Greens Group, Inc.-2019-24 2019-24
AGREEMENT FOR PURCHASE AND SALE
OF REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND JOINT
ESCROW INSTRUCTIONS ("Agreement") is made this 13 day of &&Q 2019 by and
between GREENS GROUP, INC., a California corporation ('Buyer"), and CITY OF GRAND
TERRACE, 'a public body, corporate and politic ("Seller"). Fidelity National Title Insurance
Company, a California corporation shall act as escrow ("Escrow Holder").
RECITALS:
A. Seller is the owner of that certain.unimproved real property in the City of Grand Terrace,
County of San Bernardino, State of California ("Property") comprised of the following:
i. 22317 Barton Road, Grand Terrace, CA 92313 (Assessor Parcel No. 1167-311-01) is
legally described on Schedule 1-A, depicted on Schedule 1-D and is the eastern most
parcel ("Parcel A").
ii. 22293 Barton Road, Grand Terrace, CA 92313 (Assessor Parcel No. 1167-231-01) is
legally described on Schedule 1-B, depicted on Schedule 1-D and is located west of,
22317 Parcel ("Parcel B").
iii. 22273 Barton Road, Grand Terrace, CA 92313 (Assessor Parcel No. 1167-231-02) is
legally described on Schedule 1-C, depicted on Schedule 1-D and is the western most
parcel ("Parcel C")
B. Seller desires to sell to Buyer and Buyer agrees to buy, the Property upon the terms and
conditions set forth in this Agreement:
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and
incorporating the Recitals, the parties hereto agree as follows:
TERMS AND CONDITIONS:
1. PURCHASE AND SALE OF PROPERTY.
1.1 Sale. Pursuant to the terms and subject to the conditions of this Agreement, Buyer
agrees to purchase from Seller and Seller agrees to sell to Buyer, the Property (i) in AS-IS
condition without representations or warranties; (ii) subject to the Lot Tie Agreement (defined in
Section 1.3); and (iii) subject to the covenants to Seller either in the Grant Deed (defined in Section
1.2) or a separate Covenant Agreement recorded concurrently with the Closing of Buyer's
purchase of the Property ("Covenant Agreement").
1.2 Grant Deed. At Closing, Seller shall transfer,the Property to Buyer substantially in
the form of the Grant Deed attached hereto as Exhibit B which shall be modified prior to Closing
pursuant to Section 8.5 ("Grant Deed"). Provided Buyer provides notice at least three (3) days
prior to the Closing, Buyer may direct that the grantee in the Grant Deed a wholly owned subsidiary
of Buyer in accordance with Section 15.1.
1.3 Lot Tie Agreement. Concurrently with the Closing, Buyer.shall -execute and
acknowledge a Lot Tie Agreement in a form reasonably acceptable to Seller shall be recorded
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immediately following the recordation of the Grant Deed ("Lot Tie Agreement"). If a parcel map is
filed concurrently with the Closing ("Parcel Map"), the Lot Tie Agreement shall not be required.
1.4 Reimbursement Agreement. Buyer has executed that certain Reimbursement
Agreement in favor of Seller of even date herewith ("Reimbursement Agreement"). A default (as
defined in the Reimbursement Agreement shall be a default under this Agreement.
2. EFFECTIVE DATE: OPENING OF ESCROW.
2.1 Effective Date. This Agreement shall be deemed effective upon execution of the
Agreement by Seller after the approval by the City Council ("Effective Date").
2.2 Openinci of Escrow. Within three (3) days after the Effective Date, the parties shall
open an escrow(Escrow)with Fidelity National Title Insurance Company (Escrow Holder) MaryLou
Adame at Fidelity National Title Insurance Company, 21680 Gateway Center Drive, Suite 110,
Diamond Bar, CA 91765 (909) 978-3020 Marvlou.Adame(a-)fnf.com by causing an executed copy of
this Agreement to be deposited with Escrow Holder which Escrow Holder shall sign and accept.
Escrow shall be deemed opened upon the last to occur of("Opening of Escrow"): (i)the executed
copy of this Agreement; and (ii) the Deposit (defined in Section 3.2.a). If Escrow is not opened
within five (5) days after the Effective Date, Seller shall have the right to terminate this Agreement
upon written notice to Buyer and Escrow Holder.
3. CONSIDERATION; PURCHASE PRICE; PAYMENT OF PURCHASE PRICE.
3.1 Consideration. All of the following is material consideration to Seller for the sale of
the Property to Buyer: (i) payment of the Purchase Price (defined in Section 3.1.a); (ii) the
Covenants (defined in Section 3.1.b); and (iii) Buyer's obligation to provide copies of the
Documents (defined in Section 3.1.c).
a. Purchase Price. The term "Purchase Price" means the sum of One Million Five
Hundred Two Thousand Five Hundred Twenty-Three Dollars ($1,502,523)which is
the sum of:
i. The purchase price for Parcels A and B is Six Hundred Thousand Dollars
($650,000)which has been determined by an appraisal.
ii. The purchase price for Parcel C is Eight Hundred Fifty-Two Thousand
Five Hundred Twenty-Three Dollars ($852,523) which has been
determined by an appraisal.
b. Covenants. The extensive restrictions and continuing covenants of Buyer with
respect to the development and uses of the Property as set forth in the Grant Deed
( or Covenant Agreement if applicable) ("Covenants") are material consideration
to Seller for the sale of the Property to Buyer. The Covenants shall run with the
Property and provide additional controls and rights in Seller with respect to the
uses and development of the Property notwithstanding uses otherwise authorized
by applicable zoning.
C. Documents. Buyer covenants and agrees to provide to Seller copies of all
contracts, agreements, plans, specifications, reports, investigations and any other
documents related to the development of the Property ("Documents") at no cost to
Seller and the issuer or creator of the respective Documents consenting in writing
to allow Seller to use same in the event that (i) Buyer does not acquire the
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Property pursuant to this Agreement; or (ii) if Buyer does acquire the Property but
Seller reacquires the Property pursuant to the Covenants. The term "Documents"
shall not include any financial information or any documents which are attorney-
client privileged. This obligation shall survive termination of this Agreement for any
reason.
3.2 Pavment of Purchase Price.
a. Deposit. Within three (3) days of the Effective Date, Buyer shall deliver the Deposit
to Escrow Holder in the amount of One Hundred Fifty Thousand Dollars ($150,000)
("Deposit").,
b. Balance of Purchase Price. Buyer shall deposit the balance of the Purchase Price
with Escrow Holder in Good Funds (as defined below) at least one (1) business day
prior to the Closing Date.
3.3 Good Funds. All funds deposited in Escrow shall be in "Good Funds" which
means a wire transfer of funds, cashier's or certified check drawn on or issued by the offices of a
financial institution located in the State of California.
4. FUNDS AND DOCUMENTS REQUIRED FROM BUYER AND SELLER.
4.1 Seller. Seller agrees that on or before 12:00 noon at least one (1) business day
prior to the Closing Date, Seller will deposit with Escrow Holder such funds and other items and
instruments (executed and acknowledged, if appropriate) as may be necessary in order for the
Escrow Holder to comply with this Agreement, including without limitation:
i. Executed and acknowledged Grant Deed (and Covenant Agreement, if applicable).
ii. A Non-Foreign Affidavit as required by federal law.
iii. Such funds and other items and instruments as may be necessary in order for
Escrow Holder to comply with this Agreement.
4.2 Buyer. Buyer agrees that on or before 12:00 noon at least one (1) business day
prior to the Closing Date, Buyer will deposit with Escrow Holder all additional funds and/or
documents (executed and acknowledged, if appropriate) which are necessary to comply with the
terms of this Agreement, including without limitation:
i. Executed copy of the Acceptance executed by Buyer to be attached to the Grant
Deed prior to recordation or, if applicable the Covenant Agreement.
ii. The Lot Tie Agreement(unless a Parcel Map will be recorded at Closing).
iii. A Preliminary Change of Ownership Statement completed in the manner required in
San Bernardino County ("PCOR").
iv. Any amounts due to Seller under the Reimbursement Agreement.
V. Such funds and other items and instruments as may be necessary in order for
Escrow Holder to comply with this Agreement.
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4.3 Recordation, Filing, Completion and Distribution of Document. Escrow Holder
shall confirm that any documents signed in counterpart are matching documents and shall combine
the signature pages thereof so as to create fully executed documents. Escrow Holder will cause
the (i) Grant Deed (with the executed Acceptance attached), (ii) the Covenant Agreement if
applicable, and (ii) Lot Tie Agreement or Parcel Map, to be recorded/filed in that order so it can
issue the Title Policy in accordance with Section 6.2. Promptly following Close of Escrow, Escrow
Holder shall distribute Escrow Holder's final closing statement and conformed copies of all
recorded documents to the parties.
5. CLOSING DATE: TIME IS OF ESSENCE.
5.1 Closing Date. Escrow shall close upon the later to occur of: (i)thirty (30) days after
the Due Diligence Expiration Date (defined in Section 7.2), and (ii) ten (10) days after expiration of
the appeals period of the both Entitlements (defined in Section 8.4) and CEQA (defined in Section
8.2) without any legal challenge being filed, BUT, in no event, later than twenty (20) months from
the Effective Date ("Closing Date"). The terms "Close of EscrovV' and/or "Closing" are used
herein to mean the time Grant Deed is filed for recording by the Escrow Holder in the Office of the
County Recorder of San Bernardino County, California. Notwithstanding the foregoing, if a legal
challenge as to Entitlements and/or CEQA has been filed and Buyer has elected under the
Reimbursement Agreement to contest such challenges and has provided the funds specified in the
Reimbursement Agreement for the legal proceedings, the Closing Date shall be extended for a
period of twenty (20) days following the date the legal challenge has been resolved or settled
allowing Buyer's proposed development to proceed.
6.2 Possession. Upon the Close of Escrow, Seller shall deliver exclusive possession
of the Property to Buyer.
5.3 Time is of Essence. Buyer and Seller specifically agree that time is of the essence
under this Agreement.
5.4 City Manager Authoritv. Seller by its execution of this Agreement agrees that the
City Manager of Seller or his designee (who has been designated by City Manager's written notice
delivered to Buyer and Escrow Holder) shall have the authority to execute documents on behalf of
Seller including, but not limited to, issuing approvals, disapprovals and extensions. Any such
approval, disapproval or extension executed by the City Manager or his designee shall be binding
on Seller. Notwithstanding the foregoing, City Manager or his designee may only grant extensions
for (i) the Due Diligence Period (defined in Section 7.1) that cumulatively do not exceed one
hundred eighty (180) days; (ii) the Entitlement Period (defined in Section 8) that cumulatively do
not exceed one hundred eighty (180) days; or (ii) the Closing Date that cumulatively do not exceed
one hundred eighty (180) days.
6. TITLE POLICY.
6.1 Approval of Title. Promptly upon Opening of Escrow, a preliminary title report shall
be issued by Fidelity National Title Insurance Company ("Title Company"), describing the state of
title of the Property, together with copies of all exceptions listed therein and a map plotting all
easements specified therein ("Preliminary Title Report"). Within thirty (30) days after Buyer's
receipt of the Preliminary Title Report, Buyer shall notify Seller in writing ("Buyer's Title Notice") of
Buyer's disapproval of any matters contained in the Preliminary Title Report except that Buyer may
not disapprove any title exceptions caused by Buyer's entry onto the Property pursuant to Section
7.2 ("Disapproved Exceptions"), provided all monetary liens encumbering the Property are
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hereby disapproved by Buyer and shall be removed and released by Seller through or prior to the
Close of Escrow.
In the event Buyer delivers Buyer's Title Notice within said period, Seller shall have a period
of ten (10) days after receipt of Buyer's Title Notice in which to notify Buyer of Seller's election to
either (i) agree to attempt to remove the Disapproved Exceptions prior to the Close of Escrow; or
(ii) decline to remove any such Disapproved Exceptions ("Seller's Notice"). If Seller notifies Buyer
of its election to decline to remove the Disapproved Exceptions, or if Seller is unable to remove the
Disapproved Exceptions, Buyer may elect either to terminate this Agreement and the Escrow or to
accept title to the Property subject to the Disapproved 'Exception(s). Buyer shall exercise such
election by delivery of written notice to Seller and Escrow Holder within five (5) days following the
earlier of (i) the date of written advice from Seller that such Disapproved Exception(s) cannot be
removed; or(ii) the date Seller declines to remove such Disapproved Exception(s).
Upon the issuance of any amendment or supplement to the Preliminary Title Report which
adds additional exceptions, the foregoing right of review and approval shall also apply to said
amendment or supplement, provided, however, that Buyer's initial period of review and approval or
disapproval of any such additional exceptions shall be limited to five (5) days following receipt of
notice of such additional exceptions.
6.2 Title Policv. At the Close of Escrow, Escrow Holder shall furnish Buyer with an
ALTA owner's non-extended coverage Policy of Title Insurance insuring title to the Property vested
in Buyer with coverage in the amount of the Purchase Price showing (i) title exceptions approved
pursuant to Section 6.1; (ii) the Lot Tie Agreement; (iii) the Covenants set forth in the Grant Deed;
and (vi) any exceptions caused by Buyer including pursuant to Section 7.4 ("Title Policy"). The
cost of the Title Policy to Buyer shall be paid by Seller but Buyer shall be obligated pay for any
endorsements. If Buyer desires to obtain an ALTA extended coverage owner's title policy, Buyer
shall deliver an ALTA survey, at Buyer's cost, to Title Company at least thirty (30) days prior to the
Closing Date and Buyer shall pay the additional cost for the extended coverage.
7. DUE DILIGENCE.
7.1 Due Diliqence. Seller has provided Buyer with any and all documents and
information in Seller's possession and control concerning the Property including, contracts, leases,
and reports. For a period of one hundred eighty (180) days from the Opening of Escrow ("Due
Diligence Period"), Buyer shall have the right to obtain at its cost to conduct such engineering,
feasibility studies, soils tests, environmental studies and other investigations as Buyer in its sole
discretion may desire, to permit Buyer to determine the suitability of the Property for Buyer's
contemplated uses and to conduct such other review and investigation which Buyer deems
appropriate to satisfy 'itself to acquire the Property, including Buyer securing financing and
necessary entitlements for Buyer's proposed project, in Buyer's sole discretion.
7.2 Disapproval of Due Diliqence Matters. Prior to expiration of the Due Diligence
Period ("Due Diligence Expiration Date"), Buyer may, in its sole discretion, notify Seller in writing
(with a copy to Escrow Holder) of (i) its disapproval of the due diligence matters (excluding title
matters which are to be approved or disapproved pursuant to Section 6), and (ii) its election to
terminate this Agreement and Escrow ("Disapproval and Termination Notice"). If Buyer sends
the Disapproval and Termination Notice in the time and manner specified above, the parties shall
execute any documents required by Escrow Holder and upon receipt of said documents executed
by the parties, Escrow Holder shall return the Deposit (less any cancellation charges) to Buyer. If
Buyer does not deliver the Disapproval and Termination Notice in the time and manner specified
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above, Buyer shall conclusively be deemed to have approved due diligence matters. Seller may, in
its discretion, agree in writing to extend the Due Diligence Expiration Date.
7.3 Right to Enter the Propertv. Commencing upon Opening of Escrow, Seller grants
Buyer, its agents and employees a limited license to enter upon the Property for the purpose of
conducting engineering surreys, soil tests, investigations or other studies reasonably necessary to
evaluate the condition of the Property, which studies, surveys, reports, investigations and tests
shall be done at Buyer's sole cost and expense.
Prior to entry onto the Property, Buyer shall (i) notify Seller the date and purpose of each
intended entry together with the names and affiliations of the persons entering the Property; (ii)
conduct all studies in a diligent, expeditious and safe manner and not allow any dangerous or
hazardous conditions to occur on the Property during or after such investigation; (iii) comply with all
applicable laws and governmental regulations; (iv) allow an employee of Seller to be present at
Seller's election; (v) keep the Property free and clear of all materialmen's liens, lis pendens and
other liens arising out of the entry and work performed under this provision; (vi) maintain or assure
maintenance of workers' compensation insurance (or state approved self-insurance) on all persons
entering the Property in the amounts required by the State of California; (vii) provide to Seller prior
to initial,entry a certificate of insurance evidencing that Buyer has procured and paid premiums for
an all-risk public liability insurance policy written on a per occurrence and not claims made basis in
a combined single limit of not less than TWO MILLION DOLLARS ($2,000,000) which insurance
names Seller as additional insured; (vii) return the Property to substantially its original condition
following Buyer's entry; (viii) provide Seller copies of all studies, surveys, reports, investigations
and other tests derived from any with the right to use same (as provided in Section 3.1.c)
("Reports"); and (ix) to take the Property at closing subject to any title exceptions caused by Buyer
exercising this right to enter.
Buyer agrees to indemnify, and hold Seller free and harmless from and against any and
all losses, damages (whether general, punitive or otherwise), liabilities, claims, causes of action
(whether legal, equitable or administrative), judgments, court costs and legal or other expenses
(including reasonable attorneys' fees) which Seller may suffer or incur as a consequence of
Buyer's exercise of the license granted pursuant to this Section 7.3 or any act or omission by
Buyer, any contractor, subcontractor or material supplier, engineer, architect or other person or
entity acting by or under Buyer (except Seller and its agents) with respect to the Property,
excepting any and all losses, damages (whether general, punitive.or otherwise), liabilities, claims,
causes of action (whether legal, equitable or administrative), judgments, court costs and legal or
other expenses (including reasonable attorneys' fees) arising from the mere discovery by Buyer of
any hazardous materials or conditions and excepting to the extent such claims arise out of the
negligence or misconduct of Seller. Buyer's obligations under this Section 7.8 shall survive
termination of this Agreement for any reason.
The parties agree that breach of any Property entry or restoration conditions in this
Section 7.3 shall constitute a material breach of this Agreement.
8. CONCEPT PLAN; CEQA; AND ENTITLEMENT PROCESS
8.1 Concept Plan. Within sixty (60) days of the Effective Date, Buyer shall submit a
proposed concept plan for a mixed used project which shall include the proposed uses, proposed
parcel map and proposed site plan ("Concept Plan"). If Seller does not approve the Concept Plan,
Seller shall promptly notify Buyer of the issues with the initial plan submission who shall promptly
revise same and resubmit same to Seller. If Seller does not approve the Concept Plan, Seller shall
notify Buyer in writing of Seller's concerns and Buyer shall submit a revised version for Seller's
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consideration. If Seller approves the Concept Plan, Seller shall issue a written approval notice of
same to Buyer ("Concept Plan Approval") and the date of such approval shall be referred to as
the "Concept Plan Approval Date." If the Seller is not able, or is unwilling to issue the Concept
Plan Approval within ninety (90) days from the Effective Date, either party may elect to terminate
this Agreement by written notice to the other party any time prior to the Seller's issuance of the
Concept Plan Approval. The Concept Plan that is approved by Seller is hereinafter referred to as
the"Proposed Concept Plan."
Buyer understands that Seller specifically (i) does not want the following uses in the Concept Plan:
gas station, automotive sales, equipment rental, laundromats, sale of used appliances, pawn
shops, technical schools, or convenience stores; and (ii) favors the following uses in the Concept
Plan: a hotel, creative/medical office building, sit down restaurants, a drive thru restaurant, a coffee
house, retail uses and multifamily residential complex.
BUYER ACKNOWLEDGES THAT THE EXECUTION OF THIS AGREEMENT BY SELLER AND
APPROVAL OF THE PROPOSED CONCEPT PLAN AS SELLER (A) DOES NOT CONSTITUTE
THE REQUIRED DISCRETIONARY APPROVALS NECESSARY BY THE CITY OF GRAND
TERRACE FOR THE ACTUAL DEVELOPMENT; (B) DOES NOT LIMIT IN ANY MANNER THE
DISCRETION OF THE CITY AS TO ITS APPROVAL PROCESS; AND (C) DOES NOT RELIEVE
BUYER OF THE OBLIGATION TO OBTAIN ALL ENTITLEMENTS AND PERMITS NECESSARY
TO COMPLETE THE DEVELOPMENT AS PROVIDED IN THE CONCEPT PLAN AND THE
GRANT DEED. BUYER UNDERSTANDS THAT THE CONCEPT PLAN MAY BE REVISED
DURING THE ENTITLEMENT PROCESS AND SELLER SHALL HAVE THE RIGHT TO REVIEW
AND APPROVE SUCH MODIFICATIONS WHICH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED.
8.2 CEQA Processing. Seller shall be responsible to process the approval of the
Proposed Concept Plan in accordance with the California Environmental Quality Act ("CEQA"). As
soon as possible after the Concept Plan Approval Date, Seller shall commence and diligently
prosecute process same. Upon Seller's request, Buyer agrees to supply information and otherwise
to assist Seller to determine the environmental impact of the Proposed Concept Plan and to allow
Seller to prepare and process such environmental documents, if any, as may need to be
completed for the Proposed Concept Plan pursuant to the requirements of CEQA. Upon Buyer's
request from time to time, Seller shall keep Buyer informed as to the CEQA process. Without
limitation of the foregoing, Buyer specifically acknowledges and agrees that if Buyer elects to
proceed with the development of the Property and complete its purchase of the Property, Buyer
shall be required to satisfy all conditions of approval issued to ensure that the Project conforms to
all applicable CEQA requirements including all mitigation requirements.
8.3 Entitlement Process.
a. Commencement. As soon as possible but, in no event later than forty-five
(45) days after the Concept Plan Approval Date, Buyer shall promptly apply for all discretionary
governmental permits and approvals consistent with the Proposed Concept Plan and diligently
prosecute same including, but not limited to, promptly responding to requests and modifications,
payment of all necessary fees, etc. ("Entitlements"). The Entitlements shall include, without
limitation, specific site plan approval, a new parcel map, a specific plan amendment and a
conditional use permit for any uses under the Proposed Concept Plan which would require a CUP
to be processed by Buyer. Buyer shall diligently prosecute and pursue all applications and permits
including providing prompt responses to the City for any additional requests and Seller shall
cooperate with Buyer's process. Buyer shall pay all applicable fees to secure all entitlements for
the Proposed Concept Plan.
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b. Buver Approvals. Upon issuance of final conditions for any Entitlement,
Buyer shall have the right to disapprove same by issuing a written notice to Seller within twenty
(20) days which shall also include Buyer's election to terminate this Agreement and the Escrow
("Termination Notice"). For example, conditions of approval for the project required by the
Planning Commission may be appealed to the City Council. Upon the City Council's final
determination, Buyer shall have twenty (20) days to issue the Termination Notice to Seller for any
Entitlement. If Buyer delivers a Termination Notice in the time and manner specified for an
Entitlement, this Agreement shall be terminated, Escrow shall be cancelled and the Deposit (less
cancellation charges) shall be returned to Buyer. If Buyer fails to deliver the Termination Notice for
an Entitlement in the time and manner specified, Buyer shall be deemed to have approved all
conditions to such Entitlement.
C. Entitlement Period. Buyer shall use commercially reasonable efforts to
obtain all Entitlements within sixteen (16) months of the Concept Approval Date ("Entitlement
Period"). Provided Buyer has been diligently pursuing the Entitlements, Buyer shall have the right
to extend the Entitlement Period for two (2) months by providing written notice to Seller at least
twenty (20) days prior to the expiration of the Entitlement Period which notice summarizes in
reasonable detail the reason for the extension.
8.4 Post Closing Covenants. Upon the City's approval of the Proposed Concept Plan
and completion of the CEQA process, Seller shall prepare appropriate language to the Grant Deed
(or in a separate Covenant Agreement) with respect to the following post-closing obligations which
must be completed within twenty-four (24) months from the Closing ("Post Closing Covenants"):
(i) the construction time line; (ii) mandatory phasing with the northern portion of the Property must
be developed first; (iii) required uses; (iv) the requirement that a declaration of covenants,
conditions and restrictions specifically addressing reciprocal access and parking rights for the
proposed development in a form satisfactory to Seller must be either concurrently with the new
parcel map or if none, then prior to leasing of any portion of the Property; and (v) such other
obligations as reasonably required by Seller and approved by Buyer which approval shall not be
unreasonably withheld, conditioned or delayed. The Grant Deed (or Covenant Agreement) shall
also contain appropriate provision for the release of the Post Closing Covenants. The form of the
Grant Deed (of Covenant Agreement if applicable) shall be provided by Seller to Buyer for review
and comment.
8.6 Natural Hazard Disclosure Report. Upon Opening of Escrow, Escrow Holder shall
order a commercial Natural Hazards Disclosure report for the Property by Disclosure Source
("NHD Report") to be delivered to Buyer by Escrow Holder. Buyer shall have twenty (20)) days
from receipt of the NHD Report, to review and approve NHD Report. If Buyer disapproves the NHD
Report within the twenty (20) day period, it shall do so in writing which shall concurrently terminate
this Agreement and the Escrow and receive a full refund of its Deposit (less cancellation charges).
If Buyer fails to disapprove the NHD Report in accordance with the foregoing requirements, Buyer
is conclusively deemed to have approved the NHD Report.
9. CONDITIONS PRECEDENT TO CLOSE OF ESCROW.
9.1 Conditions to Buver's Obliqations. The obligations of Buyer under this
Agreement are subject to the satisfaction or written waiver, in whole or in part, by Buyer of each of
the following conditions precedent ("Buyer's Conditions Precedent"):
i. Title Company will issue the Title Policy as specified in Section 6.2.
ii. Buyer has approved the NHD Report pursuant to Section 8.5.
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iii. Seller has executed the Grant Deed and delivered it to Escrow Holder.
iv. If the Grant Deed does not contain the Covenants, then Seller shall execute two (2)
copies of the Covenant Agreement and delivered same to Escrow Holder.
v. Escrow Holder holds and will deliver to Buyer the instruments and funds, if any, accruing
to Buyer pursuant to.this Agreement.
vi. Buyer has not issued the Disapproval and Termination Notice pursuant to Section 7.2.
vii. Buyer has secured the Entitlements within the Entitlement Period (as may be extended
pursuant to Section 8.3.c), not issued a Termination Notice (pursuant to Section 8.3) and
the appeal period for the Entitlements has expired without legal challenges.
viii. The CEQA approvals have been issued in accordance with Section 8.2 and the appeal
period has expired without legal challenges.
ix. Seller is not in default of its obligations under this Agreement.
9.2 Conditions to Seller's Obligations. The obligations of Seller under this Agreement
are subject to the satisfaction or written waiver, in whole or in part, by Seller of the following
conditions precedent:
i. Buyer has delivered the balance of the Purchase Price to Escrow Holder.
ii. The Lot Tie Agreement (as defined in Section 1.3) has been executed by Buyer and
delivered to Escrow Holder, or alternatively the Parcel Map has been delivered to
Escrow Holder to be filed with the County Recorder at the Closing.
iii. The Acceptance to the Grant Deed (if applicable) has been executed by Buyer and
delivered to Escrow Holder, or alternatively, two (2) copies of the Covenant Agreement
has been executed and delivered to Escrow Holder.
iv. Buyer has not issued the Disapproval and Termination Notice pursuant to Section 7.2.
v. Seller has issued the Concept Plan Approval pursuant to Section 8.1.
vi. The CEQA approvals have been issued in accordance with Section 8.2, Buyer has not
issued a Termination Notice (pursuant to Section 8.3), and the appeal period has
expired without legal challenges.
vii. Buyer has secured the Entitlements within the Entitlement Period (as may be extended
pursuant to Section 8.3.c), not issued a Termination Notice (pursuant to Section 8.3),
and the appeal period has expired without legal challenges.
viii. Title Company will issue the Title Policy as specified in Section 6.2.
ix. Escrow Holder holds and will deliver to Seller the instruments and funds accruing to
Seller pursuant to this Agreement.
x. Buyer is not in default of its obligations under this Agreement.
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10. LIQUIDATED DAMAGES. IF BUYER SHOULD DEFAULT UNDER THIS AGREEMENT,
THEN BUYER AND SELLER AGREE THAT SELLER WILL INCUR DAMAGES BY REASON OF
SUCH DEFAULT BY BUYER OR FAILURE OF ESCROW TO CLOSE ON OR BEFORE THE
CLOSING DATE, WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY
DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. BUYER AND SELLER, IN A
REASONABLE EFFORT TO ASCERTAIN WHAT SELLER'S DAMAGES WOULD BE IN THE
EVENT OF SUCH DEFAULT BY BUYER HAVE AGREED BY PLACING THEIR INITIALS
BELOW THAT THE DEPOSIT SHALL BE DEEMED TO CONSTITUTE A REASONABLE
ESTIMATE OF SELLER'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE. IN THE EVENT OF AND FOR SUCH DEFAULT
BY BUYER, THE DEPOSIT SHALL BE SELLER'S SOLE MONETARY REMEDY THEREFOR,
UNLESS BUYER WRONGFULLY REFUSES TO CAUSE ESCROW HOLDER TO CANCEL THE
ESCROW, IN WHICH INSTANCE SELLER SHALL ALSO BE ENTITLED TO ALL ACTUAL
THIRD-PARTY COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES
INCURRED BY SELLER WHICH MAY RESULT'FROM BUYER'S WRONGFUL FAILURE TO
CANCEL THE ESCROW AND THIS AGREEMENT. THE FOREGOING LIMITATION OF
DAMAGES SHALL NOT APPLY TO BUYER'S INDEMNITY OBLIGATIONS NOR THE
OBLIGATIONS OF BUYER TO DELIVER THE DOCUMENTS RSUANT TO SECTIONS 3.1.0
AND 7.3
���� art..
SelieNig'lnitials "Ps Initials
11. CONDITION OF THE PROPERTY.
11.1 Disclaimer of Warranties. Upon the Close of Escrow, Buyer shall acquire the
Property in its "AS-IS" condition without any representations and warranties and Buyer shall be
responsible for any defects in the Property, whether patent or latent, including, without limitation,
the physical, environmental and geotechnical condition of the Property, and the existence of any
contamination, Hazardous Materials, vaults, debris, pipelines; or other structures located on, under
or about the Property, and Seller makes no other representation or warranty concerning the
physical, environmental, geotechnical or other condition of the Property, and Seller specifically
disclaims all representations or warranties of any nature concerning the Property made by it. The
foregoing disclaimer includes, without limitation, topography, climate, air, water rights, utilities, soil,
subsoil, existence of Hazardous Materials or similar substances, the purpose for which the
Property is suited, or drainage.
11.2 Hazardous Materials. Buyer understands and agrees that, in the event Buyer
incurs any loss or liability concerning Hazardous Materials (as hereinafter defined) and/or
underground storage tanks whether attributable to events occurring prior to or following the
Closing, then Buyer may look to current or prior owners of the Property, but in no event shall Buyer
look to Seller for any liability or indemnification regarding Hazardous Materials and/or underground
storage tanks. Buyer, from and after the Closing, hereby waives, releases, remises, acquits and
forever discharges Seller, and each of the entities constituting Seller, if any, of and from any and all
Environmental Claims, Environmental Cleanup Liability and Environmental Compliance Costs, as
those terms are defined below, and from any and all actions, suits, legal or administrative orders or
proceedings, demands, actual damages, punitive damages, loss, costs, liabilities and expenses,
which concern or in any way relate to the physical or environmental conditions of the Property, the
existence of any Hazardous Material thereon, or the release or threatened release of Hazardous
Materials there from, whether existing prior to, at or after the Closing. It is the intention of the
parties pursuant to this release=that any and all responsibilities and obligations of Seller, and any
and all rights, claims, rights of action, causes of action, demands or legal rights of any kind of
10
Buyer, its successors, assigns or any affiliated entity of Buyer, against the Seller, arising by virtue
of the physical or environmental condition of the Property, the existence of any Hazardous
Materials thereon, or any release or threatened release of Hazardous Material there from, whether
existing prior to, at or after the Closing, are by this release provision declared null and void and of
no present or future force and effect as to the parties; provided, however, that no parties other than
the Indemnified Parties (defined below) shall be deemed third party beneficiaries of such release.
In connection therewith, Buyer and each of the entities constituting Buyer, expressly agree
to waive any and all rights which said party may have with respect to such released claims under
Section 1542 of the California Civil Code which provides as follows:
"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 must have materially affected his or her settlement with the
debtor."
Buyer Initials Seller Initials
J
Buyer and ea of the entities constituting Buyer, shall, fro d after the Closing, defend,
indemnify and hold harmless Seller and each of the entities constituting Seller (collectively, the
"Indemnified Parties") from and against any and all Environmental Claims, Environmental
Cleanup Liability, Environmental Compliance Costs, and any other claims, actions, suits, legal or
administrative orders or proceedings, demands or other liabilities resulting at any time from the
physical and/or environmental conditions of the Property whether before or after the Closing or
from the existence of any Hazardous Materials or the release or threatened release of any
Hazardous Materials of any kind whatsoever, in, on or under the Property occurring at any time
whether before or after the Closing, including, but not limited to, all foreseeable and unforeseeable
damages, fees, costs, losses and expenses, including any and reasonable attorneys' fees and
environmental consultant fees and investigation costs and expenses, directly or indirectly arising
there from, and including fines and penalties of any nature whatsoever, assessed, levied or
asserted against any Indemnified Parties to the extent that the fines and/or penalties are the result
of a violation or an alleged violation of any Environmental Law. Buyer further agrees that in the
event Buyer obtains, from former or present owners of the Property or any other persons or
entities, releases from liability, indemnities, or other forms of hold harmless relating to the subject
matter of this Section, Buyer shall use its diligent efforts to obtain for Seller the same releases,
indemnities and other comparable provisions.
For purposes of this Agreement, the following terms shall have the following meanings:
"Environmental Claim" means any claim for personal injury, death and/or property damage
made, asserted or prosecuted by or on behalf of any third party, including, without limitation, any
governmental entity, relating to the Property or its operations and arising or alleged to arise under
any Environmental Law.
"Environmental Cleanup Liability" means any cost or expense of any nature whatsoever
incurred to contain, remove, remedy, clean up, or abate any contamination or any Hazardous
Materials on or under all or any part of the Property, including the ground water hereunder,
including, without limitation, (i) any direct costs or expenses for investigation, study, assessment,
legal representation, cost recovery by governmental agencies, or ongoing monitoring in connection
therewith and (ii) any cost, expense, loss or damage incurred with respect to the Property or its
operation as a result of actions or measures necessary to implement or effectuate any such
containment, removal, remediation, treatment, cleanup or abatement.
11
"Environmental Compliance Cost" means any cost or expense of any nature whatsoever
necessary to enable the Property to comply with all applicable Environmental Laws in effect.
"Environmental Compliance Cost" shall include all costs necessary to demonstrate that the
Property is capable of such compliance.
"Environmental Law" means any federal, state or local statute, ordinance, rule, regulation,
order, consent decree, judgment or common-law doctrine, and provisions and conditions of
permits, licenses and other operating authorizations relating to (i) pollution or protection of the
environment, including natural resources, (ii) exposure of persons, including employees, to
Hazardous Materials or other products, raw materials, chemicals or other substances, (iii)
protection of the public health or welfare from the effects of by-products, wastes, emissions,
discharges or releases of chemical sub-stances from industrial or commercial activities, or (iv)
regulation of the manufacture, use or introduction into commerce of chemical substances,
including, without limitation, their manufacture, formulation, labeling, distribution, transportation,
handling, storage and disposal.
"Hazardous Material" is defined to include any hazardous or toxic substance, material or
waste which is or becomes regulated by any local governmental authority, the State of California,
or the United States Government. The term "Hazardous Material" includes, without limitation, any
material or substance which is: (i) petroleum or oil or gas or any direct or derivate product or
byproduct thereof; (ii) defined as a "hazardous waste," "extremely hazardous waste" or "restricted
hazardous waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140, of
the California Health and Safety Code; (iii) defined as a "hazardous substance" under Section
25316 of the California Health and Safety Code; (iv) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Sections 25501(o) and (p) and 25501.1 of the California
Health and Safety Code (Hazardous Materials Release Response Plans and Inventory); (v)
defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code
(Underground Storage of Hazardous Substances); (vi) "used oil" as defined under Section 25250.1
of the California Health and Safety Code; (vii) asbestos; (viii) listed under Article 9 or defined as
hazardous or extremely hazardous pursuant to Article 1 of Title 22 of the California Code of
Regulations, Division 4, Chapter 30; (ix) defined as "waste" or a "hazardous substance" pursuant to
the Porter-Cologne Act, Section 13050 of the California Water Code; (x) designated as a "toxic
pollutant" pursuant to the Federal Water Pollution Control Act, 33 U.S.C. §1317; (xi) defined as a
"hazardous waste" pursuant to the Federal Resource Conservation and Recovery Act, 42 U.S.C.
§6901, et seq. (42 U.S.C. §6903); (xii) defined as a "hazardous substance" pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601, et
seq. (42 U.S.C. §9601); (xiii) defined as "Hazardous Material" or a "Hazardous Substance"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; or (xiv) defined
as such or regulated by any "Superfund" or"Superlien" law, or any other federal, state or local law,
statute, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning Hazardous Materials, oil wells, underground storage
tanks, and/or pipelines, as now, or at any time hereafter, in effect.
Notwithstanding any other provision of this Agreement, Buyer's release and indemnification
as set forth in the provisions of this Section, as well as all other provisions of this Section, shall
survive the termination of this Agreement and shall continue in perpetuity.
12. ESCROW PROVISIONS.
12.1 Escrow Instructions. Sections 1 through 6, inclusive, 9, 12, 14 & 15 constitute the
escrow instructions to Escrow Holder. If required by Escrow Holder, Buyer and Seller agree to
execute Escrow Holder's standard escrow instructions, provided that the same are consistent with
12
and do not conflict with the provisions of this Agreement. In the event of any such conflict, the
provisions of this Agreement shall prevail. The terms and conditions in sections of this Agreement
not specifically referenced above are additional matters for information of Escrow Holder, but about
which Escrow Holder need not be concerned. Buyer and Seller will receive Escrow Holder's
general provisions directly from Escrow Holder and will execute such provision upon Escrow
Holder's request. To the extent that the general provisions are inconsistent or conflict with this
Agreement, the general provisions will control as to the duties and obligations of Escrow Holder
only. Buyer and Seller agree to execute additional instructions, documents and forms provide by
Escrow Holder that are reasonably necessary to close Escrow.
12.2 General Escrow Provisions. Escrow Holder shall deliver the Title Policy to the
Buyer and instruct the San Bernardino County Recorder to mail the Grant Deed to Buyer at the
address set forth in Section 14 after recordation. All funds received in this Escrow shall be
deposited in one or more general escrow accounts of the Escrow Holder with any bank doing
business in Southern California, and may be disbursed to any other general escrow account or
accounts. All disbursements shall be according to that party's instructions.
12.3 Proration of Real Provertv Taxes. As a public agency, Seller is not subject to real
property taxes. According, Buyer shall take the Property subject to all taxes accruing from and after
the Closing.
12.4 Pavment of Costs.
a. Cost Allocation. Seller shall pay the costs for the Title Policy (non-extended ALTA
owner's policy), any documentary transfer taxes, and one-half(1/2) of the escrow costs
("Seller's Charges"). Buyer shall pay the cost of any additional endorsements to the
Title Policy requested by Buyer or for any ALTA extended coverage owner's policy (as
provided in Section 6.1), one-half (1/2) of the escrow fees, the recording charges for
the Grant Deed, Covenant Agreement (if applicable) and the Lot Line Adjustment, and
any charges incurred by Buyer's acts ("Buyer's Charges"). All other costs of Escrow
not otherwise specifically allocated by this Agreement shall be apportioned between
the parties in a manner consistent with the custom and usage of Escrow Holder.
b. Closing Statement. At least two (2) business days prior to the Closing Date, Escrow
Holder shall furnish Buyer and Seller with a preliminary Escrow closing statement
which shall include each party's respective shares of costs. The preliminary closing
statement shall be approved in writing by the parties. As soon as reasonably possible
following the Close of Escrow, Escrow Holder shall deliver a copy of the final Escrow
closing statement to each party.
12.5 Termination and Cancellation of Escrow. If Escrow fails to close due to a failure
of a condition precedent, then the party in whose favor the condition precedent runs may elect to
cancel this Escrow upon written notice to the other party and Escrow Holder. Upon cancellation,
Escrow Holder is instructed to return (i) the funds in accordance with the foregoing provisions of
this Agreement, and (ii) all documents then in Escrow to the respective depositor of the same with
Escrow Holder. Cancellation of Escrow, as provided herein, shall be without prejudice to whatever
legal rights Buyer or Seller may have against each other arising from the Escrow or this
Agreement.
12.6 Information Resort. Escrow Holder shall file and Buyer and Seller agree to
cooperate with Escrow Holder and with each other in completing any report("Information Report")
and/or other information required to be delivered to the Internal Revenue Service pursuant to
13
Internal Revenue Code Section 60451 regarding the real estate sales transaction contemplated by
this Agreement, including without limitation, Internal Revenue Service Form 1099-B as such may
be hereinafter modified or amended by the Internal Revenue Service, or as may be required
pursuant to any regulation now or hereinafter promulgated by the Treasury Department with
respect thereto. Buyer and Seller also agree that Buyer and Seller, their respective employees and
attorneys, and escrow Holder and its employees, may disclose to the Internal Revenue Service,
whether pursuant to such Information Report or otherwise, any information regarding this
Agreement or the transactions contemplated herein as such party reasonably deems to be
required to be disclosed to the Internal Revenue Service by such party pursuant to Internal
Revenue Code Section 60451, and further agree that neither Buyer nor Seller shall seek to hold
any such party liable for the disclosure to the Internal Revenue Service of any such information.
12.7 No Withholdinq as Foreiqn Seller. Seller represents and warrants to Buyer that
Seller is not, and as of the Close of Escrow will not be, a foreign person within the meaning of
Internal Revenue Code Section 1445 or an out-of-state seller under California Revenue and Tax
Code Section 18805 and that it will deliver to Buyer on or before the Close of Escrow a non-foreign
affidavit on Escrow Holder's standard form pursuant to Internal Revenue Code Section 1445(b)(2)
and the Regulations promulgated thereunder and a California Form 590-RE.
12.8 Brokeraqe Commissions. Buyer and Seller each represent and warrant to the
other that no third party is entitled to a broker's commission and/or finder's fee with respect to the
transaction contemplated by this Agreement. Buyer and Seller each agree to indemnify and hold
the other parties harmless from and against all liabilities, costs, damages and expenses, including,
without limitation, attorneys' fees, resulting from any claims or fees or commissions, based upon
agreements by it, if any, to pay a broker's commission and/or finder's fee.
13. NON-COLLUSION. No official, officer, or employee of the Agency has any financial
interest, direct or indirect, in this Agreement, nor shall any official, officer, or employee of the
Agency participate in any decision relating to this Agreement which may affect his/her financial
interest or the financial interest of any corporation, partnership, or association in which (s)he is
directly or indirectly interested, or in violation of any interest of any corporation, partnership, or
association in which (s)he is directly or indirectly interested, or in violation of any State or municipal
statute or regulation. The determination of 'financial interest" shall be consistent with State law and
shall not include interest found to be "remote" or "non interest" pursuant to California Government
Code Sections 1091 and 1091.5. Seller warrants and represents that (s)he/it has not paid or given,
and will not pay or give, to any third party including, but not limited to, and Agency official, officer,
or employee, any money, consideration, or other thing of value as a result or consequence of
obtaining or being awarded this Agreement. Seller further warrants and represents that (s)he/it has
not engaged in any act(s), omission(s), or other conduct or collusion that would result in the
payment of any money, consideration, or other thing of value to any third party including, but not
limited to, any Agency official, officer, or employee, as a result or consequence of obtaining or
being awarded any agreement. Seller is aware of and understands that any such act(s),
omission(s) or other conduct resulting in the payment of money, consideration, or other thing of
value will render this Agreement void a of no force or effect.
Buyer's Initials: A�-
14. NOTICES. Any notice whic ether party may desire to give to the other party or to the
Escrow Holder must be in writing and may be given by personal delivery which will be deemed
received the following day or by mailing the same by registered or certified mail, return receipt
requested which will be deemed delivered three (3) days after depositing same in the mail,
14
addressed to the party to whom the notice is directed as set forth below, or such other address and
to such other persons as the parties may hereafter designate:
To Seller: City of Grand Terrace
22795 Barton Rd.
Grand Terrace, CA 92313
Attention: City Manager
With a Copy to: Aleshire &Wynder, LLP
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Attention: Adrian Guerra, City Attorney
To Buyer: Greens Group, Inc.
9289 Research Drive
Irvine, CA 92618.
Attn: President
With a Copy to: Buckner, Robinson & Mirkovich
3146 Red Hill Avenue, Suite 200
Costa Mesa, CA 92626
Attention: William D. Buckner, Esq.
To Escrow Holder: Fidelity National Title Insurance Company
21680 Gateway Center Drive, Suite 110
Diamond Bar, CA 91765
Mary Lou Adame, Escrow Officer
15. GENERAL PROVISIONS.
15.1 Assignment. Buyer has no right to assign this Agreement without the prior written
consent of Seller in its sole and absolute discretion as Seller is relying upon the integrity and
expertise of Buyer.'N otwithstand ing the forgoing, Seller will not unreasonably withhold its consent
to an assignment to an entity owned and controlled by Buyer or the principals of Buyer namely
Sharad Kadakia, Ashutosh Kadakia and/or Atman Kadakia. This Agreement shall be binding upon
and shall inure to the benefit of Buyer and Seller and their respective heirs, personal
representatives, successors and assigns.
16.2 Attornev's Fees. In any action between the parties hereto, seeking enforcement of
any of the terms and provisions of this Agreement or the Escrow, or in connection with the
Property, the prevailing party in such action shall be entitled, to have and to recover from the other
party its reasonable attorneys' fees and other reasonable expenses in connection with such action
or proceeding, in addition to its recoverable court costs.
15.3 Interpretation: Governing Law. Venue. This Agreement shall be construed
according to its fair meaning and as if prepared by both parties hereto. This Agreement shall be
construed in accordance with the laws of the State of California in effect at the time of the
execution of this Agreement. Titles and captions are for convenience only and shall not constitute a
portion of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and
the singular or plural number shall each be deemed to include the others wherever and whenever
the context so dictates. The venue for any dispute shall be San Bernardino County.
15
15.4 No Waiver. No delay or omission by either party in exercising any right or power
accruing upon the compliance or failure of performance by the other party under the provisions of
this Agreement shall impair any such right or power or be construed to be a waiver thereof. A
waiver by either party of a breach of any of the covenants, conditions or agreements hereof to be
performed by the other party shall not be construed as a waiver of any succeeding breach of the
same or other covenants, agreements, restrictions or conditions hereof.
16.5 Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made by written instrument or endorsement thereon and in
each such instance executed on behalf of each party hereto
15.6 Severabilib . If any term, provision, condition or covenant of this Agreement or the
application thereof to any party or circumstances shall, to any extent, be held invalid or
unenforceable, the remainder of this instrument, or the application of such term, provisions,
condition or covenant to persons or circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
16.7 Merqer. This Agreement and other documents incorporated herein by reference
contain the entire understanding between the parties relating to the transaction contemplated
hereby and all prior to contemporaneous agreements, understandings, representations and
statements, oral or written are merged herein and shall be of no further force or effect.
16.8 Construction. In determining the meaning of, or resolving any ambiguity with
respect to, any word, phrase or provision of this Agreement, no uncertainty or ambiguity shall be
construed or resolved against a party under any rule of construction, including the party primarily
responsible for the drafting and preparation of this Agreement. Headings used in this Agreement
are provided for convenience only and shall not be used to construe meaning or intent. As used in
this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each
be deemed to include the others wherever and whenever the context so dictates.
15.9 Qualification and Authoritv. Each individual executing this Agreement on behalf of
Buyer represents, warrants and covenants to the Authority that (a) such person is duly authorized
to execute and deliver this Agreement on behalf of Buyer in accordance with authority granted
under the organizational documents of such entity, and (b) Buyer is bound under the terms of this
Agreement.
16.10 No Third Partv Beneficiaries. This Agreement is only between the parties, and is
not intended to be nor shall it be construed as being for the benefit of any third party.
16.11 Execution in Counterparts. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on all parties hereto,
notwithstanding that all parties are not signatories to the original or the same counterpart.
16.12 Exhibits. Exhibits A. A=1 and B attached hereto are incorporated herein by
reference.
[SIGNATURES ON THE FOLLOWING PAGE]
16
In Witness Whereof, the parties have executed this Agreement as of the date first written
above.
REMINDER:
Parties;must initial Section$;9, 10.2 and'i 2,`as applicable;
BUYER: SELLER:
GREENS G P, INC, a C lifornia City of Grand Terrace, a municipal
corporatio corporation
By: By:
PrinUOrneRshutoilh Kadakia D r�yor
`thief Financial Officer
911-3h'9 , '
q11'
ST:
Accepted:
eb Thomas,
Escrow Holder: City Clerk
Accepted and agreed to:
APPROVED AS TO FORM:
By: Aleshire &Wynder, LLP
Marylou Adame, Escrow Officer
Dated: , 2019 By. / �—
Adrian R. Guerra, City Atto ey
17
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
That certain real property in the City of Grand Terrace, County of San Bernardino, State of
California, legally described as follows:
PARCEL A: (22317 Barton Road) (APN 1167-311-01-0000)
A portion of Lot 2 of Sedion 5,To yddp 2 South,Range 4 West,San Bernardino Base and
Meridian,amording too map of Lands of the east Rivetstde Land Company,moorded in book 6 of
Maps,pop 44,R,ecords of said County,more panblarty described as tkwz
Beginning at the Northwest comer of said Lot 2;
Thence along the West One of said Lot 2 a distance of 415.27 feet{
Thence cast a distance of 150 feet;
Thence North a distance of 415.27 feet W the North One of said Lot 2,
Thence west a distance of 150 feet along the North One of sald Lot 2 to the paint of beginning.
Said property Is also shown on Lkersed Land Sunveyoes Plat m oorded In book 5,pages 25 to 29,
Inclusive,record of Surveys.
PARCEL B: (22293 Barton) APN 1167-231-01-0000
The East 100 feet of Lot 3,Section S,Township 2 South,Range 4 West, San Bernardino
Meridian, in the County of San Bernardino, State of California,according to map of East
Riverside Land Company, as per plat recorded in book 6 of maps,page 44,records of
said county.
Excepting therefrom that portion conveyed to the City of Grand Terrace by deed recorded
December 11, 1996 as instrument NO. 86-376453,Official Records.
CONTINED ON FOLLOWING PAGE
1
PARCEL C: (22273 Barton) APN 1167-231-02-0000
PARCEL 1:
THE WEST 100 FEET OF THE EAST 200 FEET OF LOT 3,SECTION 5,TOWNSHIP 2 SOUTH,RANGE 4
WEST,SAN BERNARDINO BASE AND MERIDIAN,ACCORDING TO MAP OF EAST RIVERSIDE LAND
COMPANY,AS PER PLAT RECORDED IN BOOK 6 OF MAPS,PAGE 44,RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THE NORTHERLY 17.00 FEET THEREOF AS CONVEYED TO THE CITY OF
GRAND TERRACE,BY DEED RECORDED APRIL 15,1987 AS INSTRUMENT NO.87-123616 OFFICIAL
RECORDS.
PARCEL 2:
THE WEST 40 FEET OF THE EAST 240 FEET OF LOT 3,SECTION 5,TOWNSHIP 2 SOUTH,RANGE 4
WEST,SAN BERNARDINO BASE AND MERIDIAN,ACCORDING TO MAP OF EAST RIVERSIDE LAND
COMPANY,AS PER PLAT RECORDED IN BOOK 6 OF MAPS,PAGE 44,RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THE NORTHERLY 17.00 FEET THEREOF AS CONVEYED TO THE CITY GRAND
TERRACE,BY DEED RECORDED APRIL 15,1987 AS INSTRUMENT NO.87-123616 OFFICIAL RECORDS.
2
EXHIBIT A-1
DEPICTION OF PARCELS
47.
71
P
s ;
x
d
Parcel C Parcel B Parcel A
22273 Barton Rd 22293 Barton Rd 22317 Barton Rd
APN: 1167-231-02-0000 APN: 1167-231-01-0000 APN: 1167-311-01-0000
1
EXHIBIT B
GRANT DEED
Recording requested by and
When Recorded Return to:
Greens Group, Inc.
9289 Research Drive
Irvine, CA 92618.
Attn: President
APN. (Space Above This Line for Recorder's Office Use Only)
(Exempt from Recording Fee per Gov. Code§6103)
THE UNDERSIGNED GRANTOR DECLARES that the
documentary transfer tax (computer on full value) is
GRANT DEED
IWith Option to Repurchase)
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged and subject
to the covenants set forth below the CITY OF GRAND TERRACE, a municipal corporation
("Grantor") grants to ("Grantee"), all of its rights, title, and interest in
that certain real property in the City of Grand Terrace, County of San Bernardino, State of
California, as more particularly described in Exhibit A attached hereto and incorporated by this
reference ("Property").
As material consideration for this conveyance, Grantee covenants for itself and any
successors in interest for the benefit of Grantor, as follows:
1. DEVELOPMENT COVENANT.
TO BE COMPLETED BY GRANTOR PURSUANT TO SECTION 8.5.
Work Covenants. Grantee's post closing work covenants shall include all of the following to
be completed by Grantee at Grantee's sole cost and expense ("Work Covenants"): (i)
Grantee's completion of site work and off-site construction plans; (ii) Grantee's completion of
site work and off-site work (excluding buildings); (iii) Grantee's execution and delivery of a
Subdivision Improvement Agreement (including providing security for same) in accordance with
applicable law; (iv) Grantee has installed utility mains to the boundary of the Property in
accordance with approved plans; (v) Grantee has paved the parking lot (except within the multi-
family parcel of the Proposed Concept Plan) ("Multi-Family Parcel"); and (vi) Grantee has
rough graded the Multi-Family Parcel and stubbed utilities to the boundary of the Multi-Family
Parcel.
Outside Completion Date. Grantee shall complete the Covenants (or bond same to the
satisfaction of Grantor) on or before twenty-four (24) months from the date of recordation of the
Grant Deed ("Outside Completion Date").
Extension of Outside Completion Date. The Outside Completion Date shall be subject to
being extended due to force majeure events, which shall expressly include a general economic
downturn for the area in which event the Outside Completion Date may be extended for a
1
period not to exceed two (2) years. If Grantee claims an extension under this provision,
Grantee must promptly provide written notice of such claim to Grantor.
Termination Provisions. Upon completion of all of the Covenant Work and Grantee's written
request, Grantor shall execute, acknowledge and record a document to release the
Development Covenant (including the Right of Re-Purchase below) from the public record
("Release").
Force Majeure. Force majeure shall mean delays caused by an act of God, fire, terrorism,
governmental delay, inaction or moratorium or other casualty, event or accident beyond
Grantee's reasonable control, strike, lock-out, factory shut-down or altercation, embargo, or
riot. However, if Grantee claims a delay due to one of the foregoing events, Grantee must
promptly provide written notice of such occurrence to Grantor.
2. RE-PURCHASE OPTION.
If Grantee is in Default (as defined below) and prior to the recordation of the Release
(defined in Section 1), Grantor shall have the option to buy back the Property ("Option") from
Grantee for the sum of ("Option Purchase Price"): (i) the original Purchase Price paid by Grantee
to the Grantor ("Original Purchase Price"), plus (ii) actual costs paid by Buyer to third parties for
entitling and designing, the Property to the date of the closing including, without limitation,
architects, engineers, government fees and costs paid to the City under the Reimbursement
Agreement for entitlements but not including any hard costs, attorney fees or commissions
("Additional Costs"). Upon exercise of the Option, Grantee shall promptly deliver to Grantor a
detailed summary of all claimed Additional Costs as part of the Option Purchase Price together
with proof of payment, copies of the applicable agreements and the plans, specifications, reports
and documents. Upon confirmation of the Option Purchase Price, the parties shall cooperate with
opening escrow to facilitate the transfer of the Property to Grantor for the Option Purchase Price
which shall include the assignment of the various plans, specifications, agreements and
documents for which Grantee is being reimbursed as part of the Option Purchase Price. At closing,
Grantor shall have the right to take possession of the Property free of any claims or rights of
possession.
Grantee shall be in default under Section 1 ("Default") if:
a. Grantee fails to commence construction of the Work Covenants as required by
Section 1 for a period of ninety (90) days after written notice to proceed from Grantor
and to diligently prosecute such construction subject to force majeure events;
b. Grantee abandons or substantially suspend construction of the improvements for a
period of ninety (90) days other than due to force majeure events; or
c. Grantee fails to complete the Work Covenants by the Outside Completion Date
(subject to extension pursuant to Section 1 or force majeure events).
The right to re-purchase the Property shall be subject to and shall not defeat, render invalid, or limit
any mortgage, deed of trust, or other security interests to which Grantor has consented in writing.
3. COVENANT OF NON-DISCRIMINATION.
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Grantee agrees to refrain from restricting the rental, sale, or lease of any portion of the Property
on the basis of race, color, creed, religion, sex, marital status, age, ancestry, or national origin of
any person. All such deeds, leases, or contracts shall contain or be subject to substantially the
following nondiscrimination or non-segregation clauses:
(a) Deeds: In deeds the following language shall appear: "The grantee herein
covenants by and for itself, its 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, age, ancestry, or national origin in the sale, lease, rental, sublease, transfer, use,
occupancy,tenure, or enjoyment of the land herein conveyed, nor shall the grantee itself, or
any persons 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 in the land herein
conveyed. The foregoing covenants shall run with the land."
(b) Leases: In leases the following language shall appear: "The lessee herein
covenants by and for itself, its heirs, executors, administrators, successors, and assigns,
and all persons claiming under or through them, 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, age, ancestry, or national origin in the leasing, subleasing, renting,
transferring, use, occupancy, tenure, or enjoyment of the land herein leased nor shall the
lessee 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, sublessees, subtenants, or
vendees in the land herein leased."
(c) Contracts: In contracts pertaining to conveyance of the realty the following
language shall appear: '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,
age, ancestry, or national origin in the sale, lease, rental, sublease, transfer, use,
occupancy, tenure, or enjoyment of the land, nor shall the transferee 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 land."
The forgoing covenants shall remain in effect in perpetuity.
4. NOTICE. All notices shall be in writing and delivered personally, by overnight air courier
service, by facsimile transmission or email, or by U.S. certified or registered mail, return receipt
requested, postage prepaid, to the parties at their respective addresses set forth below, and
the same shall be effective upon receipt if delivered personally, one (1) business day after
depositing with an overnight air courier, or two (2) business days after depositing in the mail
immediately, upon transmission (as confirmed by electronic confirmation of transmission
generated by the sender's machine)for any notice given by facsimile or email:
To Grantor: City of Grand Terrace
22795 Barton Rd.
Grand Terrace, CA 92313
Attention: City Manager
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With a Copy to: Aleshire &Wynder, LLP
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Attention: Adrian Guerra, City Attorney
To Grantee: Greens Group, Inc.
9289 Research Drive
Irvine, CA 92618.
Attn: President
With a Copy to: Buckner, Robinson & Mirkovich
3146 Red Hill Avenue, Suite 200
Costa Mesa, CA 92626
Attention: William D. Buckner, Esq.
6. CALIFORNIA LAW. The Covenants contained in this Deed shall be construed in accordance
with the laws of the State of California.
6. INTERPRETATION. If an ambiguity or question of intent or interpretation arises, then the
terms of this Deed, including but not limited to, the Covenants, shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring
any party to this Deed, including but not limited to,the Covenants, by virtue of the authorship of
any of the provisions of this Deed.
7. SEVERABILITY. If any provision of this Deed or portion thereof, or the application to any
person or circumstances, shall to any extent be held invalid, inoperative or unenforceable, the
remainder of the covenants contained in this Deed, or the application of such provision or
portion thereof to any other persons or circumstances, shall not be affected thereby.
8. ATTORNEY'S FEES. In the event any action or suit is brought by a party hereto against
another party hereunder by reason of any breach of any of the covenants, agreements or
provisions on the part of the other party arising out of this Deed, then in that event the
prevailing party shall be entitled to have and recover from the other party all costs and
expenses of the action or suit, including reasonable attorneys' fees, expert witness fees,
accounting and engineering fees, and any other professional fees resulting therefrom.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Grantor has caused this Grant Deed to be executed on its behalf
as of the date written below.
GRANTOR:
City of Grand Terrace, a municipal
corporation
By:
Darcy McNaboe, Mayor
, 2019
ATTEST:
Debra Thomas,
City Clerk
APPROVED AS TO FORM:
Aleshire &Wynder, LLP
By:
Adrian R. Guerra, City Attorney
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ACCEPTANCE BY GRANTEE
By its acceptance of this Grant Deed, Grantee hereby agrees as follows:
1. Grantee expressly understands and agrees that the terms of this Grant Deed shall be
deemed to be covenants running with the land and shall apply to all of the Grantee's successors
and assigns.
2. The provisions of this Grant Deed are hereby approved and accepted.
Greens Group, Inc., a California corporation
Dated: , 201_ By:
Its:
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Exhibit A
Legal Description of the Property
That certain real property located in the City of Grand Terrace, County of San Bernardino, State of
California, and is described as follows:
1
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 )
) ss.
COUNTY OF )
On 201_ before me, a notary public,
personally appeared who proved to me
on the basis of satisfactory evidence to.be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
SEAL:
1
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 )
) ss.
COUNTY OF )
On , 201_before me, , a notary
public, personally appeared who proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
SEAL:
1