PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is dated August ___, 2023 (the “Effective Date”) and made by and between CHINO DEVELOPMENT CORPORATION, a California corporation (“Seller"), and CITY OF CHINO, a California municipal corporation ("Buyer"). Seller and Buyer are sometimes hereinafter referred to individually as a "Party" and collectively as the "Parties".
R E C I T A L S
Seller is currently the fee owner of that approximately 0.19+/- acres of unimproved land in the City of Ontario, San Bernardino County (“County”), California, legally described on Exhibit “A” attached and depicted on Exhibit “B” attached (the “Property”).
Buyer has offered, in lieu and instead of exercising its rights to acquire the Property by eminent domain for use as a well site, to purchase the Property for use as a well site for $150,000 and Seller has accepted that offer.
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, Seller agrees to sell, and Buyer agrees to purchase, the Property on the following terms and conditions:
PURCHASE PRICE: The purchase price for the Property (the “Purchase Price”) shall be One Hundred Fifty Thousand Dollars ($150,000). Buyer shall pay the Purchase Price into Escrow by wire transfer or certified check no later than one (1) business day prior to the Closing Date.
ESCROW: Within three (3) days after the Effective Date, the Parties shall open an escrow (“Escrow”) with by causing an executed copy of this Agreement to be deposited with Fidelity National Title Company located at 4400 MacArthur Blvd., Suite 200, Newport Beach, CA,92660, attention: Brenna Ryan (949) 221-4763; Email: [email protected]. (“Escrow Holder”). Escrow shall be deemed open on the date that a fully executed copy of this Agreement is delivered to Escrow Holder (“Opening of Escrow”).
DUE DILIGENCE: Seller grants to Buyer, its agents and employees a limited license to enter the Property for the purpose of conducting engineering surveys, soil tests, investigations or other studies, including a Phase I study, reasonably necessary to evaluate the condition of the Property for use as a well site, which studies, surveys, investigations and tests shall be done at Buyer's sole cost and expense. Buyer shall indemnify, defend, and hold Seller harmless from all liability, claims, damages, costs, and expense resulting from Buyer’s (or its consultants’) activities on the Property prior to the Closing Date. Prior to its entry on the Property, Buyer shall deliver or cause its consultants to deliver, a certificate of insurance evidencing that Buyer, or its consultant, have a policy of commercial general liability insurance with minimum limits of $1,000,000 in force and effect covering Buyer’s (or consultants’) activities on the Property prior to the Closing Date. Such insurance policy shall be endorsed to include Seller as an additional insured. Buyer shall repair any damage to the Property resulting from Buyer’s (or consultants’) activities on the Property. The indemnity and repair obligations shall survive any termination of this Agreement.
TITLE: Attached as Exhibit “C” hereto is a Title Report for the Property (the “Title Report”) issued by Fidelity National Title (“Title Company”). Seller has no obligation to cause the removal of any exceptions in the Title Report that are disapproved by Buyer; rather Buyer may work with the Title Company to remove any disapproved exceptions and/or to issue any requested title endorsements all at Buyer’s cost. At the Closing, Buyer may purchase an ALTA Owner's non-extended Policy of Title Insurance (“Title Policy”) insuring title to the Property vested in Buyer consistent with the Title Report. The cost of the Title Policy shall be paid by Buyer to Escrow Holder concurrent with Buyer’s payment of the Purchase Price.
DEED/CLOSING: The “Close of Escrow ” or “Closing” shall be the date the Grant Deed, in the form of Exhibit “D” attached hereto (the “Deed”), is recorded by Escrow Holder which shall be on or before thirty (30) days after the Effective Date (the “Closing Date”). Seller shall execute the Deed and Escrow Holder’s standard FIRPTA Affidavit and deliver those to Escrow Holder within three business days after the Opening of Escrow. The Closing shall occur on the Closing Date unless Buyer notifies Seller and Escrow Holder in writing that it desires to proceed with the Closing on an earlier date. Escrow Holder is authorized and instructed by the Parties to record the Deed and complete the Closing the next business day after receipt of the Purchase Price and Buyer’s executed Certificate of Acceptance of the Grant Deed in the form attached to the Deed and Buyer’s Preliminary Change of Ownership Statement. If the Closing fails to occur by the Closing Date for any reason other than Seller’s failure to deliver the Deed into Escrow, then, unless Seller and Buyer agree in writing to extend the Closing Date, Escrow Holder shall return the Deed to Seller and this Agreement shall automatically terminate and neither Party shall have any further rights or obligations under this Agreement. Buyer’s election to Close the Escrow shall be deemed Buyer’s approval of the results its due diligence activities and of the condition of title. Seller and Buyer shall each deposit such funds for Seller’s Charges and Buyer’s Charges, respectfully, and other items and instruments, including Escrow Holder’s standard preliminary closing statement, no later than one (1) business day prior to the Closing, as may be necessary in order for Escrow Holder to complete the Closing.
PRORATIONS/CLOSING COSTS: All non-delinquent general and special real property taxes shall be prorated to the Close of Escrow on the basis of a thirty (30) day month and a three hundred sixty (360) day year. Seller shall pay one-half (1/2) of the escrow costs (“Seller’s Charges”). (NOTE: No documentary transfer taxes will be payable pursuant to Government Code Section 11922). Buyer shall pay the costs for the Title Policy and one-half (1/2) of the escrow fees (“Buyer’s Charges”). Buyer is a public agency and is exempt from recording charges. All other costs of Escrow not otherwise specifically allocated by this Agreement shall be apportioned between the parties in a manner consistent with the custom and usage of Escrow Holder.
AS-IS: Buyer acknowledges that it is purchasing the Property in its AS IS, WHERE IS condition solely in reliance on its own physical investigations of the Property pursuant to Section 2 above, and its review of the condition of title of the Property pursuant to Section 3 above, and acknowledges that no representations or warranties of any kind whatsoever, expressed or implied, have been made by Seller regarding the Property and that no title insurance is being provided by Seller for this sale of the Property. Without limiting the foregoing, and although the Deed includes the conveyance of all tenements, hereditaments, and appurtenances to the Property, Seller makes no representations or warranties regarding whether there are any water rights or other mineral rights appurtenant to the Property (the “Appurtenant Rights”). Buyer further acknowledges that, as of the Closing, it will be aware of the availability of utilities, all site and physical conditions, and all other matters affecting the use and condition of the Property.
RELEASE: BUYER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE AND DOES NOT MAKE AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, CONCERNING THE PROPERTY AND ANY APPURTENANT RIGHTS, INCLUDING ALL REPRESENTATIONS AND WARRANTIES AS TO THE PHYSICAL CONDITION OF THE PROPERTY AND THE SUITABILITY OF THE PROPERTY FOR BUYER’S INTENDED USE. BUYER HEREBY RELEASES, DISCHARGES, AND FOREVER ACQUITS SELLER FROM ALL DEBTS, DUTIES, DEMANDS, CLAIMS, LIABILITIES, OBLIGATIONS, CAUSES OF ACTION, DAMAGES, LOSSES, FEES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND COSTS) (COLLECTIVELY “CLAIMS”) WHICH BUYER MAY SUFFER OR INCUR RELATING TO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, RELATING TO THE PHYSICAL CONDITION OF THE PROPERTY AND ITS SUITABLITY FOR BUYER’S INTENDED USE OR THE PRESENCE OF ANY HAZARDOUS MATERIALS ON, UNDER OR WITHIN THE PROPERTY. BUYER HEREBY AGREES, REPRESENTS, AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED TO BUYER PRIOR TO THE CLOSING BUT INCLUDE ALL EXISTING OR FUTURE CLAIMS, WHETHER KNOWN OR UNKNOWN TO BUYER.
Waiver of Civil Code Section 1542: The foregoing releases are intended to extend to all Claims, known or unknown, suspected or unsuspected, and Buyer, after consultation with legal counsel, expressly waives and relinquishes any rights and benefits that Buyer has or may have under Section 1542 of the Civil Code of the State of California, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
Buyer Initials: ______________
NOTICES: No notice, request, demand, instruction, or other document to be given hereunder to any Party shall be effective for any purpose unless personally delivered to the person at the appropriate address set forth below (in which event such notice shall be deemed effective only upon such delivery), delivered by air courier next-day delivery (e.g. Federal Express), or delivered by electronic mail, as follows:
If to Seller, to:
Attention: John M. Goodman
Chino Development Corporation
c/o Lewis Management Corp.
1156 North Mountain Avenue
Upland, CA 91786-3633
Email: [email protected]
If to Buyer, to:
If to Escrow Holder
Attention: City Manager
City of Chino
13220 Central Avenue
Chino, CA 91710
Email: ________________________
Fidelity National Title Company
4400 MacArthur Blvd., Suite 200
Newport Beach, CA 92660
Attn: Brenna Ryan
Email: [email protected]
Notices delivered by air courier shall be deemed to have been given the next business day after deposit with the courier and notices emailed shall be deemed delivered the same business day delivered.
ATTORNEYS’ FEES: If either Party brings an action or proceeding against the other Party with regards to this Agreement, the prevailing Party shall be entitled to recover its reasonable costs and expenses, as determined by the Court, including, without limitation, attorneys’ fees, expert witness fees, and court costs, incurred for prosecution, defense, consultation, or advice in such action or proceeding, and any appeal of any such actions or proceedings.
COMPLETE AGREEMENT: All prior understandings and agreements between the Parties respecting the transactions contemplated by this Agreement are superseded by this Agreement, which fully and completely expresses the agreement of the Parties. As between the Parties, there are no representations, warranties or agreements, concerning the subject matter of this transaction except as specifically and expressly set forth in this Agreement. This Agreement may only be amended, modified, or supplemented by a written document executed by Seller and Buyer.
CHOICE OF LAW: This Agreement shall be governed and construed in accordance with California law.
COUNTERPARTS: This Agreement, and any amendments hereto, may be signed in multiple counterparts, which together shall constitute the complete Agreement.
SEVERABILITY: If any term, provision, condition, or covenant of this Agreement, or the application thereof to any Party or circumstance shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement or the application of the term, provision, condition, or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby. Each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
NO WAIVER: No delay or omission by any Party in exercising any right or power occurring upon the default or failure of performance by the other Party under the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by any Party of a breach of any of the covenants, agreements, conditions, or restrictions to be performed by the other Party herein shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions, or conditions herein.
NO THIRD PARTY BENEFICIARY: This Agreement is between Buyer and Seller only. No third party is intended to be benefited hereby expressly or by implication.
DEFAULT: In the event of a default by Buyer under this Agreement, Seller’s sole remedy shall be to terminate this Agreement whereupon Escrow Holder shall return the Deed to Seller and neither Party shall have any further rights or obligations under this Agreement. In the event of a default by Seller under this Agreement, Buyer’s sole remedy shall be to either (i) terminate this Agreement whereupon Escrow Holder shall return the Deed to Seller and neither Party shall have any further rights or obligations under this Agreement or (ii) bring an action for specific performance of Seller's obligations within sixty (60) days from the Closing Date. The Parties waive all other remedies at law or in equity.
INTENTIONALLY LEFT BLANK; SIGNATURES FOLLOW ON NEXT PAGE IN WITNESS WHEREOF, Seller and Buyer have duly executed this Agreement as of the date first above written. "SELLER"
CHINO DEVELOPMENT CORPORATION,
a California corporation
By:
Name: John M. Goodman
Title: EVP/CFO
"BUYER"
CITY OF CHINO,
a California municipal corporation
By: Name: Eunice M. Ulloa
Title: Mayor
ATTEST:
_____________________________
City Clerk
APPROVED AS TO FORM:
Aleshire & Wynder, LLP
By: ___________________________
Fred Galante, City Attorney
EXHIBIT LIST
Exhibit A Legal Description of Property
Exhibit B Plat of Property
Exhibit C Title Report
Exhibit D Grant Deed
WBF:aa Z:\Legal\PROJECT DEV - CALIFORNIA\Chino - The Preserve G2182\Chino Well Site Sale-Bon View G2182O.1\Drafts\PSA Draft v7 (6-1-23) clean.docx EXHIBIT “A”
LEGAL DESCRIPTION
THE REAL PROPERTY IN THE CITY OF ONTARIO, SAN BERNARDINO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING THAT PORTION OF LOT 61, SECTION 8, TOWNSHIP 2 NORTH, RANGE 7 WEST, SAN BERNARDINO MERIDIAN AS SHOWN ON MAP OF SUBDIVISION OF PART OF RANCHO SANTA ANA DEL CHINO, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, FILED IN BOOK 15, PAGE 15, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, WITHIN THE FOLLOWING DESCRIBED BOUNDARIES:
COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 61, SAID POINT BEING ON THE NORTHERLY RIGHT OF WAY OF SCHAEFER AVENUE, 33 FEET HALF WIDTH; THENCE NORTH 0°00’00” EAST ALONG THE EASTERLY LINE OF SAID LOT 61, 21.00 FEET TO A POINT ON A LINE PARALLEL WITH AND 54.00 FEET NORTHERLY OF THE CENTERLINE OF SCHAEFER AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 90°00’00” WEST ALONG SAID PARALLEL LINE, 240.94 FEET TO A POINT ON THE SOUTHERLY LINE OF SOUTHERN CALIFORNIA EDISON RIGHT OF WAY; THENCE NORTH 73°35’42” EAST ALONG SAID SOUTHERLY LINE, 250.00 FEET TO A POINT ON THE EASTERLY LINE OF SAID LOT 61; THENCE SOUTH 0°00’00” EAST ALONG SAID EASTERLY LINE, 71.59 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 8,492 SQUARE FEET (0.19 ACRES) MORE OR LESS.
SEE EXHIBIT B ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF.
APN: Portion of 1052-501-05-0-000
EXHIBIT C
TITLE REPORT
EXHIBIT “D”
GRANT DEED
RECORDING REQUESTED BY:
CITY OF CHINO
AND
WHEN RECORDED MAIL TO:
City of Chino
13220 Central Avenue
Chino, CA 91710
Attn: Public Works Director
APN: Por of 1052-501-05-0-000
SPACE ABOVE THIS LINE IS FOR RECORDER’S USE
GRANT DEED
THE UNDERSIGNED GRANTOR(S) DECLARE(S):
DOCUMENTARY TRANSFER TAX IS $ 0.00 EXEMPT FROM FEE R&T Code11922 Computed on full value of property conveyed, or
Computed on full value less liens and encumbrances remaining at time of sale.
Unincorporated area _____ City of Ontario
For valuable consideration, receipt of which is hereby acknowledged, CHINO DEVELOPMENT CORPORATION, a California corporation (“Grantor”), hereby GRANT(S) to
CITY OF CHINO, a California municipal corporation (“Grantee”), all right, title, and interest in and to any of the real property situated in the City of Ontario, County of San Bernardino, State of California, described in Exhibit “A” and depicted on Exhibit “B” attached hereto and incorporated herein by this reference together with all tenements, hereditaments, and appurtenances thereto.
Dated: ______________, 2023 CHINO DEVELOPMENT CORPORATION, a California corporation
By:
Name: John M. Goodman
Its: EVP/CFO
ACKNOWLEDGMENT
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
)
County of San Bernardino
)
On ____________________, before me, ____________________________, a 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
[SEAL]
CERTIFICATE OF ACCEPTANCE
(California Government Code Section 27281)
Pursuant to Government Code Section 27281, this is to certify that the interest in real property conveyed by the foregoing Grant Deed from CHINO DEVELOPMENT CORPORATION, a California corporation (“Grantor”) to the CITY OF CHINO, a municipal corporation of the State of California (“City”), is hereby accepted by order of the undersigned on behalf of the City pursuant to authority conferred by Ordinance of the City and the Grantee consents to recordation thereof by its duly authorized officer.
City of Chino,
a California municipal corporation
By:
, City Manager
ATTEST:
By:
,City Clerk
Dated: ___________________, 20__
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE REAL PROPERTY IN THE CITY OF ONTARIO, SAN BERNARDINO COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING THAT PORTION OF LOT 61, SECTION 8, TOWNSHIP 2 NORTH, RANGE 7 WEST, SAN BERNARDINO MERIDIAN AS SHOWN ON MAP OF SUBDIVISION OF PART OF RANCHO SANTA ANA DEL CHINO, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, FILED IN BOOK 15, PAGE 15, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, WITHIN THE FOLLOWING DESCRIBED BOUNDARIES:
COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 61, SAID POINT BEING ON THE NORTHERLY RIGHT OF WAY OF SCHAEFER AVENUE, 33 FEET HALF WIDTH; THENCE NORTH 0°00’00” EAST ALONG THE EASTERLY LINE OF SAID LOT 61, 21.00 FEET TO A POINT ON A LINE PARALLEL WITH AND 54.00 FEET NORTHERLY OF THE CENTERLINE OF SCHAEFER AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 90°00’00” WEST ALONG SAID PARALLEL LINE, 240.94 FEET TO A POINT ON THE SOUTHERLY LINE OF SOUTHERN CALIFORNIA EDISON RIGHT OF WAY; THENCE NORTH 73°35’42” EAST ALONG SAID SOUTHERLY LINE, 250.00 FEET TO A POINT ON THE EASTERLY LINE OF SAID LOT 61; THENCE SOUTH 0°00’00” EAST ALONG SAID EASTERLY LINE, 71.59 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 8,492 SQUARE FEET (0.19 ACRES) MORE OR LESS.
SEE EXHIBIT B ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF.
APN: Portion of 1052-501-05-0-000