2008/10/15 Council Agenda Packet

1-: contingencies set forth in Section 4(a) and Section 4(b) below. The Earnest Money shall be credited towards the Purchase Price at Closing. If Purchaser terminates this Agreement in accordance with its terms, then the Earnest Money shall be promptly returned to Purchaser. Further, if this transaction does not close for any reason other than default by Purchaser, Title Company shall, upon demand by Purchaser, promptly return the Earnest Money to Purchaser. 3. TITLE TO PROPERTY. a. Condition of Title. Seller represents that title to the Property or any portion thereof shall be free of monetary encumbrances or defects at Closing, except for any lien for taxes with respect to the fiscal year of Closing not yet due and payable, which shall be prorated as of the Closing Date as provided in Section 11(a). Seller shall satisfy or cause to be satisfied prior to Closing or at Closing from the Purchase Price all monetary encumbrances or defects except for prorated taxes as described in this Section 3. b. Monetary Encumbrances. The phrase "monetary encumbrances or defects" as used herein means encumbrances or defects to title which by their terms require the payment of money, whether in installments or at a fixed time or otherwise, including, but not limited to, mortgages, deeds of trust, mechanic's or materialmen's liens, liens associated with public improvement districts and special assessments. c. Nonmonetary Encumbrances. Nonmonetary encumbrances or defects in title (e.g., easements or restrictive covenants) shall be subject to Purchaser's approval as provided in this Agreement. d. Conveyance of Title. Title to the Property shall be conveyed as provided in Section 9. e. Project Construction Covenant. On or before the expiration of the Feasibility Period (as defined in Section 4(a) below), Purchaser and Seller shall agree upon the form of a "Project Construction Covenant" to be recorded against the Property at Closing. Purchaser and Seller shall negotiate in good faith concerning the terms and conditions of such Project Construction Covenant. Such Project Construction Covenant shall include provisions for Purchaser to commence construction of the Project within one (1) month of the date of Closing ("Project Construction Start Date"), and for Purchaser to complete construction of the Project, subject to extension for "Force Majeure" events (to be defined in the Project Construction Covenant and to include, without limitation, work stoppage and discovery of unknown environmental conditions among the events constituting Force Majeure), in accordance with this Agreement and the Plans and Specs (defined below), and for the entire Project to have obtained a certificate of occupancy and be open to the public within thirty (30) months of the Project Construction Start Date ("Project Completion Date"). "Commencement of construction" for purposes of this Section 3 shall mean commencement of and diligently pursuing construction of the shoring system and diligently pursing completion of 50939068.4 -2- r./ /`