a. Buyer shall return signed copies of all disclosures required to be delivered by Seller. Buyer shall do so prior to Closing and on or before the latter of 7 days from delivery of the disclosures by Seller, or the Contingency Removal Date.
b. If Seller, prior to Close Of Escrow, becomes aware of adverse conditions that materially affect the Property, or any material inaccuracy with respect to information previously provided to Buyer, Seller shall promptly provide a subsequent disclosure in writing explaining these items to Buyer. Said subsequent disclosures are unnecessary, however, if Buyer is otherwise aware of the information, or if said information is contained in reports provided to or obtained by Buyer or ordered and paid for by Buyer.
c. If a subsequent disclosure is provided to Buyer, Buyer shall have the right to cancel this Agreement within 5 days after delivery of the information to Buyer. In order to cancel, Buyer shall give Seller written notice.
d. Seller shall deliver to Buyer and Escrow within 7 days from Acceptance an affidavit sufficient to comply with federal (FIRPTA) and the equivalent state withholding Law.
2. Condition of Property:
a. Seller agrees to maintain the Property, including any pool, spa and landscaping, in substantially the same condition as on the date of Acceptance.
b. Buyer should conduct investigations of the entire Property in order to determine its present condition, and to include in said inspections checking whether additions or improvements are built to code, have necessary permits, and comply with applicable laws. That said, Buyer shall not shall not request or schedule any inspections by any building department inspector or other government employee without the prior written consent of Seller. Buyer shall deliver copies of any inspection reports to Seller at no cost to Seller.
3. Buyer’s Investigation of the Property and Matter Affecting the Property:
a. Seller shall make the Property available for all Buyer inspections.
b. Seller shall have all utilities on at the Property through the date of possession by Buyer, including water, gas, electricity and all operable pilot lights.
c. Buyer shall: (i) keep the Property free of liens; (ii) repair all damage caused by Buyer investigations, inspections or work; and (iii) indemnify and hold Seller harmless from all resulting liability, claims, and damages arising out of Buyer investigations, inspections or work. Buyer shall carry, or Buyer shall require anyone acting on Buyer’s behalf to carry, liability and workers’ compensation insurance, and any other insurance applicable to the inspection being performed. Furthermore, Buyer shall defend and protect Seller from liability for any injuries to persons or property occurring during any investigations by Buyer or work done on the Property at Buyer’s direction prior to Close Of Escrow. Buyer’s obligations under this paragraph shall survive the termination of this Agreement.
a. Any repairs completed pursuant to this Agreement, such as termite related repairs or repairs pursuant to a mutually agreed Request for Repair or Credit, shall be completed prior to final verification of condition by Buyer unless otherwise agreed in writing by the parties.
b. Repairs to be performed at Seller’s expense may be performed by Seller or through others, provided that the work complies with applicable laws, including permitting. Repairs shall be performed in a skillful manner with materials of quality and appearance comparable to existing materials. Buyer acknowledges and agrees exact restoration of appearance following all repairs may not be possible.
c. Seller shall: (i) obtain receipts for repairs performed by others; (ii) prepare a written statement indicating the repairs performed by Seller and the date of such repairs; and (iii) provide copies of receipts and statements to Buyer prior to final verification of condition.
5. Close of Escrow:
a. Seller shall remove all debris and personal property not included in the sale no later than Close Of Escrow.
b. At Close Of Escrow, Seller assigns to Buyer any assignable warranty rights for items included in the sale, such as appliances. To the extent Seller has warranties or manuals associated with items being transferred, Seller shall make them available to Buyer at the Property.
c. Seller represents and warrants all items included in the Purchase Price, unless otherwise specified in the written disclosures, are owned by Seller and are being transferred to Buyer free of liens and without Seller warranty.
d. Buyer shall deposit the balance of the purchase price with escrow in sufficient time for Close of Escrow to timely occur.
e. Buyer has the right to make a final inspection of the Property, including any items of personal property that convey, within 5 days prior to Close of Escrow. Said inspection is not a contingency of the sale, but solely to confirm that the condition of the Property has been maintained, any repairs have been completed as agreed, and Seller has otherwise complied with Seller’s obligations under this Agreement.
a. Seller shall deliver title free of all monetary liens not expressly assumed by Buyer, and property taxes shall be prorated as specified in this Agreement. Subject to the foregoing and to Buyer’s right to investigate title prior to removal of contingencies and cancel this Agreement following such investigation, Buyer shall take title to the Property subject to all existing easements, restrictions, claims and other exceptions to title, whether or not of record or referenced in the preliminary report. Title shall vest as designated in Buyer's supplemental escrow instructions.
7. Further Details Regarding Removal of Contingencies and Cancellation of Rights:
a. On the Contingency Removal Date:
(i) If Buyer elects to proceed, Buyer must submit a Contingency Removal Form, removing all the contingencies described in section 2(a) of the Agreement, and making the Earnest Money Deposit forfeitable if Buyer breaches this Agreement.
(ii) If Buyer elects to cancel, Buyer must submit an Escrow Cancellation Form.
(iii) If Buyer seeks repairs or credits, Buyer must submit a Request for Repair or Credit Form. Seller has no obligation to agree to repair or credit requests from Buyer.
b. If any report, disclosure or information for which Seller is responsible is not delivered within the time specified by this Agreement, then Buyer has 5 days after delivery of any such items, or to the Contingency Removal Date, whichever is later, to deliver to Seller a removal of the applicable contingency or cancellation of this Agreement.
c. Even after the end of the contingency times specified in this Agreement, Buyer retains the right to either (i) in writing remove remaining contingencies, or (ii) cancel this Agreement based on a remaining contingency. Once Buyer’s written removal of all contingencies is delivered to Seller, Seller may not cancel this Agreement pursuant to the paragraph below.
d. If Buyer does not deliver to Seller a removal of the applicable contingency or cancellation of this Agreement during the timeframes specified by this Agreement, Seller, after first delivering to Buyer a Notice to Perform, may cancel this Agreement. In such event, Seller shall authorize return of Buyer's Earnest Money Deposit.
e. Seller may cancel this Agreement if Buyer breaches its obligations under this Agreement, but provided that Seller first provides buyer with a Notice to Perform. The Notice to Perform shall: (i) be in writing; (ii) be signed by Seller; and (iii) give Buyer at least 48 hours after delivery to cure the breach.
f. If Buyer removes, in writing, any contingency or cancellation rights, Buyer shall be deemed to have: (i) completed all Buyer investigations, and review of reports and other applicable information and disclosures pertaining to that contingency or cancellation right; (ii) elected to proceed with the transaction; and (iii) assumed all liability, responsibility and expense for repairs or corrections pertaining to that contingency or cancellation right, or for inability to obtain financing in the case of the financing contingency.
g. If Buyer or Seller gives written notice of cancellation pursuant to rights duly exercised under the terms of this Agreement, Buyer and Seller agree to sign mutual instructions to cancel the sale and escrow and release deposits, if any, to the party entitled to the funds, less fees and costs incurred by that party. Fees and costs may be payable to service providers and vendors for services and products provided during escrow.
h. Buyer’s obligation to come up with the Earnest Money Deposit, down payment and closing costs are not contingencies of this Agreement.
8. Liquidated Damages:
a. If Buyer fails to complete this purchase because of Buyer's default, Seller shall retain, as liquidated damages, the deposit actually paid. The amount retained shall be no more than 3% of the purchase price. Any excess shall be returned to Buyer. Release of funds will require mutual, signed release instructions from both Buyer and Seller, judicial decision or arbitration award.
Buyer’s Initials ______ _____ / Seller’s Initials _____ _____
9. Dispute Resolution:
i. Buyer and Seller agree to mediate any disputes or claim arising between them that concern or arise out of this Agreement before initiating arbitration or court action. Mediation fees shall be divided equally among Buyer and Seller. A Buyer or Seller who initiates a lawsuit before mediation and/or who refuses or resists mediation shall not be entitled to recover prevailing party attorneys’ fees, even if they would otherwise be available to that party in any such action.
i. By initialing below, Buyer and Seller agree to submit any disputes or claims between them concerning and/or arising out of this Agreement to binding arbitration if said disputes or claims are not first settled through mediation. The arbitrator shall be a retired Superior Court judge, or a licensed California attorney with at least 10 years of real estate law experience, unless the parties mutually agree to a different arbitrator.
ii. The parties shall have the right to discovery in accordance with Code of Civil Procedure §1283.05, and arbitration shall be conducted in accordance with Title 9 of the California Code of Civil Procedure. By agreeing to arbitration, the parties give up their rights to a trial by judge or jury. The decision of the arbitrator is final and binding.
iii. "NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY."
iv. “WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION."
Buyer’s Initials ______ _____ / Seller’s Initials _____ _____
c. Exclusions from Mediation and Arbitration:
i. The above mediation and arbitration provisions do not apply to the pursuit of: (i) filing a lawsuit for the purpose of recording a Notice of Pending Action (lis pendens); (ii) seeking an order of attachment, receivership, injunction, or other provisional remedy; (iii) filing or enforcing mechanics liens; (iv) enforcing rights under a deed of trust; (v) seeking eviction; and (vi) requesting relief in Probate Court, Small Claims or Bankruptcy Court. The filing of any of these procedures shall not constitute a waiver of the mediation or arbitration rights otherwise specified herein.
10. Fixtures and Fittings Defined:
a. “Fixtures and fittings” are built-in appliances; existing electrical, mechanical, lighting, plumbing heating and cooling fixtures; ceiling fans; solar systems; shutters; window coverings; attached floor coverings; television antennas; installed television antennas and satellite dishes; private integrated telephone systems; pool/spa equipment; mailbox; water softeners; water purifiers; security systems/alarms; window and door screens; awnings; storm doors and windows; trash compactor; fireplace doors, gas logs, inserts and gas log lighters; irrigation fixtures; electric garage door openers and remotes; water heaters; shrubs, plants and trees planted in the ground; all bathroom and other fixtures; and all associated operating equipment.
11. Other Terms:
a. Currently assessed property taxes (as well as supplemental taxes) shall be paid as follows: (1) for periods prior to Close of Escrow, by Seller, and (2) for periods after Close of Escrow, by Buyer. Interest on any loan assumed by Buyer, as well as any homeowners association dues, rents, and premiums on insurance assumed by Buyer, shall be prorated as of the Close of Escrow. Bonds and assessments (e.g., Mello-Roos) levied by special assessment districts now a lien shall be paid current by Seller; payments not yet due shall be assumed by Buyer.
b. Brokers do not guarantee the performance of the service providers set forth in this Agreement or otherwise. Buyer and Seller may select any service providers of their own choosing, including title and escrow companies.
c. The Property is sold in compliance with federal, state and local anti-discrimination laws.
d. In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller.
e. Time is of the essence in this Agreement. This Agreement and all other documents and matters referenced herein shall be governed by, and shall be construed according to, the laws of the state in which the Property is situated. The exclusive venue for any disputes relating to or arising from this Agreement shall be the county in which the Property is situated. This Agreement is binding upon the heirs, executors, administrators, successors and assigns of Buyer and Seller and shall survive Close of Escrow. The terms of this Agreement are intended by the parties as a final, complete and exclusive expression of the agreement between the parties with respect to its subject matter, and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. This Agreement may not be amended, modified, or changed except by a further written agreement signed by the parties. If any provision of this Agreement is held to be ineffective or invalid, the remaining provisions will nevertheless be given full force and effect. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. The parties agree that for all forms and contracts related to the sale of the Property, written notice sent to them by the other party through the Home Bay application, including by email, shall constitute sufficient notice.
12. Joint Escrow Instructions:
a. This Agreement, including all counter offers and addenda, shall constitute joint escrow instructions from the parties to Escrow Holder. The parties shall execute such additional escrow instructions requested by Escrow Holder that are not inconsistent with the provisions of this Contract. In the event of any alleged failure of performance of either Buyer or Seller, nothing in this paragraph shall require Escrow Holder to interpret or enforce this Agreement or to make any determination as to the ownership of, or interest in, any deposited funds. Funds deposited with the Escrow Holder shall not be released unless agreed to in writing by both Parties or pursuant to court or arbitrator’s order.
b. Brokers are a party to the escrow for the sole purpose of compensation. Buyer and Seller irrevocably assign to Brokers compensation specified herein, and irrevocably instruct Escrow Holder to disburse those funds to Brokers at Close Of Escrow or pursuant to any other mutually executed cancellation agreement. Compensation instructions can be amended or revoked only with the written consent of Brokers. Buyer and Seller shall release and hold harmless Escrow Holder from any liability resulting from Escrow Holder’s payment to Broker(s) of compensation pursuant to this Agreement.
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