Agenda - Council Work Session - 01/11/2016

Home

"5a. Notwithstanding anything to the contrary, at closing, the Title Company's escrow agent (the "Escrow Agent") is authorized to record and deliver Seller's deed and will withhold from the funds due Seller the amount of $45,000.00 (the "Soil Escrow Funds"). Escrow Agent will hold the Soil Escrow Funds in trust for Seller and Purchaser in a non-interest bearing account and will only disburse the Soil Escrow Funds in accordance with the terms of this Article 5a. Prior to Purchaser pouring building footings on the Premises, Purchaser and Seller will provide to the Escrow Agent an affidavit in a form acceptable to the Escrow Agent, in the Escrow Agent's sole discretion (an "Approved Form Affidavit"), setting forth Purchaser's intended date of pouring building footings on the Premises ("Purchaser's Footings Installation Date"). If, prior to Purchaser's Footings Installation Date, Purchaser discovers contaminated soils or other soils that are unsuitable for Purchaser's use on the Premises, Purchaser will send a written notice to Seller and Escrow Agent that Purchaser has discovered unsuitable soils on the Premises (the "Soils Correction Notice"). Purchaser may, after sending the Soils Correction Notice, take such actions as Purchaser reasonably deems necessary to remove and replace or otherwise correct the contaminated or unsuitable soils and may obtain reimbursement from the Soil Escrow Funds for all costs Purchaser reasonably incurs to remediate, remove and/or replace or otherwise correct the soils on the Premises. Within 90 days after Purchaser's Footings Installation Date, if applicable, Purchaser will submit, in writing, to Seller the following documents: (i) a reasonably detailed written description of the contaminated or otherwise unsuitable soils; and (ii) a reasonably detailed written description of the actions that Purchaser took with respect to remediation, removal and/or replacement of the contaminated or otherwise unsuitable soils; and Purchaser will submit to Seller and Escrow Agent a reasonably detailed written invoice setting forth the costs Purchaser incurred to remediate, remove and/or replace or otherwise correct the contaminated or otherwise unsuitable soils ("Soils Correction Invoice"). Such Soils Correction Invoice must be accompanied by an Approved Form Affidavit signed by both Seller and Purchaser representing their approval of the Soils Correction Invoice. If Purchaser does not deliver a Soils Correction Notice to Seller and Escrow Agent prior to the Purchaser's Footing Installation Date, the Escrow Agent will disburse the funds on the day following the Purchaser's Footing Installation Date. If Purchaser timely submits a Soils Correction Notice but does not submit the Soils Correction Invoice and/or accompanying Approved Form Affidavit within 90 days after the date of the Soils Correction Notice, if applicable, the Escrow Agent will disburse the funds or any balance of funds remaining in the escrow account to Seller on the day that is ninety-one (91) days after Purchaser's Footings Installation Date. Seller will not be responsible for any costs for such soils correction work that exceeds $45,000.00. This provision survives closing and will not merge with the deed. 5b. Notwithstanding anything set forth in this Amendment to the contrary, at closing, the Escrow Agent is authorized to record and deliver Seller's deed and will withhold from the funds due Seller, the amount of $120,223.50 ("Sign Escrow Funds"), which amount will be in addition to the $45,000.00 to be withheld pursuant to Article 5a above. The Escrow Agent will hold the Sign Document#:5830971 v 12 Document #: 1273065-v6