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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
This Agreement is made between THE CITY OF BARSTOW, a Municipal Corporation (“Seller”) and MARSELLA FAMILY TRUST, (“Buyer”) this ___ day of ____________, 2022 (the “Effective Date”).
RECITALS
A. Seller is the owner of certain real property known as 1701 E. Main Street, APN# 0181-452-58 in the City of Barstow, in San Bernardino County, California as depicted on the Site Map, Exhibit A attached hereto, and as legally described in the Legal Description, Exhibit B attached hereto (the “Property”); and B. The Property consists of one parcel: the “Fee Parcel”, which is approximately 4,410 sq. ft. in size.
C. Seller has agreed to sell the Property to the Buyer on the terms and conditions set forth herein.
D. The Property is a portion of a larger parcel adjacent to a parcel owned by the Marsella Family Trust. The Property is zoned GC (General Commercial). The Property is not suited for general public purposes as it is unusable due to the size and surrounding property not being owned by the City. The property is approximately 20 feet wide on the West side and reduces to approximately 5 feet wide on the East side, making this property unusable by itself.
E. On November 7, 2022, the Barstow City Council approved the proposed sale of the Property to Buyer and authorized the City Manager to execute the necessary agreement to complete the sale.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Purchase of Property.
Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, on the terms and conditions set forth herein, the Property.
Seller shall convey the Property to Buyer “AS IS,” “WHERE IS” condition with all faults and Seller makes no representations or warranties, either express or implied, as to the condition of the Property or any improvements thereon, as to the suitability or fitness of the Property or any improvement thereon, as to nay law or any other matter affecting the use, value occupancy, or enjoyment of the Property, or, except as set out in this 2 292075.v3
Agreement, as to any other matter whatsoever. Seller shall have no responsibility to prepare the Property in any way for development at any time. Buyer acknowledges that neither Seller nor any employee, representative, or agent of Seller has made any representation or warranty, express or implied with respect to the Property to any improvement thereon. The provisions hereof shall survive closing or the early termination of this Agreement.
2. Purchase Price.
2.1 Amount of the Purchase Price. Buyer shall pay to Seller as the purchase price (the “Purchase Price”) for the Property the sum of Five Thousand Dollars ($5,000.00) by close of escrow.
2.2 Payment of the Purchase Price. The full amount of the Purchase Price shall be paid by Buyer to escrow holder, which will be _________, prior to the Close of Escrow, as defined below, for disbursement in accordance with this Agreement.
3. Conditions Precedent.
As conditions precedent and concurrent, as applicable, for the benefit of Buyer and Seller, the conditions set forth in this Section 3 must first be satisfied and fulfilled on or prior to the termination of this Agreement unless such times are extended in writing by the parties. Subject to the terms and conditions of this Agreement, Seller and Buyer agree to use their best efforts to satisfy the conditions set forth in this Section 3, and shall submit evidence satisfactory to the other, as appropriate, that the conditions have been satisfied, if such be the case.
3.1 Title Insurance. Buyer shall obtain and pay for an Owner’s Title Insurance Policy issued by __________.
3.2 Inspections. Buyer shall have determined, in its sole judgment, whether the Property is suitable for Buyer’s intended use of the Property.
3.3 Escrow/Title Insurance. Seller and Buyer agree to use ________as the escrow holder and as the issuer of an owner’s policy of title insurance.
3.4 Preliminary Title Report. Prior to the date hereof, Seller has delivered to Buyer a Preliminary Title Report issued by ________ (“Title Company”), for the Property (the “PTR”). The Title Company shall be selected by Seller and reasonably acceptable to Buyer (“Title Company”). Those exceptions to title for the Property reasonably acceptable to Buyer are referred to as the "Permitted Exceptions." 3 292075.v3
3.5 Condition of Title. A Title Company shall issue, at the Close of Escrow, an owner’s policy of title insurance showing Buyer as fee owner of the Fee Parcel, subject only to the Permitted Exceptions.
3.6 Free of Rights of Possession. The Property shall be vacant and free of all leases, tenancies, other rights of possession (except those easements described on the applicable Parcel Map) and third party claims at the Close of Escrow.
3.7 Seller’s Obligations. Seller shall have timely performed all of the obligations required by the terms of this Agreement to be performed by Seller.
3.8 Buyer’s Obligations. Buyer shall have timely performed all of the obligations required by the terms of this Agreement to be performed by Buyer.
3.9 Representations and Warranties. Buyer’s and Seller’s representations and warranties herein shall be correct as of the Close of Escrow.
4. Satisfaction of Conditions; Waiver
4.1 A party may give the other party written notice (“Approval Notice”) of its approval of any matter referred to in Sections 3.1 through 3.9, prior to termination of this Agreement, or of a breach (“Notice of Breach”) of any covenant by the other party set forth in Sections 9 or 10, or of any representation or warranty by a party set forth in Sections 11 or 12 discovered by a party during the term of this Agreement.
4.2 If a party does not give an Approval Notice prior to termination, those matters set forth above at Sections 3.1 through 3.9 shall be deemed approved to the satisfaction of that party. If a party gives a Notice of Breach within such period, the other party shall have a reasonable amount of time to cure the alleged breach. If within thirty (30) days after receipt by the non-defaulting party of the Notice of Breach the other party has not cured, or is not diligently pursuing the cure of, the alleged breach, the nondefaulting party shall have the right to either (a) terminate this Agreement without liability on that party’s part, or (b) waive the disapproved matter and consummate the sale of the Property. If either Seller or Buyer elects to terminate this Agreement pursuant to this section, the parties hereto shall have no further liability to each other except as otherwise provided herein. In the event of a party’s termination as set forth above, and after written instructions from either party, ________shall distribute funds and release documents to the parties entitled thereto.
4.3 A party may waive in writing any or all of the conditions established for its benefit during the term of this Agreement.
5. Title Commitment and Survey
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5.1 Title Commitment. No later than thirty (30) days prior to the close of escrow, Seller will deliver or cause to be delivered to Buyer the following:
5.1.1 A commitment for title insurance (“Title Commitment”) issued by Title Company.
5.1.2 Copies of all recorded documents referred to in the Title Commitment.
5.2 Surveys. Buyer, at its sole cost and expense, may obtain such surveys (“Survey(s)”) of the property, structures and improvements, if any, comprising the Property as Buyer may desire. If obtained, Buyer shall furnish a copy of any such Survey to Seller upon receipt of same by Buyer.
5.3 Permitted Encumbrances. Buyer may evaluate the status of title as reflected in the Title Commitment and Surveys pursuant to Sections 5.1 and 5.2. Seller shall have no obligation to cure any title matters or issues disclosed in the Title Commitment and/or Surveys (but may do so, if Seller so chooses). The term “Permitted Encumbrances” as used herein shall mean (i) the Assumed Taxes (as hereinafter defined), (ii) any easements, restrictions, claims, rights of way, encroachments or other encumbrances or other matters whatsoever affecting the Property as shown in the Title Commitment and/or Survey and expressly accepted by Buyer (the “Title/Survey Exceptions”). (iii) any and all other restrictions, reservations, covenants; conditions, rights-of-way, easements, and encumbrances, whether of record or not, if any, which do not affect the construction, maintenance, operation and repair of the Project, (iv) all municipal or other governmental zoning laws, regulations and ordinances, if any, affecting the Property, and (v) any other matters affecting the Property which would be disclosed by a physical inspection of the Property or an accurate survey of the Property.
6. Review Period.
6.1 Delivery of Review Items. Seller has either previously made available or will, within ten (10) business days of the Effective Date, make available to Buyer, at Seller’s place of business in San Bernardino County or by delivery to Buyer subject to any confidentiality provisions contained therein, all documents that may be reasonably requested by Buyer relating to the ownership and operation of the Property and that are applicable to the sale of the Property to Buyer (“Review Items”) which are in Seller’s actual possession and which are obtainable by Seller without additional expense and which are not deemed confidential or proprietary by Seller including, without limitation, any lease agreements and related occupancy agreements with third parties concerning the Property or management or maintenance agreements that would survive the Closing and any Surveys of the Property in Seller's possession; provided, however, all such items shall be maintained in strict confidence by Buyer and its agents and such parties shall not disclose the contents of such Review Items except to Seller's employees, agents, lenders, partners, accountants, legal representation and consultants solely for the purpose of 5 292075.v3
conducting due diligence on the Property. So long as Seller acts in good faith and takes reasonable efforts to identify and deliver the Review Items, Buyer shall have no claims against Seller for failure to deliver any Review Items.
6.2 Review Period. In the event that the Buyer is not satisfied in Buyer’s sole discretion with (i) the physical condition and nature of the Property, including all environmental conditions thereof, (ii) all information concerning the Property made available to Buyer by Seller, (iii) the status of title to the Property, (iv) the Review Items and (v) all other aspects of the Property (collectively, the “Conditions”), Buyer shall have the option at any time before the expiration of forty-five (45) days after the Effective Date (the “Review Period”) to choose one of the following as its sole and exclusive remedy by sending written notice to Seller prior to expiration of the Review Period that: (i) the Property is not acceptable to Buyer and that Buyer has disapproved the Property, and neither party hereto shall have any further rights or obligations hereunder, or (ii) Buyer waives any of the Conditions and consummate this transaction, but with no change in any of Buyer's obligations hereunder and with no reduction in the Purchase Price. If Buyer does not send any such written notice, then Buyer shall be deemed to have elected subsection (ii) and waives any of the Conditions and shall consummate this transaction with no change in any of Buyer's obligations hereunder and with no reduction in the Purchase Price.
Buyer may conduct a Phase I environmental assessment of the Property, of which they will be responsible for all costs and expenses.
6.3 Delivery to Seller of Documents. If Buyer exercises any right to terminate this Agreement pursuant to Section 6.2 above or Section 13.2 below or if Buyer is in default under Section 13.2.2, then in any of such events Buyer shall (i) promptly after such termination or event of default return to Seller the originals and all copies of all Review Items delivered or made available to Buyer; and (ii) maintain in absolute confidence the results of any and all other information contained in such Review Items or in such tests or studies conducted by Buyer or its consultants with respect to the Property.
7. Buyer's Inspection of Property.
7.1 At any time during the term of this Agreement, and upon reasonable notice to Seller, Buyer, its agents, contractors or engineers, shall have the right to enter the Property, at Buyer's sole cost and expense, for the purpose of inspecting, surveying, conducting engineering studies and soil tests, and for other similar investigation, provided such operations do not permanently damage the Property. Buyer will complete by the Close of Escrow such independent investigations as it deems necessary or appropriate concerning the use, development or suitability for development of the Property. Buyer agrees to indemnify Seller and its agents, officers, directors and employees and hold them harmless from all costs, expenses, liability or loss incurred or arising from any such investigation or environmental testing conducted by Buyer. Notwithstanding the 6 292075.v3
foregoing, Buyer shall have no liability or obligation to Seller with respect to any conditions concerning the Property discovered or uncovered by Buyer during the course of Buyer's investigation of the Property. Such investigation shall not be construed as an acceptance of Seller’s title or as a waiver of any of Seller’s warranties or obligations herein.
7.2 Buyer may, prior to Close of Escrow, by written notice to Seller and ________, propose to cancel this Agreement based upon Buyer's dissatisfaction with the Property. Upon receipt of such notice, Seller shall have forty-five (45) days during which to take such actions as may be necessary to place the Property and the soil conditions of the Property in a condition suitable for use of the Buyer. If the Seller fails to take such action within such forty-five (45) day period, the Buyer may terminate this Agreement by delivering written notice of termination to Seller and ________, and this Agreement shall terminate upon Seller’s receipt of such notice. In the event of Buyer's timely termination pursuant to this section, the parties hereto shall have no further liability to each other except as otherwise provided herein. In the event of Buyer's termination as set forth above, ________shall distribute any funds and release any documents to the parties entitled thereto.
8. Intentionally Deleted.
9. Seller's Covenants to Buyer.
Seller covenants to Buyer as follows:
9.1 Between the date hereof and the Close of Escrow, Seller shall not enter into any contract affecting the Property which is not terminable on thirty (30) days' notice.
9.2 Prior to the Close of Escrow, Seller shall execute and deliver to Buyer an Affidavit of Disclosure of Non-Foreign Status, in compliance with Internal Revenue Code Section 1445 and the regulations thereunder.
9.3 Seller shall promptly notify Buyer if Seller becomes aware that any representation or warranty contained herein is or becomes incorrect or inaccurate subsequent to the date hereof.
10. Buyer's Covenants to Seller.
Buyer covenants to Seller that Buyer shall promptly notify Seller if Buyer becomes aware that any representation or warranty contained herein is or becomes incorrect or inaccurate subsequent to the date hereof.
11. Seller's Representations and Warranties.
Seller represents and warrants to Buyer as follows:
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11.1 Seller has the full power and authority to sell the Property. This Agreement has been duly and validly authorized, executed and delivered by Seller and no other authorization or third party consent is requisite to the valid and binding execution, delivery and performance of this Agreement by Seller, and this Agreement does not violate any provisions of any charter, articles or by-laws of Seller.
11.2 Intentionally deleted.
11.3 Seller is not a non-resident alien, a foreign corporation, a foreign partnership, a foreign trust or a foreign estate as such terms are defined in the Internal Revenue Code of 1986, or any rules or regulations for purposes of United States income taxation.
11.4 Seller is the legal fee simple titleholder of the Property, and has good, marketable and insurable title to the Property, subject only to the Permitted Exceptions, free and clear of all monetary liens and encumbrances, leases, tenancies, rights of possession, or third party claims.
11.5 There are not presently pending any special assessments or condemnation actions against the Property or any part thereof, nor has Seller received any notice of any special assessments or condemnation actions being contemplated.
11.6 As of the Close of Escrow, there will be no outstanding contracts affecting the Property.
11.7 Seller has not granted to any person or entity, nor to the best of Seller's knowledge does any person or entity other than Seller have any right, title or interest in or to the Property or any portion thereof, except as provided in the Permitted Exceptions.
11.8 Except as expressly herein otherwise provided, the representations and warranties of Seller set forth in this Agreement shall be true on and as of the Close of Escrow as if those representations and warranties were made on and as of such time.
12. Buyer's Representations and Warranties. In consideration of Seller entering into this Agreement and as an inducement to Seller to sell the Property to Buyer, Buyer makes the following representations and warranties, each of which is material and is being relied upon by Seller (the continued truth and accuracy of which shall constitute a condition precedent to Seller's obligations hereunder):
12.1 Buyer has the full power and authority to buy the Property. This Agreement has been duly and validly authorized, executed and delivered by Buyer and no other authorization or third party consent is requisite to the valid and binding execution, delivery and performance of this Agreement by Buyer.
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12.2 Intentionally Deleted.
12.3 All representations and warranties of Buyer set forth in this Agreement shall be true on and as of the Close of Escrow as if those representations and warranties were made on and as of such time.
13. Escrow.
13.1 Opening of Escrow. Within (14) days after the Effective Date, Buyer shall open an escrow at ________ for the purpose of carrying out the terms of this Agreement.
This Agreement shall constitute the joint escrow instructions of Buyer and Seller with respect to the purchase of the Property and a certified copy of this Agreement shall be delivered to the ________upon the opening of Escrow. In addition, upon written request from ________, each party shall sign and deposit escrow instructions in the standard form utilized by ________, within ten (10) days after the opening of escrow. The instructions shall not modify or amend the provisions of this Agreement. If any conflict exists between the instructions and this Agreement, the provisions of this Agreement shall prevail.
13.2 Escrow Cancellation. If Escrow is not in a condition to close by the agreed date for the Close of Escrow as set forth in Section 13.4 hereof, ________shall continue to comply with the instructions contained herein until a written demand has been made by a party entitled to do so for the cancellation of Escrow, as described below. ________ shall notify the other party of any such demand.
13.2.1 If the Close of Escrow fails to occur due to Seller’s default, Seller shall pay all Escrow cancellation charges.
13.2.2 If the Close of Escrow fails to occur due to Buyer’s default, Buyer shall pay all Escrow cancellation charges.
13.2.3 If the Close of Escrow fails to occur for any reason other than the foregoing, Buyer shall pay Escrow cancellation charges, and each party shall release the other party from all liability hereunder for the failure of the Close of Escrow to occur. “Escrow cancellation charges” means all fees, charges and expense incurred and charged by ________as well as all expenses related to the issuance of the title policy and other title matters.
13.3 Deposit of Documents.
13.3.1 Within 14 days after the opening of escrow Seller shall deposit with ________the following documents:
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a. A duly executed and acknowledged grant deed (“Grant
Deed”) substantially in form as attached hereto as Exhibit C conveying good and marketable fee simple title to the Fee Parcel. Buyer shall complete, execute and deliver to ________any required statement of intention to transfer the property or preliminary change of ownership statement.
b. Disclosure of Non-Foreign Status, in compliance with Internal Revenue Code Section 1445 and the regulations thereunder.
13.3.2 Buyer shall deposit into escrow the following:
a. within 45 days a written statement that all of the conditions precedent to the Close of Escrow set forth at Section 3 of this Agreement have been satisfied or waived;
b. 3% deposit.
13.4 Close of Escrow. For purposes of this Agreement, the “Close of Escrow” shall be defined as the successful conveyance of the Property from Seller to Buyer; the date of the Close of Escrow shall be the date that the Grant Deed conveying the Property to Buyer is recorded in the Official Records of San Bernardino County, California (“Official Records”). Escrow shall close on or before the later of (A) the date which is ninety (90) days following the opening of Escrow, or (B) the date which is ninety (90) days after the Effective Date, unless extended by mutual agreement of the parties in writing.
13.4.1 The escrow shall be in a condition to close and shall close when the ________holds all the items referred to in Sections 13.1 and 13.2 above, and when the ________ is in a position to obtain, and the Title Company has committed to deliver, a C.L.T.A. owner's policy of title insurance issued by the Title Company in favor of Buyer in the full amount of the Purchase Price, insuring Buyer's title to the Property subject only to the Permitted Exceptions (the “Title Insurance Policy”), and when Buyer has deposited the remaining portion of the Purchase Price with ________. The cost of the Title Insurance Policy will be paid by Buyer; any additional endorsements or coverage shall be paid by Buyer. At such time that the ________is in a position to obtain, and the Title Company has committed to deliver, the Title Insurance Policy, the ________shall:
a. Record the Grant Deed in the official records of San Bernardino County;
b. Charge Buyer for any and all fees, charges and costs payable under this Agreement. Before such payments are made, the ________shall notify Seller and Buyer of the fees, charges and costs necessary to clear and convey the Property;
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c. Disburse the remaining amount of the Purchase Price to Seller; other funds remaining shall be disbursed to the party entitled thereto. d. Deliver conformed copies of the Grant Deed, the Title Insurance Policy, and other documents to the parties entitled thereto. The Title Insurance Policy shall be delivered to Buyer effective as of the Close of Escrow.
13.4.2 If escrow has not closed prior to the date set forth at Section 13.4, either party may terminate this Agreement by delivering written notice of termination to the other party and ________, termination to be effective upon the other party’s receipt of such termination notice. Thereafter, Seller shall return the Deposit to Buyer and the parties hereto shall have no further liability to each other except as otherwise provided herein.
13.5 Monetary Encumbrances. Seller agrees to convey title to the Property to Buyer at Close of Escrow free and clear of all monetary liens and encumbrances.
13.6 Prorations. Real Property taxes and insurance shall be prorated as of Close of Escrow. Buyer shall pay all transfer taxes and the premium on a C.L.T.A. title insurance policy. The cost of endorsements and/or additional coverage as required by Buyer or its lenders shall be paid by Buyer. The cost of deed preparation, if any, and recording fees shall be paid by Buyer. The escrow fee and other expenses of escrow shall be paid by Buyer.
13.7 Possession. Right to possession of the Property shall transfer to Buyer at the Close of Escrow.
13.8 Risk of Loss. Risk of loss to the Property shall be borne by Seller prior to the Close of Escrow and by Buyer thereafter. In the event the Property is damaged in a material degree by flood, fire, earthquake or other casualty prior to the Close of Escrow, Buyer may, at its option, elect not to acquire the Property, in which case this Agreement shall be terminated and ________shall return any deposits made into escrow; or Buyer may elect to proceed to close the purchase of the Property, in which case Seller shall assign to Buyer all insurance proceeds, if any, relating to such damage.
14. Remedies on Default.
If either party defaults under this Agreement, the non-defaulting party may pursue any remedy available to it in law or in equity, including, but not limited to, (i) money damages, (ii) specific performance of the Agreement, in which action the non-defaulting party shall have the right to recover its damages suffered by reason of delay in the acquisition of the Property, costs of suit and reasonable attorneys' fees; or (iii) rescission of this Agreement. No delay or omission in the exercise of any right or remedy accruing 11 292075.v3
to the non-defaulting party under this Agreement shall impair such right or remedy or be construed as a waiver of any breach by the defaulting party. The waiver by either party of any condition or covenant contained herein shall not be deemed a waiver of any other condition or of any subsequent breach by the other party of any term, covenant or condition contained herein. All rights, powers, elections and remedies afforded to a party either hereunder or by law shall be cumulative and not alternative, and the exercise of any right, power, election or remedy shall not bar the exercise of any other.
15. Termination of Agreement.
Except as provided below at Section 17.7, Survival, this Agreement shall terminate on the earlier of (i) the Close of Escrow, (ii) (ii) the election by Buyer to terminate this Agreement pursuant to Sections 4.2 (breach of Agreement), 7.2 (condition of the Property), 13.4 (failure to timely close escrow) or 13.8 (casualty), or (iii) the election by Seller to terminate pursuant to Sections 4.2 (breach of Agreement) or 13.4 (failure of escrow to timely close).
16. Property Disclosures. Seller shall, within fifteen (15) after the date hereof, provide to Buyer (or cause Escrow Agent to provide to Buyer) all natural hazard disclosure reports (the “Reports”) required by the Disclosure Statutes (as defined below). Buyer shall then, within Forty-five (45) days after receipt of such information, investigate the disclosures and information and provide written notice to Seller of any items below which Buyer disapproves.
Seller and Buyer acknowledge that the Disclosure Statutes provide that a seller of real property must make certain disclosures regarding certain natural hazards potentially affecting the property, as more particularly provided in the Disclosure Statutes. As used in this Agreement, “Disclosure Statutes” means, collectively, California Government Code Sections 8589.3 (special flood hazard area), 8589.4 (area of potential flooding) and 51183.5 (very high fire hazard), California Public Resources Code Sections 2621.9 (earthquake fault zone), 2694 (seismic hazard zone) and 4136 (state responsibility area) and any other California statutes that require Seller to make disclosures concerning the Site. Upon acceptance of conveyance of the Site, Buyer agrees as follows with respect to the Disclosure Statutes and the Reports:
16.1 Buyer will be provided all Reports and will thereafter advise if they satisfy all obligations and requirements of Seller under the Disclosure Statutes.
16.2 Buyer will be provided an opportunity to review all Reports and to investigate the disclosures and information
16.3 Seller shall not be liable for any error or inaccuracy in, or omission from, the information in the Reports.
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16.4 The Reports are provided by Seller for purposes of complying with the Disclosure Statutes and shall not be deemed to constitute a representation or warranty by Seller as to the presence or absence in, at or around of the Property of the conditions that are the subject of the Disclosure Statutes.
17. General Provisions.
17.1 Brokers. Seller represents and warrants to Buyer, and Buyer represents and warrants to Seller, that no broker or finder has been engaged by it, respectively, in connection with any of the transactions contemplated by this Agreement, or to its knowledge is in any way connected with any such transactions.
17.2 Assignment. Buyer may not assign this Agreement or the rights under it to a third party without the prior written consent of Seller. Upon any assignment approved in writing by Seller, the assignee shall have all the rights and obligations of Buyer hereunder and Buyer shall not be relieved of or released from any of its obligations hereunder.
17.3 Time of Essence. Time is of the essence in all phases of this Agreement and the closing referred to herein.
17.4 Further Instruments. Each of the parties hereto agrees to cooperate in good faith with the other, and to execute and deliver all further instruments, documents and papers, and shall perform any and all acts necessary, to give full force and effect to all of the terms and provisions of this Agreement.
17.5 Severability. If any provision of this Agreement, as applied to any party or to any circumstance, shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of this Agreement, the application of any such provision in any other circumstance, or the validity or enforceability of this Agreement.
17.6 Counterparts. This Agreement or any amendment hereof may be executed in counterparts and all such executed counterparts shall constitute a single agreement, notwithstanding that all the parties hereto are not signatories to the same counterpart.
17.7 Survival. All of the representations and warranties of the parties contained in this Agreement, all covenants, agreements and indemnities made herein by the parties, and all obligations to be performed under the provisions hereof will remain operative, will be deemed made at the Close of Escrow, and will survive the Close of Escrow.
17.8 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors, legal representatives and assigns.
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17.9 Applicable Law. This Agreement shall be governed by and construed in accordance with California law.
17.10 Attorneys' Fees. In the event of the bringing of any action or suit by a party hereto against another party hereunder by reason of any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out of court settlement, shall be entitled to have and recover of and from the other party all reasonable costs and reasonable expenses of suit, including actual reasonable attorneys' fees. Any judgment or order entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including actual attorneys' fees (collectively “Costs”) incurred in enforcing, perfecting and executing such judgment. For the purposes of this paragraph, Costs shall include, without limitation, attorneys' fees, costs and expenses incurred in (i) post-judgment motions, (ii) contempt proceeding, (iii) garnishment, levy, and debtor and third party examination, (iv) discovery, and (v) bankruptcy litigation.
17.11 Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by registered or certified mail, postage prepaid, return receipt requested, delivered by overnight courier such as FedEx, Express Mail, DHL, etc. for next business day delivery, or sent by telecopy, and shall be deemed given upon the earlier of (i) if personally delivered, the business day of delivery to the address of the person to receive such notice, (ii) if mailed, on the date of receipt or refusal to accept delivery as indicated on the return receipt, (iii) if given by telecopy, when received as evidenced by the confirmation report, provided it is received before 4:00 p.m. Pacific Time (if received later, the notice will be deemed received on the next business day), or (iv) if delivered by overnight courier, the next business day. Any notice, request, demand, direction or other communication sent by telecopy must be confirmed within forty-eight (48) hours by letter mailed or delivered in accordance with the foregoing.
To Buyer:
Marsella Family Trust
To Seller:
City of Barstow
Office of the City Clerk
20 E Mountain View St # A
Barstow, CA 92311
Telephone: 760-256-3531
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With a copy to:
Matthew T. Summers, Esq.
Colantuono, Highsmith, and Whatley, PC
790 East Colorado Blvd., Suite 850
Pasadena, CA 91101-2109
Telephone: (213) 542-5700
Fax (213) 542-5710
Notice of change of address shall be given by written notice in the manner detailed in this Section 17.11. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent.
17.12 Waiver, Consent and Remedies. Either party may specifically and expressly waive in writing any breach by the other party of any provision of this Agreement, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision. 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 or the necessity of obtaining such consent for the same or 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.
17.13 Waiver of Certain Rights. Buyer hereby waives any rights it may have or claim to have that it has any interest in the Property, including but not limited to, rights of adverse possession or prescriptive rights. The only rights Buyer has in the Property are those rights expressly granted by this Agreement.
17.14 Fees and Other Expenses. Except as otherwise provided herein, each of the parties shall pay its own fees and expenses in connection with this Agreement.
17.15 Headings. The headings used herein are for purposes of convenience only and shall not be used to construe, expand or limit the meaning of the language of this agreement.
19. Entire Agreement.
This instrument contains the sole and entire agreement of the parties relating to the purchase and sale of the Property, and correctly sets forth the rights, duties and obligations of each to the other as of its date. Except as stated herein, any prior agreements, promises, negotiations or representations not expressly set forth in this agreement are of no force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above.
“SELLER”
Dated: ________________, 2022 THE CITY OF BARSTOW, a municipal corporation,
_____________________________
Willie A. Hopkins, Jr., its City Manager
“BUYER”
Dated: _________________, 2022 MARSELLA FAMILY TRUST
By:
Name:
Its:
EXHIBITS
Exhibit A - Site Map
Exhibit B - Legal Description of the Property
Exhibit C - Grant Deed
EXHIBIT A
SITE MAP
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EXHIBIT B
LEGAL DESCRIPTION OF THE PROPERTY
PTN NW 1/4 SEC 9 TP 9N R 1W DESC AS COM AT INTERSECTION W LI SD SEC 9 WITH THE NLY R/W LI OF E MAIN ST TH S 51 DEG 57 MIN 16 SECONDS E ALG SD N LI 230 FT TO TRUE POB TH CONT S 51 DEG 57 MIN 16 SECONDS E ALG SD NLY LI 268.10 FT TH N 35 DEG 39 MIN 50 SECONDS E 4.86 FT M/L TO A PT ON THE SWLY R/W LI OF THE
AT AND SF RR R/W SD PT BEING ON A CURVE CONCAVE TO THE NE AND HAVING A RADIUS OF 5842.41 FT FROM WHICH THE RADIAL BEARS N 42 DEG 12 MIN 10 SECONDS E TH N WLY ALG SD CURVE THROUGH A CENTRAL ANGLE OF 2 DEG 38 MIN 22 SECONDS 269.14 FT TH S 38 DEG 02 MIN 44 SECONDS W 30.47 FT M/L TO TRUE POB
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EXHIBIT C
GRANT DEED
RECORDING REQUESTED BY
CITY OF BARSTOW
WHEN RECORDED MAIL TO
City Clerk
220 E. Mountain View St.
Barstow, CA 92311
No Recording Fee - Exempt
Pursuant to Government Code Section 6103
_________________________________________________________________________________ Space above this line for recorder’s use
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF BARSTOW, a municipal corporation, (“Grantor”) hereby GRANT(S) to
MARSELLA FAMILY TRUST (“Grantee”)
the real property in the City of Barstow, County of San Bernardino, State of California, described as:
Parcel No. _____, Parcel Map No. 8028 Assessor’s Parcel No. 0181-452-58 Dated: ____________________ , 2022
GRANTOR
CITY OF BARSTOW
_________________________________________
By: _________
Its: _________
225071.3
292075.v3
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
On , 2022, before me, , Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
Notary Public