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HomeMy WebLinkAbout2017-0381 2 3 4 5. 6'. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2017-38 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BETWEEN THE CITY OF SAN BERNARDINO AND FAIRVIEW FORD SALES, INC. WITH RESPECT TO THE REAL PROPERTY LOCATED AT 333 NORTH "H" STREET, SAN BERNARDINO, CALIFORNIA (APN 0134-182-04) AND APPROVING CERTAIN RELATED ACTIONS WHEREAS, pursuant to Health and Safety Code (the "HSC") § 34172 (a) (1), the Redevelopment Agency of the City of San Bernardino was dissolved on February 1, 2012; and WHEREAS, consistent with the provisions of the HSC, on January 9, 2012 the Mayor and Common Council of the City of San Bernardino elected to serve in the capacity of the Successor Agency to the Redevelopment Agency of the City of San Bernardino (the "Successor Agency"); and WHEREAS, the Oversight Board for the Successor Agency ("Oversight Board") has been established pursuant to HSC § 34179 to assist in the wind -down of the dissolved redevelopment agency; and WHEREAS, 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"); and WHEREAS, on December 31, 2015, the DOF approved the Successor Agency's LRPMP and notified the Successor Agency that pursuant to HSC § 34191.3, the approved LRPMP shall govern, and supersede all other provisions relating to the disposition and use of all the real property assets of the former redevelopment agency; and WHEREAS, the approved LRPMP, which addresses the disposition and use of the real I property assets held by the Successor Agency, includes 230 parcels of land grouped into forty- six (46) separate sites, eighteen (18) of which were designated as government use sites, seven (7) of which are designated as future development sites and twenty-one (21) of which were designated to be sold; and WHEREAS, per DOF's letter of May 17, 2016, on August 1, 2016, the Mayor and Common Council adopted Resolution No. 2016-165, which authorized the transfer from the 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14'. 15 16 17' 18 19 20' 21 22 23 24 25 26 27 28 11 Successor Agency and the acceptance by the City of the seven (7) sites identified with the 11 LRPMP as future development sites subject to the City accepting all of the Successor Agency's 'I obligations to comply with the applicable provisions of the HSC governing the later transfer of future development -designated real property to third -party entities, just as though said real property had never been transferred to the City by the Successor Agency in the first place; and WHEREAS, consistent with the foregoing, the Successor Agency transferred the I Property to the City via quitclaim deed on August 16, 2016 and the City is now responsible for compliance with the applicable provisions of the HSC governing the later transfer of real property to third -parties; and WHEREAS, consistent with the foregoing, the City is the owner of record as to that certain real property consisting of approximately 0.46 acres of vacant land located at 333 North "H" Street, San Bernardino, California (APN 0134-182-04) (the "Property"); and WHEREAS, within the LRPMP, the Property is: i) identified as a non-contiguous portion of Site No. 20 (i.e., also known as the Carousel Mall site); ii) described as a vacant commercial site; iii) designated for future development; and iv) more fully described within Exhibit "A" attached hereto, which is an excerpt from the LRPMP; and WHEREAS, since the Property was never a portion of the Carousel Mall and will not be included within future development plans for the reuse of the Carousel Mall site, the City has determined that the Property should be sold instead of being held for future development and that the net proceeds of sale are to be distributed to the taxing entities; and WHEREAS, pursuant to its letter dated January 17, 2017, Fairview Ford Sales, Inc. ("Fairview") has offered to purchase the Property for $80,152.00 for parking purposes (the "Fairview Offer Letter"), subject to certain conditions, as more fully described within the Fairview Offer Letter, a copy of which is attached to this Resolution as Exhibit `B"; and WHEREAS, to determine whether the purchase price offered by Fairview is fair and reasonable, the City commissioned Lee & Associates Commercial Real Estate Services (the "Lee & Associates") of Ontario California, a real estate brokerage firm familiar with the industrial/commercial real estate market within the Inland Empire Region in general and the City of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 San Bernardino in particular, to prepare a Broker's Opinion of Value (the "BOV") to confirm if the I purchase price offered by Fairview for the Property is fair and reasonable; and WHEREAS, based on past practice, the DOF has acknowledged that BOVs are an I acceptable method and basis for confirming that the value of real property being sold by a successor I agency is fair and reasonable; and WHEREAS, on February 2, 2017, the City received the BOV from Lee & Associates indicating its opinion that the market value of the Property is currently $78,148.00 (the `BOV Market Value"); and WHEREAS, in consideration that the $80,152.00 purchase price offered by Fairview for the Property exceeds the BOV Market Value by $2,004.00 or 2.6%, it may be concluded that the j purchase price offered by Fairview for the Property is fair and reasonable, as more fully described j within the BOV, a copy of which is attached to this Resolution as Exhibit "C"; and WHEREAS, this Resolution will approve the Purchase and Sale Agreement and Joint Escrow Instructions (the "Agreement") between the City and Fairview with respect to the Property, a copy of which is attached to this Resolution as Exhibit "D", and authorize certain I related actions; and WHEREAS, consistent with the provisions of the HSC and the LRPMP with respect to 18 real property to be sold, the effectiveness of the Agreement is subject to the approval of the 19 Oversight Board and the DOF; and 20 21 22 23 24 25 26 27 28 WHEREAS, subject to the approvals of the Oversight Board and DOF and on behalf of the Successor Agency, the City intends to distribute the land sale proceeds to the San Bernardino County Auditor -Controller for distribution to the taxing entities, less the costs of sale attributable to I the City that are described within the Agreement; and WHEREAS, all actions required by all applicable law to be taken by the City with respect I to the Agreement have been taken in an appropriate and timely manner; and WHEREAS, the City has reviewed the staff report in connection with this matter and has I evaluated other information provided to it pertaining to the findings proposed to be made hereunder; ITS I 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, this Resolution has been reviewed with respect to applicability of the California Environmental Quality Act (the "CEQA"), the State CEQA Guidelines (California Code of Regulations, Title 14, § 15000 et seq., hereafter the "CEQA Guidelines"), and the City's environmental guidelines; and WHEREAS, this Resolution does not constitute a "project" for purposes of CEQA, as that term is defined by CEQA Guidelines § 15378, because this Resolution is an organizational or administrative activity that will not result in a direct or indirect physical change in the environment, per § 15378 (b) (5) of the CEQA Guidelines; and WHEREAS, all of the prerequisites with respect to the approval of this Resolution have been met. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: Section 1. The foregoing recitals are true and correct and are a substantive part of I this Resolution. Section 2. The $80,152.00 purchase price for the Property is determined to be fair and I reasonable. Section 3. The Agreement for the purchase and sale of the Property, attached hereto as Exhibit "D", is approved. Section 4. The City Manager is authorized and directed to: i) execute the Agreement substantially in the form presented; ii) make ministerial revisions to the Agreement which do not increase the City's obligations or materially reduce the consideration payable to the City; iii) sign a grant deed and any other documents the execution of which is necessary or appropriate to carry out and implement the Agreement; iv) administer the City's obligations under the Agreement; and v) take such other actions and execute such other documents as are necessary as may otherwise be required to fulfill the intent of this Resolution. Section 5. This Resolution is not a "project" for purposes of CEQA, as that term is defined by Guidelines § 15378, because this Resolution is an organizational or M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administrative activity that will not result in a direct or indirect physical change in the environment, per § 15378 (b) (5) of the Guidelines. Section 6. This resolution shall take effect only after its adoption and execution in the manner as required by the City Charter and the approval of the Agreement by the Oversight Board and the DOF. E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 281 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS BETWEEN THE CITY OF SAN BERNARDINO AND FAIRVIEW FORD SALES, INC. WITH RESPECT TO THE REAL PROPERTY LOCATED AT 333 NORTH "H" STREET, SAN BERNARDINO, CALIFORNIA (APN 0134-182-04) AND APPROVING CERTAIN RELATED ACTIONS I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a joint regular meeting thereof, held on the 6th day of March, 2017, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ X BARRIOS X VALDIVIA X (S) SHORETT NICKEL mr_,1[1y, MULVIHILL X M Geor ea*)Wanna,-CW, City Clerk The foregoing Resolution is hereby approved this day of March 2017. Approved as to Form: Gary D. Saenz, City Attorney By: R. Carey D is, Mayor City of Sayf Bernardino PURCHASE ANIS SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS SELLER: City of San Bernardino BUYER: Fairview Ford Sales, Inc., a California corporation DATED: March 6, 2017 (333 N. H Street; APN 0134-182-04) BASIC TERMS Buyer: Fairview Ford Sales, Inc., a California corporation Buyer's Address: Fairview Ford Sales, Inc., a California corporation Attention: Nick De Pasquale 292 N. G Street San Bernardino, CA 92410 Email address: Tel. (909) 386-0253 Fax: (909) 884-3775 Closing Contingency Date: July 8, 2017 Closing Date (or Closing) Estimated to occur by July 18, 2017, but not later than the Outside Date Deed: A grant deed in the form of Exhibit B hereto Effective Date: March 6, 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 Date: August 8, 2017; provided that such date may be extended by mutual writing agreement by Seller and Buyer Purchase Price: Eighty Thousand One Hundred Fifty -Two Dollars ($80,152.00). Real Property: That property described in Exhibit A hereto; the subject property is sometimes referred to as APN 0134-182-04 Seller (or City): The City of San Bernardino, a municipal corporation and charter city duly organized and existing under the laws of the State of California 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@sbeity.org Soil and Title Contingency Date: July 7, 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 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 March 6, 2017 (the "Effective Date") by and between Seller and Buyer. RECITALS A. Seller is the fee owner of record as to the Real Property. The Real Property is unimproved. B. Buyer currently owns the land and building located at 292 N. G Street, which is near the situs of the Real Property. Buyer desires to acquire the Real Property for use of its existing business at 292 N. G Street and related activities. C. 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; and (ii) Agreed to the provisions set forth in Sections 13 and 14 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 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 the fee interest in the Real Property to be conveyed by a grant deed in the form of the Deed 1. 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. 2. 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 Opening 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 Seller 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 to the extent required under this Agreement, and (iii) actions by the California Department of 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 Date); 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. 3. 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 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. 0 (b) 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 Property, complaints or notices of the presence of Hazardous Materials on the Real Property, geological surveys, soil tests, engineering reports, inspection results, complaints, or notices received regarding the safety of the Real Property. (c) To the extent in the possession of Seller, all materials related to pending 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 City Manager, no investigation with respect thereto having been undertaken. (d) All contract, agreement or instrument to which Seller is a party 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") within twenty (20) calendar days after the Opening of Escrow, but in no event later than the thirtieth (30th) day after the Effective Date. 4. 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 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 evaluations, inspections, tests or investigations, 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. If Buyer does not cancel this Agreement by the time allowed under this Section 5, Buyer shall be deemed to have approved the evaluations, 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 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 test 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 (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 Prope . 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 United States, the State, 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. 5. Buyer's Conditions Precedent and Termination Ri ht. (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 3 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 (30th) 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). (ii) Buyer's Title Policy. On or before the Closing, the Title Company shall, upon payment (by 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) Inspections and Studies. On or before the Soil and Title 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 7 before the Soil and Title Contingency Date, 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 Date, 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) Propea and Formation Documents. On or before the Soil and Title Contingency Date, Buyer shall have approved in writing, in Buyer's sole 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. (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. Approval of this Agreement by the Oversight Board and DOF, or a determination by each that their approval is not required. (x) Consents. All necessary agreements and consents of all parties to consummate the transaction contemplated by this Agreement will have been obtained and furnished by Seller to Buyer. (xi) 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 paragraphs (b) (i) and (ii) below shall operate independently and each shall entitle the respective party to terminate this Agreement, as follows: (i) If the Independent Consideration Amount is not paid by Buyer to Seller by the time set forth therefor in Section 3(b) of this Agreement, then Seller may terminate this Agreement by giving notice thereof to Buyer. (ii) If any of Buyer's Contingencies not be met by the Closing Contingency Date, 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 terminated this Agreement in writing ("Termination Notice") on or before 5:00 p.m. on the Monday preceding 8 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)-(xiii) 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 Ripht. 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 terminate this Agreement. 6. Seller's Conditions Precedent and Termination Ri ht. 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. (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. 9 (d) Liens. Seller shall have obtained the consent of any lien holder to the release of such liens prior to or concurrent with Closing. (e) Oversight Board and DOF Approval. Approval of this Agreement by the Oversight Board and DOF, or a determination by each that their approval is not required. (f) Delivery of Documents. Buyer's delivery of all documents described in Section 9(a), below. Should any of Seller's Contingencies not be met by the respective times set forth for the satisfaction for such contingency, Seller may, by written notice to Buyer, terminate this Agreement; such termination rights shall be in addition to those termination rights of Seller as set forth in Section 6(b)(i). 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. 7. 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"). (iii) Hazard Disclosure Report. Consistent 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. (v) Authority. Such evidence of Seller's authority and authorization to enter into this Agreement and to consummate this transaction. (vi) Final Escrow Instructions. Seller's final written escrow instructions to close escrow in accordance with the terms of this Agreement. (vii) 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 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) 10 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. 8. 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) Cham 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) Authorijy. 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. (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) 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. 9. 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 11 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 consummated, then Buyer shall bear the following costs and expenses: (i) Buyer's share of prorations, (ii) 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; (iii) one half of escrow charges; (iv) recording and other costs of closing; (v) costs, if any, for such services as Buyer may additionally request that Escrow perform on its behalf; and (vi) 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. 10. 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 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 201i 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 12 Tax Code, together with such other documents required by the Tax Code (including, without limitation, California Form 593), to the California Franchise Tax Board. 11. Closiny 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). (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. (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 Com an . 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. 13 (h) Possession. Possession of the Real Property shall be delivered to Buyer at the Closing. 12. Reoresentations 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 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 written approval of this Agreement by the Oversight Board and DOF, or a determination by each that their approval is not required. (ii) Subject to the approval of this Agreement by the Oversight Board and DOF, or a determination by each their approval is not required, 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 (to the extent applicable) and, as may be applicable, DOF, the individual executing this Agreement and the instruments referenced herein on behalf of Seller has the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof. (iv) 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 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 knowledge of the City Manager, 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. Property. (vii) There are no leases or rental agreements in effect as to the Real 14 (viii) To the best knowledge of the City Manager, 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. (ix) To the best knowledge of the City Manager, 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) To the best knowledge of the City Manager, 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. To the best knowledge of the City Manager, 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, and no person other than Buyer shall have any right of possession to the Real Property or any part thereof as of the Closing. (xii) No person, excepting Seller, has possession or any rights to possession of the Real Property or portion thereof. (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, 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 parry 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) Bu er'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. 15 (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 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, 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. 13. Fair Value Price. The $80,152 Purchase Price is believed by the parties to this Agreement to represent the fair value of 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 16 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 13 shall survive Closing. 14. 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. (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 that other than Gerald W. Beard Realty, Inc. ("Buyer's Representative"), which Buyer has engaged in connection with the identification and acquisition of the Real Property, Buyer has engaged no consultants, finders or real estate brokers in connection with the sale of the Real Property to the Buyer, and, excepting for Buyer's agreement to compensate Buyer's Representative (which shall be the sole responsibility of Buyer, without participation by Seller) 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 17 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 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. Buyer shall arrange with Buyer's Representative for such payments as have been agreed between Buyer and Buyer's Representative to be payable to Buyer's Representative; Seller shall have no responsibilities with respect thereto. Buyer shall either arrange with the Escrow Holder for Escrow Holder to disburse moneys deposited by Buyer with Escrow Holder to Buyer's Representative based upon an agreement between Buyer and Buyer's Representative, or Buyer shall pay Buyer's Representative outside of escrow (in which event Buyer shall so inform Seller and Escrow Holder). (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) Counterparts, Electronic 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 signature by facsimile or as an attachment to 18 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. (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 Assip gns. This Agreement shall be binding upon and shall inure to the benefit of the permitted successors and assigns of the parties hereto. (r) Assi ng ment. Neither party may assign its rights under this Agreement without the prior consent of the other party. 19 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. ATTEST: Georg --a Hanna, CNk, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney "SELLER" THE CITY OF SAN BERNARDINO, a municipal corporation and charter city duly organized and existing under the laws of the State of California By: A4.4t Name: J�- Its: i cZvr a� C- "BUYER" By: tkaao��'to� FAIRVIEW FORD SALES, INC., a California corporation By: Name: Nid De Pa uale Its: President 20 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 City of San Bernardino, a municipal corporation and charter city duly organized and existing under the laws of the State of California, and Fairview Ford Sales, Inc., a California corporation ("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: , 201 FIRST AMERICAN TITLE COMPANY By: Nai Its: EXHIBIT C FIRPTA CERTIFICATE TRANSFEROR'S CERTIFICATE OF NON -FOREIGN STATUS To inform Fairview Ford Sales, Inc., a California corporation ("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 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: 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. The City of San Bernardino C-1