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HomeMy WebLinkAboutContracts & Agreements_160-2014_CCv0001.pdf AGREEMENT FOR PURCHASE AND SALE OF AN EASEMENT This agreement for purchase and sale of an easement ("Agreement") is made and entered into this .3O ay of JOLt 1 201 ("Effective Date") by and between KMART Express LLC ("Grantor") and the y of Redlands, a municipal corporation ("Grantee"). Grantor and Grantee are each sometimes individually referred to herein as a "Party" and collectively as the "Parties." RECITALS A. Grantor owns certain real property located at 1625 W Redlands Blvd.,Redlands, California,bearing County of San Bernardino Assessor's Parcel No.0292-157-16 (the"Property"). B. Grantee desires to acquire, by exercise of its power of eminent domain, permanent and temporary easements in a portion of the property and Grantor consents to Grantee's acquisition by exercise of its power of eminent domain, such easements in a portion of the Property as described in the attached exhibits (the "Easements"). C. The Parties desire by this Agreement to provide the terms and conditions for the purchase and sale of the Easements. In consideration of the mutual promises contained herein, the Parties agree as follows: AGREEMENT 1. PURCHASE Grantee shall buy and Grantor shall sell and convey the Easements, for the purchase price and upon the terms and conditions hereinafter set forth. 2. ESCROW Within ten (10) days of the Effective Date of this Agreement, Grantee shall open an escrow (the "Escrow") at a mutually acceptable office of Commonwealth Land Title Company (the "Escrow Holder") for the purpose of consummating the purchase and sale of the Easement. The Parties shall execute and deliver to Escrow Holder such escrow instructions prepared by Escrow Holder as may be required to consummate this transaction. Any such instructions shall not conflict with, amend or supersede any provision of this Agreement. If there is any inconsistency between such instructions and this Agreement, this Agreement shall control unless the Parties agree in writing otherwise. The Escrow Instructions shall include the following terms and conditions of sale: 2.1 Purchase Price. The total purchase price for the Easements shall be the sum of Forty Thousand Dollars ($10,000) (the "Purchase Price"), which shall be paid by grantee to grantor through Escrow Holder in cash at Close of Escrow. 1 2.2 Close of Escrow. Escrow shall close on or before sixty (60) days following the Effective Date of this Agreement (the "Close of Escrow"). If the Escrow is not in a condition to close by the Close of Escrow, any Party who is not then in default may, in writing, demand the return of its money and/or documents. Thereupon, subject to the provisions of Section 3 hereof, all obligations and liabilities of the Parties under this Agreement shall cease and terminate. If no such demand is made, the City Manager of Grantee may, by written instrument to Escrow, authorize an extension of the Escrow. Escrowshall be closedas soon as possible. 2.3 Condition of Title to the Easement. Grantor shall convey title to the Easements to Grantee as evidenced by a CLTA Standard Form Policy or Binder of Title Insurance ("Title Policy") issued by a title insurance company to be selected by Grantee in an amount equal to the Purchase Price. The Title Policy shall show as exceptions with respect to the Easements only matters approved in writing by Grantee. Any exceptions to title representing monetary liens or encumbrances (other than for current installments of taxes and assessments) are hereby disapproved by Grantee, and Escrow Holder is hereby authorized and instructed to cause the reconveyance, partial reconveyance or subordination, as the case may be and as approved by grantor, of any such monetary exceptions to Grantee's title to the Easement at or prior to the Close of Escrow. 2.4 Escrow and Closing Costs. Grantee shall pay the cost of the Title Policy, all Escrow fees (including reconveyance fees, trustee's fees or forwarding fees for any partial reconveyance or subordination of a deed of trust or mortgage, and all recording costs incurred herein. All Parties acknowledge that grantee is exempt from payment of documentary transfer taxes. 2.5 Investigations. Within fourteen (14) days of the Effective Date of this Agreement, Grantee may, at its option, conduct, at Grantee's expense. any and all investigations, inspections, surveys and tests ofthe Property including, without limitation,soils,groundwater, wells,percolation,geology, environmental, drainage, engineering and utilities investigations, inspections, surveys and tests, which Grantee determines, in its sole discretion, are required to ascertain the suitability of the Easement for Grantee's intended use. If Grantee determines that the Easements are not suitable for its intended use, Grantee may terminate this Agreement as provided in Section 2.2 hereof. Grantor hereby grants to Grantee, and Grantee's employees, representatives, agents and independent contractors, a temporary fourteen (lel) day license to enter the Property for the sole Purposes of conducting such investigations, inspections, surveys and tests. Grantee hereby indemnifies, defends and holds grantor harmless from and against any and all loss, cost, damage, expense or liability (including attorneys' fees) arising out of the inspection, investigation, surveying and/or testing activities on or about the Property by Grantee or Grantee's employees, representatives, agents and independent contractors. Grantee shall repair any damage to the Property resulting from such investigations, inspections, surveys and tests conducted by Grantee or Grantee's employees, representatives, agents or independent contractors. Grantee's approval 2 of any of such investigations, inspections, surveys or tests shall not alter or diminish Grantor's representations or warranties under this Agreement, and Grantor acknowledges and agrees that Grantee is relying upon Grantor's representations and warranties made herein, unless such representation or warranty is specifically waived in whole or in part by Grantor. 2.6 Deposit of Funds and Documents A. Prior to Close of Escrow, Grantee shall deposit into Escrow (i) all Escrow and Closing Costs as described above, (ii) the Purchase Price to be paid to grantor through Escrow; and (iii) such other documentation as is necessary to close Escrow in conformance herewith. B. Prior to the Close of Escrow, Grantor shall deposit into Escrow (i) the properly executed Grant of Easement Deed conveying the Easement, a properly executed Temporary Construction Easement, and a properly executed Anchor Easement copies of which is attached to this Agreement as Exhibits A, B &C and (ii) such other documents and sums, if any, as are necessary to close Escrow in conformance herewith. 2.7 Grantee's Conditions Pi-ecedent to Close of Esei-ow The Close of Escrow is subject to the following conditions: A. All representations and warranties of grantor set forth in this Agreement shall be true and correct as of the Close of Escrow; and B. Grantor shall timely perform all obligations required by the terms of this Agreement to be performed by it. 2.8 Grantor's Conditions Precedent to the Close of Escrow For the benefit of Grantor, the Close of Escrow shall be conditioned upon the timely performance by Grantee of all obligations required of Grantee by the terms of this Agreement. 3. POSSESSION OF EASEMENT Grantee may take possession of the Easement and begin construction of the works of improvement thereon as of the Effective Date ofthis Agreement,prior to the Close of Escrow. 3 4. REPRESENTATIONS AND WARRANTIES OF GRANTOR Grantor makes the following representations and warranties, each of which shall survive the Close of Escrow: A. Grantor holds title to an indefeasible estate in fee simple in the Property. Grantor is the sole owner of the Property and has good, absolute and marketable title to the Property, subject to the exceptions of record approved or deemed approved hereunder by Grantee, and has full power and authority to own and sell and convey the Easement over, under and/or through the Property to Grantee and to enter into and perform its obligations pursuant to this Agreement; B. The execution and delivery of this Agreement by Grantor, Grantor's performance hereunder, and the consummation of this transaction will not constitute a violation of any order or decree or result in the breach of any contract oz• agreement to which Grantor is a Party, or by which Grantor is bound; C. Grantor shall not enter into any agreements or undertake any new obligations prior to Close of Escrow which will in any way burden, encumber or otherwise affect the Property without the prior written consent of Grantee; D. To Grantor's actual knowledge, no litigation and no governmental administrative or regulatory act or proceeding regarding the health and safety aspects of the Property is pending. proposed or threatened; E. According to Grantor's information and belief, the Property is not in violation of any federal, state or local statute, regulation or ordinance as a result of Grantor's operations on the Propertv relating to industrial hygiene or to environmental conditions on, under or about the Property, including. but not limited to, soil and groundwater conditions underlying the Property which could affect the Easements or their use. F. Grantor has and shall have paid before Close of Escrow any and all current and past due taxes, assessments, penalties and interest levied and assessed against the Property. If not paid prior to Close of Escrow, Grantor hereby authorizes Escrow Holder to disburse to the tatting authority from funds otherwise due to Grantor an amount sufficient to discharge said taxes, assessments, penalties and interest. Unless the Easement is assessed separately, Grantor shall also keep current year by year, all taxes, assessments, penalties and interest levied and assessed against the Easement and the larger Property of which it is a part. Any of the forgoing representations or warranties made "to Grantor's actual knowledge" means to the present, actual knowledge of the named individuals comprising Grantor, without any duty of inquiry or Investigation, and without the imputation of knowledge of any other person to any of the parties comprising Seller. These representations and warranties shall survive the Close of Escrow. 4 5. REPRESENTATIONS AND WARRANTIES OFGRANTEE. A. Grantee shall repair and restore any improvements or land (other than the Easement and any improvements located thereon) belonging to Grantor that may be damaged or impacted by Grantee or Grantee's contractor during construction of the works of improvement for which the Easement is conveyed. Said repair and restoration of improvements shall include, without limitation, relocation of Grantor's monument sign per Grantor's plans. Said relocation of Grantor's monument sign shall include, without limitation: remove landscaping and existing sign; remove existing sign foundations below grade; excavate for new footings, set new pipe and place concrete; repair and restore damaged concrete curbing; reconnect electric service feed; repair and restore landscaping and irrigation system; patch/repair adjacent disturbed asphalt pavement. B. Grantee, its successors and assigns shall save harmless and indemnify Grantor against any and all c 1 aims,demands, suits,judgments, expenses and costs on account of injury to,or death of persons, or loss of, or damage to, property of others incurred during or proximately caused by acts or omissions ofGrantee orGrantee's contractor in the performance of any work by Grantee or Grantee's contractor to construct the works of improvement forwhich the Easements are conveyed. C. Grantee, its successors and assigns shall defend and indemnify Grantor against any and all claims, demands, suits,judgments, expenses and costs on account of injury to, or death of, persons, or loss of, or damage to, property of others arising from or relating to the ownership or use of the Easements by Grantee, and its employees, agents, representatives, invitees, contractors, successors and assigns. D. Grantee shall provide fourteen (14) days notice before commencement of construction work on the Easements. Grantee shall ensure that vehicular access to the Property is maintained at all driveways during regular business hours and that such access shall not be unduly impeded (access at the driveway to be reconfigured may be out-of-service for a limited time while the new concrete cures, provided however, that all other driveways shall remain open at all times). Grantee will use commercially reasonable efforts to coordinate construction activities with Grantor's on-site facility manager. These obligations of Grantee under this paragraph shall survive the Close of Escrow. 6. ACKNOWLEDGEMENT OF FULL BENEFITS AND RELEASE A. By execution of this Agreement, Grantor, on behalf of itself and its respective successors and assigns, hereby acknowledges that this Agreement provides full payment for the acquisition of the Easements by Grantee, and Grantor hereby expressly and unconditionally waives any and all claims for damages, relocation assistance benefits, severance damages, interest, loss of goodwill, claims for inverse condemnation or unreasonable pre- condemnation conduct, or any other compensation or benefits, other than as already expressly provided for in this Agreement, it being understood that this is a complete and full settlement of all acquisition claims, liabilities or benefits of any type or nature whatsoever relating to or in connection with Grantee's acquisition of the Easements under threat of em inent domain. 5 B. This Agreement arose out of Grantee's efforts to acquire the Easements by or under the threat of exercise of Grantee's power of eminent domain (including, without limitation, grantees adoption of a Resolution of Necessity and filing of an eminent domain lawsuit (San Bernardino Superior Court Case No. CIVDS1315417)) through its municipal authority. The Parties agree that this Agreement is a settlement of claims in order to avoid litigation and shall not in any manner be construed as an admission of the fair market value of the Easements or of the Property or of liability by any Party to this Agreement. Each Party, on behalf of itself and its successors and assigns, hereby filly releases the other Party, its successors, agents, representatives, and assigns, and all other persons and associations, known or unknown, from all claims and causes of action by reason of any damage which has been sustained, or may be sustained, as a result of Grantee's efforts to acquire the Easements or to construct works of improvement thereon or any preliminary steps thereto, except as set forth hereinabove. Grantor further releases and agrees to hold Grantee harmless from any and all claims by reason of any leasehold interest in the Property. This release shall survive the Close of Escrow. C. Each Party expressly waives the rights afforded under Civil Code section 1542which provides that: 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. D. Grantee filed an eminent domain action, CIVDS 1315417. Upon completion of the terms of this Agreement, including the close ofescrow, Grantee shall dismiss its eminent domain action. The parties agree that completion of the terms of this Agreement constitutes the entire agreement between the parties, which includes, without limitation, frill payment of just compensation, claims for inverse condemnation and unreasonable precondemnation conduct, payment for fixtures and equipment, attorneys' fees,costs and any interest in complete settlement of all claims(known and unknown), causes of action and demands of Grantor against Grantee because of Grantee's purchase of the Easements, and for any and all claims (known and unknown) arising form or relating to the purchase and sale which is the subject of this Agreement, or the above stated eminent domain lawsuit." 7. REMEDIES If Grantor defaults under this Agreement, then Grantee may, at Grantee's option, terminate the Escrow or initiate an action for specific performance of this Agreement, or pursue any other rights or remedies that Grantee may have at law or In equity. If Grantee defaults under this Agreement, then Grantor may, at Grantor's option, terminate the Escrow or pursue any rights or remedies that Grantor may have at law or in equity. 9. MISCELLANEOUS 6 A. Notice. Any notice to be given or other document or documents to be delivered to either Party by the other hereunder may be delivered in person or may be deposited in the United States Mail in the State of California, duly registered or certified, with postage prepaid,and addressed as follows: Grantor: KMART Express LLC 3333 Beverly Road Hoffman Estate, IL 60179 Grantee: City of Redlands Attn: Chris Diggs Deputy MUED Director PO Box 3005 Redlands, Ca 92373 Any Party hereto may, from time to time, by written notice to the other Party; designate a different address, which shall be substituted for the one specified above. Any notice or other documents sent by registered or certified mail as certified shall be deemed to have been effectively served or delivered at the expiration of twenty-four (24) hours following the deposit of said notice or other documents in the United States mail. B. TIME IS OF THE ESSENCE. Time is the essence with respect to each and every provision hereof. C. Assignment. Neither this Agreement, nor any interest herein, shall be assignable by any Party without prior written consent of the other Party. D. Governing Law. All questions with respect to this agreement, and the rights and liabilities of the Parties hereto, shall be governed by and construed in accordance with the laws of the State of California. E. Inurement. This Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representative, estates, heirs and legates of the Parties. F. Attornevs' Fees. If any action, arbitration or other proceeding is brought for the interpretation or enforcement of this Agreement, or because of any alleged dispute, breach, default or misinterpretation in connection with the Agreement, the successful or prevailing Party shall be entitled to recover actual attorneys' fees and other costs it incurs in that action or proceeding, in addition to any other relief to which it may be entitled, including fees for any in-house counsel of the Parties. G. Entire agreement. This agreement contains the entire agreement of the Patties, and supersedes any prior written or oral agreements between them concerning die subject matter contained herein. There are no representations, agreements, or understandings, oral or written, between the Parties relating to the subject matter contained in this Agreement which are 7 not fully expressed herein. H. Additional Documents. The Parties agree to execute any and all additional documents and instruments necessary to carry out the terms of this Agreement. 1. No Admissions. This Agreement is a compromise and settlement of outstanding claims between the Parties relating to Grantee's acquisition of the Easement and shall never be treated as an admission by either Party to the Agreement for any purpose in any judicial, arbitration or administrative proceeding between the Parties. This paragraph shall not apply to any claim that one may have against the other for breach of any provision or covenant of the Agreement. J. No Merger. All representations, warranties, acknowledgements, releases, covenants and obligations contained in this Agreement shall survive delivery and recordation of the permanent easement. K. Broker. Grantor and Grantee each represent and warrant to the other that no broker, agent or finder has been engaged by it in connection with the transaction contemplated by this agreement and that all negotiations relative to these instructions and this transaction have been carried out by such Party directly with the other Party without the intervention of any person in such a manner as to give rise to any valid claim against either of the Parties for the broker's commission, finder's fee or other like payment. Each of the Parties shall indemnify and defend the other Party and hold it harmless from any and all loss, damage, liability or expense, including costs and reasonable attorneys' fees, which the other Party may incur or sustain by reason of or in connection with any misrepresentation or breach of warranty by the indemnifying Party with respect to the foregoing. L. Counterparts. This Agreement may be signed ill counterpart or duplicate copies, and any signed counterpart or duplicate copy shall be equivalent to a signed original for all purposes. EXECUTED on the date or dates set forth below. Grantor: 8 KMAR`I`Express LLC Dated: 44 By:/—�rfw�� REAL TATE Gated: ley; LEGAL By: Grantee: City of Redla d. r Dated: . 6 Iq B,. _ P, IN Pete A Uilar� Mayor Attest: Jeanne Donaldson, Deputy City Clerk 9 ExHuit'1'`A" I...cgal Description Roadway Hasement AI'N 0292-157-16 That portion of Parcel 1 of Parcel Map No.2863, in the City of Redlands.County of San Bernardino,State of California, per map recorded in Book 30, Pages 68 and lig ol'ParccI :Maps in the office of the County Recorder of said County, described as follows: Beginning at the northerly terminus of that certain course shown as having a bearing of North 00°00'00"East and a length of 141.25 feet on the boundary line of said Parcel; thence along said certain eotu•se, South 00°00'00"West, 10.00 feet to a line that .is parallel with and 1.0.00 feet south of the Southerly right of way line. of Redlands Boulevard as shown on said Parcel Map; thence along said parallel line.North 88`43'40"West.94.54 feet; thence North 84'l I'25"West, .126.37 feet to said southerly right of way line of Redlands Boulevard;thence along said Southerly right of vvay line.South 88'43'40"Last, 220.20 feet to tlae Point of Beginning. The above-described parcel of land contains approximately 1,574 Sclaare feet. As nior; particularly shown on Hxhibit "B"attached hereto and nzatie a part hereof. This real property description has been prepared by nac or under nay direction in conformance with the Professional Land Sorvcvot's Act. e at.LaIq H R1 f LEN ._... .. .LU._�......:...l..t.......''�. 4 No.8746 Teri Kalilen. PT-S 8746 Date OP CAIJC 10 REDLA NDS BOULEVARD c o I `n o P.M. S86'43'40"E ' I y� 500°CC'00"41 I X184°11 '25"fy I X4,54' 3?.00 wi �[v88'43:40"W in w � Cid j o c :O =C C3 G � AP?1+ 0232-157-16 .a G Q C, z PARCEL JVAP NO. 2863 � QP P.111.B. 30168-60 f _- PA RCEL 9 i i i i TEF J PAN_H I1�` t•!4 fi��6 � i �f INCICAfES RCA7'VtiAY LASE�MENT -C E Ai r�J RED AREA = 1,574 SFREDL x:. EXHIBIT nbn ALABAMA IMP AND CA O ALA9kiAA ST. EiAA pRp>rCT $Ss ET I OF t 4PN :;29_-537-15 f At �/ /t.i ;;I-Y OF RIDL4\DS SK=TCI- TO ACCOL+=ANrGI7iti144J 6Y: "ILK CO�)N'Y OF SAN 6=RNA�Ui�ir AA LEGAL DLSC 1PTfO\ STA-E U CA-.`ORNA KALL:I"=50* 11 THIS PAGE LEFT BLANK 12 EXHIBIT"A" Legal Description Temporary COnStruction Easement APN 0292-157-16 A strip of land,5.00 feet wide,over that portion of Parcel I of Parcel flap No.2863,in tine City of Redlands,County of San Bernardino, State of California,per map recorded in Book 30,Pages 68 and 69 of parcel Maps in the office of the County Recorder of said County,elle northerly line of said strip of land being described as follows: Conunencing at the northerly terminus of that certain course shown as having a bearing of North 00100'00°'East and a length of 141.25 feet on the boundary line of said Parcel 1,thence along said certain course, South 00°00'00"West, 10.00 feet to a line that is parallel with and 10.00 feet southerly of the southerly right of way line of Redlands Boulevard as shown on said Parcel Map and the True Point of Beginning; thence:Tong said parallel line,North 88143°40"West,94.54 feet;thence North 8491'25"West, 126.37 feet to said southerly right of way line of Redlands Boulevard;thence along said southerly right of way line,North 88143'40" West,5.00 feet to the Point ofTenninus. The sidelines of said strip of land shal l he prolongecl or shortened as ne".5sary to tenninate in said certain Course. The above-described parcel of lane[ contains approximately 1,130 square feet. As more particularly shown on Exhibit`B"attached hereto and made a part hereof. This real prop'uty description has been prepared by me or under my direction in conformance with the Professional Land Surveyor's Act. ts.L t.li d S4;.p �3 tstrtat•r �j ,i lcri Kahlen, pl S 8746 Date � O 13 EXHIBIT "A" TEMPORARY CONSTRUCTION EASEMENT REDLANDS BOULEVARD --—-—-—-— -- ._ — - — -- -_--.---------� —ruse°43'4o'°rr i N88°43'40"w o 0 P.O.C. i 5.00 5886 43'40"E n 220.20'`D 1 1 N � p5'1tY S00"00'00"14 84°ti 34.54, 10.00' 12a .37+ I�881 43'40"41 I o c� o I © a1 I APA' 0292-157-16 k PARCEL MAP NO. 2863 P.M.B. 30168-69 PARCEL 1 I i i i Qrj iERI �a 1 * Io 8746 *f FI' 1 INDICATES TEMPORARY rOAISTRl1CTi0r4 EASEMENT AREA = 1,130 REDLANDS BLVD. AND ALABAMA ST. IMP PROJECT SItEET: 1 OF' t PARAGON ON A0,N 0292-157 DATE:05/01/14 Pi\, Rl-1 V ERS CITY OF R-01 ANUS DRAVN FY TLK cu> COW IiY CF $AN BERNARD017 STATE OF CA"1FCRYA SCALE:S"`=30' !4 THIS PAGE LEFT BLANK 15 KXMBI<T"A" Legal Description APNI 0292-157-16 A strip of land, 4.00 feet wide,over that portion of Parcel 1 of Parcel Map No.2863,in the City of Redlands,County of Stan Bernardino,State of California,per map recorded in Book:30,Pages 68 and 69 of Parcel Maps in the office of the County Recorder of said County,said strip of land lying 2.00 feet on each side of the following described centerline: Coau nenchig at the northerly tenn.inus of that certain course shown on said reap as having a bearing of North 00°00'00"lestand a length of 141.25 feet on the boundary line of said Parcel; Thence along said certain course,South 00°00'00"West, 10.00 feet to a line that is parallel with and 10.00 feet south of the southerly right of way line of Redlands Boulevard as shown on said Parcel Map;thence along said parallel line,North 88°43'40"West,94.54 feet;thence North 84011'25"West,21.55 feet to the True Point ofBeginning;thence South 01°16'20"West,5.00 ;feet. The sidelines of said strip of hued shall be prolonged or shortened as necessary to terminate in the westerly prolongation of that certain coarse hereinabove described as having a bearing of North 84°11125" Nest. The above-described parcel of land contains approximately 20 square feet, As more particularly shown on Exhibit"13"attached hereto mid made a part hereof: This renal property description has been prepared by ane or under my direction in confdranaancc with the Professional Land Survevor's Fact. I-Mt) TFRI F,F KA}iLO! p l' Teri 1<ahleaa, 1?L.S 8716 Data &fYi a,1 -7 D 16