HomeMy WebLinkAboutContracts & Agreements_196-2023PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
DATED
OCTOBER 17, 2023
BY AND BETWEEN
REDLANDS COMMUNITY INVESTMENT CORPORATION
a California corporation,
AS SELLER
AND THE
CITY OF REDLANDS,
a municipal corporation,
AS BUYER
4873-2985-2522.6
TABLE OF CONTENTS
Page
1. PURCHASE AND SALE. 1
2. PURCHASE PRICE 1
3. ESCROW 2
3.1 Opening of Escrow 2
3.2 Escrow Instructions 2
3.3 Termination/Cancellation 3
4. ACTIONS PENDING CLOSING. 3
4.1 Due Diligence. 3
4.1.1 Property Materials 3
4.1.2 City's Due Diligence Tests. 3
4.1.3 City's Termination Right 4
4.2 Title 4
4.2.1 Deliveries by Seller 4
4.2.2 Monetary Liens 5
4.2.3 City's Review of Title 5
4.2.3 Condition of Title at Closing 6
5. DESCRIPTION OF PROPERTY. 6
5.1 The Property 6
6. CONDITIONS TO CLOSING. 6
6.1 City's Closing Conditions 6
6.1.1 Title 6
6.1.2 Seller's Due Performance 7
6.1.3 Physical Condition of Property 7
6.1.4 Bankruptcy 7
6.1.5 Possession 7
6.2 Seller's Closing Conditions 7
7. CLOSING. 7
7.1 Closing Date 7
7.2 Deliveries by Seller 7
7.2.1 Grant Deed 7
7.2.2 Non -Foreign Affadavit 7
7.2.3 State Affadavit 7
7.2.4 Owner's Affadavit 7
4873-2985-2522.6
7.2.5 Proof of Authority 8
7.2.6 [Intentionally Deleted] 8
7.2.7 Other 8
7.2.8 [Intentionally Deleted] 8
7.3 Deliveries by City 8
7.3.1 Purchase Price 8
7.3.2 Proof of Authority 8
7.3.3 [Intentionally Deleted] 8
7.3.4 Other 8
7.4 Actions by Escrow Agent 8
7.4.1 Recording 9
7.4.2 Funds 9
7.4.3 Delivery of Document 9
7.4.4 Owner's Title Policy 9
7.5 Proration/Apportionment 9
7.5.1 Taxes 9
7.5.2 Utility Costs and Desposits 10
7.5.3 Method of Proration 10
7.5.4 Survival 10
7.6 Closing Costs 10
7.7 Closing Statement 10
7.8 Deliveries Outside of Escrow 11
8. SELLER'S REPRESENTATIONS AND WARRANTIES. 11
8.1 Seller's Authority; Validity of Agreements 11
8.2 No Third -Party Rights 11
8.3 Litigation; Bankruptcy 11
8.4 No Violations of Environmental Laws 11
8.5 [Intentionally Deleted] 12
8.6 [Intentionally Deleted] 12
8.7 [Intentionally Deleted] 12
8.8 Survival 12
9. CITY'S REPRESENTATIONS AND WARRANTIES 12
9.1 City's Authority; Validity of Agreements 12
9.2 Survival 12
10. AS -IS 13
11. RISK OF LOSS 14
11.1 Condemnation 14
11.2 Casualty 15
12. REMEDIES 15
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4873-2985-2522.6
12.1 Default by Seller 15
12.2 Default by City 15
13. BROKERS. 16
14. MISCELLANEOUS PROVISIONS 16
14.1 Entire Agreement 16
14.2 Modification; Waiver 16
14.3 Notices 16
14.4 Expenses 18
14.5 Severability 18
14.6 Successors and Assigns 18
14.7 Counterparts 18
14.8 Governing Law; Jurisdiction 18
14.9 Headings 18
14.10 Time of Essence 18
14.11 Further Assurances 18
14.12 Construction 19
14.13 Attorney Fees 19
14.14 Business Days 19
T510-001 -- 4214425.2
4873-2985-2522.6
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS RECITALS
This Purchase and Sale Agreement and Joint Escrow Instructions ("Agreement") is made
and entered into as of 17th day of October, 2023 (the "Effective Date"), by and between the City
of Redlands, a municipal corporation ("City" or "Buyer"), and Redlands Community Investment
Corporation, a California corporation ("Seller"), for the purpose of setting forth their agreement,
and to provide instructions to Escrow Agent with respect to the transaction contemplated by this
Agreement. Seller and City shall also individually be referred to as a "Party" and collectively as
the "Parties."
RECITALS
WHEREAS, Seller is the owner of that certain real property located at 204 E. Redlands
Boulevard in the City of Redlands, County of San Bernardino ("County"), State of California,
known as County Assessor's Parcel Number 0171-071-08-0000 ("E. Redlands Parcel"); and
WHEREAS, Seller is the owner of that certain real property located at 180 9th Street in the
City of Redlands, County of San Bernardino, State of California, known as County Assessor's
Parcel Numbers 0171-088-06-0000 and 0171-088-07-0000 ("9th Street Parcel"); and
WHEREAS, Seller desires to sell the E. Redlands Parcel and the 9th Street Parcel
(collectively referred to herein as the "Property") to City, and City desires to purchase the Property
from Seller, upon and subject to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement, and for other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, City and Seller hereby agree, and instruct Escrow Agent (as hereinafter
defined in Section 3.1 hereof), as follows:
AGREEMENT
Section 1. PURCHASE AND SALE. SELLER agrees to sell, transfer, and convey to
City, and City agrees to purchase and acquire from Seller, the Property on all of the terms and
conditions of this Agreement.
Section 2. PURCHASE PRICE.
The purchase price for the Property ("Purchase Price") shall be Seven Hundred
Fifty Thousand Dollars ($750,000) and shall be payable as follows:
2.1 Deposit. Within three (3) Business Days following the "Opening of Escrow" (as
hereinafter defined), City shall deposit into "Escrow" (as hereinafter defined) the sum of Ten
Thousand Dollars ($10,000) (which amount, together with any and all interest earned thereon,
shall hereinafter be referred to as the "Deposit"). The Deposit shall be fully refundable through the
Due Diligence Termination Date, as defined in Section 4.1.3. From and after the Due Diligence
Termination Date, provided City does not elect to terminate this Agreement pursuant to the terms
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of Section 4.1.3, the Deposit shall become non-refundable, except as specifically provided
otherwise herein, and shall be credited against the Purchase Price at Closing.
2.1.1. Refund of Deposit. In the event that City delivers its Due Diligence
Approval Notice, but subsequently elects to terminate this Agreement due to (a) Seller Default, as
defined in Section 12.1 hereunder, (b) the occurrence of any other event which by the terms of this
Agreement gives rise to City's right to terminate this Agreement and receive a refund of the
Deposit, then, subject to the terms of Section 12.1, (i) the Deposit shall be returned by Escrow
Agent to City, (ii) this Agreement and the Escrow shall terminate, and (iii) the Parties shall have
no further obligation to one another with respect to this Agreement, except with respect to such
provisions which by their terms survive the termination of this Agreement.
2.1.2. Interest. The Deposit and any other cash held by Escrow Agent for the
benefit of City shall be held in a federally insured interest -bearing account, and the interest shall
accrue to City's benefit,
2.1.3. Deposit of Balance. City shall, at least two (2) days prior to Closing (as
defined in Section 7.1), deposit into Escrow the form of wire transfer, cash or a certified or bank
cashier's check for immediately available funds, the amount of the Purchase Price less the Deposit,
plus City's closing costs and City's share of any prorations to be made in accordance with this
Agreement.
2.1.4. Independent Consideration. Concurrently with City's execution of this
Agreement, City shall pay to Seller an amount equal to One Hundred and 00/100 Dollars ($100.00)
as independent consideration for Seller's performance under the Agreement (the "Independent
Consideration"), in addition to the Deposit and the Purchase Price. The Independent Consideration
shall be delivered to Escrow Agent (defined below) with the Deposit in accordance with Section
2.1. The Independent Consideration is independent of any other consideration provided hereunder,
shall be fully earned by Seller upon execution and delivery of this Agreement, and is not refundable
under any circumstances. City and Seller expressly acknowledge and agree that: (i) the
Independent Consideration has been bargained for as consideration for Seller's execution and
delivery of the Agreement and for City's review, inspection, and termination rights during the Due
Diligence Period set forth in Section 4.1.2; and (ii) such consideration is adequate for all purposes
under any applicable law or judicial decision.
Section 3. ESCROW.
3.1 Opening of Escrow. City and Seller shall cause an escrow ("Escrow") to be opened
with First American Title Company located at 901 Via Piemonte, Suite 150, Ontario, CA 91764,
Attention: Kelly Simoneau, ksimoneau@firstam.com ("Escrow Agent"), by delivery to Escrow
Agent of a fully executed copy of this Agreement. Escrow Agent shall promptly deliver to City
and Seller written confirmation of the date of the "Opening of Escrow." As used in this Agreement,
the term "Opening of Escrow" means the day on which Escrow Agent receives a fully executed
copy of this Agreement and has notified each Party in writing of such receipt and the specific date
of the Opening of Escrow.
3.2 Escrow Instructions. This Agreement shall constitute escrow instructions to
Escrow Agent as well as the agreement of the Parties relating to the purchase and sale of the
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Property. If any other printed escrow instructions are requested of the Parties and the terms thereof
conflict or are inconsistent with any provision of this Agreement or any deed, instrument, or
document executed or delivered in connection with the transaction contemplated hereby, the
provisions of this Agreement, or such deed, instrument or document, shall control. Escrow Agent
is hereby appointed and designated to act as Escrow Agent and instructed to deliver, pursuant to
the terms of this Agreement, the documents and funds to be deposited into Escrow as provided this
Agreement.
3.3 Termination/Cancellation. Upon any termination or cancellation (the terms being
used interchangeably in this Agreement) of this Agreement by either of the Parties, (i) the Deposit
shall be delivered to the Party that this Agreement specifies is entitled to the same; (ii) all
documents, instruments, and funds delivered into Escrow shall be returned to the Party that
delivered the same into Escrow, and (iii) the Parties shall thereafter be relieved from further
liability under this Agreement, except with respect to any obligations under this Agreement that
are expressly stated to survive any termination of this Agreement. A copy of any notice of
termination allowed under this Agreement shall be sent to Escrow Agent by the Party electing to
terminate.
Section 4. ACTIONS PENDING CLOSING.
4.1 Due Diligence.
4.1.1 Property Materials.
4.1.1.1 On or before 5:00 p.m. on the fifth (5th) Business Day
following the Opening of Escrow, Seller shall, at Seller's sole cost and expense, to the extent
within the Seller's possession, provide to City and City's counsel complete copies of all of the
documents (collectively, the "Property Materials") itemized on Exhibit "C," if any, attached to this
Agreement.
4.1.1.2 Seller shall promptly furnish to City for its review (i) the
items itemized on Exhibit "C", if any, or items similar thereto that may come into Seller's
possession or control from and after the Effective Date of this Agreement, and (ii) any additional
documents and information in the possession or control of Seller reasonably requested in writing
by City.
4.1.2 City's Due Diligence Tests.
4.1.2.1 For the period of forty five (45) days from the Effective Date of
this Agreement, City and its employees, agents, consultants, and contractors shall be entitled, at
City's sole cost and expense, to: (i) enter onto the Property to perform any inspections,
investigations, studies, and tests of the Property (including, without limitation, physical,
engineering, soils, geotechnical, and environmental tests such as Phase I Environmental
Assessment, and an ALTA Survey) that City deems reasonable; (ii) review all Property Materials;
and (iii) investigate such other matters pertaining to the Property as City may desire (collectively,
the "Due Diligence Period"). Notwithstanding the foregoing, City shall not conduct any invasive
testing on the Property without the prior consent of Seller, which shall not be unreasonably
withheld, delayed (specifically, Seller shall respond to City's request to conduct such testing not
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more than forty-eight (48) hours after written notice by City to Seller), or conditioned. Any entry
by City onto the Property shall be subject to, and conducted in accordance with, all applicable
laws.
4.1.2.2 City shall keep the Property free and clean of any mechanics'
liens and indemnify, protect, defend, and hold Seller harmless from and against any and all claims
(including, without limitation, claims for mechanic's liens or materialman's liens), causes of
action, demands, obligations, losses, damages, liabilities, judgments, costs, and expenses
(including, without limitation, reasonable attorneys' fees, charges, and disbursements)
(collectively, "Claims") in connection with or arising out of the negligent or intentional acts of
City or City's agents in conducting inspections of the Property pursuant to the terms of this
Agreement, provided, however, that City shall have no responsibility or liability for (i) the
negligence or willful misconduct of Seller; (ii) any adverse condition or defect on or affecting the
Property not caused by City or its employees, agents, consultants, or contractors but merely
discovered during their inspections including, without limitation, the pre-existing presence or
discovery of any matter (such as, but not limited to, any Hazardous Substance (as defined in this
Agreement ); and/or (iii) the results or findings of any inspection except with respect to events or
circumstances caused by City or its employees, agents, consultants, or contractors.
4.1.2.3 Upon completion of City's inspections, City shall promptly
repair any material damage to the Property caused by its entry and restore the Property to
substantially the same conditions which existed prior to City's entry under this Section 4.1.2,
ordinary wear and tear excepted.
4.1.2.4 The provisions of this Section 4.1.2 shall survive the Closing or
the earlier termination of this Agreement.
4.1.3 City's Termination Right. City shall have the right at any time on or before
5:00 p.m. on the forty fifth (45th) day after the Opening of Escrow (the "Due Diligence
Termination Date") to terminate this Agreement by delivering a written notice of such termination
to Seller and Escrow Agent if City determines, in its sole and absolute discretion, that the Property
is not acceptable to City for any reason. City shall indicate its satisfaction and/or waiver of the Due
Diligence condition described in this Section 4.1 by delivering written notice of such satisfaction
and/or waiver ("Due Diligence Approval Notice") to Seller and Escrow Agent on or prior to the
Due Diligence Termination Date. If City fails to timely deliver a Due Diligence Approval Notice,
then this Agreement and the Escrow shall be automatically deemed terminated. If this Agreement
is terminated in accordance with this Section, then the Deposit shall be immediately returned to
City and the Parties shall thereafter be relieved from further liability hereunder, except with respect
to any obligations under this Agreement that are expressly stated to survive any termination of this
Agreement.
4.2 Title.
4.2.1 Deliveries by Seller. On or before 5:00 p.m. on the fifth (5th) Business
Day after the Opening of Escrow, Seller shall cause First American Title Company ("Title
Insurer") to issue and deliver to City, at City's sole cost and expense, (i) a current commitment for
an ALTA extended coverage Owner's Policy of Title Insurance for the Property (the "Title
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Report") and (ii) copies of all documents referenced as exceptions in the Title Report (collectively
with the Title Report, the "Title Documents").
4.2.2 Monetary Liens. At its expense, Seller shall remove all liens on the
Property at or prior to the Closing (collectively, "Monetary Liens"): (i) all delinquent taxes, bonds
and assessments and interest and penalties thereon (it being agreed that Seller shall not be required
to remove any non -delinquent taxes and assessments imposed by any governmental agency that
are paid with the property taxes for the Property); and (ii) all other monetary liens, including
without limitation all those shown on the Title Report (including judgment and mechanics' liens,
whether or not liquidated, and mortgages and deeds of trust, with Seller being fully responsible for
any fees or penalties incurred in connection therewith). For avoidance of doubt, Monetary Liens
shall be deemed to be objected to, irrespective of their inclusion in City's Title Objection Letter,
and in no event shall a Monetary Lien constitute a Permitted Exception hereunder.
4.2.3 City's Review of Title. City shall have until 15 Business Days prior to the
expiration of the Due Diligence Termination Date to notify Seller in writing of any objection that
City may have to any matters reported or shown in any survey or the Title Documents or any
amendments or updates thereof ("City's Title Objection Letter") (provided, however, that if any
such amendments or updates are received by City after or within five (5) Business Days before the
Due Diligence Termination Date, City shall have five (5) Business Days following City's receipt
of such amendment or update and copies of all documents referenced in the Title Documents to
notify Seller of objections to matters shown on any such amendment or update that were not
disclosed on the previously delivered survey or Title Documents and the Due Diligence
Termination Date or Closing Date, as applicable, shall automatically be extended as necessary to
facilitate such notice period and any subsequent periods for Seller's response and City's election
as provided in subsections (i) and (ii), below). Except with respect to Monetary Liens, matters
shown as exceptions to coverage in the Title Report (or any amendments or updates thereof) that
are not timely objected to by City as provided above shall constitute "Permitted Exceptions." Seller
shall cooperate, at no cost to Seller, with City to eliminate matters objected to by City, but, except
with respect to Monetary Liens and as set forth in the last sentence of this Section 4.2.1, Seller
shall have no obligation to cure or correct any matter objected to by City. On or before the fifth
(5th) Business Day following Seller's receipt of City's Title Objection Letter, Seller may elect, by
delivering written notice of such election to City and Escrow Agent ("Seller's Response"), to cause
Title Insurer to remove or insure over (a "Corrective Endorsement") any matters objected to in
City's Title Objection Letter. If Seller fails to deliver Seller's Response within the period set forth
above, it shall be deemed an election by Seller not to cause Title Insurer to so remove or insure
over such objections. If Seller elects or is deemed to have elected not to cause Title Insurer to so
remove or insure, or if City determines, in its sole discretion, that any proposed endorsementfor
or insurance over an objected matter is unsatisfactory, then City may elect, by delivering written
notice of such election to Seller and Escrow Agent on or before the earlier to occur of (i) the fifth
(5th) Business Day following City's receipt of Seller's Response or (ii) if no Seller's Response is
received by City, the fifth (5th) Business Day following the date on which Seller shall have been
deemed to have responded, as provided above, to: (i) terminate this Agreement, in which case the
Deposit, to the extent previously deposited in Escrow, shall be immediately returned to City; or
(ii) proceed with this transaction, in which event those objected to exceptions or matters that Seller
has not elected to cause Title Insurer to so remove or insure, other than Monetary Liens, shall be
deemed to be Permitted Exceptions. If City fails to make such election on a timely basis, then City
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shall be deemed to have elected to terminate this Agreement in accordance with the preceding
clause (i). Notwithstanding anything else stated in this Agreement, in all events, regardless of
whether City has given notice of objection as stated above, Seller shall be obligated to satisfy and
otherwise remove all Monetary Liens and City need not object to any such matters, it being
understood that all such Monetary Liens shall be deemed disapproved and in no event shall be
treated as Permitted Encumbrances. Seller agrees not to cause or create any additional
encumbrances or other matters affecting title to the Property to be incurred following the Effective
Date that are not satisfied or otherwise removed on or before the Closing Date as contemplated
above.
4.2.4 Condition of Title at Closing. Upon the Closing, Seller shall sell, transfer,
and convey to City fee simple title to the Property by a duly executed and acknowledged grant
deed in the form of Exhibit "A" attached hereto (the "Grant Deed"), subject only to the Permitted
Exceptions.
Section 5. DESCRIPTION OF PROPERTY,
5.1 The Property. As used in this Agreement, the term "Property" shall mean,
collectively, all of Seller's right, title, and interest in and to: (a) all buildings and related
improvements on the Property ("Improvements"); and (b) all of the rights, privileges,
appurtenances, hereditaments, easements, reversions, and remainders pertaining to or used in
connection with the Property, including, without limitation, all (i) development rights and credits,
air rights, water, water rights, and water stock exclusively relating to the Property, (ii) strips and
gores, streets, alleys, easements, rights -of -way, public ways, or other rights appurtenant, adjacent,
or connected to the Property, and (iii) minerals, oil, gas, and other hydrocarbon substances in,
under, or that may be produced from the Property.
Section 6. CONDITIONS TO CLOSING.
6.1 City's Closing Conditions. The obligation of City to complete the transaction
contemplated by this Agreement is subject to the following conditions precedent (and conditions
concurrent, with respect to deliveries to be made by Seller at the Closing) ("City's Closing
Conditions"), which conditions may be waived, or the time for satisfaction of such conditions
extended, by City only in a writing executed by City:
6.1.1 Title. Title Insurer shall be irrevocably and unconditionally prepared and
committed to issue to City (with an effective date not earlier than the Closing Date), an ALTA
extended coverage owner's policy of title insurance ("ALTA Extended Policy") in favor of City
for the Property (i) showing fee title to the Property vested in City, (ii) with liability coverage in
an amount equal to the Purchase Price, (iii) with those endorsements reasonably requested by City,
and (iv) containing no exceptions other than the Permitted Exceptions ("Owner's Title Policy").
City shall pay any difference in the cost of the premium for a standard ALTA owner's policy of
title insurance without endorsements (except for the cost of any Corrective Endorsements) and the
ALTA Extended Policy with any endorsements requested by City. If a new or updated survey is
required to enable the Title Company to issue the ALTA Extended Policy, City shall obtain the
same, at its sole cost and expense, in a timely manner so as to facilitate the issuance of the ALTA
Extended Policy upon the Close of Escrow.
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6.1.2 Seller's Due Performance. All of the representations and warranties of
Seller set forth in Section 8 shall be true, correct, and complete in all material respects as of the
Closing Date, and Seller, on or prior to the Closing Date, shall have complied with and/or
performed all of the obligations, covenants, and agreements required on the part of Seller to be
complied with or performed pursuant to the terms of this Agreement on or prior to the Closing.
6.1.3 Physical Condition of Property. The physical condition of the Property
shall be substantially the same on the Closing Date as on the Effective Date, except for reasonable
wear and tear and any damages due solely to any act of City or City's representatives.
6.1.4 Bankruptcy. No action or proceeding shall have been commenced by or
against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the
enforcement of the rights of creditors, and no attachment, execution, lien, or levy shall have
attached to or been issued with respect to Seller's interest in the Property or any portion thereof.
6.1.5 Possession. Upon the Close of Escrow, Seller shall deliver exclusive
possession of the Property to City subject only to the Parking Agreements (as defined in Section
8.2 below) and the Permitted Exceptions.
6.2 Seller's Closing Conditions. All of the representations and warranties of City set
forth in Section 9 shall be true, correct, and complete as of the Closing Date, and City, on or prior
to the Closing Date, shall have complied with and/or performed all of the obligations, covenants,
and agreements required on the part of City to be complied with or performed pursuant to the terms
of this Agreement on, or prior to, the Closing.
Section 7. CLOSING.
7.1 Closing Date. Subject to the provisions of this Agreement, the Closing shall take
place on or before that date ("Closing Date") which is the tenth (10th) day after the expiration date
of the Due Diligence Period, as such period may be extended. As used in this Agreement, the
"Closing" shall mean the recordation of the Grant Deed in the Official Records.
7.2 Deliveries by Seller. On or before the Closing Date, Seller, at its sole cost and
expense, shall deliver or cause to be delivered into Escrow the following items, documents, and
instruments, each dated as of the Closing Date, fully executed and, if appropriate, acknowledged,
and, if applicable, in proper form for recording:
7.2.1 Grant Deed. The Grant Deed conveying the Property to City;
7.2.2 Non -Foreign Affidavit. A Non -Foreign Affidavit in the form attached
hereto as Exhibit "B" ("Non -Foreign Affidavit");
7.2.3 State Affidavit. A California Franchise Tax Board Form 593-C ("State
Affidavit");
7.2.4 Owner's Affidavit. An owner's affidavit or Seller's certificate duly
executed by Seller in the form customarily accepted by title insurance companies and in form
reasonably acceptable to Seller in the county of San Bernardino, in connection with the issuance
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of title insurance, to remove standard exceptions for mechanics liens, the gap period from the
latest title update of City's title insurance commitment and parties in possession;
7.2.5 Proof of Authority. Such proof of Seller's authority and authorization to
enter into this Agreement and the transaction contemplated hereby, and such proof of the power
and authority of the individuals executing or delivering any instruments, documents, or certificates
on behalf of Seller to act for and bind Seller as may be reasonably required by Title Insurer or
Escrow Agent; and
7.2.6 Intentionally Deleted.
7.2.7 Other. Such other items, documents, and instruments as may be reasonably
required by City, Title Insurer, Escrow Agent, or otherwise in order to effectuate the provisions of
this Agreement and the Closing and/or otherwise to fulfill the covenants and obligations to be
performed by Seller at the Closing pursuant to this Agreement.
7.2.8 Intentionally Deleted.
7.3 Deliveries by City. On or before the Closing Date, City, at its sole cost and expense,
shall deliver or cause to be delivered into Escrow the following funds and the following items,
documents, and instruments, each dated as of the Closing Date, fully executed and, if appropriate
acknowledged, and, if applicable, in proper form for recording.
7.3.1 Purchase Price. Cash or other immediately available funds in an amount
equal to the unpaid sum of the Purchase Price (less the Deposit) and all of City's share of the
Closing Costs (as defined below) and otherwise sufficient to close the transaction contemplated in
this Agreement.
7.3.2 Proof of Authority. Such proof of City' s authority and authorization to enter
into this Agreement and the transaction contemplated hereby, and such proof of the power and
authority of the individuals executing or delivering any instruments, documents, or certificates on
behalf of City to act for and bind City as may be reasonably required by Title Insurer or Escrow
Agent.
7.3.3 Intentionally Deleted.
7.3.4 Other. Such other items, documents, and instruments as may be reasonably
required by Seller, Title Insurer, Escrow Agent, or otherwise in order to effectuate the provisions
of this Agreement and the Closing and/or otherwise to fulfill the covenants and obligations to be
performed by City at the Closing pursuant to this Agreement.
7.4 Actions by Escrow Agent. Provided that Escrow Agent shall not have received
written notice from City or Seller of the failure of any condition to the Closing or of the termination
of the Escrow and this Agreement, when City and Seller have deposited into Escrow the documents
and funds required by this Agreement and Title Insurer is irrevocably and unconditionally prepared
and committed to issue the Owner's Title Policy in accordance with the terms of this Agreement,
Escrow Agent shall, in the order and manner indicated in this Agreement below, take the following
actions:
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7.4.1 Recording. Cause the Grant Deed and any other documents customarily
recorded and/or that the Parties may mutually direct to be recorded in the Official Records and
obtain conformed copies of such items for distribution to City and Seller.
7.4.2 Funds. Disburse all funds as follows:
7.4.2.1 Pursuant to the Closing Statement (as defined below), retain for
Escrow Agent's own account all escrow fees and costs, disburse to Title Insurer the fees and
expenses incurred in connection with the issuance of the Owner's Title Policy, and disburse to any
other persons or entities entitled to receive such fees and costs the amount of any other Closing
Costs;
7.4.2.2 Disburse to Seller an amount equal to the Purchase Price, less or
plus the net debit or credit to Seller by reason of the prorations and allocations of Closing Costs
provided for in this Agreement; and
7.4.2.3 Disburse to the Party who deposited the same any remaining funds
in the possession of Escrow Agent after the payments pursuant to Sections 7.4.2.1 and 7.4.2.2
above have been completed.
7.4.3 Delivery of Documents. Deliver: (i) to Seller, one original of all documents
deposited into Escrow (other than the Grant Deed, the other documents recorded pursuant to the
terms of this Agreement, the Non -Foreign Affidavit, the State Affidavit and the General
Assignment), one copy of the Non -Foreign Affidavit, the State Affidavit and the General
Assignment, and one conformed copy of each document recorded pursuant to the terms of this
Agreement; and (ii) to City, one original of all documents deposited into Escrow (other than the
Grant Deed and the other documents recorded pursuant to the terms of this Agreement, but
including, without limitation, the Non -Foreign Affidavit and the State Affidavit), and the one
conformed copy of each document recorded pursuant to the terms of this Agreement. Originals of
any documents recorded at Closing shall be delivered after such recording as indicated thereon.
7.4.4 Owner's Title Policy. Cause Title Insurer to issue or be irrevocably and
unconditionally prepared and committed to issue the Owner's Title Policy to City.
7.5 Proration/Apportionment.
7.5.1 Taxes. General real estate taxes, water or sewer rates and charges (if not
metered), personal property taxes, or any other governmental tax or charge levied or assessed
against the Property (collectively, the "Taxes"), relating to the Property and payable during the
year in which Closing occurs shall not be prorated between Seller and City in Escrow. Upon
recordation of the Grant Deed, City will request cancellation of the real property taxes for the
Property pursuant to California Revenue and Taxation Code Section 4986. If current taxes have
not yet been paid as of the Closing Date, then at Closing Seller shall pay through Escrow or out of
Seller's proceeds, the full amount of the installment applicable for the period in which Closing
occurs. Seller shall be entitled to a refund of any excess payment made to the taxing authority on
account of the Property, including any taxes paid by Seller and applicable to any period from and
after the Closing Date. The taxing authority will notify Seller of any refund due Seller resulting
from the subject acquisition after a review and any subsequent proration of the property tax
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assessment by the county assessor. Seller retains the right, following close of escrow, to apply to
the appropriate governmental authority/ies for refund of real property taxes pursuant to Revenue
and Taxation Code Section 5096.7 (or such other applicable law), and City shall reasonably
cooperate with Seller's efforts to obtain said refund.
7.5.2 Utility Costs and Deposits. All water, gas, electric and other utility
contracts associated with the Property (if any) shall be prorated as of the Close of Escrow.
7.5.3 Method of Proration. All prorations shall be made as of the Closing Date
on the basis of the actual days of the month in which the Close of Escrow occurs. The Closing
Date shall be an income and expense day for City. Seller shall be responsible for all expenses of
the Property applicable to the period prior to the Close of Escrow and City shall be responsible for
all expenses applicable to the period from and after the Close of Escrow.
7.5.4 Survival. The obligations under this Section 7.5 shall survive the Closing
and the delivery and recordation of the Grant Deed for the Property.
7.6 Closing Costs. Each Party shall pay its own costs and expenses arising in
connection with the Closing (including, without limitation, its own attorneys' and advisors' fees,
charges, and disbursements), except the following costs ("Closing Costs"), which shall be
allocated between the Parties as follows:
7.6.1 Escrow Agent's escrow fees and costs shall be shared equally by City and
Seller;
7.6.2 The cost of the Owner's Title Policy attributable to the standard coverage
portion and any Corrective Endorsements shall be paid by Seller;
7.6.3 The cost of the Owner's Title Policy attributable to the extended coverage
portion and any endorsements shall be paid by City;
7.6.4 The cost of any items required to be provided by Seller pursuant to Section
4.2.1, shall be paid by Seller, and the costs of any other endorsements to the Owner's Title Policy
(except for Corrective Endorsements) shall be paid by City;
7.6.5 Seller shall pay the cost of any documentary transfer taxes in connection
with the recording of the Grant Deed;
7.6.6 Seller shall pay all costs for recording the Grant Deed including, without
limitation any charges or costs of Escrow Agent in connection therewith; and
7.6.7 All other closing fees and costs shall be charged to and paid by City.
7.7 Closing Statement. Three (3) Business Days prior to the Closing Date, Escrow
Agent shall deliver to each of the Parties for their review and approval a preliminary closing
statement ("Preliminary Closing Statement") setting forth: (i) the proration amounts allocable to
each of the Parties pursuant to Section 7.5; and (ii) the Closing Costs allocable to each of the
Parties pursuant to Section 7.6. Based on each of the Party's comments, if any, regarding the
Preliminary Closing Statement, Escrow Agent shall revise the Preliminary Closing Statement and
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deliver a final, signed version of a closing statement to each of the Parties at the Closing ("Closing
Statement").
7.8 Deliveries Outside of Escrow. Upon the Closing, Seller shall deliver exclusive
possession of the Property to City, in accordance with Section 6.1.5 of this Agreement. Effective
immediately upon the Closing, any personal property remaining on the Property shall be deemed
abandoned and may be removed and disposed of by City at its sole cost and expense. This Section
7.8 shall survive the Closing.
Section 8. SELLER'S COVENANTS, REPRESENTATIONS AND WARRANTIES.
Seller represents, and warrants to and agrees with City, as of the Agreement Date and as of the
Closing Date, as follows:
8.1 Seller's Authority; Validity of Agreements. Seller has full right, power, and
authority to sell the Property to City as provided in this Agreement and to carry out its obligations
under this Agreement. The individuals executing this Agreement and the instruments referenced
in this Agreement on behalf of Seller has/have the legal power, right, and actual authority to bind
Seller to the terms hereof and thereof. This Agreement is, and all other instruments, documents
and agreements to be executed, and delivered by Seller in connection with this Agreement shall
be, duly authorized, executed, and delivered by Seller and the valid, binding, and enforceable
obligations of Seller (except as enforcement may be limited by bankruptcy, insolvency, or similar
laws) and do not, and as of the Closing Date will not result in any violation of, or conflict with, or
constitute a default under, any provisions of any agreement of Seller or any mortgage, deed of
trust, indenture, lease, security agreement, or other instrument, covenant, obligation, or agreement
to which Seller or the Property is subject, or any judgment, law, statute, ordinance, writ, decree,
order, injunction, rule, ordinance, or governmental regulation or requirement affecting Seller or
the Property.
8.2 No Third -Party Rights. There are no leases or occupancy agreements that grant
third parties any possessory or rights to use all or any part of the Property, except for any oral or
written agreements by Seller pertaining to the use of the Property for surface parking (each, a
"Parking Agreement" and collectively, the "Parking Agreements"). No later than thirty (30) days
prior to the Closing Date, Seller shall deliver termination notices to all licensees and/or occupants
under the Parking Agreements giving such occupants thirty (30) days from the date of the notice
to surrender possession of the licensed Property.
8.3 Litigation; Bankruptcy. To Seller's knowledge, Seller has not received written
notice that Seller is, nor to Seller's knowledge is Seller, now a party to any litigation, arbitration,
or other proceedings with respect to the Property. Seller has not (i) made a general assignment for
the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or, to Seller's current actual
knowledge, suffered the filing of an involuntary petition by Seller's creditors, (iii) suffered the
appointment of a receiver to take possession of all or substantially all of Seller's assets, (iv)
suffered the attachment or other judicial seizure of all, or substantially all, of Seller's assets or (v)
admitted in writing its inability to pay its debts as they come due.
8.4 No Violations of Environmental Laws. To Seller's knowledge, except as my
otherwise be disclosed in the Property Materials, Seller has not received written notice that there
exists or has existed any generation, production, location, transportation, storage, treatment,
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discharge, disposal, release or threatened release of Hazardous Substances upon, under or about
the Property in violation of any federal, state, or local law, ordinance, or regulation relating to
industrial hygiene, worker health and safety, or to the environmental conditions in, at, on, under,
or about the Property, including, but not limited to, soil and groundwater conditions
("Environmental Laws"). For purpose of this Agreement, the term "Hazardous Substance" shall
include any wastes, materials, substances, pollutants, and other matters regulated by
Environmental Laws.
8.5 Intentionally Deleted.
8.6 Intentionally Deleted.
8.7 Intentionally Deleted.
8.8 Survival. All of the representations, warranties, and agreements of Seller set forth
in this Agreement shall be true upon the Effective Date of this Agreement, shall be deemed to be
repeated at and as of the Closing Date, and shall survive the delivery of the Grant Deed and the
Closing for a period of one (1) year. Prior to a termination of this Agreement, Seller shall not take
any action, fail to take any required action, or willfully allow or consent to any action that would
cause any of Seller's representations or warranties to become untrue. If any representation or
warranty of Seller was true as of the Effective Date of this Agreement, but is not true as of the
Closing Date, then Seller shall disclose this changed fact to City in writing. So long as Seller
makes the foregoing disclosure and the change of circumstances regarding the representation or
warranty did not arise due to the fault of Seller, then Seller shall not be in breach of this Agreement
due to the fact that the representation or warranty has become untrue as of the Closing Date;
provided, however, the fact that any representation or warranty under this Section 8 is untrue as of
the Closing Date shall still be a failure of a condition pursuant to Section 6.1.2.
Section 9. CITY'S REPRESENTATIONS AND WARRANTIES. City represents and
warrants to Seller, as of the Agreement Date and as of the Closing Date, as follows:
9.1 City' s Authority; Validity of Agreements. City has full right, power, and authority
to purchase and acquire the Property from Seller as provided in this Agreement and to carry out
its obligations hereunder. The individuals executing this Agreement and the instruments
referenced in this Agreement on behalf of City has/have the legal power, right, and actual authority
to bind City to the terms of this Agreement and such instruments and documents. This Agreement
is, and all other instruments, documents, and agreements to be executed and delivered by City in
connection with this Agreement shall be, duly authorized, executed, and delivered by City and the
valid, binding, and enforceable obligations of City (except as enforcement may be limited by
bankruptcy, insolvency, or similar laws) and do not, and as of the Closing Date will not, violate
any provision of any law, statute, ordinance, rule, regulation, agreement or judicial order to which
City is a Party or to which City is subject.
9.2 Survival. All of the representations, warranties, and agreements of City set forth in
this Agreement shall be true upon the Effective Date of this Agreement, shall be deemed to be
repeated at and as of the Closing Date and shall survive the delivery of the Grant Deed and the
Closing for a period of one (1) year. Prior to a termination of this Agreement, City shall not take
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any action, fail to take any required action, or willfully allow or consent to any action that would
cause any of City's representations or warranties to become untrue.
Section 10. AS -IS. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT
EXCEPT FOR SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, (A) SELLER IS SELLING AND BUYER
IS PURCHASING THE PROPERTY "AS IS, WHERE IS AND WITH ALL FAULTS," AND
(B) BUYER IS NOT RELYING ON ANY REPRESENTATIONS, WARRANTIES,
COVENANTS OR AGREEMENTS OF ANY KIND WHATSOEVER, WHETHER ORAL OR
WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER OR
ANY SELLER PARTY AS TO ANY MATTER CONCERNING OR RELATING TO THE
PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE PROPERTY
MATERIALS (INCLUDING WITHOUT LIMITATION, THE COMPLETENESS THEREOF),
INCLUDING WITHOUT LIMITATION AS TO: (I) THE QUALITY, NATURE,
HABITABILITY, MERCHANTABILITY, FITNESS, USE, OPERATION, VALUE,
MARKETABILITY, ADEQUACY OR PHYSICAL CONDITION OF THE PROPERTY OR
ANY ASPECT OR PORTION THEREOF (INCLUDING WITHOUT LIMITATION
APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES, ELECTRICAL,
PLUMBING, SEWAGE, AND UTILITY SYSTEMS, SOILS, GEOLOGY AND
GROUNDWATER); (II) THE DIMENSIONS OR LOT SIZE OF THE REAL PROPERTY; (III)
THE DEVELOPMENT OR INCOME POTENTIAL, OR RIGHTS OF OR RELATING TO, THE
PROPERTY, OR THE SUITABILITY, VALUE, ADEQUACY, OR FITNESS OF THE
PROPERTY FOR ANY PARTICULAR PURPOSE; (IV) THE ZONING OR OTHER LEGAL
STATUS OF THE PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON
THE USE OF THE PROPERTY; (V) THE COMPLIANCE OF THE PROPERTY OR ITS
OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES,
ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY
GOVERNMENTAL AUTHORITY OR OF ANY OTHER PERSON OR ENTITY (INCLUDING,
WITHOUT LIMITATION, THE AMERICANS WITH DISABILITIES ACT); (VI) THE
ABILITY OF BUYER TO OBTAIN ANY NECESSARY GOVERNMENTAL APPROVALS,
LICENSES OR PERMITS FOR THE CURRENT USE OR BUYER'S INTENDED USE,
DEVELOPMENT OR REDEVELOPMENT OF THE PROPERTY; (VII) THE PRESENCE OR
ABSENCE OF HAZARDOUS SUBSTANCES OR OTHER HAZARDOUS CONDITIONS ON,
IN, UNDER, ABOVE OR ABOUT THE PROPERTY OR ANY ADJOINING OR
NEIGHBORING PROPERTIES; (VIII) THE QUALITY OF ANY LABOR OR MATERIALS
USED IN ANY IMPROVEMENTS; (IX) THE CONDITION OF TITLE TO THE PROPERTY;
(X) ANY LEASES OR ANY CONTRACTS OR OTHER AGREEMENTS AFFECTING THE
PROPERTY OR THE INTENTIONS OF ANY PERSON WITH RESPECT TO THE
NEGOTIATION AND/OR EXECUTION OF ANY LEASES, CONTRACTS OR
AGREEMENTS WITH RESPECT TO THE PROPERTY OR ANY PORTION THEREOF; OR
(XI) THE ECONOMICS OF, OR THE INCOME AND EXPENSES, REVENUE OR EXPENSE
PROJECTIONS OR OTHER FINANCIAL MATTERS RELATING TO, THE OWNERSHIP OR
OPERATION OF THE PROPERTY. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER IS NOT RELYING
ON ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS OF
SELLER, ANY OTHER SELLER PARTY, OR ANY AGENT OR BROKER OF SELLER,
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WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR
OTHERWISE, OR ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER
RIGHT OR REMEDY IN FAVOR OF BUYER. BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT SELLER IS UNDER NO DUTY TO MAKE ANY INQUIRY REGARDING
ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SELLER, ANY OTHER
SELLER PARTY, OR ANY OTHER AGENT OR BROKER OF SELLER.
IF BUYER PURCHASES THE PROPERTY, ANY REPORTS, REPAIRS OR WORK
REQUIRED OF OR BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND
BUYER AGREES THAT THERE IS NO OBLIGATION ON THE PART OF SELLER EITHER
BEFORE OR AFTER CLOSING TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS
TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH
THE REQUIREMENTS OF ANY INSURER OR GOVERNMENTAL AUTHORITY. BUYER
IS SOLELY RESPONSIBLE FOR OBTAINING THE ISSUANCE OR RE -ISSUANCE OF ANY
CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY
FOR TRANSFER OR OCCUPANCY OF THE PROPERTY OR ANY PORTION THEREOF
AND FOR ANY IMPROVEMENTS, REPAIRS OR ALTERATIONS NECESSARY TO
OBTAIN THE SAME, ALL AT BUYER'S SOLE COST AND EXPENSE.
THE PROVISIONS OF THIS SECTION WILL SURVIVE THE CLOSING OR ANY EARLIER
TERMINATION OF THIS AGREEMENT.
Section 11. RISK OF LOSS.
11.1 Condemnation. If, prior to any Closing, all or any portion of the Property is taken
by condemnation or eminent domain (or is the subject of a pending or contemplated taking which
has not been consummated), Seller shall promptly notify City in writing of such fact. If the
condemnation or eminent domain will result in a "material and adverse effect" (defined below),
City shall have the option to terminate this Agreement upon written notice to Seller given within
ten (10) Business Days after receipt of such notice from Seller, in which event the Deposit shall
be returned to City. Notwithstanding the foregoing, City's failure to provide written notice of
City's election to terminate within such ten (10) Business Day period shall be deemed City's
election to terminate this Agreement. Prior to any termination or deemed termination of this
Agreement, City shall have the right to participate in any proceedings and negotiations with respect
to the taking and any transfer in lieu of taking (and Seller shall not consummate any transfer in
lieu of taking without City's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed). If City waives the right to terminate this Agreement and elects
to proceed with the Closing, then (i) Seller, at, and as a condition precedent to City's obligation to
proceed with, the Closing, must: pay to City (or direct Escrow Agent to credit City against the
Purchase Price for) the amount of all awards for the taking (and any consideration for any transfer
in lieu of taking) actually received by Seller; and assign to City by written instrument reasonably
satisfactory to City all rights or claims to any future awards for the taking (and any consideration
for any transfer in lieu of taking); and (ii) the Parties shall proceed to the Closing pursuant to the
terms hereof without further modification of the terms of this Agreement. For purposes of this
Section 11.1, "material and adverse effect" means a loss of access to a public street resulting from
the condemnation or eminent domain action.
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11.2 Casualty. Prior to the Closing and notwithstanding the pendency of this Agreement,
the entire risk of loss or damage by earthquake, hurricane, tornado, flood, landslide, fire, sinkhole,
contamination by hazardous materials or other casualty shall be borne and assumed by Seller. If,
prior to the Closing, any portion of the Property is damaged as a result of any earthquake,
hurricane, tornado, flood, sinkhole, landslide, fire, contamination by hazardous materials or other
casualty, Seller shall promptly notify City in writing of such fact. If the cost to restore the Property
to its condition as of the Effective Date exceeds ten percent (10%) of the Purchase Price, as
reasonably estimated by City, then City shall have the option to terminate this Agreement upon
written notice to Seller given within ten (10) Business Days after receipt of any such notice from
Seller, in which event the Deposit shall be returned to City. Notwithstanding the foregoing, City's
failure to provide written notice of City's election to terminate within such ten (10) Business Day
period shall be deemed City's election to terminate this Agreement. Prior to any termination or
deemed termination of this Agreement, City shall have the right to participate in any adjustment
of the insurance claim. If City waives the right to terminate this Agreement and elects to proceed
with the Closing, then (i) Seller, at, and as a condition precedent to City's obligation to proceed
with, the Closing, must either: pay to City (or direct Escrow Agent to credit City against the
Purchase Price for) the amount of any insurance proceeds actually received by Seller plus the
amount of any deductible under Seller's insurance; or if no insurance proceeds have been received
by Seller, assign to City by written instrument reasonably satisfactory to City all rights or claims
to the insurance proceeds and credit City against the Purchase Price for any deductible payable
under Seller's insurance policy; and (ii) the Parties shall proceed to the Closing pursuant to the
terms hereof without further modification of the terms of this Agreement.
Section 12. REMEDIES.
12.1 Default by Seller. If Seller shall breach any of the terms or provisions of this
Agreement or otherwise fail to perform any of Seller's obligations under this Agreement at or prior
to Closing, and if such failure continues without cure by Seller for five (5) Business Days after
City provides Seller and Escrow Agent with written notice thereof (a "Seller Default"), then City
may, as City's sole remedies for such failure, but without limiting City's right to recover attorneys'
fees pursuant to Section 14.13 below: (i) waive the effect of such matter and proceed to
consummate this transaction; (ii) cancel this Agreement and receive a full refund of the Deposit;
or (iii) bring an action against Seller for specific performance to compel Seller to convey the
Property to City as required under this Agreement, provided that such action for specific
performance is brought within ninety (90) days of the events or circumstances giving rise to the
claim for specific performance. In no event shall Seller be liable for incidental, consequential
damages, or for punitive damages.
12.2 Default by City. IF CITY FAILS TO CLOSE THE ESCROW ON THE
PURCHASE OF THE PROPERTY AS SET FORTH IN THIS AGREEMENT BECAUSE OF
BUYER'S DEFAULT, THE PARTIES AGREE THAT SELLER MAY TERMINATE THIS
AGREEMENT IN WHICH EVENT SELLER SHALL BE RELEASED FROM SELLER'S
OBLIGATION TO SELL THE PROPERTY TO BUYER AND SELLER SHALL RETAIN AS
LIQUIDATED DAMAGES THE DEPOSIT, WHICH THE PARTIES AGREE IS A
REASONABLE SUM CONSIDERING THE CIRCUMSTANCES EXISTING ON THE
AGREEMENT DATE, INCLUDING THE DIFFICULTY OR IMPRACTICALITY OF
DETERMINING THE ACTUAL DAMAGES TO SELLER. SUCH LIQUIDATED DAMAGES
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SHALL BE SELLER'S EXCLUSIVE REMEDY FOR SUCH DEFAULT, AND SELLER
SHALL ACCEPT SAID LIQUIDATED DAMAGES IN PLACE OF ANY OTHER RIGHTS OR
REMEDIES IT MAY HAVE AGAINST BUYER INCLUDING, BUT NOT LIMITED TO, ANY
RIGHT TO SPECIFIC PERFORMANCE OR OTHER DAMAGES, INCLUDING
ATTORNEYS' FEES. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL NOT
APPLY TO ANY SURVIVING INDEMNITIES OR OTHER OBLIGATIONS WHICH
SURVIVE TERMINATION, NOR SHALL THIS SECTION LIMIT SELLER'S RIGHTS TO
RECOVER ATTORNEYS' FEES AND COSTS PURSUANT TO THE TERMS HEREOF. 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 SECTION 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE
SECTIONS 1671, 1676, AND 1677.
Seller's Initials City'
Section 13. BROKERS. Seller shall be responsible for the costs of any brokerage fees
associated with this transaction. Seller shall indemnify, defend, protect, and hold City harmless
for, from, and against any and all Claims associated with brokerage fees by reason of any breach
or inaccuracy of the representation, warranty, and agreement of Seller contained in this Section.
The provisions of this Section shall survive the Closing or earlier termination of this Agreement.
Section 14. MISCELLANEOUS PROVISIONS.
14.1 Entire Agreement. This Agreement, including the exhibits attached hereto,
constitutes the entire agreement between City and Seller pertaining to the subject matter hereof
and supersedes all prior agreements, understandings, letters of intent, term sheets, negotiations,
and discussions, whether oral or written, of the Parties, and there are no warranties, representations,
or other agreements, express or implied, made to either Party by the other Party in connection with
the subject matter hereof except as specifically set forth in this Agreement or in the documents
delivered pursuant hereto or in connection herewith.
14.2 Modification; Waiver. No supplement, modification, waiver, or termination of this
Agreement shall be binding unless executed in writing by the Party to be bound thereby. No
waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
14.3 Notices. All notices, consents, requests, reports, demands or other communications
hereunder (collectively, "Notices") shall be in writing and may be given personally, by registered
or certified mail, by electronic mail, by courier, or by Federal Express (or other reputable overnight
delivery service) for overnight delivery, as follows:
To City:
City of Redlands, a municipal corporation
P.O. Box 3005
35 Cajon Street, Suite 222
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With a copy to:
To Seller:
With a copy to:
To Escrow Agent:
Redlands, CA 92373
Attention: Jeanne Donaldson, City Clerk
Telephone: (909) 798-7531
Email: idonaldsonAcityofredlands.org
Best Best & Krieger, LLP
P.O. Box 1028
Riverside, CA 92502
Attn: Scott Ditfurth & Todd Gee
Email: Scott.Ditfurth@bbklaw.com; Todd.Gee@,bbklaw.com
Redlands Community Investment Corporation
380 New York Street
Redlands, CA 92373
Attention: Donald J. Berry, Jr., Vice President
Telephone: (909) 369-2252
Email: dberry@esri.com
Kutak Rock LLP
8601 N. Scottsdale Road, Suite 300
Scottsdale, Arizona 85253
Attn: Arik J. Michelson and Alli H. Swenson
Email: arik.michelson@kutakrock.com;
allison.swenson@kutakrock.com
First American Title Company
901 Via Piemonte, Suite 150
Ontario, CA 91764
Attention: Kelly Simoneau
Telephone: (909) 510-6206
Email: ksimoneau@firstam.com
Or to such other address or such other person as the addressee Party shall have last designated by
Notice to the other Party and Escrow Agent. All Notices shall be deemed to have been given three
(3) days following deposit in the United States Postal Service (postage prepaid) or, upon receipt,
if sent by overnight delivery service, courier, facsimile transmission (so long as confirmed by the
appropriate automatic confirmation page), electronic mail (so long as receipt is acknowledged or
otherwise confirmed), or personally delivered. Notice to a Party shall not be effective unless and
until each required copy of such Notice is given. The inability to deliver a Notice because of a
changed address of which no Notice was given or an inoperative facsimile number for which no
Notice was given of a substitute number, or any rejection or other refusal to accept any Notice,
shall be deemed to be the receipt of the Notice as of the date of such inability to deliver or rejection
or refusal to accept. Any Notice to be given by any Party may be given by legal counsel for such
Party. Telephone numbers are provided in this Agreement for convenience only and shall not alter
the manner of giving Notice set forth in this Section 14.3.
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14.4 Expenses. Subject to the provision for payment of the Closing Costs in accordance
with the terms of Section 7.6 of this Agreement and of any other provision of this Agreement,
whether or not the transaction contemplated by this Agreement shall be consummated, all fees and
expenses incurred by any Party hereto in connection with this Agreement shall be borne by such
Party.
14.5 Severability. Any provision or part of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall, as to such situation and such jurisdiction,
be ineffective only to the extent of such invalidity and shall not affect the enforceability of the
remaining provisions hereof or the validity or enforceability of any such provision in any other
situation or in any other jurisdiction.
14.6 Successors and Assigns. Neither Seller nor City shall assign its rights under this
Agreement without the consent of the other Party, which consent shall not be unreasonably
withheld or delayed. Notwithstanding any such assignment, no assignment shall relieve the
assignor of any obligations or liability under this Agreement. Subject to the foregoing, all of the
Parties' rights, duties, benefits, liabilities, and obligations under this Agreement shall inure to the
benefit of, and be binding upon, their respective successors and assigns.
14.7 Counterparts. This Agreement may be executed in as many counterparts as may be
deemed necessary and convenient, and by the different Parties hereto on separate counterparts,
each of which, when so executed, including, without limitation, by .pdf scanned counterparts of
any initialed or executed pages delivered via electronic mail, shall be deemed an original, but all
such counterparts shall constitute one and the same instrument.
14.8 Governing Law; Jurisdiction. This Agreement shall be governed by and construed
under the laws of the State of California without regard to conflicts -of -laws principles that would
require the application of any other law. Each Party hereby consents to the exclusive jurisdiction
of any court of competent jurisdiction in San Bernardino County in any action related to or arising
under this Agreement.
14.9 Headings. The Section headings of this Agreement are for convenience of
reference only and shall not be deemed to modify, explain, restrict, alter, or affect the meaning or
interpretation of any provision hereof.
14.10 Time of Essence. Time shall be of the essence with respect to all matters
contemplated by this Agreement.
14:11 Further Assurances. In addition to the actions recited in this Agreement and
contemplated to be performed, executed, and/or delivered by Seller and City, during the term of
this Agreement and after the Closing, Seller and City agree to perform, execute, and/or deliver or
cause to be performed, executed, and/or delivered any and all such further acts, instruments, deeds,
and assurances as may be reasonably required to consummate the transaction contemplated hereby.
In furtherance of the foregoing, so long as City is not in default under the terms of this Agreement,
Seller will cooperate, as reasonably needed, and at no cost to Seller, in City's due diligence review
process, which shall include but not be limited to Seller's consent to City's unrestricted access to
agencies, representatives, tenants, consultants and other parties familiar with the Property and the
execution and delivery of such applications or other documents as reasonably requested by City.
18
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14.12 Construction. As used in this Agreement, the masculine, feminine, and neuter
gender and the singular or plural shall each be construed to include the 'other whenever the context
so requires. This Agreement shall be construed as a whole and in accordance with its fair meaning,
without regard to any presumption or rule of construction causing this Agreement or any part of it
to be construed against the Party causing this Agreement to be written. The Parties acknowledge
that each has had a full and fair opportunity to review this Agreement and to have it reviewed by
counsel. If any words or phrases in this Agreement have been stricken, whether or not replaced
by other words or phrases, this Agreement shall be construed (if otherwise clear and unambiguous)
as if the stricken matter never appeared and no inference shall be drawn from the former presence
of the stricken matters in this Agreement or from the fact that such matters were stricken.
14.13 Attorneys' Fees. If either Party brings an action or proceeding against the other
Party to enforce or interpret any of the covenants, conditions, agreements, or provisions of this
Agreement, the prevailing Party in such action or proceeding shall be awarded actual costs and
expenses of such action or proceeding, including, without limitation, reasonable attorneys' fees
(including fees for a Party's use of in-house counsel), charges, disbursements, and the fees and
costs of expert witnesses. If any Party secures a judgment in any such action or proceeding, then
any costs and expenses (including, but not limited to, attorneys' fees and costs) incurred by the
prevailing Party in enforcing such judgment, or any costs and expenses (including, but not limited
to, attorneys' fees and costs) incurred by the prevailing Party in any appeal from such judgment in
connection with such appeal shall be recoverable separately from and in addition to any other
amount included in such judgment. The preceding sentence is intended to be severable from the
other provisions of this Agreement, and shall survive and not be merged into any such judgment.
This Section shall survive Closing and any earlier termination of this Agreement.
14.14 Business Days. As used in this Agreement, the term "Business Day" shall mean a
day that is not a Saturday, Sunday, or legal holiday. If the date for the performance of any covenant
or obligation under this Agreement shall fall on a Saturday, Sunday, or legal holiday, the date for
performance thereof shall be extended to the next Business Day. Similarly, if the day for the
performance of any covenant or obligation under this Agreement involving Escrow Agent shall
fall on a Business Day on which Escrow Agent is closed for business to the public, the date for
performance thereof shall be extended to the next Business Day on which Escrow Agent is open
for business to the public.
19
I;\cmo\Agreements\Redlands Community Investment Corporation Purchase and Sale Agreement FY22-0276.docx-msv7
The Parties have executed this Agreement as of the day and year first written above.
CITY OF REDLANDS,
a municipal corporation
REDLANDS COMMUNITY
INVESTMENT CORPORATION,
a California corporation
By. /� ✓ ' !'i B
ddie Tejeda, Mayor
ATTEST:
e Donaldson, City Clerk
ESCROW AGENT:
The undersigned Escrow Agent hereby accepts the foregoing Purchase and Sale Agreement and
Joint Escrow Instructions, agrees to act as Escrow Agent under this Agreement in strict accordance
with its terms, agrees to insert as the "Agreement Date" on page 1 of this Agreement, if not
otherwise dated, the latest date this Agreement was signed by Seller and City and delivered to
Escrow Agent, and agrees to comply with the applicable provisions of the Internal Revenue Code
with respect to the transactions contemplated hereby.
Date: 10/25/23
FIRST AMERICAN TITLE COMPANY
By: /1' //, c54;42d
Name: Ko(y Simoneau
Title: Senior Commercial Escrow Officer
20
I:\cmo\Agreements\Redlands Community Investment Corporation Purchase and Sale Agreement FY22-0276.docx-msv7
LIST OF EXHIBITS
EXHIBIT "A" GRANT DEED
EXHIBIT "B" NON -FOREIGN AFFIDAVIT
EXHIBIT "C" PROPERTY MATERIALS
4873-2985-2522.6
EXHIBIT "A"
GRANT DEED
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
City of Redlands
P.O. Box 3005
Redlands, California 92373
Attention: City Clerk
(Space Above for Recorder's Use)
APN Numbers 0171-071-08-0000, 0171-088-06-0000, 0171-088-07-0000
GRANT DEED
The undersigned Grantor declares that Documentary Transfer Tax is not shown pursuant
to Section 11922 of the California Revenue and Taxation Code, as amended.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency
of which is hereby acknowledged, REDLANDS COMMUNITY INVESTMENT
CORPORATION, a California corporation (the "Grantor"), hereby grants to CITY OF
REDLANDS, a municipal corporation, the real property in the City of Redlands, County of San
Bernardino, State of California, described in Exhibit "1" attached to and incorporated in this
Agreement by this reference.
Subject to matters of record in the Official Records of San Bernardino County, California.
[signature page follows]
4873-2985-2522.6
MAIL TAX STATEMENTS TO:
City of Redlands
P.O. Box 3005
Redlands, California 92373
Attention: City Clerk
IN WITNESS WHEREOF, the Grantor has executed this Grant Deed as of
,2023.
GRANTOR:
REDLANDS COMMUNITY INVESTMENT
CORPORATION, a California corporation
Donald J. rry, Jr. Vice P dent
4873-2985-2522.6
A notary public or other officer completing this
certificate verified only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
STATE OF CALIFORNIA
ss.
COUNTY OF SAN BERNARDINO )
On October 13 , 2023, before me, Veronica Burgess
Notary Public, personally appeared Donald J. Berry, Jr
, who proved to me on the basis of satisfactory evidence to be the person,0')
whose name('), is/r6 subscribed to the within instrument and acknowledged to me that
he/sbe fi y/executed the same in hisaher/tb it authorized capacity(i,,,es')'. and that by his/be /th &
signature(s)" on the instrument the person(s); or the entity upon behalf of which the person(s)" acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
VERONICA BURGESS
Notary Public • California
San Bernardino County
Commission # 2355846
My Comm. Expires Apr 28, 2025
4873-2985-2522.6
Public
Notary
In and For Said County and State
FORM OF CERTIFICATE OF ACCEPTANCE
This is to Certify that the interest in real property conveyed by the Grant Deed dated
, 2023, from Redlands Community Investment Corporation, a California
corporation, to the City of Redlands, a municipal corporation, is hereby accepted by the
undersigned officer or agent on behalf of the City Council of the City of Redlands pursuant to
the authority conferred by Resolution No. 6756 of the City Council of the City of Redlands
adopted on September 3, 2008 and the grantee consents to recordation thereof by its duly
authorized officer.
Dated:
By:
Name: Charles M. Duggan, Jr.
Title: City Manager
ATTEST:
Jeanne Donaldson, City Clerk
4873-2985-2522.6
EXHIBIT "1" TO GRANT DEED
LEGAL DESCRIPTION
APN 0171-071-08-0000
REDLANDS TOWN PLAT LOTS 8 9 AND 10 BLK 14 EX ST
APN 0171-088-06-0000
REDLANDS TOWN PLAT N 81 FT LOT 8 AND N 81 FT W 24 FT LOT 9 BLK 20
APN 0171-088-07-0000
REDLANDS TOWN PLAT N 81 FT W 18 FT LOT 1 AND N 81 FT E 16 FT LOT 9 BLK 20
4873-2985-2522.6
Document No.
Recorded , 2023
STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION
NOT BE MADE A PART OF THE PERMANENT RECORD IN THE OFFICE
OF THE COUNTY RECORDER (PURSUANT TO SECTION 11922 REVENUE
AND TAXATION CODE)
TO: Recorder
County of San Bernardino
Request is hereby made in accordance with the provisions of the Documentary Transfer
Tax Act that the amount of the tax due not be shown on the original document which names:
Grantor: REDLANDS COMMUNITY INVESTMENT CORPORATION, a California
corporation
Grantee: CITY OF REDLANDS, a municipal corporation
The property described in the accompanying document is located in the City of Redlands,
County of San Bernardino.
The amount of tax due on the accompanying document is $ , computed on
the full value of the property conveyed.
(Signature of Grantor or Agent)
REDLANDS COMMUNITY INVESTMENT
CORPORATION
a California corporation
Note: After the permanent record is made, this form will be affixed to the conveying document
and returned with it.
4873-2985-2522.6
EXHIBIT "B"
NON -FOREIGN AFFIDAVIT
STATE OF e4 aril/ 0I )
) ss.
County o f JM & harrxiift 6 )
The undersigned, as authorized agent of REDLANDS COMMUNITY INVESTMENT
CORPORATION, a California corporation ("Transferor"), after being duly sworn upon his
oath deposes and says that:
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property
interest must withhold tax if the transferor is a foreign person. To inform CTTY OF
REDLANDS, a municipal corporation, ("Transferee"), that withholding of tax is not
required upon the disposition of Transferor's interest in a U.S. real property interest, the
undersigned hereby certifies the following:
1. Transferor is not a non-resident alien, foreign corporation, foreign partnership, foreign
trust, foreign estate, or other foreign person within the meaning of § 1445 and § 7701
of the Internal Revenue Code and the treasury regulations promulgated thereunder;
2. Transferor is not a disregarded entity as defined in Treas. Reg. § 1.1445-2(b)(2)(iii);
3. Transferor's U.S. taxpayer identification number is: h;
4. Transferor's business address is `i () Box. jc i5T1 `2 44a,► a, 2375-
Transferor understands that this certification may be disclosed to the Internal Revenue Service
by Transferee and that any false statement contained in this Agreement could be punished by
fine, imprisonment, or both.
Under penalties of perjury Transferor declares that it has examined this certification and to
the best of its knowledge and belief this certification is true, correct, and complete. The
undersigned agent declares that he has the authority to sign this document on behalf of
Transferor.
TRANSFEROR:
REDLANDS COMMUNITY
INVESTMENT CORPORATION
a California corporation
4873-2985-2522,6
A notary public or other officer completing this
certificate verified only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
STATE OF CALIFORNIA
ss.
COUNTY OF SAN BERNARDINO )
On October 13 , 2023, before me, Veronica Burgess
, Notary Public, personally appeared Donald J. Berry, Jr
, who proved to me on the basis of satisfactory evidence to be the persorl,(s)-`
whose names)°" is/air ` subscribed to the within instrument and acknowledged to me that
he/sjier/f .e?/executed the same in his/her/their'-authorized capacity(ips') 'and that by his/h r/thGir'"
signature sYon the instrument the persor(), or the entity upon behalf of which the person(sY'acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
r,Yf VERONICA BURGESS
: Notary Public • California
- San Bernardino County
Commission # 2355846
,Caw My Comm. Expires Apr 28, 2025
4873-2985-2522.6
otary Public
In and For Said County and State
EXHIBIT "C"
PROPERTY MATERIALS
To the extent applicable, Seller shall provide to City and City's counsel at Seller's sole
cost and expense complete copies of all of the documents ("Property Materials")
including, but not limited to:
1. Existing Leases or Rental Agreements (whether or not recorded) with any person
or entity that relates to the Property.
2. Existing License Agreements or Easements (whether or not recorded) with any
person or entity that relates to the Property.
3. Property Materials that may come into Seller's possession or control from and
after the Effective Date of this Agreement.
4. Any additional documents and information in the possession or control of Seller
reasonably requested in writing by City.
4873-2985-2522.6