Loading...
HomeMy WebLinkAboutContracts & Agreements_156-2007_CCv0001.pdf PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS This Purchase and Sale Agreement and Escrow Instructions ("Agreement") is made and entered into by and between Oakmont National Development 11, LLC, a Delaware limited liability company ("Oakmont") and the City of Redlands ("City")this 4th day of September, 2007 ("Effective Date"). Oakmont and City are sometimes individually referred to herein as a "Party" and, together, as the "Parties." In consideration of the mutual promises contained herein, Oakmont and City agree as follows: AGREEMENT ARTICLE I PURCHASE AND SALE Section 1.1 Purchase and Sale. City is the owner of certain real property located in the County of San Bernardino and more particularly described in the Grant Deed in Exhibit "A," which is attached hereto and incorporated herein by this reference (the "Property"). On all of the terms, covenants and conditions contained in this Agreement, City agrees to sell the Property to Oakmont, and Oakmont agrees to buy the Property from City. Section 1.2 Purchase Price. The purchase price for the Property ("Purchase Price") is Two Million Nine Hundred Thirty-Two Thousand One Hundred Twenty-Nine Dollars ($2,932,129). Section 1.3 Payment of the Purchase Price. Oakmont shall pay the Purchase Price to City in cash upon "Close of Escrow" as defined herein. ARTICLE 11 ESCROW Section 2.1 Escrow, Escrow Holder, and Opening of Escrow. Within ten (10) days of the Effective Date of this Agreement, Oakmont shall open an escrow to facilitate the transaction contemplated by this Agreement ("Escrow") with First American Title Insurance Company ("Escrow Holder") at the address specified in Section 8.7. Delivery by Oakmont to Escrow Holder of a fully-executed original or counterpart original of this Agreement shall constitute the opening of Escrow ("Opening of Escrow"). This Agreement shall constitute escrow instructions ("Escrow Instructions") to Escrow Holder, The Parties shall execute such additional DJM\Agree�Oakmont PSA 08/09/07 7:45 ami. supplemental escrow instructions consistent with the provisions of this Agreement that may be required by Escrow Holder and are mutually acceptable to the Parties. Escrow Holder's general provisions ("Standard Escrow Instructions") shall also constitute Escrow Instructions for purposes of this Agreement. As between the Parties, Oakmont and City agree that if there is any conflict between the terms of this Agreement and the Standard Escrow Instructions, this Agreement shall control. Section 2.2 Close of Escrow. Subject to the conditions set forth in Section 2.8, Escrow shall close on the date that fee title to the Property is conveyed from City to Oakmont as contemplated by this Agreement and evidenced by the recording of a grant deed for the Property (Close of Escrow). Unless otherwise extended by written amendment to this Agreement, Close of Escrow shall occur on the date which is ten (10) business days after the expiration of the Due Diligence Period, after all conditions precedent to Close of Escrow have been satisfied or waived. Section 2.3 Preliminary and..Supplemental Title Reports. Escrow Holder shall deliver to Oakmont, within ten (10) business days after the Opening of Escrow, a Preliminary Title Report covering the Property issued by First American Title Insurance Company ("Title Insurer"). The Preliminary Title Report shall be accompanied by complete copies of all underlying documents referred to in the Preliminary Title Report as evidencing exceptions to title(collectively "PTR"). Section 2.4 Review of Title Documents. Oakmont shall have ten (10) business days following receipt of the PTR within which to notify City, in writing, of Oakmont's disapproval of any exception to title disclosed in the PTR. In the event the PTR is supplemented ("Supplemental PTR") by the Title Insurer, Oakmont shall have five (5) business days after its receipt of such Supplemental PTR, within which to approve or disapprove any new matters disclosed in the Supplemental PTR. In the event Oakmont disapproves a matter disclosed in the PTR that City declines to cure and that Oakmont declines to waive, the Escrow shall be cancelled with respect to the Property upon written notice by either Party to the Escrow Holder and the other Party; provided, however, that City shall in all events (i) pay in full and cause to be canceled and discharged or otherwise cause the Title Insurer to insure over all mechanics' and contractors' liens which encumber the Property as of the date of Close of Escrow, (ii) cause to be released any loans security documents which encumber the Property, and (iii) pay in full all delinquent real and personal property taxes assessed on the Property. The matters described in clauses (i) through (iii) hereinabove shall be deemed to be disapproved by Oakmont. Upon any such cancellation of Escrow, each Party shall pay one-half of the Escrow cancellation charges. DJM`,Agree\0akmont PSA 08/09/07 7:45 am, Section 2.5 Condition of Title. All matters contained in the PTR that are not disapproved or deemed to be disapproved by Oakmont prior to the end of the period referred to in Section 2.4 shall be deemed to be permitted exceptions ("Permitted Exceptions"). City shall convey the Property to Oakmont in fee simple title, which shall be, except for the Permitted Exceptions, free and clear of all leases, tenancies, rentals, mortgages, liens, charges, encumbrances, encroachments, easements, conditions, exceptions, assessments, taxes and other defects in title. Section 2.6 Obligations of Oakmont. In addition to performance by Oakmont of all obligations of Oakmont contained in this Agreement, on or before one (1) business day prior to Close of Escrow, Oakmont shall have deposited into Escrow: (1) the Purchase Price for the Property; and (ii) all other sums and documents reasonably required of Oakmont by Escrow Holder to the Close of Escrow. Section 2.7 Obligations of City. In addition to fulfilling any other obligations of City contained in this Agreement, on or before one (1) business day prior to Close of Escrow, City shall deposit into Escrow; a grant deed to the Property in substantially the form attached hereto as Exhibit "A," properly executed by City and recordable and any documents reasonably required of City by Escrow Holder to carry out Close of Escrow. Section 2.8 Conditions Precedent to Close of Escrow. City's obligation to convey the Property and Oakmont's obligation to purchase the Property are subject to the satisfaction (or written waiver by the benefitting Party)of the following conditions precedent: (a) Each Party shall, as of the date and time for Close of Escrow, have performed and complied in all material respects with all agreements and obligations that are required to be performed or complied with by each respective Party on or before the date of Close of Escrow. (b) Escrow has not been canceled and/or this Agreement has not been terminated pursuant to Sections 2.4, 2.9 or 3.2; (c) Title Insurer is prepared to issue the policy of title insurance described in Section 2.13. DJM\,Agree''Oakmont PSA 08/09/07 7:45 a.m. Section 2.9 Conditions Regarding Close of Escrow. In the event that any condition precedent to Close of Escrow referred to in Section 2.8 is neither satisfied nor waived in writing by the Party benefitting from the condition, such condition shall be deemed to have failed and Escrow shall terminate with respect to the Property. If either Party is at fault for cancellation of Escrow pursuant to this Section, including because the Party failed to act when or in the manner required pursuant to this Agreement, or because the Party acted in any such manner that impeded satisfaction of any condition precedent specified in Section 2.8, that Party shall be responsible for paying all Escrow cancellation costs. If the Escrow is terminated pursuant to this Section for any reason that is not the fault of a Party, the Parties shall equally bear the Escrow cancellation costs. Section 2.10 Taxes and Assessments. Prior to or concurrent with Close of Escrow, City shall pay, cancel or terminate all prior current taxes, including special taxes assessments and improvement fees or charges levied on or against the Property. Section 2.11 Payment of Costs. The costs associated with this transaction shall be paid as follows: (a) City shall pay for the cost of obtaining the standard form CLIA portion of title insurance policy covering the Property in the amount of the Purchase Price including the cost of the PTR and Oakmont shall pay for the ALTA extended coverage portion of the title insurance policy; (b) Oakmont and City shall share equally in all costs of Escrow, including the Escrow Holder's escrow fee; (c) Oakmont and City shall share equally in the cost of documentary transfer taxes, if any, in connection with the recordation of the grant deed; and (d) Any other costs and expenses shall be allocated between Buyer and Seller in accordance with the custom for similar transactions in the County of San Bernardino. Section 2.12 Brokerage Fees. The Parties agree that Oakmont is solely responsible for any fees and commissions relating to brokerage fees. z:1 DJMVXgree\0akmont PSA 4 08/09/07 7:45 a.m. Section 2.13 Title Policy. Escrow Holder shall deliver to Oakmont, through Escrow, a ALTA extended coverage owner's policy of title insurance insuring Oakmont's fee ownership of the Property, subject only to the Permitted Exceptions, with a liability limit equal to the Purchase Price, issued by Title Insurer and dated as of Close of Escrow. Section 2.14 Execution of Other Documents, Compliance with Regulations. The Parties shall do such other things and shall execute all documents which are reasonably necessary for Close of Escrow to occur. Furthermore, the Parties shall comply at their own expense with all applicable laws required for Close of Escrow to occur including, but not limited to, any required filings with governmental authorities. Section 2.15 Recording of Documents and Delivery of Funds. Upon receipt of the funds and instruments described in this Article, and upon the satisfaction or waiver of the conditions precedent to Close of Escrow referred to in this Article, Escrow Holder shall cause the grant deed and other documents specified in this Agreement to be recorded in the official records of the County of San Bernardino. Upon Close of Escrow, Escrow Holder shall deliver conformed copies of the grant deed and all other appropriate documents to Oakmont. Section 2.16 Escrow Cancellation Charges. Notwithstanding any other provision of this Agreement to the contrary, in the event that Close of Escrow fails to occur as result of the default of a Party, the defaulting party ("Defaulting Party") shall be liable for all Escrow cancellation charges. In the event that Close of Escrow fails to occur for any other reason, Oakmont and City shall each be responsible for and shall pay one-half of all Escrow cancellation charges unless specified otherwise in this Agreement. ARTICLE III FEASIBILITY, DUE DILIGENCE AND INSPECTIONS Section 3.1 Feasibilitv, Due Diligence. and Inspections. Oakmont shall have one hundred (100) business days from the Effective Date of this Agreement to complete its due diligence ("Due Diligence Period"). After providing City with at least twenty-four (24) hours written notice, Oakmont and its consultants, agents, contractors and employees ("Oakmont's Agents") shall have the opportunity during the Due Diligence Period to enter the Property during regular business hours, or as reasonably necessary, to make visual inspections of the Property. Within five (5) business days after the Effective Date, City shall deliver to Oakmont all documents and information regarding the Property which are in the possession of City or its agents. DJM'x_Agrec\0akmom PSA 5 08/09/07 7:45 a.m. Section 3.2 Consequences of Feasibility and Due Diligence Inspection. If Oakmont fails to disapprove, in writing, of the Property for any reason or no reason on or prior to the end of the Due Diligence Period, or any extension thereto, Oakmont shall be deemed to have approved the Property. In such event, this agreement shall terminate and the Escrow with respect to the Property shall be cancelled without the need for further instruction from either party and neither Party shall have any further rights or obligations with respect to this Agreement. Section 3.3 Right to Observe Inspections. City may be present and may observe any visual inspections conducted by Oakmont or Oakmont's consultants. Section 3.4 Repair of the Property. If Escrow is cancelled with respect to the Property, Oakmont shall promptly repair any damage it has caused to the Property. Section 3.5 License for Oakmont Inspections. As consideration to Oakmont, City hereby grants a non-exclusive license to Oakmont to enable Oakmont to conduct Oakmont's due diligence activities as to its proposed use of the Property ("Oakmont License"). The Oakmont License shall include, but is not limited to, allowing Oakmont to enter, cross over, on, along, through and across the Property to make its visual inspections. The Oakmont License is granted subject to any covenants, restrictions, reservations, rights-of-way and encumbrances of record. ARTICLE IV CITY'S REPRESENTATIONS AND WARRANTIES Section 4.1 City is selling the Property in "As-Is" condition. Except as otherwise expressly provided in this Agreement, City hereby disclaims all warranties of any kind or nature whatsoever, whether expressed or implied, including but not limited to warranties with respect to either of the Property, or its condition or suitability for Oakmont's intended use. (a) To City's knowledge, neither this Agreement, nor any action required hereunder, violates or shall violate any contract, agreement or instrument to which Oakmont is a party. No other person or entity is required to consent to, acknowledge, or execute this Agreement in order to validate its execution by City or to permit the consummation of the transactions contemplated herein. (b) To City's knowledge, City, subject to the provisions of this Agreement, has the full right and authority to enter into this Agreement and consummate the transactions DJM\Agree\0akmont PSA 6 08/09/07 7:45 a.m. contemplated herein, and each person signing this Agreement on behalf of City is authorized to do so. (c) To City's knowledge, except as set forth in this Agreement, there is no existing state of facts or circumstances, or any condition or event, that would preclude City from fulfilling its obligations under this Agreement. ARTICLE V OAKMONT'S REPRESENTATIONS AND WARRANTIES Section 5.1 In addition to any other representations and warranties made by Oakmont pursuant to this Agreement, Oakmont warrants and represents that the following facts are true and correct as of the date Oakmont executes this Agreement, and the truth and accuracy of such representations and warranties shall constitute a condition to Close of Escrow. As used in this Agreement, the phrase "to Oakmont's knowledge" shall be limited to the actual knowledge of the signatories to this Agreement on behalf of Oakmont and any constructive knowledge imparted to it as a result of any report, study or other documentation in Oakmont's possession. (a) To Oakmont's knowledge, neither this Agreement, nor any action required hereunder, violates or shall violate any contract, agreement or instrument to which Oakmont is a party. No other person or entity is required to consent to, acknowledge, or execute this Agreement in order to validate its execution by Oakmont or to permit the consummation of the transactions contemplated herein. (b) To Oakmont's knowledge, Oakmont, subject to the provisions of this Agreement, has the full right and authority to enter into this Agreement and consummate the transactions contemplated herein, and each person signing this Agreement on behalf of Oakmont is authorized to do so. (c) To Oakmont's knowledge, except as set forth in this Agreement, there is no existing state of facts or circumstances, or any condition or event, that would preclude Oakmont from fulfilling its obligations under this Agreement. DMI 'Agree',Oakmont PSA 7 08/09/07 7:45 am, ARTICLE VI INSURANCE AND INDEMNIFICATION Section 6.1 Indemnification by Oakmont. Oakmont shall indemnify, defend and hold harmless City from any loss of or damage to the Property, or injury or death of any person whomsoever, including attorneys' fees and costs, arising from the activities caused in whole or in part by any intentional or negligent act of Oakmont or Oakmont's Agents, or by any act or omission of Oakmont or Oakmont's Agents in the exercise of rights pursuant to the Oakmont License; provided, however, such indemnification obligations of Oakmont shall not be applicable with respect to Buyer's mere discovery of any adverse condition or fact with respect to the Property. ARTICLE VII DISPUTES AND DEFAULT Section 7.1 Governing Law. This Agreement shall be governed by and construed in accordance with California law. Section 7.2 Interpretation of Agreement. The headings set forth in this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions contained herein. Section 7.3 Attorneys'Fees. In any action between Oakmont and City seeking enforcement or interpretation of any provision of this Agreement or in connection with the purchase of the Property,the prevailing Party in such action shall be awarded its reasonable costs and expenses, including, but not limited to, reasonable attorneys' fees, (including in-house counsel fees of the Parties) disbursements, and court costs, in addition to any damages, injunctive, or other relief awarded, and, without limitation, attorneys' fees, disbursements, and court costs, incurred in any post judgment proceedings to collect or enforce any judgment. Section 7.4 Default. Time is of the essence in this Agreement, and if either Party defaults on its obligations hereunder, then the other Party ("Non-Defaulting Party") may initiate termination of this Agreement by notice in writing to the Defaulting Party and Escrow Holder. If the Defaulting Party has not fully cured the default within thirty (30) days after receipt of such written notice, the Non-Defaulting Party may instruct Escrow Holder to cancel the Escrow, and the Non-Defaulting Party shall thereupon be released from its obligations under this Agreement. If a default by Oakmont is not cured within the foregoing thirty (30) day period, it is hereby DJM'iAgree,.Oakmont PSA 8 08/09/07 7:45 a.m. mutually agreed that, as City's sole and exclusive remedy hereunder, the Escrow shall be immediately cancelled and there will be no further liability from the Parties herein. ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.1 Setback Restriction. Oakmont acknowledges that the Property is located near City's Waste Water Reclamation Facility and, accordingly, the Property may be subjected to odors emanating from the Waste Water Reclamation Facility. In recognition of that fact, Oakmont and City agree that neither Party shall construct any building or habitable structure within thirty (30) feet of the property lines separating the Property from adjoining properties owned by City. If either Party requests that a covenant be recorded memorializing the restrictions set forth hereinabove, each Party shall execute and acknowledge such recordable covenant and such covenant shall be recorded in the official records of San Bernardino County. Section 8.2 Entire Agreement and Amendment. This Agreement fully and completely expresses the entire agreement between the Parties hereto with respect to the subject matter hereof. Any amendment to this Agreement shall be in writing and approved by the City Council of City; provided, however, that an amendment to this Agreement solely for the purpose of extending the Close of Escrow may be approved in writing by the City Manager of City. Section 8.3 Waiver. The failure of either Party at any time to require a performance by the other Party of any provision hereof shall not affect in any way the full right to require such performance at any time thereafter. The waiver of any breach of any provision of this Agreement by Oakmont or City shall not be deemed to be a waiver of any preceding or subsequent breach of the same or any other provision of this Agreement. Section 8.4 Representation by Independent Counsel. Oakmont and City agree and acknowledge that they have been represented by independent legal counsel of their own choice throughout all negotiations preceding the execution of this Agreement, and that they have executed this Agreement with the consent of, and upon the advice of,their own legal counsel. Section 8.5 Not for Benefit of Third Parties. This Agreement and every provision hereof is for the exclusive benefit of the Parties to this Agreement and not for the benefit of any third party. Section 8.6 Assignment. This Agreement shall be binding upon the Parties hereto and their respective heirs, successors, representatives and assigns. DJM\Agree\0ak-mont PSA 9 08/09/07 7:45 am. Section 8.7 Notices. All notices, demands and other communications given or required to be given pursuant to this Agreement shall be in writing, duly addressed as indicated below, and given by personal delivery, registered or certified mail (postage prepaid and return receipt requested), Federal Express or other reliable private express delivery, or by facsimile transmission (with original to follow via first-class U.S. Mail). Such notices, demands or other communications shall be deemed received: (1) immediately upon delivery if personally delivered or sent by facsimile transmission; or (ii) after three business days if given or sent by any other approved method specified above. Any Party specified below may, for purposes of this Agreement, change its name, address, facsimile number or person to whom attention should be directed by giving notice in the manner specified in this Section. Notices, demands and communications shall be duly addressed as follows: To Oakmont: To City: Oakmont National Development 11, LLC Attention: City Manager 3520 Piedmont Road, Suite 100 City of Redlands Atlanta, Georgia 30305 P.O. Box 3005 Attention: Stephen L.Nelson Redlands, CA 92373 (404) 869-9990 (909) 798-7510 To Escrow Company: First American Title Insurance Company 550 South Hope Street, Suite 1950. Los Angeles, CA 90071 (213) 271-1740 Section 8.8 Severability. If any article, section, subsection, paragraph, sentence, clause or phrase contained in this Agreement shall become illegal, null or void or against public policy, for any reason, or shall be held by a court of competent jurisdiction to be illegal, null or void or against public policy,the remaining articles, sections, subsections, paragraphs, sentences, clauses or phrases contained in this Agreement shall not be affected thereby. Section 8.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. DJN4\Agree\0akmont PSA 10 08/09/07 7:45 a.m. IN WITNESS OF THE FOREGOING, the undersigned execute this Agreement on behalf of Oakmont and City. CITY OF R.EDLAN S r Dated: September 4 , 2007 Mayor Jon Harrison ATTEST: L orrie Poyzef, ity Clerk OAKMONT NATIONAL DEVELOPMENT II,LLC, a Delaware limited liability company Dated: ' _ , 2007 By: Stephen L.Nelson 5' Its: Executive Vice President DJ1v,Agree=,,0akmont PSA 1 I 08/09/07 7:45 a.m. EXHIBIT"A" Recording Requested By and When Recorded Mail to: Oakmont National Development II, LLC 3520 Piedmont Road, Suite 100 Atlanta, Georgia 30305 Attention: Stephen L.Nelson GRANT DEED FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged,the City of Redlands ("Grantor"), a municipal corporation organized and existing pursuant to California law, hereby grants to Oakmont National Development 11, LLC ("Grantee"), that certain real property located in the County of San Bernardino, State of California, and more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, this instrument is executed as of this day of 2007 by: [PLEASE NOTARIZE SIGNATURES] GRANTOR: CITY OF REDLANDS By: Jon Harrison, Mayor ATTEST Lorrie Poyzer,City Clerk DJM-1,Agree\0akmont PSA 12 08/09!07 7:45 a.m. Q ea STATE OFIF6 ) ) ss. COUNTY OF ) On S u kt -?�S K00-7 before me, personally appeared, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 1 Sign ure of otary Pub is I7 WAgree"Dakmont PSA ]3 08/09/07 7.45 a.m. EXHIBIT"A" THE EAST HALF OF LOT 6 AND THE SOUTH 235 FEET OF THE EAST HALF OF LOT 3, BLOCK 2, BROWN'S SUBDIVISION, AS SHOWN BY MAP RECORDED IN BOOK 8, PAGE 96 OF MAPS, RECORDS OF THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND AS SHOWN ON RECORD OF SURVEY RECORDED IN BOOK 60, PAGE 53 OF RECORDS OF SURVEY, RECORDS OF SAID COUNTY. PREPARED BY: LAA'o MARK S. 0 MARK S. HITMER, L.S. N6-w 5535 TMER No. 5535 Expires:9- 0 CALV P Y4� AAiCNI{. ro FirstAmerican Title Insurance Company National Commercial Setvices 550 S.Hope Street,Suite 1950•Los Angeles,CA 90071 Seller's Estimated Settlement Statement Property: Vacant Land,Redlands,CA File No: NCS-317352-LA2 Lot:ptn 6,3 Tract:M8 Officer: Liz Aguilar/la New Loan No: Settlement Date: Disbursement Date: 03/21/2008 Print Date: 3/21/2008, 10:55 AM Buyer: OAKMONT REDLANDS PALMETTO Il,LLC Address: 3520 Piedmont Road,Ste. 100,Atlanta,GA 30305 Seller: City of Redlands,a Municpal corporation Address: P O Box 3005 Redlands,CA 92373 Charge Descripflan Seller Charge Seller Credit Consideration: Total Consideration _ 19321129.00 Prorattons: — CountyTaxes APN 0292-041-09-0-000 03/21/08 to 07/01/08 $4379.07/ 1,223.74 CoomLTaxes APN 0292-041-17 0-000 03/21/08 to 07/01 08 2107.31 yr 588.89 Title/Escrow_Charges to _ — -- Closin -Escrow Fee-First American Title Insurance Company National Commercial Services 2 027. _ ___ Poli -CLTA Owner's-First American Title Insurance Company National Commercial Services 3,053.10 _ Documentary Transfer Tax-County-First American Title Insurance Company National Commercial 1,612.88 Services Cash(X To)( From)Seller 2,927,248.65 Totals 2,933,941.63 2,933,941.63 Notice - This Estimated Settlement Statement is subject to changes, corrections or additions at the time of final computation of the Settlement Statement. SELLER(S): City of nds, unicpal corporation B .Authorized Signatory Jon Harrison, Mayor ATTEST: La rie Po r, City Clerk Page I of I