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HomeMy WebLinkAbout05.E- Successor Agency AR City Council Memorandum Date: January 9, 2016 To: Honorable Mayor and City Council Members From: Mark Scott, City Manager By: Gigi Hanna, City Clerk John Paul Maier, Chief Deputy City Clerk Subject: Amendment to Agenda Item 5E Purchase and Sale Agreement and Joint Escrow Instructions for E. Cooley Avenue Industrial Property It has come to staff's attention to address non-substantial minor changes to the Purchase and Sale Agreement and Relocation Waiver and Agreement. Attached is the revised agreement. Please feel free to be in touch with the City Clerk Gigi Hanna (hanna ri r sbcit�org) or Chief Deputy City Clerk John Maier (maier jop_sbcity.orq) should you have any questions. PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS SELLER: Successor Agency to the Redevelopment Agency of the City of San Bernardino BUYER: Cooley Properties, L.P., a California limited partnership DATED: January 9, 2017 (Parcel No. 5 of Parcel Map No. 4781, APN 0281-031-52 and 0281-021-30) nnnenvii7�n 7�_cnnnn_�oo_�o_n nnnn OCSOG1790772y81200430AM BASIC TERMS Buyer: Cooley Properties, L.P., a California limited partnership Buyer's Address: Cooley Properties,L.P., a California limited partnership Attention: Robert Charton 7040 Avenida Encinas, Suite 104-519 Carlsbad,CA 92011 Email address: Robert.cmgt @gmail.com Tel. (760) 500 1 P4j&L-2M Fax: (858) 756-6832 City: The City of San Bernardino Closing Contingency Date: May 10,2017 Closing Date (or Closing) Estimated to occur by May 18,2017,but not later than the Outside Date I Deed: A grant deed in the form of Exhibit B hereto Effective Date: January 9,2017 Escrow Holder: First American Title Insurance Company 1855 West Redlands Blvd., Suite 100 Redlands, CA 92373 Tel: (909)380-8776 Fax: (866)232-4615 Attention: Cheryl Zanini,Escrow Branch Manager/Escrow Officer (direct: (909)380-8776; email: czanini @firstam.com (or another escrow holder mutually acceptable to Buyer and Seller) Independent Consideration Amount: Two Hundred Dollars($200.00) Outside Dater June 8, 2017; provided that such date may be extended by mutual writing agreement by Seller and Buyer Purchase Price: Three-Hundred Seventy-Three Thousand Dollars($373,000.00). Real Property: That property described in Exhibit A hereto; the subject property is sometimes referred to as APN 0281-031-52 and 0281-021-30 Seller: Successor Agency to the Redevelopment Agency of the City of San Bernardino nnnnDOCSOC/1790772x8/200430-0000 Seller's Address: 300 N. "D" Street San Bernardino, California 92418-0001 Attention: Mark Scott, City Manager Tel. (909)384-5122 Fax: (909)384-5138 Email: Scott—Ma@sbcity.org Soil and Title Contingency Date: April 10, 2017 Title Company: First American Title Insurance Company 1855 West Redlands Blvd., Suite 100 Redlands, CA 92373 Tel: (909)380-8726 Attention: Tammy Kerr, Senior California Title Officer (direct: (909)380-8726; email: tkerr @firstam.com) (or another title insurer mutually acceptable to Buyer and Seller) 2 DOCSOC/l 790772vA/200430-0000 PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("Agreement") is made and entered into as of January 9, 2017 (the "Effective Date")by and between Seller and Buyer. RECITALS A. Seller is the fee owner of the Real Property. The Real Property is unimproved. Most of the Real Property is unusable for commercial purposes as it is either part of the embankment or river bed of the adjacent Santa Ana River, portions of which are included within an easement area affecting the Real Property held by the County of San Bernardino for the Santa Ana River Trail (the "SART Easement"). The Real Property's net usable area is approximately 1.91 acres. Buyer acknowledges that the Real Property is encumbered with the SART Easement. B. Buyer, currently owns the land and building located at 1475 Cooley Court("Cooley Court Site"), which abuts the Real Property. Greenbrier Rail Services ("Greenbrier") currently leases the Cooley Court Site and the Real Property for their business operations (i.e., the refurbishment of rail car wheels). Greenbrier provides employment of between 36-75 highly skilled workers (the number varies depending on the orders they receive) at their facilities located at the Cooley Court Site and the Real Property. Greenbrier's current lease for the Cooley Court Site is effective through May 31, 2022 (the "Greenbrier Lease"). C. Greenbrier's lease with the Successor Agency for the Real Property expired on October 31, 2015. To allow time for the Buyer to acquire the Real Property and to amend its lease with Greenbrier to include the Real Property, the Successor Agency has permitted Greenbrier to hold-over on a month-to-month basis. Buyer intends to amend the Greenbrier Lease to include the Real Property to ensure that Greenbrier's business operations continue at the two sites and ultimately to extend Greenbrier's tenancy.- which amendment shall be in form and substance reasonably satisfactory to Buyer and Seller. D. Seller has offered to sell to Buyer the Real Property described herein for the price and subject to the terms set forth below. Buyer has considered the offer by Seller and agrees to buy from Seller the Real Property, as more specifically described below. E. In addition to the Purchase Price, a material consideration to Seller in agreeing to sell the Real Property to Buyer pursuant to this Agreement and but for which Seller would not have agreed to enter into this Agreement or sell the Real Property to Buyer,Buyer has: (i) Agreed to pay to Seller the Independent Consideration Amount; (ii) Agreed to amend the Greenbrier Lease to include the Real Property; and (iii) Agreed to the provisions set forth in Section 15 hereof. 3 OCS OC/1790772 v8/200430-0000 NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows: 1. Purchase and Sale. Seller hereby agrees to sell the Real Property to Buyer, and Buyer hereby agrees to purchase the Real Property from Seller, on the terms and conditions set forth in this Agreement. The term Real Property is defined collectively as the following: (a) The fee interest in the Real Property to be conveyed by a grant deed in the form of the Deed; and (b) All personal property,equipment, supplies, and fixtures owned by Seller and located at the Real Property. 2. Payment of Consideration. As consideration for the sale of the Real Property from Seller to Buyer, Buyer shall, at the Closing(as defined below), pay to Seller the Purchase Price for the Real Property. Upon payment of the Purchase Price (less any adjustments made to clear liens and to defray Seller's costs of sale including, but not limited to, the preparation of legal documents and validation of the purchase price incurred by the City of San Bernardino and the Seller's share of closing costs),the use of sales proceeds by Seller is a matter with which Buyer is not concerned. 3. Escrow and Independent Consideration. (a) Opening of Escrow. For the purposes of this Agreement,the escrow ("Escrow")shall be deemed opened("Opening of Escrow")on the date that Escrow Holder receives a copy of this Agreement fully executed by Buyer and Seller. Buyer and Seller shall use their best efforts to cause the Opening of Escrow to occur on or before five (5) business days after the Effective Date. Escrow Holder shall promptly notify Buyer and Seller in writing of the date of the IOpening of Escrow. This Agreement will constitute escrow- instructions to the Escrow Holder Buyer and Seller agree to execute, deliver and be bound by any reasonable or customary supplemental escrow instructions or other instruments reasonably required by Escrow Holder to consummate the transaction contemplated by this Agreement; provided, however, that no such instruments shall be inconsistent or in conflict with, amend or supersede any portion of this Agreement. If there is any conflict or inconsistency between the terms of such instruments and the terms of this Agreement, then the terms of this Agreement shall control. Without limiting the generality of the foregoing, no such instruments shall extinguish any obligations imposed by this Agreement or any other agreement between Seller and Buyer. (b) Independent Consideration. Within two(2)days after the Effective Date, Buyer shall pay to Seller the Independent Consideration Amount to be retained by Seller as non-refundable independent consideration. The Independent Consideration Amount has been bargained for and agreed to as consideration for Seller's execution and delivery of this Agreement Iand B*yef5ga u holding the Real Property off the market for a period commencing as of the Effective Date and continuing until the Outside Date and for the rights and privileges granted to Buyer herein, including any and all rights granted to Buyer to terminate this Agreement under the circumstances provided for herein. Notwithstanding anything to the contrary contained in this Agreement,the Independent Consideration Amount shall be non-refundable in all events, except for (i) Seller's default hereunder, (ii)the failure of the Oversight Board to approve the sale of the Real Property as provided under this Agreement, and (iii) actions by the California Department of 4 I DOCSOC/1790772v8/200430-0000 Finance("DOF")which prevent the disposition of the Real Property to Buyer as provided under this Agreement. If the Closing occurs, a credit shall be applied to the Purchase Price based upon payment of the Independent Consideration Amount. (c) Closing. For purposes of this Agreement,the"Closing"or"Closing Date" shall be the date the Deed(as defined below) is recorded pursuant to applicable law in the county in which the Real Property is located. Unless changed in writing by Buyer and Seller, the Closing shall occur on the Closing Date, or as soon thereafter as the conditions precedent to closing are satisfied pursuant to Sections 6 and 7 of this Agreement. If the Closing has not, for any reason, occurred by the Closing Date, then either Buyer or Seller may terminate this Agreement by delivering written notice to the other at any time after the outside Closing Date (i.e. the Outside D-aW; provided, however, that if either party is in default under this Agreement at the time of such termination, then such termination shall not affect the rights and remedies of the non-defaulting party against the defaulting party. 4. Seller's Delivery of Real Property and Formation Documents. Within ten(10) days after the Effective Date, Seller shall deliver to Buyer the following items (collectively, the Property Documents"): (a) Such reasonable proof of Sellers' authority and authorization to enter into this Agreement and to consummate this transaction as may be reasonably r-e"es4ed by Buyer- and the Title Gempan) consistent with the terms of this Agreement, including without limitation approval of the Oversight Board of the sale of the Real Property by Seller to Buyer. Mb To the extent in the possession of Seller or persons under Seller's, control, any environmental impact reports. "Phase I" or "Phase Ii" reports,or environmental site assessments concerning Hazardous Materials (as defined below)-on the Real iALUtty. complaints or notices of the presence of Hazardous Materials on the Real Property, j!eolo[jeal surveys soil tests engineering reports inspection results complaints or notices received regarding the safety of the Real Pro elm (c To the extent in the possession of Seller, all materials related to ep nding or threatened litigation involving the Real Property, including correspondence. complaints, court orders, settlements, and judgments to the extent such matters are within the actual knowledge of the Executive Director of the Successor A2_c nvest nono g_ation with respect thereto having been undertaken, All contract, agreement or instrument to which Seller is a qty pertaining to the Real Property. In addition, Seller shall cause Escrow Holder to obtain and deliver to Buyer a Natural Hazard Report as provided for under Sections 1102 and 1103 of the California Civil Code (the "Natural Hazard Report") oft or-before the Soil andTitle days after the Ongning of Escrow. but in no event later than the thirtieth (30`h) day after the Date. Innrenr�ii�nn���..cnnnn�n nnnnDOCSOC/1790772v8/200 30-0000 r 5. Buyer's Right of Entry. From and after the Opening of Escrow through the earlier to occur of the termination of this Agreement or the Soil and Title Contingency Date, or as otherwise agreed in writing by Seller prior to entry is effected, Buyer and Buyer's employees, agents, consultants and contractors shall have the right to enter upon the Real Property during normal business hours,provided reasonable prior notice has been given to Seller. (a) Investigation of the Real Property. In addition to the foregoing,the Buyer shall have the right, at its sole cost and expense, prior to the Soil and Title Contingency Date, to- engage its own efivir-enmental eensultant (the " to make such evaluations, inspections, tests or investigations as Buyer deems necessary or appropriate, including any "Phase 1" or "Phase 2" investigations of the Real Property. If, based upon such e lu"t"e" p � vestigations, Buyer determines that it, in evaluations, inspections,tests or its sole discretion, does not wish to proceed with purchase of the Real Property based upon the condition of the Real Property, Buyer may cancel this Agreement by giving written notice of termination to Seller on or before the Soil and Title Contingency Date Whieh spee:c:""»-,r"r this Seetien S.- If Buyer does not cancel this Agreement by the time allowed under this Section 5, Buyer shall be deemed to have approved the evaluatiengvaluations, inspections and tests as provided herein and to have elected to proceed with this transaction on the terms and conditions of this Agreement. Seller shall be provided a copy of all reports and test results provided by Buyer's Envir-onmental Consultant environmental con Rant promptly after receipt by the Buyer of any such reports and test results without any representation or warranty as to their accuracy or completeness;_provided however. Buyer will not be required to deliver any such reports or test results if the written contract which Buyer entered into with the environmental consultant who prepared Such report or tot results specifically forbids the dissemination of the report or test results to others. Buyer shall bear all costs, if any, associated with restoring the Real Property to substantially the same condition prior to its testing by or on behalf of Buyer if requested to so do by Seller but excluding any latent defects or Hazardous Materials (as defined below) discovered by Buyer during its investigation of the Real Property. Buyer agrees to indemnify,protect,defend(with counsel satisfactory to Seller) and hold Seller and the Real Property free and harmless from and against all costs, claims, losses, liabilities, damages,judgments,actions, demands, attorneys' fees or mechanic's liens arising out of or resulting from any entry or activities on the Real Property by Buyer, Buyer's agents, contractors or subcontractors and the contractors and subcontractors of such agents, but in no event shall the indemnity of this Section include the discovery of pre-existing conditions by Buyer or any such liabilities, costs, etc. arising from the negligence or willful misconduct of Seller and/or its consultants. The indemnity obligations of Buyer set forth in this Section 5(a)shall survive any termination of this Agreement or the Close of Escrow. "Hazardous Materials"means any substance, material,or waste which is or becomes regulated by any local governmental authority, the County, the State of California, regional governmental authority, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste"under Sections 25115,25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a "hazardous substance"under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act (iii) defined as a "hazardous material," "hazardous substance," or"hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 6 DOCSO('/1790772v8/20043n_nr140 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance"under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act(33 U.S.C. §1317), (x)defined as a"hazardous waste"pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act,42 U.S.C. §6901 et seq. (b) No Warranties as To the Real Property. The physical condition and possession of the Real Property, is and shall be delivered from Seller to Buyer in an "as is" condition, with no warranty expressed or implied by Seller, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Real Property for development purposes. In addition, Seller makes no representations,warranties or assurances concerning the Real Property, its suitability for any particular use or with regard to the approval process for entitlements as to the Real Property. (c) Buyer Precautions after Closing. Upon and after the Closing, Buyer shall comply with all laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the I United States, the AateS te, the County, the City, or any other political subdivision in which the Real Property is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over the Real Property ("Governmental Requirements") with respect to Hazardous Materials. 6. Buyer's Conditions Precedent and Termination Right. (a) Conditions Precedent. The Closing and Buyer's obligation to consummate the purchase of the Real Property under this Agreement are subject to the timely satisfaction or written waiver of the following conditions precedent(collectively, "Buyer's Contingencies"),which are for Buyer's benefit only. (i) Title Review. Within twenty(20)calendar days after the Opening of Escrow, but in no event later than the thirtieth (301h) day after the Effective Date, Seller shall cause the Title Company to deliver to Buyer a preliminary title report(the"Report")describing the title to the Real Property, together with copies of the plotted easements and the exceptions (the "Exceptions") set forth in the Report; provided that the cost of the Report shall be borne by Seller. Seller acknowledges that the Buyer's Title Policy shall include an endorsement against the effect of any mechanics' liens; Seller will provide such indemnity or other assurances as necessary to induce the Title Company to provide such endorsement. On or before the Soil and Title Contingency Date, Buyer shall have approved in writing, in Buyer's sole discretion, any matters of title disclosed by the following (collectively, the "Title Documents"): (i) the Report; (ii) the Exceptions; (iii) the legal description of the Real Property and (iv) any survey Buyer desires to obtain at Buyer's sole cost and expense. Buyer shall have the same rights to approve or disapprove any exceptions to title that are not created by Buyer and that come into existence after issuance of the Report but prior to Closing. Seller shall, on or before the Closing,remove all deeds of trust,mortgages,and delinquent taxes(but not the lien for any real property taxes or assessments not yet delinquent). nn�cnrii�on���.,cnnnn�n nnnnDOCSOC/1790772v8/200430-0000 (ii) Buyer's Title Policy. On or before the Closing,the Title Company Ishall, upon payment (by Buyereller in accordance with Section 10(al) of the Title Company's premium,have agreed to issue to Buyer, a standard ALTA owner's policy of title insurance insuring only as to matters of record title ("Standard Buyer's Title Policy") in the amount of the Purchase Price showing fee title to the Real Property vested solely in Buyer and subject only to the (i) the standard, preprinted exceptions to Buyer's Title Policy; (ii) liens to secure payment of real estate taxes or assessments not yet delinquent; (iii) matters affecting the Real Property created by or with the written consent of Buyer; and (iv) those matters specifically approved in writing by Buyer. Buyer shall have the right, at its sole cost and expense, to obtain coverage beyond that offered by a standard ALTA policy (such as an owner's extended coverage ALTA policy); provided, however, that Buyer's ability to obtain such extended coverage shall not be a Buyer's Contingency and Buyer's obligations hereunder shall in no way be conditioned or contingent upon obtaining such extended coverage. Buyer shall have sole responsibility for obtaining, and bearing the cost of, any endorsements and for any survey or other matters required by the Title Company for such extended coverage. In the event Buyer enters into a loan agreement to generate moneys to purchase the Real Property from Seller under this Agreement, Buyer and not Seller shall be responsible for the title insurance, closing costs and any other costs, fees or expenses in relation to Buyer obtaining such loaned moneys. The sale shall be all cash to Seller. (iii) Physireal and-Legal-Inspections and Studies. On or before&LSoil and Title4he Contingency Date, Buyer shall have approved in writing, in Buyer's sole and absolute discretion, the results of any physical and legal inspections, investigations, tests and studies Buyer elects to make or obtain, including, but not limited to, investigations with regard to zoning, building codes and other governmental regulations; engineering tests; soils, seismic and geologic reports; environmental audits, inspections and studies; environmental investigation or other invasive or subsurface testing; and any other physical or legal inspections and/or investigations as Buyer may elect to make or obtain. For the avoidance of doubt, if Buyer fails to give such written notice on or before the SoiL and Title Contingency ate. Buyer will be deemed to have elected to terminate this Agreement (iv) Natural Hazard Report. Within twenty(20) calendar days after the Opening of Escrow, but in no event later than the thirtieth (30th) day after the Effective Seller shall cause the Escrow Holder to provide to Buyer prior to the Soil and Title Contingency Date the Natural Hazard Report described at Section 8(a)(iii) of this Agreement; provided that Buyer shall bear the cost to prepare such Natural Hazard Report. (v) Property and Formation Documents. On or before the Soil and Title IContingency Date, Buyer shall have approved in writing, in Buyer's reasenabk&& discretion, the terms,conditions and status of all of the Property Documents. (vi) Delivery of Documents. Seller's delivery of all documents described in Section 8, below. ' (vii) Representations and Warranties. All representations and warranties of Seller contained in this Agreement shall be true and correct as of the date made and materially true and correct as of the Closing. 8 DOC S OC/1790772 v8/200430-0000 (viii) Title Company Confirmation. The Title Company shall have confirmed that it is prepared to issue the Buyer's Title Policy consistent with the provisions of this Agreement. (ix) Oversight Board and DOF Approval. The Oversight Board and, if required as a condition of the issuance of title insurance or by either party hereto,approval by DOF, shall have been given as to the disposition of the Real Property by Seller to Buyer under this Agreement. Consents. All necessary agreements and consents of all uarties to consummate the transaction contemplated by this Agreement will have been obtained and furnished by Seller to Buyer. Amended Greenbrier Lease. Buyer shall have amended the Greenbrier Lease in the manner described in Recital C. and specifically including a waiver by Greenbrier as to any claims for relocation benefits and/or relocation advisory assistance. which waiver shall be enforceable by each of Seller. Buyer and the City=of San Bernardino.to become effective as of the Closing, which amendment shall be in form and substance reasonably satisfactory to Buyer. xii Greenbrier Quitclaim Deed. In connection with the Memorandum of the Greenbrier Lease required by Seller pursuant to this Agreement. Greenbrier must deliver to Buyer a duly executed and notarized guitclaim deed in recordable form reasonably satisfactory to Buyer. Such quitclaim deed will release and re-convey to Buyer all right, title, and interest of Greenbrier in the Cooley Court Site and Real Pro e upon the expiration or earlier termination of the Amended Greenbrier Lease. Buyer will be ex ress y entitled to hold such quitclaim deed and to permit the quitclaim deed to be recorded upon the expiration or earlier termination of the Amended Greenbrier Lease. iii. (*)-No Default. As of the Closing, Seller shall not be in default in the performance of any material covenant or agreement to be performed by Seller under this Agreement. (b) Termination Right. Each of naragrai)hs-(b)(i);=ajld(ii)and(i4ftim shall operate independently and each shall entitle Seller the respective hart_ to terminate this Agreement,as follows: 0) If the Independent Consideration Amount is not paid by Buyer to Seller by the initial by-the time set forth therefor in Section 3(b)(i) of this Agreement, then Seller may terminate this Agreement giving notice thereof to Buyer;, (ii) If any of Buyer's Contingencies not be met by the Closing Contingency Date, and Sellef se inf fms c"""", Buyer may, by written notice to Seller, terminate this Agreement. If this Agreement so terminated, then (except to the extent expressly allocated to one party hereto by this Agreement) any escrow, title or other cancellation fees shall be paid by Buyer, unless Seller is in default hereunder, in which case Seller shall pay all such fees. If the Agreement has not been terminated pursuant to (i)or(ii) of this Section 6(b) and Buyer has neither 9 DOCSOC/l 790772v8/200430-0000 terminated this Agreement in writing("Termination Notice")on or before 5:00 p.m. on the Monday preceding the scheduled Closing ("Termination Notice Deadline"), then all such Buyer's Contingencies shall be deemed to have been satisfied and this Agreement shall continue pursuant to its terms. If Buyer has not delivered a Termination Notice as the items set forth in Sections 6(a)(i)-(*i1W) inclusive, prior to the Termination Notice Deadline, such Buyer's Contingencies shall be deemed to have been satisfied. If this Agreement is terminated, then(except to the extent expressly allocated to one party hereto by this Agreement) any escrow, title or other cancellation fees shall be paid by Buyer, unless Seller is in default hereunder, in which case Seller shall pay all such fees. (c) Seller's Cure Right. Buyer shall notify Seller, in Buyer's Termination Notice, of Buyer's disapproval or conditional approval of any Title Documents. Seller shall then have the right, but not the obligation, to (i) remove from title any disapproved or conditionally approved Exception(s) (or cure such other title matters that are the basis of Buyer's disapproval or conditional approval of the Title Documents) within five (5) business days after Seller's receipt of Buyer's Termination Notice, or (ii) provide assurances reasonably satisfactory to Buyer that such Exception(s)will be removed(or other matters cured)on or before the Closing. With respect to any such Exception, it shall be sufficient for purposes hereof for Seller to commit in writing, within the applicable period, to remove such Exception at or before the Closing. Seller's failure to remove such Exception after committing to do so shall be a default hereunder. An Exception shall be deemed removed or cured if Seller furnishes Buyer with evidence that the Title Company will issue the Buyer's Title Policy, as defined herein, at the Closing deleting such Exception or providing an endorsement (at Seller's expense) reasonably satisfactory to Buyer concerning such Exception. If Seller cannot or does not remove or agree to remove any of the disapproved Exception(s) (or cure other matters) within such five (5) business day period, Buyer shall have three (3) business days after the expiration of such five (5) business day period to give Seller written notice that Buyer elects to proceed with the purchase of the Real Property subject to the disapproved Title Document(s), it being understood that Buyer shall have no further recourse against Seller for such disapproved Title Exception(s). For the avoidance of doubt if Buyer fails to give such notice within such three (3) business day period Buyer will be deemed to have elected to tffi inate is Agreement. 7. Seller's Conditions Precedent and Termination Right. The Closing and Seller's obligations with respect to the transaction contemplated by this Agreement are subject to the timely satisfaction or written waiver of the following condition precedent ("Seller's Contingencies"), which are for Seller's benefit only: (a) Completion of Title Review. Seller shall have received written confirmation from Buyer on or before the Soil and Title Contingency Date that Buyer has completed its review of title and that the condition of title satisfactory. (b) Confirmation Concerning Site. Seller shall have received written confirmation from Buyer on or before the Soil and Title Contingency Date that Buyer has reviewed the condition of the Real Property, including without limitation concerning Hazardous Materials, zoning and suitability, and approves the condition of the Real Property. 10 OCSOC/1790772v8/200430-0000 (c) Confirmation Regarding Buyer's Title Policy. Seller shall have received written confirmation from Buyer on or before the Soil and Title Contingency Date that Buyer has approved a pro forma title policy. (d) Liens. Seller shall have obtained the consent of any lien holder to the Irelease of such liens prior to or concurrent with (e) Oversight Board and DOE Approval. The approval by the Oversight Board and DOF shall have been given as to the disposition of the Real Property by Seller to Buyer under this Agreement. (f) Amended Greenbrier Lease SePefB u=shall have amended the Greenbrier Lease in the manner described in Recital C, and specifically including a waiver by Greenbrier as to any claims for relocation benefits and/or relocation advisory assistance. which waiver shall be enforceable by each of Seller Buyer and the City of San Bernardino to become effective as of the Closing which amendment shall be in form and substance reasonably satisfactory to Seller. (g) Delivery of Documents. Buyer's delivery of all documents described in Section 9(a),below. Should any of I*yerl 's Contingencies not be met by the respective times set forth for the satisfaction for such contingency (and without r-egafd to -Al't'er all suah ° fifin, enraies have been °a satisfied) and B,,..°° "°° flf i:med c°"°f, Seller may, by written notice to Buyer, terminate this Agreement; such termination rights shall be in addition to those termination Irights of Seller as set forth in Section 6-.6(b (il. If this Agreement is so terminated, then (except to the extent expressly allocated to one party hereto by this Agreement) any escrow, title or other cancellation fees shall be paid by Buyer. 8. Seller's Deliveries to Escrow Holder. (a) Seller's Delivered Documents. At least one(1)business day prior to the Closing Date, Seller shall deposit or cause to be deposited with Escrow Holder the following items, duly executed and,where appropriate, acknowledged("Seller's Delivered Items"): (i) Deed. The Deed. (ii) FIRPTA/Tax Exemption Forms. The Transferor's Certification of Non-Foreign Status in the form attached hereto as Exhibit C (the "FIRPTA Certificate"), together with any necessary tax withholding forms, and a duly executed California Form 593-C, as applicable(the"California Exemption Certificate"). I (iii) Hazard Disclosure Report. Buye with the terms of this Agreement, Seller shall cause Escrow Holder to obtain and deliver to Buyer, at Seller's cost, a Natural Hazard Report as provided for under Sections 1102 and 1103 of the California Civil Code(the"Natural Hazard Report")before the Closing. (iv) Possession of Real Property. Possession of the Real Property free of any tenancies or occupancy. I n nG,cQrn7nm7-2y 5Qnnn3n_nnnnDOCSOC/1790772v8/200430-0000 (v) Authorijy. Such evidence of Seller's authority and authorization to enter into this Agreement and to consummate this transaction as may be reasonably fequested by Buyer- - kyo Final Escrow Instruction Seller's final written escrow instructions to close e crow in accordance with the terms of this Agreement. ii (-vi*Eurther Documents or Items. Any other documents or items reasonably required to close the transaction contemplated by this Agreement as determined by the Title Company which are consistent with the terms of this Agreement. (b) Failure to Deliver. Should any of Seller's Delivered Items not be timely delivered to Escrow, Buyer may, by written notice to Seller, terminate this Agreement; provided, however, that Buyer may (but shall not be obligated to) in such notice provide Seller with five (5) business days to deliver all of Seller's Delivered Items. If Buyer's notice provides Seller such five (5) business days to deliver Seller's Delivered Items, and if Seller's Delivered Items are not delivered within such period, then this Agreement shall automatically terminate without further action or notice. In the event of any such termination, any cash deposited by Buyer shall immediately be returned to Buyer. Under no circumstances shall Buyer have any responsibility to or duty to pay consultants or real estate brokers retained by Seller, Seller being solely responsible in connection with any such contractual arrangements of Seller. 9. Buyer's Deliveries to Escrow. At least one(1)business day prior to the Closing Date, Buyer shall deposit or cause to be deposited with Escrow Holder the following, each duly executed and acknowledged, by Buyer as appropriate("Buyer's Delivered Items"): (a) Purchase Price. The Purchase Price, less amounts which Seller confirms in writing to Escrow Holder were theretofore paid to Seller as the Independent Consideration Amount, together with additional funds as are necessary to pay Buyer's closing costs set forth in Section 10(b)herein. In the event Seller does not qualify for an exemption from California withholding tax under Section 18662 of the California Revenue and Taxation Code, as evidenced by the delivery at Closing of the California Exemption Certificate duly executed by Seller, Title Company shall withhold three and one-third percent(3-1/3%)of the Purchase Price on behalf of Buyer for payment to the California Franchise Tax Board in accordance with Section I I(b) hereof. In the event Seller is not exempt from such withholding or does not otherwise deliver the California Exemption Certificate at Closing, Buyer shall execute and deliver three (3) originals of California Form 593 to Title Company at or immediately after Closing. (b) Change of Ownership Report. One(1)original Preliminary Change of Ownership Report. (c) Final Escrow Instructions. Buyer's final written escrow instructions to close escrow in accordance with the terms of this Agreement. (d) Authori . Such proof of Buyer's authority and authorization to enter into this Agreement and to consummate the transaction contemplated hereby as may be reasonably requested by Seller or the Title Company. 12 D OCS OC/1790772v8/200430-0000 (e) Moneys for Buyer's Real Estate Broker. Buyer shall deposit any moneys due and payable to any broker retained by Buyer in connection with the sale of the Real Property by Seller to Buyer. (f) Amended Greenbrier Lease. One fully executed copy of the Amended Greenbrier Lease that includes the Real Property, which Amended Greenbrier Lease shall be in form and substance reasonably satisfactory to Seller,to become effective as of the Closing,together with a copy of a memorandum of lease("Memorandum") in form reasonably acceptable to Seller to be recorded at Closing. (g) Further Documents or Items. Any other documents or items reasonably required to close the transaction contemplated by this Agreement as determined by the Title Company. 10. Costs and Expenses. (a) Seller's Costs. If the transaction contemplated by this Agreement is consummated, then Seller shall be debited for and bear the following costs: (i) costs and charges associated with the removal of encumbrances; (ii) Seller's share of prorations; (iii)the premium for a Standard Buyer's Title Policy with coverage in the amount of the Purchase Price; (iv) documentary recording fees, if any; (v) documentary transfer tax, if any; (vi) one half of the escrow charges; and(vii) costs, if any, allocable to Seller under this Agreement and costs for such services as Seller may additionally request that Escrow perform on its behalf (which foregoing items collectively constitute"Seller's Costs and Debited Amounts"). (b) Buyer's Costs. If the transaction contemplated by this Agreement is I consummated,then Buyer shall bear the following costs and expenses: (i)the Eser-e w Heider's f (ii) Buyer's share of prorations, (viii) the premium for title insurance other than or in excess of a Standard Buyer's Title Policy based on the Purchase Price, and, if applicable, the cost for any survey required in connection with the delivery of an ALTA owner's extended coverage policy of title insurance; 04W one half of escrow charges; (vW recording and other costs of closing; (,viy) costs, if any, for such services as Buyer may additionally request that Escrow perform on its behalf, and (vibi)any costs associated with Buyer borrowing money in order to pay to Seller the Purchase Price(collectively,"Buyer's Costs and Debited Amounts"). (c) Generally. Each party shall bear the costs of its own attorneys,consultants, and real estate brokers in connection with the negotiation and preparation of this Agreement and the consummation of the transaction contemplated hereby. Buyer represents to Seller that Buyer and not Seller shall be solely responsible for payment in connection with the services of any consultants, finders or real estate brokers engaged by Buyer in connection with the purchase of the Real Property from the Seller. Seller represents to Buyer that Seller has not engaged the services of any consultants, finders or real estate brokers in connection with the sale of the Real Property to the Buyer. 11. Prorations, Withholding. (a) All revenues(if any)and expenses relating to the Real Property(including, but not limited to, property taxes, utility costs and expenses, water charges and sewer rents and refuse collection charges) shall be prorated as of the Closing Date; provided that all delinquent 13 DOCSOC/I 790772v8/200430-0000 taxes shall be satisfied at the expense of Seller. Not less than five (5) business days prior to the Closing, Seller shall deliver to Buyer a tentative schedule of prorations for Buyer's approval (the "Proration and Expense Schedule"). If any prorations made under this Section shall require final adjustment after the Closing,then the parties shall make the appropriate adjustments promptly when accurate information becomes available and either party hereto shall be entitled to an adjustment to correct the same. Any corrected or adjustment proration shall be paid promptly in cash to the party entitled thereto. (b) In the event Seller does not qualify for an exemption from California withholding tax under Section 18662 of the California Revenue and Taxation Code (the "Tax Code") as evidenced by the delivery to Buyer at Closing of the California Exemption Certificate duly executed by Seller, (i) Title Company shall withhold three and one-third percent (3-1/3%) of the Purchase Price on behalf of Buyer at Closing for payment to the California Franchise Tax Board in accordance with the Tax Code, (ii) Buyer shall deliver three (3) duly executed copies of California Form 593 to Title Company at or immediately after Closing, (iii) two (2) copies of California Form 593 shall be delivered by Title Company to Seller, and (iv) on or before the 201 day of the month following the month title to the Real Property is transferred to Buyer(as evidenced by the recording of the Grant Deed), Title Company shall remit such funds withheld from the Purchase Price, together with one (1) copy of California Form 593 to the California Franchise Tax Board on behalf of Buyer. Buyer and Seller hereby appoint Title Company as a reporting entity under the Tax Code, authorized to withhold and remit the withholding tax contemplated under the Tax Code, together with such other documents required by the Tax Code (including, without limitation, California Form 593),to the California Franchise Tax Board. 12. Closing Procedure. When the Title Company is unconditionally prepared(subject to payment of the premium therefor) to issue the Buyer's Title Policy and all required documents and funds have been deposited with Escrow Holder, Escrow Holder shall immediately close Escrow in the manner and order provided below. (a) Recording. Escrow Holder shall cause the Deed and the Memorandum to be recorded pursuant to applicable law in the county in which the Real Property is located and obtain conformed copies thereof for distribution to Buyer and Seller. (b) Disburse Funds. Escrow Holder shall debit or credit(as provided herein)all Buyer's Costs and Debited Amounts, Seller's Costs and Debited Amounts and General Expenses, prorate matters and withhold funds as provided herein. The Purchase Price, less any applicable debits or credits (including any liens as to which such liens and the amount to satisfy such liens shall have been confirmed in writing by Seller to Escrow Holder) shall be distributed by check payable to Seller unless Escrow Holder is instructed otherwise in writing signed by Seller(and, in such event, in accordance with such instructions). Seller authorizes Escrow Holder to request demands for payment and to make such payments from the Purchase Price (or such other funds, if any, as are advanced by Seller) to defray the cost of removing deeds of trust, liens and other encumbrances (but not for obligations of Buyer). Escrow Holder shall disburse on behalf of Buyer such moneys as are deposited by Buyer (in addition to the Purchase Price and Buyer's share of closing costs) as the commission for Buyer's real estate broker, if any (unless Buyer's real estate broker shall deliver a written statement to Escrow Holder which indicates that Buyer has arranged to pay Buyer's Real Estate Broker outside escrow and that payment of such remuneration is a matter with respect to which Escrow Holder and Seller need not be concerned). 14 DOCSOC/1790772v8/2004�n-noon (c) Documents to Seller. Escrow Holder shall deliver to Seller a conformed copy of the Deed, and documents, if any, recorded on behalf of any lender, as duly recorded among the official land records of the County of San Bernardino, and a copy of each other document (or copies thereof)deposited into Escrow by Buyer pursuant hereto. i i (d) Documents to Buyer. Escrow Holder shall deliver to Buyer the original FIRPTA Certificate,the original California Exemption Certificate (as applicable), and a conformed copy of each of the Deed as duly recorded among the official land records of the County of San Bernardino, the Natural Hazard Report, and each other document(or copies thereof) deposited into Escrow by Seller pursuant hereto, including, without limitation, those documents referenced in Section 8. (e) Title Company. Escrow Holder shall cause the Title Company to issue the Buyer's Title Policy to Buyer. (f) Closing Statement. Escrow Holder shall forward to both Buyer and Seller a separate accounting of all funds received and disbursed for each party. (g) Informational Reports. Escrow Holder shall file any information reports required by Internal Revenue Code Section 6045(e), as amended. (h) Possession. Possession of the Real Property shall be delivered to Buyer at the Closing. 13. Representations and Warranties. (a) Seller's Representations and Warranties. In consideration of Buyer entering into this Agreement and as an inducement to Buyer to purchase the Real Property, Seller makes the following representations and warranties as of the Effective Date and as of the Closing, each of which is material and is being relied upon by Buyer (and the truth and accuracy of which shall constitute a condition precedent to Buyer's obligations hereunder), and all of which are material inducements to Buyer to enter into this Agreement(and but for which Buyer would not have entered into this Agreement) and shall survive Closing; (i) Seller believes that 4t has the legal power,right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transaction contemplated subject to the approval of the Oversight Board and, as may be applicable,DOF. (ii) Subject to the approval of the Oversight Board and, as may be applicable, DOF, all requisite action (corporate, trust, partnership or otherwise) has been taken by Seller in connection with entering into this Agreement and the instruments referenced herein; and, by the Closing, all such necessary action will have been taken to authorize the consummation of the transaction contemplated hereby. (iii) Subject to the approval of the Oversight Board and, as may be applicable, DOF, the individual executing this Agreement and the instruments referenced herein on nn�en�n�nn���.,cnnnn�n nnnnDOCSOG1790772y8/200430-0000 behalf of Seller has the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. (iv) `Sher believes`hM neithe- the execution or delivery of this Agreement or the documents or instruments referenced herein, nor incurring the obligations set forth herein, nor the consummation of the transaction contemplated herein,nor compliance with the terms of this Agreement or the documents or instruments referenced herein or therein conflict with or result in the material breach of any terms, conditions or provisions of, or constitute a default under, any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, lease or other agreement or instrument to which Seller is a party or that affect the Real Property, including,but not limited to, any of the Title Documents or the Property Documents. I (v) There is no pending litigation nor,to the best&rte knowledge= of the Executive Director of the Successor Agency, threatened litigation, which does or will adversely affect the right of Seller to convey the Real Property. There are no claims which have been received by Seller that have not been disclosed to Buyer. (vi) Seller has made no written or oral commitments to or agreements with any governmental authority or agency materially and adversely affecting the Real Property, or any part hereof, or any interest therein,which will survive the Closing. (vii) There are no leases or rental agreements in effect as to the Real Property, other than the month-to-month tenancy of Greenbrier. I (viii) To the best knowledge of the Executive Director of the S ce sor encv Seller is not in default of its obligations under any contract, agreement or instrument to which Seller is a party pertaining to the Real Property. I (ix) eTo the best knowledge of the Executive Director of the Successor Agency, there are no mechanics', materialmen's or similar claims or liens presently claimed or which will be claimed against the Real Property for work performed or commenced for Seller or on Seller's behalf prior to the date of this Agreement. I (x) Y hefeTo the best knowledge of the Executive Director of the Successor Agency. there are no undisclosed contracts, licenses, commitments, undertakings or other written or oral agreements for services, supplies or materials concerning the use, operation, maintenance, or management of the Real Property that will be binding upon Buyer or the Real I Property after the Closing. There To the best knowledge of the Executive Director of the Successor Agency, there are no oral contracts or other oral agreements for services, supplies or materials, affecting the use, operation,maintenance or management of the Real Property. (xi) There are not as of the Effective Date, nor will there be as of the Closing, any written or oral leases or contractual right or option to lease, purchase, or otherwise enjoy possession, rights or interest of any nature in and to the Real Property or any part thereof, other than the month-to-month tenancy of Greenbrier, and no person other than Buyer shall have any right of possession to the Real Property or any part thereof as of the Closing. vocsocii�9m�z�Ri2n 16n-noon j (xii) No person, excepting Seller,has possession or any rights to possession of the Real Property or portion thereof, other than the month-to-month tenancy of Greenbrier. (b) Subsequent Changes to Seller's Representations and Warranties. If,prior to j the Closing, Buyer or Seller should learn, discover or become aware of any existing or new item, fact or circumstance which renders a representation or warranty of Seller set forth herein incorrect or untrue in any respect (collectively, the "Seller Representation Matter"), then the party who has learned, discovered or become aware of such Representation Matter shall promptly give written notice thereof to the other party and Seller's representations and warranties shall be automatically limited to account for the Representation Matter. Buyer shall have the right to approve or disapprove any such change and to terminate this Agreement by written notice to Seller if Buyer reasonably disapproves any such change. If Buyer does not elect to terminate this Agreement, Seller's representation shall be qualified by such Seller Representation Matter and Seller shall have no obligation to Buyer for such Seller Representation Matter. (c) Buyer's Representations and Warranties. In consideration of Seller entering into this Agreement and as an inducement to Seller to sell the Real Property, Buyer makes the following representations and warranties as of the date hereof and at and as of the Closing, each of which is material and is being relied upon by Seller (and the truth and accuracy of which shall constitute a condition precedent to Seller's obligations hereunder), and all of which shall survive Closing: (i) Buyer has the legal power,right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transaction contemplated hereby. (ii) All requisite action has been taken by Buyer in connection with entering into this Agreement and the instruments referenced herein; and, by the Closing, all such necessary action will have been taken to authorize the consummation of the transaction contemplated hereby. (iii) The individuals executing this Agreement and the instruments referenced herein on behalf of Buyer have the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof. (iv) Neither the execution and delivery of this Agreement and the documents and instruments referenced herein, nor incurring the obligations set forth herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms of this Agreement and the documents and instruments referenced herein conflict with or result in the material breach of any terms, conditions or provisions of, or constitute a default under, any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreement or instrument to which Buyer is a party or by which any of Buyer's properties are bound. (d) Subsequent Changes to Buyer's Representations and Warranties. If,prior to the Closing, Seller or Buyer should learn, discover or become aware of any existing or new item, fact or circumstance which renders a representation or warranty of Buyer set forth herein incorrect or untrue in any respect(collectively, the "Buyer's Representation Matter"), then the party who has nnnennii�on���.,ci�nnnzn 0000 DOCSOC/1790772-8/200 30-0000 learned, discovered or become aware of such Buyer's Representation Matter shall promptly give written notice thereof to the other party and Buyer's representations and warranties shall be automatically limited to account for the Buyer's Representation Matter. Seller shall have the right to approve or disapprove any such change and to terminate this Agreement by written notice to Buyer if Seller reasonably disapproves any such change. If Seller does not elect to terminate this I Agreement, eempl anee with all th r s ,1,...]arming and : .. . : ._. _ . :.,men4. _f the San a� Befnafdiae xxxaixxvipai Code, and all nendiseriminatiert, label=—Buyers representation shall be qualified by such Buyer's Representation Matter and Buyer shall have no obligation to Seller for such Buyer's Representation Matter. 14. Fair Value Price. The$373,000 Purchase Price is equal to the average of the Successor Agency's Estimated Current Value, as described in the narrative for Site No. 45: E. Cooley Avenue Industrial Property (pages 210-214) in the Successor Agency's approved Long-Range Property Management Plan (i.e., $372,000) and the market value opinion determined by Empire Valuation and Advisory Services, Inc. in its appraisal dated July 13, 2016 (i.e., $374,000). Therefore, each of Buyer and Seller believes that the Purchase Price represents a fair value price for the Real Property. This Agreement does not require that Buyer undertake any improvements to the Real Property. At such time, if any, as Buyer makes improvements to the Real Property, the costs for planning, designing, and constructing such improvements shall be borne exclusively by the Buyer and the Buyer shall construct or cause to be constructed such improvements in co standard, and wage rate requirements to the extent such labor and wage requirements are applicable. Buyer, including but not limited to its contractors and subcontractors, shall be responsible to comply with Labor Code Section 1720, et seq., if applicable, and its implementing regulations, regarding the payment of prevailing wages(the "State Prevailing Wage Law"), if applicable, and, if applicable, federal prevailing wage law ("Federal Prevailing Wage Law" and, together with State Prevailing Wage Law, "Prevailing Wage Laws")with regard to the construction of improvements to the Real Property, but only if and to the extent such sections are applicable to the development of the Real Property. Insofar as the parties understand that Buyer is paying a fair market price for the Real Property, the parties believe that the payment of prevailing wages will not be required. In any event, Buyer shall be solely responsible for determining and effectuating compliance with the Prevailing Wage Laws, neither the Seller nor the City makes any final representation as to the applicability or non-applicability of the Prevailing Wage Laws to improvements to the Real Property, or any part thereof. Buyer hereby releases from liability, and agrees to indemnify,defend, assume all responsibility for and hold each of the Seller and the City, and their respective officers, employees, agents and representatives, harmless from any and all claims, demands, actions, suits, proceedings, fines, penalties, damages, expenses resulting from, arising out of, or based upon Buyer's acts or omissions pertaining to the compliance with the Prevailing Wage Laws as to the Real Property. This Section 14 shall survive Closing. 15. General Provisions. (a) Indemnification. In addition to the Purchase Price, a material consideration to Seller in agreeing to sell the Real Property to Buyer pursuant to this Agreement and but for which Seller would not have agreed to enter into this Agreement or sell the Real Property to Buyer,Buyer: (i) has agreed to amend the Greenbrier Lease to include the Real Property and to record the Memorandum at Closing, agrees to end shall iadefnni6, and held the Seller-, its eleeted effieiais, empleyees, agents er- Fepr-esenta4ives, ffee and hafmiess fr-efn all elaims, aefiens, damages and liabilities ef on),kind and 3 POGSO 1179n7-n„ nnn c120043 uacs ('/17 rzz sa 40-m 49-Eerie-ems Federal Regulatrens Paft 24,(the " niferffl ele atien Assistance and Deal iiepefty A.,yu..,aaa.,a. , e,..,.w a„a ..,u.,aua and Fvuti.. , u » Regulations, Chapter— , Subehapter l (the"Califemia Relaeatieii Assistanee and Real Pr-epeFty AeEluisi&m Gtiidelines")3 an&ar iv) any Lether—applieable—law (eelleetively, the—"Releea4ien AssistaHee Laws"). As 3artof the fer-egoing indemnityBuyer- agrees to proteec and defend at its awii expense, ineluding a4afney's fees, the Seller-, its eleeted offieials, effipleyees, agents or repfe-sentatives- fem any and based upon-ueh aetual -ter-alleged--aetsof ei . . is with respeet to the Releeation Assirstanee Laws. Buyer hefeby waives afty and all Closing.rights tE) any t�Tes of express of implied indemnity against the Seller-, its eleeted effieials, (b) Condemnation. If any material portion of the Real Property shall be taken or appropriated by a public or quasi-public authority exercising the power of eminent domain, Buyer shall have the right, at its option, to (i)terminate this Agreement or(ii)proceed with the purchase of the Real Property and receive all of the award or payment made in connection with such taking. (c) Notices. All notices, demands,requests or other communications required or permitted hereunder (collectively, "Notices") shall be in writing, shall be addressed to the receiving party as provided in the Basic Terms section above, and shall be personally delivered, sent by overnight mail (Federal Express or another carrier that provides receipts for all deliveries), sent by certified mail, postage prepaid, return receipt requested, or sent by facsimile transmission (provided that a successful transmission report is received). All Notices shall be effective upon receipt at the appropriate address. Notice of change of address shall be given by written notice in the manner detailed in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no Notice in accordance with this Section was given shall be deemed to constitute receipt of such Notice. The providing of copies of Notices to the parties' respective counsels is for information only, is not required for valid Notice and does not alone constitute Notice hereunder. (d) Brokers. Seller assumes sole responsibility for any consultants or brokers ("Seller's Agents") it may have retained in connection with the sale of the Real Property(and Buyer shall have no responsibility in connection with such matters). Seller represents to Buyer that Seller has engaged no consultants, finders or real estate brokers in connection with the sale of the Real Property to the Buyer, and there are no brokerage commission, finder's fee or other compensation of any kind is due or owing to any person or entity in connection with this Agreement. Seller agrees to and does hereby indemnify and hold the Buyer free and harmless from and against any and all costs, liabilities or causes of action or proceedings which may be instituted by any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the Seller in connection with this Agreement. Buyer assumes sole responsibility for any consultants or brokers ("Buyer's Agents") it may have retained in connection with the purchase of the Real Property (and Seller shall have no responsibility in connection with such matters). Buyer represents to Seller that Buyer has engaged no consultants, finders or real estate brokers in connection with the sale of the Real Property to the Buyer, and there are no brokerage commission, finder's fee or other compensation of any kind is due or owing to any person or entity in connection with this Agreement other than Buyer's costs with respect to Buyer's real estate broker, if any. Buyer agrees to and does 19 CSOC/1790772v8/200430-0000 hereby indemnify and hold the Seller free and harmless from and against any and all costs, liabilities or causes of action or proceedings which may be instituted by any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the Buyer in connection with this Agreement. (e) Waiver. Consent and Remedies. Each provision of this Agreement to be performed by Buyer and Seller shall be deemed both a covenant and a condition and shall be a material consideration for Seller's and Buyer's performance hereunder, as appropriate, and any breach thereof by Buyer or Seller shall be deemed a material default hereunder. Either party may specifically and expressly waive in writing any portion of this Agreement or any breach thereof,but no such waiver shall constitute a further or continuing waiver of a preceding or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require further compliance by the other party with any breach or provision so waived. The consent by one party to any act by the other for which such consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or any similar acts in the future. No waiver or consent shall be implied from silence or any failure of a party to act, except as otherwise specified in this Agreement. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement shall be cumulative and no one of them shall be exclusive of any other. Except as otherwise specified herein, either party hereto may pursue any one or more of its rights, options or remedies hereunder or may seek damages or specific performance in the event of the other party's breach hereunder, or may pursue any other remedy at law or equity, whether or not stated in this Agreement. (f) Cooperation. Buyer and Seller agree to execute such instruments and documents and to diligently undertake such actions as may be required in order to consummate the purchase and sale herein contemplated and shall use all reasonable efforts to accomplish the Closing in accordance with the provisions hereof and, following Closing. (g) Remedies. Without limitation as to the availability of other remedies,this Agreement may be enforced by an action for specific enforcement. (h) Time. Time is of the essence of every provision herein contained. In the computation of any period of time provided for in this Agreement or by law, the day of the act or event from which said period of time runs shall be excluded, and the last day of such period shall be included, unless it is a Saturday, Sunday, or legal holiday, in which case the period shall be deemed to run until 5:00 p.m. of the next day that is not a Saturday, Sunday, or legal holiday. Except as otherwise expressly provided herein, all time periods expiring on a specified date or period herein shall be deemed to expire at 5:00 p.m. on such specified date or period. I (i) Counterparts.F*e&ifa4leElectronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. A faesi ile signa4a--esi2nature by faesimile or as an attachment to electronic mail in "Portable Document Format" (PDF) or "Tagged Image File Format" (TIFFI shall be deemed an original signature. 0) Captions. Any captions to, or headings of,the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. nn�cnnn�nn���..cnnnn�n 0 nnnnpOCSOG1790771y004 8/2 30-0000 (k) Obligations to Third Parties. City shall be deemed to be a third party beneficiary of this Agreement. Excepting only for the City, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties to this Agreement to,any person or entity other than the parties hereto. (1) Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. (m) Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. (n) Applicable Law. This Agreement shall be governed by and construed in accordance with the local law of the State of California. (o) Exhibits and Schedules. The exhibits and schedules attached hereto are incorporated herein by this reference for all purposes. (p) Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between, and the final expression of, Buyer and Seller with respect to the subject matter hereof. The parties hereto expressly agree and confirm that this Agreement is executed without reliance on any oral or written statements,representations or promises of any kind which are not expressly contained in this Agreement. No subsequent agreement, representation or promise made by either party hereto, or by or to an employee,officer, agent or representative of either party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. (q) Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the permitted successors and assigns of the parties hereto. (r) Assignment. Neither party may assign its rights under this Agreement without the prior consent of the other party. [signattir-es begin an the fellewing page] nn�enr•n-r�n���..ci�nnn�n nnnnDOCSOC/1790772y8/20�30-4000 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. "SELLER" SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public entity,corporate and politic By: Name: Its: "BUYER" COOLEY PROPERTIES,L.P., a California limited partnership By: Chartwell Management Corp., a Nevada corporation, General Partner By: Name: Robert Charton Its: Vice-President I nOCenC-ii X907721 1?0041 i nnnnAOCSOC/1790772y8/200430-0000 i I Acceptance by Escrow Holder: First American Title Company hereby acknowledges that it has received a fully executed copy of the foregoing Purchase and Sale Agreement and Joint Escrow Instructions by and between the Successor Agency to the Redevelopment Agency of the City of San Bernardino, a public entity, corporate and politic ("Seller"), and Cooley Properties, L.P., a California limited partnership ("Buyer") and agrees to act as Escrow Holder thereunder and to be bound by and strictly perform the terms thereof as such terms apply to Escrow Holder. Dated: 1201_ FIRST AMERICAN TITLE COMPANY By: Name: Its: 00 r-a0G-1I 740772v5,4004 3 n_nnnnpOCSOC/1790772v8/200430-0000 EXHIBIT A LEGAL DESCRIPTION The land referred to herein is situated in the State of California,County of San Bernardino,described as follows: PARCEL NO. 5 OF PARCEL MAP NO. 4781, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 48 OF PARCEL MAPS,PAGE 87, RECORDS OF SAID COUNTY. APN: 0281-031-52 and 0281-021-30 A- 1 DOCSOC-,11700=;4 2004;0 DOCSOG1790772v8/200430-0000 i EXHIBIT B DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Cooley Properties,L.P., a California limited partnership 7040 Avenida Encinas, Suite 104-519 Carlsbad, CA 92011 Attn: Robert Charton APN: 0281-031-52 and 0281-021-30 [Space above for recorder.] DOCUMENTARY TRANSFER TAX computed on the consideration or value of property conveyed;OR computed on the consideration or value less liens or encumbrances remaining at time of sale. Signature of Declarant or Agent determining tax-Firm Name GRANT DEED FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the Successor Agency to the Redevelopment Agency of the City of San Bernardino, a public entity, corporate and politic ("Grantor"), hereby grants to Cooley Properties, L.P., a California limited partnership ("Grantee"), that certain real property located in the County of San Bernardino, State of California, more particularly described on Attachment No. 1 attached hereto and incorporated herein by this reference (the "Property"), subject to existing easements,restrictions and covenants of record. B- 2 rnnenrn��n���.,cnnnnsn 0000 CSOC/17907770t/200430-0000 IN WITNESS WHEREOF,Grantor has executed this Grant Deed as of ,201 SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Name: Its: I B- 3 0000 DOC SOC/1790772v8/200430-0000 ATTACHMENT NO. 1 TO GRANT DEED LEGAL DESCRIPTION The land referred to herein is situated in the State of California, County of San Bernardino, described as follows: PARCEL NO. 5 OF PARCEL MAP NO. 4781, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 48 OF PARCEL MAPS, PAGE 87, RECORDS OF SAID COUNTY. APN: 0281-031-52 and 0281-021-30 ATTACHMENT NO. 1 TO GRANT DEED TO EXHIBIT B DO('SO('/1790772v8/200430-0000 A notary public or other officer completing this certificate verifies 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 ) On , before me, Notary Public, (Print Name of Notary Public) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument. 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. Signature of Notary Public OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual ❑ Corporate Officer Title Or Type Of Document Title(s) ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney-In-Fact ❑ Trustee(s) Number Of Pages ❑ Guardian/Conservator ❑ Other: Signer is representing: Name Of Person(s)Or Entity(ies) Date Of Documents Signer(s)Other Than Named Above DOCS OC/179U772v8/200430-0000 EXHIBIT C FIRPTA CERTIFICATE TRANSFEROR'S CERTIFICATE OF NON-FOREIGN STATUS To inform Cooley Properties, L.P., a California limited partnership ("Transferee"), that withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended ("Code") will not be required upon the transfer of certain real property to the Transferee by the Successor Agency to the Redevelopment Agency of the City of San Bernardino (the, "Transferor"), the undersigned hereby certifies the following: 1. The Transferor is not a foreign person or citizen, foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder); 2. The Transferor's social security number or U.S. employer identification number is as follows: 3. The Transferor's home or office address is: The Transferor understands that this certification may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment or both. Under penalty of perjury,I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document. Successor Agency to the Redevelopment Agency of the City of San Bernardino C-1 n��cn�ii�nn���..cnnnn�n nnnn OCSOG1790772v8/200430-0000 Document comparison by Workshare Compare on Friday, January 06, 2017 2:53:11 PM Input: Document 1 ID Powerpocs://DOCSOC/1790772/5 Description DOCSOC-#1790772-v5-Purchase_and_Sale_Agreement, Cooley_P rope rties, L..P. Document 2 ID Powerpocs://DOCSOC/1790772/8 Description DOCSOC-#1790772-v8-Purchase_and_Sale_Agreement, Cooley_P rope rties, L..P. Rendering set ISYCR 1 Legend: hMx1ion- Deletien N4eved ff omr Moved to Style change Format change �9 Inserted cell cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 78 Deletions 67 Moved from 1 Moved to 1 Style change 0 Format changed 0 Total changes 147 RELOCATION WAIVER AND AGREEMENT This RELOCATION WAIVER AND AGREEMENT RE CESSATION OF TENANCY ("Waiver and Agreement") is made and entered into as of the _ day of , 2017 by the undersigned Greenbrier Rail Services, a ("Occupant"), Cooley Properties, L.P., ca California limited partnership ("Cooley"), the Successor Agency to the Redevelopment Agency of the City of San Bernardino ("Successor Agency"), and the City of San Bernardino ("City"). RECITALS A. Successor Agency is owner of that certain real property (the "Real Property") described as Parcel No. 5 of Parcel Map No. 4781, in the City of San Bernardino, County of San Bernardino, State of California, as per Plat recorded in Book 48 of Parcel Maps, Page 87, Records of said County. Successor Agency is considering the sale of the Real Property to Cooley. B. Occupant currently occupies the Real Property with the consent of Successor Agency notwithstanding that the lease previously entered into between the former San Bernardino Redevelopment Agency ("Former Agency") and Occupant expired on October 31, 2015; occupancy is month to month under a rental agreement(the "Rental Agreement"). C. Cooley owns that certain land and -building known as 1475 Cooley Court (the "Cooley Court Site"), which abuts the Real Property. Occupant currently leases the Colley Court Site for its business operations under a lease which is effective to and including May 31, 2022 (the "Cooley-Greenbrier Lease"). D. Consistent with the mutual understanding between the Successor Agency and Occupant and at Occupant's suggestion, the Successor Agency and Cooley have entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions (the "Purchase and Sale Agreement") with respect to the transfer of the Real Property to Cooley. The effectiveness of the Purchase and Sale Agreement is, among other matters, conditioned upon Cooley amending the Cooley-Greenbrier Lease to include the Real Property to ensure that Occupant's business operations continue at the Real Property and the Cooley Court Site and ultimately to extend Occupant's tenancy. Therefore, and for other reasons, the amendment to the Cooley-Greenbrier Lease will enable the Occupant to remain in the exact same location and position it currently has,thus negating any need to relocate its business operations. E. The parties hereto mutually desire to facilitate the retention of Occupant at the Real Property and the Cooley Court Site. In view of the proposed sale of the Real Property by Successor Agency to Occupant, the parties mutually desire to memorialize certain understandings with regard to a waiver of relocation benefits as more fully set forth herein. F. Occupant is familiar with laws and rules associated with the acquisition of property by public agencies, including without limitation with respect to relocation. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, Occupant agrees as follows: A-1 Page 2 1. Effectiveness. This Waiver and Agreement shall be effective as of the effective date of the amended Cooley-Greenbrier Lease. 2. Representations and Warranties of Occupant. Occupant represents and warrants that each and every statement contained in the recitals hereof is true and correct. 3. ' Relocation Waiver and Agreement. In exchange for: i) the amendment to the Cooley-Greenbrier Lease to include the Real Property to ensure that Occupant's business operations continue at the Real Property and the Cooley Court Site; and ii) Occupant's receipt of certain consideration as set forth in paragraph d)of the Section 3,below, Occupant agrees to: i) relinquish all rights to relocation benefits or assistance arising from or in connection with the termination of the Rental Agreement and arising from or in connection with the sale of the Real Property and future ownership and use of the Real Property by Cooley, and the successors and assigns of Cooley; and ii) terminate the Rental Agreement, as follows: a) Occupant agrees that the Rental Agreement shall be deemed extinguished immediately upon the sale of the Real Property by Successor Agency to Cooley (which date shall be deemed to constitute the "Rental Agreement Termination Date"). The period between the date of this Waiver and Agreement and the Rental Agreement Termination Date is referred to herein as the "Limited Period;" b) During the Limited Period, but not thereafter, Occupant may occupy the Rental Portion (but only such portion of the Real Property that Occupant has occupied during the term of the Rental Agreement), subject to the terms of the Rental Agreement (as modified herein). During the Limited Period, Occupant may only conduct legally-permitted uses on the Real Property which are permitted under the Rental Agreement; C) Based on the effectiveness of the amended Cooley-Greenbrier Lease that will negate any need for Occupant to relocate its business operations from its currently location, Cooley, on behalf of Cooley, City and Successor Agency, shall provide Occupant, as a relocation benefit, with a cash payment of One Dollar ($1.00) (the "Relocation Amount") in consideration of Occupant's provision of this Waiver and Agreement. Each of Cooley, City and Successor Agency shall be beneficiaries of the waiver as provided hereunder by Occupant, and Occupant is knowingly relinquishing any other claims which Occupant may have as to Cooley, Successor Agency or City in connection with the relinquishment by Occupant of its rights as to the Real Property and any rights of Occupant to relocation assistance or benefits in connection with the Real Property by Occupant; d) Notwithstanding any provision of the Rental Agreement to contrary effect, the term of the Rental Agreement shall end as of the Rental Agreement Termination Date; and e) Occupant shall not assign or sublet the Real Property, the Rental Agreement or its rights thereunder or its rights under this Waiver and Agreement. 4. Each of the Successor Agency and the City shall be deemed to be a third party beneficiary of this Agreement and may rely upon the provisions of this Agreement. Cooley will deliver this Agreement to Successor Agency to be maintained on file with Successor Agency. Page 3 5. Acknowledgment. This Waiver and Agreement deals fully and comprehensively with any relocation benefits or assistance for Occupant arising from or in connection with the sale of the Real Property and the cessation of Occupant's rights to the Real Property. 6. Counterparts. This Waiver and Agreement may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. 7. Complete Agreement. This Waiver and Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein, and no prior or contemporaneous agreement or understanding, oral or written, pertaining to any such matters shall be effective for any purpose,except for the Rental Agreement, as modified herein. 8. Successors and Assigns. Every provision of this Waiver and Agreement shall inure to the benefit of the assignees of Cooley and successors in interest to the Real Property and their respective owners,members, managers, subsidiaries,agents, affiliates, successors and assigns. OCCUPANT HAS BEEN ADVISED BY AN ADVISOR OF ITS CHOOSING REGARDING POTENTIAL RELOCATION BENEFITS IN CONNECTION WITH THE DISPOSITION OF THE REAL PROPERTY BY LANDLORD, WHICH MAY OCCUR TO A PUBLIC AGENCY. OCCUPANT AGREES TO AND ACCEPTS THE RELOCATION AMOUNT AS SET FORTH IN SECTION 2 OF THIS WAIVER AND AGREEMENT AS A SETTLEMENT OF ANY POTENTIAL CLAIM FOR RELOCATION BENEFITS AND/OR RELOCATION ASSISTANCE BY OCCUPANT, OCCUPANT, ON BEHALF OF ITSELF AND ITS OWNERS, MEMBERS, SUBSIDIARIES, AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS, RELEASES ANY CLAIMS FOR RELOCATION BENEFITS, RELOCATION ASSISTANCE AND COMPENSATION FOR GOODWILL, LOSS OF USE OF THE SUBJECT PROPERTY, AND ANY AND ALL CLAIMS RELATED TO THE REAL PROPERTY AND THE VACATION AND RELINQUISHMENT THEREOF BY "OCCUPANT" INCLUDING, WITHOUT LIMITATION, ANY CLAIMS WITH RESPECT TO THE SUCCESSOR AGENCY OR CITY IN THE EVENT EITHER SUCCESSOR AGENCY OR CITY SHALL ACQUIRE THE REAL PROPERTY. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. "OCCUPANT" GREENBRIER RAIL SERVICES By: Name: Its: By: Name: Its: (signatures continue on next page) Page 4 "COOLEY COOLEY PROPERTIES, L.P., a California limited partnership By: Chartwell Management Corp., a Nevada corporation, General Partner By: Name: Robert Charton Its: Vice-President "SUCCESSOR AGENCY" SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public entity, corporate and politic By: Name: Its: "CITY" CITY OF SAN BERNARDINO, a charter city and municipal corporation By: Name: Its: 5.E.a { gNAR . . Consent Calendar City of San Bernardino .0 ' Request for Council Action > Date: January 9, 2017 0 L a To: Honorable Mayor and City Council Members L 1+ From: Mark Scott, City Manager By: Andrea Miller, Assistant City Manager Lisa Conner, Project Manager = Subject: Purchase and Sale Agreement and Joint Escrow Instructions between the Successor Agency and Cooley Properties. L.P. o with respect to the E. Cooley Avenue Industrial Property v (APNs 0281-031-52 and 0281-021-30) U i 3 r Recommendation c 0 Adopt a Resolution, in the capacity as the Successor Agency to the Redevelopment Agency of the City of San Bernardino, approving the Purchase and Sale Agreement and Joint Escrow Instructions between the Successor Agency and Cooley Properties, L.P. with respect to two vacant parcels located along Cooley Avenue, San Bernardino, o California (APNs 0281-031-52 and 0281-021-30), and approving certain related actions. U w Background = Pursuant to Health and Safety Cade (the "HSC") § 34172 (a) (1), the Redevelopment Agency of the City of San Bernardino was dissolved on February 1, 2012. Consistent with the provisions of the HSC, on January 9, 2012, the Mayor and City Council elected to serve in the capacity of the Successor Agency to the Redevelopment Agency of the E City of San Bernardino (the "Successor Agency") The Oversight Board for the Successor Agency ("Oversight Board") has been established pursuant to HSC § 34179 a to assist in the wind-down of the dissolved redevelopment agency. On September 15, 2015, the Successor Agency submitted its Oversight Board- _ approved Long-Range Property Management Plan (the "LRPMP") to the California Department of Finance (the "DOF"). On December 31, 2015, the DOF approved the CU Successor Agency's LRPMP and notified the Successor Agency that pursuant to HSC § L 34191.3, the approved LRPMP shall govern, and supersede all other provisions relating a to the disposition and use of all the real property assets of the former redevelopment agency. The approved LRPMP, which addresses the disposition and use of the real E property assets held by the Successor Agency, includes 230 parcels of land grouped U w a Packet Pg. 42 5.E.a ti into forty-six (46) separate sites, eighteen (18) of which were designated as government CO use sites, seven (7) of which are designated as future development sites and twenty- one (21) of which were designated to be sold. 0 .y The Successor Agency is the owner of the real property consisting of an approximately 5,31-acre vacant property identified in the LRPMP as Site No. 45: E. Cooley Avenue Industrial Property, i.e., APNs 0281-531-52 and 0281-021-30 0.65 (the "Property").L Within the LRPMP, the Property: i) is described as a vacant industrial site; ii) is designated for sale; iii) was determined to have an estimated current value of $372,000 (the "ECV"); a and iv) is more fully described in Exhibit "A" which is an excerpt from the LRPMP and is included as Exhibit "A"to the attached Resolution. Discussion Cooley Properties, L.P. (the "Cooley Properties"), currently owns land and a building located at 1475 Cooley Court (the "1475 Cooley Court Building") that abuts the a Successor Agency's 5.31-acre Property. An approximately 4.4-acre portion of the Property is unusable for commercial purposes as it is either part of the embankment or o river bed for the adjacent Santa Ana River, portions of which are included within an U easement the Successor Agency previously granted to the County of San Bernardino w for the Santa Ana River Trail, leaving a net usable area of approximately 1.01 acres. Greenbrier Rail Services (the "Greenbrier") currently leases the 1475 Cooley Court 3 Building and the adjacent Successor Agency-owned Property for their business operations (i.e., the refurbishment of rail car wheels), providing employment of between C 36-75 highly skilled workers (the number of employees varies depending on the orders they receive) at their San Bernardino facilities. Greenbrier currently leases the 1475 L Cooley Court Building through May 31, 2022; however, due to redevelopment dissolution, Greenbrier occupies the Property on a month-to-month holdover basis. 3 0 L V As confirmed in its November 29, 2016 letter, a copy of which is included as Exhibit "B" to w the attached Resolution, Cooley Properties has offered to purchase the Successor Agency's Property for the non-contingent price of $373,000 (the "Purchase Price") for the purpose of enabling Greenbrier's operations to continue in San Bernardino. The Purchase C Price is equal to the average of the Successor Agency's ECV (i.e., $372,000) and the market value opinion determined by Empire Valuation and Advisory Services, Inc., E based on a 10-month market exposure period, in its appraisal dated July 13, 2016 (i.e., $374,000) (i.e., $372,000 + $374,000 = $746,000 _ 2 = $373,000). In consideration that a the Purchase Price is equal to the average between the Successor Agency's ECV and the appraiser's market value opinion and the variance between the two is de minimis, it may be concluded that the Purchase Price offered by Cooley Properties is fair and reasonable. Subsequent to the acquisition of the Property, Cooley Properties, intends to amend its CU lease with Greenbrier to include the Property and to provide for an extended period of L occupancy. The adoption of that attached Resolution will approve the Purchase and a Sale Agreement and Joint Escrow Instructions (the "Agreement") between the Successor Agency and Cooley Properties, with respect to the Property, a copy of which E is included as Exhibit "C" to the attached Resolution, and authorize certain related Packet Pg. 43 5.E.a actions. In addition, consistent with the provisions of the HSC and the LRPMP, the co effectiveness of the Agreement is subject to the approval of the Oversight Board and the DOF. 0 .y The attached Resolution has been reviewed with respect to applicability of the California Environmental Quality Act (the "CEQA"), the State CEQA Guidelines (California Code of X Regulations, Title 14, § 15000 of seq., hereafter the "CEQA Guidelines"), and the City's V_ environmental guidelines. The Resolution does not constitute a "project" for purposes o of CEQA, as that term is defined by CEQA Guidelines § 15378, because this Resolution a is an organizational or administrative activity that will not result in a direct or indirect physical change in the environment, per 3 15378 (b) (5) of the CEQA Guidelines. N Fiscal Impact 0 The sale of the Property to Cooley Properties will enable the retention of Greenbrier Rail Services in San Bernardino. Greenbrier not only provides employment to a significant a number of highly skilled workers, it is also included among the City's top sales tax generators. In this instance, Greenbrier is a business to business sales tax generator. Business to business sales tax generators have a high sales tax generation to City services demand ratio meaning that a greater percentage of the tax revenues generated u.i go to essential services on a City-wide basis. 3 Y In addition, the purchase price for the Property equals $373,000. Per the HSC and the LRPMP, the net proceeds of sale will be submitted to the County Auditor-Controller (the = "CAC"). {once received, the CAC will in turn distribute the funds to the effected taxing entities in proportion to each taxing entities' proportionate share of the General Tax L Y Levy (the "GTL"). As an entitled taxing entity, the City of San Bernardino receives on average approximately 18% of the GTL applicable to the project areas of the City's 3 former redevelopment agency. In this case, the City should receive approximately $67,000 from the net proceeds. w Y Conclusion n Based on the foregoing, staff recommends that the Mayor and Common Council, in its = capacity as the Successor Agency adopt the attached Resolution approving the Purchase and Sale Agreement and Joint Escrow Instructions between the Successor Agency and Cooley Properties, L.P. with respect to two vacant parcels located along Cooley Avenue, San Bernardino, California (APNs 0281-031-52 and 0281-021-30), and approving certain related actions. CU Attachment = Co Attachment 1 — Resolution U L Ward: 3 a. C N Synopsis of Previous Council Actions:None. E s U t4 Y Y Q Packet Pg.44 1 RESOLUTION NO. 2017-_ 2 RESOLUTION OF THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO APPROVING THE PURCHASE AND 3 SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BETWEEN THE 3 4 SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN ' c BERNARDINO AND COOLEY PROPERTIES, L.P., WITH RESPECT TO TWO VACANT a 5 PARCELS LOCATED ALONG COOLEY AVENUE, SAN BERNARDINO, CALIFORNIA ,, (APNs 0281-031-52 and 0181-021-30)AND APPROVING CERTAIN RELATED ACTIONS o 6 ° U 7 WHEREAS, pursuant to Health and Safety Code (the "HSC") § 34172 (a) (1), the Uj Redevelopment Agency of the City of San Bernardino was dissolved on February 1, 2012; and 8 E 9 WHEREAS, consistent with the provisions of the HSC, on January 9, 2012 the Mayor rn and Common Council of the City of San Bernardino elected to serve in the capacity of the 10 11 Successor Agency to the Redevelopment Agency of the City of San Bernardino (the "Successor c ° 12 Agency"); and y 13 WHEREAS, the Oversight Board for the Successor Agency ("Oversight Board") has a 14 been established pursuant to HSC § 34179 to assist in the wind-down of the dissolved 0 co 15 redevelopment agency; and ° 16 WHEREAS, on September 15, 2015, the Successor Agency submitted its Oversight 2 17 Board-approved Long-Range Property Management Plan (the "LRPMP") to the California 0 18 Department of Finance(the "DOF"); and a: 19 WHEREAS, on December 31, 2015, the DOF approved the Successor Agency's fl. LRPMP and notified the Successor Agency that pursuant to HSC § 34191.3, the approved ° 20 a 21 LRPMP shall govern, and supersede all other provisions relating to the disposition and use of all o 0 the real property assets of the former redevelopment agency; and 22 WHEREAS, the approved LRPMP, which addresses the disposition and use of the real 23 Q U) 0. 24 property assets held by the Successor Agency, includes 230 parcels of land grouped into forty- a 25 six (46) separate sites, eighteen (18) of which were designated as government use sites, seven E 26 (7) of which are designated as future development sites and twenty-one (2 1) of which were Q 27 designated to be sold; and 28 1 Packet i 45 I WHEREAS, Cooley Properties, L.P. (the "Cooley Properties"), currently owns land and a 2 building located at 1475 Cooley Court (the "1475 Cooley Court Building") that abuts the Successor 3 Agency's approximately 6.31-acre vacant property identified in the LRPMP as Site No. 45: E. a� 4 Cooley Avenue Industrial Property, i.e., APNs 0281-031-52 and 0281-021-30 (the "Property"), as 5 depicted on Exhibit"A" attached hereto; and 0 6 WHEREAS, within the LRPMP, the Property: i) is described as a vacant industrial site; c0 7 ii) is designated for sale; iii) was determined to have an estimated current value of$372,000 (the w 8 "BCV"); and iv) is more fully described in Exhibit "A" attached hereto, which is an excerpt from E 9 the LRPMP; and Q 10 WHEREAS, an approximately 4.4-acre portion of the Property is unusable for commercial U) 11 purposes as it is either part of the embankment or river bed for the adjacent Santa Ana River, c a� 12 portions of which are included within an easement the Successor Agency previously granted to the U 13 County of San Bernardino for the Santa Ana River Trail, leaving a net usable area of approximately a. 14 1.91 acres; and 15 WHEREAS, Greenbrier Rail Services (the "Greenbrier") currently leases the 1475 Cooley o 16 Court Building and the adjacent Successor Agency-owned Property for their business operations o N CD 17 (i.e., the refurbishment of rail car wheels), providing employment of between 36-75 highly skilled 18 workers (the number of employees varies depending on the orders they receive) at their San 19 Q Bernardino facilities; and o L 20 a WHEREAS, Greenbrier currently leases the 1475 Cooley Court Building through May 31, ID 21 0 2022; however, due to redevelopment dissolution, Greenbrier occupies the Property on a month-to- U 22 month holdover basis; and 23 a WHEREAS, as confirmed in its November 29, 2016 letter, a copy of which is attached to °- 24 c this Resolution as Exhibit `B", Cooley Properties has offered to purchase the Successor Agency's E 25 Property for the non-contingent price of $373,000 (the "Purchase Price") for the purpose of r 26 Q enabling Greenbrier's operations to continue in San Bernardino; and 27 kwWHEREAS, the Purchase Price is equal to the average of the Successor Agency's ECV 28 (i.e., $372,000) and the market value opinion determined by Empire Valuation and Advisory 2 Packet Pg.46 1 Services, Inc., based on a 10-month market exposure period, in its appraisal dated July 13, 2016 2 (i.e., $374,000)(i.e., $372,000+$374,000= $746,000-2 =$373,000); and 3 WHEREAS, in consideration that the Purchase Price is equal to the average between the C31 4 Successor Agency's ECV and the appraiser's market value opinion and the variance between the 5 two is de minimis, it may be concluded that the Purchase Price offered by Cooley Properties is fair 0 6 and reasonable; and 0 U 7 WHEREAS, subsequent to the acquisition of the Property, Cooley Properties, intends to w 8 amend its lease with Greenbrier to include the Property and to provide for an extended period of E 9 occupancy; and a 10 WHEREAS, this Resolution will approve the Purchase and Sale Agreement and Joint 11 Escrow Instructions (the "Agreement") between the Successor Agency and Cooley Properties, C a� 12 with respect to the Property, a copy of which is attached to this Resolution as Exhibit "C", and 13 authorize certain related actions; and a 14 WHEREAS, consistent with the provisions of the HSC and the LRPMP, the co 15 effectiveness of the Agreement is subject to the approval of the Oversight Board and the DOF; _ 0 16 and 0 17 WHEREAS, all actions required by all applicable law to be taken by the Successor Agency W a 18 with respect to the Agreement have been taken in an appropriate and timely manner; and 19 WHEREAS, the Successor Agency has reviewed the staff report in connection with this a 0 L- 20 matter and has evaluated other information provided to it pertaining to the findings proposed to be a CD 21 made hereunder; and 0 22 WHEREAS, this Resolution has been reviewed with respect to applicability of the 23 California Environmental Quality Act (the "CEQA"), the State CEQA Guidelines (California Code can a 24 of Regulations, Title 14, § 15000 et seq., hereafter the "CEQA Guidelines"), and the City's CD E 25 environmental guidelines; and r 26 WHEREAS, this Resolution does not constitute a"project" for purposes of CEQA, as that a 27 term is defined by CEQA Guidelines § 15378, because this Resolution is an organizational or 28 3 Packet Pg. 47 5.E.b 1 administrative activity that will not result in a direct or indirect physical change in the environment, 2 per § 15378 (b) (5) of the CEQA Guidelines; and 3 WHEREAS, all of the prerequisites with respect to the approval of this Resolution have a� 4 been met. (D 5 NOW THREFORE, BE IT RESOLVED BY THE SUCCESSOR AGENCY TO THE 0 6 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AS FOLLOWS: c0 7 Section 1. The foregoing recitals are true and correct and are a substantive part of ui, 8 this Resolution. 0 E 9 Section 2. The $373,000 purchase price for the Property is determined to be fair and a 10 reasonable. 0 co 11 Section 3. The Agreement for the purchase and sale of the Property, attached hereto c R d 12 as Exhibit"C", is approved. s 13 Section 4. On behalf of the Successor Agency, the City Manager, in the capacity as a 14 Executive Director of the Successor Agency, is authorized and directed to: i) execute the c 15 Agreement in substantially the form presented; ii) make ministerial revisions to the Agreement c 0 16 which do not increase the Successor Agency's obligations or materially reduce the consideration 0 N 17 payable to the Successor Agency; iii) sign a grant deed and any other documents the execution a 18 of which is necessary or appropriate to carry out and implement the Agreement; iv) administer N 19 the Successor Agency's obligations under the Agreement; and v) take such other actions and a 0 20 execute such other documents as are necessary as may otherwise be required to fulfill the intent a a _d 21 of this Resolution. 0 0 v 22 Section 5. This Resolution is not a"project" for purposes of CEQA, as that 23 term is defined by Guidelines § 15378, because this Resolution is an organizational or N a 24 administrative activity that will not result in a direct or indirect physical change in the a� E 25 environment,per § 15378 (b) (5) of the Guidelines. 0 w 26 Section 6. This resolution shall take effect only after its adoption and execution in Q 27 the manner as required by the City Charter and the approval of the Agreement by the Oversight 28 Board and the DOF. 4 Packet Pg. 48 5.E.b 1 RESOLUTION OF THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO APPROVING THE PURCHASE AND 2 SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BETWEEN THE 3 SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND COOLEY PROPERTIES, L.P., WITH RESPECT TO TWO VACANT 4 PARCELS LOCATED ALONG COOLEY AVENUE, SAN BERNARDINO, CALIFORNIA c (APNs 0281-031-52 and 0181-021-30)AND APPROVING CERTAIN RELATED ACTIONS Q 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common c 6 U Council of the City of San Bernardino, in its capacity as the Successor Agency to the ui 7 , Redevelopment Agency of the City of San Bernardino at a regular meeting thereof, held on the 9th 8 day of January, 2017,by the following vote,to wit: 9 P a 10 Council Members Armes Nays Abstain Absent Cl) 11 MARQUEZ 12 BARRIOS N R t 13 VALDIVIA 3 a. 14 SHORETT co 0 15 NICKEL c RICHARD ° 16 MULVIHILL N 17 a 18 2 19 d Georgeann Hanna, CMC, City Clerk o 20 a The foregoing Resolution is hereby approved this day of January 2017. 21 0 22 r 23 R. Carey Davis, Mayor N City of San Bernardino a 24 c a� Approved as to Form: E 25 Gary D. Saenz, City Attorney U rr 26 d 27 By: vow " 28 5 Packet Pg. 49 1 EXHIBIT "A" 2 Narrative for Site No. 45 3 E. Cooley Avenue Industrial Property 4 (APNs 0281-031-52 and 0281-021-30) Excerpted from the a 5 Long-Range Property Management Plan (Pages 210-214) 0 6 0 U 7 (See Attachment) ui 8 E W 9 a 10 CO 11 � M a� 12 CU 13 a 14 ti 15 c 0 16 0 0 CD 17 a 18 N N 19 a 0 20 a a� 21 °o U 22 23 a W a 24 a� E 25 U �o 26 a 27 28 6 Packet Pg. 50 5.E.b 1 EXHIBIT "B" 2 Cooley Properties, L.P. 3 November 29, 2016 Purchase Offer Letter 4 CD (See Attachment) > a 5 0 6 0 U Uj 7 ; Y 8 CD E 9 a 10 co 11 v 12 U 13 a. 14 c 15 0 16 0 0 CD 17 n. 18 a� 19 a 0 L- 20 a a a� 21 0 U 22 w 23 a a 24 c ai E 25 26 a 27 28 Packet Pg. 51 1 EXHIBIT "C" 2 Purchase and Sale Agreement and Joint Escrow Instructions 3 Between the Successor Agency to the Redevelopment Agency of the City of San Bernardino 4 And c' Cooley Properties, L.P. a 5 (See Attachment) 0 6 U ui 7 , 8 = d E as 9 Q 10 11 a� 12 U 13 14 C` CO 15 7T- r- 0 16 0 0 17 a 18 m 19 Q. 0 L 20 0 a� 21 0 U 22 r 23 a Cn a 24 a� E 25 26 a 27 kbo 28 g Packet Pg. 52 �I dOW t pue aseLloind : L08V) dWdNl woaj;djaox3'y Iigiyx3•os8b•dl sai:padoad A81000 u}!M vsd :;uOwgoe;;y ui ui SucressorAgency to the Redevelopment Agency of the Cily of Son Bernardino Long-Range Property Alanagement Plan Aram kd lh eenth.r 2015 CL Site No. 45: E. Cooley Avenue Industrial Property Address: E. CooleyAvelute APAls: 0281-021-30 0281-031-52 , u d 210 V Property to Sold Site Xo. 45—E.Cooley Avenue Industrial Property= pue asegoand : L09b) dWdM-1 woij 4daaox3-V I1glgx3-0saB'd-1 saipadWd A81000 y;iM VSd :Iuawgoe;JV n Successor Agency to Me Redevelopment a Agency ofthe City of San Rernurdino y Long-Range Properly Ma mgementPlan U September 2013 Atnewled Uevo Whir 2015 R M Site Nn. 45: E. Cooley Avetrtre Lldustri(rl P1-opel-ty A. Permissible Use(HSC 5 34191.5(c) (2)): Site No.45 is the Cooley Avenue Industrial Property(the"Industrial Property")and is proposed to be sold by the Successor Agency. B. Acquisition ofProper&MSC_63419L5(c)(1)(A)and 534191.5(c) (1) (B)): Property records indicate that the Industrial Property was acquired by the Agency in August 1992, in a condemnation action, and carries a Book Value of$69,761. The Industrial Property was acquired by the Agency in order to meet the revitalization goals of City and the Agency to alleviate the existence and spread of physical and economic blight. The estimated current value(the"ECV") of the Industrial Property is approximately$372,000. C. Site Information(HSC 5 34191.5(c)(1)(C)): The Industrial Property consists of two(2)parcels(APNs 0281-021-30;0281-031-52)totaling 6.31 acres located on E. Cooley Avenue. The Industrial Property is zoned Industrial Heavy(114). The IH designation is intended for a variety of intense industrial activities that could potentially generate significant impacts,such as excessive noise,dust,and other nuisances,such as rail yards and multi- modal transportation centers. This zone is also intended to provide for the continuation and development of heavy manufacturing industries in locations where they will be compatible with and not adversely impact adjacent land uses. On April 3,2013,DOF approved Oversight Board adopted Resolution No. SBOB/2012-20,which authorized the Successor Agency to, among other things, recover the Property from the San Bernardino Economic Development Corporation (the "SBEDC") and to grant a real property easement with respect to a portion of the Property to the SBEDC (see Exhibit "J" — DOF Correspondence), The Successor Agency intends to grant the easement prior to the disposition of the Property. 3 D. Estimated Current Value(IISC 5 34191.5(c)_(1)(D)): To determine an ECV for the Industrial Property, in January 2015, the Agency conducted a comparable sales analysis through the National Data Collective. The ECV was determined to be approximately$372,000. Local factors were not taken into consideration in determining the ECV of this site. The ECV is only a rough estimate that was obtained from an on-line source where only comparable sales data are available.It is not possible to include environmental issues or any other special or unique factors into simple ECV calculations,as such data are not available from the source. Therefore,the actual value of the property may vary significantly from the ECV. The Successor Agency notes that in the environment of AB 1484, it may not be possible to achieve appraised values. The Successor Agency will be in charge of the process seeking to achieve successful marketing of properties,and will.act with reasonable diligence. However,the constraints and enviromnent of AB 1484 militate against maximizing prices. The actual sales prices to be realized will be a function of what a willing buyer is willing to pay under circumstances where there will be no seller financing and dispositions will.be subject to Oversight Board approval. There is no reason to think that book values will be realized. V Property to Sold Site A'o.45-E.Cooley Avenue htdustrial Property pue eseya.rnd : L0817} dWdM-1 woa;;daaox3•V;lglyx3•osaa'd-1 sa1:pedoad Aeloo:D u3lM VSd 3uaru40eUV v to ui to Sri a' SnccessorAgency to the Redevelopment a Agency of the City,of San Bernardino d Long-Range Propero,Atanagentent Plan Y September Amended Ave mher R IoJ3 d Site No. 45: E. Cooley Avenue Iiidustrial Property E. Site Revenues(HSC$34191.5(c)(1)(E)): On November 1, 1997, the Agency (the "Lessor") entered into a Lease and Option to Purchase Agreement(the"I997-Lease")with ABC Rail,Corp.(the"Lessee")to lease the Industrial Property (the"Site") (a 6.31-acre parking lot adjacent to Lessee's facilities on Cooley Court). The basics terms of the 1997-Lease are as follows: (i) one (1) eight (8)year terra, with two (2) successive options to extend the term for five(5)year periods; October 31,2015 is the end of the 2nd option period; (ii) rent is collected on a monthly basis in the amount of$2,900, for an annual total of $34,800;(iii)Lessee responsibilities:(a)use the Site in a careful and proper manner;(b)maintain the Site and improvements thereon, and make all replacements and repairs necessary, except for ordinary wear and tear;(c)pay for all utilities used or supplied to the Site; (d)keep the Site clear of all mechanic liens;(e)pay all real and personal property taxes,including those on the possessory and reversionary interest; and (f) refrain from charging for the use of the Site; (iv) Lessor responsibilities:(a)grant the Lessee an option to purchase the Site at any time Lessee may elect, but before the termination of 1997-Lease,if the Lessee has exercised its option to purchase the property whereon its facilities are located and the adjoining leased property(leased separately by Lessee)and(b)allow the Lessee to hold-over after the expiration of the 1997-Lease,for any cause, and shall be construed to be a tenancy from month-to-month. As of the date of this LRPMP,the Lessee has determined not pursue its option to purchase the site. Instead,the Lessee has requested a lease extension,which is currently under consideration. F. History of Environntental Contamination(HSC$34191.5(e) (1)(F)): There is no known history of environmental contamination.51 E G. Potential for Transit Oriented Development(TOD)acid tlieAdvnneement ofPlatntiiia Obieetives of Successor APency MSC§34191.5(c) (1)(G)) There is no potential fora TOD in conjunction with Industrial Property. Selling the Industrial Property advances the planning objectives of the Successor Agency and the City to develop and revitalize this area of the community through the creation of opportunities for private investment in the City. H. History ofPreviotts Development Proposals and Activity(HSC S 34191.5(e)(1) (H)): There is no history of previous development proposals or activities in conjunction with the Industrial Property. L Disposition of Property: The Successor Agency proposes to sell the Industrial Property in accordance with the Successor Agency's policies and procedures for property disposition as shown in Exhibit "A" Section I. Purchase and Sale Procedures. The ECV of the Industrial Property is approximately$372,000. Date of estitnated current vahte—January 2015 mow..,. 51 htto tlgeotracker wate(boards oa oov(maul`tCMQ=runrepoL&m—addeess=Caotey+Ava<and+Cooley-&t+San+Bemardino _ 212 V.Properly to Sold Site No.45—E.Cooley Avetnte Industrial Property pue aseLloind - LOW dWd211 woa;1daaox3'V 1lgl4x3'0saU-d1 seipedWd Ael000 LI3lM btsd :JuauayoeJJV UJ <o S7atessorAgency to the Red,relopntem � Agency of the 00,of San Bernardino +. t ottg-Range Property Afawgement Plan Y .Seplember 1015 V Amended Ver ember 2015 Site No,45: E. Cooley Auenne Industrial Property Value Basis—The ECV was determined by a comparable sales analysis using the National Data Collective subscription service. The ECV is approximately$372,000. Local factors that may affect land value were not taken into consideration.Therefore,the actual value of the property may vary greatly from the ECV. The ECV is only a planning number and should not be relied upon as a basis for actual value. Proposed sale Elate—TBD and subject to the Successor Agency's implementation of its policies and procedures for property disposition as shown in Exhibit"A." Proposed stile value—TBD and subject to a fair market appraisal conducted by a licensed appraiser. The Successor Agency notes that in the environment of AB 1484,it may not be possible to achieve appraised values. The Successor Agency will be in charge of the process seeking to achieve successful marketing of properties, and will act with reasonable diligence. However, the constraints and environment of AB 1484 militate against maximizing prices. The actual sales prices to be realized will be a function of what a willing buyer is willing to pay tinder circumstances where there will be no seller financing and dispositions will be subject to Oversight Board approval. There is no reason to think that book values will be realized. J. Implementation of the LoimRan-ee Pronertii Management Plat:: Following the approval of the LRPMP by tine DOF, the Successor Agency will implement the LRPMP. For properties to be sold, implementation will include distribution of any land sales proceeds for enforceable obligations and/or distributed as property tax to the taxing entities. Due to the vagaries associated with the sale of land, such as uncertainties concerning the timing of sale and the price that would be realized,it is not feasible to precisely state in tine LRPMP ho%v the funds will be used. In that regard,once an agreement is reached with respect to the purchase and sale of a property,the agreement will be presented to the Oversight Board for concurrence. The Oversight Board's approval will be evidenced by a resolution that will be submitted to DOF and, per the HSC, is subject to DOF's review. That resolution will include or refer to a staff report which describes with greater particularity,once more facts are known,how the proceeds of sale will be distributed. As noted in Section I-Introduction of the LRPMP,the LRPMP provides that proceeds of the sale may be used for enforceable obligations and/or distributed as property tax to the taxing entities through the County Auditor-Controller. The need to retain some or all of the proceeds of sale for enforceable obligations will depend on whether there is a short-fall in RPTTF in the ROPS cycle during which the escrow is anticipated to close. If a short-fall were to occur in the RPTTF at that time,then all or a portion of the sale proceeds should be used to fulfill an enforceable obligation with any remaining sale proceeds then distributed as property tax to the taxing entities through the County Auditor-Controller. If there is not a short-fall in RPTTF at the time of close of escrow, then land sale proceeds would be distributed as property tax to the taxing entities through tine County Auditor-Controller in a manner described at the time of Oversight Board approval as to a 213 V Properly to Sold Site!'V 45—E.Cooley Arenne Industrial Propeerty ue ase oan woa daaox i i x osa sal edoa �e oo i uGw oe p 4 d � LQ8ti) dWd23� �� 3'd�.q.4 3' ?J'dl � d 1 � u�.M KSd :; u jjbt Successor Agency to the Redevelopment Agency of the City of San Bemardino Long-Range Property Afanagement Plan Septemher2015 Anjended Accembrr 2015 Site No. 45: E. Cooley Avenue Industrial Pt-operty particular property sale. Since it is impossible to foresee when and if a short-fall in the RPTTF may occur, or when the property will be sold, the use of the sale proceeds cannot be specifically determined at this time and, therefore, cannot be stated with greater particularity in the LRPMP. However,it is clear that at the time a sale takes place,the sale will be brought back to the Oversight Board and will be subject to review. W_ 214 i'.Property to Solt Site No.45—E.Cooley Avenue Industrial Propet7y Letter of Intent to Purchase Real Estate _ _ d Q This letter covers the basic price and terms that the undersigned, Raymer Properties, L.P. agrees to m purchase the property located at: PARCEL NO. 5 OF PARCEL MAP NO.4781, IN THE CITY OF SAN 00 BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK v u.i 48 OF PARCEL MAPS, PAGE 87, RECORDS OF SAID COUNTY. APN:0281-031-52 and 0281-021-30 PURCHASE PRICE $373,000.00 0 FINANCING: CASH OFFER L Q CONTINGENCIES: None 0 PURCHASE AGREEMENT: Within 15 days of acceptance of this basic agreement, buyer and seller agree -a c to formalize their understanding by completing and signing a standard purchase contract. d y This letter is written with the understanding that no party will be bound by any of the terms of this agreement unless and until the standard form mentioned above covering all the foregoing matters and such additional consideration as any of us deem appropriate has been executed by both parties. a ti 0 This letter of intent shall expire within 60 days of the date signed below. co as SELLER BUYER o d J Successor Agency to the Redevelopment Agency Cooley Properties, L.P.,a California limited m of the City of San Bernardino, a public body, partnership corporate and politic x By: Chartwell Management Corp., a Nevada w corporation, General Partner v°, a� By: By: ko berg Q.Q. J Printed Name: Printed Name: Robert Charton Title: Title: Vice-President a 0 L Address for Notices: Address for Notices: 7040 Avenida Encinas Suite a 104-519 Carlsbad, California 92011 m 0 0 Fax Number: (858)756-6832 U Fax Number: Email Address: robert.cmgt@Rmail.com Email Address: Q Date of Buyer's Signature: 11/29/2016 a. Date of Seller's Signature: _ 0 E 0 r Q Packet Pg. 58 City Council Memorandum p. Date: January 9, 2016 To: Honorable Mayor and City Council Members From: Mark Scott, City Manager By: Gigi Hanna, City Clerk John Paul Maier, Chief Deputy City Clerk Subject: Amendment to Agenda Item 5E Purchase and Sale Agreement and Joint Escrow Instructions for E. Cooley Avenue Industrial Property It has come to staff's attention to address non-substantial minor changes to the Purchase and Sale Agreement and Relocation Waiver and Agreement. Attached is the revised agreement. Please feel free to be in touch with the City Clerk Gigi Hanna (hanna gi@sbcity.org) or Chief Deputy City Clerk John Maier (maier_jo(�Dsbcity.org) should you have any questions. PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS SELLER: Successor Agency to the Redevelopment Agency of the City of San Bernardino BUYER: Cooley Properties, L.P., a California limited partnership DATED: January 9, 2017 (Parcel No. 5 of Parcel Map No. 4781, APN 0281-031-52 and 0281-021-30) DOGSOCA790772,44nnnzn nnnn OCSOC/1790772v8/200430-0000 Seller's Address: 300 N. "D" Street San Bernardino, California 92418-0001 Attention: Mark Scott, City Manager Tel. (909)384-5122 Fax: (909) 384-5138 Email: Scott—Ma@sbcity.org Soil and Title Contingency Date: April 10, 2017 Title Company: First American Title Insurance Company 1855 West Redlands Blvd., Suite 100 Redlands, CA 92373 Tel: (909)380-8726 Attention: Tammy Kerr, Senior California Title Officer (direct: (909) 380-8726; email: tkerr @firstam.com) (or another title insurer mutually acceptable to Buyer and Seller) 2 OCSOC/1790772v8/200430-0000 NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows: 1. Purchase and Sale. Seller hereby agrees to sell the Real Property to Buyer, and Buyer hereby agrees to purchase the Real Property from Seller,on the terms and conditions set forth in this Agreement. The term Real Property is defined collectively as the following: (a) The fee interest in the Real Property to be conveyed by a grant deed in the form of the Deed; and (b) All personal property, equipment,supplies, and fixtures owned by Seller and located at the Real Property. 2. Payment of Consideration. As consideration for the sale of the Real Property from Seller to Buyer, Buyer shall, at the Closing (as defined below), pay to Seller the Purchase Price for the Real Property. Upon payment of the Purchase Price (less any adjustments made to clear liens and to defray Seller's costs of sale including, but not limited to, the preparation of legal documents and validation of the purchase price incurred by the City of San Bernardino and the Seller's share of closing costs),the use of sales proceeds by Seller is a matter with which Buyer is not concerned. 3. Escrow and Independent Consideration. (a) Opening of Escrow. For the purposes of this Agreement,the escrow ("Escrow") shall be deemed opened("Opening of Escrow")on the date that Escrow Holder receives a copy of this Agreement fully executed by Buyer and Seller. Buyer and Seller shall use their best efforts to cause the Opening of Escrow to occur on or before five (5) business days after the Effective Date. Escrow Holder shall promptly notify Buyer and Seller in writing of the date of the IOpening of Escrow. This Agreement will constitute escrow instructions to the Escrow Holder. Buyer and Seller agree to execute, deliver and be bound by any reasonable or customary supplemental escrow instructions or other instruments reasonably required by Escrow Holder to consummate the transaction contemplated by this Agreement; provided, however, that no such instruments shall be inconsistent or in conflict with, amend or supersede any portion of this Agreement. If there is any conflict or inconsistency between the terms of such instruments and the terms of this Agreement, then the terms of this Agreement shall control. Without limiting the generality of the foregoing, no such instruments shall extinguish any obligations imposed by this Agreement or any other agreement between Seller and Buyer. (b) Independent Consideration. Within two(2)days after the Effective Date, Buyer shall pay to Seller the Independent Consideration Amount to be retained by Seller as non-refundable independent consideration. The Independent Consideration Amount has been bargained for and agreed to as consideration for Seller's execution and delivery of this Agreement and Buy,"& ler holding the Real Property off the market for a period commencing as of the Effective Date and continuing until the Outside Date and for the rights and privileges granted to Buyer herein, including any and all rights granted to Buyer to terminate this Agreement under the circumstances provided for herein. Notwithstanding anything to the contrary contained in this Agreement, the Independent Consideration Amount shall be non-refundable in all events, except for (i) Seller's default hereunder, (ii) the failure of the Oversight Board to approve the sale of the Real Property as provided under this Agreement, and (iii) actions by the California Department of 4 nr��enrii�nn���..u�nnn�n nnnnDOCSOC/1790772x8/200430-0000 5. Buyer's Right of Entry. From and after the Opening of Escrow through the earlier to occur of the termination of this Agreement or the Soil and Title Contingency Date, or as otherwise agreed in writing by Seller prior to entry is effected, Buyer and Buyer's employees, agents, consultants and contractors shall have the right to enter upon the Real Property during normal business hours,provided reasonable prior notice has been given to Seller. (a) Investigation of the Real Property. In addition to the foregoing,the Buyer shall have the right, at its sole cost and expense, prior to the Soil and Title Contingency Date, 4o- engage its own envir-onmental eansultant (the " to make such_ valuations inspections tests or investigations as Buyer deems necessary or appropriate, including any "Phase I" or "Phase 2" investigations of the Real Property. If, based upon such I , inspections, tests or in�estiga ieninvestigations, Buyer determines that it, in its sole discretion, does not wish to proceed with purchase of the Real Property based upon the condition of the Real Property, Buyer may cancel this Agreement by giving written notice of termination to Seller on or before the Soil and Title Contingency Date this Seetie , c.. If Buyer does not cancel this Agreement by the time allowed under this Section 5, Buyer shall be deemed to have approved the evalu .4eneyaluatimm inspections and tests as provided herein and to have elected to proceed with this transaction on the terms and conditions of this Agreement. Seller shall be provided a copy of all reports and test results provided by Buyer's Envir-enmental Gees ltantenvironmental consultant promptly after receipt by the Buyer of any such reports and test results without any representation or warranty as to their accuracy or completeness: provided however,Buyer will not be re wired to deliver any such reports or test results if the written contract which Buyer entered into with the environmental con&ultant who prepared such report or test results specifically forbids the dissemination of the re art or test results to others. Buyer shall bear all costs, if any, associated with restoring the Real Property to substantially the same condition prior to its testing by or on behalf of Buyer if requested to so do by Seller but excluding any latent defects or Hazardous Materials (as defined below) discovered by Buyer during its investigation of the Real Property. Buyer agrees to indemnify, protect, defend (with counsel satisfactory to Seller) and hold Seller and the Real Property free and harmless from and against all costs, claims, losses, liabilities, damages,judgments, actions, demands, attorneys' fees or mechanic's liens arising out of or resulting from any entry or activities on the Real Property by Buyer, Buyer's agents, contractors or subcontractors and the contractors and subcontractors of such agents, but in no event shall the indemnity of this Section include the discovery of pre-existing conditions by Buyer or any such liabilities, costs, etc. arising from the negligence or willful misconduct of Seller and/or its consultants. The indemnity obligations of Buyer set forth in this Section 5(a) shall survive any termination of this Agreement or the Close of Escrow. "Hazardous Materials"means any substance, material, or waste which is or becomes regulated by any local governmental authority, the County, the State of California, regional governmental authority, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or"hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 6 HOC SOC/1790772v8/200430-0000 (ii) Buyer's Title Policy. On or before the Closing,the Title Company shall, upon payment (by Buyer-Seller in accordance with Section 10(a ) of the Title Company's premium,have agreed to issue to Buyer, a standard ALTA owner's policy of title insurance insuring only as to matters of record title ("Standard Buyer's Title Policy") in the amount of the Purchase Price showing fee title to the Real Property vested solely in Buyer and subject only to the (i) the standard, preprinted exceptions to Buyer's Title Policy; (ii) liens to secure payment of real estate taxes or assessments not yet delinquent; (iii) matters affecting the Real Property created by or with the written consent of Buyer; and (iv) those matters specifically approved in writing by Buyer. Buyer shall have the right, at its sole cost and expense, to obtain coverage beyond that offered by a standard ALTA policy (such as an owner's extended coverage ALTA policy); provided, however, that Buyer's ability to obtain such extended coverage shall not be a Buyer's Contingency and Buyer's obligations hereunder shall in no way be conditioned or contingent upon obtaining such extended coverage. Buyer shall have sole responsibility for obtaining, and bearing the cost of, any endorsements and for any survey or other matters required by the Title Company for such extended coverage. In the event Buyer enters into a loan agreement to generate moneys to purchase the Real Property from Seller under this Agreement, Buyer and not Seller shall be responsible for the title insurance, closing costs and any other costs, fees or expenses in relation to Buyer obtaining such loaned moneys. The sale shall be all cash to Seller. (iii) Physigal and T egal Inspections and Studies. On or before 1h-e—Soil and Title4he Contingency Date, Buyer shall have approved in writing, in Buyer's sole and absolute discretion, the results of any physical and legal es net feasibility o e......efnie) inspections, investigations, tests and studies Buyer elects to make or obtain, including, but not limited to, investigations with regard to zoning, building codes and other governmental regulations; engineering tests; soils, seismic and geologic reports; environmental audits, inspections and studies; environmental investigation or other invasive or subsurface testing; and any other physical or legal inspections and/or investigations as Buyer may elect to make or obtain. For the avoidance of doubt if Buyer fails to give such written notice on or before the Soil and Title Contingency Bever will be deemed to have elected to terminate this Agreement. (iv) Natural Hazard Report. Within twenty(20)calendar days after the OiDenina of Escrow, but in no event later than the thirtieth (30th) day after theMfective p Seller shall cause the Escrow Holder to provide to Buyer prior to the Soil and Title Contingency Date the Natural Hazard Report described at Section 8(a)(iii) of this Agreement; provided that Buyer shall bear the cost to prepare such Natural Hazard Report. (v) Property and Formation Documents. On or before the Soil and Title Contingency Date, Buyer shall have approved in writing, in Buyer's r-e enables* discretion, the terms, conditions and status of all of the Property Documents. (vi) Delivery of Documents. Seller's delivery of all documents described in Section 8, below. (vii) Representations and Warranties. All representations and warranties of Seller contained in this Agreement shall be true and correct as of the date made and materially true and correct as of the da4e made and as of the Closing. 8 I p0('40C/1790772v8/200430-0000 terminated this Agreement in writing("Termination Notice") on or before 5:00 p.m. on the Monday preceding the scheduled Closing ("Termination Notice Deadline"), then all such Buyer's Contingencies shall be deemed to have been satisfied and this Agreement shall continue pursuant to its terms. If Buyer has not delivered a Termination Notice as the items set forth in Sections 6(a)(i)-(�) inclusive, prior to the Termination Notice Deadline, such Buyer's Contingencies shall be deemed to have been satisfied. If this Agreement is terminated, then (except to the extent expressly allocated to one party hereto by this Agreement) any escrow, title or other cancellation fees shall be paid by Buyer, unless Seller is in default hereunder, in which case Seller shall pay all such fees. (c) Seller's Cure Right. Buyer shall notify Seller, in Buyer's Termination Notice, of Buyer's disapproval or conditional approval of any Title Documents. Seller shall then have the right, but not the obligation, to (i) remove from title any disapproved or conditionally approved Exception(s) (or cure such other title matters that are the basis of Buyer's disapproval or conditional approval of the Title Documents) within five (5) business days after Seller's receipt of Buyer's Termination Notice, or (ii) provide assurances reasonably satisfactory to Buyer that such Exception(s)will be removed(or other matters cured)on or before the Closing. With respect to any such Exception, it shall be sufficient for purposes hereof for Seller to commit in writing, within the applicable period, to remove such Exception at or before the Closing. Seller's failure to remove such Exception after committing to do so shall be a default hereunder. An Exception shall be deemed removed or cured if Seller furnishes Buyer with evidence that the Title Company will issue the Buyer's Title Policy, as defined herein, at the Closing deleting such Exception or providing an endorsement (at Seller's expense) reasonably satisfactory to Buyer concerning such Exception. If Seller cannot or does not remove or agree to remove any of the disapproved Exception(s) (or cure other matters) within such five (5) business day period, Buyer shall have three (3) business days after the expiration of such five (5) business day period to give Seller written notice that Buyer elects to proceed with the purchase of the Real Property subject to the disapproved Title Document(s), it being understood that Buyer shall have no further recourse against Seller for such disapproved Title Exception(s). For the avoidance of doubt. if Buyer fails to give such notice within such three (31 business day period Buyer will be deemed to have elected to terminate this Agreement. 7. Seller's Conditions Precedent and Termination Right. The Closing and Seller's obligations with respect to the transaction contemplated by this Agreement are subject to the timely satisfaction or written waiver of the following condition precedent ("Seller's Contingencies"), which are for Seller's benefit only: (a) Completion of Title Review. Seller shall have received written confirmation from Buyer on or before the Soil and Title Contingency Date that Buyer has completed its review of title and that the condition of title satisfactory. (b) Confirmation Concerning Site. Seller shall have received written confirmation from Buyer on or before the Soil and Title Contingency Date that Buyer has reviewed the condition of the Real Property, including without limitation concerning Hazardous Materials, zoning and suitability, and approves the condition of the Real Property. 10 r�nnennn�on���..c»nnn�n_nnnnDOCSOC/1790772Y$1�40430-0000 (v) Authorijy. Such evidence of Seller's authority and authorization to enter into this Agreement and to consummate this transaction as may be feasenably requested by vyi Final Escrow Instructions Seller's final written escrow instructions to close escrow in accordance with the terms of this Agreement. ii (v+ urther Documents or Items. Any other documents or items reasonably required to close the transaction contemplated by this Agreement as determined by the Title Company which are consistent with the terms of this Agreement. (b) Failure to Deliver. Should any of Seller's Delivered Items not be timely delivered to Escrow, Buyer may, by written notice to Seller, terminate this Agreement; provided, however, that Buyer may (but shall not be obligated to) in such notice provide Seller with five (5) business days to deliver all of Seller's Delivered Items. If Buyer's notice provides Seller such five (5) business days to deliver Seller's Delivered Items, and if Seller's Delivered Items are not delivered within such period, then this Agreement shall automatically terminate without further action or notice. In the event of any such termination, any cash deposited by Buyer shall immediately be returned to Buyer. Under no circumstances shall Buyer have any responsibility to or duty to pay consultants or real estate brokers retained by Seller, Seller being solely responsible in connection with any such contractual arrangements of Seller. 9. Buyer's Deliveries to Escrow. At least one(1)business day prior to the Closing Date, Buyer shall deposit or cause to be deposited with Escrow Holder the following, each duly executed and acknowledged, by Buyer as appropriate("Buyer's Delivered Items"): (a) Purchase Price. The Purchase Price, less amounts which Seller confirms in writing to Escrow Holder were theretofore paid to Seller as the Independent Consideration Amount, together with additional funds as are necessary to pay Buyer's closing costs set forth in Section 10(b)herein. In the event Seller does not qualify for an exemption from California withholding tax under Section 18662 of the California Revenue and Taxation Code, as evidenced by the delivery at Closing of the California Exemption Certificate duly executed by Seller, Title Company shall withhold three and one-third percent(3-1/3%) of the Purchase Price on behalf of Buyer for payment to the California Franchise Tax Board in accordance with Section I l(b) hereof. In the event Seller is not exempt from such withholding or does not otherwise deliver the California Exemption Certificate at Closing, Buyer shall execute and deliver three (3) originals of California Form 593 to Title Company at or immediately after Closing. (b) Change of Ownership Report. One (1) original Preliminary Change of Ownership Report. (c) Final Escrow Instructions. Buyer's final written escrow instructions to close escrow in accordance with the terms of this Agreement. (d) Authority. Such proof of Buyer's authority and authorization to enter into this Agreement and to consummate the transaction contemplated hereby as may be reasonably requested by Seller or the Title Company. 12 r�nrenrii�nn���..ci�nnn�n nnnn OCSOC/1790772v8/200430-0000 taxes shall be satisfied at the expense of Seller. Not less than five (5) business days prior to the Closing, Seller shall deliver to Buyer a tentative schedule of prorations for Buyer's approval (the "Proration and Expense Schedule"). 'If any prorations made under this Section shall require final adjustment after the Closing,then the parties shall make the appropriate adjustments promptly when accurate information becomes available and either party hereto shall be entitled to an adjustment to correct the same. Any corrected or adjustment proration shall be paid promptly in cash to the party entitled thereto. (b) In the event Seller does not qualify for an exemption from California withholding tax under Section 18662 of the California Revenue and Taxation Code (the "Tax Code") as evidenced by the delivery to Buyer at Closing of the California Exemption Certificate duly executed by Seller, (i) Title Company shall withhold three and one-third percent (3-1/3%) of the Purchase Price on behalf of Buyer at Closing for payment to the California Franchise Tax Board in accordance with the Tax Code, (ii) Buyer shall deliver three (3) duly executed copies of California Form 593 to Title Company at or immediately after Closing, (iii) two (2) copies of California Form 593 shall be delivered by Title Company to Seller, and (iv) on or before the 20''' day of the month following the month title to the Real Property is transferred to Buyer(as evidenced by the recording of the Grant Deed), Title Company shall remit such funds withheld from the Purchase Price, together with one (1) copy of California Form 593 to the California Franchise Tax Board on behalf of Buyer. Buyer and Seller hereby appoint Title Company as a reporting entity under the Tax Code, authorized to withhold and remit the withholding tax contemplated under the Tax Code, together with such other documents required by the Tax Code (including, without limitation, California Form 593),to the California Franchise Tax Board. 12. Closing Procedure. When the Title Company is unconditionally prepared(subject to payment of the premium therefor) to issue the Buyer's Title Policy and all required documents and funds have been deposited with Escrow Holder, Escrow Holder shall immediately close Escrow in the manner and order provided below. (a) Recording. Escrow Holder shall cause the Deed and the Memorandum to be recorded pursuant to applicable law in the county in which the Real Property is located and obtain conformed copies thereof for distribution to Buyer and Seller. (b) Disburse Funds. Escrow Holder shall debit or credit(as provided herein) all Buyer's Costs and Debited Amounts, Seller's Costs and Debited Amounts and General Expenses, prorate matters and withhold funds as provided herein. The Purchase Price, less any applicable debits or credits (including any liens as to which such liens and the amount to satisfy such liens shall have been confirmed in writing by Seller to Escrow Holder) shall be distributed by check payable to Seller unless Escrow Holder is instructed otherwise in writing signed by Seller (and, in such event, in accordance with such instructions). Seller authorizes Escrow Holder to request demands for payment and to make such payments from the Purchase Price (or such other funds, if any, as are advanced by Seller) to defray the cost of removing deeds of trust, liens and other encumbrances (but not for obligations of Buyer). Escrow Holder shall disburse on behalf of Buyer such moneys as are deposited by Buyer (in addition to the Purchase Price and Buyer's share of closing costs) as the commission for Buyer's real estate broker, if any (unless Buyer's real estate broker shall deliver a written statement to Escrow Holder which indicates that Buyer has arranged to pay Buyer's Real Estate Broker outside escrow and that payment of such remuneration is a matter with respect to which Escrow Holder and Seller need not be concerned). 14 DOCSOG1 mzzzv8/200430-0000 behalf of Seller has the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. (iv) Seller believes+t,_+_ 4heft the execution or delivery of this Agreement or the documents or instruments referenced herein, nor incurring the obligations set forth herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms of this Agreement or the documents or instruments referenced herein or therein conflict with or result in the material breach of any terms, conditions or provisions of, or constitute a default under, any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, lease or other agreement or instrument to which Seller is a party or that affect the Real Property, including,but not limited to, any of the Title Documents or the Property Documents. (v) There is no pending litigation nor,to the best-eff-Seder's knowledge= of the Executive Director of the Successor Agency, threatened litigation, which does or will adversely affect the right of Seller to convey the Real Property. There are no claims which have been received by Seller that have not been disclosed to Buyer. (vi) Seller has made no written or oral commitments to or agreements with any governmental authority or agency materially and adversely affecting the Real Property, or any part hereof, or any interest therein, which will survive the Closing. (vii) There are no leases or rental agreements in effect as to the Real Property, other than the month-to-month tenancy of Greenbrier. (viii) To the best knowledge of the Executive Director of the Successor ens • Seller is not in default of its obligations under any contract, agreement or instrument to which Seller is a party pertaining to the Real Property. I (ix) Then-eTo the best knowledge of the Executive Director of the Successor Agency, there are no mechanics', materialmen's or similar claims or liens presently claimed or which will be claimed against the Real Property for work performed or commenced for Seller or on Seller's behalf prior to the date of this Agreement. (x) Thee-eTo the best knowledge of the Executive Director of the Successor Agency, there are no undisclosed contracts, licenses, commitments, undertakings or other written or oral agreements for services, supplies or materials concerning the use, operation, maintenance, or management of the Real Property that will be binding upon Buyer or the Real Property after the Closing. There To the best knowledge of the Executive Director of the Successor Agency, there are no oral contracts or other oral agreements for services, supplies or materials, affecting the use, operation,maintenance or management of the Real Property. (xi) There are not as of the Effective Date, nor will there be as of the Closing, any written or oral leases or contractual right or option to lease, purchase, or otherwise enjoy possession, rights or interest of any nature in and to the Real Property or any part thereof, other than the month-to-month tenancy of Greenbrier, and no person other than Buyer shall have any right of possession to the Real Property or any part thereof as of the Closing. DOCSOPnPnn77;?v_5000AZn nnnnDOCSOC/1790772x8/200430-0000 learned, discovered or become aware of such Buyer's Representation Matter shall promptly give written notice thereof to the other party and Buyer's representations and warranties shall be automatically limited to account for the Buyer's Representation Matter. Seller shall have the right to approve or disapprove any such change and to terminate this Agreement by written notice to Buyer if Seller reasonably disapproves any such change. If Seller does not elect to terminate this Agreement, eemplianee with all the zening, plaiining and desig BofrnAraine Mun�s�pal Code, nd all rendissri }atie�lab Buyer's representation shall be qualified by such Buyer's Representation Matter and Buyer shall have no obligation to Seller for such Buyer's Representation Matter. 14. Fair Value Price. The $373,000 Purchase Price is equal to the average of the Successor Agency's Estimated Current Value, as described in the narrative for Site No. 45: E. Cooley Avenue Industrial Property (pages 210-214) in the Successor Agency's approved Long-Range Property Management Plan (i.e., $372,000) and the market value opinion determined by Empire Valuation and Advisory Services, Inc. in its appraisal dated July 13, 2016 (i.e., $374,000). Therefore, each of Buyer and Seller believes that the Purchase Price represents a fair value price for the Real Property. This Agreement does not require that Buyer undertake any improvements to the Real Property. At such time, if any, as Buyer makes improvements to the Real Property, the costs for planning, designing, and constructing such improvements shall be borne exclusively by the Buyer and the Buyer shall construct or cause to be constructed such improvements in co standard, and wage rate requirements to the extent such labor and wage requirements are applicable. Buyer, including but not limited to its contractors and subcontractors, shall be responsible to comply with Labor Code Section 1720, et seq., if applicable, and its implementing regulations, regarding the payment of prevailing wages(the "State Prevailing Wage Law"), if applicable, and, if applicable, federal prevailing wage law ("Federal Prevailing Wage Law" and, together with State Prevailing Wage Law, "Prevailing Wage Laws")with regard to the construction of improvements to the Real Property, but only if and to the extent such sections are applicable to the development of the Real Property. Insofar as the parties understand that Buyer is paying a fair market price for the Real Property, the parties believe that the payment of prevailing wages will not be required. In any event, Buyer shall be solely responsible for determining and effectuating compliance with the Prevailing Wage Laws, neither the Seller nor the City makes any final representation as to the applicability or non-applicability of the Prevailing Wage Laws to improvements to the Real Property, or any part thereof. Buyer hereby releases from liability, and agrees to indemnify, defend, assume all responsibility for and hold each of the Seller and the City, and their respective officers, employees, agents and representatives, harmless from any and all claims, demands, actions, suits, proceedings, fines, penalties, damages, expenses resulting from, arising out of, or based upon Buyer's acts or omissions pertaining to the compliance with the Prevailing Wage Laws as to the Real Property. This Section 14 shall survive Closing. 15. General Provisions. (a) Indemnification. In addition to the Purchase Price, a material consideration to Seller in agreeing to sell the Real Property to Buyer pursuant to this Agreement and but for which Seller would not have agreed to enter into this Agreement or sell the Real Property to Buyer,Buyer:- () has agreed to amend the Greenbrier Lease to include the Real Property and to record the Memorandum at Closing, agrees to and shall indemnify aiid hold the Seller-, its eleeted effieials, empleyees, agents or- Y-epr-esente4ives, free and hamless 4em all elaims, aefiens, damages and liabilities ef any kind and 18 p OCSOC/1790772v8/200430-0000 hereby indemnify and hold the Seller free and harmless from and against any and all costs, liabilities or causes of action or proceedings which may be instituted by any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the Buyer in connection with this Agreement. (e) Waiver, Consent and Remedies. Each provision of this Agreement to be performed by Buyer and Seller shall be deemed both a covenant and a condition and shall be a material consideration for Seller's and Buyer's performance hereunder, as appropriate, and any breach thereof by Buyer or Seller shall be deemed a material default hereunder. Either party may specifically and expressly waive in writing any portion of this Agreement or any breach thereof, but no such waiver shall constitute a further or continuing waiver of a preceding or succeeding breach of the same or any other provision. A waiving party may at any time thereafter require further compliance by the other party with any breach or provision so waived. The consent by one party to any act by the other for which such consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or any similar acts in the future. No waiver or consent shall be implied from silence or any failure of a party to act, except as otherwise specified in this Agreement. All rights, remedies, undertakings, obligations, options, covenants, conditions and agreements contained in this Agreement shall be cumulative and no one of them shall be exclusive of any other. Except as otherwise specified herein, either party hereto may pursue any one or more of its rights, options or remedies hereunder or may seek damages or specific performance in the event of the other party's breach hereunder, or may pursue any other remedy at law or equity, whether or not stated in this Agreement. (0 Cooperation. Buyer and Seller agree to execute such instruments and documents and to diligently undertake such actions as may be required in order to consummate the purchase and sale herein contemplated and shall use all reasonable efforts to accomplish the Closing in accordance with the provisions hereof and, following Closing. (g) Remedies. Without limitation as to the availability of other remedies,this Agreement may be enforced by an action for specific enforcement. (h) Time. Time is of the essence of every provision herein contained. In the computation of any period of time provided for in this Agreement or by law, the day of the act or event from which said period of time runs shall be excluded, and the last day of such period shall be included, unless it is a Saturday, Sunday, or legal holiday, in which case the period shall be deemed to run until 5:00 p.m. of the next day that is not a Saturday, Sunday, or legal holiday. Except as otherwise expressly provided herein, all time periods expiring on a specified date or period herein shall be deemed to expire at 5:00 p.m. on such specified date or period. (i) Counterparts; Faesi 41eElectronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. A f esimile signature signature by facsimile or as an attachment to electronic mail in "Portable Document Format" (PDF), or "Tagged Image File Format" (TIFF) shall be deemed an original signature. 0) Captions. Any captions to, or headings of,the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement,and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. 20 DO('SOC/1790772v8/200430-0000 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. "SELLER" SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public entity, corporate and politic By: Name: Its: "BUYER" COOLEY PROPERTIES,L.P., a California limited partnership By: Chartwell Management Corp., a Nevada corporation, General Partner By: Name: Robert Charton Its: Vice-President 22 D0059CLI1 0772x8/200430-0000 EXHIBIT A LEGAL DESCRIPTION The land referred to herein is situated in the State of California, County of San Bernardino, described as follows: PARCEL NO. 5 OF PARCEL MAP NO. 4781, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 48 OF PARCEL MAPS,PAGE 87, RECORDS OF SAID COUNTY. APN: 0281-031-52 and 0281-021-30 A- 1 DOCSOC/1790772v8/200430-0000 IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of ,201_ SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Name: Its: B- 3 I r�nrcn�n�nn���.,ci�nnn�n nnnnDOCSOC/1790772y8/200430-0000 A notary public or other officer completing this certificate verifies 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 ) On , before me, ,Notary Public, (Print Name of Notary Public) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument. 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. Signature of Notary Public OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual ❑ Corporate Officer Title Or Type Of Document Title(s) ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney-In-Fact ❑ Trustee(s) Number Of Pages ❑ Guardian/Conservator ❑ Other: Signer is representing: Name Of Person(s)Or Entity(ies) Date Of Documents Signer(s)Other Than Named Above DOCS OC/1790772v8/200430-0000 Document comparison by Workshare Compare on Friday, January 06, 2017 2:53:11 PM Input: '..` Document 1 ID Powerpocs://DOCSOC/1790772/5 Description DOCSOC-#1790772-v5-Purchase_and_Sale_Agreement, Cooley_Properties,_L..P. Document 2 ID Powerpocs://DOCSOC/1790772/8 Description DOCSOC-#1790772-v8-Purchase_and_Sale_Agreement, —Coo ley_P rope rties,_L..P. Rendering set SYCR 1 Legend: Insertion T eletio r Moved fF r Moved to Style change Format change Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics, Count Insertions 78 Deletions 67 Moved from 1 Moved to 1 Style change 0 Format changed 0 Total changes 147 RELOCATION WAIVER AND AGREEMENT This RELOCATION WAIVER AND AGREEMENT RE CESSATION OF TENANCY ("Waiver and Agreement") is made and entered into as of the _ day of , 2017 by the undersigned Greenbrier Rail Services, a ("Occupant"), Cooley Properties, L.P., ca California limited partnership ("Cooley"), the Successor Agency to the Redevelopment Agency of the City of San Bernardino ("Successor Agency"), and the City of San Bernardino ("City"). RECITALS A. Successor Agency is owner of that certain real property (the "Real Property") described as Parcel No. 5 of Parcel Map No. 4781, in the City of San Bernardino, County of San Bernardino, State of California, as per Plat recorded in Book 48 of Parcel Maps, Page 87, Records of said County. Successor Agency is considering the sale of the Real Property to Cooley. B. Occupant currently occupies the Real Property with the consent of Successor Agency notwithstanding that the lease previously entered into between the former San Bernardino Redevelopment Agency ("Former Agency") and Occupant expired on October 31, 2015; occupancy is month to month under a rental agreement(the "Rental Agreement"). C. Cooley owns that certain land and building known as 1475 Cooley Court (the "Cooley Court Site"), which abuts the Real Property. Occupant currently leases the Colley Court Site for its business operations under a lease which is effective to and including May 31, 2022 (the "Cooley-Greenbrier Lease"). D. Consistent with the mutual understanding between the Successor Agency and Occupant and at Occupant's suggestion, the Successor Agency and Cooley have entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions (the "Purchase and Sale Agreement") with respect to the transfer of the Real Property to Cooley. The effectiveness of the Purchase and Sale Agreement is, among other matters, conditioned upon Cooley amending the Cooley-Greenbrier Lease to include the Real Property to ensure that Occupant's business operations continue at the Real Property and the Cooley Court Site and ultimately to extend Occupant's tenancy. Therefore, and for other reasons, the amendment to the Cooley-Greenbrier Lease will enable the Occupant to remain in the exact same location and position it currently has,thus negating any need to relocate its business operations. E. The parties hereto mutually desire to facilitate the retention of Occupant at the Real Property and the Cooley Court Site. In view of the proposed sale of the Real Property by Successor Agency to Occupant, the parties mutually desire to memorialize certain understandings with regard to a waiver of relocation benefits as more fully set forth herein. F. Occupant is familiar with laws and rules associated with the acquisition of property by public agencies, including without limitation with respect to relocation. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Occupant agrees as follows: A-1 Page 2 1. Effectiveness. This Waiver and Agreement shall be effective as of the effective date of the amended Cooley-Greenbrier Lease. 2. Representations and Warranties of Occupant. Occupant represents and warrants that each and every statement contained in the recitals hereof is true and correct. 3. ' Relocation Waiver and Agreement. In exchange for: i) the amendment to the Cooley-Greenbrier Lease to include the Real Property to ensure that Occupant's business operations continue at the Real Property and the Cooley Court Site; and ii) Occupant's receipt of certain consideration as set forth in paragraph d)of the Section 3,below, Occupant agrees to: i)relinquish all rights to relocation benefits or assistance arising from or in connection with the termination of the Rental Agreement and arising from or in connection with the sale of the Real Property and future ownership and use of the Real Property by Cooley, and the successors and assigns of Cooley; and ii) terminate the Rental Agreement, as follows: a) Occupant agrees that the Rental Agreement shall be deemed extinguished immediately upon the sale of the Real Property by Successor Agency to Cooley (which date shall be deemed to constitute the "Rental Agreement Termination Date"). The period between the date of this Waiver and Agreement and the Rental Agreement Termination Date is referred to herein as the "Limited Period;" b) During the Limited Period, but not thereafter, Occupant may occupy the Rental Portion (but only such portion of the Real Property that Occupant has occupied during the term of the Rental Agreement), subject to the terms of the Rental Agreement (as modified herein). During the Limited Period, Occupant may only conduct legally-permitted uses on the Real Property which are permitted under the Rental Agreement; C) Based on the effectiveness of the amended Cooley-Greenbrier Lease that will negate any need for Occupant to relocate its business operations from its currently location, Cooley, on behalf of Cooley, City and Successor Agency, shall provide Occupant, as a relocation benefit, with a cash payment of One Dollar ($1.00) (the "Relocation Amount") in consideration of Occupant's provision of this Waiver and Agreement. Each of Cooley, City and Successor Agency shall be beneficiaries of the waiver as provided hereunder by Occupant, and Occupant is knowingly relinquishing any other claims which Occupant may have as to Cooley, Successor Agency or City in connection with the relinquishment by Occupant of its rights as to the Real Property and any rights of Occupant to relocation assistance or benefits in connection with the Real Property by Occupant; d) Notwithstanding any provision of the Rental Agreement to contrary effect, the term of the Rental Agreement shall end as of the Rental Agreement Termination Date; and e) Occupant shall not assign or sublet the Real Property, the Rental Agreement or its rights thereunder or its rights under this Waiver and Agreement. 4. Each of the Successor Agency and the City shall be deemed to be a third party beneficiary of this Agreement and may rely upon the provisions of this Agreement. Cooley will deliver this Agreement to Successor Agency to be maintained on file with Successor Agency. Page 3 5. Acknowledgment. This Waiver and Agreement deals fully and comprehensively with any relocation benefits or assistance for Occupant arising from or in connection with the sale of the Real Property and the cessation of Occupant's rights to the Real Property. 6. Counterparts. This Waiver and Agreement may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. 7. Complete Agreement. This Waiver and Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein, and no prior or contemporaneous agreement or understanding, oral or written, pertaining to any such matters shall be effective for any purpose, except for the Rental Agreement, as modified herein. 8. Successors and Assigns. Every provision of this Waiver and Agreement shall inure to the benefit of the assignees of Cooley and successors in interest to the Real Property and their respective owners, members, managers, subsidiaries, agents, affiliates, successors and assigns. OCCUPANT HAS BEEN ADVISED BY AN ADVISOR OF ITS CHOOSING REGARDING POTENTIAL RELOCATION BENEFITS IN CONNECTION WITH THE DISPOSITION OF THE REAL PROPERTY BY LANDLORD, WHICH MAY OCCUR TO A PUBLIC AGENCY. OCCUPANT AGREES TO AND ACCEPTS THE RELOCATION AMOUNT AS SET FORTH IN SECTION 2 OF THIS WAIVER AND AGREEMENT AS A SETTLEMENT OF ANY POTENTIAL CLAIM FOR RELOCATION BENEFITS AND/OR RELOCATION ASSISTANCE BY OCCUPANT, OCCUPANT, ON BEHALF OF ITSELF AND ITS OWNERS, MEMBERS, SUBSIDIARIES, AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS, RELEASES ANY CLAIMS FOR RELOCATION BENEFITS, RELOCATION ASSISTANCE AND COMPENSATION FOR GOODWILL, LOSS OF USE OF THE SUBJECT PROPERTY, AND ANY AND ALL CLAIMS RELATED TO THE REAL PROPERTY AND THE VACATION AND RELINQUISHMENT THEREOF BY "OCCUPANT" INCLUDING, WITHOUT LIMITATION, ANY CLAIMS WITH RESPECT TO THE SUCCESSOR AGENCY OR CITY IN THE EVENT EITHER SUCCESSOR AGENCY OR CITY SHALL ACQUIRE THE REAL PROPERTY. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. "OCCUPANT" GREENBRIER RAIL SERVICES By: Name: Its: By: Name: Its: (signatures continue on next page) Page 4 "COOLEY COOLEY PROPERTIES, L.P., a California limited partnership By: Chartwell Management Corp., a Nevada corporation, General Partner By: Name: Robert Charton Its: Vice-President "SUCCESSOR AGENCY" SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public entity, corporate and politic By: Name: Its: "CITY" CITY OF SAN BERNARDINO, a charter city and municipal corporation By: Name: Its: 5.E.e d c a� Q ID 0 0 U Uj C N E CD d i a'f Q ID M PURCHASE AND SALE AGREEMENT `o AND JOINT ESCROW INSTRUCTIONS N f6 V L a 0 0 SELLER: Successor Agency to the Redevelopment Agency a of the City of San Bernardino a BUYER: Cooley Properties, L.P., a California limited partnership w 0 DATED: January 9, 2017 n: (Parcel No. 5 of Parcel Map No. 4781, APN 0281-031-52 and 0281-021-30) d 0 a a� 0 0 U 5 a Q a E R rr Q Packet Pg. 59 5.E.e BASIC TERMS d Buyer: Cooley Properties, L.P., a California limited partnership Buyer's Address: Cooley Properties,L.P., a California limited partnership a, Attention: Robert Charton o 7040 Avenida Encinas, Suite 104-519 ° U Carlsbad, CA 92011 w Email address: Robert.cmgt @gmail.com ; Tel. (760) 500-1812 Fax: (858) 756-6832 E 0) a� City: The City of San Bernardino a a� Closing Contingency Date: May 10,2017 M Closing Date(or Closing) Estimated to occur by May 18,2017,but not later than the Outside R Date n M Deed: A grant deed in the form of Exhibit B hereto n. Effective Date: January 9, 2017 c 00 Escrow Holder: First American Title Insurance Company 1855 West Redlands Blvd., Suite 100 a Redlands, CA 92373 Tel: (909) 380-8776 Fax: (866)232-4615 x Attention: Cheryl Zanini,Escrow Branch Manager/Escrow Officer w (direct: (909) 380-8776; email: czanini @firstam.com N (or another escrow holder mutually acceptable to Buyer and Seller) n: Independent y Consideration Amount: Two Hundred Dollars($200.00) L Outside Date: June 8,2017;provided that such date may be extended by mutual o writing agreement by Seller and Buyer a a� Purchase Price: Three-Hundred Seventy-Three Thousand Dollars($373,000.00). �00� Real Property: That property described in Exhibit A hereto;the subject property is sometimes referred to as APN 0281-031-52 and 0281-021-30 a Cn a Seller: Successor Agency to the Redevelopment Agency of the City of San Bernardino U tC a Packet Pg. 60 5.E.e Seller's Address: 300 N. "D" Street San Bernardino, California 92418-0001 Attention: Mark Scott, City Manager Tel. (909) 384-5122 Fax: (909)384-5138 Q' Email: Scott—Ma@sbcity.org 0 Soil and Title Contingency 0 Date: April 10,2017 ui Title Company: First American Title Insurance Company 1855 West Redlands Blvd., Suite 100 E Redlands, CA 92373 Tel: (909) 380-8726 Q Attention: Tammy Kerr, Senior California Title Officer (direct: (909) 380-8726; email: tkerr @firstam.com) in (or another title insurer mutually acceptable to Buyer and Seller) _ U L CL CD 00 a a U w .Q K W O N d d' a J J (n Q. O .v L a r m 0 O U t 'S Q U) a c m E U r-. r Q 2 Packet Pg. 61 5.E.e PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS c This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW Q, INSTRUCTIONS ("Agreement") is made and entered into as of January 9, 2017 (the "Effective o Date")by and between Seller and Buyer. v ui RECITALS c A. Seller is the fee owner of the Real Property. The Real Property is unimproved. E Most of the Real Property is unusable for commercial purposes as it is either part of the embankment or river bed of the adjacent Santa Ana River, portions of which are included within an Q easement area affecting the Real Property held by the County of San Bernardino for the Santa Ana River Trail (the "SART Easement"). The Real Property's net usable area is approximately 1.91 in acres. Buyer acknowledges that the Real Property is encumbered with the SART Easement. _ CU B. Buyer, currently owns the land and building located at 1475 Cooley Court("Cooley Court Site"), which abuts the Real Property. Greenbrier Rail Services ("Greenbrier") currently leases the Cooley Court Site and the Real Property for their business operations (i.e., the a refurbishment of rail car wheels). Greenbrier provides employment of between 36-75 highly skilled workers (the number varies depending on the orders they receive) at their facilities located at the CD Cooley Court Site and the Real Property. Greenbrier's current lease for the Cooley Court Site is effective through May 31, 2022(the"Greenbrier Lease"). a C. Greenbrier's lease with the Successor Agency for the Real Property expired on v October 31, 2015. To allow time for the Buyer to acquire the Real Property and to amend its lease with Greenbrier to include the Real Property, the Successor Agency has permitted Greenbrier to x hold-over on a month-to-month basis. Buyer intends to amend the Greenbrier Lease to include the o Real Property to ensure that Greenbrier's business operations continue at the two sites and a ultimately to extend Greenbrier's tenancy. a D. Seller has offered to sell to Buyer the Real Property described herein for the price and subject to the terms set forth below. Buyer has considered the offer by Seller and agrees to buy L from Seller the Real Property, as more specifically described below. o a. E. In addition to the Purchase Price, a material consideration to Seller in agreeing to sell the Real Property to Buyer pursuant to this Agreement and but for which Seller would not have o agreed to enter into this Agreement or sell the Real Property to Buyer,Buyer has: v (i) Agreed to pay to Seller the Independent Consideration Amount; a (ii) Agreed to amend the Greenbrier Lease to include the Real Property; and o. c (iii) Agreed to the provisions set forth in Section 15 hereof. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are a hereby acknowledged, Seller and Buyer agree as follows: 3 Packet Pg. 62 5.E.e 1. Purchase and Sale. Seller hereby agrees to sell the Real Property to Buyer, and Buyer hereby agrees to purchase the Real Property from Seller, on the terms and conditions set forth in this Agreement. The term Real Property is defined collectively as the following: c (a) The fee interest in the Real Property to be conveyed by a grant deed in the Q form of the Deed;and 0 (b) All personal property, equipment, supplies, and fixtures owned by Seller and U located at the Real Property. u.i 2. Payment of Consideration. As consideration for the sale of the Real Property from = Seller to Buyer, Buyer shall, at the Closing (as defined below), pay to Seller the Purchase Price for E the Real Property. Upon payment of the Purchase Price (less any adjustments made to clear liens a and to defray Seller's costs of sale including, but not limited to, the preparation of legal documents a and validation of the purchase price incurred by the City of San Bernardino and the Seller's share of a� closing costs),the use of sales proceeds by Seller is a matter with which Buyer is not concerned. Cn c 3. Escrow and Independent Consideration. t° a� N c6 (a) Opening of Escrow. For the purposes of this Agreement, the escrow ("Escrow") shall be deemed opened("Opening of Escrow") on the date that Escrow Holder receives a a copy of this Agreement fully executed by Buyer and Seller. Buyer and Seller shall use their best efforts to cause the Opening of Escrow to occur on or before five (5) business days after the co Effective Date. Escrow Holder shall promptly notify Buyer and Seller in writing of the date of the 7T- Opening of Escrow. Buyer and Seller agree to execute, deliver and be bound by any reasonable or Q customary supplemental escrow instructions or other instruments reasonably required by Escrow a Holder to consummate the transaction contemplated by this Agreement; provided, however, that no r such instruments shall be inconsistent or in conflict with, amend or supersede any portion of this Agreement. If there is any conflict or inconsistency between the terms of such instruments and the w terms of this Agreement, then the terms of this Agreement shall control. Without limiting the o generality of the foregoing, no such instruments shall extinguish any obligations imposed by this Agreement or any other agreement between Seller and Buyer. a J J (b) Independent Consideration. Within two (2) days after the Effective Date, Buyer shall pay to Seller the Independent Consideration Amount to be retained by Seller as non- L refundable independent consideration. The Independent Consideration Amount has been bargained o for and agreed to as consideration for Seller's execution and delivery of this Agreement and Buyer holding the Real Property off the market for a period commencing as of the Effective Date and continuing until the Outside Date and for the rights and privileges granted to Buyer herein, o including any and all rights granted to Buyer to terminate this Agreement under the circumstances 0 provided for herein. Notwithstanding anything to the contrary contained in this Agreement, the Independent Consideration Amount shall be non-refundable in all events, except for (i) Seller's default hereunder, (ii)the failure of the Oversight Board to approve the sale of the Real Property as provided under this Agreement, and(iii) actions by the California Department of Finance ("DOF") a. Y which prevent the disposition of the Real Property to Buyer as provided under this Agreement. If the Closing occurs, a credit shall be applied to the Purchase Price based upon payment of the E Independent Consideration Amount. a. a 4 Packet Pg. 63 5.E.e (c) Closing. For purposes of this Agreement, the "Closing" or "Closing Date" shall be the date the Deed(as defined below) is recorded pursuant to applicable law in the county in which the Real Property is located. Unless changed in writing by Buyer and Seller, the Closing Q shall occur on the Closing Date, or as soon thereafter as the conditions precedent to closing are satisfied pursuant to Sections 6 and 7 of this Agreement. If the Closing has not, for any reason, Q occurred by the Closing Date, then either Buyer or Seller may terminate this Agreement by delivering written notice to the other at any time after the outside Closing Date; provided, however, o that if either party is in default under this Agreement at the time of such termination, then such U termination shall not affect the rights and remedies of the non-defaulting party against the defaulting ui party. c a� 4. Seller's Delivery of Real Property and Formation Documents. Within ten (10) v days after the Effective Date, Seller shall deliver to Buyer the following items (collectively, the P Property Documents"): Q (a) Such proof of Sellers' authority and authorization to enter into this in Agreement and to consummate this transaction as may be reasonably requested by Buyer and the Title Company consistent with the terms of this Agreement, including without limitation approval of the Oversight Board of the sale of the Real Property by Seller to Buyer. U L In addition, Seller shall cause Escrow Holder to obtain and deliver to Buyer a Natural a Hazard Report as provided for under Sections 1102 and 1103 of the California Civil Code (the "Natural Hazard Report")on or before the Soil and Title Contingency Date. 5. Buyer's Right of Entry. From and after the Opening of Escrow through the earlier (60) U) to occur of the termination of this Agreement or the Soil and Title Contingency Date, or as a. otherwise agreed in writing by Seller prior to entry is effected, Buyer and Buyer's employees, ;6 agents, consultants and contractors shall have the right to enter upon the Real Property during normal business hours,provided reasonable prior notice has been given to Seller. w 0 (a) Investigation of the Real Property. In addition to the foregoing, the Buyer shall have the right, at its sole cost and expense, prior to the Soil and Title Contingency Date, to a engage its own environmental consultant (the "Environmental Consultant") to make such J investigations as Buyer deems necessary or appropriate, including any "Phase 1" or "Phase 2" investigations of the Real Property. If, based upon such evaluation, inspections, tests or investigation, Buyer determines that it, in its discretion, does not wish to proceed with purchase of o the Real Property based upon the condition of the Real Property, Buyer may cancel this Agreement `a by giving written notice of termination to Seller on or before the Soil and Title Contingency Date which specifically references this Section 5. If Buyer does not cancel this Agreement by the time o allowed under this Section 5, Buyer shall be deemed to have approved the evaluation, inspections and tests as provided herein and to have elected to proceed with this transaction on the terms and conditions of this Agreement. Seller shall be provided a copy of all reports and test results provided by Buyer's Environmental Consultant promptly after receipt by the Buyer of any such reports and a test results without any representation or warranty as to their accuracy or completeness. c a� Buyer shall bear all costs, if any, associated with restoring the Real Property to E substantially the same condition prior to its testing by or on behalf of Buyer if requested to so do by Seller but excluding any latent defects or Hazardous Materials (as defined below) discovered by a Buyer during its investigation of the Real Property. Buyer agrees to indemnify,protect, defend(with 5 Packet Pg. 64 5.E.e counsel satisfactory to Seller) and hold Seller and the Real Property free and harmless from and against all costs, claims, losses, liabilities, damages,judgments, actions, demands, attorneys' fees or mechanic's liens arising out of or resulting from any entry or activities on the Real Property by Buyer, Buyer's agents, contractors or subcontractors and the contractors and subcontractors of such agents, but in no event shall the indemnity of this Section include the discovery of pre-existing Q conditions by Buyer or any such liabilities, costs, etc. arising from the negligence or willful m misconduct of Seller and/or its consultants. The indemnity obligations of Buyer set forth in this 0 Section 5(a) shall survive any termination of this Agreement or the Close of Escrow. 0 ui "Hazardous Materials"means any substance,material, or waste which is or becomes regulated by any local governmental authority, the County, the State of California, regional governmental authority, or the United States Government, including,but not limited to, any material E or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or L "restricted hazardous waste"under Sections 25115, 25117 or 25122.7, or listed pursuant to Section Q 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste 2 Control Law), (ii) defined as a"hazardous substance"under Section 25316 of the California Health CO and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance c Account Act), (iii) defined as a hazardous material, hazardous substance, or hazardous waste" N under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 = (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous L substance"under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 nom. (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated biphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely 00 hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water CO Act(33 U.S.C. §1317), (x) defined as a"hazardous waste"pursuant to Section 1004 of the Resource cai Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act,42 U.S.C. §6901 et seq. w 0 (b) No Warranties as To the Real Property. The physical condition and possession of the Real Property, is and shall be delivered from Seller to Buyer in an "as is" J condition, with no warranty expressed or implied by Seller, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or a unknown seismic faults, or the suitability of the Real Property for development purposes. In d addition, Seller makes no representations, warranties or assurances concerning the Real Property, its 0. suitability for any particular use or with regard to the approval process for entitlements as to the a Real Property. m 0 0 (c) Buyer Precautions after Closing. Upon and after the Closing, Buyer shall v comply with all laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the state, the County, the City, or any other political subdivision in which the Real Q Property is located, and of any other political subdivision, agency, or instrumentality exercising a jurisdiction over the Real Property ("Governmental Requirements") with respect to Hazardous Materials. 0 E s U R Q 6 Packet Pg. 65 5.E.e 6. Buyer's Conditions Precedent and Termination Riuht. (a) Conditions Precedent. The Closing and Buyer's obligation to consummate the purchase of the Real Property under this Agreement are subject to the timely satisfaction or written waiver of the following conditions precedent(collectively, "Buyer's Contingencies"), which Q are for Buyer's benefit only. 0 (i) Title Review. Within twenty(20) calendar days after the Opening of 0 Escrow, but in no event later than the thirtieth (30th) day after the Effective Date, Seller shall cause ui the Title Company to deliver to Buyer a preliminary title report (the"Report") describing the title to ; the Real Property, together with copies of the plotted easements and the exceptions (the "Exceptions") set forth in the Report; provided that the cost of the Report shall be borne by Seller. E Seller acknowledges that the Buyer's Title Policy shall include an endorsement against the effect of a any mechanics' liens; Seller will provide such indemnity or other assurances as necessary to induce a the Title Company to provide such endorsement. On or before the Soil and Title Contingency Date, at Buyer shall have approved in writing, in Buyer's sole discretion, any matters of title disclosed by cn the following(collectively,the"Title Documents"): (i)the Report; (ii)the Exceptions; (iii)the legal description of the Real Property and(iv) any survey Buyer desires to obtain at Buyer's sole cost and expense. Buyer shall have the same rights to approve or disapprove any exceptions to title that are not created by Buyer and that come into existence after issuance of the Report but prior to Closing. L Seller shall, on or before the Closing, remove all deeds of trust, mortgages, and delinquent taxes a (but not the lien for any real property taxes or assessments not yet delinquent). ti 0 w (ii) Buyer's Title Policy. On or before the Closing, the Title Company ' shall, upon payment (by Buyer) of the Title Company's premium, have agreed to issue to Buyer, a co standard ALTA owner's policy of title insurance insuring only as to matters of record title n. ("Standard Buyer's Title Policy") in the amount of the Purchase Price showing fee title to the Real r Property vested solely in Buyer and subject only to the (i) the standard, preprinted exceptions to ° Buyer's Title Policy; (ii) liens to secure payment of real estate taxes or assessments not yet w delinquent; (iii)matters affecting the Real Property created by or with the written consent of Buyer; 0 and (iv) those matters specifically approved in writing by Buyer. Buyer shall have the right, at its sole cost and expense, to obtain coverage beyond that offered by a standard ALTA policy (such as a an owner's extended coverage ALTA policy);provided,however,that Buyer's ability to obtain such extended coverage shall not be a Buyer's Contingency and Buyer's obligations hereunder shall in no way be conditioned or contingent upon obtaining such extended coverage. Buyer shall have sole responsibility for obtaining, and bearing the cost of, any endorsements and for any survey or other c matters required by the Title Company for such extended coverage. `a d In the event Buyer enters into a loan agreement to generate moneys to 0 purchase the Real Property from Seller under this Agreement, Buyer and not Seller shall be v responsible for the title insurance, closing costs and any other costs, fees or expenses in relation to 5 Buyer obtaining such loaned moneys. The sale shall be all cash to Seller. Q U) (iii) Physical and Legal Inspections and Studies. On or before Soil and a Title the Contingency Date, Buyer shall have approved in writing, in Buyer's sole and absolute discretion, the results of any physical and legal (but not feasibility or economic) inspections, E investigations, tests and studies Buyer elects to make or obtain, including, but not limited to, investigations with regard to zoning, building codes and other govermnental regulations; a engineering tests; soils, seismic and geologic reports; environmental audits, inspections and studies; 7 Packet Pg. 66 environmental investigation or other invasive or subsurface testing; and any other physical or legal inspections and/or investigations as Buyer may elect to make or obtain. a� (iv) Natural Hazard Report. Seller shall cause the Escrow Holder to provide to Buyer prior to the Soil and Title Contingency Date the Natural Hazard Report described Q at Section 8(a)(iii) of this Agreement; provided that Buyer shall bear the cost to prepare such Natural Hazard Report. o U (v) Property and Formation Documents. On or before the Soil and Title ui Contingency Date, Buyer shall have approved in writing, in Buyer's reasonable discretion, the ; terms,conditions and status of all of the Property Documents. E (vi) Delively of Documents. Seller's delivery of all documents described d in Section 8,below. a (vii) Representations and Warranties. All representations and warranties in of Seller contained in this Agreement shall be materially true and correct as of the date made and as = of the Closing. �a (viii) Title Company Confirmation. The Title Company shall have confirmed that it is prepared to issue the Buyer's Title Policy consistent with the provisions of this a Agreement. ti 0 co (ix) Oversight Board and DOF Approval. The Oversight Board and, if required as a condition of the issuance of title insurance or by either party hereto, approval by DOF, a shall have been given as to the disposition of the Real Property by Seller to Buyer under this a Agreement. U (x) No Default. As of the Closing, Seller shall not be in default in the x performance of any material covenant or agreement to be performed by Seller under this U' 0 Agreement. (b) Termination Right. Each of(i), (ii) and(iii) shall operate independently and j each shall entitle Seller to terminate this Agreement,as follows: t (i) If the Independent Consideration Amount is not paid by Buyer to a Seller by the Initial by the time set forth therefor in Section 3(b)(i) of this Agreement, then this 0 Agreement shall terminate upon Seller giving notice thereof to Buyer; 0 (ii) If any of Buyer's Contingencies not be met by the Closing C U Contingency Date, and Seller so informs Seller, Buyer may, by written notice to Seller, terminate r this Agreement. a If this Agreement so terminated,then(except to the extent expressly allocated to one n party hereto by this Agreement) any escrow, title or other cancellation fees shall be paid by Buyer, unless Seller is in default hereunder, in which case Seller shall pay all such fees. If the Agreement has not been terminated pursuant to (i) or (ii) of this Section 6(b) and Buyer has neither terminated this Agreement in writing ("Termination Notice") on or before 5:00 p.m. on the Monday preceding the scheduled Closing ("Termination Notice Deadline"), then all such Buyer's Contingencies shall a W-111 be deemed to have been satisfied and this Agreement shall continue pursuant to its terms. If Buyer 8 Packet Pg. 67 5.E.e has not delivered a Termination Notice as the items set forth in Sections 6(a)(i)-(xi) inclusive, prior to the Termination Notice Deadline, such Buyer's Contingencies shall be deemed to have been satisfied. d c If this Agreement is terminated, then(except to the extent expressly allocated to one a party hereto by this Agreement) any escrow, title or other cancellation fees shall be paid by Buyer, unless Seller is in default hereunder, in which case Seller shall pay all such fees. o 0 U (c) Seller's Cure Right. Buyer shall notify Seller, in Buyer's Termination ui Notice, of Buyer's disapproval or conditional approval of any Title Documents. Seller shall then ; have the right, but not the obligation, to (i)remove from title any disapproved or conditionally approved Exception(s) (or cure such other title matters that are the basis of Buyer's disapproval or E conditional approval of the Title Documents) within five (5) business days after Seller's receipt of L Buyer's Termination Notice, or (ii)provide assurances reasonably satisfactory to Buyer that such a Exception(s)will be removed(or other matters cured) on or before the Closing. With respect to any 0 such Exception, it shall be sufficient for purposes hereof for Seller to commit in writing, within the in applicable period, to remove such Exception at or before the Closing. Seller's failure to remove such Exception after committing to do so shall be a default hereunder. An Exception shall be deemed removed or cured if Seller furnishes Buyer with evidence that the Title Company will issue the Buyer's Title Policy, as defined herein, at the Closing deleting such Exception or providing an endorsement (at Seller's expense) reasonably satisfactory to Buyer concerning such Exception. If a. Seller cannot or does not remove or agree to remove any of the disapproved Exception(s) (or cure other matters) within such five (5) business day period, Buyer shall have three (3) business days 00 after the expiration of such five (5) business day period to give Seller written notice that Buyer elects to proceed with the purchase of the Real Property subject to the disapproved Title < Document(s), it being understood that Buyer shall have no further recourse against Seller for such °- disapproved Title Exception(s). .Q 7. Seller's Conditions Precedent and Termination Right. The Closing and Seller's w obligations with respect to the transaction contemplated by this Agreement are subject to the timely o satisfaction or written waiver of the following condition precedent("Seller's Contingencies"),which 0 are for Seller's benefit only: J J (a) Completion of Title Review. Seller shall have received written confirmation from Buyer on or before the Soil and Title Contingency Date that Buyer has completed its review of d title and that the condition of title satisfactory. c L a (b) Confirmation Concerning Site. Seller shall have received written >ID confirmation from Buyer on or before the Soil and Title Contingency Date that Buyer has reviewed o the condition of the Real Property, including without limitation concerning Hazardous Materials, U zoning and suitability, and approves the condition of the Real Property. (c) Confirmation Regarding Buyer's Title Policy. Seller shall have received `t written confirmation from Buyer on or before the Soil and Title Contingency Date that Buyer has a approved a pro forma title policy. E (d) Liens. Seller shall have obtained the consent of any lien holder to the release U of such liens prior to or concurrent with closing. a 9 Packet Pg. 68 5.E.e (e) Oversight Board and DOF Approval. The approval by the Oversight Board and DOF shall have been given as to the disposition of the Real Property by Seller to Buyer under this Agreement. (f) Amended Greenbrier Lease. Seller shall have amended the Greenbrier Lease Q in the manner described in Recital C,to become effective as of the Closing. 0 (g) Delivery of Documents. Buyer's delivery of all documents described in U Section 9(a),below. W Should any of Buyer's Contingencies not be met by the respective times set forth for the satisfaction for such contingency (and without regard to whether all such contingencies have been E removed or satisfied) and Buyer has so informed Seller, Seller may, by written notice to Buyer, terminate this Agreement; such termination rights shall be in addition to those termination rights of Q Seller as set forth in Section 6. If this Agreement is so terminated, then (except to the extent W expressly allocated to one party hereto by this Agreement) any escrow, title or other cancellation in fees shall be paid by Buyer. a� 8. Seller's Deliveries to Escrow Holder. U (a) Seller's Delivered Documents. At least one (1) business day prior to the a Closing Date, Seller shall deposit or cause to be deposited with Escrow Holder the following items, duly executed and,where appropriate, acknowledged("Seller's Delivered Items"): CD (i) Deed. The Deed. a (ii) FIRPTA/Tax Exemption Forms. The Transferor's Certification of ci Non-Foreign Status in the form attached hereto as Exhibit C (the "FIRPTA Certificate"), together with any necessary tax withholding forms, and a duly executed California Form 593-C, as x applicable(the"California Exemption Certificate"). w 0 as (iii) Hazard Disclosure Report. Unless earlier delivered to Buyer, Seller shall cause Escrow Holder to obtain and deliver to Buyer, at Seller's cost, a Natural Hazard Report J as provided for under Sections 1102 and 1103 of the California Civil Code (the "Natural Hazard Report")before the Closing. CD Q. (iv) Possession of Real Propert y. Possession of the Real Property free of a any tenancies or occupancy. 0 (v) Authorily. Such evidence of Seller's authority and authorization to v enter into this Agreement and to consummate this transaction as may be reasonably requested by Buyer and the Title Company which are consistent with the terms of this Agreement. y a (vi) Further Documents or Items. Any other documents or items a reasonably required to close the transaction contemplated by this Agreement as determined by the Title Company which are consistent with the terms of this Agreement. E U (b) Failure to Deliver. Should any of Seller's Delivered Items not be timely 2 delivered to Escrow, Buyer may, by written notice to Seller, terminate this Agreement; provided, a however, that Buyer may (but shall not be obligated to) in such notice provide Seller with five (5) 10 Packet Pg. 69 .rrrr...� 5.E.e business days to deliver all of Seller's Delivered Items. If Buyer's notice provides Seller such five (5) business days to deliver Seller's Delivered Items, and if Seller's Delivered Items are not delivered within such period, then this Agreement shall automatically terminate without further action or notice. In the event of any such termination, any cash deposited by Buyer shall immediately be returned to Buyer. Under no circumstances shall Buyer have any responsibility to Q or duty to pay consultants or real estate brokers retained by Seller, Seller being solely responsible in connection with any such contractual arrangements of Seller. —°o U 9. Buyer's Deliveries to Escrow. At least one (1) business day prior to the Closing ui Date, Buyer shall deposit or cause to be deposited with Escrow Holder the following, each duly executed and acknowledged,by Buyer as appropriate("Buyer's Delivered Items"): E (a) Purchase Price. The Purchase Price, less amounts which Seller confirms in a writing to Escrow Holder were theretofore paid to Seller as the Independent Consideration Amount, a together with additional funds as are necessary to pay Buyer's closing costs set forth in a� Section 10(b) herein. In the event Seller does not qualify for an exemption from California ci withholding tax under Section 18662 of the California Revenue and Taxation Code, as evidenced by = the delivery at Closing of the California Exemption Certificate duly executed by Seller, Title Company shall withhold three and one-third percent (3-1/3%) of the Purchase Price on behalf of Buyer for payment to the California Franchise Tax Board in accordance with Section 11(b) hereof. L In the event Seller is not exempt from such withholding or does not otherwise deliver the California a Exemption Certificate at Closing, Buyer shall execute and deliver three (3) originals of California CD Form 593 to Title Company at or immediately after Closing. v (b) Change of Ownership Report. One (1) original Preliminary Change of Ownership Report. °- U (c) Final Escrow Instructions. Buyer's final written escrow instructions to close 72 escrow in accordance with the terms of this Agreement. w 0 (d) Authority. Such proof of Buyer's authority and authorization to enter into W this Agreement and to consummate the transaction contemplated hereby as may be reasonably n: requested by Seller or the Title Company. Cn W (e) Moneys for Buyer's Real Estate Broker. Buyer shall deposit any moneys t due and payable to any broker retained by Buyer in connection with the sale of the Real Property by o Seller to Buyer. (f) Amended Greenbrier Lease. One fully executed copy of the Amended o Greenbrier Lease that includes the Real Property, which Amended Greenbrier Lease shall be in form v and substance reasonably satisfactory to Seller, to become effective as of the Closing, together with a copy of a memorandum of lease ("Memorandum") in form reasonably acceptable to Seller to be recorded at Closing. U) o. (g) Further Documents or Items. Any other documents or items reasonably required to close the transaction contemplated by this Agreement as determined by the Title E Company. d S 11 Packet Pg. 70 5.E.e 10. Costs and Expenses. (a) Seller's Costs. If the transaction contemplated by this Agreement is consummated, then Seller shall be debited for and bear the following costs: (i) costs and charges associated with the removal of encumbrances; (ii) Seller's share of prorations; (iii) the premium for a a Standard Buyer's Title Policy with coverage in the amount of the Purchase Price; (iv) documentary recording fees, if any; (v) documentary transfer tax, if any; (vi) one half of the escrow o charges; and (vii) costs, if any, allocable to Seller under this Agreement and costs for such services L° as Seller may additionally request that Escrow perform on its behalf (which foregoing items ui collectively constitute"Seller's Costs and Debited Amounts"). (b) Buyer's Costs. If the transaction contemplated by this Agreement is E consummated, then Buyer shall bear the following costs and expenses: (i) the Escrow Holder's fee; a (ii)Buyer's share of prorations, (iii) the premium for title insurance other than or in excess of a Q Standard Buyer's Title Policy based on the Purchase Price, and, if applicable, the cost for any d survey required in connection with the delivery of an ALTA owner's extended coverage policy of in title insurance; (iv) one half of escrow charges; (v)recording and other costs of closing; (vi) costs, if any, for such services as Buyer may additionally request that Escrow perform on its behalf; and (vii) any costs associated with Buyer borrowing money in order to pay to Seller the Purchase Price (collectively,"Buyer's Costs and Debited Amounts"). a. (c) Generally. Each party shall bear the costs of its own attorneys, consultants, and real estate brokers in connection with the negotiation and preparation of this Agreement and the CD consummation of the transaction contemplated hereby. Buyer represents to Seller that Buyer and 7T_ not Seller shall be solely responsible for payment in connection with the services of any consultants, a finders or real estate brokers engaged by Buyer in connection with the purchase of the Real Property a- from the Seller. Seller represents to Buyer that Seller has not engaged the services of any r consultants, finders or real estate brokers in connection with the sale of the Real Property to the :2 Buyer. w 0 11. Prorations; Withholding. n: (a) All revenues (if any) and expenses relating to the Real Property (including, but not limited to, property taxes, utility costs and expenses, water charges and sewer rents and refuse collection charges) shall be prorated as of the Closing Date;provided that all delinquent taxes shall be satisfied at the expense of Seller. Not less than five (5) business days prior to the Closing, o Seller shall deliver to Buyer a tentative schedule of prorations for Buyer's approval (the "Proration and Expense Schedule"). If any prorations made under this Section shall require final adjustment after the Closing, then the parties shall make the appropriate adjustments promptly when accurate o information becomes available and either party hereto shall be entitled to an adjustment to correct the same. Any corrected or adjustment proration shall be paid promptly in cash to the party entitled thereto. a U) (b) In the event Seller does not qualify for an exemption from California a withholding tax under Section 18662 of the California Revenue and Taxation Code (the "Tax Code") as evidenced by the delivery to Buyer at Closing of the California Exemption Certificate E duly executed by Seller, (i) Title Company shall withhold three and one-third percent (3-1/3%) of the Purchase Price on behalf of Buyer at Closing for payment to the California Franchise Tax Board Q in accordance with the Tax Code, (ii) Buyer shall deliver three (3) duly executed copies of 12 Packet Pg. 71 5.E.e California Form 593 to Title Company at or immediately after Closing, (iii)two (2) copies of California Form 593 shall be delivered by Title Company to Seller, and (iv) on or before the 206' day of the month following the month title to the Real Property is transferred to Buyer(as evidenced Q by the recording of the Grant Deed), Title Company shall remit such funds withheld from the a Purchase Price, together with one (1) copy of California Form 593 to the California Franchise Tax a Board on behalf of Buyer. Buyer and Seller hereby appoint Title Company as a reporting entity under the Tax Code, authorized to withhold and remit the withholding tax contemplated under the c Tax Code, together with such other documents required by the Tax Code (including, without c) limitation,California Form 593),to the California Franchise Tax Board. ui 12. Closing Procedure. When the Title Company is unconditionally prepared (subject to payment of the premium therefor) to issue the Buyer's Title Policy and all required documents E and funds have been deposited with Escrow Holder, Escrow Holder shall immediately close Escrow in the manner and order provided below. Q a� (a) Recording. Escrow Holder shall cause the Deed and the Memorandum to be in recorded pursuant to applicable law in the county in which the Real Property is located and obtain c conformed copies thereof for distribution to Buyer and Seller. 0) LO �a (b) Disburse Funds. Escrow Holder shall debit or credit(as provided herein) all L Buyer's Costs and Debited Amounts, Seller's Costs and Debited Amounts and General Expenses, a prorate matters and withhold funds as provided herein. The Purchase Price, less any applicable debits or credits(including any liens as to which such liens and the amount to satisfy such liens shall CO have been confirmed in writing by Seller to Escrow Holder) shall be distributed by check payable to Seller unless Escrow Holder is instructed otherwise in writing signed by Seller(and, in such event, in accordance with such instructions). Seller authorizes Escrow Holder to request demands for a payment and to make such payments from the Purchase Price (or such other funds, if any, as are advanced by Seller)to defray the cost of removing deeds of trust, liens and other encumbrances(but ° not for obligations of Buyer). Escrow Holder shall disburse on behalf of Buyer such moneys as are w deposited by Buyer (in addition to the Purchase Price and Buyer's share of closing costs) as the commission for Buyer's real estate broker, if any (unless Buyer's real estate broker shall deliver a written statement to Escrow Holder which indicates that Buyer has arranged to pay Buyer's Real a Estate Broker outside escrow and that payment of such remuneration is a matter with respect to which Escrow Holder and Seller need not be concerned). a (c) Documents to Seller. Escrow Holder shall deliver to Seller a conformed 0 copy of the Deed, and documents, if any, recorded on behalf of any lender, as duly recorded among n` the official land records of the County of San Bernardino, and a copy of each other document (or copies thereof) deposited into Escrow by Buyer pursuant hereto. o U (d) Documents to Buyer. Escrow Holder shall deliver to Buyer the original FIRPTA Certificate, the original California Exemption Certificate (as applicable), and a conformed copy of each of the Deed as duly recorded among the official land records of the County of San a Bernardino, the Natural Hazard Report, and each other document (or copies thereof) deposited into Escrow by Seller pursuant hereto, including, without limitation, those documents referenced in Section 8. U (e) Title Company. Escrow Holder shall cause the Title Company to issue the a Buyer's Title Policy to Buyer. 13 Packet Pg. 72 (f) Closing Statement. Escrow Holder shall forward to both Buyer and Seller a separate accounting of all funds received and disbursed for each party. a� (g) Informational Reports. Escrow Holder shall file any information reports c required by Internal Revenue Code Section 6045(e), as amended. Q (h) Possession. Possession of the Real Property shall be delivered to Buyer at o the Closing. v w 13. Representations and Warranties. c (a) Seller's Representations and Warranties. In consideration of Buyer entering into this Agreement and as an inducement to Buyer to purchase the Real Property, Seller makes the following representations and warranties as of the Effective Date and as of the Closing, each of e which is material and is being relied upon by Buyer (and the truth and accuracy of which shall CD constitute a condition precedent to Buyer's obligations hereunder), and all of which are material inducements to Buyer to enter into this Agreement(and but for which Buyer would not have entered = into this Agreement) and shall survive Closing; provided that each of the representations and f° warranties of Seller is based upon the information and belief of the Executive Director of the Successor Agency: L (i) Seller believes that it has the legal power, right and authority to enter a into this Agreement and the instruments referenced herein, and to consummate the transaction CD contemplated subject to the approval of the Oversight Board and, as may be applicable,DOF. Q (ii) Subject to the approval of the Oversight Board and, as may be a applicable, DOF, Seller believes that all requisite action (corporate, trust, partnership or otherwise) has been taken by Seller in connection with entering into this Agreement and the instruments referenced herein; and, by the Closing, all such necessary action will have been taken to authorize x the consummation of the transaction contemplated hereby. o N d (iii) Subject to the approval of the Oversight Board and, as may be applicable, DOF, the individual executing this Agreement and the instruments referenced herein on J behalf of Seller has the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. a (iv) Seller believes that neither the execution or delivery of this Agreement or the documents or instruments referenced herein,nor incurring the obligations set forth herein,nor the consummation of the transaction contemplated herein,nor compliance with the terms o of this Agreement or the documents or instruments referenced herein or therein conflict with or i° result in the material breach of any terms, conditions or provisions of, or constitute a default under, any bond, note or other evidence of indebtedness or any contract, indenture,mortgage, deed of trust, loan, lease or other agreement or instrument to which Seller is a party or that affect the Real Property, including,but not limited to,any of the Title Documents or the Property Documents. °- c (v) There is no pending litigation nor, to the best of Seller's knowledge, threatened litigation, which does or will adversely affect the right of Seller to convey the Real Property. There are no claims which have been received by Seller that have not been disclosed to Q Buyer. 14 Packet Pg. 73 (vi) Seller has made no written or oral commitments to or agreements with any governmental authority or agency materially and adversely affecting the Real Property, or any part hereof, or any interest therein,which will survive the Closing. (vii) There are no leases or rental agreements in effect as to the Real a Property, other than the month-to-month tenancy of Greenbrier. 0 (viii) Seller is not in default of its obligations under any contract, 0 agreement or instrument to which Seller is a party pertaining to the Real Property. ui (ix) There are no mechanics', materialmen's or similar claims or liens presently claimed or which will be claimed against the Real Property for work performed or E commenced for Seller or on Seller's behalf prior to the date of this Agreement. P cn (x) There are no undisclosed contracts, licenses, commitments, undertakings or other written or oral agreements for services, supplies or materials concerning the (n use, operation,maintenance, or management of the Real Property that will be binding upon Buyer or = the Real Property after the Closing. There are no oral contracts or other oral agreements for services, supplies or materials, affecting the use, operation, maintenance or management of the Real Property. L 0. (xi) There are not as of the Effective Date, nor will there be as of the Closing, any written or oral leases or contractual right or option to lease, purchase, or otherwise C> enjoy possession, rights or interest of any nature in and to the Real Property or any part thereof, v other than the month-to-month tenancy of Greenbrier, and no person other than Buyer shall have Q any right of possession to the Real Property or any part thereof as of the Closing. a U (xii) No person, excepting Seller, has possession or any rights to a possession of the Real Property or portion thereof, other than the month-to-month tenancy of x Greenbrier. U 0 N (b) Subsequent Changes to Seller's Representations and Warranties. If, prior to the Closing, Buyer or Seller should learn, discover or become aware of any existing or new item, J fact or circumstance which renders a representation or warranty of Seller set forth herein incorrect or untrue in any respect (collectively, the "Seller Representation Matter"), then the party who has L learned, discovered or become aware of such Representation Matter shall promptly give written a notice thereof to the other party and Seller's representations and warranties shall be automatically a. limited to account for the Representation Matter. Buyer shall have the right to approve or disapprove any such change and to terminate this Agreement by written notice to Seller if Buyer 0 reasonably disapproves any such change. If Buyer does not elect to terminate this Agreement, v Seller's representation shall be qualified by such Seller Representation Matter and Seller shall have no obligation to Buyer for such Seller Representation Matter. Q N (c) Buyer's Representations and Warranties. In consideration of Seller entering a into this Agreement and as an inducement to Seller to sell the Real Property, Buyer makes the following representations and warranties as of the date hereof and at and as of the Closing, each of E which is material and is being relied upon by Seller (and the truth and accuracy of which shall constitute a condition precedent to Seller's obligations hereunder), and all of which shall survive Q Closing: 15 Packet Pg. 74 S.E.e AF N (i) Buyer has the legal power, right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transaction contemplated hereby. c (ii) All requisite action has been taken by Buyer in connection with a entering into this Agreement and the instruments referenced herein; and, by the Closing, all such necessary action will have been taken to authorize the consummation of the transaction c contemplated hereby. U u.i (iii) The individuals executing this Agreement and the instruments ; referenced herein on behalf of Buyer have the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof. E a� a� L (iv) Neither the execution and delivery of this Agreement and the Q documents and instruments referenced herein, nor incurring the obligations set forth herein, nor the a� consummation of the transaction contemplated herein, nor compliance with the terms of this Agreement and the documents and instruments referenced herein conflict with or result in the material breach of any terms, conditions or provisions of, or constitute a default under, any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, partnership agreement, lease or other agreement or instrument to which Buyer is a party or by which any of Buyer's properties are bound. a. (d) Subsequent Changes to Buyer's Representations and Warranties. If, prior to CO the Closing, Seller or Buyer should learn, discover or become aware of any existing or new item, fact or circumstance which renders a representation or warranty of Buyer set forth herein incorrect or untrue in any respect (collectively, the "Buyer's Representation Matter"),then the party who has a. learned, discovered or become aware of such Buyer's Representation Matter shall promptly give r written notice thereof to the other party and Buyer's representations and warranties shall be Z automatically limited to account for the Buyer's Representation Matter. Seller shall have the right w to approve or disapprove any such change and to terminate this Agreement by written notice to N Buyer if Seller reasonably disapproves any such change. If Seller does not elect to terminate this Agreement, compliance with all the zoning, planning and design review requirements of the San a Bernardino Municipal Code, and all nondiscrimination, labor Buyer's representation shall be qualified by such Buyer's Representation Matter and Buyer shall have no obligation to Seller for such Buyer's Representation Matter. 14. Fair Value Price. The $373,000 Purchase Price is equal to the average of the o Successor Agency's Estimated Current Value, as described in the narrative for Site No. 45: E. Cooley Avenue Industrial Property(pages 210-214)in the Successor Agency's approved Long-Range Property o Management Plan(i.e., $372,000)and the market value opinion determined by Empire Valuation and 0 Advisory Services, Inc. in its appraisal dated July 13, 2016 (i.e., $374,000). Therefore, each of Buyer and Seller believes that the Purchase Price represents a fair value price for the Real Property. This Agreement does not require that Buyer undertake any improvements to the Real Property. At N such time, if any, as Buyer makes improvements to the Real Property, the costs for planning, n. designing, and constructing such improvements shall be borne exclusively by the Buyer and the Buyer shall construct or cause to be constructed such improvements in co standard, and wage rate E requirements to the extent such labor and wage requirements are applicable. R Buyer, including but not limited to its contractors and subcontractors, shall be responsible to Q comply with Labor Code Section 1720, et seq., if applicable, and its implementing regulations, 16 Packet Pg. 75 5.E.e regarding the payment of prevailing wages (the"State Prevailing Wage Law"), if applicable, and, if applicable, federal prevailing wage law ("Federal Prevailing Wage Law" and, together with State Prevailing Wage Law, "Prevailing Wage Laws")with regard to the construction of improvements to the Real Property, but only if and to the extent such sections are applicable to the development of the Real Property. Insofar as the parties understand that Buyer is paying a fair market price for the Q Real Property, the parties believe that the payment of prevailing wages will not be required. In any event, Buyer shall be solely responsible for determining and effectuating compliance with the c Prevailing Wage Laws, neither the Seller nor the City makes any final representation as to the U applicability or non-applicability of the Prevailing Wage Laws to improvements to the Real ui Property, or any part thereof. Buyer hereby releases from liability, and agrees to indemnify, defend, assume all responsibility for and hold each of the Seller and the City, and their respective officers, employees, agents and representatives, harmless from any and all claims, demands, actions, suits, aEi proceedings, fines, penalties, damages, expenses resulting from, arising out of, or based upon Buyer's acts or omissions pertaining to the compliance with the Prevailing Wage Laws as to the a Real Property. This Section 14 shall survive Closing. 15. General Provisions. c a� (a) Indemnification. In addition to the Purchase Price, a material consideration to Seller in agreeing to sell the Real Property to Buyer pursuant to this Agreement and but for which L Seller would not have agreed to enter into this Agreement or sell the Real Property to Buyer, Buyer` a. (i) has agreed to amend the Greenbrier Lease to include the Real Property and to record the Memorandum at Closing, and(ii) has agreed to the remaining provisions of this Section 15. Buyer CO agrees to and shall indemnify and hold the Seller, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and N nature arising from any claims made by Greenbrier with respect compliance with following. i)Title a 49 Code of Federal Regulations Part 24, (the "Uniform Relocation Assistance and Real Property v Acquisition Policies for Federal and Federally-Assisted Programs"); ii) California Government s Code § 7260-7277 (the "California Relocation Assistance Law"); iii) Title 25, California Code of w Regulations, Chapter 6, Subchapter 1 (the "California Relocation Assistance and Real Property 0 Acquisition Guidelines"); and/or iv) any other applicable law (collectively, the "Relocation Assistance Laws"). As part of the foregoing indemnity, Buyer agrees to protect and defend at its a: own expense, including attorney's fees, the Seller, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions with respect to the Relocation Assistance Laws. Buyer hereby waives any and all a rights to any types of express or implied indemnity against the Seller, its elected officials, o employees, agents or representatives, with respect to claims against the Buyer from Greenbrier a relating to or in any way connected with the Relocation Assistance Laws. This Section 15 shall o survive Closing. (b) Condemnation. If any material portion of the Real Property shall be taken or appropriated by a public or quasi-public authority exercising the power of eminent domain, Buyer N shall have the right, at its option,to(i)terminate this Agreement or(ii)proceed with the purchase of a. the Real Property and receive all of the award or payment made in connection with such taking. a� E (c) Notices. All notices, demands,requests or other communications required or permitted hereunder(collectively, "Notices") shall be in writing, shall be addressed to the receiving party as provided in the Basic Terms section above, and shall be personally delivered, sent by a overnight mail (Federal Express or another carrier that provides receipts for all deliveries), sent by 17 Packet Pg. 76 S.E.e certified mail,postage prepaid, return receipt requested, or sent by facsimile transmission(provided that a successful transmission report is received). All Notices shall be effective upon receipt at the appropriate address. Notice of change of address shall be given by written notice in the manner detailed in this Section. Rejection or other refusal to accept or the inability to deliver because of C changed address of which no Notice in accordance with this Section was given shall be deemed to a constitute receipt of such Notice. The providing of copies of Notices to the parties' respective counsels is for information only, is not required for valid Notice and does not alone constitute c Notice hereunder. v ui (d) Brokers. Seller assumes sole responsibility for any consultants or brokers ("Seller's Agents") it may have retained in connection with the sale of the Real Property(and Buyer shall have no responsibility in connection with such matters). Seller represents to Buyer that Seller E CD has engaged no consultants, finders or real estate brokers in connection with the sale of the Real i Property to the Buyer, and there are no brokerage commission, finder's fee or other compensation of Q any kind is due or owing to any person or entity in connection with this Agreement. Seller agrees to m and does hereby indemnify and hold the Buyer free and harmless from and against any and all costs, CO liabilities or causes of action or proceedings which may be instituted by any broker, agent or finder, C licensed or otherwise, claiming through, under or by reason of the conduct of the Seller in connection with this Agreement. Buyer assumes sole responsibility for any consultants or brokers ("Buyer's Agents") it may have retained in connection with the purchase of the Real Property (and Seller shall have no responsibility in connection with such matters). Buyer represents to Seller that a Buyer has engaged no consultants, finders or real estate brokers in connection with the sale of the ti Real Property to the Buyer, and there are no brokerage commission, finder's fee or other CO compensation of any kind is due or owing to any person or entity in connection with this Agreement other than Buyer's costs with respect to Buyer's real estate broker, if any. Buyer agrees to and does hereby indemnify and hold the Seller free and harmless from and against any and all costs, liabilities a: or causes of action or proceedings which may be instituted by any broker, agent or finder, licensed or otherwise, claiming through, under or by reason of the conduct of the Buyer in connection with this Agreement. W 0 (e) Waiver, Consent and Remedies. Each provision of this Agreement to be CD W performed by Buyer and Seller shall be deemed both a covenant and a condition and shall be a J material consideration for Seller's and Buyer's performance hereunder, as appropriate, and any -J breach thereof by Buyer or Seller shall be deemed a material default hereunder. Either party may a specifically and expressly waive in writing any portion of this Agreement or any breach thereof, but no such waiver shall constitute a further or continuing waiver of a preceding or succeeding breach of o the same or any other provision. A waiving party may at any time thereafter require further n compliance by the other party with any breach or provision so waived. The consent by one party to a any act by the other for which such consent was required shall not be deemed to imply consent or $ waiver of the necessity of obtaining such consent for the same or any similar acts in the future. No v waiver or consent shall be implied from silence or any failure of a party to act, except as otherwise specified in this Agreement. All rights, remedies, undertakings, obligations, options, covenants, a conditions and agreements contained in this Agreement shall be cumulative and no one of them a shall be exclusive of any other. Except as otherwise specified herein, either party hereto may pursue any one or more of its rights, options or remedies hereunder or may seek damages or specific performance in the event of the other party's breach hereunder, or may pursue any other remedy at law or equity,whether or not stated in this Agreement. w a 18 Packet Pg. 77 5.E.e (f) Cooperation. Buyer and Seller agree to execute such instruments and documents and to diligently undertake such actions as may be required in order to consummate the purchase and sale herein contemplated and shall use all reasonable efforts to accomplish the Closing in accordance with the provisions hereof and, following Closing. (g) Remedies. Without limitation as to the availability of other remedies, this Agreement may be enforced by an action for specific enforcement. 0 0 U (h) Time. Time is of the essence of every provision herein contained. In the LLi computation of any period of time provided for in this Agreement or by law, the day of the act or ; event from which said period of time runs shall be excluded, and the last day of such period shall be included,unless it is a Saturday, Sunday, or legal holiday, in which case the period shall be deemed E to run until 5:00 p.m. of the next day that is not a Saturday, Sunday, or legal holiday. Except as L otherwise expressly provided herein, all time periods expiring on a specified date or period herein a shall be deemed to expire at 5:00 p.m. on such specified date or period. d CO (i) Counterparts; Facsimile Signatures.tures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. A facsimile signature shall be deemed an original signature. L a (j) Captions. Any captions to, or headings of,the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and CD shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. (k) Obligations to Third Parties. City shall be deemed to be a third party U beneficiary of this Agreement. Excepting only for the City, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, nor obligate any of the parties to this w Agreement to, any person or entity other than the parties hereto. o N (1) Amendment to this Agreement. The terms of this Agreement may not be n: modified or amended except by an instrument in writing executed by each of the parties hereto. J (m) Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. ° a` (n) Applicable Law. This Agreement shall be governed by and construed in o accordance with the local law of the State of California. ° U w (o) Exhibits and Schedules. The exhibits and schedules attached hereto are incorporated herein by this reference for all purposes. a (p) Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between, and E E the final expression of, Buyer and Seller with respect to the subject matter hereof. The parties hereto expressly agree and confirm that this Agreement is executed without reliance on any oral or a written statements,representations or promises of any kind which are not expressly contained in this 19 Packet Pg. 78 5.E.e Agreement. No subsequent agreement,representation or promise made by either party hereto, or by or to an employee, officer, agent or representative of either party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. m (q) Successors and Assigns. This Agreement shall be binding upon and shall a inure to the benefit of the permitted successors and assigns of the parties hereto. >, a� 0 (r) Assignment. Neither party may assign its rights under this Agreement 0 without the prior consent of the other party. w [signatures begin on the following page] c d E d m L a d Cn _ N U L a C) CO 7T- r2 s X U4 0 n: J J N _N a� Q O L a m 0 O U .r Q U) a E M U f0 a 20 Packet Pg. 79 5.E.e IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. a� "SELLER" a� SUCCESSOR AGENCY TO THE Q REDEVELOPMENT AGENCY OF THE CITY o OF SAN BERNARDINO, a public entity, corporate 0 and politic LLi m By: E Name: d L Its: Q ID M co "BUYER" c COOLEY PROPERTIES,L.P., a California N CU limited partnership L By: Chartwell Management Corp., a Nevada corporation, General Partner c co v By: vai Name: Robert Charton a Its: Vice-President w X U4 0 m o: a m d a 0 L a a� 0 0 v Q Cn a r c d E s 0 a 21 Packet Pg. 80 5.E.e Acceptance by Escrow Holder: First American Title Company hereby acknowledges that it has received a fully executed copy of the foregoing Purchase and Sale Agreement and Joint Escrow Instructions by and between the Successor Agency to the Redevelopment Agency of the City of San Bernardino, a public entity, Q corporate and politic ("Seller"), and Cooley Properties, L.P., a California limited partnership ("Buyer") and agrees to act as Escrow Holder thereunder and to be bound by and strictly perform o the terms thereof as such terms apply to Escrow Holder. U u.i Dated: ,201_ ; FIRST AMERICAN TITLE COMPANY c (D E a� By: Q Name: d Its: in C a� U L a ti 0 co Q Cn a U r 72 K W O O d a: J J N d d O L O O U Q a c a� E U w Q Packet Pg. 81 5.E.e EXHIBIT A LEGAL DESCRIPTION c d The land referred to herein is situated in the State of California, County of San Bernardino, described as follows: 0 0 PARCEL NO. 5 OF PARCEL MAP NO. 4781, IN THE CITY OF SAN BERNARDINO, COUNTY U ui OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 48 OF PARCEL MAPS,PAGE 87,RECORDS OF SAID COUNTY. d E d as L APN: 0281-031-52 and 0281-021-30 Q a� �o c 0 a� w �a 0 a ti 0 0 a a ci x w 0 (A d a J J N O Q) Q) Q O L d _O O O U t Q CL c a� E Q A-1 Packet Pg. 82 EXHIBIT B DEED RECORDING REQUESTED BY AND a WHEN RECORDED MAIL TO: o 0 Cooley Properties,L.P.,a California U ui limited partnership ; 7040 Avenida Encinas, Suite 104-519 = Carlsbad, CA 92011 E Attn: Robert Charton L Q co _ U L 7 a ti 0 00 Q C11 � a APN: 0281-031-52 and 0281-021-30 [Space above for recorder.] DOCUMENTARY TRANSFER TAX x $ w computed on the consideration or value of 0 LO property conveyed;OR computed on the consideration or value less o: liens or encumbrances remaining at time of sale. J a� Signature of Declarant or Agent determining tax-Firm CL Name 0 L a GRANT DEED 0 0 FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the Successor Agency to the Redevelopment Agency of the City of San Bernardino, a public entity, corporate and politic ("Grantor"), hereby grants to Cooley Properties, L.P., a California limited d partnership ("Grantee"), that certain real property located in the County of San Bernardino, State of a California,more particularly described on Attachment No. 1 attached hereto and incorporated herein by this reference(the"Property"), subject to existing easements,restrictions and covenants of record. r a B-2 Packet Pg. 83 5.E.e IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of 5201. SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO Q a 0 By: U Name: ui Its: _ E a� a� L Q a� _ a� t U L a ti 0 w v Q N a CS t K W C N d a N N EL Q1 CL O L- 0- a� 0 0 v Q a a� E U f6 a-. r-+ Q B-3 Packet Pg. 84 5.E.e ATTACHMENT NO. 1 TO GRANT DEED LEGAL DESCRIPTION a� m The land referred to herein is situated in the State of California, County of San Bernardino, described as follows: 0 0 PARCEL NO. 5 OF PARCEL MAP NO. 4781, IN THE CITY OF SAN BERNARDINO, U ui COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 48 OF PARCEL MAPS, PAGE 87, RECORDS OF SAID = COUNTY. E m as L Q d APN: 0281-031-52 and 0281-021-30 co _ a� s U L a. n. 0 co 1 Q a U r_ X W O N O n: J J N lU a� O i 0_ _d O O U t Q a. a� E U Q ATTACHMENT NO. 1 TO GRANT DEED TO EXHIBIT B Packet Pg. 85 5.E.e A notary public or other officer completing this certificate verifies 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. m STATE OF CALIFORNIA ) a' ss. COUNTY OF ) o U On ,before me, ,Notary Public, w (Print Name of Notary Public) c CD personally appeared E as L who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the a within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized d capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of v) which the person(s)acted,executed the instrument. R m I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. L WITNESS my hand and official seal. ° ti 0 Signature of Notary Public N a U .O X w OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent a fraudulent reattachment of this form. —j J rn CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT d ❑ Individual o. ❑ Corporate Officer L IL Title Or Type Of Document d Title(s) 0 U ❑ Partner(s) ❑ Limited ❑ General s r ❑ Attorney-In-Fact ❑ Trustee(s) Number Of Pages Q ❑ Guardian/Conservator a ❑ Other: c d Signer is representing: E Name Of Person(s)Or Entity(ies) Date Of Documents = V R Q Signer(s)Other Than Named Above Packet Pg. 86 5.E.e EXHIBIT C FIRPTA CERTIFICATE a, TRANSFEROR'S CERTIFICATE OF NON-FOREIGN STATUS a� To inform Cooley Properties, L.P., a California limited partnership ("Transferee"), that 0 withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as amended ("Code") ui will not be required upon the transfer of certain real property to the Transferee by the Successor ; Agency to the Redevelopment Agency of the City of San Bernardino (the, "Transferor"), the undersigned hereby certifies the following: E a� a� 1. The Transferor is not a foreign person or citizen, foreign corporation, foreign Q partnership, foreign trust, or foreign estate (as those terms are defined in the Code and the Income Tax Regulations promulgated thereunder); in 2. The Transferor's social security number or U.S. employer identification number is as c follows: CU U 3. The Transferor's home or office address is: a r- 0 00 : The Transferor understands that this certification may be disclosed to the Internal Revenue a Service by the Transferee and that any false statement contained herein could be punished by fine, a imprisonment or both. Under penalty of perjury, I declare that I have examined this certification and c5 to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document. x w 0 cn CD W Successor Agency to the Redevelopment a: Agency of the City of San Bernardino N a� a 0 a Q 0 0 Ca Q a c d E U C-1 Packet Pg. 87