HomeMy WebLinkAboutContracts & Agreements_113-2016 PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
DATED
JUNE 7, 2016
BY AND BETWEEN
CITY OF REDLANDS,
a municipal corporation,
ASSELLER
AND
VANTAGE ONE REAL ESTATE INVESTMENTS, LLC,
a California Iimited liability company,
AS BUYER
TABLE OF CONTENTS
Page
1. PURCHASE AND SALE....................................................................................................1
2. PURCHASE PRICE. ...........................................................................................................1
2.1 Deposits .................................................................................................................1
2.2 Deposit of Balance.................................................................................................2
3. ESCROW................................................................................ ..........................................2
3.1 Opening of Escrow ....................................................................................•...........2
3.2 Escrow Instructions................................................... ......•.......................2
3.3 Termination/Cancellation ......................................................................................3
4. ACTIONS PENDING CLOSING. ......................................................................................3
4.1 Due DiIigence. .......................................................................................................3
4.2 Title........................................................................................................................6
4.3 Entitlements. ..........................................................................................................7
5. DESCRIPTION OF PROPERTY........................................................................................7
5.1 The Real Property..................................................................................................7
5.2 The Intangible Property...................................................... .7
..................................
6. CONDITIONS TO CLOSING. ...........................................................................................8
6.1 Buyer's Closing Conditions...................................................................................8
6.2 Seller's Closing Conditions....................................................................................9
7. CLOSING........................................................................... ...............9
7.1 Closing Date ..........................................................................................................9
7.2 Deliveries by Seller................................................................................................9
7.3 Deliveries by Buyer.............................................................................................10
7.4 Actions by Escrow Agent....................................................................................10
7.5 Prorations/Apportionment ...................................................................................11
7.6 Closing Costs.......................................................................................................12
7.7 Closing Statement................................................................................................12
7.8 Deliveries Outside of Escrow ..............................................................................12
8. SELLER'S REPRESENTATIONS AND WARRANTIES. .............................................13
8.1 Due Organization.................................................................................................13
8.2 Seller's Authority; Validity of Agreements.........................................................13
8.3 No Third-Party Rights .........................................................................................13
8.4 Litigation..............................................................................................................13
8.5 Zoning and Condemnation...................................................................................13
8.6 No Violations of Environmental Laws................................................................13
8.7 No Other Commitments.......................................................................................14
8.8 Wells....................................................................................................................14
8.9 Landfill/Waste Disposal Site...............................................................................14
8.10 Property Materials................................................................................................14
8.11 Permits and Approvals.........................................................................................14
8.12 Williamson Act....................................................................................................14
8.13 Actual Knowledge ...............................................................................................14
8.14 Survival................................................................................................................15
9. BUYER'S REPRESENTATIONS AND WARRANTIES. ..............................................15
9.1 Due Organization.................................................................................................15
9.2 Buyer's Authority; Validity of Agreements ........................................................15
9.3 [Intentionally Omitted] ........................................................................................15
9.4 Survival................................................................................................................16
10. AS-IS. ................................................................................................................................16
11. RISK OF LOSS. ..............................................................................................16
11.1 Condemnation......................................................................................................16
11.2 Casualty ...............................................................................................................17
12. REMEDIES. ......................................................................................................................17
12.1 Default by Seller..................................................................................................17
12.2 Default by Buyer...........................................................•......................................18
13. BROKERS.........................................................................................................................18
14. MISCELLANEOUS PROVISIONS. ................................................................................19
14.1 Entire Agreement.................................................................................................19
14.2 Modification; Waiver........................................................................................•..19
14.3 Notices .................... ...................... ..................................................19
14.4 Expenses ..............................................................................................................20
14.5 Severability..........................................................................................................20
14.6 Successors and Assigns .......................................................................................20
14.7 Counterparts.........................................................................................................21
14.8 Governing Law; Jurisdiction; Waiver of Jury; Judicial Reference......................21
14.9 Headings ................................................................................•.............................22
14.10 Time of Essence...................................................................................................22
14.11 Further Assurances ..............................................................................................22
14.12 Construction.........................................................................................................22
I4.I3 Attorneys' Fees....................................................................................................23
14.14 Business Days......................................................................................................23
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Agreement") is made and entered into as of June 7, 2016 (the
"Agreement Date"), by and between CITY OF REDLANDS, a municipal corporation
("Seller"), and VANTAGE ONE REAL ESTATE INVESTMENTS, LLC, a California
Iimited liability company or assignee ('Buyer"), for the purpose of setting forth the agreement
of the Parties and to provide instructions to Escrow Agent with respect to the transaction
contemplated by this Agreement. Seller and Buyer shall also individually be referred to as a
"Party" and collectively as the "Parties".
RECITALS
A. Seller is the owner of that certain real property located at 212 Brookside Avenue in
the City of Redlands ("City"), San Bernardino County(the "County"), State of California,known
as APN Numbers 0171-101-01, 0171-101-02, 0171-101-03, 0171-101-04, 0171-101-05, 0171-
211-15, 0171-211-17 and 0171-211-25, and if owned by City, shall also include that certain alley,
containing approximately 1,760 SF (0.04 acres) directly contiguous to such real property, as
outlined in green and depicted in Schedule 1 to Exhibit A all as more particularly described on
Exhibit "A" attached to and made a part of this Agreement (collectively, the "Land"). The Land,
together with the Improvements, the balance of the Real Property, and the Intangible Property
(each as defined in Section 5), are sometimes collectively referred to in this Agreement as the
„Property"
B. Seller desires to sell the Property to Buyer, and Buyer desires to purchase the
Property from Seller, upon and subject to the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the mutual agreements contained in this Agreement and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer
and Seller hereby agree, and instruct Escrow Agent, as follows:
1. PURCHASE AND SALE.
Seller agrees to sell, transfer, and convey to Buyer, and Buyer agrees to purchase and
acquire from Seller, the Property on all of the terms and conditions of this Agreement.
2. PURCHASE PRICE.
The purchase price for the Property (the "Purchase Price") shall be One Million Six
Hundred Twenty Five Thousand Dollars ($1,625,000.00). The Purchase Price shall be payable as
follows:
2.1 Deposit, By 5:00 p.m. on the third (3rd) day after the "Opening of Escrow" (as
defined below), Buyer shall deposit into "Escrow" (as defined below) the sum of One Hundred
Thousand Dollars ($100,000) (which amount, together with any and all interest earned thereon,
shall be referred to in this Agreement as the "Deposit"). The Deposit shall be fully refundable
through the Due Diligence Termination Date, as defined in Section 4.1.3. From and after the Due
Diligence Termination Date, provided Buyer does not elect to terminate this Agreement as
permitted pursuant to the terms of Section 4.1.3, the Deposit shall become non-refundable, except
as specifically provided otherwise in this Agreement, and shall be credited against the Purchase
Price at Closing.
2.1.1 Refund of Deposit. If Buyer delivers its Due Diligence Approval Notice
(as defined below),but subsequently elects to terminate this Agreement due to (a) a Seller Default,
as defined in Section 12.1) hereunder, (b) a failure of a Buyer's Condition to Closing, or (c) the
occurrence of any other event which by the terms of this Agreement gives rise to Buyer's right to
terminate this Agreement and receive a refund of the Deposit, then, subject to the terms of Section
12.1, (i) the Deposit shall immediately be returned by Escrow Agent to Buyer, or to the extent
previously released to Seller,refunded to Buyer by Seller, (ii) this Agreement and the Escrow shall
terminate, and (iii) the Parties shall have no further obligation to one another with respect to this
Agreement, except with respect to such provisions which by their terms survive the termination of
this Agreement.
2.1.2 Interest. The Initial Deposit and any other cash held by Escrow Agent for
the benefit of Buyer shall be held in a federally insured interest bearing account, and the interest
shall accrue to Buyer's benefit.
2.1.3 Independent Consideration. Notwithstanding the terms of Section 2.1.1, a
portion of the Deposit in the amount of One Hundred Dollars ($100.00) (the "Independent
Consideration") shall be non-refundable to Buyer as independent consideration for the rights
extended to Buyer under this Agreement, including the right to conduct the Due Diligence and
terminate this Agreement as provided in this Agreement. If Buyer elects to terminate this
Agreement for any reason other than Seller's Default (as defined in Section 4.1.3), Seller shall
retain the Independent Consideration. The Independent Consideration shall be applicable towards
the Purchase Price.
2.2 Deposit of Balance of Purchase Price. Buyer shall, at least one (1) business day
prior to Closing (as defined in Section 7.1), deposit into Escrow in the form of wire transfer, cash
or a certified or bank cashier's check for immediately available funds, the amount of the Purchase
Price less the Deposit, l�us Buyer's closing costs and Buyer's share of any prorations to be made
in accordance with this Agreement.
3. ESCROW.
Opening of Escrow. Buyer and Seller shall cause an escrow ("Escrow")to be opened with
Fidelity National Title Insurance Company at it office located at 3237 East Guasti Road Suite 105,
Ontario,California 91761,Attention: Janette DeLap,VP Senior Commercial Escrow Officer,909-
569-0225, Janette.DeLap@fnf.com ("Escrow Agent") by delivery to Escrow Agent of a fully
executed copy of this Agreement. Escrow Agent shall promptly deliver to Buyer and Seller written
confirmation of the date of the "Opening of Escrow." As used in this Agreement, the term
"Opening of Escrow" means the day on which Escrow Agent receives a fully executed copy of
this Agreement and has notified each Party in writing of such receipt.
3.1 Escrow Instructions. This Agreement shall constitute escrow instructions to
Escrow Agent as well as the agreement of the Parties. If any other printed escrow instructions are
requested of the Parties and the terms thereof conflict or are inconsistent with any provision of this
Agreement or any deed, instrument, or document executed or delivered in connection with the
transaction contemplated hereby, the provisions of this Agreement, or such deed, instrument, or
document shall control. Escrow Agent is hereby appointed and designated to act as Escrow Agent
and instructed to deliver, pursuant to the terms of this Agreement, the documents and funds to be
deposited into Escrow as provided this Agreement.
3.2 Termination/Cancellation. Upon any termination or cancellation (the terms being
used interchangeably in this Agreement) by either of the Parties as expressly allowed under this
Agreement(including,without limitation, any deemed termination or cancellation), (a)the Deposit
shall be delivered to the Party that this Agreement specifies is entitled to the same; (b) all
documents, instruments, and funds delivered into Escrow shall be returned to the Party that
delivered the same into Escrow, and(c)the Parties shall thereafter be relieved from further liability
under this Agreement, except with respect to any obligations under this Agreement that are
expressly stated to survive any termination of this Agreement. A copy of any notice of termination
allowed under this Agreement shall be sent to Escrow Agent by the Party electing to terminate.
Upon a termination or cancellation by either of the Parties for any reason other than a default by
Seller, Buyer shall deliver to Seller copies of all third-party reports, plans, studies, applications or
any other matters obtained by or prepared for Buyer in connection with Buyer's review of the
Property and which relate to the physical condition of the Property, including, without limitation,
any physical inspection, engineering, and environmental reports completed and/or obtained by
Buyer in connection with Buyer's review of the Property (collectively, "Property Condition
Documents"),but excluding any documents that are subject to the attorney client privilege or that
contain proprietary or confidential information. Seller understands and acknowledges that neither
Buyer nor any of Buyer's representatives makes any representation or warranty to Seller as to the
accuracy or completeness of the Property Condition Documents and that Buyer and Buyer's
representatives have not made or will not make any attempt to verify the data contained in the
Property Condition Reports. Seller agrees that Buyer and Buyer's representatives shall not have
any liability to Seller as a result of Seller's use of the Property Condition Documents.
4. ACTIONS PENDING CLOSING.
4.1 Due Diligence.
4.1.1 Property Materials.
4.1.1.1 On or before 5:00 p.m. on the fifth (5th) day following the
Opening of Escrow, Seller shall, at Seller's sole cost and expense, to the extent within the
Seller's possession or control,provide to Buyer and Buyer's counsel true,correct, and complete
copies of all of the following documents (collectively, the "Property Materials"):
(a) Any and all surveys for the Property;
(b) All existing, proposed or draft site plans, maps, plats, landscaping plans,
construction plans and drawings, and development plans for the Property
(including, without limitation, with respect to offsite development related to the
Property);
(c) All existing environmental reports for the Property;
(d) All leases, occupancy agreements, operating agreements, and Iicenses that affect
the Property;
(e) All zoning stipulations, agreements, and requirements that affect or that are
proposed to affect the Property;
(f) All archaeological, biological, soil, geological, grading, drainage, and hydrology
reports, surveys, or assessments and any other engineering reports for the Property;
(g) A Natural Hazards Disclosure Report in conformity with the California Natural
Hazards Disclosure Act;
(h) All records to the extent within Seller's possession or control relating to the use,
storage and disposal of all pesticides, fertilizers and other agricultural chemicals
which have been used on the Property or that Seller anticipates Seller, or its agents
or contractors, will use on the Property prior to the Close of Escrow.
(i) The contact information for all engineers, architects, draftspersons, and/or
consultants known to Seller to have information concerning the Property and/or its
development (each of whom Buyer shall be authorized to contact, discuss the
Property and/or its development with, and, if desired by Buyer, retain at Buyer's
expense);
(j) Articles of organization, bylaws, rules and regulations, budgets and resolutions of
board of directors for any owners' associations affecting the Property;
(k) All contracts with all third Parties who have provided services or supplied materials
to the Property (each of whom Buyer shall be authorized to contact, discuss the
Property and/or its development with); and
(1) Any other third-Party reports, contracts, and agreements of any kind in Seller's
possession or control pertaining to the Property.
4.1.1.2 Further, prior to the Due Diligence Termination Date (as defined
in Section 4.1.3),upon not less than twenty-four(24) hours prior written notice by Buyer to Seller,
Seller shall make available to Buyer at Seller's offices, and Buyer shall have the right to review,
all other records in Seller's possession or control relating to the Property.
4.1.1.3 Seller shall promptly furnish to Buyer for its review (a) any of the
items described in Section 4.1.1.1 that may come into Seller's possession or control from and after
the date of this Agreement, and (b) any additional documents and information in the possession or
control of Seller reasonably requested in writing by Buyer. Except as provided in Section 8.15,
Buyer understands and acknowledges that neither Seller nor any of Seller's representatives makes
any representation or warranty to Buyer as to the accuracy or completeness of the Property
Materials and that Seller and Seller's representatives shall have not made or will not make any
attempt to verify the data contained therein. Buyer agrees that Seller and Seller's representatives
shall not have any liability to Buyer as a result of Buyer's use of the Property Materials.
4.1.2 Buyer's Diligence Tests.
4.1.2.1 At all reasonable times from the date of this Agreement to the
Closing (or earlier termination of this Agreement), Buyer and its employees, agents, consultants,
and contractors shall be entitled, at Buyer's sole cost and expense, to: (a) enter onto the Real
Property to perform any inspections, investigations, studies, and tests of the Real Property
(including, without limitation, physical, engineering, soils, geotechnical, and environmental tests)
that Buyer deems reasonable; (b) review all Property Materials; and (c) investigate such other
matters pertaining to the Property as Buyer may desire. Notwithstanding the foregoing, Buyer
shall not conduct any invasive testing on the Real Property without the prior consent of Seller,
which shall not be unreasonably withheld, delayed (specifically, Seller shall respond to Buyer's
request to conduct such testing not more than twenty-four(24) hours after written notice by Buyer
to Seller), or conditioned. Any entry by Buyer onto the Real Property shall be subject to, and
conducted in accordance with, all applicable laws.
4.1.2.2 Buyer shall keep the Property free and clean of any mechanics'
liens and indemnify, protect, defend, and hold Seller and Seller's partners, officers, directors,
shareholders, managers, members, agents, employees, and representatives (each an "Indemnified
Party" and collectively, the "Indemnified Parties") harmless from and against any and all claims
(including, without limitation, claims for mechanic's liens or materialman's liens), causes of
action, demands, obligations, losses, damages, liabilities, judgments, costs, and expenses
(including, without limitation, reasonable attorneys' fees, charges, and disbursements)
(collectively, "Claims") in connection with or arising out of any inspections of the Real Property
carried on by or on behalf of Buyer pursuant to the terms of this Agreement, provided, however,
that Buyer shall have no responsibility or liability for (a) the negligence or willful misconduct of
any Indemnified Party; (b) any adverse condition or defect on or affecting the Property not caused
by Buyer or its employees, agents, consultants, or contractors but discovered or impacted during
their inspections including, without limitation,the pre-existing presence or discovery of any matter
(such as, but not limited to, any Hazardous Substance (as defined in this Agreement defined));
and/or (c) the results or findings of any inspection.
4.1.2.3 Upon completion of Buyer's inspections, Buyer shall promptly
repair any material damage to the Property caused by its entry and restore the Property to
substantially the same conditions which existed prior to Buyer's entry under this Section 4.1.2.
4.1.2.4 The provisions of this Section 4.1.2 shall survive the Closing or
the earlier termination of this Agreement.
4.1.3 Buyer's Termination Right. Buyer shall have the right at any time on or
before 5:00 p.m. on the forty fifth (45th) day after the Opening of Escrow (the "Due Diligence
Termination Date") to terminate this Agreement by delivering a written notice of such
termination to Seller and Escrow Agent if Buyer determines, in its sole and absolute discretion,
that the Property is not acceptable to Buyer for any reason. Buyer shall indicate its satisfaction
and/or waiver of the Due Diligence condition described in this Section 4.1 by delivering written
notice of such satisfaction and/or waiver("Due Diligence Approval Notice")to Seller and Escrow
Agent on or prior to the Due Diligence Termination Date. If Buyer fails to timely deliver a Due
Diligence Approval Notice, then this Agreement and the Escrow shall be automatically deemed
terminated. If this Agreement is terminated in accordance with this Section, then the Initial
Deposit shall be immediately returned to Buyer and the Parties shall thereafter be relieved from
further liability hereunder, except with respect to any obligations under this Agreement that are
expressly stated to survive any termination of this Agreement.
4.2 Title.
4.2.1 Deliveries by Seller. On or before 5.00 p.m. on the third (3rd) Business
Days after the Opening of Escrow, Seller shall cause Fidelity National Title Insurance Company
("Title Insurer"), at its office located at 1300 Dove Street, Suite 310, Newport Beach, California
92660, Attention Curt Taplin, Vice President and Commercial Title Insurance Officer, (949)
221-4763, curtis.taplin@fnf.com, to issue and deliver to Buyer, at Buyer's sole cost and expense,
(a) a current commitment for an ALTA extended coverage Owner's Policy of Title Insurance for
the Real Property (the "Title Report") and (b) legible copies of all documents referenced as
exceptions in the Title Report (collectively with the Title Report, the "Title Documents").
4.2.2 Buyer's Review of Title. Buyer shall have until the Due Diligence
Termination Date to notify Seller in writing of any objection that Buyer may have to any matters
reported or shown in any survey or the Title Documents or any amendments or updates thereof(a
"Buyer's Title Objection Letter") (provided, however, that if any such amendments or updates
are received by Buyer after or within five(5)Business Days before the Due Diligence Termination
Date, Buyer shall have five (5) Business Days following Buyer's receipt of such amendment or
update and copies of all documents referenced in the Title Documents to notify Seller of objections
to matters shown on any such amendment or update that were not disclosed on the previously
delivered survey or Title Documents and the Closing Date shall automatically be extended as
necessary to facilitate such notice period and any subsequent periods for Seller's response and
Buyer's election as provided in subsections (i) and (ii), below). Matters shown as exceptions to
coverage in the Title Report (or any amendments or updates thereof) that are not timely objected
to by Buyer as provided above shall constitute "Permitted Exceptions". Seller shall cooperate,
at no cost to Seller, with Buyer to eliminate matters objected to by Buyer, but, except as set forth
in the last sentence of this Section 4.2.2, Seller shall have no obligation to cure or correct any
matter objected to by Buyer. On or before the fifth (51h) Business Day following Seller's receipt
of Buyer's Title Objection Letter, Seller may elect,by delivering written notice of such election to
Buyer and Escrow Agent ("Seller's Response"), to cause Title Insurer to remove or insure over
any matters objected to in Buyer's Title Objection Letter. If Seller fails to deliver Seller's
Response within the period set forth above, it shall be deemed an election by Seller not to cause
Title Insurer to so remove or insure over such objections. If Seller elects or is deemed to have
elected not to cause Title Insurer to so remove or insure, or if Buyer determines, in its sole
discretion, that any proposed endorsement for or insurance over an objected matter is
unsatisfactory, then Buyer must elect, by delivering written notice of such election to Seller and
Escrow Agent on or before the earlier to occur of(a)the fifth(5`h)Business Day following Buyer's
receipt of Seller's Response or (b) if no Seller's Response is received by Buyer, the fifth (5`h)
Business Day following the date on which Seller shall have been deemed to have responded, as
provided above, to: (i) terminate this Agreement, in which case the Initial Deposit, to the extent
previously deposited in Escrow, shall be immediately returned to Buyer; or (ii) proceed with this
transaction, in which event those objected to exceptions or matters that Seller has not elected to
cause Title Insurer to so remove or insure shall be deemed to be Permitted Exceptions. If Buyer
fails to make such election on a timely basis, then Buyer shall be deemed to have elected to
terminate this Agreement in accordance with the preceding clause (i). Notwithstanding anything
else stated in this Agreement, in all events, regardless of whether Buyer has given notice of
objection as stated above, Seller shall be obligated to satisfy and otherwise remove all monetary
and financial liens and encumbrances in existence as of the Agreement Date or incurred by Seller
on or before the Closing Date (other than current taxes not yet due) and any additional
encumbrances incurred by Seller after the Agreement Date in violation of any provision of this
Agreement, and, except as may be otherwise specifically set forth in this Agreement, terminate all
leases, possessory agreements, licenses, and operating agreements that affect the Property and
Buyer need not object to any such matters. Seller agrees not to cause or create any additional
encumbrances or other matters affecting title to the Property to be incurred following the
Agreement Date that are not satisfied or otherwise removed on or before the Closing Date as
contemplated above.
4.2.3 Prohibited Uses. Prior to the Closing, Buyer and Seller shall execute an
instrument in recordable form(the"Use Restriction")which shall prohibit the following uses upon
the Real Property: 1) a grocery store, 2) a drug store, or 3) a drive-through lane serving any other
business operated on the Real Property (collectively, the "Prohibited Uses"). The Use Restriction
shall constitute a Permitted Exception and shall be delivered and recorded concurrently with the
Closing as specified in Section 7 below.
4.2.4 Condition of Title at Closing. Upon the Closing, Seller shall sell, transfer,
and convey to Buyer fee simple title to the Real Property by a duly executed and acknowledged
grant deed in the form of Exhibit 'B" attached hereto (the "Grant Deed"), subject only to the
Permitted Exceptions and the reservations and other matters, if any,referenced or described in said
Grant Deed.
4.3 Entitlements and Zoning. Buyer shall have the right, during the term of this
Agreement, to pursue all property-specific entitlements in connection with Buyer's intended use
of the Property. The cost or expense of preparing for or filing for any such applications by Buyer
pursuant to this Section 4.3 shall be borne solely by Buyer.
5. DESCRIPTION OF PROPERTY.
5.1 The Real Property. As used in this Agreement, the term "Real Property" shall
mean, collectively, all of Seller's right, title, and interest in and to: (a) the Land; (b) all buildings
and related improvements on the Property (the "Improvements"); and (c) all of the rights,
privileges, appurtenances, hereditaments, easements, reversions, and remainders pertaining to or
used in connection with the Land and/or any of the Improvements, including, without limitation,
all (i) development rights and credits, air rights, water, water rights, and water stock relating to the
Land, (ii) strips and gores, streets, alleys, easements, rights-of-way, public ways, or other rights
appurtenant, adjacent, or connected to the Land, and (iii) minerals, oil, gas, and other hydrocarbon
substances in, under, or that may be produced from the Land.
5.2 The Intangible Property. As used in this Agreement, the term "Intangible
Property" shall mean all of Seller's right, title, and interest in and to that certain intangible
property owned by Seller or used by Seller in connection with all or any portion of the Real
Property, including, without limitation, all of Seller's right, title, and interest,if any, in and to: (a)
all plats, improvement plans, drawings and specifications (including, without limitation, CAD
files), and development rights and credits relating to the Property, (b) all books, records, reports,
test results, environmental assessments, if any, as-built plans, specifications, and other similar
documents and materials relating to the use, operation, maintenance, repair, construction, or
fabrication of all or any portion of the Real Property; (c) all transferable architectural, site,
landscaping or other permits, applications, approvals, authorizations, and other entitlements
affecting any portion of the Real Property; (d) all credits (including without limitation water meter
credits), reimbursements and refunds of any fees and/or deposits paid in connection with the Real
Property; and (e) all transferable guarantees, warranties, and utility contracts relating to all or any
portion of the Real Property.
6. CONDITIONS TO CLOSING.
6.1 Buyer's Closing Conditions. The obligation of Buyer to complete the transaction
contemplated by this Agreement is subject to the following conditions precedent (and conditions
concurrent, with respect to deliveries to be made by Seller at the Closing) (the "Buyer's Closing
Conditions"), which conditions may be waived, or the time for satisfaction of such conditions
extended, by Buyer only in a writing executed by Buyer:
6.1.1 Title. Title Insurer shall be irrevocably and unconditionally prepared and
committed to issue to Buyer (with an effective date not earlier than the Closing Date), an ALTA
extended coverage owner's policy of title insurance("ALTA Extended Polity") in favor of Buyer
for the Real Property (a) showing fee title to the Real Property vested in Buyer, (b) with liability
coverage in an amount equal to the Purchase Price, (c) with those endorsements reasonably
requested by Buyer including, without limitation, a Mechanic's Lien Endorsement, and (d)
containing no exceptions other than the Permitted Exceptions and the reservations and other
matters referenced or described in the Grant Deed (the "Owner's Title Policy"). Buyer shall pay
any difference in the cost of the premium for a standard ALTA owner's policy of title insurance
and the ALTA Extended Policy. If a new or updated survey is required to enable the Title
Company to issue the ALTA Extended Policy, Buyer shall obtain the same, at its sole cost and
expense, in a timely manner so as to facilitate the issuance of the ALTA Extended Policy upon the
Close of Escrow.
6.1.2 Seller's Due Performance. All of the representations and warranties of
Seller set forth in Section S shall be true, correct, and complete in all material respects as of the
Closing Date, and Seller, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants, and agreements required on the part of Seller to be
complied with or performed pursuant to the terms of this Agreement on or prior to the Closing.
6.1.3 Physical Condition of Property. The physical condition of the Property
shall be substantially the same on the Closing Date as on the Agreement Date, except for
reasonable wear and tear and any damages due to any act of Buyer or Buyer's representatives.
6.1.4 No Moratorium. As of the Closing Date, there shall be no moratorium,
injunction, restraining order, or other limitation imposed by any Applicable Authority, court,
administrative body, or private entity that precludes or prevents the issuance of building permits
or certificates of occupancy with respect to the Real Property and/or the construction of residences
or other improvements on the Real Property.
6.1.5 Bankruptcy. No action or proceeding shall have been commenced by or
against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the
enforcement of the rights of creditors, and no attachment, execution, lien, or levy shall have
attached to or been issued with respect to Seller's interest in the Property or any portion thereof.
6.1.6 Possession/Removal of Personal Property. Upon the Close of Escrow,
Seller shall deliver exclusive and vacant possession of the Property to Buyer. Prior to the Close
of Escrow Seller shall have the right to remove any or all improvements and Seller's equipment,
trade fixtures or other personal property. Any such salvage and removal shall be performed
pursuant to all required permits, in accordance with all laws, rules and regulations, and in such
manner that the Property is delivered upon the Close of Escrow without any safety issues on site,
such as large holes, partially razed structures, or any other similarly unsafe conditions. Any
improvements or personal property of Seller remaining on the Property after the Close of Escrow
shall be conclusively deemed abandoned by Seller(the "Abandoned Personal Property"). Seller
waives and relinquishes all rights, title, interest and claims in any such Abandoned Personal
Property and effective upon abandonment transfers, conveys and assigns all of its right, title and
interest in such Abandoned Personal Property to Buyer for disposition as determined by Buyer in
Buyer's sole and absolute discretion.
6.2 Seller's Closing Conditions. All of the representations and warranties of Buyer set
forth in Section 9 shall be true, correct, and complete in all material respects as of the Closing
Date, and Buyer, on or prior to the Closing Date, shall have complied with and/or performed all
of the obligations, covenants, and agreements required on the part of Buyer to be complied with
or performed pursuant to the terms of this Agreement on or prior to the Closing.
7. CLOSING.
7.1 Closing Date. Subject to the provisions of this Agreement, the Closing shall take
place on or before that date (the "Closing Date") which is the sixtieth (60'h) day after the Opening
of Escrow. As used in this Agreement,the "Closing" shall mean the recordation of the Grant Deed
in the Official Records.
7.2 Deliveries by Seller. On or before the Closing Date, Seller, at its sole cost and
expense, shall deliver or cause to be delivered into Escrow the following items, documents, and
instruments, each dated as of the Closing Date, fully executed and, if appropriate acknowledged,
and, if applicable, in proper form for recording:
7.2.1 Grant Deed. The Grant Deed conveying the Real Property to Buyer;
7.2.2 Use Restriction. The Use Restriction, as provided above in Section 4.2.3;
7.2.3 Non-Foreign Affidavit. A Non-Foreign Affidavit in the form attached
hereto as Exhibit "C" (the "Non-Foreign Affidavit");
7.2.4 State Affidavit. A California Franchise Tax Board Form 543-C (the "State
Affidavit");
7.2.5 General Assignment. A general assignment to Buyer of the Intangible
Property in the form attached to this Agreement as Exhibit "D" (the "General Assignment");
7.2.6 Owner's Affidavit. An owner's affidavit or seller's certificate duly
executed by Seller in the form customarily required by title insurance companies in the county in
which the Real Property is located, in connection with the issuance of title insurance, to remove
standard exceptions for mechanics liens,the gap period from the latest title update of Buyer's title
insurance commitment and Parties in possession;
7.2.7 Proof of Authority. Such proof of Seller's authority and authorization to
enter into this Agreement and the transaction contemplated hereby, and such proof of the power
and authority of the individual(s) executing or delivering any instruments, documents, or
certificates on behalf of Seller to act for and bind Seller as may be reasonably required by Title
Insurer or Escrow Agent; and
7.2.8 Other. Such other items, documents, and instruments as may be reasonably
required by Buyer, Title Insurer, Escrow Agent, or otherwise in order to effectuate the provisions
of this Agreement and the Closing and/or otherwise to fulfill the covenants and obligations to be
performed by Seller at the Closing pursuant to this Agreement.
7.3 Deliveries by Buyer. On or before the Closing Date, Buyer, at its sole cost and
expense, shall deliver or cause to be delivered into Escrow the following funds and the following
items, documents, and instruments, each dated as of the Closing Date, fully executed and, if
appropriate acknowledged, and, if applicable, in proper form for recording:
7.3.1 Purchase Price. Cash or other immediately available funds in an amount
equal to the unpaid sure of the Purchase Price (less the Deposit) and all of Buyer's share of the
Closing Costs (as defined below) and otherwise sufficient to close the transaction contemplated in
this Agreement;
7.3.2 Use Restriction. The Use Restriction, as provided above in Section 4.2.3;
7.3.3 Proof of Authority. Such proof of Buyer's authority and authorization to
enter into this Agreement and the transaction contemplated hereby, and such proof of the power
and authority of the individual(s) executing or delivering any instruments, documents, or
certificates on behalf of Buyer to act for and bind Buyer as may be reasonably required by Title
Insurer or Escrow Agent; and
7.3.4 Other. Such other items, documents, and instruments as may be reasonably
required by Seller, Title Insurer, Escrow Agent, or otherwise in order to effectuate the provisions
of this Agreement and the Closing and/or otherwise to fulfill the covenants and obligations to be
performed by Buyer at the Closing pursuant to this Agreement.
7.4 Actions by Escrow Agent. Provided that Escrow Agent shall not have received
written notice from Buyer or Seller of the failure of any condition to the Closing or of the
termination of the Escrow and this Agreement,when Buyer and Seller have deposited into Escrow
the documents and funds required by this Agreement and Title Insurer is irrevocably and
unconditionally prepared and committed to issue the Owner's Title Policy in accordance with the
terms of this Agreement, Escrow Agent shall, in the order and manner indicated in this Agreement
below, take the following actions:
7.4.1 Recording. Cause the Grant Deed and any other documents customarily
recorded and/or that the Parties may mutually direct to be recorded in the Official Records and
obtain conformed copies of such items for distribution to Buyer and Seller.
7.4.2 Funds. Disburse all funds as follows:
7.4.2.1 Pursuant to the Closing Statement (as defined below), retain for
Escrow Agent's own account all escrow fees and costs, disburse to Title Insurer the fees and
expenses incurred in connection with the issuance of the Owner's Title Policy, and disburse to any
other persons or entities entitled to receive such fees and costs the amount of any other Closing
Costs;
7.4.2.2 Disburse to Seller an amount equal to the Purchase Price, less or
plus the net debit or credit to Seller by reason of the prorations and allocations of Closing Costs
provided for in this Agreement; and
7.4.2.3 Disburse to the Party who deposited the same any remaining
funds in the possession of Escrow Agent after the payments pursuant to Sections 7.4.2.1 and
7.4.2.2 above have been completed.
7.4.3 Delivery of Documents. Deliver: (a) to Seller (i) one original of all
documents deposited into Escrow (other than the Grant Deed, the other documents recorded
pursuant to the terms of this Agreement, the Non-Foreign Affidavit, the State Affidavit and the
General Assignment), (ii) one copy of the Non-Foreign Affidavit, the State Affidavit and the
General Assignment, and (iii) one conformed copy of each document recorded pursuant to the
terms of this Agreement; and (b) to Buyer, (i) one original of all documents deposited into Escrow
(other than the Grant Deed and the other documents recorded pursuant to the terms of this
Agreement, but including, without limitation, the Non-Foreign Affidavit and the State Affidavit),
and (ii) the one conformed copy of each document recorded pursuant to the terms of this
Agreement. Originals of any documents recorded at Closing shall be delivered after such
recording as indicated thereon.
7.4.4 Owner's Title Policy. Cause Title Insurer to issue or be irrevocably and
unconditionally prepared and committed to issue the Owner's Title Policy to Buyer.
7.5 Prorations/Apportionment.
7.5.1 Method of Proration. Taxes and assessments affecting the Property shall be
prorated between Buyer and Seller as of the CIosing Date based on a 360-day year. All non-
delinquent real estate taxes and assessments on the Property shall be prorated based on the actual
current tax bill, but if such tax bill has not yet been received by Seller by the Closing Date or if
supplemental taxes are assessed after the Closing for the period prior to the Closing, the Parties
shall make any necessary adjustment after the Closing by cash payment to the Party entitled to the
same so that Seller shall have borne all real property taxes, including all supplemental taxes,
allocable to the period prior to the Closing and Buyer shall bear all real property taxes, including
all supplemental taxes, allocable to the period from and after the Closing. If any real property
taxes or assessments or any expenses attributable to the Property and allocable to the period prior
to the Closing are discovered or billed after the Closing, the Parties shall make any necessary
adjustment after the Closing by cash payment to the Party entitled to the same within five (5)
Business Days following the discovery thereof or the receipt by any Party of the bill therefor, as
the case may be, so that Seller shall have borne all real property taxes, assessments and expenses
allocable to the period prior to the Closing and Buyer shall bear all real property taxes,assessments
and expenses allocable to the period from and after the Closing.
7.5.2 Survival. The obligations under this Section 7.5 shall survive the Closing
and the delivery and recordation of the Grant Deed for the Property.
7.6 Closing Costs. Each Party shall pay its own costs and expenses arising in
connection with the Closing (including, without limitation, its own attorneys' and advisors' fees,
charges, and disbursements), except the following costs (the "Closing Costs"), which shall be
allocated between the Parties as follows:
7.6.1 Escrow Agent's escrow fees and costs shall be shared equally by Buyer and
Seller;
7.6.2 The cost of the Owner's Title Policy attributable to the standard coverage
portion shall be paid by Seller;
7.6.3 The cost of the Owner's Title Policy attributable to the extended coverage
portion shall be paid by Buyer;
7.6.4 The cost of any items required to be provided by Seller pursuant to Section
4.2.2, shall be paid by Seller, and the costs of any other endorsements to the Owner's Title Policy
shall be paid by Buyer;
7.6.5 Seller shall pay the cost of any documentary transfer taxes in connection
with the recording of the Grant Deed;
7.6.6 Seller shall pay all recording costs for recording the Grant Deed; and
7.6.7 All other closing fees and costs shall be charged to and paid by Buyer.
7.7 Closing Statement. Three (3) Business Days prior to the Closing Date, Escrow
Agent shall deliver to each of the Parties for their review and approval a preliminary closing
statement (the "Preliminary Closing Statement") setting forth: (a) the proration amounts
allocable to each of the Parties pursuant to Section 7.5; and (b) the Closing Costs allocable to each
of the Parties pursuant to Section 7.6. Based on each of the Party's comments, if any, regarding
the Preliminary Closing Statement, Escrow Agent shall revise the Preliminary Closing Statement
and deliver a final, signed version of a closing statement to each of the Parties at the Closing (the
"Closing Statement").
7.8 Deliveries Outside of Escrow. Upon the Closing, Seller shall deliver vacant, sole,
and exclusive possession of the Property to Buyer, subject only to the Permitted Exceptions.
Further, Seller hereby covenants and agrees to deliver to Buyer, on or prior to the Closing, the
Intangible Property, including, without limitation, the original Property Materials to the extent
within Seller's possession or control. Effective immediately upon the Closing, any personal
property remaining on the Land shall be deemed abandoned and may be removed and disposed of
by Buyer at its sole cost and expense. This Section 7.8 shall survive the Closing.
S. SELLER'S COVENANTS, REPRESENTATIONS AND WARRANTIES.
Seller represents, and warrants to and agrees with Buyer, as of the Agreement Date and as
of the Closing Date, as follows:
8.1 Due Organization. Seller is a municipal corporation duly formed under the laws of
the State of California.
8.2 Seller's Authority; Validity of Agreements. Seller has full right, power, and
authority to sell the Property to Buyer as provided in this Agreement and to carry out its obligations
under this Agreement. The individual(s) executing this Agreement and the instruments referenced
in this Agreement on behalf of Seller has/have the legal power, right, and actual authority to bind
Seller to the terms hereof and thereof. This Agreement is, and all other instruments, documents
and agreements to be executed, and delivered by Seller in connection with this Agreement shall
be, duly authorized, executed, and delivered by Seller and the valid, binding, and enforceable
obligations of Seller (except as enforcement may be limited by bankruptcy,insolvency, or similar
laws) and do not, and as of the Closing Date will not result in any violation of, or conflict with, or
constitute a default under, any provisions of any agreement of Seller or any mortgage, deed of
trust, indenture, lease, security agreement, or other instrument, covenant, obligation, or agreement
to which Seller or the Property is subject, or any judgment, law, statute, ordinance, writ, decree,
order, injunction, rule, ordinance, or governmental regulation or requirement affecting Seller or
the Property.
8.3 No Third-Party Rim. Except as disclosed in the Title Report, Seller is not aware
of any leases or occupancy agreements that grant third-Parties any possessory or rights to use all
or any part of the Property.
8.4 Litigation. Seller is not aware of (a) any actions, investigations, suits, or
proceedings pending or threatened that affect the Property, the ownership or operation thereof, or
the ability of Seller to perform its obligations under this Agreement,and(b)there are no judgments,
orders, awards, or decrees currently in effect against Seller with respect to the ownership or
operation of the Property that have not been fully discharged prior to the Agreement Date.
8.5 Zoning and Condemnation. Except as disclosed in the Property Materials, Seller is
not aware of any planned or pending proceedings to alter or restrict the zoning or other use
restrictions applicable to the Property, to condemn all or any portion of the Property by eminent
domain proceedings or otherwise, or to institute a moratorium or similar restriction on building on
or issuing certificates of occupancy for construction on the Property.
8.6 No Violations of Environmental Laws. To Seller's knowledge and except as
disclosed in the Property Materials: (a) the Property is not in, nor has it been or is it currently
under investigation for violation of any federal, state,or local law, ordinance,or regulation relating
to industrial hygiene,worker health and safety,or to the environmental conditions in, at, on,under,
or about the Property, including, but not Iimited to, soil and groundwater conditions
("Environmental Lanus"); (b) the Property has not been subject to a deposit of any Hazardous
Substance; (c) neither Seller nor any third Party has used, generated, manufactured, stored, or
disposed in, at, on, or under the Property any Hazardous Substance; and (d) there is not now in,
on, or under the Property any underground or above ground storage tanks or surface
impoundments, any asbestos containing materials, or any polychlorinated biphenyls used in
hydraulic oils, electrical transformers, or other equipment. Seller hereby assigns to Buyer as of
the Closing all claims, counterclaims, defenses, and actions, whether at common law or pursuant
to any other applicable federal, state or other laws that Seller may have against any third Party or
Parties relating to the existence or presence of any Hazardous Substance in, at, on, under, or about
the Property. For purpose of this Agreement, the term "Hazardous Substance" shall include any
wastes, materials, substances, pollutants, and other matters regulated by Environmental Laws.
8.7 No Other Commitments. Except as may be disclosed in the Title Report, Seller has
not made any commitment or representation to any governmental authority, or any adjoining or
surrounding property owner, that would in any way be binding on Buyer or would interfere with
Buyer's ability to develop and improve the Property for residential,commercial,or retail purposes,
and Seller shall not make any such commitment or representation that would affect all or any
portion of the Property without Buyer's written consent.
8.8 Wells. Except as disclosed in the Property Materials, Seller is not aware of wells,
drilling holes or wellheads located on or under the Property.
8.9 Landfill/Waste Disposal Site. Seller has not used the Property and, except as
disclosed in the Property Materials, Seller is not aware that the Property has ever been used as a
landfill, waste disposal site, or burial site.
8.10 Property Materials. Seller is not aware of any material defects, deficiencies, or
inaccuracies in any of the Property Materials.
8.11 Permits and Approvals. To Seller's knowledge,all work performed on the Property
by or at the request of Seller including, without limitation, brush removal, has been performed in
material compliance with all applicable laws, rules and regulations and pursuant to all required
permits and approvals.
8.12 Williamson Act. Seller represents that no land conservation contract pursuant to
the Williamson Act, as defined in Chapter 7 of Division 1 of Title 5 (Sections 51200, et seq.) of
the California Government Code, as amended, or any successor statute thereto ("Williamson Act
Contract"), currently affects the Property. If a Williamson Act Contract is in effect with respect
to the Property, Seller agrees that Seller shall be responsible, at its sole cost and expense, to cause
the termination of the Williamson Act Contract on or before the Close of Escrow such that Buyer
shall acquire title to the Property free and clear of the Williamson Act Contract.
8.13 Actual Knowledge. For purposes hereof, "Seller is not aware" or "to Seller's
knowledge", or like terms shall mean the current actual knowledge of Oscar Orci, without
implying any duty of investigation or inquiry. In furtherance thereof, Seller hereby warrants and
represents that Oscar Orci is the Seller's representative most knowledgeable regarding the
Property.
8.14 Survival. All of the representations, warranties, and agreements of Seller set forth
in this Agreement shall be true upon the Agreement Date, shall be deemed to be repeated at and
as of the Closing Date, and shall survive the delivery of the Grant Deed and the Closing for a
period of one (1) year. Prior to a termination of this Agreement, Seller shall not take any action,
fail to take any required action, or willfully allow or consent to any action that would cause any of
Seller's representations or warranties to become untrue. If any representation or warranty of Seller
was true as of the date of this Agreement, but is not true as of the Closing Date, then Seller shall
disclose this changed fact to Buyer in writing. So long as Seller makes the foregoing disclosure
and the change of circumstances regarding the representation or warranty did not arise due to the
fault of Seller, then Seller shall not be in breach of this Agreement due to the fact that the
representation or warranty has become untrue as of the Closing Date; provided, however, the fact
that any representation or warranty under this Section 8 is untrue as of the Closing Date shall still
be a failure of a condition pursuant to Section 6.1.2. Notwithstanding the foregoing, if Buyer has
actual knowledge of the incorrectness of any representation or warranty set forth in this Section 8
as of the Close of Escrow and Buyer has not elected to terminate this Agreement as provided in
this Agreement, then Buyer will be deemed to have waived any claim against Seller for the
incorrectness of such representation or warranty.
9. BUYER'S REPRESENTATIONS AND WARRANTIES.
Buyer represents and warrants to Seller, as of the Agreement Date and as of the Closing
Date, as follows:
9.1 Due Organization. Buyer is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of California and is authorized to do
business in the State of California.
9.2 Buyer's Authority; Validity of Agreements. Buyer has full right, power, and
authority to purchase and acquire the Property from Seller as provided in this Agreement and to
carry out its obligations hereunder. The individual(s) executing this Agreement and the
instruments referenced in this Agreement on behalf of Buyer has/have the legal power, right, and
actual authority to bind Buyer to the terms of this Agreement and such instruments and documents.
This Agreement is, and all other instruments, documents, and agreements to be executed and
delivered by Buyer in connection with this Agreement shall be, duly authorized, executed, and
delivered by Buyer and the valid, binding, and enforceable obligations of Buyer (except as
enforcement may be limited by bankruptcy, insolvency, or similar laws) and do not, and as of the
Closing Date will not, violate any provision of any law, statute, ordinance, rule, regulation,
agreement or judicial order to which Buyer is a Party or to which Buyer is subject.
9.3 Survival. All of the representations, warranties, and agreements of Buyer set forth
in this Agreement shall be true upon the Agreement Date, shall be deemed to be repeated at and
as of the Closing Date and shall survive the delivery of the Grant Deed and the Closing for a period
of one (1) year. Prior to a termination of this Agreement, Buyer shall not take any action, fail to
take any required action, or willfully allow or consent to any action that would cause any of
Buyer's representations or warranties to become untrue.
10. AS-IS.
THE PARTIES HEREBY ACKNOWLEDGE AND AGREE AS FOLLOWS: (A)
BUYER IS A SOPHISTICATED BUYER WHO IS FAMILIAR WITH THIS TYPE OF
PROPERTY; (B) EXCEPT AS MAY BE SPECIFICALLY SET FORTH IN THIS
AGREEMENT, THE DEED, AND/OR ANY OTHER DOCUMENT OR INSTRUMENT
DELIVERED BY SELLER AT CLOSING (THE "EXPRESS REPRESENTATIONS"),
NEITHER SELLER NOR ANY OF ITS AGENTS, REPRESENTATIVES, BROKERS,
OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, OR EMPLOYEES HAS MADE
OR WILL MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PROPERTY; AND (C) EXCEPT AS MAY BE SPECIFICALLY SET
FORTH IN THIS AGREEMENT(INCLUDING SECTION 8.6 AS IT RELATES TO THE LAND
AND IMPROVEMENTS), THE PROPERTY IS BEING SOLD TO BUYER IN ITS PRESENT
"AS IS" CONDITION SUBJECT TO THE EXPRESS REPRESENTATIONS. SUBJECT TO
THE EXPRESS REPRESENTATIONS AND THE TERMS OF THIS AGREEMENT, BUYER
WILL BE AFFORDED THE OPPORTUNITY TO MAKE ANY AND ALL INSPECTIONS OF
THE PROPERTY AND SUCH RELATED MATTERS AS BUYER MAY REASONABLY
DESIRE AND, ACCORDINGLY, SUBJECT TO THE EXPRESS REPRESENTATIONS,
BUYER WILL RELY SOLELY ON ITS OWN DUE DILIGENCE AND INVESTIGATIONS IN
PURCHASING THE PROPERTY. IN CONNECTION WITH THE FOREGOING(EXCEPT AS
TO SECTION 8.6 WITH RESPECT TO THE LAND AND IMPROVEMENTS), BUYER
EXPRESSLY AGREES TO WAIVE ANY AND ALL RIGHTS WHICH BUYER MAY HAVE
UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS
FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
11. RISK OF LOSS.
11.1 Condemnation. If, prior to any Closing, all or any portion of the Property is taken
by condemnation or eminent domain (or is the subject of a pending or contemplated taking which
has not been consummated), Seller shall immediately notify Buyer in writing of such fact. In such
event, Buyer shall have the option to terminate this Agreement upon written notice to Seller given
within ten (10) Business Days after receipt of such notice from Seller, in which event the Deposit
shall be returned to Buyer. Notwithstanding the foregoing, Buyer's failure to provide written
notice of Buyer's election to terminate within such ten (10) Business Day period shall be deemed
Buyer's election to terminate this Agreement. Prior to any termination or deemed termination of
this Agreement, Buyer shall have the right to participate in any proceedings and negotiations with
respect to the taking and any transfer in lieu of taking(and Seller shall not consummate any transfer
in lieu of taking without Buyer's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed). If Buyer waives the right to terminate this Agreement and
elects to proceed with the Closing, then (a) Seller, at, and as a condition precedent to Buyer's
obligation to proceed with, the Closing, must: (i) pay to Buyer (or direct Escrow Agent to credit
Buyer against the Purchase Price for) the amount of all awards for the taking (and any
consideration for any transfer in lieu of taking) actually received by Seller; and (ii) assign to Buyer
by written instrument reasonably satisfactory to Buyer all rights or claims to any future awards for
the taking (and any consideration for any transfer in lieu of taking}; and (b) the Parties shall
proceed to the Closing pursuant to the terms hereof without further modification of the terms of
this Agreement.
11.2 Casualty. Prior to the Closing and notwithstanding the pendency of this
Agreement, the entire risk of loss or damage by earthquake, hurricane, tornado, flood, landslide,
fire, sinkhole, contamination by hazardous materials or other casualty shall be borne and assumed
by Seller. If, prior to the Closing, any portion of the Property is damaged as a result of any
earthquake, hurricane, tornado, flood, sinkhole, landslide, fire, contamination by hazardous
materials or other casualty, Seller shall immediately notify Buyer in writing of such fact. In such
event, Buyer shall have the option to terminate this Agreement upon written notice to Seller given
within ten (10) Business Days after receipt of any such notice from Seller, in which event the
Deposit shall be returned to Buyer. Notwithstanding the foregoing, Buyer's failure to provide
written notice of Buyer's election to terminate within such ten (10) Business Day period shall be
deemed Buyer's election to terminate this Agreement. Prior to any termination or deemed
termination of this Agreement, Buyer shall have the right to participate in any adjustment of the
insurance claim. If Buyer waives the right to terminate this Agreement and elects to proceed with
the Closing, then (a) Seller, at, and as a condition precedent to Buyer's obligation to proceed with,
the Closing, must either: (i) pay to Buyer (or direct Escrow Agent to credit Buyer against the
Purchase Price for) the amount of any insurance proceeds actually received by Seller plus the
amount of any deductible under Seller's insurance; or (ii) if no insurance proceeds have been
received by Seller, assign to Buyer by written instrument reasonably satisfactory to Buyer all rights
or claims to the insurance proceeds and credit Buyer against the Purchase Price for any deductible
payable under Seller's insurance policy; and (b) the Parties shall proceed to the Closing pursuant
to the terms hereof without further modification of the terms of this Agreement.
12. REMEDIES.
12.1 Default by Seller. If Seller shall breach any of the terms or provisions of this
Agreement or otherwise fail to perform any of Seller's obligations under this Agreement at or prior
to Closing, and if such failure continues without cure by Seller for five (5) Business Days after
Buyer provides Seller and Escrow Agent with written notice thereof (a "Seller Default"), and
provided Buyer is not then in default, then Buyer may, as Buyer's sole remedies for such failure,
but without firnitin Buyer's right to recover attorneys' fees pursuant to Section 14.13 below: (a),
waive the effect of such matter and proceed to consummate this transaction; (b) cancel this
Agreement and receive a full refund of the Deposit and recover from Seller the reasonable 01.1t-Of-
pocket expenses incurred by Buyer related to the Property and this transaction, which amounts
shall be payable by Seller to Buyer within five (5) Business Days following receipt by Seller of
written request therefor from Buyer together with copies of invoices evidencing such expenses; or
(c) proceed with any remedies available to Buyer at law or in equity, which may, without
limitation, include the bringing of an action against Seller for specific performance and/or recovery
of the Deposit and any other damages suffered or incurred by Buyer as a result of any breach or
failure by Seller to perform any of Seller's obligations under this Agreement.
12.2 Default by Buyer. IF BUYER SHALL BREACH ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR OTHERWISE FAIL TO PERFORM ANY OF
BUYER'S OBLIGATIONS UNDER THIS AGREEMENT AND IF SUCH FAILURE
CONTINUES WITHOUT CURE BY BUYER FOR FIVE (5) BUSINESS DAYS AFTER
SELLER PROVIDES BUYER AND ESCROW AGENT WITH WRITTEN NOTICE THEREOF,
AND PROVIDED SELLER IS NOT THEN IN DEFAULT, THEN SELLER MAY WAIVE
SUCH BREACH AND PROCEED TO CONSUMMATE THIS TRANSACTION IN
ACCORDANCE WITH THE TERMS HEREOF, OR SELLER MAY, AS ITS, EXCLUSIVE
REMEDY (BUT WITHOUT LIMITING SELLER'S RIGHT TO RECOVER ATTORNEYS'
FEES PURSUANT TO SECTION 14,13 BELOW), CANCEL THIS AGREEMENT AND
RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES AND AS CONSIDERATION FOR
THE ACCEPTANCE OF THIS AGREEMENT AND FOR TAKING THE PROPERTY OFF
THE MARKET, AND NOT AS A PENALTY. BUYER AND SELLER HAVE DETERMINED
AND HEREBY AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY
DIFFICULT, IF NOT IMPOSSIBLE,TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY
THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY SELLER IF BUYER
.FAILS TO PERFORM ANY OF ITS OBLIGATIONS IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT, AND THE PARTIES AGREE THAT A
REASONABLE ESTIMATE OF SUCH DAMAGES UNDER THE CIRCUMSTANCES IS AN
AMOUNT EQUAL TO THE DEPOSIT. ACCORDINGLY, BUYER AND SELLER AGREE
THAT IF BUYER BREACHES ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT
OR OTHERWISE DEFAULTS HEREUNDER, SELLER MAY RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES. THE PAYMENT AND RETENTION OF THE DEPOSIT AS
LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN
THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.
Seller's I Is Buyer's Initials
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provided Buyer is not then in default, then Buyer may, as Buyer's sole remedies for such failure,
but without limiting Buyer's right to recover attorneys' fees pursuant to Section 14.13 below. (a)
waive the effect of such matter and proceed to consummate this transaction; (b) cancel this
Agreement and receive a full refund of the Deposit and recover from Seller the reasonable out-of-
pocket expenses incurred by Buyer related to the Property and this transaction, which amounts
shall be payable by Seller to Buyer within five (5) Business Days following receipt by Seller of
written request therefor from Buyer together with copies of invoices evidencing such expenses; or
(c) proceed with any remedies available to Buyer at law or in equity, which may, without
limitation,include the bringing of an action against Seller for specific performance and/or recovery
of the Deposit and any other damages suffered or incurred by Buyer as a result of any breach or
failure by Seller to perform any of Seller's obligations under this Agreement.
12.2 Default by Buyer. IF BUYER SHALL BREACH ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR OTHERWISE FAIL TO PERFORM ANY OF
BUYER'S OBLIGATIONS UNDER THIS AGREEMENT AND IF SUCH FAILURE
CONTINUES WITHOUT CURE BY BUYER FOR FIVE (5) BUSINESS DAYS AFTER
SELLER PROVIDES BUYER AND ESCROW AGENT WITH WRITTEN NOTICE THEREOF,
AND PROVIDED SELLER IS NOT THEN IN DEFAULT, THEN SELLER MAY WAIVE
SUCH BREACH AND PROCEED TO CONSUMMATE THIS TRANSACTION IN
ACCORDANCE WITH THE TERMS HEREOF, OR SELLER MAY, AS ITS EXCLUSIVE
REMEDY (BUT WITHOUT LIMITING SELLER'S RIGHT TO RECOVER ATTORNEYS'
FEES PURSUANT TO SECTION 14.13 BELOW), CANCEL THIS AGREEMENT AND
RETAIN THE DEPOSIT AS LIQUIDATED DAMAGES AND AS CONSIDERATION FOR
THE ACCEPTANCE OF THIS AGREEMENT AND FOR TAKING THE PROPERTY OFF
THE MARKET, AND NOT AS A PENALTY. BUYER AND SELLER HAVE DETERMINED
AND HEREBY AGREE THAT IT WOULD BE IMPRACTICAL OR EXTREMELY
DIFFICULT, IF NOT IMPOSSIBLE,TO ASCERTAIN WITH ANY DEGREE OF CERTAINTY
THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY SELLER IF BUYER
FAILS TO PERFORM ANY OF ITS OBLIGATIONS IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT, AND THE PARTIES AGREE THAT A
REASONABLE ESTIMATE OF SUCH DAMAGES UNDER THE CIRCUMSTANCES IS AN
AMOUNT EQUAL TO THE DEPOSIT. ACCORDINGLY, BUYER AND SELLER AGREE
THAT IF BUYER BREACHES ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT
OR OTHERWISE DEFAULTS HEREUNDER, SELLER MAY RETAIN THE DEPOSIT AS
LIQUIDATED DAMAGES, THE PAYMENT AND RETENTION OF THE DEPOSIT AS
LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN
THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS
INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.
Seller's Initials Buyer's Initials
13. BROKERS.
Buyer has been represented by Michael Day of Cushman and Wakefield of California, Inc.
("Broker") in this transaction. Buyer shall pay Broker a broker's fee, finder's fee, commission, or
other similar compensation ("Commission") in accordance with a separate agreement between
Buyer and Broker,if, as and when the transaction contemplated by this Agreement actually Closes.
Notwithstanding the foregoing, each of Buyer and Seller hereby represents and warrants to and
agrees with each other that except as indicated above, it has not had, and shall not have, any
dealings with any third Party to whom the payment of any Commission shall or may become due
or payable in connection with the same. Seller shall indemnify, defend, protect, and hold Buyer
harmless for, from, and against any and all Claims incurred by Buyer by reason of any breach or
inaccuracy of the representation, warranty, and agreement of Seller contained in this Section.
Buyer shall indemnify, defend, protect, and hold Seller harmless from and against any and all
Claims incurred by Seller by reason of any breach or inaccuracy of the representation, warranty,
and agreement of Buyer contained in this Section. The provisions of this Section shall survive the
Closing or earlier termination of this Agreement. Seller acknowledges that certain principals,
affiliates, officers, and employees of Buyer are licensed real estate brokers and/or salespersons in
the State of California.
Buyer hereby discloses that the Managing Member of Buyer is a Licensed Real Estate
Broker in the State of California but is not participating in any way or acting as a broker in this
transaction.
14. MISCELLANEOUS PROVISIONS.
14.1 Entire Agreement. This Agreement, including the exhibits attached hereto,
constitutes the entire agreement between Buyer and Seller pertaining to the subject .matter hereof
and supersedes all prior agreements, understandings, letters of intent, term sheets, negotiations,
and discussions,whether oral or written,of the Parties,and there are no warranties,representations,
or other agreements,express or implied, made to either Party by the other Party in connection with
the subject matter hereof except as specifically set forth in this Agreement or in the documents
delivered pursuant hereto or in connection herewith.
14.2 Modification; Waiver. No supplement, modification, waiver, or termination of this
Agreement shall be binding unless executed in writing by the Party to be bound thereby. No
waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
14.3 Notices. All notices,consents,requests,reports,demands or other communications
hereunder (collectively, "Notices") shall be in writing and may be given personally, by registered
or certified mail, by facsimile transmission, electronic mail, by courier, or by Federal Express (or
other reputable overnight delivery service) for overnight delivery, as follows:
To Buyer: VantageOne Real Estate Investments, LLC
4 Corporate Plaza
Newport Beach, California 92660
Attention: Thomas N. Robinson
Telephone: (949) 631-6620
Email: tnrii@aol.com
With A Copy To: Angela Kraus
c/o Haddan & Zepfel
500 Newport Center Drive
Suite 580
Newport Beach, CA 92660
Telephone: (949) 644-7064
Email: angelakraus@-mail.com
To Seller: City of Redlands
P.O. Box 3005
Redlands, California 92373
Attention: City Clerk
Telephone: (909) 798-7531
Email: sirwin@cityofredlands.org
With A Copy To: City Attorney
City of Redlands
Attention: Daniel J. McHugh
Telephone: (909) 798-7595
Email: dmchugh@cityofredlands.org
To Escrow Agent: Fidelity National Title Insurance Company
3237 East Guasti Road, Suite 105
Ontario, California 91761
Attention: Janette DeLap
Vice President & Senior Commercial Escrow Officer
Telephone: 909-569-0225
Email: Janette.DeLap@fnf.com
or to such other address or such other person as the addressee Party shall have last designated by
Notice to the other Party and Escrow Agent. All Notices shall be deemed to have been given three
(3) days following deposit in the United States Postal Service (postage prepaid) or, upon receipt,
if sent by overnight delivery service, courier, facsimile transmission (so long as confirmed by the
appropriate automatic confirmation page), electronic mail (so long as receipt is acknowledged or
otherwise confirmed), or personally delivered. Notice to a Party shall not be effective unless and
until each required copy of such Notice is given. The inability to deliver a Notice because of a
changed address of which no Notice was given or an inoperative facsimile number for which no
Notice was given of a substitute number, or any rejection or other refusal to accept any Notice,
shall be deemed to be the receipt of the Notice as of the date of such inability to deliver or rejection
or refusal to accept. Any Notice to be given by any Party may be given by legal counsel for such
Party. Telephone numbers are provided in this Agreement for convenience only and shall not alter
the manner of giving Notice set forth in this Section 14.4.
14.4 Expenses. Subject to the provision for payment of the Closing Costs in accordance
with the terms of Section 7.6 of this Agreement and of any other provision of this Agreement,
whether or not the transaction contemplated by this Agreement shall be consummated, all fees and
expenses incurred by any Party hereto in connection with this Agreement shall be borne by such
Party.
14.5 Severability. Any provision or part of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall, as to such situation and such jurisdiction,
be ineffective only to the extent of such invalidity and shall not affect the enforceability of the
remaining provisions hereof or the validity or enforceability of any such provision in any other
situation or in any other jurisdiction.
14.6 Successors and Assigns. Neither Seller nor Buyer shall assign its rights under this
Agreement without the consent of the other Party, which consent shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, either Party shall have the right, without the
consent of the other, to assign its rights under this Agreement to an affiliate entity directly or
indirectly controlling, controlled by or under common control with the assigning Party or an entity
in which such assigning Party or such an affiliate directly or indirectly owns a financial and voting
interest and directly or indirectly is responsible for day to day management of the entity provided
such assignee assumes such Party's obligations hereunder pursuant to a written agreement, a copy
of which shall be provided to the other Party by the assigning Party. Notwithstanding any such
assignment, no assignment shall relieve the assignor of any obligations or liability under this
Agreement. Subject to the foregoing, all of the Parties' rights, duties, benefits, liabilities, and
obligations under this Agreement shall inure to the benefit of, and be binding upon,their respective
successors and assigns.
14.7 Counterparts. This Agreement may be executed in as many counterparts as may be
deemed necessary and convenient, and by the different Parties hereto on separate counterparts,
each of which, when so executed, including, without limitation, by .pdf scanned counterparts of
any initialed or executed pages delivered via electronic mail, shall be deemed an original, but all
such counterparts shall constitute one and the same instrument.
14.8 Governing Law, Jurisdiction; Waiver of Jury; Judicial Reference. This Agreement
shall be governed by and construed under the laws of the State of California without regard to
conflicts-of-laws principles that would require the application of any other law. Each Party hereby
consents to the exclusive jurisdiction of any court of competent jurisdiction in San Bernardino
County in any action related to or arising under this Agreement. EACH PARTY TO THIS
AGREEMENT EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENTS OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION THEREWITH, OR (2) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY
COURT TRIAL WITHOUT A JURY. NOTWITHSTANDING THE FOREGOING TO
THE CONTRARY, IF THAT THE JURY TRIAL WAIVER CONTAINED IN THIS
AGREEMENT SHALL BE HELD OR DEEMED TO BE UNENFORCEABLE, EACH
PARTY HERETO HEREBY EXPRESSLY AGREES TO SUBMIT TO JUDICIAL
REFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE
SECTIONS 638 THROUGH 645.1 ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING HEREUNDER FOR WHICH A JURY TRIAL WOULD OTHERWISE
BE APPLICABLE OR AVAILABLE. PURSUANT TO SUCH JUDICIAL REFERENCE,
THE PARTIES AGREE TO THE APPOINTMENT OF A SINGLE REFEREE AND
SHALL USE THEIR BEST EFFORTS TO AGREE ON THE SELECTION OF A
REFEREE. IF THE PARTIES ARE UNABLE TO AGREE ON A SINGLE REFEREE, A
REFEREE SHALL BE APPOINTED BY THE COURT UNDER CALIFORNIA CODE OF
CIVIL PROCEDURE SECTIONS 638 AND 640 TO HEAR ANY DISPUTES
HEREUNDER IN LIEU OF ANY SUCH JURY TRIAL. SELLER AND BUYER
ACKNOWLEDGE AND AGREE THAT THE APPOINTED REFEREE SHALL HAVE
THE POWER TO DECIDE ALL ISSUES IN THE APPLICABLE ACTION OR
PROCEEDING, WHETHER OF FACT OR LAW, AND SHALL REPORT A
STATEMENT OF DECISION THEREON; PROVIDED, HOWEVER, THAT ANY
MATTERS WHICH WOULD NOT OTHERWISE BE THE SUBJECT OF A JURY TRIAL
WILL BE UNAFFECTED BY THIS WAIVER AND THE AGREEMENTS CONTAINED
IN THIS AGREEMENT. THE PARTIES HERETO HEREBY AGREE THAT THE
PROVISIONS CONTAINED IN THIS AGREEMENT HAVE BEEN FAIRLY
NEGOTIATED ON AN ARMS-LENGTH BASIS, WITH BOTH SIDES AGREEING TO
THE SAME KNOWINGLY AND BEING AFFORDED THE OPPORTUNITY TO HAVE
THEIR RESPECTIVE LEGAL COUNSEL CONSENT TO THE MATTERS CONTAINED
IN THIS AGREEMENT. ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY AND THE AGREEMENTS
CONTAINED IN THIS AGREEMENT REGARDING THE APPLICATION OF
JUDICIAL REFERENCE IF OF THE INVALIDITY OF SUCH JURY TRIAL WAIVER.
14.9 Headings. The Section headings of this Agreement are for convenience of
reference only and shall not be deemed to modify, explain, restrict, alter, or affect the meaning or
interpretation of any provision hereof.
14.10 Time of Essence. Time shall be of the essence with respect to all matters
contemplated by this Agreement.
14.11 Further Assurances. In addition to the actions recited in this Agreement and
contemplated to be performed, executed, and/or delivered by Seller and Buyer, during the term of
this Agreement and after the Closing, Seller and Buyer agree to perform, execute, and/or deliver
or cause to be performed, executed, and/or delivered any and all such further acts, instruments,
deeds, and assurances as may be reasonably required to consummate the transaction contemplated
hereby. In furtherance of the foregoing, so long as Buyer is not in default under the terms of this
Agreement, Seller will cooperate, as reasonably needed, and at no cost to Seller, in Buyer's due
diligence review process, which shall include but not be limited to Seller's consent to Buyer's
unrestricted access to agencies,representatives, tenants,consultants and other parties familiar with
the Property and the execution and delivery of such applications or other documents as reasonably
requested by Buyer.
14.12 Construction. As used in this Agreement, the masculine, feminine, and neuter
gender and the singular or plural shall each be construed to include the other whenever the context
so requires. This Agreement shall be construed as a whole and in accordance with its fair meaning,
without regard to any presumption or rule of construction causing this Agreement or any part of it
to be construed against the Party causing the Agreement to be written. The Parties acknowledge
that each has had a full and fair opportunity to review the Agreement and to have it reviewed by
counsel. If any words or phrases in this Agreement have been stricken, whether or not replaced
by other words or phrases,this Agreement shall be construed (if otherwise clear and unambiguous)
as if the stricken matter never appeared and no inference shall be drawn from the former presence
of the stricken matters in this Agreement or from the fact that such matters were stricken.
14.13 Attorneys' Fees, if either Party brings an action or proceeding against the other
Party to enforce or interpret any of the covenants, conditions, agreements, or provisions of this
Agreement, the prevailing Party in such action or proceeding shall be awarded all costs and
expenses of such action or proceeding, including, without limitation, attorneys' fees (including
fees for a Party's use of in-house counsel),charges,disbursements, and the fees and costs of expert
witnesses. If any Party secures a judgment in any such action or proceeding, then any costs and
expenses (including, but not limited to, attorneys' fees and costs) incurred by the prevailing Party
in enforcing such judgment, or any costs and expenses (including, but not limited to, attorneys'
fees and costs) incurred by the prevailing Party in any appeal from such judgment in connection
with such appeal shall be recoverable separately from and in addition to any other amount included
in such judgment. The preceding sentence is intended to be severable from the other provisions
of this Agreement,and shall survive and not be merged into any such judgment. This Section shall
survive Closing and any earlier termination of this Agreement.
14.14 Business Days. As used in this Agreement, the term "Business Day" shall mean a
day that is not a Saturday, Sunday, or legal holiday. If that the date for the performance of any
covenant or obligation under this Agreement shall fall on a Saturday, Sunday, or legal holiday, the
date for performance thereof shall be extended to the next Business Day. Similarly, if that the day
for the performance of any covenant or obligation under this Agreement involving Escrow Agent
shall fall on a Business Day on which Escrow Agent is closed for business to the public, the date
for performance thereof shall be extended to the next Business Day on which Escrow Agent is
open for business to the public.
The Parties have executed this Agreement as of the clay and year first written above.
SELLER:
CITY OF REDLANDS, a municipal
corporation
-67
I3y: .. . "
Paul W. Foster, Mayor
ATTEST:
Sant Irw�l"ir Ci Clerk L1F :
VANTAGEONE REAP,ESTATE INVESTMENTS,
LLC, a California limited liability company
By:
Thomas N. Robinson
Its: Managing Member
ESCROW AGENT:
The undersigned Escrow Agent hereby accepts the foregoing Purchase and Sale Agreement and
Joint Escrow Instructions, agrees to act as Escrow Agent under this Agreement in strict accordance
with its terms, agrees to insert as the "Agreement Date" on page I of this Agreement, if not
otherwise dated, the latest date this Agreement was signed by Seller and Buyer and delivered to
Escrow Agent, and agrees to comply with the applicable Provisions of the Internal Revenue Code
with respect to the transactions contemplated hereby.
FIDELITY NATIONAL TITLE: INSURANCE
COMPANY
Date: By:
Narne: Janette DeLap
'Title: Escrow Officer
The Parties have executed this Agreement as of the day and year first written above.
SELLER:
CITY OF RED1,ANDS, a municipal
corporation
By:
Paul W. Foster, Mayor
ATTEST:
......._....._...._....__w_._
Sam Irwin, City Clerk
BUYER:
VANTAGEONE REA1, ESTATE INVESTMENTS,
LLC, a California limited liability company
Thomas N. Robinson
Its: Managing Member
ESCROW AGENT:
The undersigned Escrow Agent hereby accepts the foregoing Purchase and Sale Agreement and
.Joint Escrow Instructions, agrees to act as Escrow Agent under this Agreement in strict accordance
with its terrns, agrees to insert as the "Agreement Date" on page I of this Agreement, if not
otherwise dated, the latest date this Agreement was signed by Seller and Buyer and delivered to
Escrow Agent, and agrees to comply with the applicable provisions of the Internal Revenue Code
with respect to the transactions contemplated hereby.
FIDELITY NATIONAL TITLE INSURANCE
COMPANY
Date: By:
Nance: Janette Del,ap
Title: Escrow Officer
LIST OF EXHIBITS
EXHIBIT "A" LEGAL DESCRIPTION
EXHIBIT "B" GRANT DEED
EXHIBIT "C" NON-FOREIGN AFFIDAVIT
EXHIBIT "D" GENERAL ASSIGNMENT
EXHIBIT "A"
DESCRIPTION OF THE PROPERTY
(To Be Updated With Complete Legal Description When Available and Finalized)
That certain real property located at 212 Brookside Avenue, Redlands, County of San
Bernardino, California, known as APN Numbers 0171-101-01, 0171-101-02, 0171-101-03,
0171-101-04, 0171-101-05, 0171-211-15, 0171-211-17 and 0171-211-25, and if owned by City,
shall also include that certain alley, containing approximately 1,760 SF (0.04 acres) directly
contiguous to such real property, as outlined in green and depicted in Schedule 1 to this Exhibit
A and legally described as follows:
SCHEDULE I to
EXIDUr A
(attachimage & depiction of alley)
That certain alley as outlined in greeri and depicted onthe aerial pholograph attached to arld
made a pa�-t ofthis Schedule 1, containijig approxiinately 1,760 SF (0,04 ,,tcres),
SCHEDULE I to
EXII-1[BIT A , conthwed
Pin PeHeq Pratt & WWI Sub. M,13,5/22
Plm War MY I Nv2 TBA/45 0 Mom
Brookside Ave, Sub, J Is.i7P I KV toe keo
fltm Lords 4b, �A F, 14/ 0 0 0
,�f�tjnes Sub, 09 5/37
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ny
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EXHIBIT "B"
GRANT DEED
RECORDING REQUESTED BY:
Fidelity National Title Insurance Company
WHEN RECORDED MAIL TO:
VantageOne Real Estate Investments, LLC
4 Corporate Plaza
Newport Beach, California 92660
Attention: Thomas N. Robinson
(Space Above for Recorder's Use)
APN Numbers 0171-101-01,0171-101-02,0171-101-03,0171-101-04,0171-
101-05,0171-211-15,0171-211-17 and 0171-211-25
GRANT DEED
The undersigned Grantor declares that Documentary Transfer Tax is not shown pursuant
to Section 11932 of the California Revenue and Taxation Code, as amended.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, CITY OF REDLANDS, a municipal corporation (the
"Grantor"), hereby grants to VANTAGE ONE REAL ESTATE INVESTMENTS, LLC, a
California limited liability company, the real property in the City of Redlands, County of San
Bernardino, State of California, described in Exhibit "A" attached to and incorporated in this
Agreement by this reference.
THIS GRANT AND CONVEYANCE IS MADE AND ACCEPTED SUBJECT TO
COVENANTS, CONDITIONS, RESTRICTIONS, RESERVATIONS, RIGHTS OF WAY AND
EASEMENTS NOW OF RECORD.
[signature page follows]
MAIL TAX STATEMENTS TO:
VantageOne Real Estate Investments, LLC
4 Corporate Plaza
Newport Beach, California 92660
Attention: Thomas N. Robinson
IN WITNESS WHEREOF, the Grantor has executed this Grant Deed as of
�Y M2 1 2016.
GRANTOR:
CITY OF REDf,A.NDS, a municipal
corporation
B
Paul W. Foster, Mayor
ATTEST:
Sarn 14K,,Oity Clerk
A notary public or other officer completing this
certificate verified only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that.
docuunent.
STATE OF CA 1F01R1 IA )
t ss,
COUNTY 0 �w : .......)
On 2016, befoe ,
Notary>r ubl ic, personally appearedu
who proved to enc on the basis of satisfac ory evidence to be the persons) whose naene(s)
i /are subscribed to the within instrument and acknowledged to [Ile that e/,'Xe/they/executed the same in
s/leer/their authorized capacity(ies) and that by lis/l r/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the Laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
4=MCCASLANDLAN'C2t'43t66Cal'itorni�uunty Notary Public
Feb t'9,202a� In and For Said County and State
EXHIBIT "A"
DESCRIPTION OF THE PROPERTY
(To Be Updated With Complete Legal Description When Available and Finalized)
That certain real property located at 212 Brookside Avenue, Redlands, County of San
Bernardino, California, known as APN Numbers 0171-101-01, 0171-101-02, 0171-101-03,
0171-101-04, 0171-101-05, 0171-211-15, 0171-211-17 and 0171-211-25, and if owned by City,
shall also include that certain alley, containing approximately 1,760 SF (0.04 acres) directly
contiguous to such real property, as outlined in green and depicted in Schedule 1 to this Exhibit
A and legally described as follows:
Docurrient No.
Recorded 2016
STATEMENT OF TAX. DUE AND REQUEST THAT TAX DECLA RATION
NOT BE MADE A PART OF THE PERMANENT RECORD IN THE OFFICE
OF THE COUNTY RECORDER (PURSUANT TO SECTION 11932
REVENUE AND TAXATION CODE)
TO: Recorder
County of San Bernardino
Request is hereby made in accordance with the provisions of the Documentary Transfer
Tax Act that the amount of the tax due not be shown on the original document which names:
Grantor: CITY OF REDLANDS, a municipal corporation
Grantee: VANTAGE ONE REAL ESTATE INVESTMENTS, LLC, a California limited
liability company
The property described in the accompanying document is located in the City of Redlands,
County of San Bernardino.
The amount of tax due on the accompanying document is $ 0-00 computed on
the full value of the property conveyed.
(Signature of Grantor or Agent) CITY OF REDLANDS, a municipal
corporation
e-
Paul W. Foster, Mayor
ATTEST:
Sarn Irwin, CiClerk
Note: After the permanent record is made, this form will be affixed to the conveying document
and returned with it.
EXHIBIT "C"
NON-FOREIGN AFFIDAVIT
STATE OF--cALI. oRNTA
) ss.
County of. San Bernardino
The undersigned, as authorized agent of CITY OF REDLANDS, a municipal corporation
("Transferor"), atter being duly sworn upon his oath deposes and says that:
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest
must withhold tax if the transferor is a foreign person. To inform VANTAGE ONE REAL ESTATE
INVESTMENTS, LLC, a California limited liability con-ipany("Transferee'"), that wittiholding of
tax is not required upon the disposition of Transferor's interest in a U.S. real property interest, the
undersigned hereby certifies the follown-ig:
1. Transferor is not a rion-resident alien, foreign corporation, foreign Partnership, foreign trust,
foreign estate,or other foreign person within the meaning of§ 1.445 and § 7701 of the Internal
Revenue Code and the treasury regulations promulgated thereunder;
1 Transferor is not a disregarded entity as defined in Treas. Reg. § 1.1445-2(b)(2)(Iii);
3. Transferor's U.S. taxpayer identification number is: 95-6000766
4. Transferor's business address is: 35 Cajon Street, Redlands, CA 9'2373
Transferor understands that this certification may be disclosed to the Internal Revenue Service by
Transferee and that any false statement contained in this Agreement could be punished by fine,
imprisonment, or both.
Under penalties of perjury Transferor declares that it has examined this certification and to the best
of its knowledge and belief this certification is true, correct, and complete. The undersigned agent
declares that lie has the authority to sign this document on behalf of Transferor.
TRANSFEROR:
CITY OF REDLANDS, a municipal
corporatioll
By
Paul W. Poster, Mayor
ATTEST:
Sam Irwin, City lerk
A notary public or other officer completing this
certificate verified only the identity of the
11 individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
docurnent.
............................____...............
STATE OF CALIFO IA
IF ss.
COUNTY 0
oil — 2016, beforuz,
Notary Public, personally appi aMjj "&MM6Miq'U"3'&VIA
Aid satisfactory 'ihe person—(s) whose name(s)
who proved to me on the basis of satisfit toryy evidence to be
Mare subscribed to the within instrument and acknowledged to me that I)i/sp(e/they/executed the same in
h/01/r/their authorized capaclty(ies) and that by Vs/l/r/their signature(s) on the instrument the person(s),
oi-the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official sea].
L� R.7MC CASLAND
a
Commission 0 2143166
P 1�
ic Cal
for la
Notary Public -California
Riverside County — r4otary Pu is
M Comm.E In and For Said County and State
w'v� i�i�
EXHIBIT "D"
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT(this "Assignment") is executed as ofthe2lsrday
of JyAeE ,2016,by CITY OF REDLANDS,a municipal corporation("Assignor"),
to and for the benefit of VANTAGE ONE REAL ESTATE INVESTMENTS, LLC, a
California limited liability company("Assignee").
Contemporaneously with this Assignment, Assignee is acquiring from Assignor
certain real property described in Exhibit "A" attached to this Assignment (the "Land"),
together with all of Assignor's right, title, and interest in and to: (a) all improvements on
the Land (the "Improvements"); and (c) all of the rights, privileges, appurtenances,
hereditaments, easements, reversions, and remainders pertaining to or used in connection
with the Land and/or any of the Improvements, including, without limitation, all (i)
development rights and credits, air rights, water, water rights, and water stock relating to
the Land, (ii) strips and gores, streets, alleys, easements, rights-of-way, public ways, or
other rights appurtenant, adjacent, or connected to the Land, and(iii) minerals, oil, gas, and
other hydrocarbon substances in, under, or that may be produced from the Land
(collectively, the "Real Property");
In connection with the foregoing acquisition, Assignor desires to transfer and assign
to Assignee all of Assignor's right, title, and interest in and to certain items and rights
applicable or relating thereto, all as provided in this Assigmnent.
Therefore, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Assignor hereby grants, sells, transfers, and assigns unto Assignee
all of Assignor's right, title, and interest in and to that certain intangible property owned
by Assignor or used by Assignor in connection with all or any portion of the Real Property,
including, without limitation, all of Assignor's right,title, and interest, if any, in and to: (a)
all plats, improvement plans, drawings and specifications (including, without limitation,
CAD files), and development rights and credits relating to the Real Property, (b) all books,
records, reports, test results, environmental assessments, if any, as-built plans,
specifications, and other similar documents and materials relating to the use, operation,
maintenance, repair, construction, or fabrication of all or any portion of the Real Property,
excluding therefrom any books, records, documents and other instruments relating solely
to the ordinary course of the agricultural and family use of the Real Property; (c) all
transferable architectural, site, landscaping or other pennits, applications, approvals,
authorizations, and other entitlements affecting any portion of the Real Property; (d) all
credits(including,without limitation,water meter fee credits),reimbursements and refunds
of any fees and/or deposits paid in connection with the Real Property; and (e) all
transferable guarantees, warranties, claims and causes of action relating to all or any
portion of the Real Property, and Assignor agrees not to release, waive, or alter the liability
of any persons providing such guarantees, warranties, claims or causes of action from and
after the date ofthis Assignment.
This Assignment is binding upon the successors and assigns of Assignor and will
inure to the benefit of the successors and assigns of Assignee.
Assignor hereby covenants that it will, at any time and from time to time upon written
request therefor, execute and deliver to Assignee, and its successors and assigns, any new or
confirmatory instruments and take such further acts as Assignee may reasonably request to
evidence the assignment contained in this Agreement.
This Assignment shall be governed by and interpreted under the laws of the State
of California, without regards to its principles of conflict of laws,
ASSIGNOR:
CITY OF REDLANDS, a municipal
corporation
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a
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Paul W. Foster, Mayor
AST TEST:
-
Sam I-rwin, City Clerk
EXHIBIT "A"
DESCRIPTION OF THE PROPERTY
(To Be Updated With Complete Legal Description When Available and Finalized)
That certain real property located at 212 Brookside Avenue, Redlands, County of San
Bernardino, California, known as APN Numbers 0171-101-01, 0171-101-02, 0171-101-03,
0171-101-04, 0171-101-05, 0171-211-15, 0171-211-17 and 0171-211-25, and if owned by City,
shall also include that certain alley, containing approximately 1,760 SF(0.04 acres) directly
contiguous to such real property, as outlined in green and depicted in Schedule 1 to this Exhibit
A and legally described as follows: