HomeMy WebLinkAboutContracts & Agreements_121-2014_CCv0001.pdf ASSIGNMENT OF REAL PROPERTY PURCHASE AND SALE AGREEMENT
This assignment of real property purchase and sale agreement("Assignment Agreement")
is made and entered into this l't day of July,2014 ("Effective Date"), by and between the
Redlands Conservancy("Assignor"), a California non-profit public benefit corporation,and the
City of Redlands, a California general Iaw city("Assignee"). Assignor and Assignee are
sometimes individually referred to herein as a"Party"and,together, as the"Parties."
RECITALS
WHEREAS,Assignor has entered into a certain Purchase and Sale Agreement
("Purchase/Sale Agreement"), dated June 27,2014,with Mistretta Canyon Partners, LLC and
Mistretta Family Properties, LLC as"Seller,"and Assignor as "Buyer,"for the purchase and sale
of certain real property (the"Property")situated in the City of Redlands and more particularly
described in the Purchase/Sale Agreement, a copy of which is attached hereto as Exhibit"A;"
and
WHEREAS, Assignor desires to assign,transfer, sell and convey to Assignee,all of
Assignor's right,title, and interest in,to and under the Purchase/Sale Agreement; and
WHEREAS, Assignee is desirous of receiving all of Assignor's right, title and interest in,
to and under the Purchase/Sale Agreement;
NOW THEREFORE, in consideration of the mutual promises contained herein, and for
such other good and valuable consideration, the receipt of which is hereby acknowledged,the
Parties agree as follows:
AGREEMENT
Section 1. Assignor's Assignment. Assignor hereby assigns, transfers,sells and
conveys unto Assignee all of Assignor's right,title and interest in,to and under the
Purchase/Sale Agreement.
Section 2. Assignee's Assumption. Assignee hereby assumes all of Assignor's
rights, duties and obligations under the Purchase/Sale Agreement, except as may be expressly
provided otherwise herein.
Section 3. Defense and Indemnity. Assignor shall defend,indemnify and hold
harmless Assignee and its elected officials,employees and agents from and against any and all
claims, causes of action,damages, losses or liability, including attorneys' fees,which Assignee
may be subjected to including,but not limited to, injury or death to persons or damage to
property,which are occasioned by or result from any act, omission or failure to act by Assignee,
or its officers, employees and agents in connection with Assignee's proposed purchase of the
Property or the exercise of any of Assignee's rights under the Purchase/Sale Agreement.
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Section.4. Binding Effect. This Assignment Agreement shall be binding upon
Assignor and inure rue to the benefit of Assignee and its successors and assigns.
Section 5. Governing Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of California,
Section 6. Entire Agreement/Amendment. This Assignment Agreement contains the
entire agreement of theParties with respect to the subject matter hereof and supersedes all prior
negotiations, verbal and written agreements between een the Parties regarding the same. This
Assignment Agreement may he amended;only by written instrument executed by the Parties.
Section 7. No Third Party Beneficiaries. Nothing expressed or implied in this
Assignment Agreement is intended to confer upon any person, other than the Patties and their
respective successors or permitted assigns, any right,remedies, obligations, or liabilities under,
or by reason of, this Assignment Agreement.
Section 8. Attorneys' Fees. In the event any action is commenced ced to enforce or
interpret any of the terms or conditions of this Assignment Agreement the prevailing party shall,
in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys'
fees, including fees for the use of in-house counsel by a Party.
IN'WITNESS E EOE this Assignment Agreement has been signed and delivered by
Assignor and Assignee as of its Effective Date.
CITY OF REDLANDS THE REDLANDS CONSERVANCY
"Y
t
Pete Agui at, Mayor Sherli Leonard, Executive Director
ATTEST:
Sam Irwin, City Clerl
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is entered into this 27th day of
June, 2014 ("Effective Date"), by and between The Redlands Conservancy , a California
non-profit public benefit corporation ("Buyer"), and Mistretta Canyon Partners, LLC, a
California limited liability company, and Mistretta Family Properties, LLC, a California
limited liability company(together,"Seller").Buyer and Seller are sometimes individually
referred to herein as a"Party"and,together,as the"Parties."In consideration of the mutual
covenants and agreements, the Parties agree to the following terms and conditions:
ARTICLE I
AGREEMENT OF SALE
1.1 Parties' Status. Buyer is a California non-profit public benefit-corporation
with the power to acquire real and personal property. Seller discloses that Frank 3.
Mistretta, Jr., a principal of Seller, is a licensed real estate broker acting in his capacity as
a principal.
1.2 Property. (a) Seller owns certain real property consisting of
approximately 60 acre portions of land of Government Lots 5 and 6 of Section 8,Township
2 South,Range 2 West,San Bernardino Base and Meridian located in the City of Redlands,
California,partially within land bearing Assessor Parcel Nos. 0300-241-17 and 0300-241-
20; ("Property"), more particularly described in Exhibit "A" and plotted in Exhibit "B"
attached hereto and incorporated herein by reference.
(b) The Property described in Exhibit"A"shall include all surface and
sub-surface mineral rights, including any water rights appurtenant to the Property but
without any representation or warranty from Seller relating to the existence or nature of
any such surface, sub-surface or water rights. Additionally, the Property shall include all
buildings,fixtures, mechanical systems and other improvements located on the Property.
(c) The Property is a part of a larger tract of real property which consists
of approximately 180 acres which was originally included in Tentative Tract Map No.
16361 ("TTM 16361 Property"). Pursuant to that certain Stipulated Judgment pertaining
to the TTM 16361 Property which was filed on December 14, 2006 in San Bernardino
County Superior Court Case No. SCVSS 126460 (the"Stipulated Judgment"), Seller's
predecessors-in-interest agreed to limit development of the TTM 16361 Property to a
Planned Residential Development ("PRD") consisting of up to thirty-six (36) residential
lot/units by the filing of an amended map for TTM 16361, or a new map, on the real
property comprising the TTM 16361 Property (the "PRD Lots"). It is agreed between
Seller and Buyer that that the Property to be conveyed pursuant to this Agreement shall
also include an assignment by Seller to Buyer of all entitlement and development rights to
twelve (12) of the PRD Lots ("Assignment of Entitlements"). Such Assignment of
Entitlements shall be included in the Grant Deed conveying the Property to Buyer. Seller
and Buyer agree that as further consideration for-Buyer's purchase of the Property, Seller
shall execute an amendment to the Stipulated Judgment, substantially in the form attached
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hereto as Exhibit"C,"to reflect Seller's Assignment of Entitlements and other appropriate
documents acceptable to Buyer, Seller and the City of Redlands in recordable form,
whereby Seller acknowledges that Seller,for itself,its assigns and successors-in-interest to
the portion of the TTM 16361 Property retained by Seller after sale of the Property to Buyer
("Retained Property"), agrees to limit development of the Retained Property to only
twenty-four (24) PRD Lots. Buyer shall have the right to record in the official records of
the County of San Bernardino a copy of the Stipulated Judgment,as amended and approved
by order of the San Bernardino Superior Court, against the Retained Property.
1.3 Legal Description. The Parties understand and acknowledge that the legal
description of the Property more particularly described in Exhibit "A" attached hereto is
not a separate legal parcel pursuant to the Subdivision Map Act ("Map Act") at the
Effective Date. The Parties agree, however, that such condition shall not invalidate or
otherwise render this Agreement unenforceable, and the Parties agree and intend that the
legal description of the Property shall be brought into compliance with the Map Act or
other applicable law of the State of California by means of a grant deed, lot-line
adjustment and/or some other mechanism to be completed by Seller to meet the
requirements of the Map Act or other applicable law of the State of California,and the Title
Company (as defined in Section 2.5 below), to issue the Title Policy prior to, and as a
condition precedent to, Close of Escrow(as defined below).
1.4 Agreement of Purchase and Sale. Seller agrees to sell to Buyer and Buyer
agrees to purchase from Seller, upon the terms and for the considerations set forth in this
Agreement, the fee interest in the Property.
1.5 Other Grants. Except as specifically otherwise permitted hereunder, it is
agreed that Seller, or its successors in interest,will not grant an interest in the Property, or
any part thereof,including,but not limited to, a fee simple interest, easements,lease or any
other conveyances and/or construct improvements or make Material Changes (as
hereinafter defined in Section 4.2 below)upon or to the Property during the period between
the Effective Date and the Close of Escrow.
1.6 Possession. Seller agrees that the Property will be available to Buyer and
free from all tenancies and occupants upon the Close of Escrow.
1.7 As Is. (a) Except for any representation or warranty of Seller
specifically stated in this Agreement, Buyer acknowledges and agrees that Buyer is
purchasing the Property in its"As Is" condition with all faults and neither Seller nor anyone
acting for or on behalf of Seller has made any representation, statement, or warranty to
Buyer concerning the value and marketability,physical aspects and condition of any of the
Property, compliance with applicable laws or regulations,any dimensions or specification
of any of the Property, the permissibility, feasibility, desirability, or convertibility of any
of the Property for any particular use, or any other matter pertaining to the Property. In
entering into this Agreement, Buyer has not relied on any representation, statement,
warranty, failure to disclose or other absence of disclosure by Seller, or anyone acting for
or on behalf of Seller unless specifically stated herein. Buyer is an experienced purchaser
of real estate for conservation purposes and Buyer's purchase of the Property is based upon
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its own inspection and examination thereof for Buyer's intended purposes, with full
knowledge of the physical and environmental aspects and conditions thereof that have been
disclosed by such inspection and Buyer assumes the risk that adverse physical or
environmental conditions may not have been revealed by its inspection.
(b) As used herein, the term "Natural Hazard Area" shall mean those areas
identified as natural hazards in the Natural Hazard Disclosure Act, California Government
Code Sections 8589.3, 8589.4, and 51183.5, and California Public Resources Code
Sections 2621.9, 2694, and 4136, and any successor statutes or laws (the "Act"). Seller
shall provide Buyer with a Natural Hazard Disclosure Statement("Disclosure Statement")
as provided in Section 2.3 below.Buyer acknowledges that such Disclosure Statement fully
and completely discharges Seller from its disclosure obligations under the Act, and,for the
purpose of this Agreement,the provisions of Civil Code Section 1103.4 regarding the non-
liability of Seller for errors or omission not within its personal knowledge shall be deemed
to apply and the preparer of the Disclosure Statement shall be deemed to be an expert
dealing within the scope of its expertise with respect to the examination and Disclosure
Statement unless Buyer objects within len (10) days following receipt of the Disclosure
Statement. Buyer acknowledges and agrees that nothing contained in the Disclosure
Statement shall release Buyer from its obligation to fully investigate the condition of the
Property, including, without limitation, whether the Property is located in any Natural
Hazard Area. Buyer further acknowledges and agrees that the matters set forth in the
Disclosure Statement may change on or prior to the Closing Date and that Seller has no
obligation to update, modify, or supplement the Disclosure Statement. Buyer shall be
solely responsible for preparing and delivering its own Natural Hazard Disclosure
Statement to subsequent prospective buyers of the Property.
1.8 Due Diligence. Buyer shall conduct a Phase I Environmental Site
Assessment (the "Phase I") of the Property through the engagement of a professional
consultant mutually satisfactory to Buyer and the City of Redlands on or before the date
that is forty-five (45) days from the Effective Date ("Contingency Date"). Prior to the
Contingency Date,Buyer shall also have the right to perform, in its sole discretion, its due
diligence review of the condition of Property and all other matters concerning the Property,
including without limitation, title status, economic, financial, and accounting matters
relating to or affecting the Property or its value, the suitability of the Property for Buyer's
intended purpose, and-the physical and environmental condition of the Property.• Buyer
shall also seek to obtain approval and ratification of this Agreement by Buyer's Board of
Directors during such time period. On or before the Contingency Date,or such date as the
Contingency Date may be extended pursuant to Section 10.5 below, Buyer shall deliver
written notice to Seller accepting the Property, or terminating this Agreement. If Buyer
fails to give such notice on or before the Contingency Date,Buyer shall be deemed to have
accepted the Property and proceed with this Agreement. In the event that Buyer terminates
this Agreement prior to the Contingency Date, or such date as the Contingency Date may
be extended: (i)there shall be no liability on the part of Buyer or Seller;(ii)this Agreement
shall otherwise become null and void and of no further force and effect; and (iii) Escrow
Holder shall cancel the Escrow immediately and return all money and/or documents to the
respective party depositing same.
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ARTICLE II
PURCHASE PRICE,TITLE AND ESCROW
2.1 Purchase Price and Deposit. (a) Buyer shall pay to the Seller the sum
of one million, five hundred thousand and no/100 Dollars ($1,500,000.00) ("Purchase
Price") for the Property. Within five (5) days of the Effective Date, Buyer shall deposit
the sum of One Thousand Dollars ($1,000.00)in Escrow(as defined in Section 2.3 below)
(the "Deposit"). The Deposit shall be refundable until 11:59 p.m. Pacific Standard Time
on the Contingency Date, and shall be applicable to the Purchase Price at the Close of
Escrow. The Purchase Price shall represent full and complete compensation for all rights
and interests being acquired herein by Buyer, including, without limitation, real property
and such other compensation, damages and benefits, excluding those identified in Section
3.5 of this Agreement.The Purchase Price,after application of the Deposit,shall be payable
to Seller, upon the Close of Escrow, in immediately available funds in accordance with the
provisions and requirements of this Agreement.
(b) The Parties agree that Buyer's right to terminate this Agreement on the
terms and conditions provided in Section 1.8, and Seller's right to extend the Close of
Escrow as provided in Section 9.4 below, constitute material consideration for this
Agreement.
2.2 Charitable Contribution. The Parties acknowledge that: (1) Buyer's
intended use of the Property for conservation , open space, and/or passive recreation
purposes, and Seller's desire to cooperate with Buyer in supporting such intent and
purpose, are a substantial factor in determining and agreeing upon the Purchase Price for
the Property, which may be below fair market value of the Property for legally permitted
commercial uses thereon; and (ii) sale of the Property to Buyer for Buyer's purposes may
limit or diminish Seller's ability or right to use adjoining real property owned by Seller
from that for which such adjoining real property could currently be used if this sale did not
occur(for example,the number of lots or parcels thereon that can be improved and sold by
Seller is reduced because of the reduced acreage now owned by Seller). In such event, the
Parties agree and acknowledge that to the extent that the Purchase Price is less than the fair
market value of the Property or to the extent that the fair market value of Seller's remaining
adjoining real property is diminished by Seller's conveyance of the Property to Buyer,
Seller shall be deemed to have made a charitable contribution to Buyer of such monetary
difference and Seller may elect to seek a charitable contribution status fa such difference
in fair market value or diminishment of use, at Seller's sole expense. In doing so, Seller
may obtain such"qualified" appraisal(s) as defined under the Internal Revenue Code and
shall be responsible for compliance with all laws and rules of the-IRS related to claiming
the contribution. Buyer makes no representation to Seller as to the tax consequences of
such an election. Seller will obtain independent tax counsel and be solely responsible for
compliance with the gift value substantiation-requirements-of the Internal Revenue Code
and California Franchise Tax Board. At Seller's option and after Buyer purchases the
Property, Buyer agrees to promptly complete Part IV (Donee Acknowledgement) of IRS
Form 8233 (Non-cash Charitable Contributions) upon receipt of a completed Form 8283
from Seller (Part III, Declaration of Appraiser, may be completed upon return of Form
from Buyer).
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2.3 Escrow.Upon execution of this Agreement by the Parties,Buyer shall open
an escrow("Escrow")with Chicago Title, 560 East Hospitality Lane, San Bernardino, CA
92408 for the purpose of consummating this Agreement. The Parties shall execute and
deliver to Escrow Holder such escrow instructions prepared by Escrow Holder as may be
required to complete 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. Further, Escrow Holder
shall order a natural hazard disclosure statement for the Property, as more specifically
described in Section 1.7(b)above,to be delivered to Seller and Buyer within ten(10)days.
2.4 Conduct of Escrow. Escrow Holder is hereby authorized and instructed to
conduct the Escrow in accordance with this Agreement, applicable law, custom and
practice of the community in which Escrow Holder is located, including any reporting
requirements of the State of California and the Internal Revenue Service.
2.5 Condition of Title. Seller shall convey title to the Property to Buyer as
evidenced by a CLTA Owner's standard form of Title Insurance (the"Title Policy")in an
amount equal to the Purchase Price issued by Chicago Title, 560 East Hospitality Lane,
San Bernardino, CA 92408 (the"Title Company"). The Title Policy shall show title to the
Property vested in the Buyer free and clear of all monetary liens,encumbrances,delinquent
governmental assessments or taxes, and recorded or unrecorded leases. Any exceptions to
title representing monetary liens or encumbrances are hereby disapproved by Buyer and
Escrow Holder is hereby authorized and instructed to cause the reconveyance of any such
monetary exceptions at or prior to the Close of Escrow. if a supplemental report is issued
prior to the Close of Escrow which shows new matters, Buyer reserves the right to require
any new matters removed from the Title Policy. Seller agrees to assist with the removal of
the new matters.
2.6 Reports, Studies and Agreements. Within ten (10) calendar days of the
Effective Date, Seller shall provide Buyer with copies of any reports, studies, maps or
agreements affecting the Property, including but not limited to geotechnical and soils
reports, surveys, environmental reports, and other reports, studies, maps or agreements
affecting the Property. Seller did not prepare such materials or conduct any investigation -
pertaining to such materials, and such materials are not necessarily current and have not
been updated. Therefore, Seller makes no warranty or representation regarding the truth,
accuracy,scope or completeness of any such materials and Buyer agrees to waive any claim
or damage against Seller related to Buyer's review,use or reliance upon such materials.
ARTICLE III
CLOSING
3.1 Closing. Subject to the satisfaction of any contingencies described herein,
Escrow Holder shall close this Escrow by recording the Grant Deed attached hereto as
Exhibit "D," and by disbursing the funds and documents in accordance with this
Agreement.
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3.2 Closing Date. Subject to any rights to extend Close of Escrow herein,
Escrow may close on or before the later of the date that is thirty (30) days following the
Contingency Date("Close of Escrow"), or upon governmental approval of the Property or
any other action validating the Property as a separate Iegal parcel. If the Escrow is not in a
condition to close by the Close or Escrow and has not been extended hereunder,any Party
who is not then in default,upon notice in writing to the Escrow Holder and the other Party,
may demand the return of their documents and/or money and cancellation of the Escrow.
Unless objected to in writing within ten (10) days from the receipt of the notice of
cancellation, the Escrow will automatically be canceled. If no demand for cancellation is
made,then Escrow will close as soon as possible.
3.3 Closing Documents.
3.3.1 Seller, prior to the Close of Escrow, shall deliver to Escrow Holder
each of the following items, the delivery of each of which shall be a condition to
the performance by Buyer of its obligations under this Agreement:
(a) The Grant Deed,duly executed and acknowledged;and
(b) A Certificate of Non-Foreign Status required under Section
1445(b)of the Internal Revenue Code.
(c) A Certificate (or application for exemption, if applicable)
pursuant to California Revenue and Taxation Code Section 18662
pertaining to Seller's status as a resident of California or as having a
corporate permanent place of business in California.
(d) All additional documents, instruments and sums which may be
reasonably necessary for the Close of Escrow, including the
amendment to the Stipulated Judgment, and the other documents
described in Section 1.2(c)above, and to consummate the sale of the
Property in accordance with the terms of this Agreement.
3.3.2 Buyer,prior to the Close of Escrow, shall deliver to Escrow
Holder each of the following items, the delivery of each of which
shall be a condition to the performance by Seller of its obligations
under this Agreement:
(a) The Purchase Price; and
(b) All additional documents and instruments which may be
reasonably necessary for the Close of Escrow, including the
documents described in Section 1.2(c) above, and to consummate the
sale of the Property in accordance with the terms of this Agreement.
3.4 Mortgages and Deeds of Trust. Any and all monies payable under this
Agreement, up to and including the total amount of unpaid principal and interest on any
note secured by a mortgage or deed of trust,or other security instrument if any,shall,upon
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demand, be made payable to the mortgagee or beneficiary entitled thereunder; and such
mortgagee or beneficiary shall be required to furnish Buyer with good and sufficient receipt
showing said monies were credited against the indebtedness secured by said mortgage,
deed of trust, or other security instrument. Escrow Holder shall notify the Title Company
of such payments and secure and cause any necessary full or partial conveyances to be
prepared, signed and recorded as required by the title company to eliminate any
encumbrances or exceptions from the Title Policy issued pursuant to this Agreement.
3.5 Taxes, Title, and Escrow Costs. Buyer and Seller shall each pay one half
of all costs for the Title Policy, all recording costs incurred herein, all reconveyance fees,
trustees fees, or forwarding fees, and any prepayment charges for any full or partial
reconveyance or full or partial release of any mortgage or deed of trust, and any escrow
fees. Seller shall pay full costs for all taxes for periods prior to Close of Escrow.
3.6 Brokerage Commissions. The Parties acknowledge that neither Party has
been represented by a real estate broker, with respect to this transaction. Both Parties
hereby agree that neither Party shall owe any real estate brokerage commissions or finder's
fee to the other Party, provided that each Party shall indemnify the other for any and all
claims for brokerage commissions or finder's fees from any third party that may arise out
of the acts of that Party.
3.7 Proration of Taxes. Real property taxes, special taxes, and assessments
shall be prorated as of the Close of Escrow based upon the latest available tax information.
Seller shall be responsible for all special taxes and assessments accrued against the
Property to and including the day prior to the Close of Escrow based upon payment of such
assessments in installments to the greatest extent permitted and Buyer shall be responsible
for all such special taxes and assessments accrued against the Property from and after the
day prior to the Close of Escrow.
ARTICLE IV
RIGHT OF ENTRY AND DAMAGE TO PROPERTY
4.1 Right of Entry. (a) After Seller's execution of this Agreement by the
Parties, , Seller grants to Buyer, its agents, employees or nominees, the right to enter into
and upon the Property for the purpose of conducting the Phase I , soil testing,
environmental and engineering studies, and such further engineering, grading,
archeological, geological or survey work as may be required by Buyer. Buyer shall give
Seller reasonable notice of such entry, and shall not unreasonably interfere with any
occupant's use of the Property or any of Seller's other operations on the Property. Buyer
shall keep the Property free and clear of any liens or encumbrances that may arise out of
Buyer's inspection of and activities on the Property. All costs, expenses, liabilities or
charges incurred in or related to the performance of any and all such studies and work on
the Property shall be at the sole cost and expense of, and shall be paid by, Buyer. . .
(b) Buyer's right of entry provided for in subsection (a) above shall be subject
to Buyer's obligation to provide to Seller reasonable proof of liability insurance covering
such entry onto the Property in an amount not less than $1,000,000.00 with Seller being
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named as an additional insured. Buyer shall use care and consideration in connection with
any of its inspections and no destructive testing shall be conducted without Seller's written
consent. The cost of any inspections,investigations,tests and studies shall be borne solely
by Buyer.
(c) Buyer shall indemnify and hold Seller and the Property harmless from any
and all costs, expenses(including attorneys'fees),liabilities,liens and damages arising out
of or resulting from the actions of Buyer, its agents, contractors and/or subcontractors in
connection with such entry and/or activities upon the Property, including any use, storage,
transportation,or disposal of and Hazardous Substance(as defined in Section 10.4 below)
and such obligation shall survive the termination of this Agreement.
4.2 Material Change, Destruction or Damage. Seller warrants that Seller
shall not cause any Material Change in the condition of the Property prior to the Close of
Escrow unless such Material Change has been approved in writing by Buyer. The closing
of this Escrow is contingent upon the fact that no Material Change shall have occurred with
respect to the Property that has not been approved in-writing by Buyer. For purposes of this
Agreement,a"Material Change"shall be a change in the status of the use, title, occupancy,
or condition of the Property that occurs subsequent to the Effective Date of this Agreement.
In the event there is a Material Change to the Property after the Effective Date,Buyer may
elect to(i)pursue any and all remedies available at law or in equity in the event the Material
Change caused by Seller is a default by Seller hereunder, or(ii) terminate the Agreement
and receive a refund of any earnest money.
ARTICLE V
WAIVER AND RELEASE
5.1 Acknowledgment of Full Benefits. By execution of this Agreement,
Seller, on behalf of itself wid its successors and assigns, hereby acknowledges that this
Agreement provides full payment for the acquisition of the Property by Buyer, and Seller
hereby expressly and unconditionally waives any and all claims for damages or any other
compensation or benefits, other than as already expressly provided for in this Agreement.
5.2 Acknowledgment of Just Compensation. Subject to and including
Seller's rights pursuant to Sections 2.1 and 2.2,the parties acknowledge and agree that the
consideration provided to Seller hereunder shall be deemed to be"Just Compensation"for
the Property. Seller,on behalf of itself and its successors and assigns,hereby fully releases
Buyer, 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 Buyer's efforts to
acquire the Property as evidenced by or culminating in this Agreement, and any
preliminary steps thereto. Seller hereby waives the right to further and greater
compensation and to have the adequacy of compensation determined in a court of law or
equity,by a judge or a jury. Seller understands and knowingly agrees that this waiver shall
extend to constitutional claims of whatever kind or nature that may be brought under the
California and United States Constitutions and the federal civil rights statutes including,
without limitation, claims arising under 42 U.S.C. Section 1983.
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5,3 Waivers. Upon the Close of Escrow Seller waives the right to further and
greater compensation and to have the adequacy of compensation determined in a
court of law or equity, by a judge or a jury. Seller understands and knowingly agrees
that this waiver shall extend to constitutional claims of whatever kind or nature that
may be brought under the California and United States Constitutions and the federal
civil rights statutes including, without limitation, claims arising under 42 U,S.C.,
Section 1983. Upon the Close of Escrow Seller further waives the right to raise
affirmative defenses and to attack by way of answer, complaint or collaterally,
Buyer's right to acquire the property for public uses and purposes, and to challenge
the findings made in any resolution of necessity.
5,4 Enforcement,
5A.1 BUYER'S DEFAULT. IF BUYER FAILS TO COMPLETE THE
PURCHASE OF THE PROPERTY AS PROVIDED IN THIS AGREEMENT BY
REASON OF ANY DEFAULT OF BUYER, SELLER'S SOLE REMEDY, OTHER
THAN ENFORCEMENT OF BUYER'S OBLIGATIONS PURSUANT TO
SECTION 4.1(b), (c), SHALL BE TO TE I ATE-THIS AGREEMENT AND
RECEIVE THE DEPOSIT AS LIQUIDATED DAMAGES AND SHALL BE
RELEASED FROM ITS OBLIGATION TO SELL THE PROPERTY TO BUYER,
BUYER AND SELLER AGREE THAT IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER
MAY SUFFER Di THE EVENT BUYER DEFAULTS HEREUNDER AND FAILS
TO COMPLETE THE PURCHASE OF THE PROPERTY AS HJ .EIN PROVIDED,
BUYER AND SELLER THEREFORE AGREE THAT A REASONABLE PRESENT
ESTIMATE OF THE NET DETRIMENT THAT SELLER WOULD SUFFER. IN
THE EVENT OF BUYER'S DEFAULT OR BREACH HEREUNDER IS AN
AMOUNT OF MONEY EQUAL TO THE DEPOSIT, WHICH SHALL BE THE
FULL, AGREED AND LIQUIDATED DAMAGES. THE PARTIES
ACKNOWLEDGE THAT THE PAYMENT OF SUCH 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 SEG- 0- . 1, 1676 AND „
44,41
sr' IP
S R' TIALS B INITIALS
5.42 SEL ER'S DEFAULT. IN ITIE EVENT THAT SELLER SHALL
FAIL TO PERFO ' SELLER'S OBLIGATIONS HEREUNDER, BUYER SHALL
PAVE THE OPTION TO' (I) SEEK SPECIFIC PERFOR NCE AND/OR
DAMAGES FOR SELLER'S BREACH, (II) EXTEND THE CLOSING FOR SUCH
TIME AS BUYER CHOOSES TO ALLOW SELLER TO REMEDY SUCH
DEFAULT, (III) WAIVE SUCH DEFAULT IN WRITING AND PROCEED TO
CLOSING,OR(IV)TE* INATE THIS AGREEMENT BY WRITTEN NOTICE TO
SELLER AND ESCROW HOLDER, IN THE EVENT OF TE* .INATION OF TI-IE
AGREEMENT PURSUANT TO THIS SECTION 5,52 OR OTHERWISE AS A
RESULT OF SELLER'S DEFAULT, THE DEPOSIT SHALL BE REMITTED TO
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BUYER. UPON SUCH TERMINATION AND THE RETURN OF THE DEPOSIT,
THE PARTIES SHALL BE DISCHARGED FROM ANY FURTHER
OBLIGATIONS AND LIABILITIES HEREUNDER EXCEPT AS SURVIVE SUCH
TERMINATION,EXCEPT THAT BUYER SHALL BE ENTITLED TO DAMAGES
ARISING FROM SELLER'S DEFAULT AND THE RESULTING TERMINATION
OF THIS AGREEMENT IN AN AMOUNT NOT TO EXCEED TWENTY
THOUSAND DOLLARS ($20,000.00) TO REIMBURSE, OR PARTIALLY
REIMBURSE, BUYER FOR ITS OUT-OF-POCKET PROPERTY
INVESTIGATION AND DUE DILIGENCE EXPENSES RELATED TO THIS
AGREEMENT. BUYER'S RIGHT TO SEEK SPECIFIC PERFORMANCE OF
THIS AGREEMENT UPON SELLER'S DEFAULT SHALL CEASE IF SUCH
ACTION HAS NOT BEEN FILED IN AN APPROPRIATE COURT WITHIN SIX
(6)MONTHS AFTER THE INTENDED CLOSING DATE UNLESS CHANGED BY
MUTUAL WRITTEN AG' ► .%"' BUYER AND SELLER.
IALS B ITIALS
These acknowledgments,waivers and releases shall survive the Close of Escrow.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Seller Representations, Warranties and Covenants. Seller hereby
represents, warrants and covenants to'Buyer as of the Effective Date, and upon the Close
of Escrow, as follows, all of which shall survive the Close of Escrow:
6.1.1 Authority: Seller is the owner of the Property and has the full right,
power and authority to sell, convey and transfer the Property to Buyer as provided
herein, and to perform Seller's obligations hereunder. The person signing this
Agreement and any documents and instruments in connection herewith on behalf
of Seller has full power and authority to do so.
6.1.2 Bankruptcy: There are no attachments, assignments for the benefit
of creditors, receiverships, conservatorships or voluntary or involuntary
proceedings in bankruptcy or any other debtor relief actions contemplated by Seller
or filed by Seller, or to the best of Seller's knowledge, pending in any current
judicial or administrative proceeding against Seiler. Further, Seller has no notice
or knowledge that any tenant of the Property is the subject of a bankruptcy
proceeding.
6.1.3 Other Agreements: Seller has not entered into any other written
contracts or agreements for the sale or transfer of any portion of the Property.
6.1.4 Condition of Property: Seller warrants and covenants that through
the date possession is made available to Buyer, Seller shall not cause a Material
Change to the condition of the Property prior to Close of Escrow.
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6.1.5 Violation of Codes: Seller warrants that Seller has no knowledge of
any notice of any violations of city, county, state, federal, building, zoning, fire,
health codes or ordinances, or other governmental regulations filed or issued
against the Property. Seller further warrants that it has no knowledge of any aspect
or condition of the'Property which violates applicable laws, rules, regulations,
codes, or covenants, conditions or restrictions, or of any unfulfilled order or
directive of any applicable governmental agency, that any work, investigation,
remediation, repair, maintenance or improvement is to be performed on the
Property.
6.1.6 Maintenance of the Property: Except as provided in other provisions
hereof dealing with destruction, damage or loss, Seller shall not cause Material
Change to the condition of the Property prior to Close of Escrow.
6.1.7 Possessory Rights: To the best knowledge of the Seller,no one has
any right to possession of the Property superior to the right of the Buyer and Seller
will not grant any such right prior to Close of Escrow_
6.1.8 Actions: To the best of Seller's knowledge, no actions suits, or
proceedings are pending or threatened before any governmental depat anent,
commission, board, bureau,agency,court,or instrumentality that would materially
adversely affect the Property.
6.1.9 Notice of Changes: Seller shall promptly notify Buyer in writing of
any Material Change affecting the Property that becomes known to Seller prior to
the Close of Escrow.
6.1.10 Not a Foreign Person. Seller is not, and never has been, a "foreign
person" within the meaning of Sections 1445(f)(3) and 7701(a)(30) of the Internal
Revenue Code of 1954, as amended, or California Revenue and Taxation Code
Section 18662, and Seller will furnish to Buyer, prior to the Close of Escrow, an
affidavit in form satisfactory to Buyer confirming the same.
6.1.11 Seller's Knowledge. For purposes of this Agreement, any
representation or warranty made"to the best of Seller's knowledge" shall mean the
actual knowledge of Frank J. Mistretta, Jr., without any duty of inquiry or
investigation beyond actual knowledge. Buyer and Seller specifically agree that
the above-named person shall have no personal liability for any inaccuracy,breach
or failure of such warranties, but Buyer shall retain its rights against Seller under
this Agreement for any such inaccuracy,breach or failure.
The material truth and accuracy of the foregoing representations and warranties shall be a
condition of Buyer's obligations hereunder. At least five (5) calendar days prior to the
Close of Escrow, Seller shall notify Buyer, in writing,of any facts or circumstances which
are contrary to the foregoing representations and warranties.
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ARTICLE VII
BUYER'S REPRESENTATIONS AND WARRANTIES
7.1 Buyer's Representations and Warranties. Buyer hereby represents,
warrants and covenants to Seller as of the Effective Date, and upon the Close of Escrow,
as follows, all of which shall survive the Close of Escrow:
7.1.1 Authority: Buyer is a non-profit conservation entity 501(c)(3) and
has the full power and authority to enter into and carry out the agreements contained
in,and the transactions contemplated by this Agreement. The persons signing this
Agreement and any documents and instruments in connection herewith on behalf
of Buyer have full power and authority to do so.
7.1.2 Bankruptcy: There are no attachments, assignments for the benefit
of creditors, receiverships, conservatorships or voluntary or involuntary
proceedings in bankruptcy or any other debtor relief actions contemplated by Buyer
or filed by Buyer, or to the best of Buyer's knowledge, pending in any current
judicial or administrative proceeding against Buyer.
The material truth and accuracy of the foregoing representations and warranties
shall be a condition of Seller's obligations hereunder. At least five(5) calendar days prior
to the Close of Escrow, Buyer shall notify Seller of any facts or circumstances which are
contrary to the foregoing representations and warranties.
ARTICLE VIII
DEFAULT AND TERMINATION
8.1 Default. A Party shall be deemed in default hereunder if it fails to meet,
comply with, or perform any covenant,agreement,or obligation on its part required within
the time limits and in the manner required in this Agreement for_any reason other than a
default by the other Party hereunder or termination of this Agreement prior to Close of
Escrow.
8.2 Opportunity to Cure. No act, failure to act, event or circumstance which
might be deemed to be a default by either Party shall be deemed to be a default under any
of the provisions of this Agreement, unless and until, notice thereof is first given by the
non-defaulting Party to the Party alleged to be in default and said Party fails to cure the
alleged default within fifteen (15) calendar days in the case of a non-monetary default, or
five (5) calendar days in the case of a monetary default.
8.3 Termination upon Default. After notice and an opportunity to cure,if the
defaulting Party fails to cure the default, the non-defaulting Party may terminate this
Agreement by giving written notice to the defaulting Party and the Escrow Holder. Upon
receipt of the notice to terminate,the Escrow Holder shall immediately cancel the Escrow
and return all money and/or documents to the respective Party depositing same.
8.4 Buyer's Termination. If either Party exercises its rights under this
Agreement to terminate this Agreement,such Party shall provide written notice to the other
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Party and Escrow Holder. Upon receipt of said notice, Escrow Holder shall immediately
cancel the Escrow and return all money and/or documents to the respective Party depositing
same.
ARTICLE IX
MUTUAL AGREEMENTS
9.1 Studies. Seller hereby authorizes Buyer,its agents,employees,contractors
and representatives,at Buyers sole cost and expense, to conduct the Phase I as well as any
and all other environmental studies as Buyer may reasonably require. In connection with
such studies, Seller hereby grants to Buyer, its agents, employees, contractors and
representatives, a right of entry as more specifically set forth in Section 4.1 above.
9.2 Soil Inspection. Subject to the requirements of Section 4.1 above, at any
time prior to the Contingency Date, Buyer shall have the right to obtain a soil report .
concerning the Property. Said report shall be obtained at Buyer's discretion and expense.
9.3 Other Agreements Affecting Property. Seller and Buyer have entered
into this Agreement upon the belief that there are no other agreements, which will affect
the Property beyond the Close of Escrow. If Seller determines that such agreements or
exceptions exist which are not revealed herein, Seller shall provide Buyer with a copy
immediately upon Seller's learning of its existence and Buyer may thereafter,prior to the
Close of Escrow, terminate this Agreement in Buyer's sole discretion. After Close of
Escrow,Seller shall be liable to Buyer for any damage or expense including attorney's fees
and costs incurred by Buyer by reason of any agreement that is not disclosed to Buyer prior
to Close of Escrow.
9.4 Seller's Right to Extend Closing. Seller may unilaterally extend the Close
of Escrow from time to time for a period of up to sixty(60) days in each event. Each/any
such election to extend shall be accomplished by Seller providing written notice to Buyer
and Escrow Holder not less than five(5)days prior to the then-scheduled Close of Escrow.
Seller may exercise such extension right as often as Seller wishes,provided that in no event
shall the Close of Escrow be extended beyond January 31, 2015.
ARTICLE X
HAZARDOUS SUBSTANCES
10.1 Hazardous Substances Disclosure. The Property is subject to a disclosure
as designated under Section 25359.7 of the Health and Safety Code, whereby Seller is
required to disclose if there are any hazardous substances, as defined in Health and Safety
Code Section 25316, et seq.,located on or beneath the property or adjacent thereto. It is
understood and agreed between Buyer and Seller that closing of this Escrow is subject to
and contingent upon receipt and approval of a written disclosure by Seller. Said review
and approval will not be unreasonably withheld or delayed by Seller.
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10.2 Hazardous Substances. Seller represents and warrants that it does not
have actual knowledge of the existence or prior existence of any hazardous substances on
the Property. In addition,Seller has no actual knowledge of the existence or prior existence
of any above or below ground storage tank or tanks on the Property.
10.3 Hazardous Substance Conditions Report. Buyer shall have the right to
obtain a Hazardous Substance Conditions report(s) or other environmental studies
concerning the Property and relevant adjoining properties. Such report(s)will be obtained
at Buyer's discretion and expense. If Buyer elects to secure such reports, Buyer shall use
reasonable diligence to obtain such a report on a timely basis. If Seller has such a report,
they shall provide Buyer with a copy thereof If Seller has knowledge of any hazardous
substance condition report that was prepared by any other person or entity including any
governmental agency, Seller shall inform Buyer of the existence of such a report and its
location within fifteen(15) calendar days from the Effective Date.
10.4 Hazardous Substances Defined. "Hazardous Substances"for purposes of
this Agreement shall mean and refer to any (a) hazardous or toxic wastes, materials or
substances or chemicals and other pollutants or contaminants which are or become
regulated by applicable local, state, regional and/or federal orders, ordinances, statutes,
rules, regulations (as interpreted by judicial and administrative decisions) and laws, (b)
asbestos, asbestos-containing materials or urea formaldehyde, (c) polychlorinated
biphenyls, (d) flammable, explosive, corrosive or radioactive materials, (e) medical waste
and biochemical, (f) gasoline, diesel,petroleum or petroleum by-products, (g) lead-based
paint or (h) any substance set forth in Health and Safety Code Section 25316, et seq., or
whose nature and/or quality of existence, use, manufacture or effect, render it subject to
federal, state or local regulation, investigation, remediation or removal as potentially
injurious to public health or welfare. A"Hazardous Substances Condition" for purposes
of this Agreement is defined as the existence on, under or relevantly adjacent to the
Property or a Hazardous Substance that would or could require remediation and/or removal
under applicable federal,state or local law.
10.5 Hazardous Substances During Due Diligence Inspection Period. If
conditions suggesting the presence of Hazardous Substances are discovered before the
Contingency Date,Buyer may,within twenty(20)days of the discovery of such conditions,
perform further tests to determine whether such Hazardous Substances constitute
contamination and the Contingency7Date shall be extended by thirty(30) days.
10.6 Hazardous Substances Discovered After Contingency Date. In the event
that conditions indicating the presence of Hazardous Substances (other than those
discovered prior to the Contingency Date) are discovered by any assignee of Buyer
following the Contingency Date but before Close of Escrow, such assignee may terminate
this Agreement by written notice to Seller and Escrow Holder. In the event that an assignee
of Buyer terminates this Agreement pursuant to this Sectionl 0.6: (i) there shall be no
liability on the part of such assignee or Seller; (ii)this Agreement shall otherwise become
null and void and of no further force and effect; and (iii) Escrow Holder shall cancel the
Escrow immediately and return all money and/or documents to the respective Party
depositing same.
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ARTICLE XI
MISCELLANEOUS
11.1 Exhibits. All Exhibits attached hereto are a part of this Agreement for all
purposes and are incorporated herein.
11.2 Assignment. Seller shall not assign this Agreement nor any rights under
this Agreement without the prior written consent of the Buyer,except that either Seller may
assign all or a portion of its respective interest in the Property to the other Seller without
Buyer's consent, in which event the obligations of the assigning Seller hereunder shall
. nonetheless be binding upon the•assignee Seller. Buyer shall hake the right to assign this
Agreement and any rights hereunder at any time, provided that Buyer shall pay any and
all costs and expenses arising out of Buyer's assignment and Seller shall not incur any
additional expenses or be obligated to provide any additional environmental reports
affecting the Property. Buyer shall only assign this Agreement to a public agency or a non-
profit organization for the overall long term purposes of conservation and recreation.
11.3 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of Seller and Buyer, and their respective successors, heirs, agents and permitted
assigns. Except as otherwise expressly provided herein,the execution and delivery of this
Agreement shall not be deemed to confer any rights upon,nor obligate any of the Parties,
to any person or entity other than the Parties.
11.4 Captions. The captions, headings, and arrangements used in this
Agreement are for convenience only and do not in any way affect,limit,amplify,or modify
the terms and provisions hereof.
11.5 Number and Gender of Words. Whenever herein the singular number is
used, the same shall include the plural where appropriate, and words of any gender shall
include each other gender where appropriate.
11.6 Governing Law and Venue. The laws of the State of California shall
govern the validity, construction, enforcement, and interpretation of this Agreement. All
claims, disputes and other matters in question arising out of or relating to this Agreement,
or the breach thereof, shall be decided by proceedings instituted and litigated in the state
court in the County of San Bernardino, and theP-parties hereby waive all provisions of
law providing for a change of venue in such proceedings to any other county.
11.7 Amendments. This Agreement may be amended or supplemented only by
written documents signed by the Parties.
11.8 Notices. All notices, terminations, waivers and other conununications
hereunder shall be in writing and shall be delivered personally,by facsimile or shall be sent
by registered or certified United States mail or a nationally recognized, overnight courier
service,postage prepaid, and addressed as follows:
15
1:\ca\djm\Agreements\Purchase and Sale Agmt--?Mistretta-Redlands Conscry—v 14—Updated 6.17.14.docx
Buyer Seller
The.Redlands ConsultancyMistretta Canyon Partners,LLC
Mistretta Family Properties, LLC
PO Box 855 Attn: Frank J. Mistretta,Jr.
Redlands, CA 92373 846 West Foothill Blvd.
Attn: Sherli Leonard Suite G
Upland, CA 91786-3770
Any notice in accordance herewith shall be deemed received when delivery is received or
refused, as the case may be. Notices may be given by telephone facsimile transmission,
provided that an original of said transmission shall be delivered to the addressee by a
nationally recognized overnight delivery service on the business day following such
transmission. Telephone facsimiles shall be deemed delivered on the date of such
transmission.
11.9 Entirety. This Agreement embodies the entire agreement between the
Parties and supersedes all prior written or oral agreements and understandings, if any,
between them concerning the subject matter contained herein.There are no representations,
agreements,arrangements, or understandings, oral or written,between the P-parties hereto,
relating to the subject matter contained in this Agreement which are not fully expressed
herein.
11.10 Severability. If any of the provisions of this Agreement, or its application
to any Party or circumstance, is held to be illegal, invalid, or unenforceable under present
or future laws, such provision shall be fully severable. This Agreement shall be construed
and enforced as if such illegal, invalid, or unenforceable provision had never comprised a
part of this Agreement and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal,invalid, or unenforceable provision
or by its severance from this Agreement.In lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this Agreement, a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be possible to
make such provision legal,valid, and enforceable.
11.11 Further Acts. In addition to the acts and deeds recited herein and
contemplated and performed, executed and/or delivered by Seller and Buyer, Seller and
Buyer agree to perform, execute and/or deliver or cause to be performed, executed and/or
delivered at the Close of Escrow or after the Close of Escrow any and all such further acts,
deeds, and assurances as may be necessary to consummate the transactions contemplated
herein.
11.12 Construction. No provision of this Agreement shall be construed in favor
of,or against,any particular Party by-reason of any presumption with respect to the drafting
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of this Agreement; both Parties, having the opportunity to consult legal counsel, having
fully participated in the negotiation of this Agreement.
11.13 Time of the Essence. It is expressly agreed by the Parties that time is of
the essence with respect to each and every provision of this Agreement.
11.14 Attorneys' Fees. In the event that any Party institutes an action or
proceeding to enforce any term of this Agreement or to recover any damages for and on
account of the breach of any term or condition of this Agreement, it is mutually agreed that
the prevailing Party(which shall be the Party receiving the more significant relief)in such
action shall recover all costs thereof, including reasonable attorneys' fees (which shall
include fees for use of in-house counsel by a Party) and costs incurred, in addition to any
other damages or relief awarded. This Section 11.14 shall survive any termination of this
Agreement.
11.15 Waiver of Covenants,Conditions or Remedies. The waiver by one Party
of the performance of any covenant, condition or promise, er of the time for performing
any act under this Agreement shall not invalidate this Agreement nor shall it be considered
a waiver by such Party of any other covenant, condition or promise, or of the time for
performing any other act required under this Agreement. The exercise of any remedy
provided in this Agreement shall not be a waiver of any other remedy provided by law, and
the provisions of this Agreement for any remedy shall not exclude any other remedies
unless they are expressly excluded.
11.16 Survival of Warranties. All of the warranties,representations, covenants
and agreements of the Parties contained in this Agreement shall survive the Close of
Escrow.
11.17 Counterparts; Signatures. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which, together, shall
constitute one and the same instrument. Copies of signatures sent by fax or email shall be
deemed sufficient and binding on the Party sending such.
ARTICLE XII
1031 EXCHANGE
12. Section 1031 Exchange. If either Party, or both, shall elect by written
notice to the other Party,both Parties agree to cooperate with each other in order to
facilitate utilizing the purchase/conveyance of the Property as a part of an exchange of
real property qualifying for special tax treatment under Internal Revenue Code Section
1031, subject to and upon the following terms and conditions:
(a) Such exchange shall not delay the date of the Close of Escrow provided
for herein. Without limiting the generality of the foregoing,any obligation of
cooperation is contingent upon the electing Party providing sufficient information,
advance notice and documentation on order to enable such exchange transaction to be
completed at the Close of Escrow.
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(b) No cooperating Party shall have any obligation to acquire any property to
be exchanged for the Property.
(c) No cooperating Party shall be obligated to incur any obligation(absolute
or contingent) in connection with any such exchange other than the obligations existing
under this Agreement.
(d) No cooperating Party shall be caused to incur any cost, liability or expense
which it would not incur under this Agreement in the absence of the inclusion herein of
this Section. Without limiting the generality of the foregoing,any attorneys' fees
incurred by a cooperating Party as a result of the provisions of this Section shall be paid
by the requesting Party.
(e) Nothing contained in this Section shall be construed as relieving a
requesting Party of its obligations and agreements hereunder in the event such Party
elects not to effect, or for any reason whatsoever other than the cooperating Party's
default hereunder, is unable to effect, an exchange.
(1) No cooperating Party shall have any liability with respect to any taxes the
requesting Party may pay or incur as a result of any exchange.
The requesting Party hereby agrees to indemnify, defend and hold the cooperating
Party harmless from any and all claims, actions, demands, obligations, losses, costs,
expenses or liabilities, including,but not limited to attorneys`fees incurred as a result of
the provisions of this Section.
/
IN WITNESS WHERE/OF, duly authorized representatives of the Parties have
executed this Agreement as of the Effective Date.
SELLER:
Mistretta Canyon Partners LLC
a California Ern' im'•Ifro � y.
By: ,0011'
Fr,:,: 'Mistretta, Jr., . ager
Mistretta Famil °roperties,LLC
a California limited ' �•� •,.•-•
By:
Mi - a,Jr.,Manager
18
l:\ca\djm\Agreements\Purchase and Sale Agmt—Mistretta-Rediands Conserv—v14—Updatcd 6.17.14.docx
The Redlands Conservancy
By: e w
S
hili Leon, -d
Its: ' ,
Executive Dl rector
I:1catdntAgreexneaitvil'utichaseand Sale, g t--Mistretta-Redl ddsConserv'aI4--Updated 6.17.1h.docx
EXHIBIT "A"
Legal Description
[ATTACHED]
1.•ca t1it lgsccunctli-;Pwc.11tsc;mil S;11‘: .\ Mitto i Cottscrv—v11--Uptlatc4.1 6.1 7 11 doo;
EXHIBIT"A"
THAT PORTION OF THE NORTHWEST ONE-QUARTER OF SECTION 8,TOWNSHIP 2 SOUTH, RANGE
2 WEST,SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF REDLANDS, COUNTY OF SAN
BERNARDINO,STATE OF CALIFORNIA,ACCORDING TO THE OFFICIAL GOVERNMENT SURVEY,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE WEST ONE-QUARTER CORNER OF SAID SECTION 8,SAID POINT BEING THE
SOUTHEAST CORNER OF TRACT NO. 15469 RECORDED IN BOOK 306 OF MAPS, PAGES 62
THROUGH 66 INCLUSIVE, OFFICIAL RECORDS OF SAID COUNTY;THENCE NORTH 00°18'55"WEST,
574.90 FEET ALONG THE WEST LINE OF THE NORTHWEST ONE-QUARTER OF SAID SECTION 8
AND THE EAST LINE OF SAID TRACT NO.15469;THENCE NORTH 78°02'24"EAST, 1430.00 FEET;
-THENCE NORTH 00°18'55"WEST,555.03 FEET PARALLEL WITH THE WEST LINE OF THE
NORTHWEST ONE-QUARTER OF SAID SECTION 8;THENCE NORTH 85°41'00"EAST, 1285.72 FEET
TO THE EAST LINE OF THE NORTHWEST ONE-QUARTER OF SAID SECTION 8; THENCE SOUTH
00°55'23"WEST, 1322.90 FEET ALONG THE EAST LINE OF THE NORTHWEST ONE-QUARTER OF
SAID SECTION 8 TO THE SOUTHEAST CORNER THEREOF, SAID POINT BEING THE CENTER ONE-
QUARTER CORNER OF SAID SECTION 8;THENCE SOUTH 85°41'00"WEST, 2661.06 FEET ALONG
THE SOUTH LINE OF THE NORTHWEST ONE-QUARTER OF SAID SECTION 8 TO THE POINT OF
BEGINNING.
AREA:60.00 ACRES
PREPARED BY: ,'a LAND G,p
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WHITHER
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Ib1ARK S.WHITMER, L.S.5535
L.S.No.5535 7:tr
Expires:9-S0-1
DATE: 06-24-2014
EXHIBIT "B"
Map of Property
[ATTACHED]
i:\ca\djm\Agreements\Purchase and Sale ADM.--Mistretta-Redlands Conserv--v 14--Updated 6.17.14.docN
EXHIBIT "B"
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L.S.No.5535 A` IN
DATE: 06-23-2014 S Expires:9-30-14 `Q, SCALE:1 .-500
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EXHIBIT "C"
Form of Amendment To Stipulated Judgment
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1 CITY OF REDLANDS
DANIEL J.McHUGH (SBN. 112197) EXEMPT FROM FEES GOVERNMENT CODE§6103
2 35 Cajon Street, Suite 200
Redlands, CA_ 92373
3 Telephone: (909) 798-7585
Facsimile: (909) 798-7503
4
DISENHOUSE&IVICEVIC
5 BRUCE DISENHOUSE(BAR NO. 078760)
3890 11`h Street, Suite 217
6 Riverside, CA. 92501
Telephone: (951) 777-2439
7 Facsimile: (951) 777-2866
8 Attorneys for Respondents
City of Redlands, a municipal corporation,
9 and City Council of the City of Redlands
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
COUNTY OF SAN BERNARDINO
12
13 REDLANDS RESIDENTS FOR RURAL ) CASE NO. SCVSS 126460
LIVING, an unincorporated association, )
14 ) AMENDMENT TO STIPULATED
Petitioner, ) JUDGMENT BY AND AMONG
15 ) PETITIONER,RESPONDENTS AND
16 V. ) REAL PARTIES IN INTEREST
CITY OF REDLANDS, a municipal )
17 Corporation, CITY COUNCIL OF THE )
CITY OF REDLANDS, )
18 )
Respondents. )
19 ) Action Filed: May 20,2005
CHAD COVINGTON, COVINGTON )
20 CONSTRUCTION AND ) Assigned For All Purposes To:
DEVELOPMENT,FRANK J. ) HONORABLE JOHN P.WADE
21 MISTRETTA, and DOES 1 THROUGH ) Department S-8
25,inclusive, )
22 )
Real Parties in Interest )
23 )
)
24
25 This Amendment to Stipulated Judgment is entered into by and between Petitioner,
26 Redlands Residents for Rural Living ("Petitioner"); Respondents, City of Redlands and the City
Council of the City of Redlands (collectively, "Redlands"); and Mistretta Canyon Partners, LLC
27 and Mistretta Family Properties, LLC, successors to Real Parties in Interest Frank J. Mistretta,
• Trustee, and Margaret Mistretta,Trustee of the Frank J. Mistretta Family Trust,established
28
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AMENDMENT TO STIPULATED JUDGMENT
1 February 1, 1983 (collectively, "Real Parties"). (Mistretta Canyon Partners, LLC and Mistretta
2 Family Properties, LLC shall be referred to as the"Successor Real Parties"). Petitioner, Redlands
and the Successor Real Parties are collectively referred to as the "Parties" or individually as a
aI
3 "Party."
4 RECITALS
5 A. On May 20, 2005,Petitioner filed this lawsuit("Action")in this Court against
6 Redlands, Chad Covington, Covington Construction and Development, and Frank J. Mistretta,
Trustee, and Margaret Mistretta, Trustee of the Frank J. Mistretta Family Trust, established
7 February 1, 1983 as real patties in interest. The Action was a Petition for Writ of Mandate under
the California Environmental Quality Act, Public Resources Code §§ 2100 el seq. ("CEQA") and
8 the California Government Code challenging Redlands' approval of a 84-lot residential
development in the City of Redlands, proposed by Covington Construction and Development on
9 real property (the "Property") then owned by the Frank J. Mistretta Family Trust, established
10 February 1, 1983. Specifically, the Action challenged Redlands' certification of an environmental
impact report ("EIR") for the residential development, Zone Change No. 390, General Plan
11 Amendment No. 2005-02, Conditional Use Permit No. 780, and Tentative Tract Map No. 16361
(collectively, the"Project").
12
B. Chad Covington and Covington Construction and Development assigned all of their
13 rights, title, Interests and obligations in the Action, as well as the proposed residential
14 development described above in Paragraph "A." by way of an Assignment, Assumption and
Release Agreement, dated November 1, 2006 (the "Agreement"). As a result of this Agreement,
15 the Parties previously filed a Stipulation_and Proposed Order of Dismissal with Prejudice of real
parties in interest Chad Covington and Covington Construction and Development from the
16 Action.
17 C. After arms-length negotiations,Petitioner, Redlands, and Real Parties
18 entered into a settlement agreement by way of a Stipulated Judgment, a copy of which is attached
hereto as exhibit "A," in a good faith effort to avoid the uncertainty and expense of protracted
19 litigation.
20 TERMS
21 THEREFORE, the Parties now stipulate to this Amendment to Stipulated Judgment as
22 follows:
23 1. Jurisdiction.
24 This Court has jurisdiction over the subject matter of this action and over the Parties for
purposes of approving this Amendment to Stipulated Judgment.
25
26 2. Amendment.
27 Section 3.E. of the Stipulated Judgment is hereby amended to read as follows:
28
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AMENDMENT TO STIPULATED JUDGMENT
1 "E. Real Parties and/or their assigns agree_to limit the Project to a Planned
Residential Development ("PRD") as described below under the City of
2 Redlands' Municipal Code and, in consideration of the covenants and
3 payments by Real Parties under this Stipulated Judgment, Petitioner agrees to
allow, and not file or make further objection to,the application, developments
4 and construction of the Project by the Real Parties or their assigns in
conformance to the PRD or-any governmental approvals of such process. The
5 PRD will consist of a "clustered" residential development not exceeding 36
6 residential lots/units (hereinafter,the "General Plan Alternative"),the goals of
which will be to preserve open space and minimize grading for the planned
7 units. Each residential lot/unit may be permitted to have a second residential
unit as allowed under sections 65852.1 and 65852.2 of the Government Code
8 and Redlands' municipal code. The General Plan Alternative is one of the
alternatives analyzed in the EIR and is identified as the "General Plan
9 Alternative" in Section 7.4 of the EIR. The EIR identified the General Plan
10 Alternative as the "environmentally superior alternative" as part of the CEQA
review process for the Project.The General Plan Alternative is consistent with
11 the City of Redlands' General Plan.
12 By that certain Grant Deed dated and recorded in the
San Bernardino County Official Records on as
13 Instrument No. , the Successor Real Parties have
14 conveyed approximately sixty (60) acres of the Project real property to the
City of Redlands, including an assignment of development rights to twelve
15 (12) of the thirty-six (36) PRD lots described above (Redlands Conveyance").
Following the Redlands Conveyance,the Successor Real Parties have retained
16 ownership of approximately one hundred twenty (120) acres of the Project
real property (the "Retained Property"), and the Parties hereby agree and
17 affirm that the PRD for said Retained Property will consist of a "clustered"
18 residential development not exceeding twenty-four (24) residential lots/units.
The sole purpose of this Amendment is to confirm and ratify that as a result of
19 the Redlands Conveyance by the Successor Real Parties, the number of
residential lots/units that may be developed on the Retained Property is
20 limited to a maximum of twenty-four(24) lots/units."
21 All other provisions of the Stipulated Judgment shall remain in full force and
22 effect and are to be unaffected by this Amendment to Stipulated Judgment.
23 3. Knowing,Voluntary,Agreement.
24 Each Party acknowledges that it has been represented by legal counsel, and that
each party has reviewed, and has had the benefit of legal counsel's advice concerning, all
25 of the terms and conditions of this Amendment to Stipulated Judgment.
26
4. Jurisdiction,Interpretation.
27
This Court shall retain jurisdiction for the sole purpose of insuring compliance
28 with this Amendment to Stipulated Judgment. This Amendment to Stipulated Judgment
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AMENDMENT TO STIPULATED JUDGMENT
1 shall be deemed to have been drafted equally by the Parties, and shall not be interpreted
2 for or against any Party on the ground that any such Party drafted it. This Amendment to
Stipulated Judgment shall be governed by and construed in accordance with the laws of
3 the State of California.
4 5. Authority to Execute.
5 Each Party represents and warrants that the person who has signed this Stipulated
6 Judgment on its behalf is duly authorized to enter into this Amendment to Stipulated
Judgment, and to. bind that Party to the.terms and conditions of this Amendment to
7 Stipulated Judgment.
8 6. Counterparts.
9 This Amendment to Stipulated Judgment may be executed by the Parties in
10 counterpart originals with the same force and effect as if fully and simultaneously
executed as a single,original document.
11
7. Effective Date.
12
The effective date of this Amendment to Stipulated Judgment shall be the date that
13 the Judge of the Superior Court approves and enters this Amendment to Stipulated
14 Judgment.
15 8. Recordation.
16 Real Parties agree that Redlands shall have the right to record against the Property
a copy of this Amendment to Stipulated Judgment in the official records of the County of
17 San Bernardino.
18 9. No Third Party Beneficiaries.
19
This Amendment to Stipulated Judgment is made for the sole benefit of the
20 Parties. No other person or entity shall have any rights or remedies under or by reason of
this Amendment to Stipulated Judgment,unless otherwise expressly provided for herein.
21
22 IT IS SO STIPULATED
23
24 DATED: July , 2014 _ REDLANDS RESIDENTS FOR RURAL LIVING
25
26 By:
Theresa Kwappenberg, Chairperson
27
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AMENDMENT TO STIPULATED JUDGMENT
1 DATED: July ,2014 CITY OF REDLANDS AND CITY COUNCIL OF
2 THE CITY OF REDLANDS
3
4 By:
Pete Aguilar, Mayor, City of Redlands
5
6 DATED: July , 2014 MISTRETTA CANYON PARTNERS,LLC
7
8 By:
Frank J.Mistretta, Jr., Manager
9
10 DATED: July ,2014 MISTRETTA FAMILY PROPERTIES, LLC
11
12
13 By:
Frank I.Mistretta, Jr.,Manager
14
15 IT IS SO ORDERED.
16 DATED: July ,2014
17
18
Hon_ John M. Pacheco
19 JUDGE OF THE SUPERIOR COURT
20
21
22
23
24
25
26
27
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AMENDMENT TO STIPULATED JUDGMENT
1 PROOF OF SERVICE
STATE OF CALIFORNIA )
2 )
3 COUNTY OF SAN BERNARDINO )
4 I,Heather A. McGinnis, am over the age of 18 years and not a party to the within action.
My business address is 35 Cajon Street,Redlands, California 92373. On ,I served
5 the documents AMENDMENT TO STIPULATED JUDGMENT BY AND AMONG
PETITIONER,RESPONDENTS AND REAL PARTIES IN INTEREST by placing a true copy
6 thereof, enclosed in a sealed envelope,via U.S. Mail and addressed as follows:
7 Attorney's Name and info
Counsel for
8
9
10
11
12 [XX] {BY MAIL} As follows: I am readily familiar with the City's practice of collection and
processing correspondence for mailing_ Under that practice it would be deposited with the U.S.
13 Postal Service on that same day with postage thereon fully prepaid at Redlands, California, in the
ordinary course of business. I am aware that on motion of the party served,service is presumed
14 invalid if postal cancellation date or postage meter date is more than one day after date of deposit
15 for mailing in affidavit.
16 [ ] {BY PERSONAL SERVICE} I caused such envelope to be delivered by had to the offices
of the addressees.
17
18 [ ] {BY FACSIMILE MACHINE} I caused the above-referenced document to be transmitted
via facsimile machine on to the interested parties at the facsimile number noted above.
19
[ ] FED EX OVERNIGHT} I caused such envelope to be delivered via overnight delivery
20 addressed as indicated above. Such envelope was picked up for overnight delivery to the above-
referenced business.
21
22 [XX] {STATE} T certify(or declare)under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
23
Executed on
24
25 Heather A.McGinnis
26
27
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AMENDMENT TO STIPULATED JUDGMENT
EXHIBIT"D"
Grant Deed
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WHEN RECORDED RETURN TO:
AND MAIL TAX STATEMENTS TO:
DOCUMENTARY TRANSFER TAX: (Above Space for Recorder's Use Only)
NOT OF PUBLIC RECORD,PURSUANT TO REVENUE AND TAXATION CODE SECTION 11932
GRANT DEED
FOR A VALUABLE CONSIDERATION,receipt of which is hereby acknowledged,
Mistretta Canyon Partners, LLC and Mistretta Family Properties, LLC (together,
Grantors),
do hereby GRANT to
THE REDLANDS CONSERVANCY, a California non-profit public benefit corporation
("Grantee"),
all that certain real property in the City of Redlands, County of San Bernardino, State of
California,described on Exhibit"A",attached hereto and incorporated herein by reference.
Further, Grantors do hereby grant and assign_to Grantee all Grantors' development rights
for twelve (12) of the thirty-six (36) residential lots/units for City of Redlands Tentative
Tract Map No. 16361, as such development rights and such lots/units are described in the
Stipulated Judgment approved and on file in San Bernardino Superior Court case no.
SCVSS 126460.
GRANTORS
Mistretta Canyon Partners,LLC Mistretta Family Properties, LLC
a California limited liability company a California limited liability company
By: By:
Frank J. Mistretta,Jr., Manager Frank J. Mistretta,Jr.,Manager
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STATE OF )
)
COUNTY OF )
On , 20 , before me, , a
Notary Public, in and for said County and State, 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 entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
,Notary
Public
STATE OF )
)
COUNTY OF )
On , 20 , before me, , a
Notary Public, in and for said County and State, 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 entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
, Notary
Public
Bea\djm\Agreements\Purchase and Sale Agmt--Mistretta-Redlands Conserv—v14—Updated 6.17.14.docx
. .. . .. . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .
LEGAL DESCRIPTION
All that certain real property located in the City of Redlands, County of San
Bernardino, State of California, as more particularly described as follows:
[ATTACHED EXHIBIT A'7
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