PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
CITY OF RIALTO, a municipal corporation, the SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a California public body, and LEWIS- HILLWOOD RIALTO COMPANY, LLC, a Delaware limited liability company (collectively “Seller”)
AND
NEWLAND REAL ESTATE EQUITIES LLC,
a Delaware limited liability company
(“Purchaser”)
(ii)
TABLE OF CONTENTS
Page
ARTICLE 1 AGREEMENT OF PURCHASE AND SALE ......................................................2
1.1. Agreement of Purchase and Sale .............................................................................2
1.2. San Bernardino Countywide Oversight Board and California Department of Finance Approvals Required....................................................................................2 ARTICLE 2 PURCHASE PRICE ................................................................................................2
2.1. Purchase Price ..........................................................................................................2 ARTICLE 3 CONTRACT CONSIDERATION AND DEPOSIT .............................................2
3.1. Contract Consideration ............................................................................................2
3.2. Initial Deposit; Additional Deposit; Amount and Payment .....................................2 ARTICLE 4 DELIVERY OF TITLE COMMITMENT; TITLE REVIEW ...........................3
4.1. Items to be Delivered ...............................................................................................3
4.2. Condition of Title .....................................................................................................4
4.3. Title Policy ...............................................................................................................5
4.4. Title Review Period .................................................................................................5 ARTICLE 5 DUE DILIGENCE/INSPECTION .........................................................................6
5.1. Due Diligence ..........................................................................................................6
5.2. Inspection Rights .....................................................................................................6 ARTICLE 6 AS-IS/WAIVER/RELEASE ...................................................................................7
6.1. AS-IS........................................................................................................................7
6.2. Waiver and Release by Purchaser ............................................................................9
6.3. Survival ..................................................................................................................10 ARTICLE 7 REPRESENTATIONS, WARRANTIES AND COVENANTS .........................10
7.1. Representations and Warranties of Seller ..............................................................10
7.2. Continuing Validity of Seller’s Representations and Warranties ..........................11
7.3. Representations and Warranties of Purchaser ........................................................12
7.4. Continuing Validity of Purchaser’s Representations and Warranties....................13
7.5. Project Approvals and Improvements ....................................................................13
7.6. Storm Waters .........................................................................................................14
7.7. Purchaser’s Work ...................................................................................................14
7.8. Compliance with Map Act .....................................................................................14
7.9. No Contest .............................................................................................................14 ARTICLE 8 CONDEMNATION ...............................................................................................14
8.1. Condemnation ........................................................................................................14 ARTICLE 9 CONDITIONS TO CLOSING .............................................................................15
9.1. Conditions to Closing ............................................................................................15 (iii)
ARTICLE 10 CLOSING .............................................................................................................17
10.1. Time and Place .......................................................................................................17
10.2. Items to be Delivered by Seller at the Closing ......................................................17
10.3. Items to be Delivered by Purchaser at the Closing ................................................18
10.4. Title Company Directives at Closing .....................................................................19
10.5. Other Documents ...................................................................................................20
10.6. Recording of Documents .......................................................................................20
10.7. Adjustments and Prorations ...................................................................................20
10.8. Closing Costs .........................................................................................................20
10.9. Survival ..................................................................................................................21 ARTICLE 11 DISTRIBUTION OF FUNDS AND DOCUMENTS ........................................21
11.1. Escrow Agent .........................................................................................................21
11.2. Title Company Obligations; Delivery of the Purchase Price .................................21
11.3. Other Monetary Disbursements .............................................................................21
11.4. Recorded Documents .............................................................................................21
11.5. Documents to Purchaser ........................................................................................21
11.6. Documents to Seller ...............................................................................................22
11.7. All Other Documents .............................................................................................22
11.8. Return of Seller’s Documents ................................................................................22
11.9. Return of Purchaser’s Documents .........................................................................22
11.10. Escrow Agent Duties .............................................................................................23 ARTICLE 12 REMEDIES UPON DEFAULT .........................................................................23
12.1. Default by Seller ....................................................................................................23
12.2. Default by Purchaser; Liquidated Damages ..........................................................25
12.3. Damages .................................................................................................................26 ARTICLE 13 [INTENTIONALLY DELETED].......................................................................26 ARTICLE 14 MISCELLANEOUS ............................................................................................26
14.1. Notices ...................................................................................................................26
14.2. Survival ..................................................................................................................27
14.3. Assignment/Binding Contract ................................................................................27
14.4. Interpretation and Applicable Law ........................................................................28
14.5. Amendment/Waiver ...............................................................................................28
14.6. Attorneys’ Fees ......................................................................................................28
14.7. Entire Agreement ...................................................................................................28
14.8. Multiple Counterparts ............................................................................................28
14.9. Dates ......................................................................................................................28
14.10. Brokers ...................................................................................................................29
14.11. Invalidity ................................................................................................................29
14.12. Time of Essence .....................................................................................................29
14.13. Confidentiality .......................................................................................................29
14.14. Jurisdiction and Venue ...........................................................................................30
14.15. Dispute Resolution; Jury Trial Waiver ..................................................................30
14.16. Natural Hazard Disclosure Statement ....................................................................32 (iv)
14.17. Other Offers ...........................................................................................................32
14.18. 1031 Exchange .......................................................................................................32
LIST OF EXHIBITS
Exhibit A – Property Legal Description
Exhibit A-1 – Map of Property
Exhibit A-2 – Project Concept Plan (3 Buildings)
Exhibit A-3- Project Concept Plan (2 Buildings)
Exhibit B – Form of Grant Deed
Exhibit C – Purchaser’s Release
Exhibit D – Declaration of Construction Covenants
Exhibit E – Maintenance Agreement
Exhibit F – List of Property Documents
INDEX
Page(s)
(v)
Agreement ....................................................................................................................................... 1 Approved Condition of Title ........................................................................................................... 4 Blocked Person ............................................................................................................................. 11 CCP ............................................................................................................................................... 30 CEQA Approvals ............................................................................................................................ 1 Certificate of Compliance ............................................................................................................. 14 City .................................................................................................................................................. 1 City Parcel ....................................................................................................................................... 1 City/Agency Conditions................................................................................................................ 17 Claim Date .................................................................................................................................... 30 Claims and Liabilities ..................................................................................................................... 6 Closing .......................................................................................................................................... 17 Closing Date.................................................................................................................................. 17 Code .............................................................................................................................................. 32 Confidential Information .............................................................................................................. 29 Controversy ................................................................................................................................... 30 Court ............................................................................................................................................. 30 DA Amendment .............................................................................................................................. 1 Declaration of Construction Covenants .......................................................................................... 5 Deposit ............................................................................................................................................ 3 Development Agreement ................................................................................................................ 5 Diligence and Development Costs ................................................................................................ 24 Effective Date ............................................................................................................................... 28 Environmental Laws ....................................................................................................................... 8 Escrow Agent ................................................................................................................................ 21 Escrow Date .................................................................................................................................. 29 Exchange ....................................................................................................................................... 32 Extended Policy .............................................................................................................................. 5 Extension....................................................................................................................................... 17 First Additional Deposit .................................................................................................................. 3 foreign person ............................................................................................................................... 11 Grant Deed ...................................................................................................................................... 5 Hazardous Material(s) ..................................................................................................................... 8 holiday........................................................................................................................................... 28 Immediately Available Funds ......................................................................................................... 3 Independent Consideration ............................................................................................................. 2 Initial Deposit.................................................................................................................................. 3 LHR................................................................................................................................................. 1 LHR Parcel...................................................................................................................................... 1 Maintenance Agreement ................................................................................................................. 5 Miro Way Improvements .............................................................................................................. 14 Natural Hazard Expert .................................................................................................................. 32 Natural Hazard Matters ................................................................................................................. 32 INDEX
Page(s)
(vi)
PPD Approval ............................................................................................................................... 13 Pre-Existing Environmental Matter ................................................................................................ 9 Project ............................................................................................................................................. 1 Property ........................................................................................................................................... 1 Property Documents........................................................................................................................ 4 Purchase Price ................................................................................................................................. 2 Purchaser ......................................................................................................................................... 1 Purchaser Improvements ............................................................................................................... 14 Purchaser Project Approvals ......................................................................................................... 13 Purchaser’s Closing Notice ........................................................................................................... 12 Purchaser’s Notice and Cure Period ............................................................................................. 25 Purchaser’s Representatives .......................................................................................................... 29 Reliance Letters .............................................................................................................................. 4 SARDA ........................................................................................................................................... 1 SARDA Parcels .............................................................................................................................. 1 Second Additional Deposit ............................................................................................................. 3 Section 1542.................................................................................................................................... 9 Seller ............................................................................................................................................... 1 Seller Project Approvals ............................................................................................................... 13 Seller’s Certificate ........................................................................................................................ 11 Seller’s current actual knowledge ................................................................................................. 11 Seller’s Default ............................................................................................................................. 23 Seller’s knowledge ........................................................................................................................ 11 Seller’s Notice and Cure Period .................................................................................................... 24 Seller’s Representatives ................................................................................................................ 29 SMA .............................................................................................................................................. 14 SPA ................................................................................................................................................. 1 Specific Plan ................................................................................................................................... 1 Third Additional Deposit ................................................................................................................ 3 Title Commitment ........................................................................................................................... 4 Title Company ................................................................................................................................ 3 Title Policy ...................................................................................................................................... 5
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement"), dated for reference purposes only ___________, 2024, is entered into by the CITY OF RIALTO, a municipal corporation (the “City”), the SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a California public body (“ SARDA”), and LEWIS -HILLWOOD RIALTO COMPANY, LLC, a Delaware limited liability company (“ LHR”) (collectively, "Seller"), and NEWLAND REAL ESTATE EQU ITIES LLC, a Delaware limited liability company ("Purchaser"), as of the Effective Date (hereinafter defined).
RECITALS:
A. LHR is the owner of that certain 6.913 acres of real property (the “LHR Parcel”), SARDA is the owner of that certain 10.92 acres of real property (the “SARDA Parcels”) and the City is the owner that certain 2.98 acres of real property (the “City Parcel”) all located within the City of Rialto and legally described in Exhibit A attached (collectively referred to herein as the “Property”). A map of the Property is attached hereto as Exhibit A-1.
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase the Property for Purchaser’s development of an industrial warehouse project currently planned to consist of either three industrial buildings containing a total of approximately 422,370 square feet (based on a maximum FAR of 0.50), which buildings are generally described as Buildings 1, 2 and 3 in Exhibit A-2 [3 Building Concept Plan] attached or two industrial buildings containing a total of approximately 428,715 square feet (based on a maximum FAR of 0.50), which buildings are generally described as Buildings 1 and 2 in Exhibit A -3 [2 Building Concept Plan] attached (the “Project”). As used herein the term “Project Plans ” means collectively the 2 Building Concept Plan and the 3 Building Concept Plan.
C. T he Property is located within the Renaissance Specific Plan (the “ Specific Plan”).
D. The City and LHR intend, pursuant to the terms of a separate “ Reimbursement Agreement,” to process (i) an amendment to the Specific Plan to revise the permitted land uses therein for the Property by eliminating the park and school site designations and replacing them with business center land uses to support industrial warehousing and similar development necessary for the Project (the “ SPA”), (ii) an amendment to the Development Agreement (as defined in Section 4.2(i)) to delete Section 8.1 and to modify Section 5.3.1 of the Development Agreement upon terms reasonably acceptable to City and LHR (the “DA Amendment”), and (iii) all related and necessary CEQA approvals ( “CEQA Approvals ”). The parties understand and agree that nothing set forth herein commits or otherwise requires the City to approve, in whole or in part, the SPA or DA Amendment and that the City shall retain the discretion in accordance with CEQA and all other applicable laws to approve or deny the SPA and DA Amendment and to identify and impose mitigation measures to mitigate any significant environmental impacts resulting from the SPA and DA Amendment.
NOW, THEREFORE, in consideration of the covenants contained herein, and for other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, Purchaser and Seller hereby agree as follows:
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ARTICLE 1
AGREEMENT OF PURCHASE AND SALE
1.1. Agreement of Purchase and Sale. Subject to the terms and conditions contained in this Agreement, on the Closing Date (hereinafter defined), Seller shall convey to Purchaser, and Purchaser hereby agrees to purchase, the Property by a recordable Grant Deed (hereinafter defined).
1.2. Sa n Bernardino Countywide Oversight Board and California Department of Finance Approvals Required. The effectiveness of this Agreement is contingent upon and subject to its approval by each of the San Bernardino Countywide Oversight Board, a public body, and the California Department of Finance.
ARTICLE 2
P
URCHASE PRICE
2.1. Purchase Price. The purchase price to be paid for the Property (the “ Purchase Price”) shall be an amount equal to SIXTY -ONE MILLION SIX HUNDRED FORTY- NINE THOUSAND SEVEN HUNDRED SEVENTY-ONE AND 04/100 Dollars ($61,649,771.04). The Purchase Price shall be payable in cash or Immediately Available Funds (hereinafter defined) at the Closing (hereinafter defined) subject to offsets and credits as described in this Agreement. On and after the Closing, Purchaser is responsible for dedicating any public rights -of-way on the Property and granting any easements required in connection with the development and use of the Property. Seller will cooperate in connection with any such dedication and the granting of easements necessary for the construction or development of the Property by Purchaser, as provided in this Agreement, but Seller shall not be required to incur any third- party costs or expenses in connection with such cooperation. The covenants and obligations of the parties set forth in this Section will survive the Closing.
ARTICLE 3
CO
NTRACT CONSIDERATION AND DEPOSIT
3.1. Contract Consideration. Contemporaneously with the execution and delivery of this Agreement, Purchaser has delivered to Seller and Seller hereby acknowledges the receipt of One Hundred Dollars ($100.00) (the “ Independent Consideration”), which amount the parties bargained for and agreed to as adequate and sufficient consideration for Purchaser’s exclusive right to inspect and purchase the Property pursuant to this Agreement and for Seller ’s execution, delivery and performance of this Agreement. The Independent Consideration is in addition to and independent of any other consideration or payment provided in this Agreement, is nonrefundable, is fully earned and shall be retained by Seller notwithstanding any other provision of this Agreement.
3.2. I
nitial Deposit; Additional Deposit; Amount and Paym ent. (a) Initial and Additional Deposit. Purchaser, the third (3rd) business day after the Effective Date, shall deliver, in cash or Immediately Available Funds, an amount equal to ONE MILLION AND 00/100 Dollars ($1,000,000) (the “Initial Deposit”), which equals 1.6% of the Purchase Price, to Fidelity National Title Company, 4400 MacArthur Blvd., Suite 200,
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Newport Beach, CA, 92660 Attn: Brenna Ryan, Escrow Officer, Telephone: (949) 221 -4763, Email: [email protected] (the “Title Com pany”). Unless this Agreement is previously terminated, the third (3 rd) business day after Purchaser’s submittal to the City of a draft supplemental environmental impact report for the Project for public review, shall deliver to Title Company, in cash or Immediately Available Funds, an additional amount equal to 1.6% of the Purchase Price ($1,000,000) (the “First Additional Deposit”). Purchaser, the third (3rd)business day after Purchaser’s submittal to the City of a final environmental impact report for the Project (the “EIR”), shall deliver to Title Company, in cash or Immediately Available Funds, an additional amount equal to 1.6% of the Purchase Price ($1,000,000) (the “ Second Additional Deposit”).
Purchaser, the third (3rd) business day after the City’s Planning Commission takes its final action on the Project Plans and EIR for the Project, shall deliver to Title Company, in cash or Immediately Available Funds, an additional amount equal to 2.1% of the Purchase Price ($1,315,000) (the “Third Additional Deposit ”). The Initial Deposit, the First Additional Deposit, the Second Additional Deposit, and the Third Additional Deposit are collectively referred to herein as the “Deposit”). Upon receipt of the Deposit from Purchaser, the Title Company is hereby directed to immediately invest the Deposit, which shall be non- refundable to Purchaser unless Purchaser terminates this Agreement in accordance with any of its rights to do so contained herein, in a federally-insured, interest-bearing account acceptable to Purchaser and Seller. The timely delivery of the Deposit is a condition precedent to the ongoing validity of this Agreement, and the failure of Purchaser to timely deliver the Deposit as provided for herein shall at Seller’s option, subject to Section 12.2 below, cause this Agreement to be terminated, and thereafter neither party shall have any further right or obligation under this Agreement, unless expressly provided otherwise in this Agreement. The Deposit shall become immediately non-refundable to Purchaser upon delivery to the Title Company, except only in the event of Purchaser ’s termination of this Agreement as a result of Seller’s Default (as such term is defined in Section 12.1(b) below) or a failure of any of Purchaser’s Conditions set forth in Section 9.1(b) below. The Deposit shall be applicable to the Purchase Price at the Closing. As used herein, the term “ Immediately Available Funds ” shall mean payment by cashier ’s check or certified check drawn on a national banking as sociation acceptable to Seller or by wire transfer of cash, as Purchaser may choose. (b) I nterest on the Deposit . If the Closing under this Agreement occurs, the Escrow Agent shall apply the Deposit and any interest earned thereon against the Purchase Price due Seller at Closing. In the event that this Agreement otherwise terminates, all interest earned on the Earnest Money shall be paid to the party entitled to receive such Deposit.
ARTICLE 4
D
ELIVERY OF TITLE COMMITMENT; TITLE REVIEW
4.1. Items to be Delivered.
(a) Title Commitment. At or prior to the Effective Date of this Agreement, the Title Company provided Purchaser with that certain Commitment for Title Insurance dated February 28, 2024 issued under Order No. 989-30100480-A- BAM, including, to the extent reasonably available from the public records, legible copies of all instruments referred to therein as conditions or exceptions to title to the Property (collectively, the “Title Commitment”).
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(b) Property Documents. At or prior to the Effective Date, Seller has delivered to Purchaser copies of the items listed on Exhibit “F” attached hereto (collectively, the “Property Documents”). From the Effective Date of this Agreement until the Closing or earlier termination of this Agreement, Seller shall promptly deliver to Purchaser any new or additional surveys, tests, reports, studies, and material notices, consents, permissions and approvals affecting the Property that Seller actually obtains or receives . LHR authorizes Purchaser, at Purchaser’s sole cost and expense, to obtain reliance letters (the “Reliance Letters ”) from consultants under contract to LHR with regards to studies or reports produced for LHR in connection with the Project Plans or the EIR, provided LHR shall not be required to incur any cost or other liability in connection with the issuance of such Reliance Letters. Further, the issuance of such Reliance Letters shall not be a condition to Purchaser’s obligation to purchase the Property under Section 9.1(b) or otherwise under this Agreement and Seller shall have no liability to Purchaser in connection with such Reliance Letters.
(c) N
o Representations . The Property Documents delivered to Purchaser are made available without representation by Seller or recourse to Seller, and Purchaser relies on the Property Documents at its own risk. Without limiting the generality of the foregoing, Purchaser acknowledges that Seller has made no representations (express or implied) regarding the accuracy of the Property Documents delivered to Purchaser, the qualifications of the parties preparing such information or the conclusions set forth therein. Purchaser agrees that Seller shall not have any liability, obligation or responsibility of any kind with respect to any of the following: (i) the content or accuracy of any report, study, opinion or conclusion of any soils, toxic, environmental or other engineer or other person or entity who has examined the Property or any aspect thereof; (ii) the content or accuracy of any information released to Purchaser by an engineer or planner in connection with the development of the Property; (iii) any of the items delivered to Purchaser pursuant to Purchaser’s review of the condition of the Property; and (iv) the content or accuracy of any other development or construction cost, projection, financial or marketing analysis or other information given to Purchaser by Seller or reviewed by Purchaser with respect to the Property. (d) R
eturn of Property Documents . Notwithstanding the foregoing, if this Agreement terminates or Purchaser fails to acquire the Property for any reason, Purchaser shall promptly return all Property Documents received by Purchaser hereunder to Seller.
Notwithstanding anything to the contrary contained herein, Purchaser ’s obligation under this Section 4.1(d) shall survive the termination of this Agreement.
4.2. C
ondition of Title . Purchaser acknowledges that title to the Property shall be conveyed to Purchaser by the Grant Deed subject only to the following title matters each of which shall be included in the approved condition of title (“Approved Condition of Title”):
(a) a lien to secure payment of general and special real property taxes and assessments, not delinquent;
(b) the lien of supplemental taxes assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code arising in connection with the transaction contemplated by this Agreement and covering periods following Closing;
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(c) matters affecting the condition of title created pursuant to the terms of this Agreement or by or with the written consent of Purchaser; (d) all exceptions which are disclosed by the Title Commitment, excepting any monetary liens (other than as set forth in Section 4.2(a) and (b) above) which are to be removed by Seller prior to the Closing;
(e) all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relative to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Property; (f) all matters required by the City for the Project, which may include, at the direction of the City in its sole discretion, a Declaration of Construction Covenants in substantially similar form as attached hereto as Exhibit “D” (the “Declaration of Construction Covenants”), and a Maintenance Agreement in substantially similar form as attached hereto as Exhibit “E” (the “Maintenance Agreement”) with regards to the Purchaser Improvements (defined in Section 7.5 below);
(g) th e Grant Deed in substantially similar form as attached hereto as Exhibit “B” (the “Grant Deed”);
(h) all matters arising in connection with either obtaining all necessary approvals, entitlements and permits relating to the creation of the Property into one or more legal parcels or to the development of the Property and any other matters expressly provided for in this Agreement; and
(i) the Development Agreement dated December 13, 2016, recorded as Document No. 2017 -0116096 of Official Records of San Bernardino County, California, (the “Development Agreement”) as amended by that certain DA Amendment referred to herein.
4.3. Title Policy. Title shall be evidenced by the willingness of Title Company to issue its standard coverage ALTA Owner ’s Form Policy of Title Insurance, subject to the Approved Condition of Title, in the amount of the Purchase Price showing title to the Property vested in Purchaser (the “Title Policy”), and Purchaser, may, at its option and expense, request an extended coverage ALTA Owner’s Form Policy of Title Insurance (the “ Extended Policy”) provided that the issuance of said Extended Policy does not delay the Closing, and any additional costs, including, but not limited to, title and endorsement fees and ALTA survey fees incurred in connection with the issuance of such Extended Policy shall be Purchaser’s sole responsibility. The issuance by the Title Company of the Title Policy in favor of Purchaser, insuring fee title to the Property to Purchaser in the amount of the Purchase Price subject only to the Approved Condition of Title, shall be conclusive evidence that Seller has complied with any obligation, express or implied, to convey good and marketable title to the Property to Purchaser.
4.4. T
itle Review Period . Purchaser hereby acknowledges and agrees that, as of the Effective Date, Purchaser has approved the condition of title.
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ARTICLE 5
DUE DILIGENCE/INSPECTION
5.1. Due Diligence . Purchaser has previously approved the Property as suitable for its needs and shall have no right to terminate this Agreement for any reasons related to the results of any inspections conducted by Buyer under Section 5.2 below or otherwise related to the physical condition of the Property or its feasibility for the Project.
5.2. I nspection Rights .
(a) Purchaser shall have access to the Property and shall have the right to perform Purchaser ’s physical inspection of the Property and to undertake any engineering, environmental, soils or other studies of the Property immediately after the opening of escrow, provided that Purchaser gives Seller not less than twenty-four (24) hours prior notice of its intended inspection(s), which notice may be provided by e-mail. Purchaser’s physical inspection of and/or testing on the Property shall be conducted by Purchaser, Purchaser ’s Representatives, or authorized agents during normal business hours at times mutually acceptable to Purchaser and Seller. No invasive testing or boring shall be done (except for boring reasonably required for a standard geotechnical investigation and report) without prior written notification to Seller and Seller’s written permission of the same (not to be unreasonably withheld). Purchaser shall use care and consideration in connection with any of its inspections or tests and Seller shall have the right to be present during any inspection of the Property by Purchaser or its agents. Purchaser shall, at its sole cost and expense, remove from the Property any and all wastes or drill cuttings generated from its activities and restore the Property to as near as reasonably possible to the condition as it existed immediately prior to Purchaser ’s entry. Purchaser agrees that any reports generated by Purchaser, Purchaser’s Representatives, or Purchaser’s authorized agents, after the Effective Date of this Agreement, in connection with Purchaser’s physical inspection of the Property, including, but not limited to, any Phase I or Phase II environmental site assessment, shall remain in draft form and will not be finalized until Purchaser has provided copies of all such draft reports to Seller, and Seller has had a reasonable opportunity (not to exceed five (5) business days from the date of Purchaser’s delivery of such draft reports) to review and provide comments to such draft reports.
Purchaser agrees to cooperate with Seller to cause Seller’s comments to be included in such reports prior to each report being finalized without any cost to Seller provided that Purchaser shall not be obligated to cause any report to be changed in a manner that is disapproved by Purchaser, the party preparing the report, or both Purchaser and the party preparing the report. The terms of this Section
5.2(a) shall survive the Closing or termination of this Agreement. (b) Purchaser shall protect, indemnify, defend (with counsel reasonably acceptable to Seller) and hold the Property, LHR, SARDA, and the City, and their respective officers, directors, shareholders, participants, partners, affiliates, employees, representative s, invitees, agents and contractors free and harmless from and against any and all claims, damages, liens, stop notices, liabilities, losses, costs and expenses, including reasonable attorneys’ fees and court costs (collectively, “ Claims and Liabilities ”), resulting from Purchaser ’s inspection and testing of the Property, including, without limitation, repairing any and all damages to any portion of the Property, arising out of or related (directly or indirectly) to Purchaser ’s conducting such inspections, surveys, tests, and studies. Purchaser ’s indemnification obligations set forth herein (a) shall survive the Closing and shall not be merged with the Grant Deed, (b) shall survive the
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termination of this Agreement and escrow prior to the Closing and (c) shall not be subject to the limitation of remedies described in Section 12.2 of this Agreement. Notwithstanding anything in this Agreement to the contrary, Purchaser ’s indemnification obligations under this Agreement shall not include or extend to (i) any Claims and Liabilities to the extent concerning pre -existing conditions (including, without limitation, Hazardous Materials, as defined in Section 6.1 below), except to the extent such pre -existing conditions are exacerbated by Purchaser, (ii) the consequences of Purchaser’s mere discovery of any pre-existing adverse physical condition at the Property, and (iii) any speculative, consequential, exemplary or punitive damages. (c) Prior to any entry onto the Property by Purchaser or its agents or contractors, Purchaser or its agents or contractors shall deliver to Seller an original endorsement to Purchaser’s commercial general liability policy, or other evidence acceptable to Seller, evidencing that Purchaser (or the applicable agent or contractor) shall have in full force and effect during the term of this Agreement a policy of general liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, covering liabilities for personal injury, death and property damage arising out of activities on or about the Property by Purchaser and its agents and contractors, which policy shall: (i) include Seller and the City as additional insureds pursuant to a valid endorsement; (ii) be underwritten by an insurance company and having a Best’s rating of A- /VII or better; (iii) include contractual liability coverage with respect to Purchaser ’s indemnification obligations hereunder; (iv) not be cancelable or subject to amendment w ithout at least ten (10) days’ advance written notice to Seller; (v) be primary and non-contributing with any other insurance available to Seller; and (vi) contain a full waiver of subrogation clause.
ARTICLE 6
AS-IS/WAIVER/RELEASE
6.1. AS-IS. Without in any manner li miting Seller ’s representations and warranties expressly set forth in Section 7.1 of this Agreement, Purchaser acknowledges and agrees that it is purchasing the Property based solely upon Purchaser’s inspection and investigation of the Property and all documents related thereto, or its opportunity to do so, and Purchaser is purchasing the Property in an “ AS IS, WHERE IS ” condition, without relying upon any representations or warranties, express, implied or statutory, of any kind except for the Seller repres entations warranties, covenants and obligations expressly set forth in this Agreement set forth herein including without limitation Section 6.3 below.
Without limiting the above or any of Seller ’s representations warranties, covenants and obligations expre ssly set forth in this Agreement set forth herein including without limitation Section 6.3 below, Purchaser acknowledges that neither Seller, except as expressly set forth in this Agreement, including without limitation Section 7.1, nor the City, nor any other party, has made any representations or warranties, express or implied, on which Purchaser is relying as to any matters, directly or indirectly, concerning the Property including, but not limited to, the land, the square footage of the Property, improvements and infrastructure, if any, development rights and exactions, expenses associated with the Property, taxes, assessments, bonds, permissible uses, title exceptions, water or water rights, topography, utilities, zoning of the Property, soil, subsoil, the purposes for which the Property is to be used, drainage, environmental or building laws, rules or regulations, toxic waste or Hazardous Materials or any other matters affecting or relating to the Property. Purchaser hereby expressly acknowledges that no such representations have been made.
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Without in any manner limiting any of Seller ’s representations, warranties, covenants and obligations expressly set forth in this Agreement, the Grant Deed, or any of the documents delivered by Seller pursuant to Sect ion 10.2 below, closing of the purchase of the Property by Purchaser hereunder shall be conclusive evidence that (1) Purchaser has fully and completely inspected (or has caused to be fully and completely inspected) the Property, and (2) Purchaser accepts t he Property as being in good and satisfactory condition and suitable for Purchaser ’s purposes, and (3) the Property fully complies with Seller ’s covenants and obligations hereunder except for any covenants and obligations of Seller which this Agreement expressly provides are to be performed in whole or in part after Closing.
Without limiting the generality of the foregoing, Purchaser hereby expressly waives, r
eleases and relinquishes any and all claims, causes of action, rights and remedies Purchaser may now or hereafter have against Seller or the City, and their respective affiliates, directors, officers, attorneys, employees, partners, shareholders and agents (but without limiting Purchaser ’s rights under Section 7.2(b) below or any of Seller ’s representations, warranties, covenants and obligations expressly set forth in this Agreement, including without limitation obligations of Seller which this Agreement expressly provides are to be performed in whole or in part after Closing), whether known or unknown, under any Environmental Law, or common law, in equity or otherwise, with respect to (1) any past, present or future presence or existence of Hazardous Materials on, under or about the Property (including, without limitation, in the groundwater underlying the Property) or (2) any past, present or future violations of any Environmental Laws.
For the purposes of this Agreement, the term “Environmental Laws” means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental authorizations, or any other requirements of governmental authorities, as may presently exist or as may be amended or supplemented, or hereafter enacted or promulgated, relating to the presence, release, generation, use, handling, treatment, storage, transportation or disposal of Hazardous Materials, or the protection of the environment or human, plant or animal health, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C.A. § 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. § 11001 et seq.), the Porter- Cologne Water Quality Control Act (Cal. Wat. Code § 13020 et seq.), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the Hazardous Waste Control Act (Cal. Health & Safe Code § 25100 et seq.), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the Carpenter - Presley-Tanner Hazardous Substances Account Act (Cal. Health & Safety Code, § 25300 et seq.). As used herein, the term “ Hazardous Material(s) ” includes, without limitation, any hazardous or toxic material, substance, irritant, chemical or waste, which is (A) defined, classified, designated, listed or otherwise considered under any Environmental Law as a “ hazardous waste, ” “ hazardous substance, ” “ hazardous material, ” “ extremely hazardous waste,” “acutely hazardous waste,” “radioactive waste,” “biohazardous waste,” “pollutant,” “toxic pollutant,” “contaminant,” “restricted hazardous waste,” “infectious waste,” “toxic substance,” or any other term or expression intended to define, list, regulate or classify substances by reason of properties harmful to health, safety or the indoor or outdoor environment, (B) toxic, ignitable,
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corrosive, reactive, explosive, flammable, infectious, radioactive, carcinogenic or mutagenic, and which is or becomes regulated by any local, state or federal governmental authority, (C) asbestos, (D) an oil, petroleum, petroleum based product or petroleum additive, derived substance or breakdown product, (E) urea formaldehyde foam insulation, (F) polychlorinated biphenyls (PCBs), (G) freon and other chlorofluorocarbons, (H) any drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources, and (I) lead-based paint.
Seller has disclosed to Purchaser in the Property Documents that subsurface water within the real property covered by the Specific Plan , including within the boundary lines of the Property, may be contaminated with Hazardous Substances including perchlorate, and that certain remediation is occurring with respect thereto (“Pre-Existing Environmental Matter”). Purchaser shall perform and rely solely upon its own investigation concerning the Pre -Existing Environmental Matter and its intended use of the Property, the Property’s fitness therefor, and the availability of such intended use under applicable statutes, ordinances, and regulations. Purchaser further acknowledges and agrees that Seller ’s cooperation with Purchaser in connection with Purchaser’s review of the Property, whether by providing the Title Commitment, the environmental reports and other documents, or permitting inspection of the Property, shall not be construed as any warranty or representation, express or implied, of any kind with respect to the Property, or with respect to the accuracy, completeness, or relevancy of any such documents.
6.2. W
aiver and Release by Purchaser. Without limiting Purchaser ’s rights under this Agreement and except for the Seller representations and the provisions of any closing documents executed by Seller pursuant hereto and subject to Section 6.3 below, Purchaser expressly waives any rights or benefits available to it with respect to the foregoing releases under any provision of applicable law that generally provides that a general release does not extend to claims that the creditor does not know of or suspect to exist in his or her favor at the time the release is agreed to, which, if known to such creditor, would materially affect a settlement. By execution of this Agreement, Purchaser acknowledges that it fully understands the foregoing, and with this understanding, nonetheless elects to and does assume all risk for claims known or unknown, described in this ARTICLE 6 . Without limiting the generality of the foregoing, Purchaser acknowledges t hat it has been advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542 (“Section 1542”).
PURCHASER SPECIFICALLY WAIVES THE PROVISIONS OF SECTION 1542 WHICH PROVIDES AS FOLLOWS:
“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.”
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BY INITIALING BELOW, PURCHASER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES.
ACCEPTED AND AGREED TO:
__________________________
Purchaser’s Initials
6.3. Survival. The provisions of this ARTICLE 6 shall survive the Closing (or any earlier termination of this Agreement) and the recordation of the Grant Deed and shall not be deemed merged into the Grant Deed upon its recordation.
ARTICLE 7
RE
PRESENTATIONS, WARRANTIES AND COVENANTS
7.1. Representations and Warranties of Seller. Seller represents and warrants to Purchaser that the following are true and accurate in all material respects to Seller’s current actual knowledge as of the Effective Date of this Agreement and, subject to Seller ’s Certificate (hereinafter defined), shall be true and accurate in all material respects to Seller ’s current actual knowledge at the time of Closing.
(a) A uthorization . Except as otherwise provided in this Agreement, Seller has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by Seller pursuant hereto, and all required action and approvals therefor have been duly taken and obtained. The individuals signing this Agreement and all other documents executed or to be executed pursuant to this Agreement on behalf of Seller are and shall be duly authorized to sign the same on Seller’s behalf and to bind Seller thereto. This Agreement and all documents to be executed pursuant hereto by Seller are and shall be binding upon and enforceable against Seller in accordance with their respective terms, and the transaction contemplated hereby will not result in a breach of, or constitute a default or permit acceleration of maturity under, any indenture, mortgage, deed of trust, loan agreement or other agreement to which Seller or the Property is subject or by which Seller or the Property is bound. (b) B
ankruptcy . Seller has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Seller’s creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of Seller’s assets; (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets; (v) admitted in writing its inability to pay its debts as they come due; or (vi) made an offer of settlement, extension or composition to its creditors generally. (c) L
itigation . There are no claims, causes of action or other litigation or proceedings pending, or contemplated or threatened, with respect to the ownership, operation or environmental condition of the Property or any part thereof (including disputes with mortgagees, governmental authorities, utility companies, contractors, adjoining land owners or suppliers of goods or services) or Seller ’s ability to perform its covenants and obligations under this Agreement.
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(d) Violations. Except: (i) as disclosed in any environmental reports delivered by Seller to Purchaser pursuant to Section 4.1; and (ii) for any matters disclosed elsewhere in this Agreement, there are no violations of any health, safety, pollution, environmental, zoning or other laws, ordinances, rules or regulations with respect to the Property, which have not been heretofore remediated to the satisfaction of applicable governmental entities. (e) C
ondemnation. There is no existing, pending or threatened condemnation of any part of the Property.
(f) No n -Foreign Status. Seller is not a “ foreign person” as contemplated by Section 1445 of the Internal Revenue Code. Neither Seller nor any of its affiliates is a person or entity with whom U.S. persons or entities are restricted or prohibited from doing business under any laws, orders, statutes, regulations or other governmental action relating to terrorism or money laundering (including Executive Order No. 13224 effective September 24, 2001, and regulations of the Office of Foreign Asset Control of the Department of the Treasury) (each, a “ Blocked Person”), and neither Seller nor any of its affiliates engages in any dealings or transactions with any Blocked Person or is otherwise associated with a Blocked Person. (g) No Notices. Seller has received no notice that the Property is located within an area that has been designated by the Federal Emergency Management Agency, the Army Corps of Engineers or any other governmental body as located in a flood plain area, a “ wetlands” area, or a conservation area.
(h) P
ossession and/or Occupancy . There are no leases, rights of first refusal, or other agreements relating to the right of possession and/or occupancy of the Property by any person or entity, except for matters of record, the rights and interests of the City and the rights and interests of LHR pursuant to the City Contract. Seller shall cause the Property to be conveyed to Seller free and clear of any such interests.
(i) L
iens; Contracts . The Property is not subject to any mechanics ’ liens and there are no management agreements, maintenance or service contracts, non -governmental use restrictions or other agreements relating to the Property that are unrecorded and that would be binding on the Property or Purchaser.
The terms “ S
eller’s knowledge ,” “ Seller’s current actual knowledge ,” and terms of similar import shall mean the actual current (and not constructive) knowledge of only Bryan Goodman and Glen Crosby without any duty of inquiry or investigation of any kind or nature whatsoever. Any reference to Seller’s receipt of notice shall mean notice actually received only by Bryan Goodman or Glen Crosby. The individuals named in this paragraph shall not have any personal liability in connection with any representations or warranties of Seller.
7.2. C
ontinuing Validity of Seller ’s Representations and Warranties. (a) Seller shall execute and deliver to Purchaser at Closing a written certification (“Seller’s Certificate”) to Purchaser disclosing, where applicable, the extent to which Seller cannot remake the representations and warranties set forth in Section 7.1 of this Agreement as of the Closing Date. The obligation of Purchaser to close the transaction contemplated herein is subject to all of the representations and warranties of Sel ler contained in Section 7.1 of this
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Agreement being true and correct in all material respects on the Closing Date. If any representation or warranty of Seller contained in Section 7.1 of this Agreement is actually known by Purchaser to be untrue or incorrect in any material respect on the Closing Date, Purchaser must disclose such knowledge in writing to Seller on or before the Closing Date ( “Purchaser’s Closing Notice”). If (i) Seller discloses in Seller ’s Certificate th at it cannot remake any one or more of the representations or warranties contained in Section 7.1 of this Agreement or (ii) Purchaser discloses that any one or more of such representations or warranties are untrue or incorrect in any material respect in Purchaser’s Closing Notice, then Purchaser, as its sole and exclusive remedy for such disclosure, may terminate this Agreement and receive the return of its Deposit then held in escrow, and Title Company shall return such Deposit accordingly. Upon such termination and the return to Purchaser of its Deposit, neither Seller nor Purchaser shall thereafter have any further right or obligation under this Agreement unless expressly provided otherwise in this Agreement. However, none of the representations, warranties, or covenants made by Seller in this Agreement shall continue to be effective for any reason whatsoever upon the termination of this Agreement prior to Closing.(b) Notwithstanding anything to the contrary in this Agreement, if the representations, and warranties are found after the Closing to have been untrue or incorrect in any material respect when made or if they became untrue or incorrect on account of the negligence or willful misconduct or willful breach of this Agreement by Seller, Purchaser may pursue a claim for actual damages against Seller by filing a lawsuit within twelve (12) months after the Closing Date, subject to the limitation of remedies in Section 12.3 of this Agreement. Moreover, none of the limitations on Purchaser’s remedies set forth in Section 7.2(a) of this Agreement shall apply in the event of any breach by Seller of any covenant made in Section 7.1 of this Agreement, which remedies shall be governed by Section 12.1 of this Agreement.
7.3. Representations and Warranties of Purchaser. Purchaser represents, and warrants to Seller that the following are true and accurate in all material respects, each of which is material and relied upon by Seller in making its determination to enter into this Agreement:
(a) A
uthorization . Except as otherwise provided in this Agreement, Purchaser has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by Purchaser pursuant hereto, and all requir ed action and approvals therefor have been duly taken and obtained. The individuals signing this Agreement and all other documents executed or to be executed pursuant to this Agreement on behalf of Purchaser are and shall be duly authorized to sign the same on Purchaser’s behalf and to bind Purchaser thereto. This Agreement and all documents to be executed pursuant hereto by Purchaser are and shall be binding upon and enforceable against Purchaser in accordance with their respective terms, and, to Purchaser’s current actual knowledge, the transaction contemplated hereby will not result in a breach of, or constitute a default or permit acceleration of maturity under, any indenture, mortgage, deed of trust, loan agreement or other agreement to which Purchaser is subject or by which Purchaser is bound.
(b) B
ankruptcy . Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Purchaser ’s creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of Purchaser ’s assets; (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Purchaser’s assets; (v) admitted in writing its inability
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to pay its debts as they come due; or (vi) made an offer of settlement, extension or composition to its creditors generally.
7.4. Continuing Validity of Purchaser ’s Representations and Warranties .
Purchaser shall notify Seller of any change in the repr esentations or warranties after the Closing.
Notwithstanding anything to the contrary in this Agreement, if the representations and warranties are found after the Closing to have been untrue or incorrect in any material respect when made or remade, Seller may pursue a claim for actual damages against Purchaser by filing a lawsuit within one (1) year after the Closing Date, subject to the limitation of remedies in Section 12.3 of this Agreement. The obligation of Seller to close the transaction contemplated hereby is subject to all of the representations and warranties of Purchaser contained in Section 7.3 of this Agreement being true and correct in all material respects on the Closing Date. If any representation or warranty of Purchaser contained in Section 7.3 of this Agreement is found to be untrue or incorrect in any material respect on the Closing Date, Seller may exercise the rights and remedies provided in Section 12.2 below.
7.5. Project Approvals and Improvements.
(a) Seller Project Approvals. From and after the Effective Date, LHR agrees to submit applications for the SPA and DA Amendment and to take all actions reasonably required to obtain City approval of the SPA and DA Amendment and to obtain the CEQA Approvals which will provide for development of the Project substantially consistent with the Project Plans 1 by the
Closing Date (collectively the “ Seller Project Approvals”). Seller shall provide Purchaser with copies of all final applications and submissions related to the Seller Project Approvals and to keep Purchaser generally apprised of all public hearing and meeting dates and any material developments related to the Seller Project Approvals.
(b) P
urchaser Project Approvals and Improvements . Except for the Seller Project Approvals, Purchaser, at its sole cost and expense, shall be responsible for obtaining all entitlements, approvals, consents, and permits relating to the development, construction, use, and operation of the Project (collectively the “Purchaser Project Approvals”), including, without limitation, the Precise Plan of Design Approval ( “PPD Approval ”). The Purchaser Project Approvals shall include any required governmental approvals (such as preliminary and final maps and/or lot-line adjustments) needed to adjust the final Property-line boundaries in accordance with Purchaser’s planned development plans. It is intended by the Parties that the PPD Approval be considered by the City for approval together and concurrent with the Seller Project Approvals so Purchaser shall cooperate with LHR to process its application for the PPD Approval concurrent with the Seller Project Approvals. The Project is intended to be generally consistent with the Project Plans . Further, Purchaser shall be responsible for constructing and completing all improvements necessary to complete the Project including without limitation all improvements required by the City or other applicable governmental authorities (including without limitation, all
1 The Seller Project Approvals will allow for the development of either of the Project Plans by Buyer. Buyer will decide in its sole discretion after City approval of the Seller Project Approvals whether to develop the Project with 2-Buildings or 3-Buildings in accordance with the approved Project Plans.
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grading work) (the “ Purchaser Improvements ”) and the payment of all impact fees for the Project. Seller will not be responsible for cost overruns or unforeseen expenditures that Purchaser may incur in its development of the Project. Without limiting the foregoing, Purchaser acknowledges that it received and reviewed, preliminary engineering and cost estimates for the full-width improvements to Miro Way adjacent to the Property to be constructed by Purchaser (the “Miro Way Improvements”) [ and preliminary grading plans for the Project on file at the City and agrees that the Purchase Price shall not be reduced, nor shall Seller have any liability to Purchaser, should the actual cost of that work exceed the cost estimates. Purchaser shall be eligible to receive fee credits or reimbursements for any costs incurred by Purchaser to construct the northern half of the Miro Way Improvements in accordance with existing City regulations and policies.
7.6. Storm Waters . Purchaser shall assume operational control over storm water compliance for the Property, develop its own Comprehensive SWPPP, and file its own Notice of Intent for coverage under the EPA General Permit or analogous state perm it. Purchaser shall indemnify, defend and hold harmless Seller, its affiliates, and their respective members, officers, directors, shareholders, employees, and authorized agents from any claims, damages, losses, liability, costs or expenses (including reasonable attorneys ’ fees) made against or suffered by Seller by reason of Purchaser ’s failure to comply with this Section 7.6, including without limitation, any NPDES violations caused by Purchaser, its agents, employees or contractors. The terms and provisions of this Section 7.6 shall survive the Closing.
7.7. Purchaser’s Work. Purchaser, at its sole cost and expense, shall be responsible for the installation and maintenance of all landscaping to be installed on the Property outside the public right-of-way and within all landscape easements affecting the Property. The terms and provisions of this Section 7.7 shall survive the Closing.
7.8. Compliance with Map Act . At or prior to Closing, Seller shall cause the City to issue and record a Certificate of Compliance ( “Certificate of Compliance ”) certifying that the Property is a legal parcel in compliance with the California Subdivision Map Act ( “SMA”); provided, however, that such Certificate of Compliance shall not be requ ired if a parcel map is recorded in the Official Records of San Bernardino County prior to the Closing.
7.9. No Contest . Purchaser acknowledges that LHR owns most of the remaining land to be developed within the Specific Plan and agrees to not oppose or otherw ise interfere with the development of that remaining land if developed in substantial conformance with the Specific Plan and SPA. This covenant shall survive the Closing.
ARTICLE 8
CO
NDEMNATION
8.1. Condemnation. If a petition to condemn any portion of the Property, any interest therein or any access thereto is filed prior to Closing, Seller will immediately provide Purchaser with notice and a copy thereof. If the petition describes more than five percent (5%) of the Property as the subject of the taking and Purchaser reasonably concludes that the taking would render the portion and/or interests remaining unsuitable for the development or business operation thereon contemplated by Purchaser, and if Purchaser so notifies Seller in writing within thirty (30) days
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after receipt of such notice and petition from Seller, then this Agreement will terminate and the Deposit will promptly be refunded to Purchaser. Upon termination, both parties will be released from all duties and obligations under this Agreement, except as otherwise provided in this Agreement. If this Agreement is not terminated pursuant to the preceding sentence, the Purchase Price will not be affected, it being agreed that if the award is paid prior to Closing, such amount will be held in escrow and delivered to Purchaser at Closing, and if the award has not been paid before Closing, then at Closing Seller will assign to Purchaser all of its right, title and interest with respect to such award and will further execute any other instrument requested by Purchaser to assure that such award is paid to Purchaser. If Purchaser does not terminate this Agreement, it will have the right to contest the condemnation of the Property and/or the award resulting therefrom.
Seller will not agree to or accept any compromise or condemnation award without obtaining Purchaser’s prior written approval, which approval shall be at Purchaser’s sole discretion.
ARTICLE 9
CONDITIONS TO CLOSING
9.1. Conditions to Closing.
(a) Seller’s Conditions. Seller’s obligation to close the sale and purchase of the Property at the Closing is subject to the satisfaction of the following conditions on or before the Closing Date:
(i) C
ompliance with Map Act. Seller shall cause the Property to be conveyed to Purchaser on the Closing Date in compliance with the SMA. (ii) P urchaser Representations and Warranties . Subject to Section 7.2 of this Agreement, all of the representations and warranties of Purchaser contained in this Agreement are true and correct in all material respects on the Closing Date. (iii) S
PA/DA Amendment/CEQA Approvals . City approval of the Seller Project Approvals in accordance with Recital D and Section 7.5(a) which provide for development of the Project substantially consistent with the Project Plans and the expiration of the 30-day judicial appeal period for the CEQA Approvals without any challenge filed. . (iv) O
ther Agency Approvals. San Bernardino Countywide Oversight Board approval of this Agreement and California Department of Finance approval of this Agreement.
(v) T
ruth and Accuracy of Representations and Warranties . As to Seller’s obligation to close, the representations and warranties made by Purchaser in Section 7.3 hereof, shall be true and correct in all material respects on the Closing Date. (vi) P urchaser ’s Delivery. Purchaser shall deliver each and every item listed in Section 10.3 to Seller, directly or through the Title Company.
If one or more of the conditions enumerated above are not found to exist to the satisfaction of Seller in its reasonable discretion for any reason other than the willful or negligent actions or omissions of Seller and its agents, employees or contractors, then Seller may, at Seller ’s sole
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option, but subject to Section 12.2 to the extent applicable, terminate this Agreement by giving written notice thereof to Purchaser at any time prior to Closing (and the Closing shall be extended, if necessary, to accommodate the Purchaser’s Notice and Cure Period as defined in Section 12.2).
Seller thereafter shall be entitled to the remedies described in Section 12.2 to the extent applicable.
The conditions set forth in this Section are for Seller’s sole benefit, and Seller may, in its sole and absolute discretion, waive (conditionally or absolutely) the fulfillment of one or more of the conditions or any part thereof. In the event Seller terminates this Agreement due to items (i), (ii) or (iii) above not being satisfied for reasons other than the default of Purchaser, the Deposit shall be returned to Purchaser. Upon Seller’s termination of this Agreement pursuant to this subsection, both parties will be released from all duties and obligations under this Agreement, except as otherwise provided in this Agreement.
(b) P
urchaser’ s Conditions. Purchaser ’s obligation to close the sale and purchase of the Property at the Closing is subject to the satisfaction of the following conditions on or before the Closing Date:
(i) C
onveyance of Title . In accordance with Section 4.2, the Property will be conveyed to Purchaser in the condition required herein, subject only to the Approved Condition of Title as set forth in such Section 4.2.
(ii) S eller Representations and Warranties . Subject to Section 7.2 of this Agreement, all of the representations and warranties of Seller contained in this Agreement are true and correct in all material respects on the Closing Date. (iii) S
eller Performance. Seller is ready, willing and able to deliver the Grant Deed as required herein.
(iv) C ompliance with Map Act . The Property shall be conveyed to Purchaser on the Closing Date in compliance with the SMA. (v) S PA/DA Amendment/CEQA Approvals . City approval of the Seller Project Approvals in accordance with Recital D and Section 7.5 (a) which provide for development of the Project s ubstantially consistent with the Project Plans and the expiration of the 30-day judicial appeal period for the CEQA Approvals without any challenge filed.. (vi) O
ther Agency Approvals. San Bernardino Countywide Oversight Board approval of this Agreement and California Department of Finance approval of this Agreement.
(vii) S
eller ’s Delivery. Seller shall deliver each and every item listed in Section 10.2 to Purchaser, directly or through the Title Company. (viii) T itle Policy . Title Company shall have committed to issue t o Purchaser the Title Policy as described in this Agreement. (ix) No New Laws or Moratoria . On the Closing, there shall be no State law in effect adopted after the Effective Date, or any governmental moratorium in effect, whether
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temporary or permanent, that will prohibit or delay (for more than six months) Purchaser ’s development of the Project.
If one or more of the conditions enumerated above in this Section 9.1(b) are not timely satisfied for reasons other than the default of Purchaser, then Purchaser may terminate this Agreement and, in such event, the Deposit shall be returned to Purchaser in accordance with Section 3.2 above. If one or more of the conditions enumerated above in this Section 9.1(b) are not timely satisfied due to Seller ’s uncured breach or default, Purchaser may enforce this Agreement pursuant to Section 12.1. The conditions set forth in this Section are for Purchaser’s sole benefit, and Purchaser may, in its sole discretion waive (conditionally or absolutely) the fulfillment of one or more of the conditions or any part thereof. Upon Purchaser ’s termination of this Agreement pursuant to this subsection, both parties will be released from all duties and obligations under this Agreement, except as otherwise provided in this Agreement.
ARTICLE 10
CL
OSING
10.1. Time and Place. The sale and purchase of the Property shall be consummated at a closing (the “Closing”) to be held at the offices of the Title Company. The Closing shall be held on a date (the “ Closing Date”) which is the 3 rd business day after the last of the conditions set forth in Section 9.1 of this Agreement for the Closing and for the transfer of the Property have been satisfied or waived by Seller or Purchaser as applicable. The Closing Date shall occur on a date that is no later than eighteen (18) months after the Effective Date ( “Outside Date”). If the conditions in Sections 9.1(a)(iii) and (iv) or 9.1(b)(v) and (vi) have not been satisfied or waived by Seller or Purchaser , respectively, by the Outside Date (the “City/Agency Conditions”), the Outside Date may be extended by either Seller (in the case of Sections 9.1(a)(iii) and (iv)) or Purchaser (in the case of Sections 9.1(b)(v) and (vi)) for up to six (6) months until those City/Agency Conditions are satisfied or waived (the “ Extension”) by delivery of written notice from the party electing to extend to the other party on or before the scheduled Closing Date. If the Closing fails to occur by the Outside Date (or Extension) by reason of the failure of either of the City/Agency Conditions, then either Party may terminate this Agreement by notice to the other Party and the Escrow Agent, whereupon the Deposit shall be immediately refunded to Purchaser and Purchaser shall be entitled to recover from Seller its Diligence and Development Costs (as defined below) to a maximum of $250,000.
10.2. I
tems to be Delivered by Seller at the Closing . Seller covenants that, at least one (1) business day prior to the Closing, except as otherwise provided below, Seller shall deliver or cause to be delivered to Escrow Agent (as defined below), at Seller’s sole cost and expense (except as otherwise provided in this Section 10.2), each of the following items:
(a) One (1) original counterpart of the Grant Deed duly executed and acknowledged by Seller.
(b) To the extent required by the City, one (1) original counterpart of the Declaration of Construction Covenants duly executed and acknowledged by the City and by Seller.
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(c) To the extent required by the City, one (1) original counterpart of the Maintenance Agreement duly executed and acknowledged by the City. (d) The Seller’s Certificate, as provided in Section 7.2(a). (e) A Non-Foreign Affidavit and a California Form 593-C. (f) Such funds, if any, as may be required of Seller to pay closing costs or charges properly allocable to Seller under this Agreement, or an authorization to the T itle Company to deduct such amounts from the Purchase Price proceeds. (g) Seller’s duly executed and acknowledged closing statement prepared by the Title Company.
(h) Such conveyancing or transfer tax forms or returns, if any, as are required to be delivered or signed by Seller by applicable state and local law in connection with the conveyance of the Property, executed by Seller.
(i) Evidence of the existence, organization and authority of Seller and of the authority of the persons executing documents on behalf of Seller reasonably satisfactory to the underwriter for the Title Policy.
(j) The Natural Hazards Disclosure Report.
(k) The Certificate of Compliance in accordance with Section 7.8 above. (l) Any other document contemplated to be signed by Seller and created pursuant to this Agreement or any other standard document reasonably required by the Title Company in connection with the Closing.
10.3. Items to be Delivered by Purchaser at the Closing . Purchaser covenants that, at least one (1) business day prior to the Closing, Purchaser shall deliver or cause to be delivered to Escrow Agent, at Purchaser’s sole cost and expense:
(a) Purchaser’s duly executed and acknowledged closing statement prepared by the Title Company.
(b) The Purchase Price (subject to the credits for the Deposi t) by wire transfer of Immediately Available Funds.
(c) One (1) original counterpart of the Grant Deed duly executed and acknowledged by Purchaser.
(d) To the extent required by the City, one (1) original counterpart of the Declaration of Construction Covenants duly executed and acknowledged by Purchaser (unless waived by the City in writing).
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(e) To the extent required by the City, one (1) original counterpart of the Maintenance Agreement duly executed and acknowledged by Purchaser. (f) If required by the City, one (1) original counterpart of the Covenant and Agreement to Hold Property as One Parcel (in a form to be provided by the City) duly executed and acknowledged by Purchaser.
(g) Any other document contemplated to be signed by Purchaser and created pursuant to this Agreement or any other standard document reasonably required by the Title Company in connection with the Closing.
10.4. Title Company Directives at Closing. After the Title Company has received all of the items to be deposited with it, and when the Title Company is in a position to issue the Title Policy, the Title Company will:
(a) Record any documents clearing title and then record firstly the Certificate of Compliance, secondly the Grant Deed, (and if required by the City, the Declaration of Construction Covenants, and the Maintenance Agreement), in that order and without intervening documents, instructing the Recorder’s Office to return the recorded documents to Purchaser; (b) Record any other instruments executed by the parties or either of them that are contemplated by this Agreement to be placed of record; (c) Issue to Purchaser a marked -up Title Commitment obligating the Title Company to issue the Title Policy to Purchaser;
(d) Charge Purchaser for (i) if recorded, one -half of the cost of recording the Declaration of Construction Covenants, and the Maintenance Agreement, (ii) one -half of the closing fee, if any, (iii) the cost of issuing any endorsements to the Title Policy requested by Purchaser, including any endorsement deleting the standard exceptions, (iv) any additional costs of issuing the Extended Policy, and (v) any additive cost of the Title Policy premium to increase the policy amount above the Purchase Price;
(e) Subject to Section 4.1 above, charge Seller for the cost of issuing the Title Commitment and the standard coverage Title Policy in the amount of the Purchase Price; (f) Charge Seller for (i) the cost of recording the Grant Deed, (ii) the cost of all applicable documentary transfer, conveyance, revenue or similar taxes imposed by reason of the sale or conveyance of the Property, (iii) the cost of recording any documents cl earing title to the Property, (iv) if recorded, one -half of the cost of recording the Declaration of Construction Covenants, and the Maintenance Agreement, and (v) one-half of the closing fee; (g) Apportion the real estate taxes as provided in Section 10.7 below; (h) Prepare closing statements for Seller and Purchaser in accordance with the provisions of this Agreement (indicating deposits, credits and charges), including the allocation of real property taxes) and deliver the same, together with a disbursement of funds, to the appropriate party; and
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(i) Deliver the Title Policy to Purchaser as soon as reasonably practicable.
Any supplemental closing instructions given by either party will also be followed by the Title Company, provided they do not conflict with any instructions set forth herein or are consented to in writing by the other party.
10.5. Other Documents . Seller and Purchaser shall each sign and deliver such other documents, certifications and confirmations, in form reasonably acceptable to Seller and Purchaser, as may be reasonably required by Seller, Purchaser or the Title Company to fully effect and consummate the transactions contemplated hereby.
10.6. R
ecording of Documents . The Grant Deed and any other documents required to be recorded hereunder shall be recorded in the Official Records of San Bernardino County, California.
10.7. A
djustments and Prorations . At the Closing, real property taxes and assessments for the Property for the current calendar year shall be prorated as of the Closing Date, and Seller shall pay to Purchaser in cash or as a credit on the closing statement at the Closing, Seller ’s pro rata portion of such taxes and assessments. Seller’s pro rata portion of such taxes and assessments shall be based upon taxes and assessments actually assessed for the current calendar year or, if for any reason such taxes and assessments for the Property have not been actually assessed, such proration shall be based upon the amount of such taxes and assessments for the immediately preceding calendar year and later adjusted by cash settlement when actual taxes and assessments for the year of the Closing are assessed. Notwithstanding the foregoing, Seller, not Purchaser, will be responsible for all real property taxes attributable to any building improvements located on the Property at or prior to Closing (even if such building improvements remain on the Property at Closing). All pending and certified special assessments or fees, including interest or penalties due thereon, with respect to the Property on the Closing Date, whether due in total or in part, will be charged to Seller and will be paid in full by the Title Company concurrently with the recording of the Grant Deed, unless Purchaser agrees to take subject thereto in which case a credit for such amount will be made against the Purchase Price. All of the foregoing obligations will survive the Closing.
10.8. C
losing Costs .
(a) Seller’s Closing Costs. In addition to the closing costs to be paid by Seller as set forth in Section 10.4(f), Seller shall pay: (i) the cost of an ALTA Standard Coverage Owner’s Form Policy of Title Insurance; and (ii) Seller’s own attorneys’ fees. (b) P urchaser’ s Closing Costs. In addition to the closing costs to be paid by Purchaser as set forth in Section 10.4(d), Purchaser shall pay: (i) the cost of any mortgagee policy of title insurance required by Purchaser ’s lender, together with the cost of any title insurance endorsements ordered by Purchaser ’s lender; (ii) the cost of any applicable premium for an extended coverage ALTA Owner ’s Form Policy of Title Insurance; (iii) the cost of the ALTA survey or any additional or updated survey of the Property or any change to the ALTA survey; (iv) any costs incurred by Purchaser in connection with Purchaser ’s investigation of the Property pursuant to ARTICLE 5 and ARTICLE 6; and (v) Purchaser’s own attorneys’ fees.
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(c) Other Closing Costs. Except as otherwise provided herein, each party shall pay its share of all other closing costs that are normally paid by a seller or purchaser, respectively, in a transaction of this character in the City of Rialto, County of San Bernardino, California.
10.9. S urvival . The agreements as to payments, prorations, adjustments and indemnities in this ARTICLE 10 shall survive the Closing. In the event that any adjustments are to be made pursuant to this ARTICLE 10 after the Closing, then the party who is entitled to additional monies shall invoice the other party for such additional amounts as may be owing, and such amounts shall be paid within ten (10) days after receipt of the invoice.
ARTICLE 11
DI
STRIBUTION OF FUNDS AND DOCUMENTS
11.1. Escrow Agent . Seller and Purchaser, through their respective attorneys, shall establish an escrow with the Title Company as escrow agent ( “Escrow Agent”), through which the transactions contemplated hereby shall be closed. The escrow instructions shall be in a form customarily used by Escrow Agent with such special provisions added thereto as may be required to conform such escrow instructions to the provisions of this Agreement. If there are any conflicts between this Agreement and the escrow instructions as between Purchaser and Seller, then this Agreement shall control. This Agreement, together with any standard escrow instructions of Escrow Agent, shall constitute joint escrow instructions of Seller and Purchaser to Escrow Agent.
Escrow Agent, as the party responsible for closing the escrow, shall comply with: (i) the reporting requirements of Sect ion 6045(e) of the Internal Revenue Code, and the permanent regulations (Section 1.6045- 4) issued thereunder and made effective on January 1, 1991; and (ii) the withholding requirements, if applicable, of Section 18805(d) of the California Revenue and Taxation Code. With respect to the delivery of items at Closing, either party may satisfy its obligation to deliver or deposit an item to the other by delivering such item to Escrow Agent.
11.2. T
itle Company Obligations; Delivery of the Purchase Price . At Closing, Escrow Agent shall perform the obligations of the Title Company set forth in Section 10.4 and including delivering the Purchase Price (subject to offsets and adjustments as provided in this Agreement) to Seller, and the transaction shall not be considered closed until such obligations (other than delivery of the Title Policy) have been satisfied.
11.3. O
ther Monetary Disbursements . Escrow Agent shall, at the Closing, deliver (through check or wire transfer): (i) to Seller, all sums and any prorations or other credits to which Seller is entitled; and (ii) to Purchaser, any excess funds delivered to Escrow Agent by Purchaser, and all sums and any prorations or other credits to which Purchaser is entitled.
11.4. R
ecorded Documents . Escrow Agent shall cause the Grant Deed and any other documents required to be recorded hereunder to be recorded with the appropriate County recorder and, after recording, return such Grant Deed and other documents to the grantee, beneficiary or person acquiring rights under said document or for whose benefit said document was required.
11.5. D
ocuments to Purchaser. Escrow Agent shall at the Closing deliver by overnight delivery to Purchaser the following:
(a) one conformed copy of the Grant Deed showing all recording data;
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(b) one original of Purchaser’ s closing statement;
(c) one conformed copy of the Declaration of Construction Covenants showing all recording data, if applicable;
(d) one conformed copy of the Maintenance Agreement showing all recording data, if applicable;
(e) one original of the FIRPTA Affidavit and 593- C; and (f) one original of the Title Policy (promptly following Closing).
11.6. Documents to Seller. Escrow Agent shall at the Closing deliver by overnight delivery to Seller, the following:
(a) one conformed copy of the Grant Deed showing all recording data; (b) one original of Seller’ s closing statement;
(c) one conformed copy of the Declaration of Construction Covenants showing all recording data, if applicable;
(d) one conformed copy of the Maintenance Agreement showing all recording data, if applicable;
11.7. All Other Documents . Escrow Agent shall at the Closing deliver by overnight express delivery, each other document received hereunder by Escrow Agent to the person acquiring rights under said document or for whose benefit said document was required.
11.8. R eturn of Seller’ s Documents. If escrow or this Agreement is terminated for any reason, Purchaser shall, promptly following such termination, deliver to Seller all documents and materials relating to the Property previously delivered to Purchaser by Seller. Escrow Agent shall deliver all documents and materials deposited by Seller and then in Escrow Agent’s possession to Seller and shall destroy any documents executed by both Purchaser and Seller. Upon delivery by Escrow Agent to Seller (or such destruction, as applicable) of such doc uments and materials, Escrow Agent’s obligations with regard to such documents and materials under this Agreement shall be deemed fulfilled and Escrow Agent shall have no further liability with regard to such documents and materials to either Seller or Purchaser.
11.9. R
eturn of Purchaser’ s Documents . If escrow or this Agreement is terminated prior to Closing for any reason, and subject to Section 12.2, Escrow Agent shall deliver all documents and materials deposited by Purchaser and then in Escrow Agent ’s posse ssion to Purchaser and shall destroy any documents executed by both Purchaser and Seller. Upon delivery by Escrow Agent to Purchaser (or such destruction, as applicable) of such documents and materials, Escrow Agent ’s obligations with regard to such docume nts and materials under this Agreement shall be deemed fulfilled and Escrow Agent shall have no further liability with regard to such documents and materials to either Seller or Purchaser.
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11.10. Escrow Agent Duties. Escrow Agent shall not be bound in any way by any other agreement or contract between Seller and Purchaser, whether or not Escrow Agent has knowledge thereof. Escrow Agent ’s only duties and responsibilities with respect to the Deposit shall be to hold and/or release the Deposit (in accordance with Section 3.2 and elsewhere in this Agreement) and other documents delivered to it as Escrow Agent. Without limiting the generality of the foregoing, Escrow Agent shall not be responsible for any failure to demand, collect or enforce any obligation with respect to the Deposit or for any diminution in value of the Deposit from any cause, other than Escrow Agent ’s gross negligence or willful misconduct. Escrow Agent may, at the expense of Seller and Purchaser, consult with counsel and accountants in connection with its duties under this Agreement. Escrow Agent shall not be liable to the parties hereto for any act taken, suffered or permitted by it in good faith in accordance with the advice of counsel and accountants.
Escrow Agent shall not be obligated to take any action hereunder that may, in its reasonable judgment, result in any liability to it unless Escrow Agent shall have been furnished with a reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.
ARTICLE 12
RE
MEDIES UPON DEFAULT
12.1. Default by Seller.
(a) IF PURCHASER IS PREPARED AND WILLING TO PURCHASE THE
PROPERTY AND ALL OF THE FUNDS AND OTHER DOCUMENTS AND OTHER ITEMS REQUIRED OF PURCHASER BY ARTICLE 11 ABOVE (INCLUDING, WITHOUT
LIMITATION, TENDERING, IN GOOD FUNDS, THE FULL AMOUNT OF THE PURCHASE
PRICE), AND SELLER NEVERTHELESS FAILS TO CONVEY TITLE TO THE PROPERTY
TO PURCHASER AND TO OTHERWISE PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT, THEN AND ONLY IN THAT LIMITED CIRCUMSTANCE, PURCHASER,
SHALL HAVE THE RIGHT OF SPECIFIC PERFORMANCE AGAINST SELLER AND THE
RIGHT TO RECOVER ALL REASONABLE COSTS PURCHASER ACTUALLY INCURRED
IN OBTAINING SUCH SPECIFIC PERFORMANCE (SUCH COSTS TO BE EVIDENCED BY THIRD-PARTY INVOICES). PURCHASER MUST COMMENCE SUCH REMEDY BY
BRINGING AN ACTION FOR SPECIFIC PERFORMANCE AGAINST SELLER NO LATER THAN THIRTY (30) DAYS AFTER THE EXPIRATION OF THE APPLICABLE NOTICE
AND CURE PERIOD, AND IF PURCHASER FAILS TO DO SO, IT SHALL HAVE NO RIGHT
TO BRING SUCH AN ACTION OR SEEK SUCH A REMEDY UPON THE EXPIRATION OF SUCH THIRTY (30) -DAY PERIOD. UPON CONVEYANCE OF THE PROPERTY TO
PURCHASER BY SELLER PURSUANT TO A JUDGMENT FOR SPECIFIC PERFORMANCE, PURCHASER AGREES THAT THE PROVISIONS OF ARTICLE 6 SHALL APPLY.
(b) P RI OR TO CLOSING, IF SELLER HAS OTHERWISE BREACHED (1) ITS COVENANTS AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR (2) ITS REPRESENTATIONS OR WARRANTIES AS EXPRESSLY SET FORTH IN SECTION 7.1 OF THIS AGREEMENT (A “ SELLER’S DEFAULT ”), PUR CHASER SHALL SO NOTIFY
SELLER AND ESCROW AGENT IN WRITING STATING, WITH REASONABLE SPECIFICITY, THE NATURE OF SELLER’S BREACH AND THE ACTION REQUIRED BY PURCHASER FOR SELLER TO CURE SUCH BREACH. IF SELLER HAS NOT
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COMPLETED SUCH CURE WITHIN THIRTY (30) DAYS AFTER ITS RECEIPT OF SUCH WRITTEN NOTICE FROM PURCHASER (THE “ SELLER’S NOTICE AND CURE PERIOD”), PURCHASER’S SOLE REMEDY SHALL BE TO SO NOTIFY ESCROW AGENT BY WRITTEN NOTICE CONTAINING AN EXECUTED PURCHASER’S RELEASE (IN THE FORM OF EXHIBIT “C” ATTACHED HERETO) AND (A) UPON RECEIPT OF SUCH NOTICE WITH PURCHASER’S RELEASE, ESCROW AGENT SHALL RETURN TO EACH
PARTY ALL SUMS AND DOCUMENTS PREVIOUSLY DEPOSITED WITH ESCROW AGENT BY THAT PARTY, AND (B) UPON SELLER ’S RECEIPT OF THE EXECUTED PURCHASER’S RELEASE FROM ESCROW AGENT, SELLER (I) SHALL IMMEDIATELY
RETURN TO PURCHASER ANY PORTION OF THE DEPOSIT PREVIOUSLY RECEIVED
BY SELLER, (II) SUBJECT TO THE LIMITATION SET FORTH BELOW, SHALL PAY TO
PURCHASER (A) ALL OF THE COSTS PURCHASER HAS ACTUALLY INCURRED IN
CONNECTION WITH PREPARATION OF CIVIL AND BUILDING DRAWINGS IN
ANTICIPATION OF DEVELOPMENT OF THE PROPERTY (SUCH DRAWINGS TO BE
DELIVERED TO SELLER UPON PAYMENT OF SUCH COSTS TO PURCHASER), AND (B)
ALL OF THE COSTS I NCURRED BY PURCHASER IN CONNECTION WITH PURCHASER’S PURSUIT OF PURCHASE OF THE PROPERTY, INCLUDING PURCHASER’S DUE DILIGENCE INSPECTIONS, TESTS, STUDIES AND LEGAL COSTS, EXCLUDING, HOWEVER, PURCHASER ’S COSTS INCURRED IN CONNECTION WITH PURCHASER’S NEGOTIATION OF THIS AGREEMENT, SUCH COSTS TO BE EVIDENCED BY THIRD -PARTY INVOICES SUBMITTED TO SELLER; PROVIDED; HOWEVER, IN NO EVENT SHALL SELLER’S REIMBURSEMENT OBLIGATION UNDER
THIS CLAUSE (II) EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00), (CLAUSE (I I) (A) AND (B) COLLECTIVELY, THE “DILIGENCE AND DEVELOPMENT COSTS ”) AND (III) SHALL PAY THE FULL AMOUNT OF ALL ESCROW COSTS, IF ANY, INCURRED THROUGH THE DATE OF CANCELLATION. ALL
OTHER DIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES, AND ANY OTHER
REMEDY AT LAW OR IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE (EXCEPT AS PERMITTED UNDER SECTION 12.1(a) ABOVE) OR TO
RECORD A LIS PENDENS (EXCEPT IN CONNECTION WITH A SUIT FOR SPECIFIC PERFORMANCE PERMITTED UNDER SECTION 12.1(a) ABOVE), ARE EXPRESSLY WAIVED BY PURCHASER. EXCEPT UNDER THE CIRCUMSTANCES IDENTIFIED IN SECTION 12.1(a) ABOVE, PURCHASER ACKNOWLEDGES THAT THE DAMAGE
REMEDY PROVIDED ABOVE IS ADEQUATE TO COMPENSATE PURCHASER IN THE EVENT OF SELLER ’S DEFAULT. THEREAFTER, PURCHASER SHALL HAVE NO
FURTHER RIGHTS OR REMEDIES AGAINST SELLER AND/OR THE PROPERTY AND
NEITHER PARTY SHALL HAVE ANY FURTHER OBLIGATION TO THE OTHER UNDER THIS AGREEMENT. PURCHASER HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 3389, EXCEPT TO THE EXTENT OTHERWISE PROVIDED HEREIN. SELLER
AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 12.1 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. THE PROVISIONS OF THIS SECTION
12.1 SHALL SURVIVE THE CLOSING.
ACCEPTED AND AGREED TO:
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SELLER’S INITIALS PURCHASER’S INITIALS
Except as expressly provided in this Agreement or as otherwise provided in Section 12.3 below, in no event shall Seller be liable to Purchaser for damages (whether actual, speculative, consequential, punitive or otherwise) for a breach or default in the performance of Seller ’s covenants under this Agreement prior to the Closing.
12.2. D efault by Purchaser; Liquidated Damages .
(a) IN THE EVENT OF A BREACH OR DEFAULT BY PURCHASER IN
THE PERFORMANCE OF ITS COVENANTS UNDER THIS AGREEMENT PRIOR TO
CLOSING (EXCEPT AS A RESULT OF A DEFAULT BY SELLER), AND THE CONTINUATION OF SUCH BREACH OR DEFAULT FOR THIRTY (30) DAYS AFTER PURCHASER’S RECEIPT OF WRITTEN NOTICE OF SUCH BREACH OR DEFAULT FROM SELLER TOGETHER WITH SELLER ’S WRITTEN STATEMENT SETTING FORTH WITH
REASONABLE SPECIFICITY THE NATURE OF THE BREACH OR DEFAULT AND THE ACTIONS REASONABLY NECESSARY TO EFFECT A CURE (“PURCHASER’S NOTICE AND CURE PERIOD”), THEN SELLER AS SELLER’S SOLE AND EXCLUSIVE REMEDY,
SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT AND RECEIVE THE
DEPOSIT PLUS ANY AND ALL INTEREST ACCRUED THEREON AS LIQUIDATED DAMAGES. THE PART IES HAVE AGREED THAT SELLER ’S ACTUAL DAMAGES IN
THE EVENT OF A DEFAULT BY PURCHASER HEREUNDER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR
INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE DEPOSIT PLUS ANY
AND ALL INTEREST ACCRUED THEREON HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES AND AS SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST PURCHASER AT LAW
OR IN EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF PURCHASER.
(b) NOT
HING CONTAINED IN THIS SECTION 12.2 SHALL SERVE TO
WAIVE OR OTHERWISE LIMIT SELLER ’S REMEDIES OR DAMAGES FOR CLAIMS OF SELLER AGAINST PURCHASER ARISING OUT OF SECTIONS 5.2(b) OR 14.3 HEREOF OR WAIVE OR OTHERWISE LIMIT SELLER’S RIGHTS TO OBTAIN FROM PURCHASER
ALL COSTS AND EXPENSES OF ENFORCING THIS LIQUIDATED DAMAGES PROVISION, INCLUDING ATTORNEYS ’ FEES AND EXPERT COSTS AND FEES, PURSUANT TO SECTION 14.6. SELLER AND PURCHASER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION 12.2 AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.
ACCEPTED AND AGREED TO:
SELLER’S INITIALS
PURCHASER’S INITIALS
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12.3. Damages. After the Closing occurs, each party shall have the right to pursue its actual damages against the other party: (a) for a breach of any covenant contained herein that is performable after or that survives the Closing (including the indemnification obligations of the parties contained this Agr eement); and (b) for a breach of any representation or warranty (when made or, if applicable, remade by the other party to this Agreement) that is discovered after the Closing; provided, however, that a party’ s failure to file a lawsuit within one (1) year after the Closing Date for a breach of any representation or warranty discovered after the Closing shall constitute an irrevocable election by such party not to pursue any remedies with respect to such breach. If the Closing does not occur: (x) each party shall only have its respective rights and remedies under Section 12.1 and Section 12.2, as applicable; but (y) each party shall have all available remedies against the other party for a breach of the other party ’s obligations contained in this Agreement that are expressly provided herein as surviving the termination of this Agreement. In no event shall either party be liable for any speculative, consequential, exemplary or punitive damages. This paragraph shall survive the Closing and not merge with the Grant Deed.
ARTICLE 13
[
INTENTIONALLY DELETED]
ARTICLE 14
MISCELLANEOUS
14.1. Notices. Any notice, demand or other communication required to be given or to be served upon any party hereunder shall be void and of no effect unless given in accordance with the provisions of this Section. All such notices shall be in writing and delivered to the person to whom the notice is directed, either in person, via electronic mail ( “email”), by nationally- recognized expedited overnight delivery service (such as FedEx or UPS) with proof of delive ry, or by United States Mail, postage prepaid, as a certified item, return receipt requested. Notices delivered in person or by expedited delivery service shall be deemed to have been given at the time of such delivery to the office of the addressee (as evidenced by the proof of delivery provided by the personal delivery service or the expedited delivery service), notices given via email shall be deemed given upon delivery provided that such notice is also sent within one (1) Business Day via a nationally-recognized expedited overnight delivery service, and notices delivered by mail shall be effective three (3) business days after deposit in a post office or other depository under the care or custody of the United States Postal Service as required above with proper postage affixed and addressed, as provided below. All notices, demands and other communications shall be given to the parties hereto at the following addresses:
CITY/SARDA: City Manager
City of Rialto
150 S. Palm Ave.
Rialto, CA 92376
Email: [email protected]
With a copy to: Burke, Williams & Sorensen, LLP
1770 Iowa Avenue, Suite 240
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Riverside, CA 92507-2479
Attention: Eric Vail, Esq
Email : [email protected]
LHR: Lewis-Hillwood Rialto Company, LLC
c/o Lewis Management Corp.
1156 N. Mountain Ave.
Upland, CA 91785-0670
Attn: Bryan T. Goodman
Telephone: (909) 946-7537
Email: [email protected]
With copy to: Lewis-Hillwood Rialto Company, LLC
c/o Hillwood Development Company
901 Via Piemonte, Suite 175
Ontario, CA 91764
Attn: Scott Morse
Telephone: (909) 380-7292
Email: [email protected]
With copy to: Lewis Management Corp.
1156 North Mountain Avenue
Upland, CA 91786
P. O. Box 670
Upland, CA 91785-0670
Attn: W. Bradford Francke, Esq
Email: [email protected]
Purchaser: Newland Real Estate Equities LLC
Attn: Ty Newland
Email: [email protected]
With copy to: Shoreline, a Law Corporation
Attn: Ray Friedman; Matt Mahan
Email: [email protected];
[email protected]
Any party entitled to receive notices hereunder may change the address for notice specified above by giving the other party ten (10) days ’ advance written notice of such change of address. Any notice to be given by any party hereto may be given by the counsel for such party.
14.2. Survival. All covenants in this Agreement which by the terms of this Agreement are to be performed after the Closing shall survive the Closing.
14.3. A ssignment/Binding Contract . Purchaser shall not assign this Agreement to any party without the prior written consent of Seller, provided that Purchaser may assign this
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Agreement to a wholly owned subsidiary of Purchaser or to an entity that is majority owned and/or managed by Purchaser and Seller shall not unreasonably withhold consent to Purchaser ’s assignment to an entity that is partially owned by Purchaser. This Agreement may be not assigned by Seller without the prior written consent of Purchaser which consent Purchaser shall not unreasonably withhold. No assignment of this Agreement shall release the assignor from its obligations hereunder.
14.4. Interpretation and Applicable Law . This contract shall be construed and interpreted in accordance with the laws of the state of California. Where required for proper interpretation, words in the singular shall include the plural, and the masculine gender shall include the neuter and the feminine, and vice versa. The descriptive headings of the articles, sections and paragraphs contained in this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. The term “including,” and compounds of the word “include,” when preceding a list shall be deemed to mean “ including but not limited to.”
14.5. A
mendment/Waiver. This Agreement may not be modified or amended, except by an agreement in writing signed by Seller and Purchaser. The parties may waive any of the conditions contained herein or any of the obligations of the other party hereunder, but any such waiver shall be effective only if in writing and signed by the party waiving such conditions or obligations.
14.6. A
ttorneys ’ Fees. In the event either party files a lawsuit or o ther proceeding in connection with this Agreement or any provisions contained herein, then the prevailing party shall be entitled to recover from the non- prevailing party, in addition to all other remedies or damages as limited herein, reasonable attorneys ’ fees, expert witness fees and costs, and costs of court incurred in such lawsuit. This covenant shall survive the Closing or termination of this Agreement.
14.7. E
ntire Agreement . This Agreement and all Exhibits attached hereto constitute the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings of the parties in connection therewith.
Unless set forth in this Agreement, no representations, warranties, covenants, a greements or conditions shall be binding upon the parties hereto or shall affect or be effective to interpret, change or restrict the provisions of this Agreement.
14.8. Mu
ltiple Counterparts . This Agreement may be executed in two or more separate counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures on counterparts of this Agreement that are transmitted by fax, e-mail in “pdf” format, or any electronic signature complying with the California Uniform Electronic Transactions Act (Cal. Civ. Code § 1633.1 et seq.) and the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com) shall be deemed effective for all purposes.
14.9. D
ates . If, pursuant to this Agreement, any date indicated herein falls on a holiday or a Saturday or Sunday, the date so indicated shall mean the next business day following such date. The term “ holiday” shall mean any day on which state or national banks are not open for business in the States of California. The “ Effective Date” of this Agreement shall be the date on which this Agreement is fully executed by the last of Seller or Purchaser to do so as shown on the
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signature page. The “Escrow Date” shall be the date on which the Title Company acknowledges receipt of a fully executed copy of this Agreement, as evidenced by the Title Company’ s Acknowledgment attached hereto.
14.10. B rokers . Purchaser and Seller each warrants to the other that it has not taken any action in connection with this transaction that would result in any real estate broker’s fee, finder’s fee, or other fee being due or payable to any party. Seller and Purchaser respectively agree to indemnify, defend and hold harmless the other from and against any and all claims, fees, commissions and suits of any other real estate broker or agent with respect to services claimed to have been rendered for or on behalf of such party in connection with the execution of this Agreement or the transaction contemplated herein. Notwithstanding anything contained in this Agreement to the contrary, the terms of this Section 14.10 will survive the Closing or termination of this Agreement.
14.11. I nvalidity . In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
14.12. T
ime of Essence. Purchaser and Seller acknowledge that time is of the essence in this Agreement.
14.13. C onfidential ity. Purchaser covenants that it will not disclose the terms of this Agreement, the existence or terms of the City Contract, any Property Documents, or any other reports, documents, studies or information obtained or created in connection with this Agreement or Purchaser’s activity under Section 5.2 with respect to the Property (including any information disclosed pursuant to Section 4.1(c)) (the “Confidential Information”), to any third party, except on a strictly confidential basis to the Title Company and Purchaser’s directors, officers, employees, contractors, lenders, attorneys, consultants, agents, contractors and advisors (the “ Purchaser’s Representatives”). Seller covenants that it will not disclose the terms of this Agreement, any Property Documents, or any other reports, studies or information obtained or created in connection with this Agreement, or any other Confidential Information to any third party, except on a strictly confidential basis to the Title Company and Seller ’s directors, officers, employees, contractors, lenders and advisors (the “Seller’s Representatives”). Notwithstanding the foregoing, the parties acknowledge that each may disclose Confidential Information to the Entitlement Agencies and their respective consultants to the extent reasonably necessary to consummate the transactions and obtain the agreements and approvals contemplated under this Agreement. Notwithstanding the foregoing, Purchaser acknowledges that Seller may disclose Purchaser ’s interest in the Property pursuant to this Agreement to the City, but not any of the terms or conditions hereof without Purchaser’s consent which shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding anything to the contrary herein, nothing contained in this Section 14.13 shall be construed as prohibiting Purchaser from complying with any reporting obligations to the Securities and Exchange Commission or disclosing necessary information to other federal and state governmental and regulatory authorities under the Securities and Exchange Act of 1934 or similar laws. Notwithstanding the foregoing, Confidential Information shall not include information that:
(a) is now, or hereafter becomes publicly known or available through lawful means, (b) is disclosed to Purchaser without confidential or proprietary restriction by a third party who rightfully
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possesses the information without confidential or proprietary restriction, and (c) is required to be disclosed pursuant to law.
Purchaser and Seller each agrees that it will not make, and will use its good faith efforts to ensure that each of its respective Representatives do not make, any public announcement of this Agreement or the transactions contemplated by this Agreement until the Closing, and each party agrees to use its good faith efforts to ensure that its respective Representatives do not, disclose any Confidential Information, without the prior written consent of the other party, which consent may be withheld by the other party in its sole discretion, unless such announcement or disclosure is necessary to comply with a court order, applicable law or governmental requirement, in which case the party being required to disclose shall provide prompt written notice of such announcement or disclosure requirement to the other party so that such other party may move the ordering court or governmental authority for a protective order or other appropriate relief. Notwithstanding the foregoing, Purchaser shall have the right to disclose information as necessary to comply with reporting requirements and disclosure obligations under the Securities and Exchange Act of 1934 or similar laws without providing written notice thereof to Seller. After the Closing, neither party shall issue a press release disclosing the Purchase Price. The parties acknowledge that any Confidential Information disclosed to an Entitlement Agency or other public entity may be subject to public disclosure by operation of law. The obligations of this Section 14.13 shall survive the Closing and any termination of this Agreement.
14.14. J urisdiction and Venue . The parties agree that the state courts located in San Bernardino County, California have jurisdiction over the parties, and that San Bernardino County, California shall be the exclusive venue for any litigation regarding this Agreement.
14.15. D
ispute Resolution; Jury Trial Waiver .
(a) Generally. Each controversy, dispute, disagreement or claim (collectively, “Controversy”) between Seller and Purchaser arising out of or relating to this Agreement which Controversy is not settled in writing within thirty (30) days after the “Claim Date” (defined as the date on which either Seller or Purchaser gives written notice to the other that a Controversy exists), will be settled by a reference proceeding in California, without a jury, in accordance with the provisions of Section 638, et seq. of the California Code of Civil Procedure ( “CCP”), or their successor sections, which shall constitute the exclusive remedy for the settlement of any controversy, dispute, disagreement or claim concerning this Agreement, including whether such Controversy is subject to such reference proceedings. The referee shall be a retired Judge of the Superior Court in San Bernardino County (the “Court”) selected by mutual agreement of Seller and Purchaser, and if they cannot so agree within forty- five (45) days after the Claim Date, the referee shall be promptly selected by the Presiding Judge of the Court (or his or her representative).
The referee shall be appointed to sit as a temporary judge, with all of the powers for a temporary judge, as authorized by law, and upon selection should take and subscribe to the oath of office as provided for in Rule 244 of the California Rules of Court (or any subsequently enacted Rule). Each Party shall have one (1) peremptory challenge pursuant to CCP Section 170.6. The referee shall (i) be requested to set the matter for hearing within sixty (60) days after the Claim Date, and (ii) try any and all issues of law or fact and report a statement of decision upon them, if possible, within ninety (90) days of the Claim Date. Any decision rendered by the referee will be final, binding, and conclusive and judgment shall be entered pursuant to CCP Section 644 in any court in the
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State of California having jurisdiction. Any party may apply for a reference proceeding at any time after thirty (30) days following notice of the Claim Date by filing a petition for a hearing and/or trial. All discovery permitted herein shall be completed no later than fifteen (15) days before the first hearing date established by the referee. The referee may extend such period in the event of a party’s refusal to provide requested discovery for any reason whatsoever, including, without limitation, legal objections raised to such discovery or unavailability of a witness due to absence or illness. No party shall be entitled to “ priority” in conducting discovery. Depositions may be taken by either party upon ten (10) days written notice, and request for production or inspection of documents shall be responded to within fourteen (14) days after service. All disputes relating to discovery which cannot be resolved by Seller and Purchaser shall be submitted to the referee whose decision shall be final and binding upon the parties. Pending appointment of the referee as provided herein, the Court is empowered to issue temporary and/or provisional remedies, as appropriate. (b) Referee Proceeding. Except as expressly set forth herein, the referee shall determine the manner in which the reference proceeding is conducted including the time and place of all hearings, the order of presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the referee, except for trial, shall be conducted without a court reporter except that when any party so requests, a court reporter will be used at any hearing conducted before the referee. The party making such a request shall have the obligation to arrange for and pay for the court reporter. The costs of the court reporter at the trial shall be borne equally by the parties. (c) A
pplication of Laws . The referee shall be required to determine all issues in accordance with existing case law and the statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California shall be applicable to the reference proceeding. The referee shall be empowered to enter equitable as well as legal relief, to provide all temporary and/or provisional remedies and to enter equitable orders that will be binding upon the parties. The referee shall issue written findings of fact and conclusions of laws, a written statement of decision, and a single judgment at the close of the reference proceeding, which shall dispose of all of the claims of the parties that are the subject of the reference. Seller and Purchaser expressly reserve the right to contest or appeal from the final judgment or any appealable order or appealable judgment entered by the referee. Seller and Purchaser expressly reserve the right to move for a new trial or a different judgment , which new trial, if granted, is also to be a reference proceeding under this provision.
(d) W
AIVER OF JURY TRIAL . TO THE EXTENT PERMITTED BY
LAW, SELLER AND PURCHASER EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING, OR OTHER LITIGATION
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY ASSIGNEE, WHETHER WITH RESPECT TO CONTRAC T CLAIMS, TORT CLAIMS, OR OTHERWISE. SELLER AND PURCHASER EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A REFERENCE PROCEEDING AS PROVIDED ABOVE. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM, OR OTHER
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PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT.
Seller’s Initials
Purchaser’s Initials
14.16. Natural Hazard Disclosure Statement . Purchaser and Seller acknowledge that Seller may be required to disclose if the Property lies within the following natural hazard areas or zones: (i) a special flood hazard area designated by the Federal Emergency Management Agency (California Civil Code Section 1103(c)(1)); (ii) an area of potential flooding (California Government Code Section 8589.4); (iii) a very high fire hazard severity zone (California Government Code Section 51178 et seq.); (iv) a wild land area that may contain substantial forest fire risks and hazards (Public Resources Code Section 4135); (v) earthquake fault zone (Public Resources Code Section 2622); or (vi) a seismic hazard zone (Public Resources Code Section 2696) (sometimes all of the preceding are herein collectively called t he “Natural Hazard Matters”). Escrow Agent is hereby instructed to engage the services of a party that will provide such disclosure (who, in such capacity, is herein called the “Natural Hazard Expert”) to examine the maps and other information specifically made available to the public by government agencies for the purposes of enabling Seller to fulfill its disclosure obligations, if and to the extent such obligations exist, with respect to the na tural hazards referred to in California Civil Code Section 1103 and to report the result of its examination to Purchaser and Seller in writing. The written report prepared by the Natural Hazard Expert regarding the results of its full examination will fully and completely discharge Seller from its disclosure obligations referred to herein, if and to the extent any such obligations exist, and, for the purpose of this Agreement, the provisions of Civil Code Section 1103.4 regarding non-liability of Seller for errors or omissions not within its personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above. Purchaser agrees to provide Seller with a written acknowledgment of its receipt of the report.
14.17. O
ther Offers . Commencing on the Effective Date of this Agreement, Seller shall not seek or negotiate any other offers for the sale of the Property until and unless either (i) Purchaser is in default under this Agreement beyond any applicable cure period or (ii) this Agreement is terminated.
14.18. 1031 E
xchange. LHR may consummate the purchase and sale of the LHR Parcel as part of a so-called like kind exchange (the “Exchange”) pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”), provided that: (a) the Closing shall not be delayed or affected by reason of the Exchange nor shall the consummation or accomplishment of the Exchange be a condition precedent or condition subsequent to LHR ’s obligations under this Agreement; (b) LHR shall effect the Exchange through an assignment of all or a portion of this Agreement, or its rights under this Agreement, to a qualified intermediary; (c) the Purchaser shall not be required to acquire or hold title to any real property other than the Property for purposes of consummating the Exchange; and (d) LHR shall pay any additional costs that would not otherwise
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have been incurred by any of the other parties had LHR not consummated its sale through the Exchange.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGES FOLLOW]
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EXECUTED to be effective as of the Effective Date of this Agreement.
SELLER:
CITY:
CITY OF RIALTO, a municipal corporation
By:
David Carmany, City Manager
Date:
Attest:
By:
Barbara A. McGee, City Clerk
Date:
Approved as to form:
By:
Eric S. Vail, City Attorney
Date:
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[Signature Page Continued]
LHR:
LEWIS-HILLWOOD RIALTO COMPANY, LLC,
a Delaware limited liability company
By: LEWIS-RIALTO COMPANY, LLC,
a Delaware limited liability company
Its Managing Member
By: LEWIS MANAGEMENT CORP.,
a California corporation
i ts sole member
By:
Printed Name: Bryan T. Goodman
Title: Executive Vice President/Development
Date:
By: HGI CA INVESTORS, L.P.,
a California limited partnership
A Member
By: HGI GP, LLC
a Texas limited liability company
i ts general partner
By:
Printed Name: Scott Morse
Title: Executive Vice President
Date:
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[Signature Page Continued]
SARDA:
SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a California public corporation
By:
Arron Brown, Acting Executive Director
Date:
Attest:
By:
Barbara A. McGee, City Clerk
Date:
Approved as to form:
By:
Eric S. Vail, City Attorney
Date:
PURCHASER:
NEWLAND REAL ESTATE EQUITIES LLC
a Delaware limited liability company
By:
Ty Newland, President
Date: ______________, 2024
WBF:aa Z:\Legal\PROJECT DEV - CALIFORNIA\Rialto - Renaissance G2339\Miro Way Disposition Agreement G2339X\Drafts\PSA\Newland - Miro Way Rialto - Purchase and Sale Agreement.(3-8-24) EXECUTION FORM.docx
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TITLE COMPANY ACKNOWLEDGEMENT
The undersigned Title Company acknowledges receipt of the fully executed Agreement and agrees to hold and disburse the Deposit as provided in this Agreement. The undersigned Title Company, in its role as Escrow Agent, as described in ARTICLE 11 of this Agreement, hereby agrees to act as the Escrow Agent under this Agreement and agrees to be bound by this Agreement in the performance of its duties as Escrow Agent.
FIDELITY TITLE INSURANCE COMPANY
By:
Printed Name:
Title:
Date:
Exhibit "A"
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EXHIBIT A
PROPERTY LEGAL DESCRIPTION
That certain real property located in the City of Rialto, San Bernardino County, consisting of seven parcels as more particularly described as follows:
Parcel 1 (APN 0264-211-15) (“City Parcel”)
THOSE PORTIONS OF LOTS 15 AND 18 OF PALMER SUBDIVISION, IN THE CITY OF
RIALTO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 18. PAGES 72 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF SAID LOT 18 WITH THE EASTERLY LINE OF THE WESTERLY 14 FEET OF SAID LO T 18, DESCRIBED IN THE DEED TO THE CITY OF RIALTO, RECORDED JULY 13, 1979 AS INSTRUMENT NO. 79-1106 IN BOOK 9739, PAGE 1718 OF OFFICIAL RECORDS IN SAID OFFICE OF THE COUNTY RECORDER;
THENCE ALONG THE NORTHERLY LINE OF SAID LOTS 18 AND 15, NORTH 89°, 58', 27", EAST, 468.52 FEET;
THENCE SOUTH 5° 43' 34" WEST 332.53 FEET TO THE SOUTHERLY LINE OF SAID LOT 15;
THENCE ALONG SOUTHERLY LINE OF SAID LOTS 15 AND 18, SOUTH 89° 59" WEST 435.59 FEET TO SAID EASTERLY LINE OF THE WESTERLY 14 FEET OF SAID LOT 18;
THENCE ALONG SAID EASTERLY LINE, NORTH 0° 02' 36" EAST 330.76 FEET TO THE POINT OF BEGINNING.
SAID LINE IS ALONG SHOWN PARCEL NO. 1 ON RECORD OF SURVEY ON FILE IN BOOK 98, PAGE 56 OF RECORDS OF SURVEY, SAN BERNARDINO COUNTY RECORDS.
IDENTIFIED AS PARCEL NO. 1 PURSUANT TO CERTIFICATE OF COMPLIANCE NO. 81- A RECORDED ON JULY 23, 1993 AS INSTRUMENT NO. 93 -316236 OF OFFICIAL RECORDS.
ALSO IDENTIFIED AS PARCEL NO. 1 PURSUANT TO A RECORD OF SURVEY FILED ON AUGUST 3, 1993, IN BOOK 98, PAGE 56, OF RECORDS OF SURVEY OF THE SAN BERNARDINO COUNTY RECORDER.
Exhibit "A"
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EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE CITY OF RIALTO IN
FEE FOR MIRO WAY RIGHT-OF-WAY BY GRANT DEED RECORDED ON SEPTEMBER 29, 2014 AS INSTRUMENT NO. 14-360190 OF OFFICIAL RECORDS.
[CONTAINING: 129,732 SQUARE FEET, OR 2.98 ACRES, MORE OR LESS]
Parcel 2 (APN 0264-211-20) (“LHR Parcel”)
THOSE PORTIONS OF LOTS 2, 3, 5, 6, 15 AND 16 OF PALMER SUBDIVISION, IN THE
CITY OF RIALTO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 18, PAGE 72 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, TOGETHER WITH THAT PORTION OF WADLEIGH STREET, 60.00 FEET WIDE, VACATED BY RESOLUTION NO. 1471 OF THE CITY COUNCIL OF THE CITY OF RIALTO, DATED SEPTEMBER 23, 1970, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE NORTHERLY LINE OF LOT 18 OF SAID PALMER SUBDIVISION WITH THE EASTERLY LINE OF THE WESTERLY 14.00 FEET OF SAID LOT 18 AS DESCRIBED IN THE DEED TO THE CITY OF RIALTO, RECORDED JULY 31, 1979, AS INS TRUMENT NO. 1106 IN BOOK 9739, PAGE 1718 OF OFFICIAL RECORDS, IN SAID OFFICE OF THE COUNTY RECORDER;
THENCE ALONG THE NORTHERLY LINE OF SAID LOTS 18 AND 15, NORTH 89°57’54” EAST 468.55;
THENCE SOUTH 5°43’05” WEST 42.21 FEET TO A POINT ON A LINE PARALLEL WITH AND 42.00 FEET SOUTHERLY OF, MEASURED AT RIGHT ANGLES THERETO, SAID
NORTHERLY LINE, SAID PARALLEL LINE BEING THE SOUTHERLY LINE OF MIRO WAY, PER CITY OF RIALTO RESOLUTION NO. 6396, RECORDED DECEMBER 22, 2014, AS DOCUMENT NO. 2014 -0488256, OFFICIAL REC ORDS OF SAID COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING;
THENCE SOUTH 5°43’05” WEST 821.55 FEET;
THENCE SOUTH 89°59’13” EAST 450.02 FEET;
THENCE NORTH 5°41’57” WEST 821.80 FEET TO SAID SOUTHERLY LINE;
THENCE ALONG SAID SOUTHERLY LINE SOUTH 89°57’54” WEST 286.56 FEET TO THE TRUE POINT OF BEGINNING.
[CONTAINING: 301,111 SQUARE FEET, OR 6.913 ACRES, MORE OR LESS]
Exhibit "A"
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Parcel 3 (APN 0264-212-17 – southerly portion) (“SARDA Parcel”)
ALL THAT PORTION OF LOT 6, RIALTO HEIGHTS, AS PER PLAT RECORDED IN BOOK 18 OF MAPS, PAGE 22, RECORDS OF SAN BERNARDINO COUNTY, LYING
NORTHWESTERLY OF THE NORTHWESTERLY LINE OF THE LAND DESCRIBED IN THE DEED TO THE CITY OF RIALTO RECORDED AUGUST 5, 1971, IN BOOK 7725, PAGE 623, OFFICIAL RECORDS.
EXCEPTING ALL OIL, PETROLEUM, GAS, BREA, ASPHALTOM AND ALL KINDRED
SUBSTANCES AND OTHER MINERALS UNDER AND IN SAID LAND, BUT WITHOUT RIGHT OF SURFACE ENTRY ABOVE 500 FEET AS RESERVED IN THE DEED FROM CHARLES ROVE, ET AL, RECORDED JULY 18, 1985, AS INSTRUMENT NO. 85 -172311 OFFICIAL RECORDS.
ALSO EXCEPTING THAT PORTION CONVEYED TO THE CITY OF RIALTO BY GRANT OF RIGHT -OF-WAY DEED FOR AYALA DRIVE RECORDED APRIL 4, 2013, AS DOCUMENT NO. 2013 -0138870 OFFICIAL RECORDS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
THAT PORTION OF PARCEL A LYING SOUTHERLY OF THE NORTHERLY LINE OF SAID LOT 6 AS DESCRIBED IN SAID DOCUMENT NO. 2013-0138870.
ALSO EXCEPTING THAT PORTION CONVEYED TO THE CITY OF RIALTO BY GRANT OF RIGHT -OF-WAY DEED FOR MIRO WAY RECORDED JANUARY 16, 2015, AS DOCUMENT NO. 2015 -0019789 OFFICIAL RECORDS LYING NORTHERLY OF THE SOUTHERLY RIGHT-OF-WAY LINE FOR MIRO WAY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 6;
THENCE ALONG THE WESTERLY LINE OF SAID LOT 6 SOUTH 00° 01’ 02” EAST A DISTANCE OF 38.19 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE TO THE SOUTHWEST WITH A RADIUS OF 1192.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 21° 06’ 05” EAST;
THENCE SOUTHEASTERLY ALONG SAID NON-TANGENT CURVE A DISTANCE OF 338.95 FEET THROUGH A CENTRAL ANGLE OF 16° 17’ 33”;
THENCE SOUTH 52° 36’ 22” EAST A DISTANCE OF 5.80 FEET TO A POINT ON THE
WESTERLY RIGHT-OF-WAY LINE OF AYALA DRIVE AS DESCRIBED IN SAID GRANT
OF RIGHT-OF-WAY DEED FOR AYALA DRIVE, SAID POINT BEING THE BEGINNING
OF A NON- TANGENT CURVE CONCAVE TO THE SOUTHEAST WITH A RADIUS OF 1670.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 51° 10’ 25” WEST;
THENCE SOUTHWESTERLY ALONG SAID WESTERLY RIGHT- OF-WAY LINE AND SAID NON- TANGENT CURVE A DISTANCE OF 84.01 FEET THROUGH A CENTRAL
Exhibit "A"
-4-
ANGLE OF 02° 52’ 56” TO A POINT ON THE SOUTHERLY RIGHT -OF-WAY LINE OF MIRO WAY AND THE POINT OF BEGINNING;
THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE NORTH 52° 36’ 22” WEST A DISTANCE OF 5.81 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY WITH A RADIUS OF 1108.00 FEET;
THENCE CONTINUING ALONG SAID SOUTHERLY RIGHT -OF-WAY LINE AND TANGENT CURVE A DISTANCE OF 282.43 FEET THROUGH A CENTRAL ANGLE OF 14° 36’ 18” TO A POINT ON THE WESTERLY LINE OF SAID LOT 6 AND THE TERMINUS OF SAID SOUTHERLY RIGHT-OF-WAY LINE.
[CONTAINING: 36,700 SQUARE FEET, OR 0.84 ACRES, MORE OR LESS]
Parcel 4 (APN 0264-212-44) (“SARDA Parcel”)
A PORTION OF LOTS 3 AND 4 OF THE PALMER SUBDIVISION, AS PER PLAT RECORDED IN BOOK 18 OF MAPS, PAGE 72, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 4;
THENCE ALONG THE EAST LINE OF SAID LOT 4 SOUTH 00° 00’ 30” EAST A DISTANCE OF 197.95 FEET;
THENCE NORTH 89° 59’ 16” WEST A DISTANCE OF 331.40 FEET TO THE EAST LINE OF SAID LOT 3;
THENCE CONTINUING NORTH 89° 59’ 16” WEST A DISTANCE OF 106.41 FEET TO THE NORTH LINE OF SAID LOT 3;
THENCE ALONG THE NORTH LINE OF SAID LOT 3 NORTH 89° 59’ 32” EAST A DISTANCE OF 137.14 FEET TO THE NORTHWEST CORNER OF SAID LOT 4;
THENCE CONTINUING ALONG THE NORTH LINE OF SAID LOT 4 NORTH 89° 59’ 32” EAST A DISTANCE OF 331.37 FEET TO THE POINT OF BEGINNING.
EXCEPTING THAT PORTION DEDICATED TO THE CITY OF RIALTO FOR STREET PURPOSES.
IDENTIFIED AS PARCEL NO. 8 PURSUANT TO CERTIFICATE OF COMPLIANCE NO. 81- A RECORDED ON JULY 23, 1993 AS INSTRUMENT NO. 93 -316236 OF OFFICIAL RECORDS.
Exhibit "A"
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ALSO IDENTIFIED AS PARCEL NO. 8 PURSUANT TO A RECORD OF SURVEY FILED ON AUGUST 3, 1993, IN BOOK 98, PAGE 56, OF RECORDS OF SURVEY OF THE SAN BERNARDINO COUNTY RECORDER.
[CONTAINING: 90,786 SQUARE FEET, OR 2.08 ACRES, MORE OR LESS]
Parcel 5 (APN 0264-212-45 – southerly portion) (“SARDA Parcel”)
THOSE PORTIONS OF LOTS 5 AND 6 OF PALMER SUBDIVISION, IN THE CITY OF
RIALTO, COUNTY OF SAN BERNARDINO , STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 18, PAGE 72 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF LOT 18 OF SAID PALMER SUBDIVISION WITH THE EASTERLY LINE OF THE WESTERLY 14 FEET OF SAID LOT 18, AS DESCRIBED IN DEED TO THE CITY OF RIALTO, RECORDED JULY 31, 1979, AS INSTRUMENT NO. 1106, IN BOOK 9739, PAGE 1718, OF OFFICIAL RECORDS, IN SAID OFFICE OF THE COUNTY RECORDER;
THENCE ALONG THE NORTHERLY LINE OF LOTS 18 AND 15 OF SAID PALMER SUBDIVISION, NORTH 89° 58’ 27” EAST A DISTANCE OF 468.52 FEET;
THENCE SOUTH 05° 43’ 34” WEST A DISTANCE OF 665.05 FEET TO THE NORTHERLY LINE OF LOT 2 OF SAID PALMER SUBDIVISION;
THENCE CONTINUING SOUTH 05° 43’ 34” WEST A DISTANCE OF 198.70 FEET;
THENCE SOUTH 89° 59’ 04” EAST A DISTANCE OF 450.00 FEET;
THENCE NORTH 05° 41’ 42” WEST A DISTANCE OF 198.81 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID LOT 5, SAID POINT BEING THE TRUE POINT OF BEGINNING;
THENCE CONTINUING NORTH 05° 41’ 42” WEST A DISTANCE OF 665.14 FEET TO THE NORTHERLY LINE OF SAID LOT 6;
THENCE ALONG THE LAST MENTIONED NORTHERLY LINE NORTH 89° 58’ 27” EAST A DISTANCE OF 534.53 FEET TO THE NORTHEAST CORNER OF SAID LOT 6;
THENCE ALONG THE EASTERLY LINE OF SAID LOTS 6 AND 5, SOUTH 00° 00’ 44” EAST A DISTANCE OF 662.10 FEET TO THE SOUTHEAST CORNER OF SAID LOT 5;
THENCE ALONG SAID SOUTHERLY LINE OF SAID LOT 5 NORTH 89° 59’ 57” WEST A DISTANCE OF 468.67 FEET TO THE TRUE POINT OF BEGINNING.
Exhibit "A"
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IDENTIFIED AS PARCEL NO. 9 PURSUANT TO CERTIFICATE OF COMPLIANCE NO. 81- A RECORDED ON JULY 23, 1993 AS INSTRUMENT NO. 93 -316236 OF OFFICIAL RECORDS.
ALSO IDENTIFIED AS PARCEL NO. 9 PURSUANT TO A RECORD OF SURVEY FILED ON AUGUST 3, 1993, IN BOOK 98, PAGE 5 6, OF RECORDS OF SURVEY OF THE SAN BERNARDINO COUNTY RECORDER.
EXCEPTING THEREFROM THAT PORTION OF SAID PARCEL NO. 9 LYING
NORTHERLY OF THE SOUTHERLY RIGHT -OF-WAY LINE OF MIRO WAY AS SHOWN
ON THAT CERTAIN GRANT OF RIGHT -OF-WAY DEED FOR MIRO WAY RECORDED JANUARY 16, 2015, AS DOCUMENT NO. 2015 -0019789 OFFICIAL RECORDS WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF MIRO WAY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SAID PARCEL NO. 9 SAID POINT BEING ON THE CENTERLINE OF MIRO WAY;
THENCE ALONG THE WESTERLY LINE OF SAID PARCEL NO. 9 SOUTH 05° 41’ 57” WEST A DISTANCE OF 42.20 FEET TO THE SOUTHERLY RIGHT- OF-WAY LINE OF MIRO WAY AND THE POINT OF BEGINNING;
THENCE LEAVING SAID WESTERLY LINE OF SAID PARCEL NO. 9 AND ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE A DISTANCE OF 100.53 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY WITH A RADIUS OF 1108.00 FEET;
THENCE ALONG SAID SOUTHERLY RIGHT -OF-WAY LINE A DISTANCE OF 441.38 FEET THROUGH A CENTRAL ANGLE OF 22° 49’ 27” TO A POINT ON THE EASTERLY LINE OF SAID PARCEL NO. 9 AND THE TERMINUS OF THE SAID SOUTHERLY RIGHT- OF-WAY LINE.
[CONTAINING: 297,650 SQUARE FEET, OR 6.83 ACRES, MORE OR LESS]
Parcel 6 (APN 0264-212-46) (“SARDA Parcel”)
THAT PORTION OF LOT 4 OF RIALTO HEIGHTS, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 18 OF MAPS, PAGE 22 IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 4 OF SAID RIALTO HEIGHTS;
THENCE NORTH 89° 59’ 32” EAST A D ISTANCE OF 59.90 FEET ALONG THE NORTH LINE OF SAID LOT 4 TO A NON- TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 1650.00 FEET AND BEING CONCENTRIC WITH AND DISTANCE WESTERLY 50.00 FEET, MEASURED RADIALLY, FROM THE CENTERLINE OF AYALA
Exhibit "A"
-7-
DRIVE, AS DESCRIBED IN THE DEED RECORDED AUGUST 5, 1971, IN BOOK 7725, PAGE 623 OF OFFICIAL RECORDS IN SAID OFFICE OF THE COUNTY RECORDER;
THENCE SOUTHWESTERLY ALONG SAID NON- TANGENT CURVE CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 06° 53’ 21” HAVING A RADIUS OF 1650.00 FEET, AN ARC DISTANCE OF 198.39 FEET TO THE WEST LINE OF THE ABOVE MENTIONED LOT 4;
THENCE NORTH 00° 00’ 27” WEST A DISTANCE OF 189.01 FEET ALONG SAID WEST LINE TO THE POINT OF BEGINNING.
EXCEPT ALL OIL, PETROLEUM, GAS, BREA, ASPHALTUM AND ALL KINDRED
SUBSTANCES AND OTHER MINERALS UNDER AND IN SAID LAND, BUT WITHOUT RIGHT OF SURFACE ENTRY ABOVE 500 FEET BY DEED RECORDED JULY 18, 1985, INSTRUMENT NO. 85-172311 OF SAID OFFICIAL RECORDS.
[CONTAINING: 5340 SQUARE FEET, OR 0.12 ACRES, MORE OR LESS]
Parcel 7 (APN 0264-212-54) (“SARDA Parcel”)
PARCEL 1 OF PARCEL MAP 19211, IN THE CITY OF RIALTO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN ON A MAP IN BOOK 237 OF PARCEL MAPS, PAGES 29 AND 30 RECORDS OF SAID COUNTY.
[CONTAINING: 45,738 SQUARE FEET, OR 1.05 ACRES, MORE OR LESS]
The real property encompasses a total area of approximately 907,057 square feet or 20.813 acres.
Exhibit "A-1"
EXHIBIT A-1
MAP OF PROPERTY
Exhibit "A-2"
EXHIBIT A-2
PROJECT CONCEPT PLAN
3 Building Concept Plan
(See Next Page)
Exhibit "A-2"
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EXHIBIT A-3
PROJECT CONCEPT PLAN
2 Building Concept Plan
(See Next Page)
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EXHIBIT B
GRANT DEED
RECORDING REQUESTED BY:
Title Company
MAIL TAX STATEMENTS TO:
AND WHEN RECORDED MAIL TO:
Attn:
(SPACE ABOVE THIS LINE FOR RECORDER’S USE)
APNS:
Documentary Transfer Tax: $____________
Based on full value of property conveyed.
[ ] unincorporated area; [ X ] City of Rialto.
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, The CITY OF RIALTO, a municipal corporation (the “ City” ), the SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a California public body (“SARDA”), and LEWIS - HILLWOOD RIALTO COMPANY, LLC, a Delaware limited liability company (“LHR”) (collectively, " Seller"), hereby grants and conveys to NEWLAND REAL ESTATE EQUITIES LLC, a Delaware limited liability company (“ Buyer”), the real property hereinafter referred to as the “Property ”, described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record, and the covenants set forth in this Grant Deed.
1. Seller excepts and reserves from the conveyance herein described all interest of the Seller in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than five hundred (500) feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Property lying more than five hundred (500) feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said Property or other lands, but without, however, any right to use
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either the surface of the Property or any portion thereof within five hundred (500) feet of the surface for any purpose or purposes whatsoever.
2. City and LHR entered into that certain Development Agreement dated December 13, 2016, recorded as Document No. 2017- 0116096 in the Official Records of San Bernardino County, California (the “Official Records”) , as amended by that certain First Amendment thereto dated _______________, 202 4, recorded as Document No. ___________ in the Official Records (collectively the "Development Agreement") that pertains to the property identified therein which includes, without limitation, the Property.
3. T he Property is conveyed in accordance with and subject to the Development Agreement which was approved and adopted by ordinance of the City Council of the City of Rialto, and that certain Purchase and Sale Agreement between the City, SARDA and LHR and Buyer as of ________________, 2024 (the “Contract”), a copy of which is on file with the City at its offices as a public record and which is incorporated herein by reference. Capitalized terms not defined herein shall have the meaning set forth in the Contract unless the context dictates otherwise. Except as expressly set forth in this Grant Deed, any obligations of Buyer under the Contract not set forth in this Grant Deed, or in the Declaration of Construction Covenants, Maintenance Agreement, or Declaration of Covenants and Restrictions executed by Buyer and recorded concurrent with this Deed shall survive the Closing and are personal obligations of Buyer that do not run with the land, and all obligations of the Buyer set forth in this Grant Deed, or in the Declaration of Construction Covenants, Maintenance Agreement, or Declaration of Covenants and Restrictions, are covenants that run with the land.
4. The Buyer covenants and agrees for itself, its successors, assigns, and every successor in interest to the Property or any part thereof, that the Property shall be devoted to the uses specified in the City’s General Plan and all applicable provisions of the Rialto Municipal Code, as amended, from time to time.
5. The Buyer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Buyer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land.
The Buyer shall refrain from restricting the rental, sale or lease of the Property on the basis of race, color, religion, sex, marital status, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds: “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
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sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lesse es, subtenants, sublessees or vendees in the land herein conveyed.
The foregoing covenants shall run with the land.”
(b) In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions:
“That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.”
(c) In contracts: “There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises.”
6. (a) The Property is being conveyed by the Seller in its AS IS, WHERE IS and SUBJECT TO ALL FAULTS condition. Buyer, on behalf of itself and its successors and assigns, waives and releases the City and its successors and assigns from any and all costs or expenses whatsoever (including, attorneys' fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen, arising from or relating to any of the above matters and conditions relating to the Property which exist as of the date of this Grant Deed, including title, the property condition or any above-ground or underground improvements thereon, the condition of the soils, the suitability of the soils for any improvements thereon and/or any law or regulation applicable thereto and/or any matters relating to the Property except for the warranty of this Grant Deed. (b) Specifically, Buyer expressly waives any rights or benefits available to it with respect to the foregoing release under any provision of applicable law which generally provides that a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time the release is agreed to, which, if known to such creditor, would materially affect a settlement. By execution of this Agreement, Buyer acknowledges that it fully understands the foregoing, and with this understanding, nonetheless elects to a nd does assume all risk for claims known or unknown, described in this Section without limiting the generality of the foregoing:
Buyer acknowledges that it has been advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542, which provides as follows:
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"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH 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, being aware of this code section, hereby expressly waives any rights it may have thereunder, as well as under any other statutes or common law principles of similar effect.
7. (a) Subject to the provisions of Paragraph 11 below, Buyer and each future owner of all or any portion of the Property (each, an " Indemnitor"), severally, agrees to protect, defend, indemnify, and hold forever harmless and discharges (" Indemnity" or " Indemnify") the City, SRADA and LHR, and their respective employees, officers, agents and representatives and each of them (" Seller Indemnitees ") from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future (" Claims and Liabilities"), arising out of or in any way connected with the existence of Hazardous Substances (defined below) contamination on the Property due to the generation of Hazardous Substances on the Property the underlying cause for which arises after the date of this Grant Deed as the result of actions by such Indemnitor, except if and to the extent arising out of (A) the negligence or willful misconduct of any of the City Indemnitees, or (B) the continuing or ongoing groundwater remediation program currently existing on the Property as described in the Grant of Easement Agreement for Monitoring Wells between the City and the County of San Bernardino, California dated March 4, 2008 and recorded as Document # 2008- 0168257 in the Official Records of San Bernardino County, California. (b) I
f the Seller Indemnitees are entitled to an Indemnity as provided in this Grant Deed, the applicable Indemnitor shall not be obligated to Indemnify the Seller Indemnitees unless and until the Seller Indemnitees (or any of them) provides written notice to such Indemnitor in a reasonable time and fashion after the Seller Indemnitees has actual knowledge of the facts or circumstances of the Claims and Liabilities upon which the Seller Indemnitees are seeking Indemnity (a "Indemnification Claim"), describing in reasonable detail the facts and circumstances of such Indemnification Claim and a req uest for such Indemnity (the " Indemnification Claim Notice").
The Seller Indemnitees shall not be entitled to an Indemnity if and to the extent the Seller Indemnitees unreasonably fails or delays notifying such Indemnitor, and such failure or delay materially prejudices such Indemnitor's ability to defend against any such Claims and Liabilities on which such Indemnification Claim is based, or materially increases the amount of damages or losses incurred in respect of such obligation of the Indemnitor. (c) E ach Indemnitor shall use good faith efforts consistent with prudent business judgment to defend such Indemnification Claim, provided that (a) the counsel for the Indemnitor who shall conduct the defense of the Indemnification Claim shall be reasonably sati sfactory to the Seller Indemnitees (unless required by such Indemnitor's insurance company), (b) the Seller Indemnitees may participate (at their expense) in, but shall not control, the defense of such Indemnification Claim, and (c) without the prior written consent of the Seller Indemnitees, which consent may be given or withheld in the sole and absolute discretion of the Seller Indemnitees, such Indemnitor shall not enter into any settlement or other agreement which requires any performance by the Seller
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Indemnitees, other than the payment of money which shall be paid by such Indemnitor. The Seller Indemnitees shall cooperate as reasonably requested by such Indemnitor in the defense of such Indemnification Claim and shall not take any action that prejudice s the defense of such Indemnification Claim. Provided that the Indemnitor is in compliance with the provisions of this subsection, the Seller Indemnitees shall not enter into any settlement agreement with respect to any Indemnification Claim without such Indemnitor's prior written consent, which consent may be given or withheld in such Indemnitor's sole and absolute discretion. If the applicable Indemnitor does not assume or withdraws from the defense of such Indemnification Claim, the Seller Indemnitees shall have the right without waiving any of its Indemnification Claims hereunder, to control the defense of such Indemnification Claim and shall use good faith efforts consistent with prudent business judgment to defend such Indemnification Claim, and such Indemnitor shall pay all reasonable attorney's fees, defense costs or settlements of the Seller Indemnitees, in such instance, within thirty (30) days after receipt of any invoice therefor. (d) " Hazardous Substances " means those substances included within the definitions of "Hazardous Substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminate" in CERCLA, RCRA, TSCA, HMTA (as those terms are defined below), or under all other Environmental Laws; and those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the Environmental Protection Agency, or any successor agency, as hazardous substances [40 CFR Part 302]; and other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and any material, waste, or substance that is: a petroleum or refined petroleum product, asbestos, polychlorinated biphenyl, designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317, a flammable explosive, or a radioactive material.
(e) " E
nvironmental Laws " means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes or decrees, regulating, relating to or imposing liability of standards of conduct concerning any Hazardous Substance, or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances or regulations relate to Hazardous Substances on, under, or about the Property), occupational or environmental conditions on, under or about the Property, as now or may at any later time be in effect, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (" CERCLA") [42 USC Section 9601 et seq. ]; the Resource Conservation and Recovery Act of 1976 (" RCRA") [42 USC Section 6901 et seq. ]; the Clean Water Act, also known as the Federal Wat er Pollution Control Act (" FWPCA") [33 USC Section 1251 et seq. ]; the Toxic Substances Control Act (" TSCA") [15 USC Section 2601 et seq. ]; the Hazardous Materials Transportation Act ("HMTA ") [49 USC Section 1801 et seq. ]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C Section 25280 et seq.]; the California Hazardous Substances Account Act [H & S C Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C Section 25249.5 et seq. ] and the Porter -Cologne
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Water Quality Act [Water Code Sect ion 13000 et seq. ] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state or local law, statute, ordinance or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, statutes, ordinances or regulations relate to Hazardous Substances on, under or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.
8. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest encumbering the property to secure a loan for the purchase price or construction of the Buyer Improvements; provided, however, that any subsequent owner of the P roperty shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such owner’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise.
9. All c ovenants set forth in this Grant Deed without regard to technical classification or designation shall be binding for the benefit of the Seller, and such covenants shall run in favor of the Seller for the entire period during which such covenants shall be i n force and effect, without regard to whether the Seller is or remains an owner of any land or interest therein to which such covenants relate. The Seller, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach.
10. Both Seller, its respective successors and assigns, and Buyer and the successors and assigns of Buyer in and to all or any part of the fee title to the Property shall have the right upon the mutual consent of the successor or assign of Seller on the one hand, and that of Buyer on the other to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements or restrictions contained in this Grant Deed (except for the provisions of Paragraph 11 below) without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. However, Buyer and Seller are obligated to give written notice to and obtain the consent of any first mortgagee prior to consent or agreement between the parties concerning such changes to this Grant Deed. The covenants contained in this Grant Deed, without regard to technical classification, shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty.
11. With respect to the Indemnity covenant in Paragraph 7 above, only the owner or owners of all or a portion of the Property at the time the underlying cause of the presenc e of Hazardous Substances on the Property (or portion thereof) occurs shall have liability under the Indemnity.
Further, the breach or violation by an owner of the Property or any portion thereof of any covenant contained in this Grant Deed shall not subject such owner's predecessor or successor in interest in the Property or such portion thereof to any liability for such breach or violation. A breach or violation by a tenant of the Property or any portion thereof of any covenant contained in this Grant Deed shall not subject such tenant's landlord to any liability for such breach or violation.
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12. Without the prior written consent of the Seller or except to correct a gross error or other action of the County Assessor that is contr ary to law, no owner of the Property shall apply for or accept any exemption from the payment of property taxes or assessments on any interest in or to the Property or any portion thereof.
[Signature Block Begins on Following Page]
Exhibit "B"
S-1
[Signature Page – Grant Deed]
CITY:
CITY OF RIALTO, a municipal corporation
By:
David Carmany, City Manager
Date:
Attest:
By:
Barbara A. McGee, City Clerk
Date:
Approved as to form:
By:
Eric S. Vail, City Attorney
Date:
[Signatures Continued on Following Page]
Exhibit "B"
S-2
[Signature Page – Grant Deed Continued]
LHR:
LEWIS-HILLWOOD RIALTO COMPANY, LLC,
a Delaware limited liability company
By: LEWIS-RIALTO COMPANY, LLC,
a Delaware limited liability company
Its Managing Member
By: LEWIS MANAGEMENT CORP.,
a California corporation
its sole member
By:
Printed Name:
Title:
Date:
By: HGI CA INVESTORS, L.P.,
a California limited partnership
A Member
By: HGI GP, LLC
a Texas limited liability company
its general partner
By:
Printed Name:
Title:
Date:
[Signatures Continued on Following Page]
Exhibit "B"
S-3
[Signature Page – Grant Deed Continued]
SARDA:
SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a Public corporation
By: Date:
Attest:
By: Date:
Approved as to form:
By:
Eric S. Vail, City Attorney
Date:
[Signatures Continued on Following Page]
Exhibit "B"
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[Signature Page – Grant Deed Continued]
BUYER:
By:
Name:
Its:
Date:
[End of Signature Page]
Exhibit "B"
Acknowledgment
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 )
On , before me, , (insert name of notary)
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)
Exhibit “A” to Exhibit "B"
EXHIBIT “A” TO EXHIBIT “B”
LEGAL DESCRIPTION
The land situated in the City of Rialto, County of San Bernardino, State of California, described as follows:
Exhibit “C”
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EXHIBIT C
PURCHASER'S RELEASE
FOR THE CONSIDERATION described below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, this Purchaser's Release ("Release") is executed this ______day of __________, 202__, by Newland Real Estate Equities LLC, a Delaware limited liability company ("Purchaser").
Purchaser hereby releases, dismisses with prejudice, and forever discharges CITY OF RIALTO, a municipal corporation (t he “City”), the SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a California public body (“ SARDA”), and LEWIS - HILLWOOD RIALTO COMPANY, LLC, a Delaware limited liability company (“ LHR”) (collectively, the "Seller"), together with their respective employees, directors, officers, agents, predecessors, successors, assigns, and all venturers, co -venturers, partners, co -partners, contractors, subcontractors, subsidiaries, parents, and affiliates, and each of them (collectively "Seller Entitie s") from any and all claims, debts, liabilities, demands, obligations, costs, reasonable expenses, attorneys' fees, actions, and causes of action, which Purchaser has held, now holds, or may hold in the future, whether known or unknown, against Seller Enti ties arising from or related to that certain Purchase and Sale Agreement dated April 25, 2023, by and between Purchaser and Seller, as the same may have been amended from time to time (whether or not so amended, the "Agreement") or the "Property" more particularly described in the Agreement.
Purchaser shall forever refrain and forebear from commencing, instituting, or participating in, either as named or unnamed parties, any action, lawsuit, or other proceedings against Seller Entities, whether brought by itself or by others on its behalf, based on or arising out of the transactions and events described in Paragraph 1 above.
Purchaser represents and warrants and agrees:
(i) that it has not heretofore assigned or transferred to any entity, person, or corporation, any claim, demand, or cause of action based on, related to, arising out of, or in connection with the transactions, property, or events described in Paragraph 1 above; (ii) the delivery of this Release is a condition precedent to the acceptance by Seller of the liquidated damages provision of the Agreement as Seller's sole and exclusive remedy at law and in equity in the event of a material breach by Purchaser under the Agreement ("Purchaser's Breach"); and
(iii) in the event that the Agreement is t erminated for a reason other than Purchaser's Breach, then the delivery of this Release executed by Purchaser to Title Company (as identified in the Agreement) is a condition precedent to the return to Purchaser of all funds, instruments, or other documents, and materials belonging to Purchaser then held by Title Company.
Exhibit “C”
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Purchaser has read and understands the following statutory language of Section 1542 of the California Civil Code:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASI NG 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."
Having been so apprised, Purchaser hereby waives the provisions of this Section 1542 or any similar statute of any other state.
Purchaser agrees that the entire agreement between itself and Seller with reference to the subject matter hereof and all prior negotiations and understandings between the parties have merged herein.
PURCHASER:
Newland Real Estate Equities LLC,
A California limited liability company
By:
Ty Newland, President
Exhibit “D”
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EXHIBIT D
DECLARATION OF CONSTRUCTION COVENANTS
[SEE ATTACHED]
Exhibit “D”
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DECLARATION OF CONSTRUCTION COVENANTS
FOR VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY
ACKNOWLEDGED, the CITY OF RIALTO, a municipal corporation (the “ City”), the SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a California public body (“ SARDA”), and LEWIS - HILLWOOD RIALTO COMPANY, LLC, a Delaware limited liability company (“ LHR”) (collectively, " Seller"), and ____________, a ________ (" Buyer") hereby enter into this Declaration of Construction Covenants (this "Declaration") as of , 20__, and agree as follows with respect to the real property hereinafter referred to as the "Development Parcel" situated within the boundaries of the City and described in the attached Attachment No. 1. The covenants in this Declaration run with the land.
The Development Parcel is comprised of three (3) parcels, the City Parcel, the SARDA Parcel and the LHR Parcel as described in Attachment No. 1.
1. Seller has conveyed the Development Parcel to Buyer as evidenced by the recording of a Grant Deed on or about the date of this Declaration in the Official Records of San Bernardino County. (The actual date such Grant Deed was so recorded is called the " Recording Date").
2. Buyer shall commence and diligently process to completion the " Buyer Improvements" set forth in the attached Attachment No. 2 hereto in accordance with the "Schedule of Performance" set forth in the attached Attachment No. 3. The phrase "Buyer Improvements," as used in this Declaration shall refer only to the Buyer Improvements set forth in the attached Attachment No. 2 for construction only with respect to the Development Parcel. The obligations of Buyer under this Paragraph 2 are referred to in this Declaration as the " Buyer Obligations" and include the " Post Vertical Obligations ," if any, set forth in the attached Attachment No. 2.
3. As security for the performance of the Buyer Obligations, Buyer, concurrently with the execution and delivery of this Declaration, has delivered to City for the benefit of the Seller a performance bond or other security acceptable to the City described on the attached Attachment No. 4, and Buyer has provided a guaranty agreement to the City (collectively, the "Security").
4. In the event Buyer:
(a) fails to c ommence the construction of the Buyer Improvements in accordance with the Schedule of Performance;
(b) fails to diligently pursue the construction of the Buyer Improvements by abandoning such construction for a period of 60 consecutive days; or (c) fails to substantially complete the construction of the Buyer Improvements in accordance with the Schedule of Performance,
and such failure continues for a period of 30 days after Buyer's receipt of written notice thereof from the City, the City or LHR shall have the right (and Buyer hereby grants to the City and LHR a license) to enter onto the Development Parcel and to complete the construction of the Buyer Improvements and to access the Security to fund the costs of such work.
Exhibit “D”
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5. Any person or entity who acquir es a fee interest in all or part of the Development Parcel at such time that this Declaration still is in force and effect shall be bound by and shall be deemed to assume all of the obligations of Buyer under this Declaration, with the term " Buyer" used in this Declaration deemed to mean such grantee. Notwithstanding the foregoing, this Declaration shall not be binding upon and shall not be shown as an exception to title to any lot or condominium unit within the Development Parcel which has been improved with a residence and is conveyed to an individual home buyer.
6. The time periods set forth in this Declaration or in the Schedule of Performance shall be extended (a "Force Majeure Delay") for the duration of any of the following events: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties, acts of God; acts of the public enemy, including, but not limited to, terrorism; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental delays, restrictions or priority; litigation brought by a third party unrelated to Buyer; unusually severe weather; act or omission of the Seller; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; and delays occasioned by the failure of a government agency with jurisdiction over the Development Parcel to issue ministerial permits and/or approvals within a reasonable period after completed applications have been submitted therefor (a " Delay Event "). Notwithstanding the above, no Delay Event shall constitute a Force Majeure Delay until Buyer delivers to the Seller written notice describing the Delay Event, its cause, when and how Buyer obtained knowledge thereof, the date of commencement of the Delay Event and the es timated duration of the Force Majeure Delay resulting from such Delay Event.
7. Promptly following the written request by Buyer delivered to the City (the "Request") following substantial completion of the Buyer Improvements as required by this Declaration (including, if applicable, the delivery of the security for the Post Vertical Obligations as provided in the attached Attachment No. 2 ), the City shall inspect the Buyer Improvements and reasonably determine whether or not the Buyer Improvements, in fact, have been substantially completed in accordance with the requirements of this Declaration in all material respects. Buyer shall furnish to the City such information reasonably requested by the City evidencing the substantial completion of the Buyer Improv ements (including, without limitation, and if applicable, the delivery of security for the Post Vertical Obligations). The Buyer Improvements shall be deemed substantially completed in accordance with the requirements of this Declaration unless the City delivers to Buyer within ten days after receipt of the Request a written explanation of the reason that the City has determined that the Buyer Improvements have not been substantially completed in accordance with the requirements of this Declaration and setting forth the remaining work to be done to achieve such substantial completion (including, without limitation, and if applicable, the delivery of security for the Post Vertical Obligations). Promptly following the City's actual or deemed determination of s ubstantial completion of the Buyer Improvements, the Seller shall execute, acknowledge and deliver to Buyer a Release of Construction Covenants in the form of the attached Attachment No. 5 (the "Release") and the Security shall be deemed released. The Seller shall not unreasonably withhold its approval of the substantial completion of the Buyer Improvements in accordance with the requirements of this Declaration.
8. The Seller is the beneficiary of the terms and provisions of this Declaration and of the covenants running with the land as provided in this Declaration, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private,
Exhibit “D”
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in whose favor and for whose benefit this Declaration and the cov enants running with the land have been provided. Until the covenants set forth in this Declaration cease to run with the land, the Seller shall have the right, if any provision of this Declaration is breached and in addition to the remedy set forth in Paragraph 4 above, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it may be entitled. Further, the Seller shall have no right to pursue a ny remedy against any person or entity solely arising out of an act or omission by a successor in interest, including, but not limited to, a lessee, or solely arising out of a condition or circumstance caused or permitted by a predecessor in interest that was corrected before such predecessor conveyed the Development Parcel. The covenants contained herein shall remain in effect until the issuance of the Release.
9. All covenants set forth in this Declaration without regard to technical classification or designation shall be binding for the benefit of the Seller, and such covenants shall run in favor of the Seller for the entire period during which such covenants shall be in force and effect. The prevailing party in any litigation regarding this Declaration or the Release shall be entitled to recover from the other party all reasonable attorneys' fees and other costs incurred by such prevailing party in connection with such litigation. Courts in San Bernardino County California shall be the sole venue for any litigation brought regarding this Declaration or the release.
10. (a) Buyer shall secure and maintain in full force and effect from and after the Recording Date, and continuing until a Release of Construction Covenants has been recorded for this Development Parcel, a policy of commercial general liability insurance issued by an "A-/VI" or better rated insurance carrier as rated by A.M. Best Company, on an occurrence basis, in which the Seller Indemnitees are named as additional insureds with the Buyer. For purposes of this Declaration, a rating of B+/XI shall be equivalent to A -/VI. Buyer shall furnish a certificate of insurance to the Seller prior to the Recording Date, and shall furnish complete copies of such policy or policies upon request by the Seller. Notwithstanding any inconsistent statement in the policy or any subsequent endorsement attached thereto, the protection offered by the policy shall:
(1) Include an endorsement naming the Seller, and their respective employees, officers, agents, and representatives (the "Seller Indemnitees") as additional insureds; (2) Provide a combined single limit policy for both personal injury and property damage in the amount of $2,000,000, which will be considered equivalent to the required minimum limits;
(3) Bear an endorsement or shall have attached a rider, as either may be available with Buyer's commercially reasonable efforts to procure, providing that the carrier shall endeavor to notify the Seller not less than thirty (30) days before any expiration, cancellat ion, nonrenewal, reduction in coverage, increase in deductible, or other material modification of such policy or policies, and not less than ten (10) days after any event of nonpayment of premium. (b) (1) The Buyer shall file with the City the following signed certification:
"I am aware of, and will comply with, Section 3700 of the Labor Code, requiring every employer to be insured against liability of
Exhibit “D”
-5-
Workers' Compensation or to undertake self -insurance b efore commencing any of the work."
(2) The Buyer shall comply with Section 3800 of the Labor Code, if applicable, by securing, paying for and maintaining in full force and effect from and after the Recording Date, and continuing for the term of this Declaration, complete Workers' Compensation Insurance, and shall furnish a Certificate of Insurance to the Seller before the commencement of construction. Neither the Seller Indemnitees nor their attorneys shall be responsible for any claims in law or equity occasioned by the failure of Buyer to comply with this section. Every liability insurance policy shall bear an endorsement or shall have attached a rider providing that, in the event of expiration, proposed cancellation, or reduction in coverage of such policy for any reason whatsoever, the carrier shall endeavor to notify the Seller and Buyer at least thirty (30) days before such expiration, cancellation, or reduction in coverage is effective or ten (10) days in the event of nonpayment of premium.
11. Notices to be given under this Declaration shall be effective only if in writing and delivered by local messenger service or by overnight delivery by Federal Express or United Parcel Service to the addresses specified below (or as may be changed by a party by not ice delivered in accordance with this Paragraph 10), with such notices deemed to be given and received on the next day following delivery thereof to the local messenger service or the specified overnight carrier with delivery costs pre-paid that is not a Saturday, Sunday or national bank holiday. Addresses for delivery are:
To Buyer:
Copies to:
To the Seller:
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attention: City Manager
Lewis-Hillwood Rialto Company, LLC c/o
Lewis Management Corp.
1156 N. Mountain Ave.
Upland, CA 91785-0670
Attn: Bryan T. Goodman
Exhibit “D”
-6-
Copies to: City Attorney
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Burke, Williams & Sorensen, LLP
1770 Iowa Avenue, Suite 240
Riverside, CA 92507-2479
Attention: Eric Vail, Esq
Lewis Management Corp.
1156 North Mountain Ave.
Upland, CA 91785-0670
Attn: W. Bradford Francke, Esq.
12. This Declaration constitutes th e full and complete agreement of the Seller and Buyer regarding the subject matter hereof, may be amended only by written document signed by the City and the then fee title owner of the Development Parcel and shall be governed by the laws of the State of California.
SIGNATURES FOLLOW
Exhibit "D"
-7-
SELLER:
CITY:
CITY OF RIALTO, a municipal corporation
By:
David Carmany, City Manager
Date:
Attest:
By:
Barbara A. McGee, City Clerk
Date:
Approved as to form:
By:
Eric S. Vail, City Attorney
Date:
LHR:
LEWIS-HILLWOOD RIALTO COMPANY, LLC,
a Delaware limited liability company
By: LEWIS-RIALTO COMPANY, LLC,
a Delaware limited liability company
Its Managing Member
By: LEWIS MANAGEMENT CORP.,
a California corporation
its sole member
By:
Printed Name:
Title:
Date:
Exhibit "D"
-8-
By: HGI CA INVESTORS, L.P.,
a California limited partnership
A Member
By: HGI GP, LLC
a Texas limited liability company
its general partner
By:
Printed Name:
Title:
Date:
SARDA:
SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a Public corporation
By: Date:
Attest:
By: Date:
Approved as to form:
By:
Eric S. Vail, City Attorney
Date:
[Signatures Continued on Following Page]
Exhibit "D"
-9-
BUYER:
a
By:
Name:
Its:
[End of Signature Page]
Exhibit "D"
-10-
ATTACHMENT NO. 1
LEGAL DESCRIPTION
Exhibit "D"
-11-
ATTACHMENT NO. 2
DESCRIPTION OF BUYER IMPROVEMENTS
SCOPE OF DEVELOPMENT
BUYER IMPROVEMENTS
Buyer Improvements shall mean the construction of the following described off-site improvements and/or on-site improvements to the Development Parcel:
[Describe Miro Way ROW improvements]
Buyer shall submit plans and construct the Buyer Improvements in accordance with the Schedule of Performance. Buyer and the City agree that the completion of certain portions of the construction of the Buyer Improvements is typically scheduled for completion after some portion of the vertical structures is completed ("Post Vertical Obligations"), such being:
Buyer may satisfy its Post Vertical Obligations by posting bonds, entering into enforceable subdivision agreements with the City, or using other strategies common to the development and construction of horizontal improvements in connection with the development of a project as reasonably approved by the City.
Exhibit "D"
-12-
ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
Construction of Buyer Improvements
1. City Permits are issued for the Buyer
Improvements on the Development Parcel.
Within months of
Closing.
2. Buyer causes a performance bond or other
security acceptable to the City to be procured for
the construction of the Buyer Improvements prior
to commencing construction.
Within months after the
Closing, and prior to
commencement of construction.
3. Buyer commences construction of Buyer
Improvements.
Within months after the
Closing.
4. Buyer completes construction of the Buyer
Improvements.
Within months of
commencement of construction.
Exhibit "D"
-13-
ATTACHMENT NO. 4
SECURITY
[TO BE PROVIDED PRIOR TO CLOSING]
Exhibit "D"
-14-
ATTACHMENT NO. 5
RELEASE OF CONSTRUCTION COVENANTS
RECORDING REQUESTED BY:
MAIL TAX STATEMENTS TO
AND WHEN RECORDED MAIL TO:
This document is exempt from payment of a recording fee pursuant to Government Code Section 27383
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (this " Release") is made as of ________________, 20___ by the CITY OF RIALTO, a municipal corporation (the “ City”), the SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a California public body (“ SARDA”), and LEWIS -HILLWOOD RIALTO COMPANY, LLC, a Delaware limited liability company (“LHR”) (collectively, "Seller”) , in favor of a (" Buyer"), as of the date set forth below.
RECITALS
A. The real estate situated within the boundaries of the City described on the attached Exhibit A (the " Property") is subject to the Declaration of Construction Covenants dated _______, and recorded on ___________, as Instrument No. __________ in the Official Records of San Bernardino County (the "Declaration") pertaining to the Development Parcel.
B. Buyer has completed (or otherwise posted security for) the Buyer Improvements (as defined in and required by the Declaration) and is entitled to obtain this Release. Accordingly, the Seller hereby releases in full all of the Seller’s rights and interests under the Decla ration (including, without limitation, all rights in and to the Security, as defined in the Declaration) and declares that the Declaration no longer is in effect and no longer is a covenant binding on or running with the Property or any of its owners or their successors or assigns. This Release is conclusive determination of satisfactory completion of the construction of the Buyer Improvements required by the Declaration with respect to the Property.
C. The Seller has conclusively determined that such construction and development has been satisfactorily completed.
Exhibit "D"
-15-
NOW, THEREFORE, the City hereby certifies as follows:
1. The Buyer Improvements to be constructed by the Buyer with respect to the Property have been fully and satisfactorily completed (or secured) in conformance with the Declaration.
2. The Declaration has no further force or effect.
3. Nothing contained in this instrument shall modify in any other way any provisions of any other recorded documents. This Release is not a notice of completion as re ferred to in Section 8182 of the California Civil Code.
IN WITNESS WHEREOF, the Seller has executed this Release as of the date set forth above.
CITY:
CITY OF RIALTO, a municipal corporation
By:
David Carmany, City Manager
Date:
ATTEST:
By:
Barbara A. McGee, City Clerk
Date:
APPROVED AS TO FORM:
By:
Eric S. Vail, City Attorney
Exhibit "D"
-16-
LHR:
LEWIS-HILLWOOD RIALTO COMPANY, LLC,
a Delaware limited liability company
By: LEWIS-RIALTO COMPANY, LLC,
a Delaware limited liability company
Its Managing Member
By: LEWIS MANAGEMENT CORP.,
a California corporation
its sole member
By:
Printed Name:
Title:
Date:
By: HGI CA INVESTORS, L.P.,
a California limited partnership
A Member
By: HGI GP, LLC
a Texas limited liability company
its general partner
By:
Printed Name:
Title:
Date:
Exhibit "D"
-17-
SARDA:
SUCCESSOR AGENCY TO THE CITY OF RIALTO REDEVELOPMENT AGENCY, a Public corporation
By: Date:
Attest:
By: Date:
Approved as to form:
By:
Eric S. Vail, City Attorney
Date:
[JURATS TO BE ATTACHED]
Exhibit "D"
-18-
EXHIBIT A
TO ATTACHMENT NO. 5
LEGAL DESCRIPTION
[To Be Attached]
Exhibit “E”
-1-
EXHIBIT E
MAINTENANCE AGREEMENT
[SEE ATTACHED]
Exhibit “E”
-2-
RECORDING REQUESTED BY:
Title Company
AND WHEN RECORDED MAIL TO:
The City of Rialto
131 S. Riverside Avenue
Rialto, California 92376
This document is exempt from payment of a recording fee pursuant to Government Code Section 27383
MAINTENANCE AGREEMENT
This MAINTENANCE AGREEMENT is made as of , 202_, by and between the CITY OF RIALTO , a California general law city (the “City ”), and _______________, a __________________________ (the “ Buyer”), with reference to the following:
A. T he City, Lewis -Hillwood Rialto Company, LLC, a Delaware limited lia bility company (“LHR”) and the Successor Agency to the City of Rialto Redevelopment Agency, a California public body (“ SARDA”) (collectively “Seller ”), have jointly conveyed to Buyer by grant deed (the “Grant Deed”) certain real property located in the City of Rialto, County of San Bernardino, State of California, more fully described in Exhibit “A” attached hereto and incorporated herein by this reference (the “Site”).
B. The City, LHR, SARDA and Buyer have executed that certain Purchase and Sale Agreement as of , 2024 (the “PSA”). The PSA provides for the disposition and development of the Site. The Agreement is available for public inspection and copying at the office of the City Clerk, Rialto City Hall, 150 S. Palm Avenue, Rialto, CA 92376. All of the t erms, conditions, provisions and covenants of the PSA are incorporated in this Maintenance Agreement by reference as though written out at length herein. Capitalized terms used herein and not otherwise defined shall have the same meaning as set forth in the PSA.
C. This Maintenance Agreement is entered into with respect to the maintenance of the Buyer Improvements following completion by Buyer in accordance with the Grant Deed, the PSA and that certain Declaration of Construction Covenants recorded concurre nt with this Maintenance Agreement .
NOW, THEREFORE, the Buyer and the City hereby agree as follows:
1. Performance of Maintenance.
(a) Buyer shall maintain the Buyer Improvements and appurtenant improvements on the Site in accordance with the Maintenance Standards, as hereinafter defined. Said improvements
Exhibit “E”
-3-
shall include, but not be limited to, buildings, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping, architectural elements identifying the Site and any and all other improvements on the Site.
(b) To accomplish the maintenance, Buyer shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirements of this Maintenance Agreement.
(c) The following standards (“ Maintenance Standards”) shall be complied with by Buyer and its maintenance staff, contractors or subcontractors, to the extent applicable to the improvements located on the Site:
1. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appeara nce and safe road conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees.
2. Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed- free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves an d other debris are properly disposed of by maintenance workers.
3. All maintenance work shall conform to all applicable federal and state Occupation Safety and Health Act standards and regulations for the performance of maintenance.
4. Any and all chemicals, unhealthful substances, and pesticides used in and during maintenance shall be applied in strict accordance with all governing regulations.
Precautionary measures shall be employed recognizing that all areas are open to public access.
5. The Buyer Improvements s hall be maintained in conformance and in compliance with the approved Site construction and architectural plans and design scheme, as the same may be amended from time to time with the approval of the City, and reasonable development maintenance standards for similar projects, including but not limited to: painting and cleaning of all exterior surfaces and other exterior facades comprising all private improvements and public improvements to the curbline.
6. The Buyer Improvements shall be maintained as require d by this Maintenance Agreement in good condition and in accordance with the custom and practice generally applicable to comparable residential developments located in Southern California.
Exhibit “E”
-4-
2. Failure to Maintain Buyer Improvements. In the event Buyer does not maintain the Buyer Improvements in the manner set forth herein and in accordance with the Maintenance Standards, City shall have the right to maintain such improvements, or to contract for the correction of such deficiencies, after written notice to Buyer. However, prior to taking any such action, City agrees to notify Buyer in writing if the condition of said improvements do not meet with the Maintenance Standards and to specify the deficiencies and the actions required to be taken by Buyer to cure the deficiencies. Upon notification of any maintenance deficiency, Buyer shall have forty-five (45) days within which to correct, remedy or cure the deficiency or to commence such correction and diligently pursue such corrections for maintenance requiring more than 45 days to correct.
In the event the Buyer fails to correct, remedy, or cure or has not commenced correcting, remedying or curing such maintenance deficiency after notification and after the period of correction has lapsed, then City and/or City agent s shall have the right to maintain such improvements. Buyer agrees to pay City such charges and costs. Until so paid, the City shall have a lien on the Site for the amount of such charges or costs, which lien shall be perfected by the recordation of a “Notice of Claim of Lien” against the Site. Upon recordation of a Notice of Claim of Lien against the Site, such lien shall constitute a lien on the fee estate in and to the Site prior and superior to all after recorded monetary liens. Any such lien shall be subject and subordinate to any easement affecting the Site or any portion thereof entered into at any time (either before or after) the date of recordation of such a Notice of Claim of Lien. Any lien in favor of the City created or claimed hereunder is expressly made subject and subordinate to any mortgage or deed of trust made in good faith and for value, recorded as of the date of the recordation of the Notice of Claim of Lien describing such lien as aforesaid, and no such lien shall in any way defeat, invalidate, or impair the obligation or priority of any such mortgage or deed of trust, unless the mortgage or beneficiary thereunder expressly subordinates its interest, of record, to such lien. No lien in favor of the City created or claimed hereunder shall in any way defeat, invalidate, or impair the obligation or priority of any easement unless such instrument is expressly subordinated to such lien. Upon foreclosure of any mortgage or deed of trust made in good faith and for value and recorded prior to the recordation of any unsatisfied Notice of Claim of Lien, the foreclosure - purchaser shall take title to the Site free of any lien imposed by the City that has accrued up to the time of the foreclosure sale, and upon taking title to the Site, such foreclosure-purchaser shall only be obligated to pay costs associated with this Maintenance Agreement accruing after the foreclosure-purchaser acquires title to the Site. Buyer acknowledges and agrees City may pursue any and all other remedies available in law or equity. Buyer shall be liable for any and all attorneys’ fees, and other legal costs or fees incurred in collecting said maintenance costs. Notwithstanding the foregoing, this Maintenance Agreement (including the lien described above) shall not be binding upon and shall not be shown as an exception to title to, any lot or condominium unit within the Site which: (i) has been improved with a residence and is conveyed to an individual home buyer; or (ii) is conveyed to any governmental agency, quasi - governmental agency or authority, public utility, conservation authority or homeowners association. The conveyances described in clauses (i) an (ii) are each referred to as an “Exempt Conveyance.” Upon the recording of a grant deed or other document or instrument ef fecting an Exempt Conveyance, this Maintenance Agreement shall automatically terminate as to the portion of the Site conveyed in the Exempt Conveyance. No further instrument or documents shall be required to effectuate this provision.
Exhibit “E”
-5-
3. Compliance with Law. Buyer shall comply with all local, state and federal laws relating to the uses of or condition of the Site. If any new local laws relating to uses of or condition of the improvements create a condition or situation that constitutes a lawful nonconforming use as defined by local ordinance with respect to the Site or any portion thereof, then so long as the lawful nonconforming use status remains in effect (i.e., until such lawful status is properly terminated by amortization as provided for in the new local law or otherwise), Buyer shall be entitled to enjoy the benefits of such lawful nonconforming use pursuant to the lawful nonconforming uses ordinance.
4. Effect of Violation of the Terms and Provisions of this Maintenance Agreement. The covenants established in this Maintenance Agreement and the Grant Deed shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City, its successors and assigns, as to those covenants which are for its benefit. The covenants contained in this Maintenance Agreement shall remain in effect for the periods of time specified herein. The City is deemed the beneficiary of the terms and provisions of this Maintenance Agreement and of the covenants running with the land, for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Maintenance Agreement and the covenants running with the land have been provided.
The Maintenance Agreement and the covenants shall run in favor of the City, without regard to whether the City has been, remains or is an owner of any land or interest therein in the Site or in the Project area. The City shall have the right, if the Maintenance Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Maintenance Agr eement and covenants may be entitled. In no event shall Buyer, or any successor in interest, be liable pursuant to this Maintenance Agreement for events and circumstances occurring after such party’s interest in the Property has been conveyed to a permitted assignee.
5. Miscellaneous Provisions.
(a) If any provision of this Maintenance Agreement or portion thereof, or the application to any person or circumstances, shall to any extent be held invalid, inoperative or unenforceable, the remainder of this Maintenance Agreement, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby; it shall not be deemed that any such invalid provision affects the consideration for this Maintenance Agreement; and each provision of this Maintenance Agreement shall be valid and enforceable to the fullest extent permitted by law.
(b) This Maintenance Agreement shall be construed in accordance with the laws of the State of California.
(c) Except for Exempt Conveyanc es, this Maintenance Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Buyer.
Exhibit “E”
-6-
(d) In the event action is instituted to enforce any of the provisions of this Maintenance Agreement, the prevailing party in such action shall be entitled to recover from the other party thereto as part of the judgment, reasonable attorney’s fees and costs.
6. Effect of Maintenance Agreement. The covenants and agreements established in this Maintenance Agreement shall, without regard to technical classification and designation, run with the land and be binding on each owner of the Site and any successor in interest to the Site, or any part thereof (including each parcel thereof, except for Exempt Conveyances), for the benefit of and in favor of the City, its successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGES FOLLOW]
Exhibit “E”
-7-
IN WITNESS WHEREOF, the parties hereto have executed this Maintenance Agreement the day and year first hereinabove written.
Date:
CITY:
CITY OF RIALTO,
A California municipal corporation
David Carmany, City Manager
ATTEST:
By:
Barbara A. McGee, City Clerk
APPROVED AS TO FORM:
By:
Eric S. Vail, City Attorney
[Signatures Continued on Following Page]
Exhibit “E”
-8-
BUYER:
a
Date: By:
Name:
Its:
Exhibit “E”
-9-
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 )
On , before me, , (insert name of notary)
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)
Exhibit “E”
-10-
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 )
On , before me, , (insert name of notary)
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)
Exhibit “E”
-11-
EXHIBIT “A”
LEGAL DESCRIPTION OF SITE
[TO BE COMPLETED PRIOR TO RECORDING]
Exhibit “F”
-1-
EXHIBIT F
LIST OF PROPERTY DOCUMENTS
1. Renaissance adopted SP Nov 2010.pdf
2. 2015 Ren_TIA Final_Report.pdf
3. 2015 Ren_TIA Final_Appendices.pdf
4. 1-3 Rialto AirportBiological Resources Assessment_20051110.pdf
5. 1-4 Rialto AirportGnatcatcher Survey_20060706.pdf
6. 1-5 Rialto AirportSensitive Plant Survey_20060706.pdf
7. SBKR Survey Jericho Nov 2016
8. Renaissance BUOW Focused Survey Report_Final
9. Renaissance Burrowing Owl Exclusion Plan_2.22.17
10. 2016 Renaissance CAGN Survey Report Jan-16-17
11. Renaissance Specific Plan Habitat Suitability Assessment 9.20.16_Final
12. 1-6 Illustrative land use exhibit 7.14.10.pdf
13. 1-7 Land Use Map 122309.jpg
14. 1-8 Rialto Airport HA Update_10.28.14_reduced.pdf
15. NOD.pdf
16. RSPA CEQA Findings 2016-11-22.pdf
17. RSPA FSEIR_2016.11.29.pdf
18. RSPA MMRP 2016.11.30.pdf
19. RSPA_FINAL_2017.pdf
20. 01230027_ MMRPrev.pdf
21. 01230027_Findings Complete.pdf
22. 01230027_Renaissance DEIR_Complete.pdf
23. 01230027_Renaissance FEIR_Complete.pdf
24. Draft EIR.zip
25. 01230027_Renaissance FEIR_Complete.pdf
26. 2015-08-12_SPBook.pdf
27. 2015-09-30_LUP-400sc.pdf
28. Table 2-1_2015-09-29.pdf
29. RSPA_DRAFT_2018-06
30. 2-1 Recorded Record of Survey 10-16-09.pdf
31. 2-2 Moran Existing Dry Utility Exhibit.pdf
32. 2-3 2006-08-02 Prelim Geo Invest 600-acre Res and Comm Dev.pdf
33. 615_TOPO - Standard.zip
34. 615_TOPO.pdf
35. Color-U-Exh-EXIST-200 Scale.pdf
36. Color-U-Exh-EXIST-200sc - Standard.zip
37. 3-12 FINAL E&M Paint Soil Vapor Extraction Well Install and Test Results 2-19-09.pdf
Exhibit “F”
-2-
38. 3-14 Ria lto Airport UST Removal and Soil Sampling Report Final for Mercy and Scholl.pdf
39. 3-15 UST Closure for County Sheriff Aviation Facility.pdf
40. 3-16 UST Closure NFA County Fire 8.10.2015.pdf
41. 3-5 Tech Memo Workplan - Rialto Airport.pdf
42. 3-6 E&M WestPac Addtl Inves - Tech Memo.pdf
43. 3-7 HSSE Report- E&M Paint Revised 9-3-08 with Tables.pdf
44. 3-8 Sheriffs Dept Addtl Inves - Tech Memo (3).pdf
45. 3-9 Limited Soil Gas Investigation.pdf
46. Addendum to RACR.PDF
47. RemovalActionCompletionRialtoAugust82016.pdf
48. Appendix D EDR Radius Map.pdf
49. Property C ESA.pdf
50. Clean Up Plan Approval Letter 5-06-10.pdf
51. Draft Cleanup Plan Appendix A.pdf
52. Draft Cleanup Plan Appendix B.pdf
53. Draft Cleanup Plan Appendix C.pdf
54. Draft Cleanup Plan Appendix D.pdf
55. Draft Cleanup Plan Appendix E.pdf
56. Draft Cleanup Plan Appendix F.pdf
57. Draft Cleanup Plan Appendix G.pdf
58. Draft Cleanup Plan Appendix H.pdf
59. Draft Rialto Cleanup Plan April 2010 Text and Figures.pdf
60. 2015-2016 City of Rialto Pollution Proposal - Revised - 9-16-15.pdf
61. Chubb Supplemental Application (Mold).pdf
62. Executed Surplus Lines Disclosure.pdf
63. Executed TRIA Waiver.pdf
64. Appendix I - Report lead soil sampling.pdf
65. Updated App B Summary Screening Tables 2015.pdf
66. Updated appendix H - 2015.pdf
67. Updated draft cleanup plan 2015.docx
68. Updates Appdx C Summary of Analytical Results 2015a.pdf
69. Attachment 1 - RFB 15-050 CP 130704 Complete Specifications.pdf
70. Attachment 2 - 130704 Bid Results.pdf
71. Attachment 3 - Construction Contract.pdf
72. Attachment 4 - Willdan CM Inspection Proposal.pdf
73. Attachment 5 - NOD.pdf
74. Phase 2 Demo Award Staff Report 3.24.15.pdf
75. Appendix D EDR Radius Map.pdf
76. Property D Phase I ESA.pdf
77. Appendix D.pdf
78. Final Phase II Report.pdf
79. Final Site Charact Report 10-19-06.pdf
80. Final Site Charact Report Appendices G through K.pdf
81. 4-10 Miro Way Street Imp - Approved plans with Revised Sheets - 20150512.pdf
Exhibit “F”
-3-
82. 4-11 Miro Way Signing and Striping Plans.pdf
83. 4-12 Linden EDISON R20 UG OH Sleeving Plans 17-0612 (002).pdf
84. 4-13 Miro Way SCE Final - 12.21.2015.pdf
85. 4-14 Miro Way DU Composite - 20150904.PDF
86. 4-15 Fontana Water - Linden Ave - 2016-01-29_5959F.pdf
87. 4-3 Linden-Street Improvements Delta 6_07-26-2017.pdf
88. 4-4 Linden Ultimate Striping 9.1.17.pdf
89. 4-5 AS-BUILT Linden Avenue Sewer Improvement Plans - APPROVED 20150601.pdf
90. 4-6 Miro_Way_SD_AS BUILT_20160320.pdf
91. 4-7 AS-BUILT Miro Way Sewer Improvement Plans - APPROVED 20150521.pdf
92. 4-8 Fontana Water Miro.pdf
93. 4-9 Miro Way Street Light Plans - REVISION SET - 20150910.pdf
94. 2013-01-10-RenaissanceMPD.PDF
95. Hydraulics (2).pdf
96. renaissance-hydrology 30x42 (2).pdf
97. RenaissanceMPD-Alignments 24x36 (2).pdf
98. Watershed 24X36 (2).pdf
99. 2014-04-25-RenaissanceMPD.pdf
100. renaissance-hydrology-2014-30x42.pdf
101. RenaissanceMPD-Alignments 24x36 (1).pdf
102. 5-1 BCD Agmt Sep, 2012 Fully Executed Complete.pdf 103. 5-10 DOF Rialto OB 13-09 Revised.pdf
104. 5-11 FY1516 Rialto_LLD 2_Engineer Report Intent.pdf 105. 5-2 Executed City SBIAA Agreement.pdf
106. 5-3 Recorded Agreement # 2008-0168257.pdf Ground Monitoring Wells 107. 5-4 Geo-Logic Memo - Proposed Well Sites (11.29.2007).pdf 108. 5-5 2008 DIR Request_for_Coverage_Determination_-_Signed_copy.pdf 109. 5-6 DIR Determination 8-15-08.PDF
110. 5-7 2013 DIR Request for Coverage Determination.pdf 111. 5-8 DIR Determination Letter 10.9.13.pdf
112. 5-9 DOF Approval Letter of Resolution OB 13-09.pdf 113. Fully Executed Development Agreement between City of Rialto and Lewis -Hillwood Rialto.pdf