25G - GRADE RAIL SAFETY ENHANCEMENT PROJECT

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the Closing Deadline (as defined below), this Agreement shall terminate and Escrow Agent shall return the Easement Deed to Owner and the Purchase Price minus escrow fees to City. 4. Waivers. The waiver by either party of any breach of any covenant or agreement herein contained on the part of the other party shall not be deemed or held to be a waiver of any subsequent or other breach of said covenant or agreement nor a waiver of any breach of any other covenants or agreements contained herein. 5. Heirs. Assians, Successors-in-Interest. This Agreement, and all the terms, covenants and conditions hereof, shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective Parties hereto. 6. Time is of the Essence. In all matters and things hereunder to be done and in all payments hereunder to be made, time is and shall be of the essence. 7. Permission to Enter on Premises. It is understood and agreed that for project planning and funding purposes the Owner hereby grants to Buyer and authorized agents or contractors, the right of set forth in the TCE to the area described in Exhibit "A-1" and "B" to perform the work described in Paragraph 19. However, said right of possession and use shall not be exercised prior to the City, or City's agent, providing Owner with a 48-hour prior written notice of City's intent to perform the construction items listed in Paragraph 19 below. The commencement date of the TCE shall begin after such 48-hour period expires ("The Commencement Date") The TCE shall continue in effect for a period of six (6) months after the Commencement Date. City shall use its best efforts to complete the described work within the prescribed period of time; however, extraordinary circumstances may occur which may require additional time to complete the work (i.e. rain, labor dispute, shortage of materials, each a "Force Majeure Event"). It is agreed that should the actual use of the TCE extend beyond the time period delineated above due to unforeseen circumstances such as a Force Majeure Event, and not due to the negligence or willful misconduct of the City, and the occurrence is verified through the contractor or City project inspection logs presented to Owner, the term of the TCE shall be extended until the actual date of City's termination of the TCE. The City shall provide Owner with a 15 days prior written notice of its intention to terminate the TCE. Upon the extension of the TCE, the City agrees to pay at the rate of 560.83 per month, prorated to the actual date of the City's termination of use. It is further understood that in no event shall the City's use of the property exceed the early of either the term of the TCE described above or the project completion date. 8. Notices. The mailing address of the City of Santa Ana is 20 Civic Center Plaza, M-36, P.O. Box 1988, in the City of Santa Ana 92701, County of Orange, State of California. The mailing address of the Owner is: Earl Scheib of Califomia 225 Broadway 18"' Floor San Diego, CA 92101 9. Entire Aareement. It is mutually agreed that the Parties hereto have herein set forth the whole of their Agreement. Performance of this Agreement by City shall lay at rest, each, every, and all issues} that were raised or could have been raised in connection with the creation of the Easements. 10. Expiration of Aareement/Closina Deadline. This Agreement shall terminate and become unenforceable by any Party if Closing does not occur before March 15, 2010 (the "Closing Deadline"). 25G-4