1 FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
1432 South Riverside Avenue, Rialto, CA
This FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (“ First Amendment”) dated as of this ___ day of March, 2022 (“Amendment Effective Date ”), is entered into by and between the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF RIALTO, a California public agency (“ Agency”), the CITY OF RIALTO, a municipal corporation and California general law city (“ City”), and NEWMARK MERRILL COMPANIES, INC., a California corporation (“Developer”).
R E C I T A L S
The following Recitals are a substantive part of this First Amendment; capitalized terms used herein and not otherwise defined are defined in the Agreement, including Section 1.1 thereof:
A. Agency, City, and De veloper are parties to that certain Purchase and Sale Agreement dated November 8, 2021 (the “ Original Agreement”) regarding the sale by the Agency to Developer of the real property located at 1432 South Riverside Avenue, Rialto, California, consisting of a pproximately 14.75 acres located west of Riverside Avenue and north of Valley Boulevard (all or portions of APNs 0132 -101-07, 08, 15, 16; 0132 -111-03; 0132-161- 13; and 0132-202-06) (“Property”).
B. Subsequent to the full execution of the Original Agreement, certain conditions relating to the transactions contemplated by the Original Agreement have changed. The Agency, City, and Developer now desire to amend the Original Agreement to adjust the transactions to such changed conditions.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Agency, City, and Developer hereby agree as follows:
A G R E E M E N T
Section 1. Subsection 1.1 of the Original Agreement is amended by deleting therefrom the definitions of “Gateway Access Easement”, “Storm Drain Easement” and “NMTC.”
Section 2. Section 2 of the Original Agreement is hereby amended as follows:
a. Section 2.4.3 of the Original Agreement is hereby amended by replacing the words “Effective Date” in the first sentence thereof with the words “Amendment Effective Date”.
b. Section 2.4.5 of the Original Agreement is hereby deleted in its entirety and replaced with the following text:
2 “2.4.5 Contingency Date. Developer shall have until 5:00 p.m. (Pacific Time) on March 28, 2022 (the “ Contingency Date ”) in which to approve or disapprove, in Developer's sole and absolute discretion, any and all inspections, investigations, tests and studies set forth in this Section 2.4 by providing written notice to Agency (“Developer’s Approval Notice”). In the event Developer determines the Property is not acceptable to Developer for any reason or no reason, Developer shall have the right to terminate this Agreement by delivering written Notice to Agency of its election to terminate pursuant to this Section 2.4.5 on or before the Contingency Date (“ Developer’s Disapproval Notice”).
In the event Developer has not provided Agency, by the Contingency Date, with Developer’s Approval Notice or Developer’s Disapp roval Notice, this Agreement shall automatically be deemed to have been terminated effective as of the Contingency Date, and thereafter neither party shall have any further rights or obligations hereunder except for those obligations which by their express terms survive the termination of this Agreement. If Developer timely provides Developer’s Disapproval Notice or if this Agreement is deemed to have been terminated as provided above, upon such termination, Agency shall promptly return the Initial Deposit to Developer and each party shall promptly execute and deliver to Escrow Agent such documents as Escrow Agent may reasonably require evidencing such termination. The period from the Effective Date through March 28, 2022 within which Developer is to perform its due diligence investigation of the Property is referred to herein as the “Due Diligence Period.”
c. The text of Sections 2.6.13 (Gateway Center Access Easement) , 2.6.14 (Storm Drain Easement Agreement), 2.6.16 (New Market Tax Credits), and Section 2.9.2(c) and (d) are hereby deleted in their entirety and replaced with the phrase “Intentionally Omitted.”
d. A new Section 2.16 is hereby added to the Original Agreement to read as follows:
“2.16. Condition Subsequent. At its sole cost and expense, and as a condition subsequent to the Close of Escrow under this Agreement, City hereby agrees that it will on or before January 28, 2023 design, construct and install a new, complete, and operate the Senior Way Signal Work (defined in Section 4 below). T he provisi ons of this Section 2.16 shall survive each Close of Escrow and shall not merge with any Grant Deed. Notwithstanding any other provision of the Agreement to the contrary, Developer shall have all remedies available at law and at equity with respect to a Default by the City with respect to this Section , including without limitation, the right s to specific performance, to sue for damages and/or to utilize self-help to construct the Senior Way Signal Work and, subject to the limitations imposed by 3 Section 4.3(c), to obtain reimbursement from the City in the amount not to exceed the cost of the required public improvement work.
Section 3. The Original Agreement is amended by adding a new Section 4 to read as follows:
“4. Public Improvements and Development Impact Fees.
4.1 Riverside Avenue/Senior Way Signalization . Pursuant to Rialto Planning Commission Resolution No. 2022-__ approving Precise Plan of Design No. 2021-0059, Developer is conditioned to make dedications of right -of-way and construct and install specified public works of improvement pursuant to conditions of approval numbers 96 and 97, including requirements to modify the traffic signal at Riverside Avenue and Senior Way to add the west leg into the Property, adding a northbound left turn phase and modify the existing signal poles, mast arms and/or signal heads as necessary to make the traffic signal fully operational, and modify the striping on Riverside Avenue to provide a new northbound left turn into the site at Senior Way (collectively, the Senior Way Signal Work”) . Subject to Developer’s required right -of- way dedications and Section 2.16 of this Agreement , City shall, at its own cost and expense, design, construct and install the Senior Way Signal Work . City shall coordinate the timing of construction and installation of the Senior Way Signal Work with Developer. The parties acknowledge that the Senior Way S ignal Work to be performed was required of the Developer as a condition of regulatory approval of the Project.
4.2 Development Impact Fees . Pursuant to Rialto Planning Commission Resolution No. 2022-__ approving Precise Plan of Design No. 2021-0059, condition number 39, Developer is conditioned to pay all applicable development impact fees in accordance with the current City of Rialto fee ordinance, including any Transportation and Traffic Fair Share Contribution fees, prior to issuance of a building permit. The City has determined that the fair share allocable to the City’s intended design, construction and installation of a new, complete, and operational traffic signal at the San Bernardino Avenue and Willow Avenue intersection (“Willow Avenue Signal Wo rk”) is Forty Thousand Dollars ($40,000). The City hereby agrees that it will perform the Willow Avenue Signal Work without requiring payment of this fair share contribution from the Developer. The City is not obligated by this Agreement to perform the Willow Avenue Signal Work. The parties acknowledge that payment of a fair share of the Willow Avenue Signal Work was required of the Developer as a condition of regulatory approval of the Project.
4.3 Cap on City Contribution . The parties agree that th e City shall (a) maintain no proprietary interest in the overall project and 4 (b) contribute no more money, or equivalent of money, to the overall project than is required to perform the Senior Way Signal Work and to fund Developer’s requirement to make a f air share contribution to the Willow Avenue Signal Work and that (c) together with matters described in clause (b) above and any other contributions made or determined to be made by the City, in no event shall the City’s contribution to the project exceed the lesser of Six Hundred Thousand Dollars ($600,000) or two percent (2%) of total Project cost.
4.4 Survival of Provisions. This Section 4 shall survive each Close of Escrow and shall not merge with any Grant Deed.”
Section 4. The City Council of the City, in its capacity as the legislative body of the Successor Agency to the Redevelopment Agency of the City of Rialto, the City Council of the City, in its capacity as the legislative body of the City, and the Developer, and each of them, hereby ratify and approve the Original Agreement, as amended by this First Amendment.
Section 5. This First Amendment contains the entire agreement between the parties and cannot be changed, modified or amended unless such change, modification or amendment is in writing and executed by the party against whom the enforcement of such change, modification or amendment is sought. Wherever in the Original Agreement or this Amendment the term “Agreement” is used, it shall be deemed to refer to the Original Agreement as amended by this Amendment.
Section 6. If any provision of this First Amendment shall be invalid or unenforceable, the remainder of the provisions shall not be affected thereby and each and every other provision of this First Amendment shall be enforceable to the fullest extent permitted by law.
Section 7. Except as set forth in this First Amendment, all of the terms and conditions of the Original Agreement shall remain unmodified and in full force and effect. To the extent of any inconsistency between the terms and conditions of the Original Agreement and the terms and conditions of this First Amendment, the terms and conditions of this First Amendment shall control.
Section 8. This First Am endment may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. For purposes of this First Amendment, signatures by facsimile or electronic PDF shall be binding to the same extent as original signatures.
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5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
CITY: AGENCY:
CITY OF RIALTO SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY OF THE
CITY OF RIALTO, a California public
agency
By:_____________________________ By:_______________________________ Marcus Fuller, City Manager Marcus Fuller, Agency Manager
ATTEST:
By:_____________________________
Barbara McGee, City Clerk
APPROVED AS TO FORM:
By:_____________________________
Eric S. Vail, City Attorney
DEVELOPER:
NEWMARK MERRILL COMPANIES,
Inc., a California corporation
By:_______________________________
Name: Sanford D. Sigal
Title: President and Chief Executive Officer