Agenda Item No.
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Fermin Preciado, Director of Development Services/City Engineer �� Benjamin Matlock, Deputy Director of Community Development / City Planner Ryan C. Miller, Housing and Economic Development Analyst FOR: City Council Meeting of August 28, 2023
SUBJECT: Purchase and Sale Agreement — SG Opal, Inc. - Property located adjacent to 32788 Oak Glen Road.
RECOMMENDATION:
That the City Council:
1. Approve the property Purchase and Sale Agreement with SG Opal, Inc. for the sale of City - owned right-of-way located adjacent to 32788 Oak Glen Road in the amount of $198,298.62; and
2. Authorize the City Manager, or his designee to execute the necessary documents to complete the sale of the property.
BACKGROUND/DISCUSSION:
At the regular meeting of January 23, 2023, the City Council approved a Conditional Use Permit and Development Agreement for the development of a commercial center that includes a fuel station, a 9,000 square foot convenience store, quick service restaurant, office space, and a 66- room hotel on a property located at 32788 Oak Glen Road (Case No. 21-026). As projected on the site plan, portions of the development is proposed on existing right-of-way that is a remnant of property initially acquired for the Oak Glen Road extension from Yucaipa Boulevard to Colorado Street. The Development Agreement acknowledged that this excess portion of right-of-way would be purchased by the developer as part of the project development.
Resolution No. 2023-08, approved by City Council on March 27, 2023, completed the public right- of-way vacation process needed to separate relevant portions from the Oak Glen Road right-of- way, with the next step requiring a Purchase and Sale Agreement for the vacated right-of-way.
Resolution No. 2023-08 is consistent with the provisions of the "Streets and Highways Code of the State of California" pursuant to section 8330. The approved vacation serves a public purpose by eliminating and clearing the public records of excess and unnecessary public road right-of-way.
It should be noted that a future sidewalk easement will be recorded at the intersection of Colorado Street and Oak Glen Road related to the signal pole, equipment, and sidewalk once the final design has been completed.
A Mitigated Negative Declaration was adopted in compliance with the California Environmental Quality Act (CEQA) for Case No. 21-026, which had contemplated the vacation of the excess right-of-way. As a result, the development project does not require any additional environmental review pursuant to Section 15162(a) of the CEQA Guidelines.
If approved, the sale of the Property will generate $198,298.62 in revenue. As stated in the Purchase and Sale Agreement, the City of Yucaipa is responsible for half of the Escrow cost in addition to the cost of the Title Report, which will be ducted from the Property's revenue. The Net Proceeds will be determined at the close of Escrow.
Staff recommends the approval of the Purchase and Sale Agreement as presented. The Purchase and Sale Agreement is consistent with the approved Development Agreement dated January 23, 2023.
FISCAL IMPACT:
Net Proceeds were not included in the FY 2023-2024 Annual Budget. Net proceeds of approximately $195,298.62 will be recorded as a revenue in the Traffic Facilities DIF Fund.
Attachments:
1. Purchase and Sale Agreement
2. Site Plan
Approved by:
2 ATTACHMENT 1
PURCHASE AND SALE AGREEMENT
SG Opal, Inc.
This Purchase and Sale Agreement ("Agreement") is entered into this day of August 2023 ("Effective Date"), by and between THE CITY OF YUCAIPA, a California municipal corporation ("Seller"), and SG Opal, Inc., a California corporation (the "Buyer"). In consideration of the mutual covenants and agreements, the parties agree to the following terms and conditions:
ARTICLE I
AGREEMENT OF
SALE
1.1 Property. Seller owns certain real right of way property located adjacent to 32788 Oak Glen Road, in Yucaipa, California, adjacent to APN:030117407 ("Property"), as more particularly described in Exhibit "A" (Legal Description) and depicted on Exhibit `B" (Plat Map), both of which are attached hereto and incorporated herein by reference.
1.2 Intention. Buyer desires to purchase in fee the Property, and the Seller desires to convey the Property to Buyer.
1.3 Incomplete Legal Description. If the legal description of the Property is not complete or is inaccurate, this Agreement shall not be invalid, and the legal description shall be completed or corrected to meet the requirements of the title company to issue a title policy hereinafter described.
1.4 Due Diligence. Buyer shall have thirty (10) days following the Effective Date to perform, in its sole discretion, its due diligence review of the condition of Property and all other matters concerning the Property, including without limitation, condition of title, economic, financial, and accounting matters relating to or affecting the Property or its value, and the physical and environmental condition of the Property ("Due Diligence Period"). During the Due Diligence Period, Buyer shall have made such inquiries, communicated with local, state, and federal government agencies as it sees fit, retained such consultants, and taken such actions as Buyer deems necessary or appropriate to enter into this Agreement. Seller authorizes Buyer to make all inquiries of appropriate governmental authorities with respect to the Property, as Buyer, in its good faith and reasonable judgment deems necessary to satisfy itself as to the condition of title to the Property and the feasibility of any proposed development on the Property. On or before the Due Diligence Period, Buyer shall deliver written notice to Seller accepting the Property or terminating this Agreement. If Buyer fails to give such notice on or before the Due Diligence Period, Buyer shall be deemed to have accepted the Property and proceed with this Agreement.
1.5 Due Diligence Materials. Within thirty (10) days of the Effective Date, Seller shall deliver or make available to Buyer complete copies of all materials relating to the use, ownership,
condition, operation, development or marketing of the Property that are in possession or control of or available to Seller, including without limitation all preliminary plans, engineering and soils reports, title policies, surveys, maps, environmental inspections and reports, hazardous waste reports, grading, streets, storm drain, sewer, water, landscape and irrigation plans, "will -serve" letters, feasibility studies and consultant agreements ("Due Diligence Materials"), to the extent not previously delivered by Seller to Buyer.
1.6 Right of Entry. After Seller's execution of this Agreement and during Escrow, Seller grants to Buyer and its agents, employees, contractors or subcontractors, the right to enter into and upon the Property for the purpose of conducting a Phase I Environmental Site Assessment, soil testing, environmental and engineering studies, and such further engineering, grading, archeological, geological or survey work as may be required for the preparation by Buyer of its development plans for the Property. Buyer must obtain Seller's permission, in writing, before any intrusive soil testing is performed. Buyer shall provide Seller with twenty-four (24) hours' notice prior to such entry. Prior to entry Buyer shall provide Seller with all certificates of insurance and additional insured endorsements in the amounts required by Seller, such as, but not limited to commercial general, workers' compensation, and automobile insurance. Buyer agrees to keep the Property free and clear of any liens or encumbrances that may arise out of Buyers inspection of and activities on the Property. All costs, expenses, liabilities or charges incurred in or related to the performance of any and all of such studies and work on the Property including the preparation by Buyer of any plans or maps for the development or use of the Property, and the cost of filing, recording reports, plans, maps or other documents related thereto shall be at the sole cost and expense of and shall be paid by Buyer. Buyer hereby agrees to repair any damage done to the Property by Buyer, its agents, employees, servants or nominees, and Buyer shall restore the Property to the same or similar condition as existed on the Effective Date. Buyer shall not have any such obligation if Escrow closes and title to the Property vests in Buyer. The right to enter the Property shall be co -extensive with the period during which Escrow is open, or any extension thereof.
1.7 Assumption of the Risk. Subject to the other provisions of this Agreement: (a) Buyer agrees, that by its acceptance of the Property under Section 1.4, it assumes the risk that an adverse condition of the Property may not have been revealed by its own due diligence; and (b) on Buyer's acceptance, Seller shall have no obligation to repair, correct, or compensate Buyer for any condition of the Property, including defects in improvements, noncompliance with applicable laws and regulations, including without limitation zoning laws, building codes, and the Americans with Disabilities Act, whether or not such condition of the Property would have been disclosed by Buyer's due diligence.
1.8 Duty to Act in Good Faith. The parties agree to act in good faith and fair dealing and endeavor to utilize their best efforts to perform all terms of this Agreement.
ARTICLE II
PURCHASE PRICE, ESCROW, DEPOSIT AND BUYER'S OBLIGATIONS 2 2.1 Purchase Price. Developer agrees to pay to the City, the appraised value of $4.98 per square foot ("Purchase Price") for the Property. The parties acknowledge and agree that the Purchase Price represents the full fair market value of the Property. The parties agree that the Property is comprised of 39,819 square feet of land and that the Purchase Price is $198,298.62.
The Purchase Price shall be payable to Seller in immediately available funds in accordance with the provisions and requirements of this Agreement.
2.2 Escrow. Within thirty (30) days following the Effective Date, Seller shall open an escrow ("Escrow") with an escrow company of Seller's choice ("Escrow Holder"), for the purpose of consummating this Agreement. The parties hereto shall execute and deliver to Escrow Holder such escrow instructions prepared by Escrow Holder as may be required to complete this transaction. Any such instructions shall not conflict with, amend, or supersede any provision of this Agreement. If there is any inconsistency between such instructions and this Agreement, this Agreement shall control.
2.3 Deposit. Within fourteen (14) days following the Effective Date, Buyer shall deliver a deposit in the amount of one hundred thousand Dollars ($100,000) ("Deposit") to the Escrow Holder which will be applied towards the Purchase Price at the Close of Escrow, subject however to the Seller's right to liquidated damages as set forth in Section 6.5 in the event of Buyer's default. After the Due Diligence Period, if Buyer has not terminated this Agreement as provided in Section 3.1 below, Buyer's Deposit shall become non-refundable but may still be applied towards the Purchase Price at the Close of Escrow. If this Agreement is terminated for any reason after one hundred and eighty (180) days, the Deposit shall be released to Seller.
ARTICLE III
CLOSING
3.1 Closing Date. This transaction shall close within thirty (45) days from the Effective Date ("Close of Escrow"). If Escrow is not in a condition to close by the Close of Escrow and if delay in closing is caused by the default of seller or buyer, the non -defaulting party has the right to cancel Escrow. Unless objected to in writing within ten (10) days from the receipt of the notice of cancellation, the Escrow will automatically be canceled. If no demand for cancellation is made, then Escrow will close as soon as possible. Notwithstanding the foregoing, the Close of Escrow may be extended by mutual agreement if the parties are diligently attempting to resolve the issue(s) that may be preventing or delaying the Close of Escrow.
3.1 Closing Documents.
3.1.1 Seller, prior to the Close of Escrow, shall deliver to Escrow Holder each of the following items, the delivery of each of which shall be a condition to the performance by Buyer of its obligations under this Agreement:
(a) A grant deed sufficient for recording, conveying legal title of the
Property to Buyer; and
(b) All additional documents and instruments which may be reasonably necessary for the Close of Escrow and to consummate the sale of the Property in accordance with the terms of this Agreement and with the requirements of the Title Company.
3.1.2 Buyer, prior to the Close of Escrow, shall deliver to Escrow Holder each of the following items, the delivery of each of which shall be a condition to the performance by Seller of its obligations under this Agreement:
(a) Funding for the Purchase Price of the Property and any additional funds necessary to satisfy Buyer's obligation relating to acquisition of the Property; and
(b) Copies of Buyer's authority documents and/or such other documents and instruments evidencing Buyer's due existence and authority to enter into and consummate the sale of the Property contemplated by this Agreement as Seller or Escrow Holder may require; and
(c) Any additional documents and instruments which may be reasonably necessary to consummate the sale of the Property in accordance with the terms of this Agreement and with the requirements of the Title Company.
3.2 Taxes. Buyer understands and acknowledges that Seller, as a public entity, is not being assessed for any real property taxes or for any special assessments on the Property. However, upon the Close of Escrow, Buyer understands and acknowledges that real property taxes and special assessments will be assessed against the Property and Buyer will be responsible for the same. Buyer agrees to hold Seller harmless for any and all real property taxes and/or special assessments on the Property assessed on and after Close of Escrow.
3.3 Condition of Title. At the Close of Escrow, Seller shall convey fee simple merchantable and insurable title of the Property to the Buyer free and clear of all liens, restrictions, delinquent taxes and assessments, and encumbrances as evidenced by a CLTA Title Insurance Policy ("Title Policy") issued by Title Company in an amount equal to the Purchase Price. Buyer may elect to require that the Title Policy be an ALTA extended coverage policy so long as that does not delay the Close of Escrow and Buyer pays the additional cost therefor (including the cost of any survey required by Title Company). The Title Policy shall show as exceptions with respect to the Property only matters approved in writing by the Buyer during the Due Diligence Period.
Any exceptions to title representing monetary liens or encumbrances shall be deemed disapproved by Buyer, and Escrow Holder is hereby authorized and instructed to cause at Seller's expense the re -conveyance or partial re -conveyance, as the case may be, of any such monetary exceptions to Buyer's title to the Property at or prior to the Close of Escrow.
3.4 Costs.
3.4.1 At the Close of Escrow, and as a debit from the closing proceeds to be paid to Seller, Seller shall be responsible for: (i) one-half the cost of any escrow charges imposed by the Escrow Holder; (ii) the cost of a CLTA Standard form policy of title insurance from Title Company; and (iii) any other expenses customarily charged to Seller in connection with similar transactions including its own attorney's fees.
3.4.2 At the Close of Escrow, Buyer shall be responsible for: (i) all recording fees and any and all state, county, and local governmental transfer taxes, documentary or otherwise, and/or the cost of documentary stamps to be affixed to the instrument or instruments of conveyance (if obtained by Buyer); (ii) the additional cost of an extended ALTA owners title policy and associated costs if obtained by Buyer; (iii) one-half the cost of any escrow charges imposed by the Escrow Holder; (iv) any taxes disclosed in Section 3.3; and (v) any other expenses customarily charged to Buyer in connection with similar transactions including its own attorney's fees.
3.5 Brokerage Commissions. The parties acknowledge that neither party has been represented by a broker, with respect to this transaction. The parties hereby agree to indemnify, defend and hold the other party harmless from any and all claims that may arise in regard to any commission that may claimed to be owed.
ARTICLE IV
"AS -IS" PURCHASE
4.1 As -Is Information. Buyer acknowledges, agrees, represents, and warrants that:
(a) any information supplied or made available by Seller, whether written or oral, or in the form of maps, surveys, plats, soils reports, engineering studies, environmental studies, inspection reports, plans, specifications, or any other information whatsoever, without exception, pertaining to the Property, any and all records and other documents pertaining to the use and occupancy of the Property, income thereof, the cost and expenses of maintenance thereof, and any and all other matters concerning the condition, suitability, integrity, marketability, compliance with law, or other attributes or aspects of the Property, or a part thereof, if furnished to Buyer, is furnished solely as a courtesy; (b) THE INFORMATION IS PROVIDED ON AN "AS -IS, WHERE- IS"
BASIS AND SELLER MAKES NO REPRESENTATION, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO,
ANY WARRANTY OF CONDITION, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AS TO THE INFORMATION; and (c) no representations have been made by Seller, or its agents or employees, in order to induce Buyer to enter into this Agreement. Without limiting the generality of the foregoing, Buyer acknowledges, agrees, warrants and represents to Seller that neither the Seller nor its agents or employees have made any representations or statements to Buyer concerning the Property's investment potential or resale at any future date, at a profit or otherwise, nor has Seller or its agents or employees rendered any advice or expressed any opinion to Buyer regarding any tax consequences of ownership of the 5 Property.
4.2 As -Is Property. On the Close of Escrow, Buyer will be familiar with the Property and will have made such independent investigations as Buyer deems necessary or appropriate concerning the Property. Seller makes no representations or warranties and specifically disclaims any representation, warranty or guaranty, oral or written, past, present or future with respect to the use, physical condition or any other aspect of the Property, including without limitation the structural integrity of any improvements, the manner, construction, condition, state of repair or lack of repair of any improvements, the conformity of any improvements to any plans or specifications, including but not limited to, any plans and specifications that may have been or which may be provided to Buyer, the conformity of the Property to past, current or future applicable zoning or building code requirements or the compliance with any other laws, rules, ordinances, or regulations of any government or other body, the financial earning capacity or expenses history of the operation of the Property, the nature and extent of any right-of-way, lease, possession, lien, encumbrance, license, reservation, condition, or otherwise, the existence of soil instability, past soil repairs, soil additions or conditions of soil fill, susceptibility to landslides, sufficiency of undershoring, sufficiency of drainage, whether the Property is located wholly or partially in a flood plain or a flood hazard boundary or similar area, the existence or nonexistence of hazardous waste or other toxic materials of any kind, whether known or unknown and whether or not regulated or governed by applicable laws (including, without limitation, hydrocarbons or asbestos), or any other matter affecting the condition, stability, suitability or integrity of the Property or portion thereof.
4.3 Negligence or Failure to Investigate. Seller shall not be responsible for any negligent misrepresentation or failure to investigate the Property on the part of Seller, any real estate broker or agent, or any other agent, contractor, or employee of Seller or any third party.
4.4 As -Is. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PROPERTY IS BEING SOLD AND ACCEPTED ON AN "AS -IS, WHERE -IS"
BASIS, AND IS BEING ACCEPTED WITHOUT ANY REPRESENTATION OR WARRANTY. IF BUYER ELECTS TO PROCEED WITH THE PURCHASE OF THE
PROPERTY, ANY OBJECTIONS WHICH BUYER MAY HAVE WITH RESPECT TO
THE PROPERTY (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL
MATTERS, HAZARDOUS SUBSTANCES, WASTES OR TOXIC MATERIALS THAT
MAY BE LOCATED ON, UNDER OR ABOUT THE PROPERTY, WHETHER KNOWN OR UNKNOWN) SHALL BE WAIVED BY BUYER.
4.5 Past Uses. BUYER EXPRESSLY ACKNOWLEDGES AND AGREES AS PART OF ITS ACCEPTANCE OF THE PROPERTY ON AN "AS -IS, WHERE -IS" BASIS
THAT BUYER IS AWARE OF ALL PRIOR USES OF THE PROPERTY THAT MAY LEAD TO CONTAMINATION OF THE PROPERTY. AS OF THE CLOSE OF ESCROW,
BUYER SHALL HAVE OBTAINED AND READ ALL ENVIRONMENTAL
ASSESSMENTS REGARDING THE PROPERTY WHICH A REASONABLY DILIGENT BUYER WOULD HAVE OBTAINED PRIOR TO THE PURCHASE THEREOF. BUYER
ASSUMES ALL RESPONSIBILITY FOR ANY CONTAMINATION THAT IS PRESENT
ON THE PROPERTY DUE TO PRIOR AND/OR EXISTING USES OF THE PROPERTY.
4.6 Waivers. AS PART OF BUYER'S AGREEMENT TO PURCHASE AND ACCEPT THE PROPERTY "AS -IS, WHERE -IS," AND NOT AS A LIMITATION ON
SUCH AGREEMENT, BUYER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY AND ALL ACTUAL OR POTENTIAL RIGHTS BUYER MIGHT HAVE
REGARDING ANY FORM OF WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR TYPE, RELATING TO THE PROPERTY AND ITS IMPROVEMENTS. SUCH WAIVER IS ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED IN ANY WAY.
SUCH WAIVER INCLUDES, BUT IS NOT LIMITED TO, A WAIVER OF EXPRESS
WARRANTIES, IMPLIED WARRANTIES, WARRANTIES OF FITNESS FOR A
PARTICULAR USE, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF
HABITABILITY, STRICT LIABILITY RIGHTS, AND CLAIMS OF EVERY KIND AND
TYPE, INCLUDING BUT NOT LIMITED TO, CLAIMS REGARDING DEFECTS
WHICH WERE NOT OR ARE NOT DISCOVERABLE, PRODUCT LIABILITY
CLAIMS, PRODUCT LIABILITY TYPE CLAIMS, ANY RIGHTS AND CLAIMS
RELATING OR ATTRIBUTABLE TO ENVIRONMENTAL CONDITIONS, AND ALL
OTHER ACTUAL OR LATER CREATED OR CONCEIVED OR STRICT LIABILITY OR STRICT LIABILITY TYPE CLAIMS AND RIGHTS.
BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH IS SET FORTH BELOW:
"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 OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR."
BY INITIALING BELOW, BUYER HEREBY WAIVES THE PROVISIONS OF SAID SECTION 1542 IN CONNECTION WITH THE MATTERS WHICH ARE THE
SUBJECT OF THE FOREGOING ACKNOWLEDGMENTS, WAIVERS AND
RELEASES SET FORTH IN THIS ARTICLE 4. AND ACKNOWLEDGES BUYER IS PURCHASING THE PROPERTY "AS IS."
Buyer's Initials
ARTICLE V
REPRESENTATIONS, WARRANTIES AND INDEMNITIES
5.1 Seller's Representations, Warranties and Covenants. Seller hereby represents, warrants, and covenants to Buyer as of the date of this Agreement, and upon the Close of Escrow, as follows, all of which shall survive the Close of Escrow:
7 5.1.1 Seller is a public body and has the full power and authority to enter into and carry out the agreements contained in, and transactions contemplated by, this Agreement. The person(s) signing this Agreement and any documents and instruments in connection herewith on behalf of Seller have full power and authority to do so. This Agreement has been duly authorized and executed by Buyer, and upon delivery to and execution by Seller shall be a valid and binding agreement of Seller.
5.1.2 There are no attachments, assignments for the benefit of creditors, receiverships, conservatorships or voluntary or involuntary proceedings in bankruptcy or any other debtor relief actions contemplated by Seller or filed by Seller, or to the best of Seller's knowledge, pending in any current judicial or administrative proceeding against Seller or otherwise affecting the Property.
5.1.3 Seller has not entered into any other written contracts or agreements for the sale or transfer of any portion of the Property.
5.1.4 To Seller's knowledge, Seller has received no written notice of any hazardous materials located on, under, or about the Property, except as disclosed in writing to Buyer.
The material truth and accuracy of the foregoing representations and warranties shall be a condition of Buyer's obligations hereunder. Prior to the Close of Escrow, Seller shall notify Buyer of any facts or circumstances which are contrary to the foregoing representations and warranties.
5.2 Buyer's Representations and Warranties. Buyer hereby represents, warrants, and covenants to Seller as of the date of this Agreement, and upon the Close of Escrow, as follows, all of which shall survive the Close of Escrow:
5.2.1 The person(s) signing this Agreement and any documents and instruments in connection herewith on behalf of Buyer have full power and authority to do so. This Agreement has been duly authorized and executed by Buyer, and upon delivery to and execution by Seller shall be a valid and binding agreement of Buyer.
5.2.2 There are no attachments, assignments for the benefit of creditors, receiverships, conservatorships or voluntary or involuntary proceedings in bankruptcy or any other debtor relief actions contemplated by Buyer or filed by Buyer, or to the best of Buyer's knowledge, pending in any current judicial or administrative proceeding against Buyer.
The material truth and accuracy of the foregoing representations and warranties shall be a condition of Seller's obligations hereunder. Prior to the Close of Escrow, Buyer shall notify Seller of any facts or circumstances which are contrary to the foregoing representations and warranties.
5.3 No Warranties. Except for those representations and warranties expressly set forth in this Agreement, the parties understand and acknowledge that no person acting on behalf of Seller
is authorized to make, and by execution hereof Buyer acknowledges that no person has made any representations, agreement, statement, warranty, guaranty or promise regarding the Property or the transaction contemplated herein, or regarding the zoning, construction, development, physical condition or other status of the Property. Without limiting the generality of the foregoing, Seller makes no representation or warranties with respect to the amount or types of fees required to obtain building permits or otherwise to rezone and develop the Property.
ARTICLE VI
DEFAULTS
6.1 Default. A party shall be deemed in default hereunder if any of the warranties or representations set forth herein are or become untrue or if it fails to meet, comply with, or perform any covenant, agreement, or obligation on its part required within the time limits and in the manner required in this Agreement for any reason other than a default by the other party hereunder or termination of this Agreement prior to Close of Escrow.
6.2 Opportunity to Cure. No act, failure to act, event or circumstance which might be deemed to be a default by either party shall be deemed to be a default under any of the provisions of this Agreement, unless and until, notice thereof is first given by the non -defaulting party to the party alleged to be in default and said party fails to cure the alleged default within fifteen (15) days in the case of a non -monetary default (or, if the event of default is such that cannot be cured within fifteen (15) days, the party shall be entitled to commence the cure within such time and thereafter diligently prosecute it to completion), or five (5) days in the case of a monetary default.
6.3 Remedies. If Buyer is deemed to be in default after the Due Diligence Period, Seller shall be entitled to (a) the Deposit, including interest, which shall be forthwith delivered to Seller by Escrow Holder on receipt of notice from Seller that Buyer has defaulted under this Agreement and reasonable attorney's fees incurred by Seller and/or (b) termination of this Agreement.
6.4 Liquidated Damages. BUYER AND SELLER AGREE THAT AT THE TIME
THIS AGREEMENT IS MADE AND ENTERED INTO, SELLER'S DAMAGES UPON
DEFAULT BY BUYER UNDER THIS AGREEMENT ARE EXTREMELY DIFFICULT
OR IMPOSSIBLE TO CALCULATE AND BUYER AND SELLER AGREE THAT THE
AMOUNT OF LIQUIDATED DAMAGES SET FORTH HEREIN IS A REASONABLE
ESTIMATE UNDER THE CIRCUMSTANCES EXISTING AT THE TIME THIS
AGREEMENT IS MADE OF THE DAMAGES SELLER WOULD SUSTAIN BECAUSE OF SUCH DEFAULT BY BUYER UNDER THIS AGREEMENT. FURTHER, BUYER
DESIRES TO HAVE A LIMIT PLACED ON THE AMOUNT OF DAMAGE TO BE PAID TO SELLER UPON BUYER'S DEFAULT. BUYER HEREBY AGREES THAT SHOULD
BUYER DEFAULT IN THE PERFORMANCE OF BUYER'S OBLIGATION PRIOR TO
THE CLOSE OF ESCROW, SELLER SHALL BE ENTITLED TO THE SUM OF TEN THOUSAND DOLLARS ($10,000) AS LIQUIDATED DAMAGES FROM BUYER. THE FOREGOING PROVISIONS OF THIS SECTION 6.5 CONSTITUTE THE SOLE AND 9 EXCLUSIVE MONETARY REMEDY AVAILABLE TO SELLER AS A RESULT OF A
DEFAULT BY BUYER OF ITS OBLIGATIONS UNDER THIS AGREEMENT PRIOR TO CLOSE OF ESCROW. THE PROVISIONS OF THIS SECTION 6.5 DO NOT LIMIT ANY
DAMAGES DUE SELLER BY REASON OF BUYER'S ENTRY ONTO THE PROPERTY PUR ANT TO SECTION 1.6.
Buyer's itials Seller's Initials
ARTICLE VII
MISCELLANEOUS
7.1 Exhibits. All Exhibits annexed hereto are a part of this Agreement for all purposes.
7.2 Assignability. Buyer may not at any time assign any of its rights, title, and interest in and to this Agreement, other than to an affiliate of Buyer.
7.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Seller and Buyer, and their respective successors, heirs and permitted assigns.
7.4 Captions. The captions, headings, and arrangements used in this Agreement are for convenience only and do not in any way affect, limit, amplify, or modify the terms and provisions hereof.
7.5 Number and Gender of Words. Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate.
7.6 Notices. All notices, terminations, waivers and other communications hereunder shall be in writing and shall be delivered personally or shall be sent by registered or certified United States mail or a nationally recognized, overnight courier service, postage prepaid, and addressed as follows:
If to Seller: City of Yucaipa
Attn: Ryan Miller
Housing and Economic Development Department
34272 Yucaipa Blvd
Yucaipa, CA 92399
If to Buyer: SG Opal, Inc.
1462 Crestview Road
Redlands CA 92374
Attn: Pankaj Patel
10 Any notice in accordance herewith shall be deemed received when delivery is received or refused, as the case may be. Additionally, notices may be given by telephone facsimile transmission, provided that an original of said transmission shall be delivered to the addressee by a nationally recognized overnight delivery service on the business day following such transmission. Telephone facsimiles shall be deemed delivered on the date of such transmission.
7.7 Governing Law and Venue. The laws of the State of California shall govern the validity, construction, enforcement, and interpretation of this Agreement. All claims, disputes and other matters in question arising out of or relating to this Agreement, or the breach thereof, shall be decided by proceedings instituted and litigated in the state court in the County of San Bernardino, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county.
7.8 Entirety. This Agreement embodies the entire agreement between the parties and supersedes all prior written or oral agreements and understandings, if any, between them concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, between the parties hereto, relating to the subject matter contained in this Agreement which are not fully expressed herein.
7.9 Amendments. This Agreement may be amended or supplemented only by written documents signed by the parties.
7.10 Severability. If any of the provisions of this Agreement, or its application to any party or circumstance, is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement.
In lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible to make such provision legal, valid, and enforceable.
7.11 Further Acts. In addition to the acts and deeds recited herein and contemplated and performed, executed and/or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered at the Close of Escrow or after the Close of Escrow any and all such further acts, deeds, and assurances as may be necessary to consummate the transactions contemplated herein.
7.12 Construction. No provision of this Agreement shall be construed in favor of, or against, any particular party by reason of any presumption with respect to the drafting of this Agreement; both parties, being represented by counsel, having fully participated in the negotiation of this instrument.
11 7.13 Time of the Essence. It is expressly agreed by the parties hereto that time is of the essence with respect to each and every provision of this Agreement.
7.14 Waiver of Covenants, Conditions or Remedies. The waiver by one parry of the performance of any covenant, condition or promise, or of the time for performing any act under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise, or of the time for performing any other act required under this Agreement. The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude any other remedies unless they are expressly excluded.
7.15 Nondiscrimination. The parties shall not discriminate on the grounds of race, religious creed, color, national origin, ancestry, age, physical or mental disability, medical conditions, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, genetic information, gender, gender identity, gender expression, sex or sexual orientation, in connection with the performance of this Agreement. The parties further agree to conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement.
7.16 Ratification. This Agreement may be subject to the approval and ratification by the City of Yucaipa. In the event the City fails to approve this Agreement, there shall be no liability on the part of the Seller and this Agreement shall become null and void and of no further force and effect.
7.17 CEQA Compliance. Buyer and Seller understand, acknowledge and agree that the close of this escrow is contingent upon Seller's compliance with the California Environmental Quality Act ("CEQA"). Buyer must also comply with CEQA and all associated permits prior to development of the Property.
7.18 Counterparts. This Agreement may be executed in a number of identical counterparts. If so executed, each of such counterparts shall, collectively, constitute one original agreement. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
(Signatures on following page.)
12 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the above - written date.
Seller:
THE CITY OF YUCAIPA, a California
municipal corporation
Chris Mann, City Manager
Attested to:
LIN
Ana Sauseda, City Clerk
Approved as to form:
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Steven Graham, City Attorney
13 Buyer:
SG OPAL, INC., a California corporation
Name:
Title: C-)r�u,1S
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