HomeMy WebLinkAboutItem No. 01 - PSA with Edward C. Adams and Jeanne M. Adams with Respect to Real Property
Staff Report
City of San Bernardino
Request for Council Action
Date: June 3, 2020
To: Honorable Mayor and City Council Members
From: Teri Ledoux, City Manager
By:Michael Huntley, Community & Economic Development Director
Subject: Resolution to Approve PSA with Edward C. Adams and
Jeanne M. Adams with Respect to Real Property
Recommendation
Adopt Resolution No. 2020-109 of the Mayor and City Council of the City of San
Bernardino, California, approving the Purchase and Sale Agreement and Joint Escrow
Instructions between the City of San Bernardino and Edward C. Adams and Jeanne M.
Adams with respect to the real property located at 552 and 578 N. Mt. Vernon Avenue
and 1316 W. Spruce Street, San Bernardino, California (APNs 0138-114-09 to -11 and
0138-114-18), and authorizing the City Manager to execute the Agreement.
Background
Pursuant to Health and Safety Code Section
Redevelopment Agency of the City of San Bernardino was dissolved and City Council of
the City of San Bernardino elected to serve in the capacity of the Successor Agency to
Long-
the Successor Agency that pursuant to HSC § 34191.3, the approved LRPMP shall
govern, and supersede all other provisions of the HSC relating 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 property assets then held
by the Successor Agency, includes 230 parcels of land grouped into forty-six (46)
separate sites, nineteen (19) of which are designated as government use sites, seven
(7) of which are designated as future development sites and twenty (20) of which are
designated to be sold.
, the Successor Agency
adopted Resolution Nos. 2016-164, authorizing the transfer of the Future Development
Sites from the Successor Agency to the City and on August 1, 2016, the City adopted
Resolution 2016-165, accepting the Future Development Sites from the Successor
Agency, including the S
provisions of the HSC, including entering into HSC § 34180 (f) (l) compensation
agreements with the Taxing Entities, as defined by HSC § 34171(k). On August 16,
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6748
2016, the Successor Agency transferred the Future Development Sites to the City via
quitclaim.
On March 6, 2017, the Successor Agency Board approved the original Property
Disposition Strategy, which authorizes a competitive process that would result in listing
18 real property sites for sale with a real estate broker (two of which are owned by the
City and designated for future development). On August 16, 2017, the Successor
the number of real property sites to be listed with a real estate broker from 18 to 16 (one
of which is City-owned); (ii) provides for an alternate method of real property disposition
for the two real property sites removed from the group to be listed with a real estate
broker; (iii) where applicable, provides a current status update on completed and
pending real property transfers; and (iv) establishes an Escrow and Title Administrative
Management Fee to allow the City to recover a portion of the cost of its services with
respect to the management of the sale of real property assets. Consistent with the
Amended Property Disposition Strategy, on October 18, 2017, the Successor Agency
approved an agreement with Keller Williams Realty -
and sell the City
Strategy as LRPMP Site No. 24.
The City is the owner of record as to that certain real property located at 552 and 578 N.
Mt. Vernon Avenue and 1316 W. Spruce Street, San Bernardino, California (APNs
0138-114-09 to -11 and 0138-114-
(i) identified as Site No. 24; (ii) described as four (4) vacant parcels of land
approximately 0.56-acre in size; (iii) zoned Commercial General in the 1992-Paseo Las
Placitas Specific Plan; (iv) designated for future development; and (v) more fully
described in Exhibit "A" attached to the Resolution, which is an excerpt from the
LRPMP.
As a part of the KW Agreement, Keller Williams is required to prepare o
practice, DOF has acknowledged that BOVs are an acceptable method and basis for
confirming that the value of the real property being sold is fair and reasonable.
Discussion
In response to the listing, Keller Williams received, thoroughly reviewed, and vetted one
(1) offer to purchase the Property. On March 3, 2020, Mr. Edward C. Adams offered to
the offer is attached
credible buyer capable of purchasing the Property and has recommended that the City
Williams submitted its
Value, it may be concluded that the purchase price offered by Mr. Adams for the
Property is fair and reasonable, as more fully described within the BOV, a copy of which
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6748
y and Edward C. Adams and Jeanne M. Adams with
Consistent with the provisions of the HSC and the LRPMP with respect to real property
designated for future development, staff will prepare and circulate a Notice of
Compensation confirming that the net land sale proceeds (i.e., the Purchase Price less
the costs of sale attributable to the City that are described within the Purchase and Sale
Agreement) shall be distributed to the affected taxing entities by the San Bernardino
County Auditor-Controller in proportion to their respective shares of the general tax
levy, a copy of which is attached to this Staff Report as Attach
The Purchase and Sale Agreement is not subject to the California Environmental
Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies
only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no
possibility that the activity in question may have a significant effect on the environment,
the activity is not subject to CEQA.
2020-2025 Key Strategic Targets and Goals
Approval of the Purchase and Sale Agreement Property aligns with Key Target No. 1:
Financial Stability. The sale of this 0.56-acre commercial property will lead to the future
development of a commercial establishment that will generate new sales tax revenue to
the City.
Fiscal Impact
No General Fund revenue was used in the processing of this action since the property
was a former Redevelopment Agency property asset and the costs were covered by the
Recognized Obligation Payment Schedule.
Conclusion
It is recommended that the Mayor and City Council adopt Resolution No. 2020-109
approving the Purchase and Sale Agreement and Joint Escrow Instructions between the
City of San Bernardino and Edward C. Adams and Jeanne M. Adams with respect to
the real property located at 552 and 578 N. Mt. Vernon Avenue and 1316 W. Spruce
Street, San Bernardino, California (APNs 0138-114-09 to -11 and 0138-114-18), and
approving certain related actions.
Attachments
Attachment 1 Resolution 2020-109
Attachment 2 Excerpt from LRPMP
Attachment 3 March 3, 2020 Offer from Edward C. Adams
Attachment 4
Attachment 5 Purchase and Sale Agreement
Attachment 6 Original Purchase and Sale Agreement
Attachment 7 Notice of Compensation
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6748
Ward: 1
Synopsis of Previous Council Actions:
May 6, 2020 Mayor and the City Council considered an offer to purchase the
property in closed session and directed staff to proceed with
negotiations and sale.
Page 4
RESOLUTION NO. 2020-109
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA
AUTHORIZING THE CITY MANAGER TO EXECUTE
THE PURCHASE AND SALE AGREEMENT AND JOINT
ESCROW INSTRUCTIONS BETWEEN THE CITY OF SAN
BERNARDINO AND EDWARD C. ADAMS AND JEANNE
M. ADAMS WITH RESPECT TO THE REAL PROPERTY
LOCATED AT 552 AND 578 N. MT VERNON AVENUE
AND 1316 W. SPRUCE STREET, SAN BERNARDINO,
CALIFORNIA (APNS 0138-114-09 TO -11, 0138-114-18), AND
APPROVING CERTAIN RELATED ACTIONS
WHEREAS, pursuant to Health and Safety Code (section 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 City Council of the City of San Bernardino elected to serve in the capacity of the Successor
WHEREAS, the Oversight Board for the Successor Agency (the
has been established pursuant to HSC section 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 California
DOF
WHEREAS, on December 31, 2015,
LRPMP and notified the Successor Agency that pursuant to HSC section 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
property assets held by the Successor Agency, includes 230 parcels of land grouped into forty-
six (46) separate sites, nineteen (19) of which are designated as government use sites, seven (7)
of which are designated as future development sites and twenty
(20) of which are designated to be sold; and
WHEREAS, Successor
Agency adopted Resolution Nos. 2016-164, authorizing the transfer of the Future Development
Sites from the Successor Agency to the City; and
WHEREAS, on August 1, 2016, the City adopted Resolution 2016-165, accepting the
Future Development Sites from the Successor Agency, including the Successor Agency
obligations to comply with the applicable provisions of the HSC, including entering into HSC
Resolution No. 2020-109
section 34180 (f) (l) compensation agreements with the Taxing Entities, as defined by HSC
Section 34171(k); and
WHEREAS, on August 16, 2016, the Successor Agency transferred the Future
Development Sites to the City via quitclaim; and
WHEREAS, on March 6, 2017, the Successor Agency Board approved the original
Property Disposition Strategy, which among other things, authorizes a competitive process that
would result in listing for sale of 18 real property sites with a real estate broker (two of which are
owned by the City and designated for future development); and
WHEREAS, on August 16, 2017, the Successor Agency Board approved an mended
Property Disposition Strategy, which: (i) reduces the number of real property sites to be listed
with a real estate broker from 18 to 16 (one of which is City-owned); (ii) provides for an
alternate method of real property disposition for the two real property sites removed from the
group to be listed with a real estate broker; (iii) where applicable, provides a current status
update on completed and pending real property transfers; and (iv) establishes an Escrow and
Title Administrative Management Fee to allow the City to recover a portion of the cost of its
services with respect to the management of the sale of real property assets; and
WHEREAS, consistent with the Amended Property Disposition Strategy, on October
18, 2017, the Successor Agency approved an agreement with Keller Williams Realty Redlands
(KW remaining site as identified in the Amended
Property Disposition Strategy as LRPMP Site No. 24; and
WHEREAS, the City is the owner of record as to that certain real property located at 552
and 578 N. Mt. Vernon Avenue and 1316 W. Spruce Street, San Bernardino, California (APNs
0138-114-09 to -11 and 0138-114-nd
WHEREAS, within the LRPMP, the Property is: (i) identified as Site No. 24; (ii)
described as four (4) vacant parcels of land approximately 0.56-acre in size; (iii) zoned Commercial
General in the 1992-Paseo Las Placitas Specific Plan; (iv) designated for future development; and
(v) more fully described in Exhibit "A" attached hereto, which is an excerpt from the LRPMP; and
WHEREAS, as a part of the KW Agreement, Keller Williams is required to prepare of a
(the property that is listed to be sold; and
WHEREAS, based on past practice, DOF has acknowledged that BOVs are an acceptable
method and basis for confirming that the value of the real property being sold is fair and reasonable;
and
WHEREAS, in response to the listing, Keller Williams received, thoroughly reviewed
and vetted one (1) offer to purchase the Property; and
WHEREAS, on March 3, 2020, Mr. Edward C. Adams offered to purchase the Property
for $103,500 ( (a copy of the offer is attached );
and
2
Resolution No. 2020-109
WHEREAS, Keller Williams has confirmed that Mr. Adams is a credible buyer capable
of purchasing the Property and has recommended that the City consider M purchase
offer; and
WHEREAS, on March 13, 2020, Keller Williams submitted its BOV, indicating its
opinion that the market value of the Property is $103,500 (
WHEREAS, in consideration that the Purchase Price equals the BOV Market Value, it
may be concluded that the purchase price offered by Mr. Adams for the Property is fair and
reasonable, as more fully described within the BOV, a copy of which is attached to this Resolution
WHEREAS, this Resolution will approve the Purchase and Sale Agreement and Joint
Escrow Instructions (Purchase and Sale between the City and Edward C. Adams
and Jeanne M. Adams with respect to the Property, a copy of which is attached to this
D, and authorize certain related actions; and
WHEREAS, consistent with the provisions of the HSC and the LRPMP with respect to
real property designated for future development, staff will prepare and circulate a notice of
compensation confirming that the net land sale proceeds (i.e., the Purchase Price less the costs of
sale attributable to the City that are described within the Purchase and Sale Agreement) shall be
distributed to the affected taxing entities by the San Bernardino County Auditor-Controller in
proportion to their respective shares of the general tax levy; and
WHEREAS, all of the prerequisites with respect to the approval of this Resolution have
been met.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. The Purchase Price for the Property is determined to be fair and reasonable.
SECTION 3. The City Manager is hereby authorized to execute the Purchase and Sale
Agreement between the City and Edward C. Adams and Jeanne M. Adams, for the purchase and
sale of the Property in substantially the form D.
SECTION 4. The City Manager, or designee, is authorized to take such other actions
and to prepare or execute any other documents necessary to effectuate the sale and the intent of
this Resolution, including the grant deed and a notice of compensation.
SECTION 5. The City Council determines this Resolution is not subject to
environmental review under the California Environmental Quality Act (CEQA) pursuant to
State CEQA Guidelines (Cal. Code Regs., § 15000 et seq.) section 15060 (c) (3). Pursuant to
State CEQA Guidelines section 15060 (c) (3), approval of this Resolution does not constitute a
3
Resolution No. 2020-109
project under CEQA as it has no potential to result in a direct or reasonably foreseeable indirect
physical change in the environment.
SECTION 6. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 7. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested
rd
by the Acting City Clerk this 3 day of June 2020.
John Valdivia, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, Acting City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
4
Resolution No. 2020-109
CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO)
I, Genoveva Rocha, CMC, Acting City Clerk, hereby certify that the attached is a true
rd
copy of Resolution No. 2020- , adopted at a regular meeting held on the 3 day of June
2020 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
rd
WITNESS my hand and official seal of the City of San Bernardino this 3 day of June 2020.
Genoveva Rocha, CMC, Acting City Clerk
5
Successor Agency to the Redevelopment
Agency of the City of San Bernardino
Long-Range Property Management Plan
September 2015
Amended December 2015
Site No. 24: Vacant N. Mt. Vernon Avenue & Vacant W. Spruce Street Commercial Property
Address:552 N. Mt. Vernon Avenue 1316 W. Spruce Street 578 N. Mt. Vernon Avenue
APNs:0138-114-09 0138-114-11 0138-114-18
0138-114-10
th
W.6Street
N.
Mt.
Vernon
Avenue
Avenue
Herrington
N.
W.SpruceStreet
117
IV. Property to be Transferred for Future Development
Site 24 – Vacant N. Mt. Vernon Avenue & Vacant W. Spruce Street Commercial Property
Successor Agency to the Redevelopment
Agency of the City of San Bernardino
Long-Range Property Management Plan
September 2015
Amended December 2015
Site No. 24: Vacant N. Mt. Vernon Avenue & Vacant W. Spruce Street Commercial Property
A.Permissible Use (HSC § 34191.5 (c) (2)):
Site No. 24 is the Vacant N. Mt. Vernon Avenue & W. Spruce Street Commercial Property (the
“Vacant Commercial Property”) and is proposed to be transferred to the City of San Bernardino for
future development pursuant to HSC § 34191.5 (c) (2).
B.Acquisition of Property (HSC § 34191.5 (c) (1) (A) and § 34191.5 (c) (1) (B)):
Property records indicate that the Vacant Commercial Property was acquired by the Agency in
several separate transactions and carries a partial Book Value of $214,722. Agency staff continues
to research the Acquisition Price for APN 0138-114-11. The following table details the property
records:
Acquisition Details of the Vacant Commercial Property
APNAcquisition Date Book Value
0138-114-09 August 2004 $60,822
0138-114-10 June 2005 $47,000
0138-114-11 October 2005 $0.00
0138-114-18 March 1993 $106,900
The Vacant Commercial Property was acquired by the Agency in order to meet the revitalization
goals of the City and the Agency to alleviate the existence and spread of physical and economic
blight by assembling land and preparing property for future development. The estimated current
value (the “ECV”) of the Vacant Commercial Property is approximately $193,000.
C.Site Information (HSC § 34191.5 (c) (1) (C)):
The Vacant Commercial Property consists of four (4) parcels (APNs 0138-114-09, -10, -11, -18)
totaling 0.56 acres located at 552 and 578 N. Mt. Vernon and 1316 W. Spruce Street. The Vacant
Commercial Property is zoned Commercial General (CG-3) in the 1992-Paseo Las Placitas Specific
Plan (the “1992-SP”). The purpose of the CG-3 zone is to allow for local and regional serving
retail, personal service, entertainment, office, and related commercial uses.
D.Estimated Current Value (HSC § 34191.5 (c) (1) (D)):
To determine an ECV for the Vacant Commercial Property, in January 2015, the Agency conducted
a comparable sales analysis through the National Data Collective. The ECV was determined to be
approximately $193,000 .
Local factors were not taken into consideration in determining the ECV of this site. Therefore, the
actual value of the property may vary significantly from the ECV. The ECV is only a rough
estimate planning number and should not be relied upon as a basis for actual value. The real value
of the property cannot be determined without an appraisal.
E.Site Revenues (HSC § 34191.5 (c) (1) (E)):
There are no site revenues generated from the Vacant Commercial Property.
118
IV. Property to be Transferred for Future Development
Site 24 – Vacant N. Mt. Vernon Avenue & Vacant W. Spruce Street Commercial Property
Successor Agency to the Redevelopment
Agency of the City of San Bernardino
Long-Range Property Management Plan
September 2015
Amended December 2015
Site No. 24: Vacant N. Mt. Vernon Avenue & Vacant W. Spruce Street Commercial Property
F.History of Environmental Contamination (HSC § 34191.5 (c) (1) (F)):
32
There is no known history of environmental contamination.
G.Potential for Transit Oriented Development (TOD) and the Advancement of Planning Objectives
of the Successor Agency (HSC § 34191.5 (c) (1) (G)):
There is no potential for a TOD in conjunction with Vacant Commercial Property.
Mount Vernon Avenue is a major north-south roadway located in the western portion of the City.
Mount Vernon Avenue connects to the 30 and 215 freeways on the northern end, and Interstate 10
to the south. Historic Route 66 runs north along a portion of Mount Vernon Avenue from Foothill
th
Boulevard/5 Street north to Cajon Boulevard, where it continues north through the Cajon Pass.
The transfer of the Commercial Property for future development to the City of San Bernardino
advances the planning objectives of the Successor Agency in accordance with the City’s General
Plan, Paseo Las Placitas Specific Plan and EIR, and the Agency’s Five-Year Implementation Plan
2009/2010 through 2013/2014:
1.Mt. Vernon/Spruce Street Retail Center: Enter into an agreement with a developer for the
sale of four (4) Agency parcels for the development of new retail space;
2.Enter into a study agreement with a developer to study the feasibility of various types of
development that would be of benefit to the surrounding neighborhood;
3.Maintain and enhance commercial uses along main thoroughfares such as Mt. Vernon
Avenue;
4.Protect large parcels that front onto freeways and commercial corridors from subdivision
into smaller parcels;
5.Establish and maintain an ongoing liaison with Caltrans;
6.Capture appropriate demand that meets the community’s needs and takes full advantage of
emerging development and economic opportunities;
7.Provide opportunities for private investment in the City;
8.Provide opportunities for retail and other non-residential commercial and office uses;
9.Encourage pedestrian friendly uses;
10.Achieve greater private sector profit, public benefit, and sustainability;
11.Focus on creating distinct, discernible “places” of varied sizes, functions, and complexity;
32
http://geotracker.waterboards.ca.gov/map/?CMD=runreport&myaddress=578+N.+Mt.+Vernon+Ave%2C+san+bernardino
119
IV. Property to be Transferred for Future Development
Site 24 – Vacant N. Mt. Vernon Avenue & Vacant W. Spruce Street Commercial Property
Successor Agency to the Redevelopment
Agency of the City of San Bernardino
Long-Range Property Management Plan
September 2015
Amended December 2015
Site No. 24: Vacant N. Mt. Vernon Avenue & Vacant W. Spruce Street Commercial Property
12.Enhance the quality of life and economic vitality in San Bernardino by strategic infill of
new development and revitalization of existing development;
13.Promote development that integrates with and minimizes impacts on surrounding land
uses;
14.Maximize opportunities that generate taxable sales in targeted growth areas; and
15.Develop combined urban street retail that will leverage and complement the existing retail
uses.
H.History of Previous Development Proposals and Activity (HSC § 34191.5 (c) (1) (H)):
There is no history of previous development proposals or activities in conjunction with the Vacant
Commercial Property.
I.Disposition of Property:
The City’s policies and procedures for property disposition, located in Exhibit “A” Section II, will
guide the disposition of the Property.
The ECV of the Vacant Commercial Property is approximately $193,000.
The following process was used in determining the ECV of the Vacant Commercial Property:
Date of estimated current value – January 2015
Value Basis – The ECV was determined by a comparable sales analysis using the National
Data Collective subscription service. The ECV is approximately $193,000.
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.
J.Implementation of the Long-Range Property Management Plan:
The Vacant Commercial Property will be transferred to the City of San Bernardino for future
development subsequent to securing an HSC § 34180 (f) (1) compensation agreement (the
“Compensation Agreement”) with the affected taxing entities, or as may otherwise may be provided
by the HSC.
120
IV. Property to be Transferred for Future Development
Site 24 – Vacant N. Mt. Vernon Avenue & Vacant W. Spruce Street Commercial Property
March 13, 2020
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
SELLER: City of San Bernardino
BUYER: Edward C. Adams and Jeanne M. Adams
DATED: June 3, 2020
(552 and 578 N. Mt. Vernon Avenue and 1316 W. Spruce Street
APNs 0138-114-09 to -11 and 0138-114-18)
BASIC TERMS
Buyer: Edward C. Adams and Jeanne M. Adams
Address: 3242 Miramonte Dr.
San Bernardino CA 92405
Tel: (909) 374-2547
Email: carson7252@aol.com
City: The City of San Bernardino
Closing Contingency Date: August 3, 2020
Closing Date (or Closing) Estimated to occur by June 19, 2020, but not later than the Outside
Date
Deed: A grant deed in the form of Exhibit B hereto
Effective Date: June 3, 2020
Escrow Holder: Commonwealth Land Title
A Fidelity National Financial Company
888 S. Figueroa Street, Suite 2100
Los Angeles, CA 90017
Tel: (213) 330-3059
Attention: Crystal Leyvas, Vice President, National Accounts
National Commercial Services
Direct: (213) 330-3059; email: Cleyvas@cltic.com
(or another escrow holder mutually acceptable to Buyer and Seller)
Independent
Consideration Amount: Two Hundred Dollars ($200)
Outside Date: August 28, 2020; provided that such date may be extended by mutual
writing agreement by Seller and Buyer
Purchase Price: One Hundred Three Thousand Five Hundred Dollars ($103,500)
Real Property: That property described in Exhibit A hereto; the subject property is
sometimes referred to as APNs 0138-114-09 to -11 and 0138-114-18
Seller: City of San Bernardino
290 Third Floor
San Bernardino, California 92418
Attention: Teri Ledoux, City Manager
Tel. (909) 384-5122
Fax: (909) 384-5138
Email: Ledoux_Te@sbcity.org
Soil and Title Contingency
Date:July 4, 2020
Title Company: Commonwealth Land Title
A Fidelity National Financial Company
888 S. Figueroa Street, Suite 2100
Los Angeles, CA 90017
Tel: (213) 330-3059
Attention: Crystal Leyvas, Vice President, National Accounts
National Commercial Services
direct: (213) 330-3059; email: Cleyvas@cltic.com
(or another title company mutually acceptable to Buyer and Seller)
2
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS of June 3, 2020 (
by and between Seller and Buyer.
RECITALS
A. Seller is the fee owner of the Real Property. The Real Property is approximately 0.56
acres of vacant land.
B. 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.
C. In addition to the Purchase Price, material considerations to Seller in agreeing to enter
into this Agreement, Buyer has agreed to pay to Seller the Independent Consideration Amount.
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
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 Sellshare 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
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. Buyer and Seller agree to execute, deliver and be bound by any reasonable or customary
3
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 Opening of Escrow,
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
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-. If
the Closing occurs, a credit shall be applied to the Purchase Price based upon payment of the
Independent Consideration Amount.
(c) Closing
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; 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. . Within ten (10)
days after the Effective Date, Seller shall deliver to Buyer the following items (collectively, the
(a)
and to consummate this transaction as may be reasonably requested by Buyer and the Title Company
consistent with the terms of this Agreement.
In addition, Seller shall cause Escrow Holder to obtain and deliver to Buyer a Natural Hazard
Soil and Title Contingency Date.
5. . 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 B
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.
4
(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
investigations as Buyer deems necessary or appropr
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 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 which specifically
references this Section 5. If Buyer does not cancel this Agreement by the time 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. Buyer shall provide a copy to the Seller
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.
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,
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.
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
stricted
California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii)
5316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response
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
Administrative Code, Div
to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C.
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq.
5
(b) No Warranties as to the Real Property. The physical condition and possession
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 take
all necessary precautions to prevent the release into the environment of any Hazardous Materials
which are located in, on or under the Real Property. Such precautions shall include compliance 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
6. .
(a) Conditions Precedent
the purchase of the Real Property under this Agreement are subject to the timely satisfaction or written
waiver of the following con
(i) Title Review. Within twenty (20) calendar days after the Opening of
Escrow, Seller shall cause the Title Company to deliver to Buyer a preliminary title report (the
provided that the cost of the Report shall be
borne by Seller. Seller acknowledges that the shall include an endorsement
necessary to induce the Title Company to provide such endorsement. On or before the Soil and Title
the Report; (ii) the
Exceptions; (iii) the legal description of the Real Property and (iv) any survey Buyer desires to obtain
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) . On or before the Closing, the Title Company
standard ALTA insuring only as to matters of record title Standard
hase Price showing fee title to the Real Property
vested solely in Buyer and subject only to the (i)
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 Stand
coverage ALTA policy)
6
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) Physical and Legal Inspections and Studies. On or before Soil and
Title
discretion, the results of any physical and legal (but not feasibility or economic) 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.
(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 at
Section 8(a)(iii) of this Agreement; provided that Seller shall bear the cost to prepare such Natural
Hazard Report.
(v) Property and Formation Documents. On or before the Soil and Title
conditions and status of all of the Property Documents.
(vi) Delivery of Documents
in Section 8, below.
(vii) Representations and Warranties. All representations and warranties
of Seller contained in this Agreement shall be materially true and correct as of the date made and as
of the Closing.
(viii) Title Company Confirmation. The Title Company shall have
Agreement.
(ix) 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 (i), (ii) and (iii) shall operate independently and
each shall entitle Seller 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)(i) of this Agreement, then this Agreement shall
terminate upon Seller giving notice thereof to Buyer;
7
(ii) If are not met by the Closing
Contingency Date, and Seller so informs Buyer, Buyer may, by written notice to Seller, terminate this
Agreement.
If this Agreement is so terminated, then (except to the extent expressly allocated toone 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 not terminated this Agreement
p.m. on the Monday preceding the scheduled
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)-(xi) inclusive, prior to the Termination
Notice DeadlineContingencies 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)
right, but not the obligation, to (i) remove from title any disapproved or conditionally approved
approval of the Title Documents) within five (5) business da
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,
committing to do so shall be a default hereunder. An Exception shall be deemed removed or cured if
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).
7. t and Termination Right
obligations with respect to the transaction contemplated by this Agreement are subject to the timely
satisfaction or writte
(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
8
the condition of the Real Property, including without limitation concerning Hazardous Materials,
zoning and suitability, and approves the condition of the Real Property.
(c). 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 release
of such liens prior to or concurrent with closing.
(e) Delivery of Documents
Section 9(a), below.
respective times set forth for
the satisfaction for such contingency (and without regard to whether all such contingencies have been
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
Seller as set forth in Section 6. 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. .
(a) . 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,
(i) Deed. The Deed.
(ii) FIRPTA/Tax Exemption Forms
Non-Foreign Status in the form attached hereto as Exhibit
with any necessary tax withholding forms, and a duly executed California Form 593-C, as applicable
(iii) Hazard Disclosure Report. Unless earlier delivered to Buyer, Seller
provided for under Sections 1102 and 1103 of the Californi
before the Closing.
(iv) Possession of Real Property. Possession of the Real Property free of
any tenancies or occupancy.
(v) Authority.
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.
(vi) 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.
9
(b) Failure to Deliver
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)
(5) business days
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. . 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
(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 ing 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 11(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
escrow in accordance with the terms of this Agreement.
(d) Authorityauthority 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) . Buyer shall deposit any moneys due
and payy.
(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.
10. Costs and Expenses.
(a) . 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) prorations; (iii) the premium for a
10
recording fees, if any; (v) documentary transfer tax, if any; (vi)
Commission of Ten Thousand Three Hundred Fifty Dollars ($10,350) which the parties acknowledge
and agree
tate Brokerand that
the broker's commission shall be divided equally between Buyer's Real Estate Broker and Seller's
Real Estate Broker; (vii) one half of the escrow charges; and (viii) costs, if any, allocable to Seller
under this Agreement and costs for such services as Seller may additionally request that Escrow
(b) . If the transaction contemplated by this Agreement is
consummated, then Buyer shall bear the following costs and expenses: (i)
(ii) (iii) the premium for title insurance other than or in excess of a
the cost for any survey
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
(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. The
Estate Broker and that the broker's commission shall be divided equally between Buyer's Real Estate
Broker and Seller's Real Estate Broker.
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 taxes shall
be satisfied at the expense of Seller. Not less than five (5) business days prior to the Closing, Seller
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
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
th
delivered by Title Company to Seller, and (iv) on or before the 20 day of the month following the
11
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 Form593 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 issu
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 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
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
ker shall deliver a written statement to
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 Company. Escrow Holder shall cause the Title Company to issue the
12
(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 Section6045(e), as amended.
(h) Possession. Possession of the Real Property shall be delivered to Buyer at the
Closing.
13. Representations and Warranties.
(a) . 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
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 warranties of
Seller is based upon the information and belief of the City Manager:
(i) Seller believes that it has the legal power, right and authority to enter
into this Agreement and the instruments referenced herein, and to consummate the transaction
contemplated.
(ii) 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) 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)
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.
13
(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.
(viii) 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) There are n
presently claimed, or which will be claimed, against the Real Property for work performed or
(x) 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 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) . 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
learned, discovered or become aware of such Representation Matter shall promptly give written notice
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 terminat
qualified by such Seller Representation Matter and Seller shall have no obligation to Buyer for such
Seller Representation Matter.
(c) . 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
Closing:
14
(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
(d) s. 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, th
automatic
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,
14. Fair Value Price. Each of Buyer and Seller believe that the Purchase Price represents
a fair value price for the Real Property. At such time 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 compliance with all the zoning, planning and design review requirements of the San Bernardino
Municipal Code, and all nondiscrimination, labor 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,
reg, if applicable, and, if
e 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
15
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,
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) 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.
(b) Notices. All notices, demands, requests or other communications required or
l 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.
counsels is for information only, is not required for valid Notice and does not alone constitute Notice
hereunder.
(c) Brokers. Seller assumes sole responsibility for any consultants or brokers
shall have no responsibility in connection with such matters). Seller represents that it has engaged
and that Seller shall be solely responsible for
Seller
represents to Buyer that Seller has not engaged any consultants, finders or real estate brokers other
than Se
any person or entity in connection with this Agreement other than
Commission. 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
have retained in
connection with the purchase of the Real Property. Buyer represents that it has engaged Charles
Obichang Real Estate
Agreement, Buyer shall be solely responsible for any other cost, fee or compensation of any kind due
16
, if any. Buyer represents to Seller that Buyer has not engaged any
consult
other compensation of any kind due or owing to any person or entity in connection with this
Agreement. 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. The Parties acknowledge and agree that Buyer has
been represented in this transaction by Charles Obichang At Close
The broker's commission
shall be divided equally between Buyer's Real Estate Broker and Seller's Real Estate Broker.
(d) 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
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
p
this Agreement.
(e) 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.
(f) Remedies. Without limitation as to the availability of other remedies, this
Agreement may be enforced by an action for specific enforcement.
(g) 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.
(h) Counterparts; Facsimile Signatures. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of which, together, shall
17
constitute but one and the same instrument. A facsimile signature shall be deemed an original
signature.
(i)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.
(j) Obligations to Third Parties. 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.
(k) 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.
(l) 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.
(m) Applicable Law. This Agreement shall be governed by and construed in
accordance with the local law of the State of California.
(n) Exhibits and Schedules. The exhibits and schedules attached hereto are
incorporated herein by this reference for all purposes.
(o) Entire Agreement. This Agreement supersedes any prior agreements,
negotiations and communications, oral or written, including, without limitation, that certain Standard
Offer, Agreement and Escrow Instructions for Purchase of Real Estate dated March 3, 2020, 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.
(p) 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.
(q) Assignment. Neither party may assign its rights under this Agreement without
the prior consent of the other party.
\[signatures begin on the following page\]
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first written above.
CITY OF SAN BERNARDINO, a public entity,
corporate and politic
By:
Teri Ledoux
City Manager
Approved as to form:
Gary D. Saenz, City Attorney
By:
EDWARD C. ADAMS AND JEANNE M.
ADAMS
By:
Name: Edward C. Adams
By:
Name: Jeanne M. Adams
19
Acceptance by Escrow Holder:
Commonwealth Land and 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 public entity, corporate and politicand Edward C.
Adams and Jeanne M. Adams and to be
bound by and strictly perform the terms thereof as such terms apply to Escrow Holder.
Dated: _____________, 2020
COMMONWEALTH LAND AND TITLE
COMPANY
By:
Name:
Its:
EXHIBIT A
LEGAL DESCRIPTION
Address: 552 and 578 N. Mt. Vernon and 1316 W.
Spruce Street, San Bernardino, CA
APN: 0138-114-09 to -11 and 0138-114-11
A-1
EXHIBIT B
DEED
NOT FOR SIGNATURE
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
APNs: 0138-114-09 to -11
0138-114-11
\[Space above for recorder.\]
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 City of San
Bernardino, a public entity, corporate and politic Edward C. Adams and
Jeanne M. Adams, husband and wife, as joint tenants , that certain real property located in
the City of San Bernardino, County of San Bernardino, State of California, more particularly described
on Attachment No. 1
subject to existing easements, restrictions and covenants of record.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of __________, 2020.
CITY OF SAN BERNARDINO, a public entity,
corporate and politic
By: NOT FOR SIGNATURE
Teri Ledoux
City Manager
B-2
ATTACHMENT NO. 1 TO GRANT DEED
LEGAL DESCRIPTION
Address: 552 and 578 N. Mt. Vernon and 1316 W.
Spruce Street, San Bernardino, CA
APN: 0138-114-09 to -11 and 0138-114-11
ATTACHMENT NO. 1 TO GRANT DEED
TO EXHIBIT B
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 SAN BERNARDINO )
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:
Date Of Documents
Name Of Person(s) Or Entity(ies)
__________________________________________
__________________________________________
__________________________________________
Signer(s) Other Than Named Above
EXHIBIT C
FIRPTA CERTIFICATE
-FOREIGN STATUS
To inform Edward C. Adams and Jeanne M. Adams (the
under Section 1445 of the Internal Revenue Code of
upon the transfer of certain real property to the Transferee by the City of San Bernardino (the
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.
follows: _________________.
3. ome or office address is:
City of San Bernardino
3rd Floor
San Bernardino, CA 92401
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.
City of San Bernardino
C-1
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
SELLER: City of San Bernardino
BUYER: Edward C. Adams and Jeanne M. Adams
DATED: June 3, 2020
(552 and 578 N. Mt. Vernon Avenue and 1316 W. Spruce Street
APNs 0138-114-09 to -11 and 0138-114-18)
BASIC TERMS
Buyer: Edward C. Adams and Jeanne M. Adams
Address: 3242 Miramonte Dr.
San Bernardino CA 92405
Tel: (909) 374-2547
Email: carson7252@aol.com
City: The City of San Bernardino
Closing Contingency Date: August 3, 2020
Closing Date (or Closing) Estimated to occur by June 19, 2020, but not later than the Outside
Date
Deed: A grant deed in the form of Exhibit B hereto
Effective Date: June 3, 2020
Escrow Holder: Commonwealth Land Title
A Fidelity National Financial Company
888 S. Figueroa Street, Suite 2100
Los Angeles, CA 90017
Tel: (213) 330-3059
Attention: Crystal Leyvas, Vice President, National Accounts
National Commercial Services
Direct: (213) 330-3059; email: Cleyvas@cltic.com
(or another escrow holder mutually acceptable to Buyer and Seller)
Independent
Consideration Amount: Two Hundred Dollars ($200)
Outside Date: August 28, 2020; provided that such date may be extended by mutual
writing agreement by Seller and Buyer
Purchase Price: One Hundred Three Thousand Five Hundred Dollars ($103,500)
Real Property: That property described in Exhibit A hereto; the subject property is
sometimes referred to as APNs 0138-114-09 to -11 and 0138-114-18
Seller: City of San Bernardino
Address: 290 Third Floor
San Bernardino, California 92418
Attention: Teri Ledoux, City Manager
Tel. (909) 384-5122
Fax: (909) 384-5138
Email: Ledoux_Te@sbcity.org
Soil and Title Contingency
Date: July 4, 2020
Title Company: Commonwealth Land Title
A Fidelity National Financial Company
888 S. Figueroa Street, Suite 2100
Los Angeles, CA 90017
Tel: (213) 330-3059
Attention: Crystal Leyvas, Vice President, National Accounts
National Commercial Services
direct: (213) 330-3059; email: Cleyvas@cltic.com
(or another title company mutually acceptable to Buyer and Seller)
2
PURCHASE AND SALE AGREEMENT
AND
JOINT ESCROW INSTRUCTIONS
This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS of June 3, 2020 (
by and between Seller and Buyer.
RECITALS
A. Seller is the fee owner of the Real Property. The Real Property is approximately
0.56 acres of vacant land.
B. 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.
C. In addition to the Purchase Price, material considerations to Seller in agreeing to
enter into this Agreement, Buyer has agreed to pay to Seller the Independent Consideration Amount.
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
costs of sale including, but not limited to, the preparation of legal documents
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
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. Buyer and Seller agree to execute, deliver and be bound by any reasonable or
3
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 Opening of
Escrow, 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
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-
hereunder. If the Closing occurs, a credit shall be applied to the Purchase Price based upon payment
of the Independent Consideration Amount.
(c) Closing
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; 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. . Within ten (10)
days after the Effective Date, Seller shall deliver to Buyer the following items (collectively, the
(a)
Agreement and to consummate this transaction as may be reasonably requested by Buyer and the
Title Company consistent with the terms of this Agreement.
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
Soil and Title Contingency Date.
5. . 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 B
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.
4
(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
investigations as Buyer deems necessary or appropr
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
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
which specifically references this Section 5. If Buyer does not cancel this Agreement by the time
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. Buyer shall provide a copy to the Seller of all reports and test results
reports and test results without any representation or warranty as to their accuracy or completeness.
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,
contractors 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.
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
25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
ection 25316 of the California Health
and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance
under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95
(Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii)
ode, Division 4,
Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xi) defined as
Compensation, and Liability Act, 42 U.S.C. §9601 et seq.
5
(b) No Warranties as to the Real Property. The physical condition and
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
take all necessary precautions to prevent the release into the environment of any Hazardous
Materials which are located in, on or under the Real Property. Such precautions shall include
compliance 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
Materials.
6. .
(a) Conditions Precedent
the purchase of the Real Property under this Agreement are subject to the timely satisfaction or
written waiver of the following con
(i) Title Review. Within twenty (20) calendar days after the Opening of
Escrow, Seller shall cause the Title Company to deliver to Buyer a preliminary title report (the
provided that the cost of the Report shall
be borne by Seller. Seller acknowledges that the shall include an endorsement
necessary to induce the Title Company to provide such endorsement. On or before the Soil and
Title
the Report;
(ii) the Exceptions; (iii) the legal description of the Real Property and (iv) any survey Buyer desires
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) . On or before the Closing, the Title Company
standard ALTA insuring only as to matters of record title
Standard hase Price showing fee title to the Real
Property vested solely in Buyer and subject only to the (i) the standard, preprinted exceptions to
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
6
sole cost and expense, to obtain coverage beyond that offered by a Stand
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) Physical and Legal Inspections and Studies. On or before Soil and
Title
discretion, the results of any physical and legal (but not feasibility or economic) 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.
(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
at Section 8(a)(iii) of this Agreement; provided that Seller shall bear the cost to prepare such Natural
Hazard Report.
(v) Property and Formation Documents. On or before the Soil and Title
terms, conditions and status of all of the Property Documents.
(vi) Delivery of Documents
in Section 8, below.
(vii) Representations and Warranties. All representations and warranties
of Seller contained in this Agreement shall be materially true and correct as of the date made and as
of the Closing.
(viii) Title Company Confirmation. The Title Company shall have
Agreement.
(ix) 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 (i), (ii) and (iii) shall operate independently and
each shall entitle Seller to terminate this Agreement, as follows:
7
(i) If the Independent Consideration Amount is not paid by Buyer to
Seller by the time set forth therefor in Section 3(b)(i) of this Agreement, then this Agreement shall
terminate upon Seller giving notice thereof to Buyer;
(ii) If s are not met by the Closing
Contingency Date, and Seller so informs Buyer, Buyer may, by written notice to Seller, terminate
this Agreement.
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, 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 not terminated this
p.m. on the Monday preceding the
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)-(xi) inclusive, prior to
the Termination Notice Deadline
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)
tle Documents. Seller shall then
have the right, but not the obligation, to (i) remove from title any disapproved or conditionally
conditional approval of
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
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
n
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).
7. t and Termination Right
obligations with respect to the transaction contemplated by this Agreement are subject to the timely
8
(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) licy. 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 release
of such liens prior to or concurrent with closing.
(e) Delivery of Documents
Section 9(a), below.
respective times set forth for
the satisfaction for such contingency (and without regard to whether all such contingencies have
been 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
Seller as set forth in Section 6. 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. .
(a) . 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,
(i) Deed. The Deed.
(ii) FIRPTA/Tax Exemption Forms
Non-Foreign Status in the form attached hereto as Exhibit er
with any necessary tax withholding forms, and a duly executed California Form 593-C, as
(iii) Hazard Disclosure Report. Unless earlier delivered to Buyer, Seller
shall cause Escrow Holder to obtain and del
as provided for under Sections
before the Closing.
(iv) Possession of Real Property. Possession of the Real Property free of
any tenancies or occupancy.
9
(v) Authority.
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.
(vi) 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
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)
bus
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. . 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
(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
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 11(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
escrow in accordance with the terms of this Agreement.
(d) Authority
this Agreement and to consummate the transaction contemplated hereby as may be reasonably
requested by Seller or the Title Company.
(e) . Buyer shall deposit any moneys
sale of the Real Property.
10
(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.
10. Costs and Expenses.
(a) . 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) (iii) the premium for
le Policy with coverage in the amount of the Purchase Price; (iv)
documentary recording fees, if any; (v) documentary transfer tax, if any; (vi)
Ten Thousand Three Hundred Fifty Dollars ($10,350) which the parties
acknowledge and agree
Estate Broker and that the broker's commission shall be divided equally between Buyer's Real Estate
Broker and Seller's Real Estate Broker; (vii) one half of the escrow charges; and (viii) costs, if any,
allocable to Seller under this Agreement and costs for such services as Seller may additionally
request that
(b) . If the transaction contemplated by this Agreement is
consummated, then Buyer shall bear the following costs and expenses: (i)
(ii) (iii) the premium for title insurance other than or in excess of a
the cost for any
survey required in connection wi
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
(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. The
s Real Estate
Buyer's Real Estate Broker and Seller's Real Estate Broker.
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 taxes
shall be satisfied at the expense of Seller. Not less than five (5) business days prior to the Closing,
ration
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
11
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
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
th
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)
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 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
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
written statement to Escrow Holder which indicates that Buyer has arranged to pay Bu
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.
12
(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
(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) . 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
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
warranties of Seller is based upon the information and belief of the City Manager:
(i) Seller believes that it has the legal power, right and authority to enter
into this Agreement and the instruments referenced herein, and to consummate the transaction
contemplated.
(ii) 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) 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,
13
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)
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.
(viii) 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)
presently claimed, or which will be claimed, against the Real Property for work performed or
this Agreement.
(x) 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 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) sentations 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
learned, discovered or become aware of such Representation Matter shall promptly give written
hall 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,
no obligation to Buyer for such Seller Representation Matter.
14
(c) . 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
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
(d) 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
warranties shall be
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
14. Fair Value Price. Each of Buyer and Seller believe that the Purchase Price
represents a fair value price for the Real Property. At such time 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 compliance with all the zoning, planning and design review requirements of the
San Bernardino Municipal Code, and all nondiscrimination, labor standard, and wage rate
requirements to the extent such labor and wage requirements are applicable.
15
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,
, if applicable, and, if
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
Real Property. This Section 14 shall survive Closing.
15. General Provisions.
(a) 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.
(b) Notices. All notices, demands, requests or other communications required or
l 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.
counsels is for information only, is not required for valid Notice and does not alone constitute
Notice hereunder.
(c) Brokers. Seller assumes sole responsibility for any consultants or brokers
shall have no responsibility in connection with such matters). Seller represents that it has engaged
and that Seller shall be solely responsible
Broker. Seller represents to Buyer that Seller has not engaged any consultants, finders or real estate
brokers other than Se
or owing to any person or entity in connection with this Agreement other than
Commission. 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
16
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.
may have retained in connection with the purchase of the Real Property. Buyer represents that it has
engaged Charles Obichang other than the portion of the
Section 10(a) of this Agreement, Buyer shall be solely responsible for any other cost, fee or
compensation of any kind due , if any. Buyer represents to Seller that
Buyer has not engaged any consult
Broker in connection with the sale of the Real Property to the Buyer, and there are no brokerage
tity in
connection with this Agreement. 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. The Parties
acknowledge and agree that Buyer has been represented in this transaction by Charles Obichang as
Estate Broker. The broker's commission shall be divided equally between Buyer's Real Estate
Broker and Seller's Real Estate Broker.
(d) 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 Sell
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 ot
law or equity, whether or not stated in this Agreement.
(e) 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.
(f) Remedies. Without limitation as to the availability of other remedies, this
Agreement may be enforced by an action for specific enforcement.
(g) 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
17
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.
(h) Counterparts; Facsimile 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 facsimile signature shall be deemed an original
signature.
(i) 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.
(j) Obligations to Third Parties. 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.
(k) 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.
(l) 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.
(m) Applicable Law. This Agreement shall be governed by and construed in
accordance with the local law of the State of California.
(n) Exhibits and Schedules. The exhibits and schedules attached hereto are
incorporated herein by this reference for all purposes.
(o) Entire Agreement. This Agreement supersedes any prior agreements,
negotiations and communications, oral or written, including, without limitation, that certain
Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate dated March 3,
2020, 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.
(p) 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.
(q) Assignment. Neither party may assign its rights under this Agreement
without the prior consent of the other party.
18
\[signatures begin on the following page\]
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first written above.
CITY OF SAN BERNARDINO, a public entity,
corporate and politic
By:
Teri Ledoux
City Manager
Approved as to form:
Gary D. Saenz, City Attorney
By:
EDWARD C. ADAMS AND JEANNE M.
ADAMS
By:
Name: Edward C. Adams
By:
Name: Jeanne M. Adams
20
Acceptance by Escrow Holder:
Commonwealth Land and 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 public entity, corporate and politic and Edward C.
Adams and Jeanne M. Adams and to be
bound by and strictly perform the terms thereof as such terms apply to Escrow Holder.
Dated: _____________, 2020
COMMONWEALTH LAND AND TITLE
COMPANY
By:
Name:
Its:
EXHIBIT A
LEGAL DESCRIPTION
Address: 552 and 578 N. Mt. Vernon and 1316 W.
Spruce Street, San Bernardino, CA
APN: 0138-114-09 to -11 and 0138-114-11
A-1
EXHIBIT B
DEED
NOT FOR SIGNATURE
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
APNs: 0138-114-09 to -11
0138-114-11
\[Space above for recorder.\]
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 City of San
Bernardino, a public entity, corporate and politic Edward C. Adams and
Jeanne M. Adams, husband and wife, as joint tenants , that certain real property located
in the City of San Bernardino, County of San Bernardino, State of California, more particularly
described on Attachment No. 1 attached hereto and incorporated herein by this reference (the
.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of __________, 2020.
CITY OF SAN BERNARDINO, a public entity,
corporate and politic
By: NOT FOR SIGNATURE
Teri Ledoux
City Manager
B-2
ATTACHMENT NO. 1 TO GRANT DEED
LEGAL DESCRIPTION
Address: 552 and 578 N. Mt. Vernon and 1316 W.
Spruce Street, San Bernardino, CA
APN: 0138-114-09 to -11 and 0138-114-11
ATTACHMENT NO. 1 TO GRANT DEED
TO EXHIBIT B
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 SAN BERNARDINO )
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:
Date Of Documents
Name Of Person(s) Or Entity(ies)
__________________________________________
__________________________________________
__________________________________________
Signer(s) Other Than Named Above
EXHIBIT C
FIRPTA CERTIFICATE
-FOREIGN STATUS
To inform Edward C. Adams and Jeanne M. Adams (the
tax under Section 1445 of the Internal Revenue Code of
required upon the transfer of certain real property to the Transferee by the City of San Bernardino
(th
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.
follows: _________________.
3.
City of San Bernardino
3rd Floor
San Bernardino, CA 92401
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.
City of San Bernardino
C-1
Attachment No. 3
NOTIFICATION OF COMPENSATION
552and 578 N. Mt. Vernon Avenue and 1316 W. Spruce Street, San Bernardino, California
(APNs: 0138-114-09 to -11 and 0138-114-18)
INTRODUCTION
The purpose of this Notification of Compensation (Notification) is to inform the effected axing
Entities (as defined in Health and Safety Code (HSC) Section 34171 (k) that receive pass-through
payments and distributions of property taxes with respect to the redevelopment project areas of the
former Redevelopment Agency of the City of San Bernardino) that the Property, as defined herein,
has been sold for a and that the net proceeds of sale
will be submitted to the San Bernardino County Auditor-Controller/Treasurer/Tax Collector for
distribution to the Taxing Entities
Pursuant to HSC Section 34180 (f) (1), If a city, county, or city and county wishes to retain any
properties or other assets for future redevelopment activities, funded from its own funds and under
its own auspices, it must reach a compensation agreement with the other taxing entities to provide
payments to them in proportion to their shares of the base property tax, as determined pursuant to
HSC Section 34188, for the value of the property retained. Pursuant to HSC Section 34188, for
all distributions of property tax revenues and other moneys pursuant to this part, the distribution
toeach taxing entity shall be in an amount proportionate to its share of property tax revenues in
the taxrate area in that fiscal y
The Successor Agency to the Redevelopment Agency (Successor
Agency) approved Long-Range Property Management Plan (LRPMP), includes 230 parcels of
land grouped into forty-six (46) separate sites, eighteen (18) of which are designated as
government use sites, seven (7) of which are designated as future development sites, and twenty-
one (21) of which are designated to be sold.
With respect to Site No. 24, as designated in the LRPMP for future development, the City of San
Bernardino (City) has determined not to retain Site No. 24 for future development and instead, sell
SiteNo. 24 for its market value and distribute the net proceeds of the sale to the San Bernardino
County Auditor-Controller/Treasurer/Tax Collector for subsequent distribution to the Taxing
Entities. Further, consistent with HSC Section 34182 (c) (4), each county auditor-controller shall
disburse proceeds of asset sales or reserve balances, which have been received from the successor
entities pursuant to HSC Sections 34177 and 34187, to the taxing entities (i.e., in accordance with
the provisions of the Revenue and Taxation Code). In making such a distribution, the county
auditor-controller shall utilize the same methodology for allocation and distribution of property
tax revenues provided in HSC Section 34188 (i.e., such distribution to each taxing entity shall be
inan amount proportionate to its share of property tax revenues in the tax rate area in that fiscal
year).
In addition, it is the Citys view that from a practical perspective, the need for an HSC Section
34180 (f) (1) compensation agreement is based on an assumption that the former redevelopment
need to sell Site No. 24 at less than a
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market value and/or with payment terms. Therefore, since the City intends to sell Site No. 24 to a
third-party at no less than market value on an all cash basis, a compensation agreement with the
Taxing Entities is unnecessary. Moreover, and notwithstanding the authority used to make
distributions to the Taxing Entities (i.e., either HSC Section 34180 (f) (1) or HSC Section 34182
(c) (4)), the payments made to the Taxing Entities comply with the HSC.
Therefore, the purpose of this Notification is to inform the Taxing Entities of the sale of LRPMP-
futured development designated as Site No. 24.
BACKGROUND
Pursuant to HSC Section 34172 (a) (1), the Redevelopment Agency of the City of San Bernardino
was dissolved on February 1, 2012 and the City Council elected to serve in the capacity of the
Successor Agency. The Oversight Board to the Successor Agency was
established pursuant to HSC Section 34179 to assist in the wind-down of the dissolved
redevelopment agency.
On December 31, 2015, the California Department of Finance
Oversight Board-approved LRPMP and notified the Successor Agency that pursuant to HSC
Section 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. The
approved LRPMP, which addresses the disposition and use of the real property assets held by the
Successor Agency, includes 230 parcels of land grouped into forty-six (46) separate sites, nineteen
(19) of which are designated as government use sites, seven (7) of which are designated as future
development sites, and twenty (20) of which are designated to be sold.
Site No. 24 (Property) is designated within the LRPMP as:
i) Designated for future development;
ii) Contains four (4) vacant parcels of land approximately 0.56-acre in size;
iii) Located at 552 and 578 N. Mt. Vernon Avenue and 1316 W. Spruce Street, San
Bernardino, California (APNs 0138-114-09 to -11 and 0138-114-18); and
iv) Zoned Commercial General in the 1992-Paseo Las Placitas Specific Plan.
Consistent with the LRPMP, on August 1, 2016, the Successor Agency adopted Resolution No.
2016-164 authorizing the transfer of the Property to the City, and on August 1, 2016, the City
adopted Resolution 2016-165 accepting the transfer of the Property. On March 16, 2017, the
Successor Agency transferred the Property to the City via quitclaim deed and the City is now
responsible for compliance with the applicable provisions of the HSC governing the Property.
PROPERTY DISPOSITION PROCESS
On October 18, 2017, the Successor Agency approved an agreement with Keller Williams (KW
Agreement) to list and sell the Property. As a part of the KW Agreement, Keller Williams is
required (the Property. Based on past practice,
DOF has acknowledged that BOVs are an acceptable method and basis for confirming that the value
of real property being sold is fair and reasonable.
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On March 3, 2020, Mr. Edward C. Adams offered to purchase the Property for $103,500 (Purchase
Price); Keller Williams confirmed that Mr. Adams is a credible buyer capable of purchasing the
Property. On March 13, 2020, Keller Williams submitted its BOV, indicating its opinion that the
market value of the Property is $103,500 (, a copy of which is on file in Office
of the City Clerk. In consideration that the Purchase Price equals the BOV Market Value, the City
has determined the purchase price offered by Mr. Adams for the Property to be fair and reasonable.
Further, since the Purchase Price of the Property equals the BOV Market Value, the City has
determined that a formal Compensation Agreement is not warranted and would unnecessarily delay
the distribution of the Purchase Price to the entitled Taxing Entities.
On June 3, 2020, the City adopted Resolution No. 2020-XXX approving the Purchase and Sale
Purchase and Sale
and Mr. and Mrs. Edward C. Adams with respect to the Property, a copy of which is on file in the
Office of the City Clerk. It is anticipated that escrow will close on the purchase and sale of the
Property on or before August 28, 2020, which is the outside closing date. Therefore, it is projected
that the distribution of the Purchase Price through the San Bernardino County Auditor-
Controller/Treasurer/Tax Collector to the Taxing Entities, in the manner described above, is likely
to occur during the third quarter of 2020.
CONTACT FOR ADDITIONAL INFORMATION
For any additional information regarding this Notification, including any additional background
documents, please contact Ms. Kathleen Robles, at (909) 534-4434 or Robles_Ka@sbcity.org.
To the extent that any additional information is needed or there are any questions, it will be
appreciated if such inquiries are initiated within thirty (30) days of receipt of this Notification.
LISTING OF TAXING ENTITIES
The Taxing Entities, as defined in HSC Section 34171 (k) that receive pass-through payments and
distributions of property taxes with respect to the redevelopment project areas of the former
Redevelopment Agency of the City of San Bernardino, as reported by the San Bernardino County
Auditor-Controller/Treasurer/Tax Collector, include:
1. County General Fund 13. Colton Joint Unified School Dist
2. Education Revenue Augmentation Fund 14. Redlands Unified School District
3. Flood Control Zone 2 & 3 15. Rialto Unified School District
4. Flood Control Admin 1 & 2 16. San Bernardino City Unified Sch Dis
5. Flood Control Admin 3-6 17. San Bernardino County Fire Protect
6. Superintendent of Schools District - Valley Service Area
7. Superintendent of Schools - R O P 18. San Bernardino County Fire Protect
8. Superintendent of Schools - Phys Hand District - Admin
9. Superintendent of Schools - Ment Hand 19. Riverside Corona RCD
10. Superintendent of Schools - Dev Center 20. Inland Empire JT Resource Cons Dist
11. City of San Bernardino 21. San Bernardino Valley Water Cons Dist
12. San Bernardino Community College 22. San Bernardino Valley Muni Water
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