of such termination,
Seller may direct the Escrow Holder to return the Deposit (to the extent made but less escrow costs, charges and any and all other
associated fees or charges). Should Seller elect to terminate this Agreement, Buyer and Seller shall be relieved of any further duties and
obligations to each other resulting from this Agreement.
(g)
Lender Updates/Credit Release. Buyer agrees that Seller may check and recheck with the Buyer’s lender for periodic
updates relating to Buyer’s loan approval process. Seller may require Buyer to resubmit satisfactory documentation that Buyer has retained
sufficient funds to enable Buyer to deliver the cash needed to facilitate the Close of Escrow. Such documentation shall be submitted to
Seller no later than seven (7) days after Seller’s request. Buyer’s failure to provide such documentation in a timely fashion shall be a
breach of this Agreement and unless Buyer remedies such breach no later than twenty (20) days after the date on which Buyer receives
written notice thereof from Seller, Seller may elect to terminate the Agreement and recover liquidated damages as described in Paragraph
9(c), below, if both parties have initialed the liquidated damages provision. Buyer authorizes Seller to release Buyer’s contact information
to satisfy Seller’s prequalification requirements.
6.
Construction Matters.
(a)
Insulation Disclosure. In order to comply with Federal Trade Commission Regulations and Rules dealing with the
labeling and advertising of insulation, Seller hereby advises Buyer that the type, thickness and R-value of all insulation installed or to be
installed in the building in which the Unit is located is as follows:
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Buyer:
Buyer:
Seller:
40913270.32
Area insulated
Type
Thickness
R-Value
Exterior walls and walls common to garage
Fiberglass Batts
6”
19
Ceiling and heated part of Unit
Fiberglass Batts
6”
30
R-Value means the resistance of insulation to heat transfer. The higher the R-Value is, the greater the insulation power. Seller
reserves the right to substitute a different type of insulation and/or insulation of a different thickness and/or insulation with a different RValue of equal or better quality; provided, however, that Seller shall provide Buyer with a new disclosure setting forth the type, thickness,
and R-Value of the insulation to be installed as soon as the information is available to Seller.
(b)
Seller is Not Buyer’s Contractor. Buyer acknowledges and agrees that it is purchasing the Property as a completed
Unit and Seller is not acting as a contractor for the Buyer. Buyer shall acquire no right, title or interest in or to the Property except the right
and obligation to purchase the Property in accordance with the terms of this Agreement. Buyer agrees that direction and supervision of the
working forces, including, but not limited to, any and all subcontractors, rests exclusively with Seller and Buyer agrees that it shall not issue
any instruction to, or otherwise interfere with, the working forces.
(c)
Prior Use.
BY EXECUTING THIS AGREEMENT, BUYER ACKNOWLEDGES, AGREES AND
UNDERSTANDS THAT (I) PRIOR TO THE EFFECTIVE DATE AND THE CLOSE OF ESCROW, SELLER MAY BE (AND
MAY HAVE ALREADY BEEN) OBLIGATED PURSUANT TO APPLICABLE RESTRICTIONS, INCLUDING, BUT NOT
LIMITED TO, RESTRICTIONS IMPOSED BY THE CALIFORNIA COASTAL COMMISSION IN CONJUNCTION WITH
THE ISSUANCE OF THE COASTAL DEVELOPMENT PERMIT FOR THE PROJECT, TO RENT OUT THE PROPERTY,
(II) AS A RESULT OF SUCH RENTAL, THE PROPERTY MAY HAVE BEEN OCCUPIED BY OTHERS PRIOR TO THE
CLOSE OF ESCROW, WHICH MEANS THAT THE PROPERTY IS NOT “BRAND NEW,” AND (III) ANY REASONABLE
WEAR AND TEAR ASSOCIATED WITH SUCH PRIOR RENTAL SHALL NOT CONSTITUTE AN EXCEPTION ITEM.
(d)
Pre-Closing Inspection. Buyer agrees to participate in a walk-through of the Property (“Walk-through”) with Seller's
representative in order to compile a reasonable list of items needing correction which are apparent at the time of inspection
(“Walk-through List”) taking into account the information disclosed in the immediately preceding paragraph. Buyer and Seller each
acknowledge and agree that notwithstanding anything in this Agreement to the contrary, the Walk-through List shall not include and Seller
shall not be obligated to correct, complete, repair or replace any items that are affected by, exhibit or otherwise depict reasonable wear and
tear as a result of the Property having been occupied by others prior to the Close of Escrow. The Walk-through shall occur prior to the
Close of Escrow on a date set by Seller pursuant to a written notice to Buyer, which notice shall be delivered to Buyer at least five (5) days
prior to the date of the scheduled Walk-through. The Walk-through List shall be agreed to and signed by both Buyer and Seller. Buyer’s
failure or refusal to complete the Walk-through, sign the Walk-through List, or have Buyer's designee do so on Buyer's behalf on the date of
the scheduled Walk-through, shall constitute Buyer’s waiver of Buyer's right to a pre-closing inspection, Buyer’s right to have the Walkthrough List prepared and Buyer’s right to have Seller correct, complete, repair or replace any of the items that would have been identified
on the Walk-through List had it been prepared (“Walk-through Waiver”).
Subject to the foregoing, Seller agrees to correct, complete, repair or replace all items identified on the Walk-through List within
sixty (60) days following the Close of Escrow, unless otherwise agreed upon by Seller and Buyer or unless such item is an Exception Item
(defined below). The existence of such Walk-through List shall not provide a basis for Buyer to cancel this Agreement, withhold funds at
the Close of Escrow, or delay the Closing. If any Walk-through Item(s) cannot be completed due to causes beyond the Seller’s control,
then Seller will inform Buyer in writing (“Exception Item”) indicating the reason for the delay and revised timing in order for the
particular item(s) to be completed. After the Close of Escrow and once the Walk-through Items are completed, Seller shall have no further
or continuing responsibility for periodic inspection, replacement, repairs, minor defects, housekeeping or maintenance or repair of
improvements, except for correction of Exception Items (if any) and such items as may be expressly covered by the Fit and Finish
Warranty (referenced below). Buyer’s execution of the Walk-through List and/or Buyer’s failure to participate in the Walk-through prior to
the Close of Escrow shall not alter or waive any rights Buyer may have under any warranties extended by Seller.
(e)
Buyer’s Right to Possession. Buyer’s right to possession, use and occupancy of the Property shall commence upon the
Close of Escrow and the recordation of the Deed. Prior to these events occurring, neither Buyer nor Buyer’s designee may:
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Seller:
40913270.32
(i)
Enter upon the Property or the building in which the Property is located for any purpose without the express
written consent of Seller;
(ii)
(iii)
any portion thereof.
Store any items on or within the Property or any portion thereof; or
Perform any work, or contract with others to perform any work, alteration or improvement to the Property or
(f)
Changes in the Project or Adjacent Properties. Seller reserves the right to make changes in its proposed land use,
improvement plans, street pattern, or the type, style or price of any structure to be built within the Project and any adjacent land that may be
controlled by Seller. No statement by Seller or Seller’s agents as to the present intended use of such property shall affect Seller’s right to
make changes in the future. Seller makes no representations as to how such property shall be used.
7.
Resale/Assignment.
(a)
Generally. Buyer shall not market the Property, place signs upon the Property or enter into any purchase contract or
listing agreement for the sale, transfer or assignment of the Property prior to the Close of Escrow without prior written consent of Seller,
which consent may be granted or withheld by Seller in the Seller’s absolute discretion. Any attempted sale, transfer or assignment of said
interest shall be of no force or effect.
(b)
Prohibition Against Severance. Except as otherwise provided in the Governing Documents, after the Close of Escrow,
if the Association has been formed, Buyer shall not be entitled to sever the Buyer's Unit or Property interest from the Buyer's membership
in the Association, described in Paragraph 15(d), below, and shall not be entitled to sever the Buyer's Unit and membership from the
Buyer's undivided interest in the Common Area for any purpose. None of the component interests in the Property can be severally sold,
conveyed, encumbered, hypothecated, or otherwise dealt with, and any violation or attempted violation of this provision shall be void.
Similarly, Buyer cannot sever any exclusive easement appurtenant to the Unit over the Common Area from Property, and any attempt to do
so shall be void.
8.
Damage to Property. If the Property is destroyed or materially damaged prior to the Close of Escrow, then, as Buyer's sole
remedy, Buyer shall either elect to: (i) confirm this Agreement, in which case Seller shall have a reasonable period of time in which to
reconstruct the Unit; or (ii) terminate this Agreement, in which case Buyer shall not be entitled to any claim of damages or compensation of
any kind. Such election shall be made by delivery of written notice to Seller no later than five (5) Business Days after the date on which
Buyer becomes aware of the destruction or damage. If Buyer fails to timely deliver such notice, then Buyer shall be deemed to have
conclusively elected to proceed pursuant to subsection (i) of this Paragraph 8. If Buyer terminates this Agreement in accordance with this
provision, then the Deposit shall be returned, this Agreement shall terminate and Buyer and Seller shall be relieved of any further duties and
obligations to each other resulting from this Agreement.
9.
Pre-Closing Default.
(a)
Default (Buyer).
Buyer shall be in default of this Agreement if Buyer fails to comply with any of the terms of this
Agreement and Buyer fails to remedy such default within twenty (20) days of the date on which Buyer has been given written notice
thereof from Seller pursuant to Paragraph 13(a) below. If Buyer fails to complete the purchase of the Property because of Buyer’s default,
Seller shall be released from its obligation to sell the Property to Buyer and, unless the Liquidated Damages provision set forth in
subparagraph (c), below is initialed by both parties, Seller may pursue any remedy at law or in equity that Seller may have against Buyer
because of Buyer’s default.
(b)
Default (Seller). If Seller has not complied with Seller’s obligations under this Agreement, Buyer may send Seller a
written notice stating that Buyer considers Seller to be in default and providing a reasonably detailed statement of the nature of the default.
Upon being given notice, as defined in Paragraph 13(a) below, Seller shall have twenty (20) days in which to either respond to Buyer with
an explanation as to why Seller disagrees with Buyer’s notice or fulfill the obligations that Buyer has identified in its notice. Buyer agrees
that Buyer’s sole remedy if Seller does not either respond to Buyer with an explanation as to why Seller disagrees with Buyer’s notice or
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Buyer:
Seller:
40913270.32
fulfill the obligations identified in such notice on or prior to the expiration of the twenty (20) day cure period shall be to either (i) terminate
this Agreement and to receive a refund of all monies that Buyer has paid to Escrow Holder plus an amount equal to one hundred dollars
($100.00), or (ii) if the default involves Seller failure to convey the Property to Buyer and Buyer has timely complied with its obligations
hereunder, to pursue the remedy of specific performance against Seller. Under no circumstances will Seller be liable for any special,
indirect or consequential damages including, without limitation, any damages based on claimed decrease in the value of the Property, even
if Buyer has been advised of the possibility of such damages. The foregoing limitations on Buyer’s remedies will not apply if the default is
based on Seller’s failure to deliver the Property to Buyer on or before the Closing Date or any extension thereof in accordance with the
terms of this Agreement. BUYER HEREBY WAIVES ANY RIGHT WHICH BUYER MAY HAVE TO RECORD ANY NOTICE OF
PENDING ACTION (LIS PENDENS) AFFECTING THE PROPERTY, INCLUDING WITHOUT LIMITATION PURSUANT TO
CALIFORNIA CIVIL CODE SECTION 3389, UNLESS SUCH NOTICE IS RECORDED IN FURTHERANCE OF BUYER’S
PURSUIT OF THE REMEDY OF SPECIFIC PERFORMANCE AND IS FILED NO LATER THAN THIRTY (30) DAYS AFTER THE
DATE OF THE SELLER DEFAULT WHICH ENTITLED BUYER TO PURSUE SPECIFIC PERFORMANCE.
Initials:
Buyer_________
Buyer_________
(c)
LIQUIDATED DAMAGES. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR
EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH
WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE PROPERTY DUE TO
BUYER’S DEFAULT HEREUNDER. THEREFORE, IF BUYER FAILS TO COMPLETE THE PURCHASE OF THE
PROPERTY DUE TO BUYER’S DEFAULT HEREUNDER, THEN SELLER SHALL BE ENTITLED TO LIQUIDATED
DAMAGES IN THE AMOUNT OF THREE PERCENT (3%) OF THE PURCHASE PRICE. UPON PAYMENT OF SAID SUM
TO SELLER, BUYER SHALL BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, AND ANY ESCROW
CANCELLATION FEES AND TITLE COMPANY CHARGES SHALL BE PAID BY SELLER IN ACCORDANCE WITH THE
PROCEDURES LISTED BELOW. BUYER’S DEFAULT SHALL MEAN A FAILURE BY BUYER TO PERFORM OR
OBSERVE ANY COVENANT OR CONDITION TO BE PERFORMED OR OBSERVED BY BUYER UNDER THIS
AGREEMENT. PAYMENT OF THE FOREGOING SUM TO SELLER AS LIQUIDATED DAMAGES IS NOT INTENDED
AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369.
(1)
AT ANY TIME AFTER THE DATE PROVIDED HEREIN FOR THE CLOSE OF ESCROW,
OR ANY EXTENDED DATE FOR CLOSING, SELLER SHALL GIVE WRITTEN NOTICE TO ESCROW HOLDER AND TO
BUYER IN THE MANNER PRESCRIBED IN §116.340 OF THE CODE OF CIVIL PROCEDURE FOR SERVICE IN A
SMALL CLAIMS ACTION, STATING THAT THE BUYER IS IN DEFAULT AND DEMANDING THAT THE ESCROW
HOLDER REMIT TO THE SELLER THE LIQUIDATED DAMAGES AMOUNT FROM THE DEPOSIT HELD BY THE
ESCROW HOLDER AS LIQUIDATED DAMAGES, UNLESS THE BUYER GIVES WRITTEN OBJECTION TO THE
ESCROW HOLDER WITHIN TWENTY (20) DAYS. THE BUYER SHALL HAVE TWENTY (20) DAYS FROM THE DATE
OF RECEIPT OF THE SELLER’S NOTICE AND DEMAND IN WHICH TO GIVE THE ESCROW HOLDER BUYER’S
WRITTEN OBJECTION TO DISBURSEMENT OF THE DEPOSIT AS LIQUIDATED DAMAGES AND INSTRUCTIONS TO
THE ESCROW HOLDER NOT TO SO DISBURSE THE DEPOSIT.
(2)
IF BUYER GIVES SUCH WRITTEN OBJECTION AND INSTRUCTIONS TO ESCROW
HOLDER WITHIN TWENTY (20) DAYS AFTER THE RECEIPT OF SELLER’S NOTICE AND DEMAND, THE
CONTROVERSY AND THE DISPOSITION OF THE FUNDS DEPOSITED INTO THE ESCROW BY BUYER, AND EVERY
OTHER DISPUTE BETWEEN SELLER AND BUYER THAT HAS ARISEN UNDER THE PURCHASE AGREEMENT
AND/OR CONSTRUCTION OF THE PROPERTY, SHALL BE SETTLED IN ACCORDANCE WITH PARAGRAPH 10,
BELOW.
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Buyer:
Seller:
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(3)
IF BUYER FAILS TO GIVE TO ESCROW HOLDER WITHIN TWENTY (20) DAYS
AFTER RECEIPT OF SELLER’S NOTICE AND DEMAND, WRITTEN NOTICE OF BUYER’S OBJECTIONS: (1) ESCROW
HOLDER SHALL PROMPTLY REMIT THE LIQUIDATED DAMAGES AMOUNT TO SELLER; AND (2) SELLER SHALL
BE RELEASED FROM ANY OBLIGATION TO SELL THE PROPERTY TO BUYER.
NOTE: IF BOTH BUYER AND SELLER DO NOT INITIAL THIS PARAGRAPH 9(c) IN THE SPACES PROVIDED BELOW,
THIS PARAGRAPH IS NOT OPERATIVE.
Initials:
Buyer_________
Buyer_________
Seller_________
10.
Dispute Resolution.
(a)
Description of Disputes That Are Subject to These Dispute Resolution Procedures. Any controversy, claim,
cause of action, liability or dispute (“Disputes”) arising out of or in any way related to this Agreement, the Property, the Project,
death, bodily injury and/or defective design or construction including, without limitation, disputes for breach of contract, express or
implied warranty, strict liability, negligence, nuisance, statutory violation, misrepresentation, and/or fraud shall be resolved by the
dispute resolution process set forth in this Paragraph 10. Disputes, as so defined, are further classified as follows, with differing
dispute resolution procedural rules and requirements applying to each category of Disputes, as stated in the subparagraphs of this
Paragraph 10 that follow:
(i)
Disputes Relating to Defects in Construction – Buyer’s Property. For any defects which violate the
functionality standards set forth in Civil Code Sections 896-897 (“Defect Disputes”), Buyer should first, follow the instructions of
subparagraph (b) below to see if there is any applicable warranty or customer service program available for the asserted defect.
Should no such warranty or customer service program be available, Buyer should proceed to the dispute resolution programs set forth
in subparagraph (c) below);
(ii)
Disputes Relating to Defects in Construction – Association Property. This category of Disputes includes
any Disputes by an owners association, if it is formed, having jurisdiction within the Project (if the Project is a common interest
development) that are subject to Civil Code Sections 1375-1375.1 and shall be resolved in accordance with the applicable dispute
resolution provisions contained in the Governing Documents;
(iii)
Other Disputes and Disputes Between Buyer and Seller. The third category of Disputes includes: (a) any
other Dispute between Buyer and Seller, including Seller’s directors, officers, members, employees and agents (“Seller Party”)
involving or arising out of this Agreement (including, without limitation, Disputes for breach of contract, fraud, or misrepresentation
and statutory violations), (b) Disputes involving alleged breaches of the Governing Documents of the Project (including, without
limitation, Disputes alleging a breach of any covenants, conditions and restrictions or Disputes for fraud or breach of fiduciary duty (if
the Project is a common interest development, as defined in Section 1351 of the Civil Code)), and (c) any Disputes involving alleged
breaches of any other documents provided by Seller or any Seller Party to Buyer in connection with the purchase of the Property.
Disputes in this category shall be governed by the dispute resolution process set forth below. See subparagraph (d), below.
Collectively, the potential parties on either side of any Disputes, as defined above, shall be referred to in this Agreement as
the “Parties”:
(b)
Resort to Customer Service and Warranty Programs. Buyer is encouraged to endeavor to resolve Defect
Disputes with Seller through the normal customer service procedures set forth in Seller’s customer service program or in any
contractual, warranty, or other builder-generated document. Any requests that Buyer makes pursuant to such warranties or customer
service procedures are in addition to, and shall not constitute satisfaction of, the notice requirements identified in subparagraph (c),
below, that apply to Defect Disputes.
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Buyer:
Seller:
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(c)
Construction Defect Disputes.
If the Buyer’s Dispute cannot be resolved between the Parties through the
customer service program process or applicable warranty procedures, and the Dispute is a Defect Dispute, the Dispute shall first be
subject to the applicable non-adversarial dispute resolution procedures identified in this subparagraph (c).
PURSUANT TO
CALIFORNIA CIVIL CODE SECTION 914, SELLER IS PERMITTED TO ELECT TO USE ALTERNATE CONTRACTUAL
NON-ADVERSARIAL PROCEDURES INSTEAD OF USING THE STATUTORY PRE-LITIGATION PROCEDURES
PROVIDED IN CIVIL CODE SECTION 895 ET SEQ., AS HEREINAFTER AMENDED (THE “CONSTRUCTION CLAIMS
STATUE”). SELLER HAS ELECTED TO USE ITS OWN ALTERNATIVE CONTRACTUAL NON-ADVERSARIAL
PROCEDURES AS SET FORTH IN THIS SUBPARAGRAPH (c).
Prior to the commencement of any legal proceedings by a Buyer or Buyers against the Seller or any Seller Party based upon a
Dispute for defects which violate the Construction Claims Statute, the Buyer(s) must first comply with the provisions of this
subparagraph (c). If at any time during the ten (10) year period following the Close of Escrow for the original Buyer’s purchase of
such Unit from the Seller, as such period may be extended by any applicable tolling statute or provision, or any shorter period as
provided by applicable law, Buyer believes that the Seller has violated any of the functionality standards set forth in Civil Code
Sections 896-897 of the Construction Claims Statute which Buyer feels may be the responsibility of the Seller, the Buyer shall
promptly notify the Seller’s agent for notice of the construction defect Disputes as identified in this Agreement.
Such notice shall include: (i) the claimant’s name, address, and preferred method of contact; and (ii) a statement that the
claimant alleges a violation of the Construction Claims Statute against any Seller’s Parties; (iii) a reasonably detailed description of
the claimed defect that is sufficient to determine the nature and location, to the extent known, of the claimed defect; (iv) the date when
the claimed defect was first discovered; and (v) the dates and times when Buyer or Buyer’s agent will be available during ordinary
business hours, so that service calls or inspections by the Seller or other builder or subcontractor can be scheduled. The Seller and/or
its agents shall, in its sole discretion, be entitled to inspect the applicable property regarding the reported claimed defect and, within its
sole discretion, shall be entitled to cure such claimed defect and may be accompanied on the inspection by other potentially
responsible Seller Parties. Nothing contained in this subparagraph (c) shall obligate Seller to perform any such inspection or repair,
nor shall this subparagraph (c) be deemed to increase the Seller’s legal obligations to any Buyer.
A Buyer’s written notice delivered to Seller shall be a condition precedent to the notifying Buyer’s right to proceed to judicial
reference as set forth in subparagraph (d), below. No Buyer shall be entitled to pursue any other remedies available to the Buyer, at
law or otherwise, including, without limitation, the filing of any legal proceeding or action until the Seller has had the reasonable
opportunity to inspect and cure the claimed defect. During the term of any written Limited Warranty (as defined in Section 12)
provided to the original Owner of the Unit by Seller, any conflict between the provisions of this subparagraph (c) and the Warranty
shall be resolved in favor of the Limited Warranty. Seller shall not be liable for any general, special or consequential damage, cost,
diminution in value or other loss which Buyer may suffer as a result of any claimed defect in the Buyer’s Unit, which reasonably
might have been avoided had the Buyer given the Seller the notice and opportunity to cure as described above within a reasonable
time of discovering the claimed defect.
Except as otherwise provided in the Seller’s written Limited Warranty, if any, provided to Buyer, nothing contained herein
shall establish any contractual duty or obligation on the part of Seller to repair, replace or cure any claimed defect. If a Buyer sells or
otherwise transfers ownership of such Buyer’s Unit to any other person during the ten (10) year period commencing with the earlier of
substantial completion of the improvement or the date of recordation of a valid Notice of Completion with the appropriate
governmental agency, as such period may be extended by any applicable tolling statute or provision, the Buyer covenants and agrees
to give such other person written notice of these procedures by personal delivery. Buyer’s continuing obligation under this covenant
shall be binding upon Buyer and Buyer’s successors and assigns.
(d)
ALTERNATE DISPUTE RESOLUTION. IF ANY DISPUTE BETWEEN BUYER AND SELLER CANNOT
BE RESOLVED PURSUANT TO THE WARRANTY SERVICE OR NON-ADVERSARIAL DISPUTE RESOLUTION
PROCEDURES DESCRIBED IN SUBPARAGRAPHS (b) AND (c), ABOVE, OR BY ITS NATURE IS NOT SUBJECT TO
THE WARRANTY SERVICE OR NON-ADVERSARIAL DISPUTE RESOLUTION PROCEDURES DESCRIBED IN
SUBPARAGRAPHS (b) AND (c), THEN THE DISPUTE SHALL BE DECIDED BY JUDICIAL REFERENCE AS
PROVIDED BELOW.
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(i)
Judicial Reference. Any and all Disputes shall be heard by a referee pursuant to the provisions of the
California Code of Civil Procedure Sections 638-645.2, inclusive, and as set forth in this Paragraph. However, Seller shall not be
required to participate in the judicial reference proceeding unless it is satisfied that all necessary and appropriate parties (including,
without limitation, affected subcontractors, insurers and/or material suppliers) will participate.
(ii)
Procedure for Appointment. The venue of any proceeding brought under this Paragraph shall be in Los
Angeles County, California (unless changed by order of the referee). The Party seeking to resolve the Disputes shall file in the Los
Angeles County Superior Court and serve on the other Party a complaint describing the matters in dispute. Service of the complaint
shall be as prescribed by law. At any time after service of the complaint any Party may request the designation of a referee to try the
Dispute. Thereafter the Parties shall use their best efforts to agree upon the selection of a referee. If the Parties are unable to agree
upon a referee within ten (10) days after a written request to do so by any Party, then any Party may petition the presiding judge of the
Superior Court in which the action is filed or the Superior Court judge to whom the matter has been assigned (the “Judge”) to appoint
a referee. For the guidance of the Judge making the appointment of the referee, the Parties agree that the person so appointed shall be
a retired judge or a lawyer with no less than five (5) years’ experience in the subject matter of the Dispute.
(iii)
Appointment of Proposed Referee as Judge Pro Tem. In recognition that (1) there is no action pending as
of the date of this Agreement in which the Parties thereto can stipulate to the appointment of a temporary judge, (2) there is no statute
authorizing such a stipulation in advance of the filing of an action in the Superior Court, and (3) the appointment of a referee as a
temporary judge (“Judge Pro Tem”) under Article VI, Section 19 of the California Constitution and California Rules of Court Rule
244, would be preferable to a general reference, the Parties hereby covenant that in the event of the filing of an action in the Superior
Court to resolve all or any Disputes, the Parties thereto shall use their best efforts to stipulate that the proposed referee be appointed as
a Judge Pro Tem under Article VI, Section 19 of the California Constitution.
(iv)
Decision and Jurisdiction of Referee. The referee or Judge Pro Tem shall decide all issues of fact and law
submitted by the Parties for decision in the same manner as required for a trial by court, including all law and motion matters, ex parte
matters and discovery disputes. The referee or Judge Pro Tem shall try and decide any or all Disputes according to all of the
substantive, evidentiary and procedural law of the State of California. Neither the referee or Judge Pro Tem nor any Party shall have
the right to impanel a jury. A stenographic record of the hearing shall be made. The Parties hereby agree and stipulate that the record
shall remain confidential except as may be necessary for post-hearing motions and any appeals. When the referee or Judge Pro Tem
has decided the Disputes, the referee or Judge Pro Tem shall prepare a statement of decision and judgment. The judgment entered by
the Superior Court shall be appealable in the same manner as any other judgment.
(v)
Discovery. Discovery shall be allowed and conducted under the supervision of the referee or Judge Pro
Tem pursuant to the provisions of the California Code of Civil Procedure and the California Rules of Court.
(vi)
Motions. The referee shall have the power to hear and dispose of motions, including motions relating to
provisional remedies, demurrers, motions to dismiss, motions for judgment on the pleadings and summary adjudication motions in the
same manner as a trial court judge, except the referee shall also have the power to adjudicate summary issues of fact or law including
the availability of remedies, whether or not the issue adjudicated could dispose of an entire cause of action or defense.
Notwithstanding the foregoing, if prior to the selection of the referee as provided herein, any provisional remedies are sought by the
parties to the Dispute, such relief may be sought in the Superior Court of Los Angeles County.
(vii)
Cooperation. The parties shall diligently cooperate with one another and the person appointed as referee or
Judge Pro Tem to resolve each and every Dispute and shall perform such acts as may be necessary to obtain a prompt and expeditious
resolution of all such Disputes. If either Party refuses to diligently cooperate, and the other Party, after first giving notice of its intent
to rely on the provisions of this subparagraph, incurs additional expenses or attorneys’ fees solely as a result of such failure to
diligently cooperate, the referee or temporary judge may award such additional expenses and attorneys’ fees to the Party giving such
notice, even if such Party is not the prevailing party in the Dispute.
(viii)
Allocation of Costs. The Seller will advance the fees necessary to initiate the dispute or claim resolution
process. Thereafter, the parties will share equally in the cost and fees of the referee or Judge Pro Tem, but ultimately such costs shall
be borne by the Parties as determined by the referee or Judge Pro Tem as an item of recoverable costs. If either Party refuses to pay
their share of the costs of the proceeding at the time required, the other Party may do so, in which event that Party will be entitled to
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40913270.32
recover (or offset) the amount advanced, with interest at the maximum rate permitted by law, even if that Party is not the prevailing
party. The referee or Judge Pro Tem shall include such costs in the judgment or award.
(ix)
Buyer’s Covenant. Buyer covenants that Buyer shall comply with the procedures set forth above. If Buyer
breaches the foregoing covenant, Seller may obtain an appropriate order compelling the Buyer to comply with the procedures
described above. Nothing herein shall prevent the Buyer from commencing any legal action which in the good faith determination of
the Buyer is necessary to preserve the Buyer's rights under any applicable statute of limitations, provided that the Buyer shall take no
further steps in prosecuting the action until it has complied with the procedures described above.
(x)
Confidential Communications. Any and all communications by and between the Parties, whether written
or oral, which are delivered by the Parties or their attorneys or other representatives in an effort to settle the claim, shall be considered
communications undertaken in the course of effecting a settlement or compromise as such shall not be admissible as the admission on
the part of any Party or any representative or agent of that Party to be utilized for any such purpose in any action or proceeding.
11.
Waiver Of Jury Trial. In the event the foregoing judicial reference provisions of Paragraph 10 are held not to apply
or is held invalid, void or unenforceable in their entirety for any reason, all claims shall be tried before a judge in a court of
competent jurisdiction without a jury. The judge in such court of competent jurisdiction shall have the power to grant all
legal and equitable remedies and award compensatory damages. To the extent permitted by law, Seller and Buyer hereby
waive and covenant not to assert their constitutional right to trial by jury of any claims including, but not limited to, claims
relating to construction defects, misrepresentation or Seller’s failure to disclose material facts. This mutual waiver of jury
trial shall be binding upon the respective successors and assigns of such parties and upon all persons and entities asserting
rights or claims or otherwise acting on behalf of Seller or Buyer or the successors and assigns of any such parties.
12.
Seller’s Fit and Finish Warranty; Disclaimer of Other Warranties.
(a)
Seller’s Limited Warranty. As part of the documentation accompanying this Agreement, and from the date of the
Close of Escrow, Seller shall provide Buyer with a one (1) year express limited warranty (the “Limited Warranty”) against defects in
workmanship and materials covering the building components of the Unit as set forth in California Civil Code Section 900 in connection
with the Buyer’s purchase of the Unit. The Limited Warranty presently includes the fit and finish of cabinets, mirrors, flooring, interior and
exterior walls, counter tops, paint finishes and trim. In addition, Seller will provide an extended appliance repair and/ or replacement
warranty policy for a period of two (2) years which is provided through a reputable third-party. Except as specifically set forth in this
Agreement, Seller is not making or offering any warranties, express or implied, with respect to the Unit or the Project including, without
limitation, any warranties or merchantability, habitability, quality of construction or fitness for a particular purpose (see subparagraph (b),
below, regarding disclaimer of implied warranties). As to items which are within the Unit, but which the Seller did not manufacture, such as
the “consumer products” enumerated in subparagraph (b), below, Seller provides no warranty but will transfer to the Buyer any
manufacturer’s warranty as to such appliances and equipment. Notwithstanding anything to the contrary contained in this Agreement,
Buyer acknowledges and agrees, in the event of any post-closing disputes in which it is determined that Seller has breached its contractual,
statutory, or common law duties to Buyer, or has breached Seller’s one year Limited Warranty, that Seller shall be liable only for the
damages recoverable under Civil Code Section 944.
(b)
DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY, SELLER
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. SELLER SHALL MAKE AVAILABLE TO BUYER
ALL WRITTEN WARRANTIES OF CONSUMER PRODUCTS WHICH MAY BE INSTALLED IN THE BUYER'S UNIT, AS
“CONSUMER PRODUCTS” AS DEFINED IN THE UNITED STATES CODE, AND IN THE FEDERAL TRADE
COMMISSION RULES AND REGULATIONS. BUYER AGREES TO LOOK SOLELY TO THE MANUFACTURERS AND
NOT TO THE SELLER WITH RESPECT TO WARRANTIES ON SUCH CONSUMER PRODUCTS WHICH INCLUDE, BUT
ARE NOT LIMITED TO, THE FOLLOWING AS APPLICABLE: FURNACE, AIR-CONDITIONER, EXHAUST FAN,
THERMOSTAT, SMOKE DETECTORS, DOOR CHIMES, ELECTRIC METER, WATER METER, GAS METER,
GARBAGE DISPOSAL, WATER HEATER, DISHWASHER, RANGE, OVEN, OVEN HOOD, WASHER, DRYER,
REFRIGERATOR/FREEZER, MICROWAVE OVEN AND OTHER SIMILAR ITEMS. BUYER FURTHER UNDERSTANDS
THAT THIS LIST OF CONSUMER PRODUCTS IS DESCRIPTIVE AND THAT NOT ALL OF THE FOREGOING ITEMS
MAY BE INSTALLED IN THE PROPERTY.
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(c)
LIMITATION OF AVAILABLE REMEDIES. BUYER AGREES THAT THE SOLE AND EXCLUSIVE
REMEDY FOR THE BREACH OF THE LIMITED WARRANTY SHALL BE TO REPAIR OR REPLACE THE
COMPONENT. BUYER OTHERWISE AGREES TO ASSUME ALL RISKS FROM A BREACH OF WARRANTY,
INCLUDING, BUT NOT LIMITED TO, ALL ECONOMIC, CONSEQUENTIAL AND EMOTIONAL DISTRESS DAMAGES.
EXCEPT TO REPAIR OR REPLACE THE COMPONENT, SELLER SHALL NOT OTHERWISE BE LIABLE FOR ANY
DAMAGE FOR BREACH OF WARRANTY. BY INITIALING BELOW, BUYER REPRESENTS THAT BUYER
UNDERSTANDS THAT REPAIR OR REPLACEMENT UNDER THE LIMITED WARRANTY ARE EXPRESSLY
CONDITIONED UPON SELLER OR SELLER’S AUTHORIZED AGENT BEING GRANTED A REASONABLE
OPPORTUNITY TO REPAIR OR REPLACE SUCH COMPONENTS. BUYER AGREES THAT SELLER OR SELLER’S
AUTHORIZED AGENT, AND NOT BUYER, SHALL DETERMINE THE MATERIAL AND METHODS TO BE USED IN
EFFECTING REPAIRS AND/OR REPLACEMENTS PURSUANT TO THE LIMITED WARRANTY.
(d)
BUYER’S AGREEMENT TO FOLLOW PRESCRIBED CUSTOMER CARE AND MAINTENANCE
PROCEDURES. IN ACCORDANCE WITH CIVIL CODE SECTION 907, BUYER UNDERSTANDS THAT BUYER IS
OBLIGATED TO FOLLOW ALL REASONABLE INSPECTION AND MAINTENANCE OBLIGATIONS AND SCHEDULES
COMMUNICATED IN WRITING TO THE BUYER BY THE SELLER AND ANY PRODUCT MANUFACTURERS OF
“CONSUMER PRODUCTS,” AS WELL AS COMMONLY ACCEPTED MAINTENANCE PRACTICES. FAILURE BY
BUYER TO SATISFY THESE OBLIGATIONS MAY RESULT IN INVALIDATION OF WARRANTIES AND PROVIDE
SELLER WITH A DEFENSE AS TO ANY CLAIM OF BREACH OF WARRANTY. BUYER AGREES TO FOLLOW THE
MAINTENANCE REQUIREMENTS SET FORTH IN AND /OR REFERRED TO IN (i) THE GOVERNING DOCUMENTS
(INCLUDING, WITHOUT LIMITATION, THE STATED MAINTENANCE AND REPAIR OBLIGATIONS OF UNIT
OWNERS); (ii) SELLER’S LIMITED WARRANTY; AND (iii) THE MAINTENANCE AND REPAIR RESPONSIBILITIES IN
THE HANDBOOK SUPPLIED BY SELLER TO BUYER AT OR BEFORE THE CLOSE OF ESCROW.
(e)
Right-to-Repair Procedures. Buyer(s) acknowledges that Seller has elected not to use certain procedures referred to as
the “non-adversarial procedures” for the resolution of construction defect claims regarding the Unit as set forth in the Construction
Claims Statute at Sections 910-938. As authorized by Civil Code Section 914, builders such as Seller may substitute their own resolution
procedures over procedures referred to as the “non-adversarial procedures” for the resolution of construction defect claims regarding the
Property as set forth in the statute at Sections 910-938. With respect to any claims seeking recovery of damages relating to residential
construction and/or violations of the functionality standards set forth in Civil Code Sections 896-897, Seller elects to use the alternate
contractual pre-litigation procedures set forth herein in lieu of the statutory non-adversarial procedures. Notwithstanding the election to opt
out of the statutory non-adversarial pre-litigation procedures, Seller will be subject to the functionality standards as set forth in Civil Code
Sections 896-897. Seller has recorded or will record a notice of election to opt out of the “non-adversarial procedures” on the Property prior
to the Close of Escrow. Buyer has had the opportunity to read the alternative contractual pre-litigation procedures contained in the
Agreement and acknowledges that the procedures set forth therein impact Buyer’s legal rights with respect to the Property.
13.
Notices to the Parties.
(a)
Notices Generally. Any notice under this Agreement shall be in writing, and any written notice or other document shall
be deemed to have been duly given (i) on the date of personal service on Buyer or Seller; (ii) on the third business day after mailing, if the
document is mailed by registered or certified mail; (iii) one day after being sent by professional or overnight courier or messenger service
guaranteeing one-day delivery, with receipt confirmed by the courier; or (iv) on the date of transmission if sent by telegram, telex, telecopy
or other means of electronic transmission resulting in written copies, with receipt confirmed. Any such notice shall be delivered or
addressed to the parties at the addresses set forth in Paragraph 1, above, or at the most recent address specified by the addressee through
written notice under this provision. Failure to give notice in accordance with any of the foregoing methods shall not defeat the
effectiveness of notice actually received by the addressee.
(b)
Notification of Change in Address. Buyer understands and acknowledges that Buyer is responsible for advising Seller
of any change in Buyer’s address from the address stated in this Agreement, and Seller shall be entitled to rely upon the address of Buyer
stated in this Agreement unless and until it has been changed by Buyer in the manner set forth in this Paragraph 13. If the notice cannot be
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Buyer:
Seller:
40913270.32
served on Seller's agent at the above-referenced address because the agent is no longer located at the address or the agent has changed and
Seller has not provided Buyer with an updated address or the name and/or address of the new agent, Buyer may serve the claim notice on
Seller's agent for service of process on file with the California Secretary of State's office in Sacramento, California.
14.
Broker’s Commission. Seller shall pay through escrow at the Close of Escrow, all real estate commissions for services rendered
in connection with this Agreement that are owed to LDD Long Point, LLC and any party that may be acting as a cooperating broker
therewith. Buyer and Seller acknowledge that no other broker's commissions or finder's fees are payable with regard to the transaction
described in this Agreement. Buyer agrees to indemnify and hold Seller harmless from and against all liability, claims, demands, damages,
or costs or any kind arising from or connected with any broker's or finder's fees, commissions or charges claimed to be due any persons
arising from Buyer's conduct with respect to the transaction described in this Agreement, other than the commissions authorized in this
Paragraph 14. Buyer is aware that LDD Long Point, LLC is the agent of the Seller exclusively and acknowledges receipt of the disclosure
regarding real estate agency relationships.
15.
Miscellaneous Provisions.
(a)
Assignments; Successors and Assigns. This Agreement may not be assigned by the Buyer without the prior written
consent of Seller, which consent may be granted or withheld by Seller in the Seller’s sole and absolute discretion. Neither Buyer nor
Buyer’s agent may sell or market the Property to others, or sign any agreement for the listing, sale or transfer of the Property until after the
Close of Escrow. Violation of the foregoing shall constitute a material breach of this Agreement entitling Seller, at Seller’s option, to
terminate this Agreement, unless Buyer remedies such breach no later than twenty (20) days after the date on which Seller provides Buyer
with written notice thereof, and to retain the Deposit (or such portion thereof that has been deposited as of the date of termination) pursuant
to Paragraph 9 of this Agreement (if both parties have initialed Paragraph 9). This Agreement shall bind the heirs, executors,
administrators, and successors of the Parties, and their assigns (subject to the limitations stated above). Notwithstanding anything in this
Agreement to the contrary, Seller shall have the right, without obtaining the prior written consent of Buyer, to assign its rights and
obligations hereunder to any entity that acquires all of the Property from Seller. Following any such assignment, Seller or the party to
whom Seller has assigned this Agreement (“Assignee”) shall notify Buyer of the assignment. From and after any such assignment, (i) all
references in this Agreement to Seller shall be deemed to be references to Assignee, (iii) Buyer shall recognize Assignee as the “Seller”
within the meaning of this Agreement, (iii) Assignee shall be deemed to have assumed all of the Seller’s obligations to the extent such
obligations hereunder, and (iv) Seller shall automatically be released from the any and all liability and obligations hereunder.
(b)
Cooperation. Buyer shall cooperate with Seller in the process of delivery of the Property by meeting required deadlines
and providing such cooperation as may be reasonably requested by Seller.
(c)
Force Majeure Events. Seller is not responsible for “Force Majeure Events” which means events which are beyond
Seller’s reasonable control, including, but not limited to, strikes, boycotts, unavailability of materials, labor shortages, delays in receiving
materials, governmental interferences in the market place, moratoriums, civil riot, insurrection, war, acts of terrorism, foreign military
commitments, flood, fire, earthquake, acts of God, unusually severe weather, delays or inaction of independent contractors, litigation, or
delays caused by conditions imposed on the Project (or any part thereof) by any governmental entity resulting in significantly increased
costs or delays.
(d)
Owners Association. Buyer is aware that by purchasing the Property, Buyer will be subject to the Governing
Documents including the Declaration which contains provisions that contemplate the formation of the Association. Buyer is further aware
that if the Association is formed, Buyer will become a member of the Association. If formed, the Association will have all of the powers,
duties and obligations set forth in the Governing Documents. Buyer is encouraged to read the Declaration as well as all other documents
that exist, govern or other impact the Property, including, but not limited to the Unit Management Agreement, Notice of Transfer Fee and
Restrictive Covenant.
(e)
Interpretation. Any rule of law (including California Civil Code Section 1654), or legal decision that would require
interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of
this Agreement shall be interpreted in a reasonable manner to affect the purposes of the Parties and this Agreement. Buyer and Seller
acknowledge that changes in the economic conditions during the escrow period may cause the terms and conditions to not appear as
satisfactory as when this Agreement is signed. Nonetheless, Buyer and Seller agree they are bound to such terms and conditions and agree
to take all necessary and appropriate actions to cause escrow to close in a timely fashion.
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INITIALS:
Buyer:
Buyer:
Seller:
40913270.32
(f)
Modifications. All amendments or other modifications of this Agreement must be in writing and signed by the Parties
(g)
Time. Time is of the essence in this Agreement.
hereto.
(h)
Severability. Should any provision or portion of this Agreement be declared invalid or in conflict with any law of the
jurisdiction where this project is situated, the validity of all other provisions and portions of this Agreement shall remain unaffected and in
full force and effect. The Parties further agree to replace any such invalid, illegal or unenforceable portion with a valid and enforceable
provision which will achieve, to the extent possible, the economic, business or other purposes of the invalid, illegal or unenforceable
portion.
(i)
No Waiver. The waiver by Seller of any term, condition or provision of this Agreement shall not be construed as a
waiver of any other term, condition or provision of this Agreement. Any waiver by Seller of any term, condition or provision of this
Agreement shall not be enforceable unless it is in writing and signed by Seller.
(j)
Entire Agreement. This Agreement and accompanying addenda and exhibits constitutes the sole and entire agreement
between Buyer and Seller for the purchase and sale of the Property, and supersedes all prior agreements, representations or understandings,
oral or written. All advertising material and/or prior statements and representations, if any, whether oral or written, are replaced and
superseded by this Agreement. The terms of this Agreement may not be contradicted by evidence of any prior agreement or
contemporaneous oral agreement. No addition or modification of any term or provision of this Agreement shall be effective except in a
writing signed by Buyer and Seller. Any right or duty described herein that by its terms extends beyond the Close of Escrow shall survive
the Close of Escrow and remain in full force and effect in accordance with its terms. BUYER ACKNOWLEDGES AND AGREES
THAT BUYER HAS NOT, AND WILL NOT, RELY UPON ANY REPRESENTATION MADE BY SELLER OR ANY SELLER
PARTIES CONCERNING THE PROPERTY OR THE PROJECT, INCLUDING, WITHOUT LIMITATION, THE
CONDITION OR USE OF THE PROPERTY OR THE PROJECT, OR THE RIGHTS OR DUTIES OF THE PARTIES UNDER
THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
Initials:
Buyer_________
Buyer_________
(k)
Buyer’s Offer. Buyer has read and understood the provisions contained herein and offers and agrees to purchase the
Property on these terms. Buyer further understands that this Agreement initially is an offer only and will not become a binding contract
until accepted by Seller, that Seller may accept or reject Buyer’s offer for any reason or for no reason that the Buyer’s offer is subject to the
possible acceptance of Seller of an offer from another Buyer. Buyer grants the undersigned agent the irrevocable right for a period of five
(5) days from the date hereto to obtain an acceptance of this offer by Seller. The signature of the sales person who signs the receipt for the
initial deposit is not an acceptance by Seller. A valid acceptance of this offer requires a signature of a representative of Seller authorized to
accept Buyer’s offer.
(l)
FIRPTA. The Foreign Investment and Real Property Tax Act (FIRPTA) requires a Buyer purchasing real property from
a foreign person to withhold tax from the sale proceeds unless an exemption applies. Seller agrees to provide Buyer with a certification
establishing that no federal income tax is required to be withheld under FIRPTA.
(m)
Headings; Pronouns. The headings of this Agreement are for convenience only and do not in any way limit or amplify
the terms or provisions of this Agreement. All pronouns and variations thereof shall be deemed to refer to the masculine, feminine or
neuter, and to the singular or plural, as the identity of the Party or Parties may require.
(n)
Calendar Days. Except as expressly specified herein to the contrary, all periods of time referred to in this Agreement
shall include all Saturdays and Sundays and any holidays. In the event the day upon which any action is required to be taken under the
terms of this Agreement is not a business day, the action shall be taken on the next succeeding business day.
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INITIALS:
Buyer:
Buyer:
Seller:
40913270.32
(o)
Reassessment Notice. The Property may be reassessed on the change of ownership. The reassessment will be effective
as of Close of Escrow and a supplemental tax bill may be sent to the Buyer requiring the payment of additional property taxes. It shall be
the responsibility of the Buyer to pay this supplemental tax bill. If the impound account for the payment of property taxes is used, the
amount of impound payments may increase.
(p)
Megan’s Law. The California Department of Justice, sheriff’s departments, policy departments serving jurisdictions of
200,000 or more residents, and many other local law enforcement authorities maintain for public access a data base of the locations of
persons required to register pursuant to Paragraph (1) of subdivision (a) of Section 290.4 of the Penal Code. The data base is updated on a
quarterly basis and provides a source of information about the presence of these individuals in any neighborhood. The Department of
Justice also maintains a sex offender identification line through which inquiries about individuals may be made. This is a “900” telephone
service. Callers must have specific information concerning individuals about whom they are checking. Information regarding
neighborhoods is not available through the “900” telephone service.
(q)
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
(r)
DELIVERY OF FINAL PUBLIC REPORT. BUYER ACKNOWLEDGES THAT BUYER HAS RECEIVED
AND HAS HAD THE OPPORTUNITY TO READ, PRIOR TO THE EXECUTION OF THIS AGREEMENT, THE CALIFORNIA
DEPARTMENT OF REAL ESTATE'S FINAL SUBDIVISION PUBLIC REPORT COVERING THE PROPERTY. BUYER
AGREES TO EXECUTE AND DELIVER TO SELLER A RECEIPT FOR THE FINAL PUBLIC REPORT DELIVERED
HEREUNDER AND FURTHER AGREES TO REVIEW THE FINAL PUBLIC REPORT AND TO SIGN AND DELIVER TO
SELLER THE RECEIPT FOR FINAL PUBLIC REPORT ATTACHED THERETO WITHIN THREE (3) DAYS OF BUYER'S
RECEIPT THEREOF.
Initials:
Buyer_________
Buyer_________
(s)
Seller Financing and Financial Condition. Seller may borrow money from lenders and may collaterally assign
this Agreement as security for such loan(s). Neither this Agreement, nor Buyer's payment of deposits, will give Buyer, and Buyer
hereby expressly waives, any lien or claim against the Resort, the Project or the Property. Without limiting the foregoing, Buyer's
rights under this Agreement will be subordinate to all mortgages on the Property (and all modifications to those mortgages) even if
those mortgages (or modifications) are made or recorded after the date of this Agreement. BUYER ACKNOWLEDGES AND
AGREES THAT BUYER IS NOT RELYING ON THE FINANCIAL CONDITION OF SELLER AS AN INDUCEMENT TO
ENTER INTO THIS AGREEMENT AND THAT, UNDER NO CIRCUMSTANCES, SHALL ANY CHANGE IN THE
FINANCIAL CONDITION OF SELLER THE REAL ESTATE MARKET OR THE ECONOMY IN GENERAL SERVE AS
OR OTHERWISE CONSTITUTE A VALID BASIS FOR RESCISSION OF THIS AGREEMENT.
Initials:
Buyer_________
Buyer_________
(t)
Investment/Rental. BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER HAS NOT
RECEIVED OR DISCUSSED WITH SELLER OR ANY SELLER PARTY THE INVESTMENT POTENTIAL OR ANY
INFORMATION CONCERNING THE INVESTMENT POTENTIAL OF THE PROPERTY.
17
INITIALS:
Buyer:
Buyer:
Seller:
40913270.32
Initials:
Buyer_________
Buyer_________
(u)
Transfer Fee. BUYER ACKNOWLEDGES, AGREES AND UNDERSTANDS THAT IT HAS BEEN
PROVIDED WITH A COPY OF THE NOTICE OF TRANSFER FEE RECORDED ON FEBRUARY 11, 2009 IN THE
OFFICIAL RECORDS OF THE LOS ANGELES COUNTY RECORDER’S OFFICE AS INSTRUMENT NO. 2009-0187135
(A COPY OF SUCH DOCUMENT IS ATTACHED TO THIS AGREEMENT AS AN EXHIBIT) AND THAT SUCH
DOCUMENT CONSTITUTES A PERMITTED EXCEPTION, AS DEFINED HEREIN.
Initials:
Buyer_________
Buyer_________
16.
Exhibits.
BUYER ACKNOWLEDGES RECEIPT OF THE EXHIBITS, ADDENDA AND DISCLOSURES
ATTACHED HERETO AND INDENTIFIED IN ADDENDUM 1 WHICH ARE INCORPORATED INTO THIS AGREEMENT
BY REFERENCE HEREIN, AND BUYER AGREES TO BE BOUND BY ALL THE TERMS AND PROVISIONS SET FORTH
THEREIN. SELLER MAY DELIVER ADDITIONAL ADDENDA OR DISCLOSURES TO BUYER IN CONNECTION WITH
THE SALE OF THE PROPERTY, THE RECEIPT OF WHICH SHALL BE ACKNOWLEDGED IN WRITING BY BUYER
AND THEREAFTER SHALL BE INCORPORATED INTO THE TERMS OF THIS AGREEMENT. BUYER SHALL
PROVIDE COPIES OF THESE DOCUMENTS TO ANY SUBSEQUENT BUYER OF THE PROPERTY AS REQUIRED BY
CIVIL CODE SECTION 912(h).
17.
Buyer’s Right to Cancel. BUYER MAY CANCEL BUYER'S OFFER TO PURCHASE THE PROPERTY, AND
THE AGREEMENT RESULTING FROM SELLER'S ACCEPTANCE OF BUYER'S OFFER, AND RECEIVE A FULL
REFUND OF BUYER'S DEPOSIT UNTIL MIDNIGHT OF THE FOURTEENTH (14TH) CALENDAR DAY AFTER THE
DAY ON WHICH SELLER ACCEPTS THIS AGREEMENT, BY NOTIFYING SELLER IN THE MANNER PROVIDED IN
THIS AGREEMENT.
THIS IS A LEGALLY BINDING CONTRACT, READ IT CAREFULLY BEFORE SIGNING.
QUESTIONS ABOUT THIS AGREEMENT, YOU SHOULD CONSULT AN ATTORNEY.
IF YOU HAVE ANY
[SIGNATURES ON FOLLOWING PAGE]
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INITIALS:
Buyer:
Buyer:
Seller:
40913270.32
OFFER TO PURCHASE BY BUYER:
Date: _____________________, 201_
BUYER:
BUYER:
By: ____________________________________
By: ____________________________________
Printed Name: ___________________________
Printed Name: ___________________________
ACCEPTANCE BY SELLER:
Date: _________________, 201_
LONG POINT DEVELOPMENT, LLC,
a Delaware limited liability company
By:
LDD Long Point, LLC,
a Delaware limited liability company, its Manager
By:
Lowe Destination Development, Inc.,
a California corporation, its Managing Member
By: __________________________________
Name: ________________________________
Title: _________________________________
By: __________________________________
Name: ________________________________
Title: _________________________________
40913270.32
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INITIALS:
Buyer:
Buyer:
Seller:
ESCROW HOLDER ACKNOWLEDGMENT:
Escrow holder acknowledges receipt of a copy of this Agreement, and (if checked)  a deposit in the amount of
$_____________________, and agrees to act as Escrow Holder subject to Paragraph 4 of this Agreement, any supplemental escrow
instructions and terms of Escrow holder’s general provisions.
Escrow holder is advised that the date of Confirmation of Acceptance of the Agreement as between Buyer and Seller is
__________________.
Escrow #____________________.
Escrow Holder:
First American Title Company
By: _________________________________________
Date: __/__/____
Name: ______________________________________
Address: __________________________
__________________________
Phone: __________________________
Fax: ____________________________
Email: __________________________
Escrow holder is licensed by the California Department of Real Estate.
40913270.32
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INITIALS:
Buyer:
Buyer:
Seller:
ADDENDUM 1 TO
PURCHASE AND SALE AGREEMENT, EARNEST MONEY
RECEIPT AND ESCROW INSTRUCTIONS
DOCUMENTS AND DISCLOSURE ADDENDA
(THE VILLAS AT TERRANEA RESORT)
(THE CASITAS AT TERRANEA RESORT)
ALL OF THE DOCUMENTS LISTED BELOW ARE IMPORTANT TO THE PURCHASE OF THE
PROPERTY, SHOULD BE READ BY BUYER AND, AT THE CLOSE OF ESCROW, SHALL BE
DEEMED TO HAVE BEEN READ AND APPROVED BY BUYER. BUYER IS ADVISED TO RETAIN
ALL DOCUMENTS FOR FUTURE REFERENCE. COPIES OF THESE DOCUMENTS SHOULD BE
GIVEN TO ANY PERSON(S) WHO MAY IN THE FUTURE PURCHASE THE PROPERTY FROM
BUYER. BY EXECUTING THIS AGREEMENT AND INITIALING BESIDE THE DESCRIPTION OF
EACH DOCUMENT, BUYER(S) HEREBY ACKNOWLEDGES RECEIPT OF COPIES OF THE
FOLLOWING.
EXHIBIT
A.
DESCRIPTION
Description of Real Property
BUYER’S INITIALS
__________
__________
A-1.
Description of Included Furnishings
__________
__________
B.
Final Public Report and Interstate Land Sales Full Disclosure Act
Filing and related receipt
C.
Disclosure and Confirmation Regarding Real Estate Agency
Relationship
D.
California’s “Right to Repair Act” Addendum (Civil Code Sections
895-945.5)
E.
Plans
1.
2.
__________
__________
__________
__________
__________
__________
F.
Site Plan
Floor Plan of Unit
Natural Hazard Disclosure
1. __________
__________
2. __________
__________
___________
___________
G.
General Disclosure
___________
___________
H.
Mold Disclosure
___________
___________
I.
Water Heater Disclosure
___________
___________
40913270.32
J.
Smoke Detector Disclosure
___________
___________
K.
Seller’s Fit and Finish Warranty with Acknowledgment of Receipt
__________
__________
L.
M.
Governing Documents:
1. Declaration of Covenants, Conditions, Restrictions and
Reservation of Easement (Villas at Terranea Resort)
(Casitas at Terranea Resort) (CCRs)
2. Unit Management Agreement
3. Restrictive Covenant
Preliminary Title Report
1. __________
__________
2. __________
__________
3. __________
__________
__________
__________
N.
Notice of Transfer Fee
__________
__________
40913270.32
2
INITIALS:
Buyer:
Buyer:
Seller:
Insert Current
Addenda
And Exhibits
40913270.32