CALIFORNIA DISCLOSURES PURCHASER AGREEMENT
(Version Date: November 1, 2015)
THIS DOCUMENT CONTAINS IMPORTANT LEGAL TERMS THAT LIMIT YOUR RIGHTS – PLEASE READ ALL OF IT BEFORE ACCEPTING THIS AGREEMENT
This legally binding purchaser agreement (“Agreement”) is entered into by and between PEAK Environmental Liability Management Services, LLC. doing business as (dba) CALIFORNIA DISCLOSURES (“CALIFORNIA DISCLOSURES”, “the Company”, “us”, “we”) and the real person or business entity identified and verified on the corresponding order form (“Purchaser”). Purchaser has requested, and CALIFORNIA DISCLOSURES has agreed to provide, specific services defined below (“Services”), by ordering such through an “Order Form” on the website portal at http://www.CALIFORNIADISCLOSURES.com/ (“CALIFORNIA DISCLOSURES Website”). The Purchaser may be an employee of a California-licensed escrow company, a transaction coordinator, a California-licensed real estate agent, or a buyer or seller identified in a residential purchase agreement. CALIFORNIA DISCLOSURES and Purchaser may be referred to herein jointly as “Parties” or individually as a “Party.”
In consideration of the price paid for the Services, and agreement to provide the Services, the Parties hereby agree that this Purchaser Agreement is an electronic contract establishing the following terms, conditions, and limitations between the Parties:
1. Engagement: Purchaser hereby agrees to engage CALIFORNIA DISCLOSURES to provide the Services, including generation of a CALIFORNIA DISCLOSURES Natural Hazard Disclosure Report (“Report”). CALIFORNIA DISCLOSURES agrees to send Purchaser the Report only electronically, which action shall complete CALIFORNIA DISCLOSURES’s executory obligations hereunder.
2. Compensation: Purchaser will pay CALIFORNIA DISCLOSURES A MAXIMUM US$119.00; subject to the terms of the specific amount agreed to between parties at the time of purchase. Purchaser is required to make payment in full by check through escrow at the close of sale. Payment authorization and acceptance of the Purchaser Agreement via the online gateway constitutes a work order and authorization for CALIFORNIA DISCLOSURES to commence work on the Services.
3. Contract Formation: By acknowledging understanding of this Purchaser Agreement and by clicking the “Accept” or "Submit" button to complete an order for CALIFORNIA DISCLOSURES Report services, Purchaser, and all its employees, agents and representatives, if any, agrees to be bound by all terms, conditions and limitations herein. CALIFORNIA DISCLOSURES shall agree to the terms of this Agreement by undertaking the Services after acceptance and payment by Purchaser.
4. Location Limitation: The Services only relate to real property located within the State of California, United States of America. Any information transmitted or inferred related to properties outside California is void for all purposes.
5. Parcel Limitations: Each Order Form, the Services, and the Report, are collectively limited to the same legal parcel (“Target Property”, “Subject Property”), which is residential/commercial/industrial less than one acre with a maximum of four unique tenants, or multi-family residential less than one acre with no more than four distinct dwelling units.
6. Report Contents: The Report will include information to assist the Purchasing Party in complying with real estate transaction disclosure requirements of California Civil Code Sections 1103, 1102.6(b), and 1102.15. More specifically:
a. A determination from state and federal maps as to whether the Subject Property lies entirely or partially within a special flood hazard area (any type Zone “A” or “V”) designated by the Federal Emergency Management Agency;
b. A determination from dam inundation maps prepared by and/or for the California Office of Emergency Services as to whether the Subject Property lies entirely or partially within an area designated by the Office of Emergency Services within which death or personal injury would, in its determination, result from the partial or total failure of a dam;
c. A determination from maps prepared for and/or by the Director of Forestry and Fire Protection as to whether the Subject Property lies partially or entirely within an area identified in California as very high fire severity zones pursuant to Government Code Section 51178 and is subject to the property maintenance requirements of Government Code Section 51182;
d. A determination from maps issued by the California Geological Survey and signed by the State Geologist as to whether the Subject Property lies partially or entirely within an earthquake fault zone, designated pursuant to Section 2622 of the Public Resources Code;
e. A determination from maps issued by the California Geological Survey and signed by the State Geologist as to whether the Subject Property lies partially or entirely within a seismic hazard zone, designated pursuant to Section 2696 of the Public Resources Code;
f. A determination from maps and tax information made available from the State of California as to whether the Subject Property lies partially or entirely within an area in which the financial responsibility of preventing and suppressing fires is primarily the responsibility of the state pursuant to Section 4125 of the Public Resources Code and subject to the property maintenance requirements of Public Resources Code Section 4291;
g. A subjective, expert determination as to whether the Subject Property lies within an airport influence area as defined in subdivision (b) of Section 11010 of the Business and Professions Code;
h. A subjective, expert determination as to whether the property is within the jurisdiction of the San Francisco Bay Conservation and Development Commission, as defined in Section 6620 of the Government Code;
i. A subjective, expert determination as to whether the Subject Property is located within one mile of a parcel of real property designated as “Prime Farmland,” “Farmland of Statewide Importance,” “Unique Farmland, “ “Farmland of Local Importance,” or “Grazing Land” on the most current “Important Farmland Map” issued by the California Department of Conservation, Division of Land Resource Protection, utilizing solely the county-level GIS map Date, if any, available on the Farmland Mapping and Monitoring Program Web site;
j. A subjective, expert determination as to whether the Subject Property is located within one mile of a mine operation for which map coordinate data has been reported to the director pursuant to Section 2207 of the Public Resources Code; and
k. A determination from public tax records as to whether the Subject Property is subject to a continuing lien securing the levy of special taxes pursuant to the Mello-Roos Community Facilities Act (Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the Government Code), to a fixed lien assessment collected in installments to secure bonds issued pursuant to the Improvement Bond Act of 1915 (Division 10 (commencing with Section 8500) of the Streets of Highways Code), or to a contractual assessment program authorized pursuant to Chapter 29 (commencing with Section 5898.10) of Part 3 of Division 7 of the Streets and Highway Code; and
l. A determination from public records as to whether the Subject Property is located within one mile of any former federal or state ordnance locations identified by an agency or instrumentality of the federal or state government as an area once used for military training purposes which may contain potentially explosive munitions.
7. Reliance: This Report has been prepared for the sole use of the seller (transferor), the buyer (transferee) and their California-licensed real estate agents, collectively referred to as the “Parties” and signatories to the Statutory Natural Hazard Disclosure Statement. Only the Parties may rely on the information presented in this report. The Report is valid and a contract is formed between California Disclosures ONLY upon receipt of payment in full of the report by California Disclosures. This Report cannot be relied upon by any persons other than the Parties. This report applies ONLY to the real property with the California address and/or Assessor’s Parcel Number submitted by the Parties, their escrow company, or their transaction coordinator. This report cannot be relied upon for any other real property or for any future transactions involving the Subject Property.
8. Use/Non-Assignment: Only the Parties may use the Services and the CALIFORNIA DISCLOSURES Report and no others without CALIFORNIA DISCLOSURES’s prior written consent. No third-party beneficiaries are intended. Purchaser shall not assign this Agreement, the Services, and/or any portion of the Report without CALIFORNIA DISCLOSURES’s prior written consent.
9. No Warranties: CALIFORNIA DISCLOSURES makes no warranties, express or implied, as to: (1) the accuracy or completeness of the public databases used or the information obtained; (2) merchantability or fitness of the Subject Property for a particular use or purpose; and/or (3) anything inferred from the Services or the Report.
10. No Duty to Update After Review: The California Disclosures Report is issued as of the printed Date of Issue corresponding to each report. It is based upon information maintained in publicly available governmental databases as of the time when California Disclosures reviewed such information. CALIFORNIA DISCLOSURES shall have no obligation to update the Report after the Date of Issue.
11. No Site Inspection: No personal site inspection or other site-specific studies or inspections of the Subject Property will be conducted under the terms of this Purchaser Agreement. Rather, the report will be based solely upon review of certain databases and maps which have been published, generated, and/or approved by their managing governmental agencies or subdivisions. Direct, physical site inspection will not be performed under the terms of this Purchaser Agreement.
12. Standard of Care: In performing the Services, CALIFORNIA DISCLOSURES shall exercise the degree of skill and care ordinarily exercised by a reasonable, prudent natural hazard disclosure professional in the same community, and in the same timeframe, given the same or similar facts and circumstances.
13. Parties Duty to Disclose: In the event that the report prepared by CALIFORNIA DISCLOSURES omits any information of which the Parties are aware, the Parties shall notify CALIFORNIA DISCLSOURES within (10) days of the omission so that the Company can issue a revised Report. CALIFORNIA DISCLOSURES SHALL HAVE NO LIABILITY WHATSOEVER TO THE PARTIES FOR ANY OMISSIONS IF ONE OR MORE OF THE PARTIES WAS AWARE OF THE INFORMATION PRIOR TO THE ISSUANCE OF THE CALIFORNIA DISCLOSURES REPORT.
14. Acknowledgements and Disclaimers: Purchaser acknowledges and agrees that:
a. CALIFORNIA DISCLOSURES prepared the Report for the exclusive use of the Parties using information obtained from public/regulatory databases without independent verification;
b. The Services may require CALIFORNIA DISCLOSURES to make judgments based upon limited data, rather than upon scientific certainties, and relate to data compiled or reviewed during performance of the Services only;
c. Information corroborating, challenging, and/or conflicting that contained in the Report, for Target Property and/or other sites, likely exists in other sources not referenced in the Report;
d. Governmental agencies often do not list all sites with environmental impacts and the absence of potential neighborhood/regional impacts, historic or present, does not imply that the Subject Property is free of environmental impacts;
e. The information provided through the Services is not legal nor business advice;
f. Purchaser assumes all risks in using the Services and accepts the Report “AS IS”;
g. Any analyses, estimates, or ratings related to perceived environmental risks or otherwise presented in the Report are for illustrative and thought-provoking purposes only, and do not provide any actionable facts regarding actual environmental liability or risk associated with Target Property and/or other sites;
h. Only by proceeding with further environmental due diligence, such as by commissioning a formal and professionally-prepared All Appropriate Inquiries (AAI) Phase I Environmental Site Assessment in accordance with ASTM (E1527-13) can actual decision-making information be generated for reliance; and
i. Reproduction in any media or form, in whole or in part, of the Report or any CALIFORNIA DISCLOSURES-produced image is strictly prohibited without CALIFORNIA DISCLOSURES’s prior written consent.
15. Exclusions: The Report will not address: air quality, asbestos-containing materials, business or investment risks, cultural/historical resources, dust, ecological resources, endangered species, health and safety, high voltage power lines, industrial hygiene, leach fields, lead in drinking water or paint, microorganisms, mold, permitting, radon, septic systems or tanks, and/or wetlands.
16. Limited Warranty: CALIFORNIA DISCLOSURES warrants to the Parties that as of the Date of Issue, and subject to strict Limitations contained within the Purchaser Agreement, the Report will accurately reflect the information contained within the public records referred to in Section 6 above. In the event that the Company’s breach of this limited warranty results in a claim for damages by a Party or Parties to the transaction, and subject to the limitations of liability below (Section 17), the Company shall indemnify and hold the affected Party harmless for direct damages related to this claim. This recovery shall be the Parties’ sole and exclusive remedy for claims for damages arising out of or relating in any way to the breach of the limited warranty.
a. No Warranty for Environmental Information: Reports contain information regarding the possible proximity of the Subject Property to certain environmental concerns. These determinations are made in good faith using location data for the Subject Property, but the Parties understand and agree that location data is based on one geographic point provided for both the Subject Property and the particular environmental concern. CALIFORNIA DISCLOSURES makes no representations or warranties about any environmental disclosures contained in the Report. Additionally, the Report does not contain any information on environmental concerns other than those specifically listed on the Report, including (without limitation) any environmental concerns associated with the structure(s) located on the Subject Property.
b. Limited Indemnification of Escrow Agents: CALIFORNIA DISCLOSURES shall indemnify and hold harmless any licensed Escrow Company that procures a Report from any third party claim against it directly resulting from CALIFORNIA DISCLOSURES’ gross negligence or willful misconduct in preparing the Report; subject to the exclusions and limitations of liability set forth in this Purchaser Agreement.
c. Limited Indemnification of Transaction Coordinators: CALIFORNIA DISCLOSURES shall indemnify and hold harmless any Transaction Coordinator that procures a Report from any third party claim against it directly resulting from CALIFORNIA DISCLOSURES’ gross negligence or willful misconduct in preparing the Report; subject to the exclusions and limitations of liability set forth in this Purchaser Agreement.
17. Limitation of Liability: Purchaser agrees that the liability of CALIFORNIA DISCLOSURES by reason of errors or omissions, negligence, accident, or any other cause, for any loss or damage, including, without limitation, compensatory, special incidental, consequential, or exemplary damages, shall be limited to the actual proven direct damages measured by the difference in the fair market value of the Subject Property as of the date of issue, caused as a direct result of the breach of the Limited Warranty.
18. Indemnification: Purchaser shall indemnify, defend (with counsel of CALIFORNIA DISCLOSURES’s choosing), and hold harmless the CALIFORNIA DISCLOSURES Team from claims, costs, expenses, demands, fines, causes of action, losses, damages, judgments or liabilities which may be made or asserted by Purchaser or any third party (including a governmental agency) related to the Services, the Report, and/or any breaches of this Agreement by Parties, including as a result of any unauthorized release of information presented herein.
19. Entire Agreement/Modifications/Conflicts: This Agreement constitutes the entire agreement between the Parties with respect to the Services and the Report, and supersedes all prior communications or agreements, if any, with respect thereto. This Agreement may not be amended or modified except through a writing executed by each Party referencing this Agreement. If any term of this Agreement conflicts with any term in the Order Form, this Agreement shall supersede and control.
20. Capacity/Independent Contractor/Subcontractors: It is expressly agreed that, in providing the Services, CALIFORNIA DISCLOSURES is acting as an independent contractor, and not as an employee of Purchaser. This Agreement does not create a partnership or joint venture between the Parties. CALIFORNIA DISCLOSURES may employ subcontractors in performance of part or all of the Services and/or in production of the Report.
21. Confidentiality: CALIFORNIA DISCLOSURES agrees to employ commercially reasonable efforts to maintain as confidential Purchaser’s name and contact information, payment data, Target Property location, and resulting Report. However, CALIFORNIA DISCLOSURES may disclose such materials to the extent ordered to do so by a court of competent jurisdiction.
22. Governing Law/Venue: This Agreement shall be interpreted under the laws of the State of California with venue proper only in Orange County, California.
23. Limitations on Actions: By executing this Agreement, the Purchaser limits the period in which it may bring an action against the CALIFORNIA DISCLOSURES Team to one year after CALIFORNIA DISCLOSURES’s sending of the Report to Purchaser.
24. Headings: The headings herein are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
PARTIES HEREBY AGREE to each and every term of this Agreement by and through the electronically-documented act of clicking “Accept” at the time of purchase.