2012-21 RESOLUTION NO. 2012-21 sa
4 A RESOLUTION OF THE SUCCESSOR TO THE GRAND
TERRACE REDEVELOPMENT AGENCY AUTHORIZING
THE SALE OF SUCCESSOR AGENCY PROPERTY IN
THE 21900 BLOCK OF BARTON ROAD TO O'REILLY
AUTOMOTIVE STORES, INC. TO DEVELOP A NEW
RETAIL STORE
WHEREAS, ABX1 26 resulted in the dissolution of the Grand Terrace
Redevelopment Agency ("Agency");
WHEREAS, the City of Grand Terrace acted by resolution to become the
successor agency to the Grand Terrace Redevelopment Agency ("Successor Agency"),
WHEREAS, prior to the dissolution of redevelopment pursuant to ABX1 26, the
Agency was contacted by O'Reilly Automotive Stores, Inc. ("O'Reilly") for the purpose of
purchasing the 21900 Block of Barton Road ("Property");
WHEREAS, the Agency and O'Reilly entered into negotiations for the sale of the
Property up until early June of 2011;
WHEREAS, the enactment of ABX1 26, and the ultimate outcome of California
4 Redevelopment Association at al. v. Ana Matosantos et al., halted all Agency activity
related to the sale of the Property;
WHEREAS, with the Agency formally dissolved after January 31, 2012 and with
the wind down requirements of ABX1 26 in mind, the Successor Agency resumed
negotiations for the sale of the Property under the disposition requirements of ABX1 26
and the Health & Safety Code unaffected by ABX1 26;
WHEREAS, the sale of the Property is in compliance with the Agency's
Redevelopment Plan because it would further the Redevelopment Plan's goals which
include strengthening the retail and commercial functions and the economic base; and
WHEREAS, the Agency's Redevelopment Plan is in compliance with the City of
Grand Terrace's General Plan.
NOW THEREFORE, THE GRAND TERRACE CITY COUNCIL, ACTING AS
THE SUCCESSOR AGENCY, DOES RESOLVE, DETERMINE, FIND AND ORDER AS
FOLLOWS:
SECTION 1. The City of Grand Terrace, acting as the Successor Agency, finds
that the sale of the Property is in compliance with the Agency's Redevelopment Plan,
because the sale would further the Redevelopment Plan's goals, which include
f strengthening of retail and commercial functions and the economic base.
` SECTION 2. The City of Grand Terrace, acting as the Successor Agency,
hereby approves the sale of the Property pursuant to Health & Safety Code § 34177(e).
SECTION 3. The Executive Director is hereby authorized to take all necessary
actions to complete the sale of the Property, including, but not limited to meeting the
requirements of ABX1 26, or any other applicable law.
SECTION 4. The Grand Terrace City Clerk shall certify to the adoption of this
Resolution.
PASSED, APPROVED AND ADOPTED this 26 th day of April, 2012.
Mayor of the City of Grand Terrace
ATTEST:
City Clerk 6F the City of Gran errace
I, TRACEY R. MARTINEZ, CITY CLERK of the City of Grand Terrace, do hereby
certify that the foregoing Resolution was introduced and adopted at a regular meeting of
the City Council of the City of Grand Terrace held on the 24'" day of April, 2012 by the
following vote:
AYES: Councila,pbbers McNaboe, Sandoval and Hays; Mayor Pro Tea,
Garcia and Mayor Stanckievitz
NOES: None
ABSENT: None
ABSTAIN: None
Tr! �A,ei nee r� f�
Tracey R. P rtine , City Cle
APPROVED AS T RM:
`• City Attorney
PURCHASE AND SALE AGREEMENT AND
ESCROW INSTRUCTIONS
This Purchase and Sale Agreement and Escrow instructions ("Agreement"), dated this 24i1L day of
April, 2012, is entered into by and between the City of Grand Terrace. acting as the successor agency to the
Community Redevelopment Agency, ("Seller"), and O'Reilly Automotive Stores, Inc., a Missouri corporation
("Buyer").
RECITALS
A. Seller is the owner of that certain real property ("Property')consisting of approximately .84 acre,
more particularly described as Assessor's Parcel Numbers 0275-242-10 and 0275-242-11 and attached hereto as
Exhibit"A".
B. Seller is a public entity with the power to sell real property for development by private parties in
accordance with California Health and Safety Code section 34177 and pursuant to the provisions of AB IX 26,
including but not limited to Health and Safety Code section 34177(e). Buyer desires to purchase property from
the seller to develop a retail auto pars store.
C. As a consequence of the foregoing, Buyer has agreed to purchase Seller's Property and Seller has
agreed to convey it to Buyer pursuant to the following terms and conditions:
i AGREEMENT
ARTICLE I
1.1 Sale and Purchase. Subject to the terms and conditions set forth in this Agreement, Seller agrees
to sell the Property to Buyer and Buyer agrees to purchase the Property from Seller.
1.2 Purchase Price. The total purchase price for the Property shall be Three Hundred Fifty Thousand
Dollars ($350,000.00), (the"Purchase Price').
1.3 Payment by Buyer. A deposit of$5,000 shall be deposited into escrow within 10 business days
of the opening of escrow. The remaining Purchase Price shall be paid at the Close of Escrow.
1.4 Buyer's agreement to develop aut5Tarts store. Buyer agrees to develop a retail auto parts store
at the property in accordance with the City's Municipal Code and in compliance with the Califomia
Environmental Quality Act,beginning construction prior to April 1, 2013,and to open the store by June 1,
2014. If Buyer has not opened the auto parts store for business by June 1, 2014, Buyer shall sell property back
to Seller at the appraised value at the time of the sale,but not less than$350,000.00.
L5 Condition of Title. At Closing, Seller shall convey to Buyer good and marketable title in fee
simple to the Property subject only to all easements,restrictions, or covenants of record which do not interfere
with the use of the Property for the purposes identified herein,including, without limitation, current,non-
delinquent real property taxes (the "Permitted Exceptions").
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Seller True and Correct. Seller hereby represents and
warrants to Buyer that the following facts are me and correct as of the date hereof. The truth and accuracy of
the following representations and warranties shall constitute a condition precedent to the Close of Escrow for
the benefit of Buyer. These representations and warranties shall survive the Close of Escrow and the recording
of the Grant Deed and shall not be deemed merged into the Grant Deed upon its recordation.
(a) Power and Authority. Seller has the legal power, right and authority to enter into this
Agreement and the instruments,referenced herein, and to consummate the transactions contemplated hereby,
subject to approvals of other legal agencies as set forth below. The individuals executing this Agreement and
the instruments referenced herein on behalf of the Seller have the legal power, right and actual authority to bind
Seller to the terms and conditions hereof and thereof. Furthermore, Seller warrants that it has good and
marketable title to the Property.
(b) Requisite Action. All requisite action has been taken by Seller in connection with the
entering into of this Agreement,the instruments referenced herein, and the consummation of the transactions
contemplated hereby.
(c) AB X1 26 Conditions. Buyer acknowledges and agrees that the original acquisition of
the Property ("Redevelopment Property")was pursuant to Health and Safety Code Section 33000 et. seq_
otherwise known as the California Redevelopment Law. Buyer further acknowledges and agrees that the City is
`+ selling the Redevelopment Property as a result of and pursuant to the requirements of AB X126,upheld by the
California Supreme Court's decision in California Redevelopment Association v. Matosantos, 53 Cal. 4th 231
(2011),which dissolved all redevelopment agencies operating within the State of California. Buyer
acknowledges and agrees that under ABXI 26, the City's sale of the Redevelopment Property is subject to a
number of legal requirements including but not limited to notices to and/or approvals from the State of
California and/or an Oversight Board ("ABXI 26 Sale Approvals")in order to complete this sale. Buyer
acknowledges and agrees that the City has no control over ABXI 26 Sales Approvals. Buyer hereby
acknowledges and agrees that it will not bring any claims,demands, suits,actions or proceedings of any kind or
nature against the City, its agents, employees, consultants or volunteers related to ABX1 26 Sale Approvals for
the Redevelopment Property.
(d) Validity. This Agreement and all documents required hereby to be executed by Seller are
and shall be valid,legally binding obligations of and enforceable against Seller in accordance with their terms
subject only to applicable bankruptcy,insolvency, reorganization,moratorium or similar laws or equitable
principles affecting or limiting the rights of contracting parties generally, and subject to the ABXI 26 Sale
Approvals. Neither the execution and delivery of this Agreement and documents referenced herein, nor the
consummation of the transactions contemplated herein, conflict with or result in the material breach of any
terms or provisions of any contract, loan, or other agreement or instrument to which Seller is a party or affecting
the Property. All consents, approvals and authorizations necessary for the execution of this Agreement and the
consummation of the transactions contemplated herein by Seller and within the control of Seller have been or
will be obtained. Seller has not sold, conveyed or entered into any contract for the sale of all or any portion of
the Property or any rights incident thereto, nor do there exist any rights of first refusal or options to purchase the
46, Property or any rights incident thereto.
(e) Recitals. The information contained in the Recitals is true and correct
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(f) Lawsuits and Claims. To Seller's actual knowledge, without any duty of inquiry or
investigation, there are no pending actions, lawsuits, claims or judicial, municipal or administrative proceedings
affecting all or any portion of the Property or in which Seller is a party by reason of Seller's ownership of the
Property. To Seller's knowledge, there are no threatened or contemplated actions, lawsuits, claims or
proceedings nor the existence of any facts which might give rise to such actions, lawsuits, claims or
proceedings. During the Escrow period, Seller will not commence or defend any action with respect to the
Property except upon such terms as are mutually acceptable to Seller and Buyer.
(g) Condition of PronertV. Seller will deliver the property at Close of Escrow in an "As Is"
condition. The Seller has not received notice of any violation of applicable governmental regulations relating
to the Property. The Seller has received notice from the California Department of Transportation regarding
construction of a new Barton Road interchange, and development of Property may be subject to review by
applicable authorities. Baton Road right-of-way dedication may be required. Seller makes no representations
regarding whether and to what extent the construction of the interchange or dedications which may be required
may affect the Property or Buyer's plans for the Property.
(h) Taxes and Assessments. Seller has provided to Buyer all relevant information in its
possession concerning real property taxes and any special assessments or bonds which may be levied against the
Property as a result of any existing public improvements or work, activities or improvements done to the
Property by Seller.
(i) Hazardous Materials. To Seller's actual knowledge,without any duty of inquiry or
investigation, all operations or activities upon, or use or occupancy of the Property by Seller or any current
occupant or user thereof are in compliance with all state, federal and local laws and regulations governing or in
any way relating to the generation,handling, manufacturing, treatment, storage, use, transportation, spillage,
leakage, dumping, discharge or disposal (whether accidental or intentional) of any toxic or hazardous
substances, materials or wastes, including, without limitation, any hazardous material(as such terms are
commonly defined or employed in accordance with applicable federal, state or local laws, codes, ordinances,
rules and regulations). To the Seller's actual knowledge,without any duty of inquiry or investigation,there is
not present upon the Property, or on any portion thereof,underground storage tanks, any hazardous material or
any structures, fixtures, equipment or other objects or materials containing any hazardous material in violation
of any applicable environmental law.
(I) Leases and Contracts. To Seller's knowledge, there are no oral or written leases,
subleases, licenses, occupancies, or tenancies in effect pertaining to the Property, and no persons or entities
occupy or have the right to occupy or use all or any portion of the Property. To Seller's knowledge, except as
disclosed by Seller to Buyer, there are no service or maintenance contracts, warranties, guarantees, bonds,
insurance policies or other agreements (whether oral or written) which will affect or be obhgations of Buyer or
the Property after the Close of Escrow. At the Close of Escrow, Seller shall deliver possession of the Property
to Buyer free of actual occupancy and any right of occupancy by any party.
(k) Changes. Seller shall promptly notify Buyer of any material, adverse change in any
condition with respect to the Property or of any event or circumstance which makes any representation or
warranty, of Seller under this Agreement untie or any covenant of Buyer under this Agreement incapable or
less likely of being performed, it being understood that Seller's obligation to provide notice to Buyer shall in no
way relieve Seller of any liability for a breach by Seller of any of its representations, warranties or covenants
under this Agreement.
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General Representation. No representation, warranty or statement of Seller in this
Agreement or in any document, certificate of schedule prepared by Seller and to be fumished to Buyer pursuant
to the terms of this Agreement contains any untrue statement of material fact.
Except for the representations and warrantees explicitly set forth above, Buyer hereby releases Seller,
Seller's affiliates, officers, directors, partners, employees, and agents, and their respective heirs, successors,
personal representatives and assigns, from and against any and all claims which Buyer may have and which
arise out of or are in any way connected with this Agreement and the Property, including, without limitation,
every physical and environmental condition of the Property. BUYER EXPRESSLY WAIVES ITS RIGHTS
GRANTED UNDER CALIFORNIA CIVIL CODE SECTION 1542 AND UNDER ANY PROVISION OF
LAW THAT PROVIDES THAT A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
BUYER DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING
THE RELEASE,WHICH IF KNOWN BY IT MUST HAVE MATERIALLY AFFECTED ITS AGREEMENT
TO RELEASE SELLER. BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER
REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO BUYER MAY
HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CLAIMS WHICH ARE PRESENTLY UNKNOWN,
UNANTICIPATED AND UNSUSPECTED,AND BUYER FURTHER AGREES,REPRESENTS AND
WARRANTS THAT THE WAIVERS AND RELEASES HEREIN HAVE BEEN NEGOTIATED AND
AGREED UPON IN LIGHT OF THAT REALIZATION,AND THAT BUYER NEVERTHELESS HEREBY
INTENDS TO RELEASE,DISCHARGE AND ACQUIT SELLER FROM ANY SUCH UNKNOWN
CLAIMS, AND THAT SUCH WAIVERS AND RELEASES FORM A MATERIAL PORTION OF THE
CONSIDERATION GIVEN TO SELLER BY BUYER IN EXCHANGE FOR SELLER'S PERFORMANCE
UNDER THIS AGREEMENT. BUYER HAS CONSULTED WITH LEGAL COUNSEL CONCERNING
THE EFFECTS OF THIS WAIVER AND RELEASE ON BUYER'S RIGHTS AND REMEDIES RELATED
TO THE PROPERTY.
Initials: Buyer _ Seller.
2.1 Representations of Buyer. Buyer has the full authority and power to comply with all of its
obligations set forth in this Agreement and hereby represents and warrants to Seller that all facts are true and
correct.
ARTICLE III
COVENANTS OF SELLER AND BUYER AND INSPECTION PERIOD
3.1 License to En[er. Seller hereby agrees that Buyer and/or its agents, representatives, contractors
and subcontractors may, following the Opening Date and prior to the Closing Date, conduct its own reasonable
engineering studies,environmental assessment, soil and compaction tests and other tests and studies on the
Property provided that(i) such activities do not impair the drainage of the Property; and (ii) Buyer shall be
responsible for any damage caused thereby to the Property. Buyer shall be responsible for any liability, cost,
claim, damage or injury caused by such entry and shall keep the Property free of any and all liens arising
therefrom. Buyer shall indemnify and hold Seller harmless and defend Seller from and against such liability,
loss,judgment, cost, claim, damage or injury, including but not limited to attorneys' fees and costs, arising out
of or in connection with entry or testing on the Property by Buyer or its agents, representatives, contractors or
subcontractors.
3.2 Inaction Review Period. Buyer shall have a period of one hundred fifty (150) days from the
opening of Escrow to approve at its sole discretion, the following, which shall be provided by
Seller to Buyer within ten(10)business days from opening of escrow, and include,but not be limited to:
4
4 1) Preliminary Title Report and related documents (ALTA policy)
2) Plat Map
3) Hazardous Substance Condition report
4) Size and description of the property
5) Geotechnical Report, if any
Additionally, any or all items requested above that are in the Seller's possession shall be
submitted to Buyer for its review.
3.3 Property Condition. Buyer shall inspect the Property during the Inspection Review Period.
Should Buyer determine that there are any defects; Seller may, at its sole option, provide a credit to the
purchase price in an amount sufficient to repair the defects. Otherwise,the Property will be sold "As is" with
Seller making no additional representations or warranties concerning the Property.
3.4 Buyer's Conditions and Inspection Period. All of Buyer's duties and obligations under this
Contract shall be conditioned upon and subject to the complete satisfaction of the following conditions
precedent,each of which is for the sole benefit of Buyer, and any of which may be waived by Buyer at Buyer's
sole discretion. Buyer shall have one hundred fifty(150)days (the "Inspection Period")from the Effective Date
to complete its investigation of the Property. If each and everyone of the conditions precedent are not
completely satisfied or waived by Buyer on and as of the respective time frames set forth for each condition,
Buyer may terminate this Contract as set forth below, prior to the expiration of the Inspection Period. If Buyer
fails to notify Seller of its waiver or satisfaction of each of the conditions listed below within the designated
Inspection Period, such conditions shall be deemed waived. During the Inspection Period, Buyer shall complete
the following to its satisfaction:
(a) Title. Buyer shall complete its examination of the title to the Property during the
Inspection Period. As part of this examination, Buyer shall obtain, and Seller shall pay for at closing, a title
insurance commitment and/or title search issued by the Title Company, which is licensed to issue and write title
insurance policies in the State of California, showing Sellers title to the Property to be marketable or
indefeasible in fact, as defined by the Title Examination Standards of the California Bar. Buyer shall notify
Seller in writing of any objections or defects to the title. If Buyer delivers notice of any such objections or
defects, then Seller, within ten (10) business days after receipt of such notice, shall either elect: (i) not to cure
any such defects or(ii)to promptly attempt to cure any such defects before Closing. Seller's failure to send
written notice to Buyer within such ten(10)business day period electing to either not cure or attempt to cure
such defects shall be deemed an election by Seller not to cure such defects. If Seller refuses to cure such defects
Buyer shall elect as its sole remedy to either: (i) terminate this Contract by giving written notice thereof to
Seller, in which event (a)this Contract shall thereupon be of no further force and effect; (b) no party hereto
shall have any further rights, duties or obligations hereunder; and (c) Seller shall instruct the Title Company to
return the Earnest Deposit to Buyer, or(ii) accept the title to the Property subject to the defects without
adjustment to the Purchase Price and proceed to Closing as set forth herein. At closing, the Buyer is to pay all
premiums necessary to convert the title insurance commitment to a Buyer's title insurance policy in the full
amount of the purchase price.
(b) Survey. Buyer shall obtain an ALTA/ACSM Survey according to Buyer's specifications,
complete with topographic features, elevations, and utilities, and showing the Property to be irregular in shape
with at least ISO feet of frontage along Barton Road and at least 211 feet deep. Seller shall credit one half the
cost of the ALTA/ACSM Survey,up to $1,000.00, out of proceeds at closing. Buyer shall notify Seller in
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writing of any objections or defects to the Property revealed by the Survey. If Buyer delivers notice of any such
objections or defects, then Seller,within ten (10)business days after receipt of such notice, shall either elect: (i)
not to cure any such defects or(ii) to promptly attempt to cure any such defects before Closing. Seller's failure
to send written notice to Buyer within such ten (10) business day period electing to either not cure or attempt to
cure such defects shall be deemed an election by Seller not to cure such defects. If Seller refuses to cure such
defects Buyer shall elect as its sole remedy to either: (i) terminate this Contract by giving written notice thereof
to Seller, in which event: (a) this Contract shall thereupon be of no further force and effect; (b) no party hereto
shall have any further rights, duties or obligations hereunder; and (c) Seller shall instruct the Title Company to
return the Earnest Deposit to Buyer; or(ii) accept the survey to the Property subject to the defects without
adjustment to the Purchase Price and proceed to Closing as set forth herein.
(c) Environmental Investigation. Buyer shall, at its own expense, perform such
environmental audits, testing and sampling of the Property as it, in its sole discretion, deems necessary to
determine the environmental condition of the Property. Buyer shall conclude that the environmental condition
of the Property shall not subject Buyer to potential claims because of the environmental condition of the
Property, or require that Buyer incur expense to remediate,or abate any contamination of the Property, or
remove any underground storage tanks, petroleum product lines, asbestos or asbestos containing materials,
septic tanks or other like containers or pipes from the Property.
Buyer shall defend and indemnify Seller for any damage, injury,release, loss, expense, claim, or suit
which arises from any environmental audits, testing and/or sampling of the Property conducted by or at the
request of Buyer pursuant to this provision,
(d) Zoning Verification. Buyer shall confirm that the zoning classification of the Property
will permit the construction of Buyer's proposed improvements and use by Buyer as a location for the sale of
auto parts.
(e) Utilities. Buyer shall confirm the availability of any and all utilities servicing the
Property, including, without limitation,municipal water, sanitary sewer, storm sewer, electric, natural gas, and
telephone and that each such utility service has sufficient capacity to serve the intended use by Buyer for the
Property as a retail outlet.
(f) Flood Plain. Buyer shall confirm that the Property is not within the 100-
year flood plain as established by FEMA.
(g) Geological Borings. Buyer and Seller do hereby acknowledge and agree that Buyer shall
have the right to conduct geological borings to determine the acceptability of the soil compaction of the
Property for Buyer's use. Buyer shall defend and indemnify Seller for any damage, injury,release, loss,
expense,claim, or suit which arises from any geological borings on the Property conducted by or at the request
of Buyer pursuant to this provision,
(h) Development Plan. During the Inspection Period Buyer shall have issued to it by the City
of Grand Terrace, California, approval of its site plan and sign program for development of the Property which
shall include construction of a retail building not smaller than 6,300 square feet within an area on the Property
in compliance with the Grand Terrace Zoning Code for either concrete or asphalt paved parking lot and
( approval to construct at least one 30-foot driveway onto Barton Road.
�+ (i) Approval. Buyer and Seller acknowledge that this Contract is contingent upon approval
of the site by Buyer's Expansion Committee- Such approval or disapproval shall be provided to the Seller in
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written notification within 45 days of the Effective Date, prior to 5:00 p.m. Central Time, and, if Seller receives
written notification that Buyer's Expansion Committee disapproves of this site by such date, then this Contract
shall be null and void. Should Buyer fail to provide Seller such notification, then Buyer has accepted this
condition and will proceed with the satisfaction of all of the other terms and conditions set forth in this Contract.
ARTICLE IV
ESCROW
4.1 Agreement to Constitute Escrow Instructions. This Agreement together with any General
Provisions of Escrow Holder(the"General Provisions") collectively shall constitute escrow instructions and a
copy hereof shall be deposited with Escrow Holder for this purpose. In the event of any inconsistency between
the terns of the General Provisions and this Agreement, the provisions of this Agreement shall prevail to the
extent of any such inconsistency.
4.2 Escrow Holder. The escrow (the"Escrow") shall be with First American Title Company, 777
South Figueroa Street,4's Floor,Los Angeles, CA 90017; Bobby Purdy, Senior Escrow Officer, tel: 800-668-
4853 ext. 1742; fax: 877-805-5023; email: bpurdy@firstam.com.
4.3 Opening of Escrow. Escrow shall open on the date on which a copy of this Agreement,properly
executed by the parties hereto, has been deposited with Escrow Holder(the`Opening of Escrow"), which copy
the parties hereto agree shall be delivered to Escrow Holder immediately following execution. Escrow Holder
( shall notify the parties immediately upon receipt of a copy of this Agreement as so executed as to the date of the
`, Opening of Escrow.
4.4 Close of Escrow. The Closing shall occur not later than 165 days after Opening of Escrow (the
"Scheduled Closing Date'), subject to Section 4.7 (a) of Agreement, unless extended by mutual written
agreement of the parties. For purposes of this Agreement, the terms "Closing Date" and the"Close of Escrow"
mean the date on which the Closing occurs and the term"Closing" means the recordation of the Grant Deed.
4.5 Certain Obligations of Buyer.
(a) In addition to any other obhgations contained in this Agreement,Buyer shall have
deposited the Deposit into Escrow as required pursuant to Section 1.3 or before the time set forth in such
Section.
(b) Not later than one (1)business day prior to the Scheduled Closing Date, Buyer shall
deposit into Escrow:
(1) The total Purchase Price, less the Deposit, as provided in Section 1.3, in cash or
by wire transfer.
(it) All other sutras and documents required by Escrow Holder to be deposited by
Buyer to carry out this Escrow.
4.6 Certain Obligations of Seller. In addition to any obligations contained in this Agreement,not
later than one (1)business day prior to the Scheduled Closing Date, Seller shall deposit with Escrow Holder.
(a) A grant deed in the Title Company's usual form, duly executed, acknowledged and in
recordable form conveying Seller's interests in the Property to Buyer(the"Grapt Deed").
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(b) All other sums and documents required by Escrow Holder to be deposited by Seller to
carry out this Escrow.
4.7 Conditions to Seller's Obligation to Sell. Seller's obligation to sell the Property is expressly
conditioned upon each of the following:
(a) The sale of the property is contingent upon the AB 1X 26 Approvals having been
obtained and notice to the State Department of Finance of the proposed sale in accordance with AB XI 26
within four working days of approval of Agreement by the City Council acting as the City as the Successor
Agency to the Grand Terrace Redevelopment Agency and lack of objection to the sale from the Department of
Finance and other state and local agencies within 15 days of the date of notice.
(b) Buyer shall have deposited with Escrow Holder all sums and documents required
pursuant to Section 4.5.
(c) Buyer shall have timely performed each obligation and covenant of Buyer required
pursuant to this Agreement.
(d) All representations and warranties of Buyer hereunder are materially true and correct.
4.8 Conditions to Buyer's Obligation to Buy. Buyer's obligation to buy the Property is expressly
conditioned upon each of the following:
(a) Seller shall have deposited with Escrow Holder all sums and documents required
pursuant to Section 4.6.
(b) Seller shall have timely performed each obligation and covenant of Seller required
pursuant to this Agreement.
(c) Escrow Holder holds for issuance the Title Policy (as hereinafter defined).
(d) All representations and warranties of Seller hereunder are materially true and correct-
(c) No material adverse change shall have occurred to the condition of the Property or the
improvements thereon.
4.9 Title Policy. Escrow Holder is hereby instructed to deliver to Buyer through Escrow a Standard
ALTA owner's policy of title insurance from First American Title Insurance Company with regional exceptions
dated the date and time of Closing with liability in the amount of the Purchase Price(the"Fide Policy'). The
Title Policy shall insure Buyer(or its nominee) as owner of good,marketable and indefeasible fee title to the
Property subject only to(i) the standard printed title company exceptions and (h)the Permitted Exceptions and
any other exceptions approved by or created by Buyer. Buyer shall have the right to obtain extended coverage
at its own cost.
4.10 Recordation of the Grant Deed and Delivery of Funds. Upon receipt of the documents and sums
described in this Article IV,Escrow Holder shall cause the Grant Deed to be recorded(with documentary
transfer tax information to be affixed after recordation)in the office of the County Recorder of San Bernardino
County,California, and shall deliver the proceeds of the Escrow less appropriate charges to Seller. A
conformed copy of the recorded Grant Deed shall be delivered to Buyer immediately following the Closing. All
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sums to be disbursed to Seller by Escrow Holder shall be by certified or cashiers check of Escrow Holder or by
wire transfer if Escrow Holder is so advised by Seller.
(a) Prorations. Real property taxes and any other assessment payment shall be prorated as of
Close of Escrow.
(b) Costs of Escrow.
(i) Seller shall pay one-half(1/2) of the Escrow fee, and cost of an ALTA standard
coverage title policy, together with all documentary transfer tax.
(h) Buyer shall pay all costs not described as Seller's costs in Section 4.10(b) (i).
4.11 Broker's Commission. Seller represents that it was not represented by a broker and any Broker's
Commission shall be paid by Buyer.
4.12 Default. Time is of the essence in this Agreement and if Buyer or Seller(the "Defaulting Party")
fails to deposit any of the amounts due pursuant to this Agreement,or to perform any other act when due, then
the other party (the"Non-Defaulting Party") may initiate any of its rights under this Agreement, in law or in
equity by notice in writing to the Defaulting Party and Escrow Holder. Should Buyer default, Seller shall be
entitled to retain Buyer's deposit as liquidated damages. If the Defaulting Party has not fully cured the default
within seven (7) calendar days after receipt of said notice by the Defaulting Party, Escrow Holder may be
instructed by the Non-Defaulting Party to cancel this Escrow and the Non-Defaulting Party shall thereupon be
4 released from its obligations under this Agreement.
4.13 Buyer's Remedies. Buyer and Seller agree that if the sale contemplated by this Agreement is not
completed as herein provided solely by reason of any material default of Seller, Buyer's deposit shall he
returned to Buyer, and Buyer shall have the right to pursue any remedy available at law or in equity for such
default of Seller, including,without limitation, the specific performance of this Agreement.
4.14 Statement of Buyer and Seller Concerning Executory Terms. Buyer and Seller acknowledge that
the consummation of the Escrow is contingent upon compliance with some or all of the executory terms and
provisions this Agreement and that the parties hereto are the sole persons or entities entitled and authorized to
determine whether all executory terms and provisions required to be performed prior to the Close of Escrow
have been satisfied or deemed satisfied prior to the close of Escrow. Accordingly, prior to the Scheduled
Closing Date, Buyer and Seller shall each deposit with Escrow Holder a written statement acknowledging that
all executory terms and provisions of this Agreement, insofar as the same relate to each party respectively and
any obligation of Escrow Holder relating thereto, have been satisfied,deemed satisfied or waived. Deposit of
such statement with Escrow Holder shall constitute each party's authorization to close Escrow.
4.15 Termination of Agreement In the case of termination of this Agreement in accordance with its
terms and cancellation of the Escrow (except for a Buyer's Default under which Seller would be entitled to
retain Buyer's deposit as liquidated damages), all documents and funds(together with any interest accrued
thereon)previously deposited into the Escrow shall be promptly returned to the depositing party by the person
or entity then holding such documents and funds, and all rights and obligations of the parties existing hereunder
shall thereafter terminate and be of no further force and effect except for the indemnification of Buyer in
4 Sections 3.1, 3.4, and 4.12, all of which shall survive the termination of this Agreement.
4.16 Escrow Cancellation Charges. In the event that this Escrow shall fail to close by reason of the
default of either party hereunder, the defaulting party shall be liable for all Escrow cancellation charges. In the
9
event that the Escrow shall fail to close for any other reason, each party shall be liable for one-half(1/2) of all
Escrow cancellation charges.
4.17 Delay in Closing' Authority to Close. If Escrow Holder cannot close the Escrow on or before the
Scheduled Closing Date, it will, nevertheless, close the same when all conditions have been satisfied or waived,
notwithstanding that one or more of such conditions has not been timely performed, unless after the Scheduled
Closing Date and prior to the close of the Escrow, Escrow Holder receives a written notice to terminate the
Escrow and this Agreement from a party who, at the time such notice is delivered, is not in default hereunder.
The exercise of such right, and the return of moneys and documents, shall not affect the rights of the party not
in default permitted in this Agreement for the other party's breach of this Agreement. In addition, the giving of
such notice, the failure to object to termination of the Escrow or the return of moneys and documents shall not
affect the right of the other party to pursue other remedies permitted hereunder for the breach of the party who
gives such notice.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Incorporation of Exhibits. All exhibits attached hereto and referred to herein are incorporated in
this Agreement as though fully set forth herein.
5.2 Attorneys' Fees. In any legal proceeding between Buyer and Seller seeking enforcement of or
attempting to construe any of the terms and provisions of this Agreement, or in connection with any of the
property described herein,including, without limitation, insolvency,bankruptcy, arbitration, declaratory relief
or other litigation, the prevailing party in such action shall be awarded, in addition to damages, injunctive or
other relief, its reasonable costs and expenses,including,without limitation, service of process, filing fees,court
and court reporter costs, investigation costs, expert witness fees and the cost of any bonds, and reasonable
attorneys' fee.
5.3 Notices. All notices required or permitted by this Agreement shall be in writing and may be
delivered in person (by hand delivery or professional messenger service)to either party or may be sent by
registered or certified mail, with postage prepaid,return receipt requested or delivered by Express Mail of the
U.S. Postal Service or Federal Express or any other courier service guaranteeing overnight delivery, charges
prepaid, addressed as follows:
If to Seller at:
City of Grand Terrace
As Successor Agency to the Redevelopment Agency
22795 Barton Road
Grand Terrace, CA 92324
Attn: City Clerk
If to Buyer at:
O'Reilly Automotive Stores, Inc.
Director of Real Estate Legal Services
233 S. Patterson
Springfield, MO 65801
10
Any such notice sent by registered or certified mail, return receipt requested, shall be deemed to have
been duly given and received seventy-two (72) hours after the same is so addressed and mailed in Los Angeles.
Orange, San Bernardino or Riverside Counties with postage prepaid. Notices delivered by overnight service
shall be deemea to nave been given twenty-four«4) hours after deiivciy of Cu. L,e
U.S. Postal Service or private courier. Any notice or other document sent by any other manner shall be
effective only upon actual receipt thereof. Any party may change its address for purposes of this Section by
giving notice to the other party and to Escrow Holder as herein provided.
5.4 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of
each of the parties hereto and their respective successors and permitted assigns.
5.5 Assignment This Agreement may not be assigned by either party without the express written
consent of the other party first had and obtained. Except as provided in the preceding sentence, any assignment
of delegation of rights, duties or obligations hereunder made without the prior written consent of the other party
or parties hereto shall be void and of no effect. No such assignment shall be deemed to relieve the assigning
party from any liability or responsibility hereunder.
5.6 Relationship of Parties. The relationship of the parties to this Agreement shall be solely that of
Buyer and Seller, and nothing herein contained shall be construed otherwise.
5.7 Governing Law. This Agreement shall be governed by, interpreted under, and construed and
enforced in accordance with the internal laws of the State of California.
6 5.8 Entire Agreement: Amendment. This Agreement contains all of the agreements of the parties
hereto with respect to the matters contained herein and no prior or comemporaneous agreement or
understanding, oral or written,pertaining to any such matters shall be effective for any purpose. No provision
of this Agreement may be modified, waived, amended or added to except if in writing and signed by the party
against which the enforcement of such modification, waiver, amendment or addition is or may be sought.
5.9 Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the parties may require.
5.10 Headings. The headings of this Agreement are for purposes of reference only and shall not limit
or define the meaning of the provisions of this Agreement
5.11 Severability. If any paragraph, section, sentence, clause or phrase contained in this Agreement
shall become illegal, null or void, against public policy,or otherwise unenforceable, for any reason, or shall be
held by any court of competent jurisdiction to be illegal, null or void, against public policy, or otherwise
unenforceable,the remaining paragraphs, sections, sentences, clauses or phrases contained in this Agreement
shall not be affected thereby.
5.12 Waiver. The waiver of any breach of any provision hereunder by Buyer or Seller shall not be
deemed to be a waiver of any preceding or subsequent breach hereunder. No failure or delay of any party in the
exercise of any right given hereunder shall constitute a waiver thereof nor shall any partial exercise of any right
(( preclude further exercise thereof.
�r 5.13 Further Assurances. Seller and Buyer each agree to do such further acts and things and to
execute and deliver such additional agreements and instruments as the other may reasonably require to
11
consummate, evidence or confirm the sale or any other agreement contained herein in the manner contemplated
hereby.
5.14 Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which shall constitute one and the same instrument.
5.15 Time of Essence. Time is of the essence in this Agreement as to all dates and time periods set
forth herein.
5.16 Eminent Domain Proceedings. Seller shall promptly notify Buyer of any condemnation
proceeding commenced prior to the Close of Escrow. If any such proceeding relates to or may result in the loss
of any material portion of the Property, Seller or Buyer may, at its option, elect either to (i) terminate this
Agreement, in which event all funds deposited into Escrow by Buyer or released to Seller shall be returned to
Buyer, all instruments shall be returned to the respective parties who deposited the same, and neither party shall
have any further rights or obligations hereunder except as provided in Section 4.15, or(ii) continue the
Agreement in effect, in which event upon the Close of Escrow, Buyer shall be entitled to any compensation,
awards, or other payments or relief resulting from such casualty or condemnation proceeding.
5.17 Recitals. The provisions of the recitals of this Agreement shall constitute operative and
enforceable provisions of this Agreement.
IN W17NESS WHEREOF, this Agreement has been executed by the parties on the dates set forth under
their respective signatures below, notwithstanding that this Agreement is dated for convenience and reference as
of the date and year fast written above.
SELLER: BUYER:
CITY OF GRAND TERRACE, acting as the O'Reilly Automotiv Stores Inc.
Successor Agency to the Community
Redevelopment Agency
B
n - — V.('. �:ea: Cif-ni-� I�xlztt�S cn
1 \ rfn 11\
By:
Mayor Assistant Seeretary�
Dated: April 25, 2012 Dated: April_, 2012
Approved as to Form:
Richard L. Adams
`. City/Successor Agency Attorney
12
44.
EXHIBIT "A"
LEGAL DESCRIPTION
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