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Home My WebLink About2006-123 1 RESOLUTION NO. 2006-121 2 RESOLUTION OF THE CITY OF SAN BERNARDINO DIRECTING AND AUTHORIZING THE EXECUTION OF A PURCHASE AND SALES AGREEMENT 3 AND JOINT ESCROW INSTRUCTIONS AND THE EXECUTION OF A GRANT DEED 4 FOR THE SALE OF A PORTION OF CITY WATER DEPARTMENT OWNED PARCEL OF REAL PROPERTY GENERALLY LOCATED SOUTHWESTERLY OF 5 KENDALL DRIVE AND CAJON BOULEVARD IN THE CITY OF SAN BERNARDINO 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. That the Mayor of the City of San Bernardino is hereby directed and 9 authorized to execute on behalf of said City, a Purchase and Sales Agreement and Joint Escrow 10 11 Instructions between the City of San Bernardino and BNSF Railway Company, a copy of which is attached hereto as Exhibit "I" and made a part hereof, and a Grant Deed, a copy of which is 12 13 attached hereto as Exhibit "2" and made a part hereof, for the sale of a portion of City Water 14 Department owned parcel ofreal property generally located southwesterly of Kendall Drive and 15 Cajon Boulevard, in said City, and more fully described in detail in said Exhibit "1" and said 16 Exhibit "2". 17 18 SECTION 2. Said Agreement shall be null and void if either party fails to 19 execute the Agreement within sixty (60) days of the date of adoption of this Resolution. 20 II / 21 / / / 22 23 24 25 26 27 28 04/26/06 RESOLUTION OF THE CITY OF SAN BERNARDINO DIRECTING AND AUTHORIZING THE EXECUTION OF A PURCHASE AND SALES AGREEMENT AND JOINT ESCROW INSTRUCTIONS AND THE EXECUTION OF A GRANT DEED FOR THE SALE OF A PORTION OF CITY WATER DEPARTMENT OWNED PARCEL OF REAL PROPERTY GENERALLY LOCATED SOUTHWESTERLY OF KENDALL 1 DRIVE AND CAJON BOULEVARD IN THE CITY OF SAN BERNARDINO 2 3 4 5 Common Council of the City of San Bernardino at a 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Approved as to Form: 25 26 27 28 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and joint regular meeting thereof held on the 1st day of May wit: Council Members: AYES NAYS ESTRADA X BAXTER X MCGINNIS X DERRY X KELLEY X JOHNSON X MCCAMMACK , 20~, by the following vote, to ABSENT ABSTAIN X ~~~.~ The foregoing resolution is hereby approved this A l'-~day of May ,20___ 11/13/01 2 PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BETWEEN CITY OF SAN BERNARDINO, a municipal corporation, successor-in-interest to SAN BERNARDINO WATER UTILITIES CORPORATION, a California corporation ("SELLER") AND BNSF RAILWAY COMPANY, a Delaware corporation ("PURCHASER") A534-003-.S9324,[ TABLE OF CONTENTS ARTICLE I. PURCHASE - PURCHASE PRICE - TITLE - ESCROW ................................1 1.01. Pu rchase....................... ........ ...............................................................................1 1.02. Pu rchase Price ............... .......... ...........................................................................2 1.03. Title and Permitted Exceptions ........................................................................2 1.04. Escrow......................................................... ................. ........... ............................2 1.05. Section 1031 Exchange Option .........................................................................2 ARTICLE II. TITLE - PHYSICAL CONDlTION ...................................................................3 2.01. Preliminary Report ............................................................................................3 2.02. Property To Be Conveyed .................................................................................3 2.03. Physical Condition .............................................................................................3 ARTICLE III. CLOSING DATE AND CLOSING...................................................................3 3.01. Closing and Closing Date ..................................................................................3 3.02. Obligations of Seller at Closing ........................................................................3 3.03. Obligations of Purchaser at Closing.................................................................4 3.04. Conditions to the Ohligation of Seller at Closing............................................4 3.05. Conditions to the Ohligation ofPnrchaser at Closing....................................4 3.06. Termination ........................................................................................................4 ARTICLE IV. REPRESENTATIONS, WARRANTIES AND COVENANTS ......................5 4.01. Representations and Warranties of Seller .......................................................5 4.02. Survival of Representations and Warranties of Seller ...................................6 4.03. Covenants of Seller ............................................................................................6 ARTICLE V. CLOSING COSTS, PRORATIONS ...................................................................7 5.01. Closing Costs ......................................................................................................7 5.02. Prorations of Taxes ............................................................................................ 7 A534-OO3--59324.1 (i) ARTICLE VI. BROKERAGE COMMISSIONS.......................................................................7 6.01. Brokers or Finders.............................................................................................7 ARTICLE VII. MISCELLANEOUS ..........................................................................................7 7.01. Survival of Terms............................................................................................... 7 7.02. Intentionally Omitted ........................................................................................7 7.03. Affidavit of Non-Foreign Status .......................................................................7 7.04. Binding Effect .......................... ................................ .... .......................................7 7.05. Entire Agreement............................................................................................... 7 7 .06. Headings..............................................................................................................8 7.07. In terpretation ............... ....... ......... ....................... ...............................................8 7 .08. Notices ................ ...................................................... ...................................... .....8 7.09. Governing Law....................................................................................................8 7.1 O. Severability .................................................................................................... .....8 7.11. Waiver .................................................................................................................8 7.12. Time of Essence ..................................................................................................8 7.13. Inaction as Disapproval.....................................................................................8 7.14. Discretion in Exercising Judgment...................................................................9 7.15. Successors and Assigns......................................................................................9 7.16. Reference to Days...............................................................................................9 7.17. Dates of Performance ........................................................................................9 7.18. Further Acts .......................................................................................................9 SCHEDULE OF EXHIBITS LEGAL DESCRIPTION........................................................................................EXHIBIT "A" PRELIMINARY REPORT ....................................................................................EXHIBIT "B" (ii) A534-003-59324,] PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS This Purchase and Sale Agreement and Joint Escrow Instructions ("Agreement"), is entered into as of this ;21 >-t day of ~~, cil=> b ,~ ("Effective Date"), between the City of San Bernardino, a municipal corporation, successor-in-interest to the San Bernardino Water Utilities Corporation, a California corporation ("Seller"), and BNSF Railway Company, a Delaware corporation, or its nominee ("BNSF" and/or "Purchaser"). Hereafter, Seller and Purchaser are sometimes individually referred to as the "Party" and collectively as the "Parties". RECITALS This Agreement is made with reference to the following facts: A. Seller owns certain real property (the "Property") particularly described in Exhibit "A" attached hereto and by this reference made a part hereof. B. Purchaser desires to purchase the Property from Seller, and Seller desires to sell the Property to Purchaser, on the terms and conditions contained in this Agreement; and C. The Parties desire to enter into this Agreement to memorialize the terms and conditions upon which Seller shall sell, and Purchaser shall purchase, the Property. OPERATIVE PROVISIONS NOW THEREFORE, in consideration of the mutual covenants and conditions provided in this Agreement, and the recitals set forth above, which are incorporated herein as a material part ofthis Agreement, the Parties hereby agree as follows: ARTICLE I Purchase - Purchase Price - Title - Escrow 1.01. Purchase. Seller shall sell, and Purchaser shall purchase, all of the Property more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof. Purchaser agrees to prepare a certificate of compliance ("Certificate of Compliance") in connection with the transaction contemplated hereby, and Seller agrees to process such Certificate of Compliance and provide for the recordation of it concurrently with the Closing hereunder. - 1- Purchase Agmnt 003 AS34-003--59324.J 1.02. Purchase Price. The total consideration to be paid by Purchaser for the acquisition of the Property shall be Twenty Thousand One Hundred Fifty-Three and Noll 00 Dollars ($20,153.00) (the "Purchase Price"), which Purchase Price is subject to the following adjustments: (a) Deposit. One Thousand and NollOO Dollars ($1,000.00) shall be paid within ten (10) business days of the Effective Date of this Agreement to Escrow (as defined below), to be held in an interest bearing escrow account with interest accruing to Purchaser (the "Deposit"); (b) Appraisal Fees. At the Closing, Purchaser shall reimburse Seller the sum of Four Thousand and Noll 00 Dollars ($4,000.00), for the fees paid by Seller to Marshall & Stevens, Inc. to conduct an appraisal of the Property on March 23, 2005. Based on the foregoing adjustments, the total amount of cash to be deposited by Purchaser at the close of Escrow (the "Closing") shall be Twenty-Three Thousand One Hundred Fifty-Three and No/IOO Dollars ($23,153.00). Seller understands and agrees that the payment by Purchaser of the foregoing amount constitutes full compensation for the purchase of the Property described in Exhibit "A" attached hereto. 1.03. Title and Permitted Exceptions. The Property shall be conveyed to Purchaser or Purchaser's assignee by grant deed of Seller (the "Grant Deed"), and shall not be subject to any liens, charges, encumbrances, easements, restrictions, rights of way, conditions, tenancies, uses, agricultural preserve contracts pursuant to the California Land Conversation Act of 1965 (the "Williamson Act"), exceptions or restrictions of any kind or character that Seller is aware of, other than those which may be approved in writing by Purchaser following the date of this Agreement (the "Permitted Exceptions"). 1.04. Escrow. Within five (5) days of the Effective Date, Purchaser will open an Escrow (the "Escrow") with Chicago Title Insurance Company, San Bernardino, California (the "Escrow Agent"), for the purpose of completing the purchase and sale of the Property as provided in this Agreement. This Agreement shall constitute the Escrow Instructions. 1.05. Section 1031 Exchange Option. Each Party hereto reserves the right, by written notice to the other Party at any time before the Closing Date, to convert this transaction to an exchange, which qualifies for non-recognition of gain under Internal Revenue Code Section 1031, and applicable provisions of the California Revenue and Taxation Code. Each Party ("Cooperating Party") agrees that, in the event the other Party ("Exchanging Party") converts this transaction to an exchange, such Cooperating Party will cooperate with the Exchanging Party to execute all amendments hereto, escrow instructions, documents, agreements, or other instruments reasonably requested by the Exchanging Party in order to complete the exchange. The Parties agree, however, that in no event shall the consummation of this transaction be predicated on such an exchange, and that the Closing shall not be extended by such exchange. The Cooperating Party in any such exchange shall not incur any additional liabilities, damages or -2 - Purchase AgmntOO3 A5J4-00J-59324I costs (including, but not limited to, reasonable attorneys' fees and related expenses) that may arise from cooperating in the exchange. ARTICLE II Title - Physical Condition 2.01. Preliminary Report. Attached hereto as Exhibit "B" is Preliminary Report No.57029324 (the "Preliminary Report") issued by Chicago Title Company (the "Title Company") relating to the Property, which Preliminary Report will be updated by Purchaser after the date hereof. All monetary exceptions described in the Preliminary Report shall be removed by the Escrow Agent at the Closing using the Purchase Price. Purchaser shall advise Seller in writing of the non-monetary exceptions contained in the Preliminary Report, which Purchaser is willing to accept as "Permitted Exceptions". Seller shall, at its sole cost and expense, promptly undertake to eliminate or modii)' all other exceptions contained in the Preliminary Report to the reasonable satisfaction of Purchaser. Seller shall use its best efforts to promptly remove any such exceptions. In the event Seller is unable to remove any such exceptions on or before the Closing Date, Purchaser may, at its option, (i) accept title subject to the objections raised by Purchaser, or (ii) terminate this Agreement, in which case this Agreement shall be of no further force and effect and all amounts deposited by Purchaser hereunder shall be returned to Purchaser. 2.02. Property To Be Conveyed. Seller shall deliver good and marketable title to Purchaser by Grant Deed, subject only to the Permitted Exceptions. 2.03. Physical Condition. Purchaser's obligations hereunder shall be conditioned upon Purchaser's satisfaction with the physical condition of the Property, in Purchaser's sole and absolute discretion. In the event that Purchaser disapproves the physical condition of the Property, Purchaser shall give written notice of such disapproval to Seller and Escrow Agent, this Agreement shall terminate, and neither Party shall have any further rights or obligations hereunder. ARTICLE III Closing Date and Closing 3.01. Closing and Closing Date. The purchase and sale of the Property as provided in this Agreement shall be consummated at the Closing which shall be held at the offices of the Escrow Agent on, or before, the later of: (i) ninety (90) days of the Effective Date, or (i1) fifteen (15) days following completion of the Certificate of Compliance (the "Closing Date"). Purchaser may advance the Closing Date upon fifteen (15) days' prior written notice to Seller. 3.02. Obligations of Seller at Closing. At the Closing, Seller shall: (i) execute, acknowledge and deliver the Grant Deed to Purchaser or Purchaser's assignee, which shall grant and convey to Purchaser or Purchaser's assignee title to the Property, subject only to the - 3 - Purchase AgrmlOO3 AS34-(103--S9324.1 Permitted Exceptions, and (ii) cause the Title Company to issue a CL T A policy oftitle insurance to Purchaser, subject only to the Permitted Exceptions ("Title Policy"). Purchaser shall pay the cost ofthe Title Policy. 3.03. Obligations of Purchaser at Closing. At the Closing, Purchaser shall cause the Escrow Agent to deliver to Seller the Purchase Price. 3.04. Conditions to tbe Obligation of Seller at Closing. In addition to any other conditions provided in this Agreement for the benefit of Seller, the obligation of Seller to sell the Property to Purchaser shall be subject to the condition that Purchaser shall have performed and complied with all of the terms and conditions provided in this Agreement to be performed or complied with by Purchaser before or at the Closing. 3.05. Conditions to the Obligation of Purchaser at Closing. In addition to any other conditions provided in this Agreement for the benefit of Purchaser, the obligation of Purchaser to purchase the Property from Seller shall be subject to the fulfillment of all of the following conditions no later than the Closing Date: (a) Seller shall have performed and complied with all of the terms and conditions provided in this Agreement to be performed or complied with by Seller before or at the Closing; (b) Purchaser shall have approved any exceptions to title which are identified in the Preliminary Report but which are not Permitted Exceptions; and ( c) Purchaser shall have approved the physical condition of the Property. 3.06. Termination. If any of the conditions to the Close of Escrow are not satisfied as provided in this Agreement, the Party for whose benefit any unsatisfied condition exists may terminate this Agreement and the Escrow, in which event all funds, including interest, and documents deposited by either Party into the Escrow shall be returned to that Party forthwith. In such event, the cancellation charges of the Escrow Agent shall be shared equally between the Parties. If the Escrow fails to close as a result of the default of either Party, the following shall occur: (a) If the Escrow fails to close as a result of the default of Seller, Purchaser may terminate this Agreement and the Escrow and recover from the Escrow Agent all funds, including interest, and documents deposited by it into the Escrow and may pursue against Seller all remedies which Purchaser has at law or in equity, including by condemnation, and may recover all costs, fees and expenses of every kind and character whatsoever incurred in connection with the purchase and sale of the Property, including attorneys' fees. In such event, the cancellation charges of the Escrow Agent shall be paid by Seller. - 4 - Purchase AgmnlOO3 A534.oo3--59324.1 (b) If the Escrow fails to close as a result of the default of Purchaser, Seller may terminate this Agreement and the Escrow and recover all documents deposited by Seller into the Escrow. IF PURCHASER DEFAULTS UNDER THIS AGREEMENT, SELLER SHALL BE RELEASED FROM OBLIGATION TO SELL THE PROPERTY TO PURCHASER, BUT SELLER, BY INITIALING THIS PARAGRAPH, SHALL HAVE RELEASED PURCHASER FROM ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF SUCH DEF AUL T, AND SELLER SHALL HAVE AGREED THAT SELLER SHALL RETAIN THE "DEPOSIT" AS LIQUIDATED DAMAGES, AND THAT SUCH RETENTION SHALL BE SELLER'S SOLE REMEDY AGAINST PURCHASER IN REGARD TO SUCH DEFAULT. THE PARTIES HERETO HAVE CONSIDERED THE AMOUNT OF DAMAGES WHICH SELLER IS LIKELY TO INCUR IN THE EVENT OF A DEF AUL T OR BREACH HEREUNDER BY PURCHASER, AND THE PARTIES HERETO HAVE AGREED THAT THE DEPOSIT IS A REASONABLE APPROXIMATION AND LIQUIDATION OF SELLER'S POTENTIAL DAMAGES, CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO SELLER THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTL Y OR INCONVENIENT. THE RECEIPT AND RETENTION OF SUCH AMOUNT BY SELLER IS INTENDED TO CONSTITUTE THE LIQUIDATED DAMAGES TO SELLER PURSUANT TO THE CAliFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE MEANING OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISION. SAID AMOUNT OF LIQUIDATED DAMAGES SHALL BE IN LIEU OF ANY OTHER REMEDIES, DAMAGES OR SUMS DUE OR PAYABLE TO SELLER. IN PLACING THEIR INITIALS AT mE PLA~V;;:ED' EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY STA T~S MADE ABOVE. URCHASER ~ ARTICLE IV Representations, Warranties and Covenants 4.01. Representations and Warranties of Seller. Seller represents and warrants to Purchaser the following: (a) Hazardous Substances. No part of the Property has been used by Seller for the use, storage, disposal or release of toxic or hazardous substances or wastes and that, to the best of Seller's knowledge, no part of the Property has ever been so used. Seller acknowledges that, pursuant to State and Federal law, in the event - 5 - PurdlaseAgmntOO) A534-OO3-59J.24.1 that any toxic or hazardous wastes are ultimately found to have been located in or on the Property as of the Closing, cleanup costs associated with such toxic or hazardous wastes may be the responsibility of Seller, whether such costs are incurred before or after the Closing. (b) Notices of Violation. No notice of violations of city, county, state, federal, building, land use, fire, health, safety, environmental, hazardous materials or other governmental or public agency codes, ordinances, regulations, or orders have been issued with respect to the Property. (c) Litigation. No litigation is pending or threatened with respect to the Property, Seller's interest therein, or which would otherwise inhibit Purchaser obtaining clear title to the Property. (d) California Law. There are no physical, legal, economic or political facts, circumstances, problems or governmental actions with respect to the Property which should be disclosed by Seller or its agents under California law, except those which have been disclosed to Purchaser in detail, in writing. (e) Liens. Performance of this Agreement shall not result in any breach of, constitute any default relative to, or result in the imposition of any lien or encumbrance upon the Property or any agreement or other instrument to which Seller is a party or by which the Property may be bound. The foregoing warranties shall be true as of the date of this Agreement and of the close of Escrow. If, prior to the close of Escrow, Purchaser learns that any of the foregoing warranties or any disclosures by Seller are misleading, incomplete or otherwise incorrect, Purchaser may utilize any of its remedies provided in this Agreement. 4.02. Survival of Representations and Warranties of Seller. The representations and warranties provided in Section 4.01 shall survive the Closing and delivery of the Grant Deed and shall not be affected by any investigation, verification or approval by either Party or by anyone on behalf of either Party. 4.03. Covenants of Seller. Seller covenants and agrees as follows: (a) Seller shall indemnify and hold Purchaser free and harmless from and against any and all costs, expenses and liabilities (including attorneys' fees) which Purchaser may suffer or incur as a result of: (i) acts of Seller, its agents or employees occurring before the Closing Date, or (ii) any misrepresentation or breach by Seller of any warranty provided in Section 4.01, or (iii) the failure of Seller to perform any of its obligations provided in this Agreement. (b) Seller shall promptly payor cause to be paid, when due, and shall indemnify and hold Purchaser harmless from and against, any and all taxes and assessments payable with respect to the Property which accrue prior to the Closing Date. - 6 - Purchase Agmnt 003 AS34-OO)..S9324.1 ARTICLE V Closing Costs, Prorations 5.01. Closing Costs. Except as otherwise provided in this Agreement: (i) the charges of the Escrow Agent, and other costs associated with the Escrow shall be paid by the Purchaser, (ii) documentary transfer taxes and recording costs shall be paid by the Purchaser, (iii) Purchaser will bear the cost of the Preliminary Report and the Title Policy, and (iv) all other expenses incurred by Seller or Purchaser with respect to the transactions contemplated by this Agreement including, without limitation, attorneys' fees, shall be paid by the Party incurring the same. 5.02. Prorations of Taxes. Secured property taxes assessed against the Property shall be prorated at the Closing based upon the latest available tax bill. All prorations shall be based upon a thirty (30) day month. ARTICLE VI Brokerage Commissions 6.01. Brokers or Finders. Each Party represents to the other Party that no broker has been involved in connection with this transaction. It is agreed that if any claims for brokerage commissions or finder fees are ever made against Seller or Purchaser in connection with the transactions contemplated by this Agreement, all such claims shall be paid by the Party whose actions or alleged commitments form the basis of such claims and the Party whose actions or commitments form the basis of such claims shall indemnifY and hold the other Party harmless from and against any and all such claims and demands (including costs and attorneys' fees). ARTICLE VII Miscellaneous 7.01. Survival of Terms. The terms and provisions of this Agreement shall survive the Closing and shall remain in full force and effect thereafter. 7.02. Intentionally Omitted. 7.03. Affidavit of Non-Foreign Status. Seller hereby certifies that it is not a foreign corporation, foreign partnership, foreign trust, foreign estate, or non-resident alien for purposes of the United States Income Taxation (as those terms are defined in the Internal Revenue Code and Income Tax Regulations). Seller shall deliver to Purchaser at or before the Closing, such documentation as may be reasonably requested by Purchaser to confirm that it is not a foreign person in compliance with Internal Revenue Code Section 1445, and in compliance with the California Franchise Tax Board. 7.04. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. 7.05. Entire Agreement. This Agreement contains the entire agreement between the Parties relative to the subject matter of this Agreement and there are no oral or parol agreements - 7- PurchllSeAgmnlOO3 A534_003"":'S9324I existing between them relative to the same which are not expressly provided in this Agreement. This Agreement may only be modified by a writing executed by both ofthe Parties. 7.06. Headings. The Section headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. 7.07. Interpretation. Whenever the context so requires, the singular and the plural shall each be deemed to include the other, and each of the masculine, the feminine and the neuter shall each be deemed to include the other. Should any provision of this Agreement require interpretation, it is agreed that the person or persons interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one Party by reason of the rule of construction that a document is to be construed more strictly against the Party who itself or through its agent or counsel prepared the same or caused the same to be prepared. The language in all parts of this Agreement shall be in all cases construed simply, fairly, equitably and reasonably, according to its plain meaning and not strictly for or against any of the Parties. 7.08. Notices. Any notice, consent, approval or other communication required or permitted in connection with this Agreement shall be in writing and shall be personally served or sent by certified United States mail, postage prepaid, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the addresses provided on the signature page hereof. Any such notice, consent, approval or other communication shall be deemed served when received. 7.09. Governing Law. This Agreement shall be construed according to the internal laws of the State of California. 7.10. Severability. If anyone or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Agreement. The Parties hereto agree to negotiate in good faith to replace any illegal, invalid or unenforceable provision of this Agreement with a legal, valid and enforceable provision that, to the extent possible, will preserve the economic bargain of this Agreement, or otherwise to amend this Agreement to achieve such result. 7.11. Waiver. No waiver by either Party of any provision of this Agreement shall be deemed a waiver of any other provision of this Agreement or of any subsequent breach by the other Party of the same provision. 7.12. Time of Essence. Time is of the essence of this Agreement and each and every provision of the same. 7.13. Inaction as Disapproval. Whenever a Party has the right to approve or disapprove a matter provided in this Agreement within a specified period of time, the failure of such Party to affirmatively approve or disapprove the same during the specified period of time shall be deemed to be its disapproval of such matter. Where no specific period of time for approval or disapproval is provided in this Agreement, the Closing Date shall be deemed to be the expiration of the period of time for approval or disapproval. - 8 - Purd!lI5eAgmntOO3 AB4-003-W324.1 7.14. Discretion in Exercising Judgment. Whenever a Party has the right to exercise its judgment or to make an election as provided in this Agreement, such judgment or election shall be in the sole discretion of the exercising or electing Party. 7.15. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the respective Party's successors and assigns. 7.16. Reference to Days. Every reference in this Agreement to days shall be deemed to be a reference to calendar days. 7.17. Dates of Performance. In the event that any date for performance by any either Party of any obligation hereunder required to be performed by such Party falls on a Saturday, Sunday or nationally established holiday, the time for performance of such obligation shall be deemed extended until the next business day following such date. 7.18. Further Acts. Each Party shall cooperate with the other Party to accomplish the transaction described herein, including the execution of such additional documents and the performance of such additional acts as may be reasonably required to accomplish the same. [END - SIGNATURES ON NEXT PAGE] - 9- Purchase AgmntOO3 A534-003-59324J . IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. SELLER: PURCHASER: CITY OF SAN BERNARDINO, a municipal corporation, successor-iu- interest to SAN BERNARDINO WATER UTILITIES CORPORATION, a California corporation By: By: Its: Address: Address: BNSF Railway Company, Attn: Robert E. Brendza Director, Facility Development 740 East Carnegie Drive San Bernardino, CA 92408-3571 City of San Bernardino Municipal Water Department Attn: Stacey R. Aldstadt General Manager 300 North D Street San Bernardino, CA 92418 Approved as to form: JAMES F. PENMAN, City Attorney By - 10- Purchase Agmnt003 A534-003..S9324J LEGAL DESCRIPTION A portion of that certain real property located in the County of San Bernardino, State of California: THAT PORTION OF LOT II OF THE MEYER AND BARCLAY SUBDIVISION, RECORDED IN MAP BOOK 12, PAGE 18, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT II WITH THE NORTHERLY RIGHT OF WAY LINE OF BURLINGTON NORTHERN SANTE FE RAILWAY COMPANY (150 FEET WIDE, HALF WIDTH), SAID POINT BEING ON A NON-TANGENT CURVE, CONCAVE TO THE SOUTH, A RADIAL TO SAID POINT BEARS NORTH 18007'26" EAST; THENCE SOUTH 02053'30" WEST ALONG SAID WESTERLY LINE OF LOT 11, A DISTANCE OF 51.84 FEET TO THE BEGINNING OF A 5,779.65 FOOT RADIUS NON-TANGENT CURVE, CONCA VE TO THE SOUTH, A RADIAL TO SAID BEGINNING BEARS NORTH 18015'32" EAST; THENCE EASTERLY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 02046'40" AN ARC DISTANCE OF 280.21 FEET; THENCE NON-TANGENT TO SAID CURVE, NORTH 430l4'00" EASIA DISTANCE OF 53.96 FEET TO THE BEGINNING OF A 5,829.65 FOOT RADIUS NON-TANGENT CURVE, CONCAVE TO THE SOUTH, A RADIAL TO SAID BEGINNING BEARS NORTH 21014'13" EAST; THENCE WESTERLY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 03046'47" AN ARC DISTANCE OF 316.74 FEET TO THE POINT OF BEGINNING. . THE AREA OF THE ABOVE DESCRIBED PROPERTY IS APPROXIMATELY 14,923.45 SQUARE FEET MORE OR LESS. EXHIBIT "A" AS34-003-,93141 PRELIMINARY REPORT EXHIBIT "B" M34-003_39324.1 @ CHICAGO TITLE COMPANY Date: August 18,2005 CRYSTAL COPOPOINGER GRESHAM, SAVAGE, NOLAN & TILDEN 550 EAST HOSPITALITY LANE, SUITE 300 SAN BERNARDINO, CALIFORNIA 92408-4205 Order No.: 57029324 - E57 Property: RE: In response to a request for our issuance of a Polley of Title Insurance, we enclose herewith our Preliminary Report for your review. Should you have any questions in connection with this or any other matter concerning the above referenced order, please do not hesitate to contact our office. Thank you for choosing Chicago Title Company. Title Department: CHICAGO TITLE COMPANY 560 E. HOSPITAliTY LANE SAN BERNARDINO, CA 92408 (909)384-7811 fax: (909)384-7886 @ URSULA KIRKSEY TITLE OFFICER PRElTR -o9/18/97bk @ CHICAGO TITLE COMPANY PRELIMINARY REPORT Dated as of: July 22, 2005 Order No.: 57029324 - E57 at 7:30 AM CHICAGO TITLE COMPANY hereby reports that tt Is prepared to Issue, or cause to be issued, as of the date hereof, a Polley or Policies of Tttle Insurance describing the land and the estate or Interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or encumbrance not shown or referred to as an Exception in Schedule B or not excluded from coverage pursuant to the printed Schedules, Condttlons and Stipulations' of said Policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in the attached list. Copies of the Policy forms are available upon request. Please read the exceptions shown or referred to In Schedule B and the exceptions and exclusions set forth In the attached list of this report carefully. The exceptIons and exclusions are meant to provlda you with notice of matters which are not covered under the terms of title Insurance polley and should be carefully considered. It Is Important to note that this preliminary report Is not a written representation as to the condttlon of tttle and may not list all liens, defects and encumbrimces affecting title to the land. THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS HERETO) IS ISSUED SOLELY FOR THE PURPOSE OF FACILITATING THE ISSUANCE OF POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT is DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE OF POLICY OF TITLE INSURANCE, A BINDER OR COMMITMENT SHOULD BE REQUESTED The form of80llCY of title insurance contemplated by this report Is: CAliF RNIA VlND TiTLE ASSOCIATION STANDARD COVERAGE POLICY Tttle Department: . Visit Us On The Web: chlcagotltle.com @ CHICAGO TITLE COMPANY 560 E. HOSPITALITY LANE SAN BERNARDINO, CA 9240B (909)3B4-7B11 tax: (909)384-7886 URSUVI KIRKSEY TITLE OFFICER PFP -oe/f1aJ9Sbk SCHEDULE A Order No: 57029324 E57 Your Ref: 1. The estate or interest in the land hereinafter described or referred to covered by this report is: A FEE . 2. Tille to said estate or interest at the date hereof is vested in: SAN BERNARDINO WATER UTILITIES CORPORATION, A CORPORATION 3. The land referred to in this report is situated in the State of California, County of SAN BERNARDINO and is described as foUows: SEE ATTACHED DESCRIPTION PFEA -10/31fS1b1l Page 1 Order No. 57029324 PARCEL 1: DESCRIPTION THAT PORTION OF LOT 11, MEYER AND BARCLAY.SUBDIVISION, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 2 PAGE 32, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGIWNING AT A POINT ON THE SOUTHERLY LINE OF THE CAJON. STATE HIGHWAY, SAID POINT BEING NORTH 620 38' WEST 3251.20 FEET FROM THE SOUTHEASTERLY CORNER OF LOT "10" OF SAID MEYER AND BARCLAY SUBDIVISION; THENCE SOUTH 430 14' WEST ALONG A LINE AT RIGHT ANGLES TO THE SOUTHERLY LINE OF SAID CAJON STATE HIGHWAY 500.00 FEET TO A POINT, BUT NOT SOUTH OF THE NORTH LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILROAD; THENCE NORTH 460 46' WEST 174.24 FEET TO A POINT; THENCE NORTH 430 14' EAST 500.00 FEET, MORE OR LESS, TO A POINT ON THE SOUTHERLY LINE OF SAID CAJON STATE HIGHWAY; THENCE ALONG THE SAID SOUTHERLY LINE OF SOUTH 460 46' EAST 174.24 FEET, MORE OR LESS, TO THE POINT OF BEGIWNING. PARCEL 2: THAT PORTION OF LOT 11, MEYER AND BARCLAY SUBDIVISION, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 2 PAGE 32 OF MAPS, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGIWNING AT A POINT ON THE SOUTHERLY LINE OF THE CAJON STATE HIGHWAY, SAID POINT BEING NORTH 620 38' WEST 3251.20 FEET FROM THE SOUTHEASTERLY CORNER OF LOT 10 OF SAID MEYER AND BARCLAY SUBDIVISION; THENCE SOUTH 430 14' WEST ALONG A LINE AT RIGHT ANGLES TO THE SOUTHERLY LINE OF SAID CAJON STATE HIGHWAY 512 FEET TO A POINT NORTH LINE OF THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILROAD; THENCE WESTERLY ALONG SAID NORTH LINE OF SAID RIGHT OF WAY A DISTANCE OF 153 FEET TO A POINT; THENCE NORTH 260 31' EAST 596.6 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID CAJON STAB HIGHWAY; THENCE ALONG 460 46' EAST A DISTANCE OF 313 FEET ALONG THE SOUTHERLY LINE OF SAID RIGHT OF. WAY TO THE PLACE OF BEGIWNING. EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE SAN BERNARDINO WATER UTILITIES CORPORATION,'A CORPORATION, BY DEED RECORDED MAY 29, 1933 IN BOOK 890 PAGE 294, OFFICIAL RECORDS. PARCEL 3: THAT PORTION OF LOT 11, MEYER AND BARCLAY SUBDIVISION, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 2 PAGE 32, OF MAPS, RECORDS OF SAID COUNTY, AS CONVEYED TO CAJON LTD., A CORPORATION, BY DEED RECORDED IN BOOK 813 PAGE 64, OFFICIAL RECORDS, LYING EAST OF THE WEST LINE OF SAID BLOCK 11; NORTH OF THE NORTH RIGHT OF WAY LINE OF THE ATCHISON, TOPEKA AND SANT FE RAILWAY; NORTHWESTERLY OF THE NORTHWESTERLY LINE OF THAT CERTAIN PROPERTY CONVEYED TO SAN BERNARDINO WATER UTILITIES CORPORATION, A CORPORATION, BY DEEDS RECORDED IN BOOK 992 PAGE 262, OFFICIAL RECORDS AND BOOK 890 PAGE 294, OFFICIAL RECORDS, AND SOUTHWESTERLY OF THE FOLLOWING DESCRIBED LINE: BEGIWNING AT A POINT ON THE NORTHWESTERLY LINE, DISTANT THEREON, SOUTH 260 31' Page 2 DESCRIPTION Order No. 57029324 WEST, 303.13 FEET FROM THE NORTHWEST CORNER OF SAID CERTAIN PROPERTY; THENCE NORTH 220 52' 20" WEST 304.12 FEET; THENCE ALONG A CURVE TO THE LEFT WITH A RADIUS OF J.425 FEET, THROUGH AN ANGLE OF 80 08' 09" A DISTANCE OF 202, 35 FEET, TO A POINT IN THE WEST LINE OF SAID BLOCK 11, DISTANT THEREON, SOUTH 30 04' WEST, 128.87 FEET FROM THE INTERSECTION OF SAID WEST LINE AND THE SOUTHWESTERLY LINE OF THE COUNTY ROAD, AS CONVEYED TO SAID COUNTY BY DEED RECORDED IN BOOK 586 PAGE 344, OF DEEDS. EXCEPTING FROM SAID PARCELS 2 A, B AND C, THOSE PORTIONS OF THE ABOVE DESCRIBED PROPERTY CONVEYED TO THE STATE OF CALIFORNIA, BY DEEDS RECORDED MAY 15, 1937 IN BOOK 1203 PAGE 418, OFFICIAL RECORDS, RECORDED SEPTEMBER 7, 1937 IN BOOK 1228 PAGE 214, OFFICIAL RECORDS AND RECORDED SEPTEMBER 7, 1937 IN BOOK 1231 PAGE 157, OFFICIAL RECORDS. SCHEDULE B Page 1 Order No: 57029324 E:57 Your Ref: At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions in the policy form designated on the face page of this Report would be as follows: A 1. PROPERTY TAXIlS, INCLUDING ANY ASSESSMENTS COLLECTIlD WITH TAXES, TO BE LE:VIED FOR THE FISCAL YEAR 2005-2006 THAT ARE A LIEN NOT YET DUE. B 2. PROPERTY TAXES FOR THE: FISCAL YEAR SHOWN BE:LOW ARE PAID. FOR INFORMATION PURPOSES THE: AMOUNTS ARE:: FISCAL YEAR: 1ST INSTALLMENT: 21ID INSTALLMENT: EXEMPTION: CODE AREA: ASSESSMENT NO: 2004-2005 $38.27 $38.24 $NONE 007-010 0262-022-01-0-000 c 3. THE LIEN OF SUPPLEMENTAL OR ESCAPIlD ASSESSMENTS OF PROPERTY TAXIlS, IF ANY, MADE PURSUANT TO THE PROVISIONS OF PART 0.5, CHAPTER 3.5 OR PART 2, CHAPTER 3, ARTICLES 3 AND 4 RESPE:cTlVELY (COMMENCING. WITH SECTION 75) OF THE REVENUE AND TAXATION CODE OF THE STATE OF CALIFORNIA AS A RESULT OF THE TRANSFER OF TITLE: TO THE VESTEE NAMED IN SCHEDULE: A; OR AS A RESULT OF CHANGES IN OWNllRSHIP OR NEW CONSTRUCTION OCCURRING PRIOR TO DATE OF POLICY. D 4. WATER RIGHTS, CLAIMS OR TITLE TO WATER, WHETHER OR NOT SHOWN BY THE PUBLIC RECORDS. B 5. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS RESERVED IN A DOCUMENT (NO REPRESENTATION IS MADE AS TO THE PRESENT OWNERSHIP OF SAID EASEMENT) PURPOSE: RECORDIlD : AFFECTS: PIPES JULY 19, 1883 IN BOOK 34 PAGE 196, OF DEEDS CANNOT BE LOCATIlD FROM THE RECORDS F 6. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT PURPOSE: RECORDED: AFFECTS: DITCHES, FLUMES AND PIPES DECE:MBER 13, 1883 IN BOOK 36 PAGE 61, OF DEEDS CANNOT BE LOCATED FROM THE RECORDS G 7. AN EASEMENT FOR THE PURPOSE SHOWN BELOW = RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTIlD TO: J. H. BARCLAY PREB .10/3,/97b1l Page 2 SCHEDULE B (continued) Yom Ref: Order No: 57029324 E57 PURPOSE: RECORDED: AFFECTS: DITCHES, FLUMES AND PIPES DECEMBER 20, 1883 IN BOOK 35 PAGE 458, OF DEEDS PARCEL 1 H 8. VARIOUS AGREEMENTS, CONDITIONS, AND RESERVATIONS AS TO WATER AND EASEMENTS AS SET FORTH IN THE DEED FROM F. H. BARCLAY, RECORDED JANUARY 9, 1884 IN BOOK 36 PAGE 87, OF DEEDS. . THE EXACT LOCATION AND EXTENT OF SAID EASEMENTS ARE NOT DICLOSED OF RECORD. I 9. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO .AS SET FORTH IN A DOCUMENT GRANTED TO: PURPOSE: RECORDED : AFFECTS: THE SOUTHERN SIERRAS POWER COMPANY PUBLIC UTILITIES DECEMBER 12, 1923 IN BOOK 822 PAGE 73, OF DEEDS, A PORTION OF SAID LAND J REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS. K 10. AN EASEMENT FOR THE PURPOSE SHOWN BELOW AND RIGHTS INCIDENTAL THERETO AS SET FORTH IN A DOCUMENT GRANTED TO: THE PACIFIC TELEPHONE AND TELEGRAPH COMPANY, A CORPORATION PUBLIC UTILITIES JULY 2, 1929 IN BOOK 518 PAGE 100, OFFICIAL RECORDS A PORTION OF SAID LAND PURPOSE: RECORDED: AFFECTS: L REFERENCE IS MADE TO SAID DOCUMENT FOR FULL PARTICULARS. M END OFSCHEDULEB N NOTE NO.1: BEFORE ISSUING ITS POLICY OF TITLE INSURANCE, THIS COMPANY WILL REQUIRE EVIDENCE, SATISFACTORY TO THE COMPANY, THAT SAN BERNARDINO WATER UTILITIES CORPORATION IS VALIDLY FORMED AND IN GOOD STANDING ON THE DATE WHEN DOCUMENTS IN THIS TRANSACTION ARE TO BE EXECUTED. ANY INSTRUMENT IN WRITING IN THE NAME OF THE CORPORATION WILL BE SUFFICIENT FOR TITLE INSURANCE PURPOSES IF, PURSUANT TO SECTION 5212 OF THE CALIFORNIA CORPORATIONS CODE, IT IS SIGNED AND ACKNOWLEDGED BY ANY ONE OF THE FOLLOWING OFFICERS: . THE CHAIRMAN OF THE BOARD OF DIRECTORS, . .THE PRESIDENT, . ANY VICE PRESIDENT PReUMao.g/23/93bk Page 3 SCHEDULE B (continued) Order No: 57029324 E57 Your Ref: AND PROVIDED IT IS ALSO SIGNED BY ANY ONE OF THE FOLLOWING ADDITIONAL OFFICERS, . THE SECRETARY, . ANY ASSISTANT SECRETARY, , CHIEF FINANCIAL OFFICER, . ASSISTANT TREASURER. ANY DEVIATION FROM THE ABOVE WILL REQUIRE THE SUBMISSION TO THIS COMPANY OF A RESOLUTION OF THE GOVERNING BODY OF SAID CORPORATION AUTHORIZING THE TRANSACTION FOR WHICH THIS REPORT HAS BEEN REQUESTED, TOGETHER WITH A COPY OF SUCH CORPORATION'S BY-LAWS. THE RESOLUTION TO DESIGNATE AS WELL, THE OFFICERS AUTHORIZED TO BXECUTE ON THE CORPORATION'S BEHALF. o NOTE NO.2: BEFORE ISSUING ITS POLICY OF TITLE INSURANCE, THIS COMPANY WILL REQUIRE EVIDENCE, SATISFACTORY TO THE COMPANY, THAT BURLINGTON NORTHERN SANTA FE RAILWAY IS VALIDLY FORMED AND IN GOOD STANDING ON THE DATE WHEN DOCUMENTS IN THIS TRANSACTION ARE TO BE EXECUTED. ANY INSTRUMENT IN WRITING IN THE NAME OF THE CORPORATION WILL BE SUFFICIENT FOR TITLE INSURANCE PURPOSES-IF, PURSUANT TO SECTION 5212 OF THE CALIFORNIA CORPORATIONS CODE, IT IS SIGNED AND ACKNOilLEDGED BY ANY ONE OF THE FOLLOWING OFFICERS: . THE CHAIRMAN OF THE BOARD OF DIRECTORS, , THE PRESIDENT, , ANY VICE PRESIDENT AND PROVIDED IT IS ALSO SIGNED BY ANY ONE OF THE FOLLOWING ADDITIONAL OFFICERS: o THE SECRETARY, , ANY ASSISTANT SECRETARY, , CHIEF FINANCIAL OFFICER, , ASSISTANT TREASURER. ANY DBVIATION FROM THE ABOVE WILL REQUIRE THE SUBMISSION TO THIS COMPANY OF A RESOLUTION OF THE GOVERNING BODY OF SAID CORPORATION AUTHORIZING THE TRANSACTION FOR WHICH THIS REPORT HAS BEEN REQUESTED, TOGETHER WITH A COPY OF SUCH CORPORATION'S BY-LAWS. THE RESOLUTION TO DESIGNATE AS WELL, THE OFFICERS AUTHORIZED TO EXECUTE ON. THE CORPORATION'S BEHALF. p NOTE NO.3: THE REQUIREMENT FOR SUBMISSION TO THIS COMPANY OF A RESOLUTION OF THE GOVERNING BODY OF SAN BERNARDINO WATER UTILITIES CORPORATION AUTHORIZING THE TRANSACTION FOR WHICH THIS REPORT HAS BEEN REQUESTED PR8.JUBC-9{23f93b1t Page 4 SCHEDULE B (continued) Order No: 57029324 E57 Your Ref: TOGETHER WITIl A COPY OF SUCH CORPORATION'S BY LAWS. THE RESOLUTION MUST DESIGNATE THE OFFICERS AUTHORIZED TO EXECUTE ON TIlE CORPORATION'S BEHALF. Q NOTE NO.4: THE CHl\RGE FOR A POLICY OF TITLE INSURANCE, WHEN ISSUED THROUGH THIS TITLE ORDER, WILL BIl BASED ON THE BASIC (NOT SHORT-TERM) TITLE INSURANCE RATE. . NOTE NO.5: IF TIllS COMPANY IS REQUESTED TO DISBURSE FUNDS IN CONNECTION WITH THIS TRANSACTION, CHAPTER 598, STATUTES OF 1989 MANDATES HOLD PERIODS FOR CHECKS DEPOSITED TO ESCROW OR SUB-ESCROW ACCOUNTS. THE MANDATORY HOLD PERIOD FOR CASHIER'S CHECKS, CERTIFIED CHECKS AND TIlLLER'S CHECKS IS ONll BUSINESS DAY AFTER THE DAY DEPOSITED. OTHER CHECKS REQUIRE A HOLD PERIOD OF FROM TWO TO FIVE BUSINIlSS DAYS AFTER THE DAY DEPOSITED. IN THE EVENT THAT THE PARTIES TO THE CONTEMPLATED TRANSACTION. WISH TO RECORD PRIOR TO THE TIME THAT THE FUNDS ARE AVAILABLE FOR DISBURSEMENT (AND SUBJECT TO COMPANY APPROVAL), THE COMPANY WILL REQUIRE THE PRIOR WRITTEN CONSENT OF THE PARTIES. UPON REQUEST, A FORM ACCEPTABLE TO THE COMPANY AUTHORIZING SAID EARLY RECORDING MAY BE PROVIDED TO ESCROW FOR EXECUTION. WIRE TRANSFERS THERE IS NO MANDATED HOLD PERIOD FOR FUNDS DEPOSITED BY CONFIRMED WIRE TRANSFER. THE COMPANY MAY DISBURSE SUCH FUNDS THE SJ\ME DAY. CHICAGO TITLE WILL DISBORSE BY WIRE (WIRE-OUT) ONLY COLLECTED FUNDS OR FUNDS RECEIVED BY CONFIRMED WIRE (WIRE-IN). THE COMPANY'S WIRE-IN INSTRUCTIONS ARE: WIRE-IN INSTRUCTIONS FOR UNION BANK: BANK: UNION BANK OF CALIFORNIA 1980 SATORN STREET MONTEREY PARK, CA 91755 BANK ABA: 122000496 ACCOUNT NAME: CHICAGO TITLE COMPANY INLAND MIlTRO MARKET CENTER ACCOUNT NO. : 9120052826 FOR CREDIT TO: CHICAGO TITLE COMPANY 560 EAST HOSPITALITY LANE SAN BERNARDINO, CA 92408 FORTHER CREDIT TO: ORDER NO.: 057029324 PREUMBC-9/23f93bk Page 5 SCHEDULE B (continued) Your Ref: Order No: 57029324 E57 SG/UK PfE.lMBC-I/23/83bk Notice You may be entitled to receive a $20.00 discount on escrow services if you purchased, sold or refinanced residential property in California between May 19, 1995 and November 1, 2002. If you had more than one qualifying transaction, you may be entitled to multiple discounts. If your previous transaction involved the same property that is the subject of your current transaction, you do not have to do anything; the Company will provide the discount, provided you are paying for escrow or title services in this transaction. If your previous transaction involved property "different from the property that is subject of your current transaction, you must inform the Company of the earlier transaction, provide the address of the property involved in the previous transaction, and the date or approximate date that the escrow closed to be eligible for the discount. Unless you inform the Company of the prior transaction on property that is not the subject of this transaction, the Company has no ohligation to conduct an investigation to determine if you" qualify for a discount If you provide the Company information concerning a prior transaction, the Company is required to determine if you qualify for a discount. AGN -.11 /22/04 AA CHICAGO TITLE INSURANCE COMPANY Fidelitv Natlonal Financial Grouo of Comoanles' Privacv Statement July 1, 2001 We recOgnize and respect the privacy expectatlon of today's consumers and the requirements of applicable federal and state privacy laws. We believe that making you aware of how we use your non-public personal Infonnation iPersonal Information'), and to whom tt Is disclosed, wlll form the basis for a relationship of trust between us and the public that we serve. This Privacy Statement provides that explanation. We reserve the right to change this Privacy Statement from time to time consistent with applicable privacy laws. In the course of our business, we may collect Personal Information about you from the followlng sources: * From applications or other forms we receive from you or your authorized representative; * From your transactions wtth, or from the services being performed by, us, our affiliates, or others; * F rom our internet web sttes; * From the public records maintained by govemmental entttles that we either obtain directly from those entttles, or from our affUiates or others; and * From consumer or other reporting agencies. Our Policies Regarding The Protection Of The Confidentiality And Security Of Your Personal Information We maintain physical, electronic and procedural safeguards to protect your Personal Information from unauthorized access or Intrusion. We Iimtt access to the Personal Information only to those employees who need such access in connection wtth providing products or services to you or for other legitimate business purposes. Our Policies and Practices Regarding the Sharing of Your Personal Information We may share your Personal Information with our affiliates, such as Insurance companies, agents, and other real estate selllement service providers. We may also disclose your Personal Information: * to agents, brokers or representatives to provide you with services you have requested; * to third-party contractors or service providers who provide services or perform marketing or other functions on our behalf; and * to others wtth whom we enter Into joint marketing agreements for products or services that we believe you mayflnd of Interest In addition, we will disclose your Personal Information when you direct or give us permission, when we are requIred by law to do so, or when we suspect fraudulent or criminal actlvtties. We also may disclose your Personal Information when otherwise permitted by applicable privacy laws such as, for example, when disclosure Is needed to enforce our rfghts arising out of any agreement, transaction or relationship wtth you. One of the important responsiblltties of some of our affiliated companies Is to record documents In the public domain. Such documents may contain your Personal Information. Right To Access Your Personal Information And Ability To Correct Errors Or Request Change Or Delation Certain states afford you the right to access your Personal Information and, under certain circumstances, to flnd out to whom your Personal Information has been disclosed. Also, certain states afford you the right to request correction, amendment or deletion of your Personal Information. We reserve the right, where permitted by law, to charge a reasonable fee to cover the costs Incurred in responding to such requests. All requests must be made In writing to the following address: Privacy Compliance Officer Fidelity National Financial, Inc. 601 Riverside Drive Jacksonville, FL 32204 Multiple Products or Services: If we provide you with more than one flnancial product or service, you may receive more than one privacy notice from us. We apologize for any inconvenience this may cause you. PRlVACYT -10/21 /03 AA CIJ o I '" '" '" .- ~~M si;s-l ~' :0. .:Z..,,",,~ ... "~"'~""""''' II; "I!'l~!:';'f\I~'" ~~'::l-,,:"'-'" "--~ '" o Cl.. ,,=<::08' o ~z c 0.... _<<I m<D-O:: .t:<::CD ., "'~ ~\J"'7 (llL.'_ "O.CC Q> 0 <1>,,- .s::.._:: c: ~"Eoo E.: '0 :a ::1'0 C IV -ern.... .!!~!1>- Q,Q.' ~.o "'.c ~ .E-:O;-1:J Q) '" .!!!-oE .c cti_ ~ ......glIlU) ,....-0;1 zo. <:-e?", ~ ~.!.- a:c~~c: 00 :=0 0.... '-.r;:'- /1) ~ &5.~.g Q; ->~=.c ~ " "'5 ou Cl.~o 0"'" :l;0- 0.... ~ ..U)t\I g .' ~"'~ g{\l~ ~ ".., on 0" I on 0 0 "'""" I . - . ..J o . ~- -I . ",-,: " ::j ... - c 01- --J c ~ 0" . _ 0 c~ .", " . . . ~ . . .... __ e o~ '" .., .. '" "2 :> 0'" ,,'" '- ~ 'E<:(,..., o '" E~t:: ,,0 _ CDQ:~ c:)(~ ""0 !/>I"- .:; :> (f) '" " '0 .... o Cll~ "- ~~ cD ~:E Ql :>., '" :::!; ,@ ~ - @ ,; .. " ~ . ~~ ." ~: 01 . .-'A ; \,~12 "'0 .~~ .f.LNl"IO? ~ ~_ _ _ _--D-_ __c~___ ___ __ ___ ___D-__ ____ _ _ ___ _ _ ___ _ _ ~_ _ ",-0 57029324 maps - SB:A 262-2 .. !! 10f1 CL T A PRELIMINARY REPORT FORM Exhibit A (Revised 01/04/02) CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990 EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this polley and the Company will not pay loss'or damage, costs, attorneys' fees or expenses which arise by reason at 1. (a) Any law, ordinance or governmental regulation (including but not limited/to building or zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating (I) the occupancy, use, or enjoyment of the land; OQ the character, dimensions or location of any improvement now or hereafter erected on the land; 01) a separation In ownership or a change In the dimensions or area of the land or any parcel of which the land is or was a part; or (Iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, excE\pt to the extent that a notice of the enforcement there of or a notice of a defect, lien, or encumbrance resulting from a violation or alleged violation effecting the land has been recorded in the public records at Date of Policy: 2. (b) Any governmental police power not excluded .by (a) above, except to the extent that a notice of the exercise thereof or notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the public records at Date of Policy. Rights of eminent domain unless notice of the exercise thereof has been recorded In the pubic records at Date of Policy, but not excluding from coverage any taking Which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens. encumbrances, adverse claims or other matters: (a) whether or not recorded In the public records at Date of Polley, but created, suffered, assumed or agreed to by the Insured claimant; (b) not known to the Company, not recorded In the public records at Date of Policy, but known to the insured claimant and not disclosed In writing to the Company by the insured claimant prior to the date the Insured claimant became an insured under this policy; (c) resulting In no loss or damage to the Insured claimant; (d) attaching or created subsequentto Date of Polley; or (e) resulting In loss or damage which would not have been sustained If the insured had paid value for the Insured mortgage or forthe estate or interest Insured by this polley. . 4. Unenforceabillty of the lien of the insured mortgage because of the inability or failure of the Insured at Date of Policy, or the Inability or fellure of any subsequent owner of the Indebtedness, to comply with the applicable doing busIness laws of the state in which the land Is situated. Invalidity or unenforceablllty of the lien of the insured mortgege, or claim thereof which arises out of the transaction evidenced by the insured mortgage and Is based upon usury or any consumer credit protection or truth in lending law. 5. Any claim which arises out of the transaction vesting in the insured the estate of Interest Insured by this polley or the transaction creating the Interest of the insured lender, by reason of the operation of federal bankruptcy, state insolvency or similar creditors' rights laws. C1.TASCPl -03j2C/0'2.AA CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY -1990 (Continued) EXCEPTIONS FROM COVERAGE - SCHEDULE 8, PART 1 This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: 1 . Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result In taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, Interests. or claims which are not shown by the public records but which couid be ascertained by an inspection of the land which or which may be asserted by persons in thereof. 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. 4. Discrepancies. conflicts In boundary lines, shortage In area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records. CI.TASCP2- c3/20/O'lAA CLTA HOMEOWNER'S POLICY OF TITLE INSURANCE (6/2/96) ALTA HOMEOWNER'S POLICY OF TITLE INSURANCE (10/17/98) EXCLUSIONS In addhion to the exceptions In Schedule B, You are not Insured against loss, costs, attorneys' fees, and expenses resulting from: 1. Governmental pollee power, and the existence or violation of any law or government regulation. This Includes ordinances, laws and regulations concerning a. b. c. d. building zoning Land use Improvements on the Land Land division environmental protection e. f. This Exclusion does not apply to violations or the enforcement of these matters Ii notice of the violation or enforcement appears In the Public Records at the Policy Date. This Exclusion does not limll the coverage described in Covered Risk 14,15,16,17 or 24. 2. The failure of Your existing structures, or any part of them, to be constructed in accordance with applicable building codes. This Exclusion does not apply to violations of building codes if notice of the violation appears in the Public Records at the Policy Date. 3. The right to take the Land by condemning II, unless 4. Risks: a. b. c. d. .. notice of exercising the right appears in the public records at the Polley Date; or b. the taking happened before the Policy Date and is binding on You Ii You bought the land without Knowing of the taking. that are created, allowed, or agreed to by You, whether or not they appear In the Public Records; that are Known to You at the Polley Date, but not to Us, unless they appear In the Public Records at the Policy Date: that result In no loss to You; or that first occur after the Policy Date - this does not IImll the coverage descrfbed in Covered Risk 7,a.d, 22, 23,24 or 25. 6. Failure to pay value for YOUR Title. 6. Lack of a right: CLTAHOP- 03/20/a2AA a. to any Land outside the area specliically described and referred to In paragraph 3 of Schedule A; and b. In streets, alleys, or wetelWaYs that touch the Land. This Exclusion does not limit the coverage described In Covered Risk 11 or lB. AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY (6-1-87) EXCLUSIONS In addition to the Exceptions in Schedule 8, you are not Insured against loss, costs attorneys' fees, and expenses resulting from: 1. Governmental police power, and the existence or violation of any law or governmental regulation. This includes building and zoning ordinances and also laws and regulations concerning: land use Improvements on the land land division environmental protection this exclusion does' not apply' to violations or the enforcement of these matters which appear in the public records at Policy Date. This exclusion does not IImillhe zoning coverage described in Items 12 and 13 d Covered Title Risks. 2. The right to take the land by condemning ~, unless: a notice of exercising the right appears in the public records on the Polley Date the taking happens prior to the Policy Date and Is binding on you II you bought the land ~hout knowing of the taking 3. T~le Risks: that are created, allowed, or agreed to by you that are known to you, but not to us, on the Polley Date - unless they appear In the public records that result in no loss to you that first affect your t~le after the Policy Date - this does not IIm~ the labor and material lien coverage In ~em B of Covered Tttle Risks 4. Failure to pay value for yourtltle. 5. Lack of a right: to any land outside the area specifically described and referred to in Item 3 of Schedule A OR in streets, alleys, or waterways thattouch your land This exclusion does not IIm~ the access coverage In Item 5 of Covered Title Risks. ALTARTlP- r:J3/20/rYJ. AA AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (10-17-92) W1THALTAENDORSEMENT-FORM 1 COVERAGE and AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY (10-17-92) WITH ALTA ENDORSEMENT-FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations)restrlctlng, regulating, prohibiting or relating to (l) the occupancy, use, or enjoyment of the land; (Ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (ill) a separation In ownership or a change In the dimensions or area of the land or any parcel of which the land Is or was part; or (Iv) environmental protection, or the effect of any violation of thes laws, ordinances or governmental regulations, except to the extent that. a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resuiting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in tha public records at Date of Policy. (b) 2. Rights of eminent domain unless notice of the exercise thereof has been recorded In the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) (b) created, suffered, assumed or agreed to by the Insured claimant; not known to the Company, not recorded in the public records at Data of Polley, but known to the Insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the Insured claimant became an Insured under this policy; (c) (d) resulting in no loss or damage to the Insured claimant; attaching or created subsequent to Date of Policy (except to the extent that this policy Insures the priority of the lien of the Insured mortgage over any statutory lien for services, labor or material or to the extent Insurance is afforded herein as to assessments for street improvements under construction or completed at Date of Policy); or resulting In loss or damage which would not have been sustained If the insured claimant had paid value for the insured mortgage. (e) 4. Unenforceability of the lien of the Insured mortgage because of the inability or failure of the Insured at Date of Polley, or the Inability or failUre of any subsequent owner of the Indebtedness to comply with applicable doing business laws of the state In which the land b situated 5. Invalidity or unenforceability of the lien of the insured mortgage, or claim thereof, which arises out of the transaction evidenced by the Insured mortgage and is based upon usury or any consumer credit protection or truth In lending law. ALTALPE1-03/20/D2AA AMERICAN LAND TITLE ASSOCIATION LOAN POLICY (10-17-92) WITH ALTA ENDORSEMENT-FORM 1 COVERAGE and AMERICAN LAND TITLE ASSOCIATION LEASEHOLD LOAN POLICY (10-17-92) WITH AL T A ENDORSEMENT -FORM 1 COVERAGE (CONTINUED) 6. Any statutory lien for services, labor or materials (or the claim of priority of any statutory lien for services, labor or materials over the lien of the Insured mortgage)arislng from an improvement or work related to the land whIch is contracted for and commenced subsequent to Date of Policy and is not financed In whole or in part by proceeds of the Indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or Is obligated to advance. 7. Any claim, which arises out of the transaction creating the interest of the mortgagee Insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar credItors' rights laws, that Is baaed on: . (i) the transaction creating the Interest of the insured mortgagee being deemed a fraudulent conveyance or fraudulent transfer; or the subordination of the Interest of the insured mortgagee as a result of the doctrine of equttable subordination; or the transaction creating the interest of the insured mortgagee beIng deemed a preferential transfer except where the preferential transfer results from the failure: 0Q (IiQ (a) (b) to timely record the instrument of transfer; or of such recordation to impart notice to a purchaser for value or a Judgment or lien credttor. The above policy forms may be issued to afford etther Standard Coverage or Extended Coverage. In addhlon to the above Exclusions from .Coverage,. the Exceptions from Coverage In a Standard Coverage policy will also Include the followin!;j General Exceptions: EXCEPTIONS FROM COVERAGE This policy does not insure against loss or damage (and the Company will not pay costs, attomeys' fees or expenses) which arise by reason of: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result!n taxes or assessments, or notices, of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, riglits, Interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making Inquiry of persons in possession thereof. 3. Easements; liens, or encumbrances, or claims thereof, which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and whIch are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions in patents or In Acts authorizIng the Issuance thereof; (c) Vlater rights, claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public records. ALTAlPE2-oa/'/JJ/O'ZAA ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (10/13/01) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this pellcy and the Company wm not pay loss or damage. costs, attorneys fees or expenses which arise by reason of: 1. Any law, ordinance or governmental regulation (ineludlng but not lim~ed to zoning laws, ordinances, or regulations) restnctlng, regulating, prohibiting or relating to (i) the occupancy, use, or enjoyment of the Land; OQ the character, dimensions or location of any improvements now or hereafter erected on the Land ; Oli) a separation In ownership or a change in the dimensions or areas of the Land or any parcel of which the Land is or was a part; or (lI)environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the Land has been recorded in the Public Records at Date of Policy. This exel,sion does not IIm~ the coverage provided under Covered Risks 12, 13, 14, and 16 of this policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice of a pefect, lien or encl!l11brance resulting.from a violation or alleged violation affecting the Land has been recortled In the Public Records at Date of Policy. This exclusion does not limit the coverage provided under Covered Risks 12, 13, 14, and 16 of this policy. (a) 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the Public Records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without Knowledge. 3. Def~cts, liens, encubrances, adverse claims or other matters: (a) created, suffered, assumed or agreed to by the Insured Claimant; (b) not Known to the .Company, not recorded In the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in wr~ing to the Company by the Insured Cleimant prior to the date the Insured Claimant became an Insured under this policy; resulting in no loss damage to the Insured Claimant; attaching or created subsequent to Date of Policy (tnls paragraph does limit the coverage provided under Covered Risks 8, 16, 18, 19, 20, 21,22,23,24,25 and 26); Dr resulting in loss or damage which would not have been sustained If the Insured Claimant had paid value for the Insured Mortgage. (c) (d) (e) 4. Unenforceabil~y of the lien of the Insured Mortgage because of the Inability or failure of the Insured at Date of Policy, or the Inabll~ or failure of any subsequent owner of the Indebtedness, to comply with applicable doing business laws of the state In which the Land is situated. 5. Invalid~ or unenforceabil~ of the lien of the Insured Mortgage, or claim thereof, which arises out of the transaction evidenced by the Insured Mortgage and is based upon usury, except as provided in Covered Risk 27, or any consumer credit protection or truth in lending law. ALTAEAL1-03!20/02AA ALTA EXPANDED COVERAGE RESIDENTIAL LOAN POLICY (10/13/01) (Continued) 6. Real property taxes or assessments of any governmental authority which become a lien on the Land subsequent to Date of Polley. This exclusion does not IImtt the coverage provided under Covered Risks 7, 8(e) and 26. 7. Any claim of Invalidity, unenforceabiltty or lack of prtortty of the lien of the Insurad Mortgage as to advances or modifications made after the Insured has Knowledge that the vestee shown In Schedule A Is no longer the owner of the estate or interest covered by this polley. This exclusion does not Iimtt the coverage provided In Covered Risk 8. 8. Lack of priortty of the lien of the Insured Mortgage as to each and every advance made after Date of Policy, and all interest charged thereon, over liens, encumbrances and other matters affecting the title, the existence of which are Known to the I nsured at: (a) (b) The time of the advance; or the time a modification is made to the terms of the Insured Mortgage which changes the rate of Interest charged, If the rate of Interest is greater as a result of the modification than it would have been before the modification. This exclusion does not Iimtt the coverage provided In Covered Risk 8. 9. The failure of the residential structure, or any portion thereof to have been constructed before, on or after Date of Polley In accordance wtth applicable building codes. This exclusion does not apply to violations of building codes if notice of the violation appears in the Public Records at Date of Policy. ALTAEFU - 03/2D/02AA AMERICAN LAND TILlE ASSOCIATION OWNER'S POLICY (10-17-92) and AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY (10-17-92) EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not Iimtted to building and zoning laws, ordinances, or regulatlons)restrictlng, regulating, prohlbttlng or relating to (Q the occupancy, use, or enjoyment of the land: (II) the character, dimensions or location of any Improvement now or hereafter erected on the land; (IIQ a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (Iv) environmental protection, or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resuttlng -from a violation or alleged affecting the land has been recorded In the pubic records at Date of Policy. 2. (b) Any governmental pollee power not excluded by (a) above, except to the extent notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded In the public records at Date of Polley. Rights of eminent domain unless notice of the exercise thereof has been recorded In the public records at Date of Policy, but not excluding from coverage any taking which has occurred prior to Date of Policy which would be biding on the rights of a purchaser for value wtthout knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) (b) created, suffered, assumed or agreed to by the insured claimant; not known to the Company, not recorded in the public records at Date of Polley, but known to the Insured claimant and not disclosed In wrttlng to the Company by the Insured claimant prior to the date the Insured claimant became an insured under this polley; (c) (d) (e) resulting in no loss or damage to the Insured claimant; attaching or created subsequent to Data of Polley; or . resulting in loss or damage which would not have been sustained II the Insured claimant had paid value for the estate or Interest Insured by this policy. 4. Any claim, which arises out of the transactIon vesting in the insured the estate or Interest insured by this polley, by reason of the operation of federal bankruptcy, state insolvency, or similar credttors' rights laws, that is based on: ALTAOPL1 - 03/20/O?AA (I) the transaction creating the estate or Interest insured by this policy being deemed a fraudulent conveyance or fraudulent transfer: or the transaction creating the estate or interest Insured by this policy being deemed a preferential transfer exceptwhere the preierentlaltransfer results from the failure: (II) (a) (b) to timely record the Instrument of transfer; or of such recordation to Impart notice to a purchaser for value or a judgment or lien credttor. AMERICAN LAND TILLE ASSOCIATION OWNER'S POLICY (10-17-92) and AMERICAN LAND TITLE ASSOCIATION LEASEHOLD OWNER'S POLICY (10-17-92) (Continued) The above policy forms may be Issued to afford etther Standard Coverage or Extended Coverage. In addition to the above Exclusions from Coverage, the Exceptions from Coverage In a Standard Coverage Policy will also include the following Generallnstruct\ons: EXCEPTIONS FROM COVERAGE This policy does not Insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which anse by reason of: 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authortty that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making Inquiry of persons in possession thereof. 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. 4. Discrepancies, conflicts In boundary lines, shortage in area, encroachments or any other facts which a correct survey would disclose, and Which are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or exceptions In patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b) Dr (c) are shown by the public records. AlTAOPl2 - a3f20/02 AA EXHffiIT A PARCEL 1: THAT PDRTIDN .oF LDT 11, MEYER AND BARCLAY SUBDIVISIDN, IN THE CITY .oF SAN BERNARDIND, CDUNTY .oF SAN BERNARDIND, STATE .oF CALIFORNIA, AS SHDWN BY MAP .oN FILE IN BDDK 2 PAGE 32, RECDRDS .oF SAID CDUNTY, DESCRIBED AS FDLLDWS: BEGINNING AT A PDINT .oN THE SDUTHERLY LINE .oF THE CAJ.oN STATE HIGHWAY, SAID P.oINT BEING N.oRTH 620 38' WEST 3251.20 FEET FR.oM THE S.oUTHEASTERLY C.oRNER .oF LDT "10" .oF SAID MEYER AND BARCLAY SUBDIVISI.oN; THENCE SDUTH 430 14' WEST ALDNG A LINE AT RIGHT ANGLES TD THE SDUTHERLY LINE .oF SAID CAJDN STATE HIGHWAY 500.00 FEET TD A POINT, BUT NDT SDUTH .oF THE NDRTH LINE .oF THE RIGHT .oF WAY .oF THE ATCHISDN, TDPEKA AND SANTA FE RAILRDAD; THENCE NDRTH 460 46' WEST 174.24 FEET TD A PDINT; THENCE NDRTH 430 14' EAST 500.00 FEET, MDRE DR LESS, TD A PDINT .oN THE S.oUTHERLY LINE .oF SAID CAJDN STATE HIGHWAY, THENCE AL.oNG THE SAID SDUTHERLY LINE .oF S.oUTH 460 46' EAST 174.24 FEET, MDRE DR LESS, T.o THE POINT .oF BEGINNING. PARCEL 2: THAT P.oRTIDN .oF LDT 11, MEYER AND BARCLAY SUBDIVISIDN, IN THE CITY .oF SAN BERNARDIN.o, CDUNTY .oF SAN BERNARDIND, STATE .oF CALIFORNIA, AS SH.oWN BY MAP .oN FILE IN BOOK 2 PAGE 32 .oF MAPS, RECDRDS .oF SAID CDUNTY, DESCRIBED AS F.oLLDWS: BEGINNING AT A PDINT .oN THE SDUTHERLY LINE .oF THE CAJDN STATE HIGHWAY, SAID PDINT BEING NDRTH 620 38' WEST 3251.20 FEET FRDM THE SDUTHEASTERLY CDRNER .oF L.oT 10 .oF SAID MEYER AND BARCLAY SUBDIVISIDN; THENCE SDUTH 430 14' WEST ALONG A LINE AT RIGHT ANGLES TO THE SDUTHERLY LINE .oF SAID CAJDN STATE HIGHWAY 512 FEET TO A POINT NDRTH LINE .oF THE RIGHT .oF WAY .oF THE ATCHISDN, TOPEKA AND SANTA FE RAILRDAD; THENCE WESTERLY ALDNG SAID NDRTH LINE .oF SAID RIGHT .oF WAY A DISTANCE .oF 153 FEET T.o A PDINT; THENCB NDRTH 260 31' EAST 596.6 FEET TD A PDINT .oN THE SDUTHERLY LINE .oF SAID CAJDN STAB HIGHWAY; THENCE ALONG 460 46' EAST A DISTANCE .oF 313 FEET ALONG THE SDUTHERLY LINE .oF SAID RIGHT .oF WAY TD THE PLACE .oF BEGINNING. EXCEPTING THEREFRDM THAT PDRTIDN CDNVEYED TD THE SAN BERNARDIND WATER UTILITIES CDRPDRATIDN, A CDRPDRATIDN, BY DEED RECDRDED MAY 29, 1933 IN BDOK 890 PAGE 294, .oFFICIAL RECORDS. PARCEL 3: THAT PORTIDN .oF LDT 11, MEYER AND BARCLAY SUBDIVISIDN, IN THE CITY .oF SAN BERNARDIND, CDUNTY .oF SAN BERNARDIND, STATE .oF CALIFORNIA, AS SHOWN BY MAP .oN FILE IN BOOK 2 PAGE 32, .oF MAPS, RECDRDS .oF SAID COUNTY, AS CDNVEYED TD CAJDN LTD., A CORPORATION, BY DEED RECDRDED IN BDDK 813 PAGE 64, .oFFICIAL RECDRDS, LYING EAST .oF THE WEST LINE .oF SAID BLDCK 11; N.oRTH .oF THE NDRTH RIGHT .oF WAY LINE .oF THE ATCHISDN, TOPEKA AND SANT FE RAILWAY; NDRTHWESTERLY .oF THE NDRTHWESTERLY LINE .oF THAT CERTAIN PRDPERTY C.oNVEYED TD SAN BERNARDIND WATER UTILITIES CDRPDRATIDN, A CDRPDRATIDN, BY DEEDS RECDRDED IN BDDK 992 PAGE 262, .oFFICIAL RECDRDS AND BDDK 890 PAGE 294, .oFFICIAL RECDRDS, AND SDUTHWESTERLY .oF THE FDLLDWING DESCRIBED LINE: BEGINNING AT A POINT .oN THE NDRTHWESTERLY LINE, DISTANT THEREDN, SDUTH 260 31' WEST, 303.13 FEET FR.oM THE N.oRTHWEST C.oRNER .oF SAID CERTAIN PR.oPERTY; THENCE N.oRTH 220 52' 20" WEST 304.12 FEET; THENCE ALONG A CURVE TO THE LEFT WITH A RADIUS OF 1425 FEET, THROUGH AN ANGLE OF 8. 08' 09" A DISTANCE OF 202, 35 FEET, TO A FOINT IN THE WEST LINE OF SAID BLOCK 11, DISTANT THEREON, SOUTH 3. 04' WEST, 128.87 FEET FROM THE INTERSECTION OF SAID WEST LINE AND THE SOUTHWESTERLY LINE OF THE COUNTY ROAD, AS CONVEYED TO SAID COUNTY BY DEED RECORDED IN BOOK 586 PAGE 344, OF DEEDS. EXCEPTING FROM SAID PARCELS 2 A, B AND C, THOSE PORTIONS OF THE ABOVE DESCRIBED PROPERTY CONVEYED TO THE STATE OF CALIFORNIA, BY DEEDS RECORDED MAY 15, 1937 IN BOOK 1203 PAGE 418, OFFICIAL RECORDS, RECORDED SEPTEMBER 7, 1937 IN BOOK 1228 PAGE 214, OFFICIAL RECORDS AND RECORDED SEPTEMBER 7, 1937 IN BOOK 1231 PAGE 157, OFFICIAL RECORDS. A CORD," CERTIFICA TE OF LIABILITY INSURANCE I DATE lMMfDDfYYJ 12/01/05 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Driver Alliant Insurance ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 1620 Fifth Avenue HOLDER. THIS CERTIFICATE DOES NOT AMEND. EXTEND OR San Diego, CA 92101-2703 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 619-238-1828 INSURERS AFFORDING COVERAGE INSURED City of San Bernardino INSURER A American Alternative Municipal Water Department INSURER B Evanston Insurance 300 North "0" Steet, 5th Floor INSURER C St. Paul Surplus Lines San Bernardino CA 92418 INSURER D INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE POLICY NUMBER r:..~~CY EF~EC~X.~ P!2HfF=Y,~~)~~~~N LTR LIMITS A ~ERAL LIABILITY SDISSK910052 6/30/05 6/30/06 EACH OCCURRENCE $ 1000000 X COMMERCIAL GENERAL LIABILITY FIRE DAMAGE (Anyone fire) $ 1000000 I CLAIMS MADE ~ OCCUR MED EXP (Anyone person) $ 10000 - Railroad Protective lncl. PERSONAL I\. ADV INJURY $ 1000000 GENERAL AGGREGATE $ 3000000 - GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMPtOP AGG $ I POLICY n ~~RT - h LaC A ~OMOBILE LIABILITY SDSA90004852 6/30/05 6/30/06 COMBINED SINGLE LIMIT $ 1000000 -L ANY AUTO (Eaaccident) - ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) - c-2'- HIRED AUTOS BODILY INJURY $ c-2'- NON-OWNED AUTOS IPer accident! c-2'- Bus. Auto PROPERTY DAMAGE IPeraccident) , RAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EAACC $ AUTO ONLY: AGG $ A EXCESS LIABILITY SDISSX920015 6/30/05 6/30/06 EACH OCCURRENCE , 10000000 ~'OCCUR D CLAIMS MADE AGGREGATE $ 10000000 , R DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND IT~~{WINs I IUJRH- EMPLOYERS' LIABILITY E.l. EACH ACCIDENT $ EL DISEASE - EA EMPLOYEE $ E.l. DISEASE. POllCY LIMIT $ B OTHER XONJ177405 6/30/05 6/30/06 Excess Liab. $5000000 excess of $'0000000 " Excess Liab. OY012225079 $4000000 excess of $'6000000 DESCRIPTION OF OPERATtONSllOCATlONSNEHIClESIEXClUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Re: 10 Number 05.28223.0 (See Attached) CERTIFICATE HOLDER I I ADDtTlONAl INSURED; INSURER lETTER: CANCELLATION BURLINGTON NORTHERN & SANTA FE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLEO BEFORE THE EXPIRATION DATE THEREOF, THE ISSUINO INSURER WilL liirJili....SR TS MAll 2Q... DAYS WRITTEN RAILWAY COMPANY,INS.COMPLlANCE NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE lefT. B~T f Il FIE Ta 89 li':' -" n'l P.O. BOX 12010-BN Jr1P'\J'ii 119 9IH.l9A.'-.J -~ "An...." ~r n.,,' ",.,... "n~.' T'''' ,.,.."..".. ,ore- "...".,Ye ...'" HEMET, CA 92546-8010 AUT~ _ EN~7J1~~~' , Attn: Amv Austin ACORD 25-S 17/971 7- 48 ('" ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSUREO, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s), If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25-5 17/97) CITY OF SAN BERNARDI~ MUNICIPAL WATER DEPARTMEN CERTIFICATE OF INSURANCE THE BURLINGTON NORTHERN, SANTA FE RAILWAY COMPANY AND STAUBACH GLOBAL COMPANY ARE NAMED ADDITIONAL INSURED AS RESPECTS OPERATIONS OF THE NAMED INSURED PER THE ATTACHED CG2010 FORM, PRIMARY WORDING APPLIES FOR GL AND AUTO. THERE ARE NO EXCLUSIONS FOR RAILROAD PROTECTIVE, XCU COVERAGE AND THERE ARE NO RESTRICTIONS AS TO DISTANCE OF WORK PERFORMED NEAR RAILROAD. POLICY NUMBER: s. _SSK910052 COMMERCL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: BLANKET AS REQUIRED BY WRITTEN CONTRACT (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement. ) WHO IS person or liability INSURED (Section II) is amended to include as an insured the organization shown in the Schedule, but only with respect to arising out of "your work" for that insured by or for you. "It is agreed that such insurance as is afforded by this policy for the benefit of the additional insured shown shall be primary insurance, and any other insurance mainteined be the additional insured(s) shall be excess and non-contributory, but only as respects any claim, loss or liability arising out of the operations if claim, loss or liability is determined to be solely the negligence or responsibility of the named insured." Copyright, Insurance Services Office, Inc., 1984 CG 20 10 11 85 Page 1 of 1 POLICY NUMBER: SL ~SK910052 COMMERCI GENERAL LIABILITY CG 24 04 10 93 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: BLANKET AS REQUIRED BY WRITTEN CONTRACT (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement. ) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV - COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Scedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products-completed operations hazard". This waiver applies only to the person or organization shown in the Scedule above. Copyright. Insurance Services Office, Inc., 1992 CG 24 04 10 93 Page 1 of 1 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL THIS DEED AND, UNLESS OTHERWISE SHOWN, MAIL TAX STATEMENTS TO: APN: Portion of 0262-021-11 SPACE ABOVE FOR RECORDER'S USE GRANT DEED FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, The CITY OF SAN BERNARDINO, a municipal corporation, hereby grants to BNSF RAILWAY COMPANY, a Delaware Corporation, the real property in the City of San Bernardino, County of San Bernardino, State of California, described as follows: LEGAL DESCRIPTION ATTACHED AS EXHIBIT "A" CITY OF SAN BERNARDINO, a municipal corporation Dated: EXHIBIT COpy By: PAT RRlS, Mayor STATE OF CALIFORNIA COUNTY OF ACKNOWLEDGEMENT OF GRANTOR(S): }s.s. On before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person( s) , or the entity on behalf of which person( s) acted, executed the instrument. WITNESS my hand and official seal. Signature EXHIBIT "2" LEGAL DESCRIPTION A portion of that certain real property located in the County of San Bernardino, State of California: THAT PORTION OF LOT II OF THE MEYER AND BARCLAY SUBDIVIS[ON, RECORDED IN MAP BOOK 12, PAGE 18, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT I I WITH THE NORTHERLY RIGHT OF WAY LINE OF BURLINGTON NORTHERN SANTE FE RAILWAY COMPANY (150 FEET WIDE, HALF WIDTH), SAID POINT BEING ON A NON-TANGENT CURVE, CONCA VE TO THE SOUTH, A RADIAL TO SAID POINT BEARS NORTH 18007'26" EAST; THENCE SOUTH 02053'30" WEST ALONG SAID WESTERLY LINE OF LOT II, A DISTANCE OF 51.84 FEET TO THE BEGINNING OF A 5,779.65 FOOT RADIUS NON-TANGENT CURVE, CONCA VE TO THE SOUTH, A RADIAL TO SAID BEGINNING BEARS NORTH 180[5'32" EAST; THENCE EASTERLY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 02046'40" AN ARC DISTANCE OF 280.21 FEET; THENCE NON-TANGENT TO SAID CURVE, NORTH 43014'00" EAST A DISTANCE OF 53.96 FEET TO THE BEGINNING OF A 5,829.65 FOOT RADIUS NON-TANGENT CURVE, CONCAVE TO THE SOUTH, A RADIAL TO SAID BEGINNING BEARS NORTH 21014'[3" EAST; THENCE WESTERLY, ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 03046'47" AN ARC DISTANCE OF 3[6.74 FEET TO THE POINT OF BEGINNING. THE AREA OF THE ABOVE DESCRIBED PROPERTY IS APPROXIMATELY [4,923.45 SQUARE FEET MORE OR LESS. EXHIBIT "A" AjJ4-003..S9)2.4_1 " l!rJ"!r .i'!JJL ~ . J<)JJj I 'I 'J<) DL .:J. ~ ~-,J~.1 -I.) - , ,. ~ c"; / ,,' (~ ", / ..\/ , '-", ,-.',.:,..., , 'r.' \ , .. . ,j ! ,,:- '.' ;'....:. '". :' * EXHIBIT PLAT jJ !lit .:11 !J.!J;{ , lJ DL .:.LJ2J Jj ( ", <'-46 /' ", '--~ /-:- >. <"/ o :-, () L ~ "~ <. Q '-.i