HomeMy WebLinkAbout17. Adopt Reso to Approve Purchase & Sale Agrmt South West Corner of Imperial Blvd & Lakewood BlvdTO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCILCITY MANAGER
FROM: OFFICE OF ,
r• E. SCHINDLER,DIRECTOR OF • DEVELOPMENT
DATE: i
••,r r •- L AM Ir ��I
That the City Council authorize the City Manager to execute a Purchase and Sale Agreement with
NADG/Waypoint Downey, LP, for a portion of the City -owned right-of-way property, located at the
southwest corner of Imperial Hwy. and Lakewood Blvd. for $122,500.00; and authorize the City
Manager to execute any and all amendments to the agreement.
r •;
The City of Downey ("City") has been approached by a developer NADG/Waypoint Downey, LP
("Developer"), to redevelop the commercial property on the southwest corner of Imperial Hwy and
Lakewood Blvd., which includes a portion of the City -owned right-of-way parcel on the corner of
the site facing Imperial Hwy. and Lakewood Blvd. The City has received an unsolicited offer to
purchase this property by the Developer. It is the Developer's intent to combine a portion of the
City's right-of-way property with the adjoining site, so they may redevelop the entire existing
commercial center.
The City's right-of-way site is a 4,390 square foot parcel, vacant with landscaping. This parcel is a
remnant piece of land that was acquired by the City in 2004 to improve the Lakewood Blvd and
Imperial Hwy intersection. Future street improvements may be planned for this intersection;
therefore, the City will need to retain a portion of the right-of-way, and the remaining 3,500 square
feet will be sold to the Developer.
The City procured two separate appraisals for the site and the negotiated purchase price for the
site is $122,500.00. The transaction includes selling the site in "AS -IS" condition and collecting a
deposit of $13,000.00, which is non-refundable if the Developer does not obtain their development
entitlements by May 31, 2019.
Prior to the City selling the land, California Government Code Section 65402(a) requires the
Planning Commission adopt a finding that the disposal of said property is consistent with the
General Plan. On February 6, 2019, the Planning Commission approved such findings, noting that
7 EBRUARY 12, 2019
'Fr,AGE 2
the subject site has a General Plan Land Use Designation of General Commercial. According to the
General Plan, the intent of the General Commercial designation is to allow for a full range of
commercial uses, including shopping centers and other larger commercial uses. This property sale
will allow a substandard parcel to be combined with the adjoining lot, thus creating a larger
development site and facilitating redevelopment of the existing shopping center. For this reason, the
sale of this parcel is consistent with the General Plan.
Fiscal Responsibility
Quality of Life, Neighborhood & Infrastructure
FJ9pqXMEUWMi
The City will receive $122,500.00 from the sale of a portion of the City owned right-of-way
property assessor parcel number 6263-001-900. The proceeds will be deposited into the City's
General Fund budget.
ATTACHMENTS
Attachment A: Site Aerial
Attachment B: Resolution with Purchase and Sale Agreement
1
• N] • • • • r•: •---•
WHEREAS, the City has negotiated a Purchase and Sale Agreement with
NADG/WAYPOINT DOWNEY, LP ("Buyer"), pursuant to which the City would sell a portion of
the Property, located at the southwest corner of Imperial Highway and Lakewood Boulevard,
Downey, CA with Assessor Parcel Number 6263-001-900, for a sales price of $122,500.00; and
WHEREAS, the City Council has determined that approval of the Purchase and Sale
Agreement and the sale transaction contemplated thereby, is in the best interest of the City and
the public health, safety and welfare.
• • •
�J 11 11111 1 1111, 111 1 1 0
SECTION 1. The City Council of the City of Downey hereby (i) approves the Purchase
and Sale Agreement, a copy of which is attached hereto as Exhibit "A", and is on file with the
City Clerk, (ii) if required, authorizes and directs the City Manager to make final changes to the
Purchase and Sale Agreement consistent with the City Council's direction, and (iii) authorizes
and directs the City Manager to execute the final Purchase and Sale Agreement and any other
documents and agreements necessary to complete the sale transaction contemplated by the
Purchase and Sale Agreement.
'SECTION 2. The City Council of the City of Downey hereby determines that the sale of
the Property is categorically exempt from the California Environmental Quality Act (CEQA)
pursuant to Guideline Section No. 15312 (Class 12, Surplus Government Property Sales).
Categorical Exemptions are projects which have been exempted from the requirements of CEQA
because they do not have a significant effect on the environment. Class 12 exemptions allow the
disposal of surplus property, such as the subject site.
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16fluxeirm
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of
the City
• Downey at a regular meeting held •, the 12 th • • • 2019, • the following
vote, to wit:
MARIA ALICIA DUARTE, CIVIC
City Clerk
•S L as 0 -
MARIA ALICIA DUARTE, CIVIC
City Clerk
THIS PURCHASE ANDSALE AGREEMENT AND iESCROLm
INSTRUCTIONS• ,a. and entered into as of December 1 •
reference purposes only, by and between THE CITY OF DOWNEY, a municipal corporati
or a i • 'i ii ' i- -• i s
i ; - date r• •• Buyer and Seller have executed Agreements
delivered the same to one • be -i to 1
IN CONSIDERATION of the respective agreements hereinafter set forth, Seller and
Buyer hereby agree as follows:
1. Purchase and Sale off'rmertv. Seller hereby agrees to sell "AS -IS" and conva
to Buyer, and Buyer hereby agrees • purchase fromSeller,r to the terms and conditio
set forth herein, the following (collectively, the "Property"): i
That certain real property • of approximately 3,500 square feetand located .
1 Imperialof Downey,• of • Angeles, of
California, on portion of 4,390 square foot parcel commonly -a to as
Assessor's Parcel Number 6263-001-900, all as more fully described in Exhibit A (the
"Land"), together with all rights, privileges, easements or appurtenances to or affecting
the • • "Appurtenances"). 1 approximately 890
square feet of the existing 4,390 square foot parcel for purposes of a public right of way.
(a) The purchase price for the Property ("Purchase Price") shall 11
*; e Hundred Twenty Two Thousand Five Hundred and 11 10 D• 00.00).
rThe Purchase Price- paid as follown
01 Within three (3) business days following the Effective Date,
and Buyer shall open an escrow in connection herewith ("Escrow") at Security Land Escro
Downey, arnia, Attn: Lawrence Garces, Escrow • (Phone:) • :• • •
i.. •m)("Es crow Holder"),. Buyer shall deposit into Escrow
amountof • r !• ($13,000.00) ("Deposit") or other immediat
availablea
(iii) The Deposit shall be nonrefundable to Buyer uponr • of
the Feasibility Period or approval by Buyer pursuant to Section 4, unless this Agreement is
terminated prior to the Closing due to Seller's default or as otherwise set forth herein. ThA
Deposit shall be held by the Escrow Holder and shall be credited against the Purchase Price at
the Closing.
651 86.0000 813 1 642 3 5 6.6
(jv) On or before the Closing, if this Agreement has not been earli
terminated, Buyer shall deposit into Escrow cash or other immediately available funds in t
amount of the balance of the Purchase Price, less any credits due Buyer hereunder (the "Closi jo
Amount"). The Closing Amount shall be applied towards the Purchase Price at the Closing. I
3. Title to the Prot
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I 11JUMV1 I-) EIJI RKU M I I I hM.-_j KW -J I I LW I I MMS I I LM I W-1 0141" 11 EW41 I WA10 N 1117-A 1 LIS UAGMAJ III I I I U10 III
65186.00008\31642356.6
(a) From and after the Effective Date until the Closing or earlier tenninati•
of this Agreement, Seller shall afford authorized representatives of Buyer access to the Propert
upon reasonable prior notice to Seller, and so long as such access does not unreasonably interfe
with the conduct of business on or use of the Property, for purposes of conducting such physic
inspections and investigations of the Property as Buyer, In its sole discretion, deems necessa
(the "Inspections"). Seller's representative may be present with Buyer or Buyer's representati -
for any access to the Property. The Inspections and investigations may include, witho
limitation, (i) a review of existing zoning, entitlement, planning or similar issues applicable I
the Property; (ii) a review of the physical condition of the Property and the systems serving t -
Property; (iii) a review of the environmental condition of the Property, including conducting
Phase I environmental site assessment and any proposal to conduct a Phase 11 environmental si- -
assessment. Buyer agrees not to conduct or cause to be conducted a Phase 11 enviromnental sil -
assessment without the prior written consent of Seller, which consent shall not be unreasonab
withheld, conditioned or delayed. Buyer's Inspections and investigations shall be governed
Section 14.
(b) As used herein, the term ("Feasibility Period") shall refer to a period of
time to expire at 5:00 p.m., California time, on the earlier of May 31, 2019, or one hundred
eighty (180) days from the date on which Buyer submitted its application for the Entitlements
(defined below) for the Property. If the Entitlements have not been obtained on or before the
expiration of the Feasibility Period, despite diligence on behalf of Buyer to obtain same, Buyer
may request a 30-60 day extension of the Feasibility Period for the purpose of obtaining the
Entitlements. If the last day of the Feasibility Period is scheduled to fall on a Saturday, Sunday
or holiday on which banking institutions are closed in the State of California, then the Feasibility
Period shall expire on the following business day.
(c) During the Feasibility Period Buyer shall acquire all approvals and
entitlements necessary or required for Buyer's intended use of the Property, including, without
limitation those required by the Subdivision Map Act, California Environmental Quality Act, and
local ordinances, but not including the building permit to construct a building for Buyer's
intended purpose (collectively the "Entitlements"). Buyer shall pay for plans, engineering,
surveys, and all application fees to the City. Buyer shall promptly and diligently proceed with all
acts required to accomplish the foregoing within the Feasibility Period.
(d) Buyer may elect, by written notice to Seller at any time prior to t"A
expiration of the Feasibility Period, to terminate this Agreement, which election shall be I
rtuyer's sole and absolute discretion. If Buyer desires to terminate this Agreement pursuant to
this Section 4(d) then before the expiration of the Feasibility Period, Buyer shall deliver writt
notice to Seiler of Buyer's election to terminate (the "Buyer's Notice to Terminate"). If Buy
desires to proceed with the purchase of the Property subject to the remaining conditions set fo
in this Agreement, then on or before the expiration of the Feasibility Period, Buyer shall deliv
written notice to Seller of such election to proceed (the "Buyer's Notice to Proceed"), electi
to waive Buyer's right of termination pursuant to this Section 4(d) and proceed with the Closi
subject to the remaining conditions set forth in this Agreement. If Buyer fails to deliver eith
Buyer's Notice to Terminate or Buyer's Notice to Proceed to Seller prior to the expiration of t
65186.00008\31642356.6
Feasibility Period, then Buyer shall be deemed to have elected to proceed with this Agreeme
and the Closing. In the event of the termination of this Agreement pursuant to this
Escrow Holder shall release the Deposit to Buyer and neither party shall have any furt
(e) In the event Buyer elects to terminate this Agreement uan'
'rs t
pu
Section 4(b), or if Closing does not occur for any reason, Buyer shall retunri all S elle
Deliveries to Seller. Buyer further agrees that prior to Closing, Buyer shall provide Seller wi
copies of all non -confidential and no -proprietary studies, reports, appraisals and other materi
commissioned by or prepared for Buyer relating to or regarding the Property ("Buye
Reports"), at no cost to Seller, and Buyer shall retain the Deposit. Notwithstanding t
foregoing, if Closing does not occur due to Buyer's breach of or default under this Agreeme
that remains uncured, Seller shall retain the Deposit.
5. Seller's Deliveries. Within ten (10) days following the Effective Date, Seller sh
deliver, or cause to be delivered, the documents listed on Exhibit B, attached hereto ("Seller
Deliveries"). Seller will not deliver any additional documents to Buyer with respect to t
Property but agrees to cooperate with Buyer with respect to obtaining Entitlements. It
6. Coiidltioiis to 11tiver's atid Seller's Obligations.
(a) Condition to Seller's Obligations. Seller's obligations hereunder,
including, but not limited to, its obligation to consummate the purchase transaction provided for
herein, are subject to the satisfaction of each of the following conditions, each of which is for the
sole benefit of Seller and may be waived by Seller in writing in Seller's sole and absolute
discretion:
01 Buyer shall not be in default under this Agreement that remains
uncured. Buyer shall cure any default promptly, in any case no later than three (3) business days
after the date of performance or this Agreement shall be terminable at the sole discretion of
Seller. Seller shall not be obligated to give Buyer notice of any default hereunder.
(it) Buyer shall have complied with all of Buyer's pre-closing duties
and obligations contained in this Agreement.
(iii) Each representation and warranty made in this Agreement by
Buyer shall be true and correct in all material respects at the time as of which the same is made
and as of the Closing Date.
(b) Cotiditions to ffilyff*S Obli ' �4,ttioiis. Buyer's obligations hereunder,
including, but not limited to, its obligation to consummate the purchase transaction provided for
herein, are subject to the satisfaction of each of the following conditions, each of which is for the
sole benefit of Buyer and may be waived by Buyer in writing in Buyer's sole and absolute
discretion:
0i Buyer's inspection, review and approval, within the Feasibility
Period, of all of the following:
(1) The physical characteristics and condition of the Property,
including, without limitation, review of the environmental condition, title, zoning, government
approvals, building plans and condition, and other aspects of the Property as determined by
Buyer; and
I
(Ji) Escrow Holder shall be unconditionally committed to issue the
Title Policy to Buyer upon the Closing in the form and with such exceptions and endorsements
as have been approved, or are deemed approved, by Buyer as provided in Section 3 above.
(m) Seller shall have complied with all of Seller's pre -Closing duties
and obligations contained in this Agreement.
(iv) All of Seller's representations and warranties contained in or made
pursuant to this Agreement shall have been true and correct when made and shall be true and
correct as of the Closing Date.
7. Conditions Precedent to Clositwv. The following are conditions precedent to the
sale of the Property (the "Conditions Precedent").
(a) Buyer shall have obtained fee simple title to that certain real property with
a physical address of 8850 Imperial Highway, Downey, CA.
(b) Buyer shall have obtained from the Planning Commission tfs
F01TO MWITI M#
(c) Buyer shall have obtained approval from the Planning Commission and
the City Council for the City of Downey of the Final Map, and the Final Map shall be ready to
record.
In the event any Condition Precedent is not satisfied on or prior to the Closing Dat
Buyer shall either waive any such Condition(s) Precedent that remain unsatisfied or, at of Buyer
sole election, terminate this Agreement, subject to the provisions of Section 8. If this Agreeme
is terminated pursuant to this Section 7. Buyer shall retain the Deposit and the costs Escro
Holder and Title Company will be borne equally by Seller and Buyer, and each party will X2a% il
mlamiai=
(a) SELL[IR'S Rl:MEDIES - LIQUIDATED DAMAGES. IF THE SALE
OF THE PROPERTY PURSUANT TO THIS AGREEMENT IS NOT CONSUMMATED
BECAUSE OF A CANCELLATION OF THIS AGREEMENT AFTER FEASIBILITY
APPROVAL OR UPON DEFAULT UNDER THIS AGREEMENT ON THE PART OF
BUYER, THE DEPOSIT, AND ALL BUYER'S REPORTS, SHALL BE RETAINED BY
65186.00008\31642356.6 5
•. 1. r ♦ ♦ ` Y i a •. � • r' :
� r � i ► � ♦ ' t � r i i � i
r i• ♦ r I .r 14 16� ,RONEW.'T" IN 0 galr .i •
IN EQUITY, 11 'ENT OF - Dl- DERTMIS AGRFFN ENTONTH PA
OF BUYER. UPON THE OCCURRENCE OF ANY SUCH DEFAULT BY BUYER, BUYE
SHALL DELIVERWITHIN 2 BUSINESS DAYS OF SELLER'SREQUESTALL BUYER
REPORTS AND APPROPRIATE DOCUMENTS ASSIGNING SAME TO SELLER. SELLE
HEREBY WAIVES ♦ AND a BENEFITS IT • ♦. UNDER
♦ r ♦.
CIVIL CODE SECTION 3389. FURTHERMORE, THE PAYMENT AND RETENTION
SUCH DEPOSIT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITU
OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 32
AND 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLE
PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. UPO
BUYER'S DEFAULT, ► Y INSTRUCT ESCROW '..r ►' CANCEL T
ESCROW, AND PROMPTLY
IOr UPONRECEIPT SAID INSTRUCTIONS, ESCRO
ESCROWHOLDER SHALL (i) CANCEL THE ESCROW, (ii) CHARGE BUYER TO PAY ALL
1 r AND DISBURSE TO SELLER THE DEPOS
PURSUANT
iY
INITIALS: Seller Buyer
(b) BUYcr Remedies. In the event the sale of the Property is not consummated
because of default under or breach of this Agreement on the part of Seller, Buyer shall have the
option,• • exclusive remedyor E •- Agreement
termination)by delivery of written notice of termination to Seller, whereupon Buyer and Seller shall each be
released from all liability hereunder (except for those provisions which recite that they survive
.: • the Deposit shall be returned to Buyer; • - this Agreement--
the equitable remedy of specific performance; or (iii) waive the alleged default and proceed to
Closing under this Agreement without adjustment of the Purchase Price. Notwithstanding the
foregoing, in the event that Seller willfully and intentionally defaults in its obligations un
rightAgreement for the purpose of preventing Buyer from purchasing the Property and specific
�#mAtrmance is unavailable as a remed?i because of Seller's willful and
shall have the i pursue any remedyor equity including, without limitation,
claim for i - damages. • - • • r options are mutuallyexclusive and are .
breach of Agreement. Buyer waivesany and all •hts it may now or •
pursue any other remedy or pursue any other damages on account of any such breach or default
by Seller, including without limitation, special, punitive or consequential damages. Buyer shall
be deemed to have elected its remedy under clause (i) of this paragraph if Buyer fails to file suit
for specific performance against Seller in a court having jurisdiction in the county and state in
which the Property is located, on or before sixty (60) days following the date upon which
Closing was to have occurred.
65186.00008\31642356.6 6
9. Escrow: Closing, Prorations
(a) Upon mutual execution of this Agreement, the parties hereto shall depo
an executed counterpart of this Agreement with Escrow Holder and this Agreement shall serve
instructions to Escrow Holder for consummation of the purchase contemplated hereby. Sell
and Buyer shall execute such supplemental Escrow instructions as may be appropriate to enab
Escrow Holder to co ilp with the terms of this Agreementuirrovided such s w1emental E'11111
MIC U!
instructions are not in conflict with this Agreement as it may be amended in writing from time
time. In the event of any conflict between the provisions of this Agreement and a
supplementary Escrow instructions signed by Buyer and Seller, the terms of this Agreem-
°f i
ontro
(b) The Closing shall take place (the "Closing Date") on the later of the da
r
that is thirty (30) days following the expiration of the Feasibility Period and satisfaction of t
Conditions Precedent but in no event later than October 31, 2019. 1
At or before the Closing, Seller shall deliver to Escrow Holder or Buyer
the following:
0i the duly executed and acknowledged Grant Deed for the Property
and the duly executed Bill of Sale;
(it) a duly executed affidavit that Seller is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986 in the form
attached as Exhibit D and incorporated herein by this reference together with a duly executed
non -foreign person affidavit and evidence that Seller is exempt from the withholding obligations
imposed by California Revenue and Taxation Code Sections 18805, 18815, and 26131;
(1) evidence reasonably acceptable to Escrow Holder that the
documents delivered by Seller have been duly authorized and executed on behalf of Seller and
constitute valid and binding obligations of Seller.
(iv) any other documents which the Escrow Holder may reasonably
require from Seller in order to close Escrow which do not increase Seller's liability or obligations
hereunder;
(y) a closing statement in form and content satisfactory to Buyer and
Seller (the "Closing Statement") duly executed by Seller; and
(m) any other instruments, records or correspondence called for
hereunder which have not previously been delivered.
(d) At or before the Closing, Buyer shall deliver to Escrow Holder or Seller
11 IM Frei I
W the Closing Statement, duly executed by Buyer;
(ii) the Closing Amount;
65 18 6.00008\3 1642356.6
(iii) the approved Final Map, which shall be recorded immediately
following the recordation of the Grant Deed; and
(iv) evidence reasonably acceptable to Escrow Holder that the
documents delivered by Buyer have been duly authorized and executed on behalf of Buyer and
constitute valid and binding obligations of Buyer.
(e) Seller and Buyer shall each deposit such other instruments as are
reasonably required by Escrow Holder or otherwise required to close the Escrow and
consummate the purchase of the Property in accordance with the terms hereof.
(fJ The following are to be paid by Buyer or Seller or apportioned as of the
Closing Date, as follows:
0 General real property taxes for the year in which Closing occurs
together with assessments, property operating expenses, utilities and other recurring costs
relating to the Property shall be apportioned as of the Closing Date on the basis of the number of
days in the month for which Closing occurs.
(it) Costs and expenses of Escrow incurred in this transaction shall be
(1) Seller shall pay all sales, use and documentary
1
(2) Seller shall pay the premium for a standard ALTA
coverage owner's policy of title insurance; Buyer shall pay the premium for any extended ALTA
coverage if desired;
(3) Seller and Buyer shall each pay one-half (1/2) of the
Escrow fees, recording fees and related expenses;
• • f f "r.• -r r
Ik. The provisionsof Closing.
again10. Representations. Warranties and Covenants of Seller. As of the date hereof and
as of f.. Seller represent
_. . •.. warrants to Buyer as follows:
Closing(a) Existence an([ Good Standirig. Seller is duly organized, validly existing
and in good standing under the laws of the State of California. This Agreement and all
documents executed by Seller which are to be delivered to Buyer at the Closing are and at the
time of Closing will be duly authorized, executed and delivered by Seller, are and at the time of
be legal,. . • binding obligations of _ . enforceable against_ _. in
accordance with their respective terms. Seller has obtained all necessary authorizations,
65186.00008\31642356.6 8
approvals and consents to the execution and delivery of this Agreement and the consummation of
the • contemplated hereby.
(b) No Action. Seller has not received notice of any attachments, execution
proceedings, assigninents for the benefit of creditors, insolvency, bankruptcy, reorganization or
other proceeding pending against Seller, nor are any such proceedings contemplated by Seller;
(c) No Representations as to Property. There are no representations,
agreements, arrangements, or circumstances, oral or written, between the parties relating to the
subject matter contained in this Agreement that are not fully expressed in the Agreement, and,
except as set forth in this Sections 10, Seller has not made and does not make any representation
• warranty concerning any matter • thing affecting • relating to the Property, including but not
limited to its fitness for a particular use, its physical condition or any other matter; and
(d) Sale "AS -IS". Subject to Seller's representations and warranties contained
herein, Buyer's election to purchase the Property will be based upon and will constitute evidence
of Buyer's independent investigation of the Property, its use, development potential and
suitability for Buyer's intended use, including (without limitation) the following: the feasibility
of developing the Property for the purposes intended by Buyer and the conditions of approval for
any subdivision map; the size and dimensions of the Property; the availability, cost and adequacy
of water, sewerage and any utilities serving or required to serve the Property; the presence and
adequacy of current or required infrastructure or other improvements on, near or affecting the
Property; any surface, soil, subsoil, fill or other physical conditions of or affecting the Property,
such as climate, geological, drainage, air, water • mineral conditions; the condition of title • the
Property; the existence of governmental laws, statutes, rules, regulations, ordinances, limitations,
restrictions or reguirements concernin 'er4A
_V the use,_dflisi4p, location or suitabilitp of the Prolt, , for
any existing or proposed development thereof including but not limited to zoning, building,
subdivision, environmental or other such regulations; the necessity or availability of any general
or specific plan amendments, rezoning, zoning variances, conditional use permits, building
permits, environmental impact reports, parcel or subdivision maps and public reports,
requirements of any improvement agreements; requirements of the California Subdivision Map
Act, and any other governmental permits, approvals or acts (collectively "Permits"); the
necessity or existence of any dedications, taxes, fees, charges, costs or assessments which may
be imposed in connection with any governmental regulations or the obtaining of any required
Permits; the presence of endangered plant or animal species upon the Property; and all of the
matters concerning the condition, use, development or sale of the Property.
(e) Litit,,ation. Seller has received no notice of any litigation or proceeding
pending against the Property, including, without limitation, any foreclosure proceeding, tax
protest action, bankruptcy or receivership action.
Eminent
• No condem nation or eminent domain
proceedings are now pending or threatened concerning the Property, and Seller has received no
notice from any governmental or quasi -governmental agency or authority or potential condemnor
concerning any right-of-way, utility or other taking which may affect the Property.
65186.00008\31642356.6
65186.00008\31642356.6 10
is subject. Buyer has obtained all necessary authorizations, approvals and consents to t
execution and delivery of this Agreement and the consummation of the transactio
contemplated hereby. I
(b) Buyer warrants that Buyer is a sophisticated owner and buyer of re
property, and Buyer and its consultants are familiar and experienced with requirements for t
development of real property. Buyer has examined the Property or will have done so by Closimi
is or will be familiar with its physical condition, and accepts the Property in an "AS -I
condition.
(c) Buyer has conducted or will conduct an independent investigation with
respect to zoning and subdivision laws, ordinances, resolutions, and regulations of all
governmental authorities having jurisdiction over the Property, and the use and improvement of
the Property and is, or at Closing will be, satisfied with the results of such investigation.
MMI MMM
12. Environmental Matters/Release. As used in this Agreement, "Hazardous
Materials" includes petroleum, asbestos, radioactive materials or substances defined as
"'hazardous substances ... .. hazardous materials" or "toxic substances" (or words of similar
import) in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous Materials Transportation Act
(49 U.S.C. Section 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901, et seq.), and under the applicable laws of California. Buyer must rely on its own
investigation and not on any representation by Seller regarding Hazardous Materials. Buyer
shall relp solelp u(con its own investi ation anawnw-m"I
thereon and upon the aid and advice of Buyer's independent expert(s) in purchasing the Property,
and, unless otherwise set forth in this Agreement, shall take title to the Property without any
warranty, express or implied, by Seller or any employee or agent of Seller. Seller makes no
representations regarding Hazardous Materials in, on or under the Property. Seller's knowledge
and disclosures regarding Hazardous Materials are limited to the contents of Seller's Deliveries.
13. Continuation and Survival. All representations, warranties and covenants by t
respective parties contained herein or made in writing pursuant to this Agreement are intended
and shall be deemed made as of the date of this Agreement or such writing and again at t
Closing, shall be deemed to be material, and unless expressly provided to the contrary sh
survive the execution and delivery of this Agreement, the Deed and the Closing. I
14. Indemnity.
Buyer will indemnify, defend with counsel reasonably acceptable to Seller, and
hold Seller harmless from all claims (including claims of lien for work or labor performed or
materials or supplies furnished), demands, liabilities, losses, damages, costs, fees, and expenses,
including r z4Wk iw
of Buyer or Buyer's consultants in, on, or about the Property during or arising in connection with
Buyer's Inspections of the Property; provided, however, that Buyer will not be obligated to
indemnify Seller with respect to its own negligence or intentional misconduct or preexisting
65186.00008\31642356.6 11
conditions present at the Property so long as Buyer does not exacerbate any such condition and
gives notice to Seller if any such condition is discovered. The foregoing inden-mity shall survive
termination of this Agreement. Buyer shall not suffer or permit any mechanic's or materialmen's
or other lien to stand against the Property in connection with any labor, materials or services
furnished or claimed to have been furnished by or on behalf of Buyer in connection with or as a
result of any Inspections. If any such lien shall be filed against the Property, Buyer shall cause
such lien to be discharged or bonded within thirty (30) days after such filing. Following any
Inspections Buyer shall restore the Property to substantially its physical condition as existed
prior to such inspection (except for any changes to the Property caused by Seller, or its agents or
employees). Prior to any entry on the Property Buyer or its consultant shall at its sole cost obtain
a policy of liability insurance with a combined single limit in an amount not less than One
• !• ($1,000,000); Seller shall be named as an additional insured • said r• and
Buyer or its consultants shall furnish to Seller a certificate of insurance confirming such
MJNNN�!
(a) In the event a • entity commences eminent ••
proceedings to take any portion of the Property after the date hereof and prior to the Closing,
then Buyer shall have the option to terminate this Agreement • written notice to Seller within
ten (10) business days after Buyer first learns of such commencement. In the event of any such
termination, Buyer shall retain the Deposit and Buyer and Seller shall each be liable for one-half
of any escrow fees or charges, and neither party shall have any further liability or obligation
• this Agreement.
(b) In the event a governmental entity commences eminent ••
"Wcwmv, �t
Agreement is not terminated pursuant to Sectiori 15(a), then the Closing shall occur as scheduled
notwithstanding such proceeding; provided, however, that Seller's interest in all awards arising
out of such proceedings (except for any award attributable to the loss of Seller's business or
income, Seller's personal property, or the property of any tenant of the Property) shall be
assigned to Buyer as of the Closing or credited to Buyer if previously received by Seller. Seller's
obligations pursuant to this Sectioji 15(b)_shall survive the Closing.
16. Possession. Possession of the Property shall be delivered to Buyer on the Closing
Date free of any occupant or property not being conveyed to Buyer as provided hereunder.
17. Seller's Cooperation with Buver. At no cost to Seller, Seller shall cooperate and
do all acts as may be reasonably required or requested by Buyer, at no additional cost to Seller,
with regard to the fulfillment of any Condition Precedent. Seller hereby authorizes Buyer and its
agents to make all inquiries with and applications to any third party, including any governmental
authority, as Buyer may reasonably require to complete its due diligence and satisfy the
Conditions `•`
18. Brokers and Finders. The parties represent and warrant that neither party has had
any contact or dealings regarding the Property, or any communication in connection with the
subject matter of this transaction, through any real estate broker or other person who can claim a
6 518 6. 0000 813 1642 3 5 6.6 12
right to a commission or finder's fee in connection with the sale contemplated herein. In the
event that any such broker or finder claims a commission or finder's fee based upon any contact,
dealings or communication, the party through whom the broker or finder makes its claim shall be
responsible for said commission or fee and all costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by the other party in defending against the same. The party
defend - other ♦r,:. • its successors• •:.. assigns, agents, employees, officers and
any and all obligations
liens, encumbrances and losses (including, without limitation, attorneys' fees), arising out of,
based on, or incurred as a result of such claim. The provisions of this Section 18 shall survive
the Closing or terminationof this Agreement.
19. Professional Fees. In the event legal action is commenced to enforce or interpr,-
any of the ternis or provisions of this Agreement, the prevailing party in such action shall
entitled • an award of reasonable• • costs incurred in connection
[�rosecution or defense of said action. In addition, the prevailing party shall be entitled to recov]
any actual accounting, engineering or other professional fees reasonably incurred in said acti
or proceeding.
agree20. Publicity and Confidentiality. Buyer and Seller each that prior • the
Closing, the terms of the transaction contemplatedby `- ` the identity of each party
and all information made available by the parties to each other, shall be maintained in strict
confidence and prior to the Closing, no disclosure of such information will be made by Buyer or
Seller, except to such attorneys, accountants, investment advisors, lenders and others as is
reasonably required to evaluate and consummate this transaction or except as may be mutually
agreed by Buyer and Seller. Buyer and Seller each further agree that nothing in this Section 20
shall prevent Buyer or Seller from disclosing or accessing any inforination otherwise deemed
confidential under this Section (a) in connection with that party's enforcement of its rights
hereunder; (b) pursuant to any legal requirement, any statutory reporting requirement or any
accounting or t • disclosure requirement; connection with performance
rtarty of its obligations under this Agreement (including, but not limited to, the delivery and
recordation of instruments, notices or other documents required hereunder); or (d) to potential
lenders, investors,participants or assigneesor of the transaction• f . • by
Agreement or such party's
(a) Notices. Any notice, consent or approval required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been given upon
(i) hand delivery, (ii) one business day after being deposited with Federal Express or another
reliable overnight courier service for next day delivery, (iii) upon facsimile transmission (except
that if the date of such transmission is not a business day or if such transmission is made after
5:00 p.m. on a business day, then such notice shall be deemed to be given on the first business
day following such transmission), or (iv) two business days after being deposited in the United
States mail, registered or certified mail, postage prepaid, return receipt required, and addressed
, follows (or such other address as either party may from• time specify in writing to the
other in accordance
65186 00008\31642356.6 13
If to Seller: The City of Downey
11111 Brookshire Avenue
Downey, CA 90241
Attn: City Manager
Phone No.: (562) 904-7284
With a copy to: Best Best & Krieger LLP
Attn: Ruben Duran
300 South Grande Ave, 25th Floor
Los Angeles, CA 90071
Phone: 213-617-8100
If to Buyer: NADG/Waypoint Downey, LP
c/o Waypoint Development Group
Attn: Scott Silberberg
711 W. 17th St, Unit D3
Costa Mesa, CA 92627
Phone: (949) 235-4561
Email: Scott@waypointdg.com
With a copy to: Wick Phillips Gould & Martin, LLP
3131 McKinney Ave. Suite 100
Dallas, Texas 75204
Attention: Chris Fuller
Email:
To Escrow Holder: Security Land Escrow
10805 Paramount Blvd., Suite A
Downey, CA 90241
Attn: Lawrence Garces
Phone No: 562-862-2129, Ext: 226
(b) Successors and Assiggs. Buyer shall have the right to assign Jth
I
Agreement to any entity controlling, controlled by or under common control with Buyer witho
Vr,flm's consent r a- -croval, and otherwise Buwer shall have the ri lit to assign thi-,z Ag--rC-WW-1
any entity subject to Seller's prior approval, which approval shall not be unreasonably withhel',
I
conditioned or delayed. Any such assignee shall assume all obligations of Buyer hereund
however, Buyer shall remain liable for all obligations hereunder. Seller shall have the right Ir.
assign this Agreement. Except as otherwise permitted by this paragraph, neither this Agreeme
nor the rights of either party hereunder may be assigned by either party. This Agreement shall
binding upon, and inure to the benefit of, the par -ties hereto and their respective successors, hei
administrators and assigns.
(c) Aniendinents. This Agreement may be amended or modified only by a
written instrument executed by Seller and Buyer.
65186.00008\31642356 6 14
(d) Governin,—, Law '. This Agreement shall be governed by and construed
accordance with the laws of the State of California. i
(e) Construction. Headings at the beginning of each Section a
subparagraph are solely for the convenience of the parties and are not a part of the Agreeme
This Agreement shall not be construed as if it had been prepared by one of the parties, but rath,
as if both parties had prepared the same. Unless otherwise indicated, all references to Sectio
I
and subparagraphs are to this Agreement. All exhibits referred to in this Agreement are attach
and incorporated by this reference. 11
No Joiiit Veaure. This Agreement shall not create a partnership or joint
venture relationship between Buyer and Seller.
(g) Section 1031 Excliaiww. Seller and Buyer acknowledge and agree that the
purchase and sale of the Property may be part of a tax-free exchange under Section 1031 of the
Internal Revenue Code of 1986, as amended, for Buyer. Each party hereby agrees to take all
reasonable steps on or before the Closing Date to facilitate such exchange if requested by Buyer,
provided that (i) Seller shall not be required to acquire any substitute property, (ii) such exchange
shall not affect the representations, warranties, liabilities and obligations of the parties to each
other under this Agreement, (iii) Seller shall not incur any additional cost, expense or liability in
connection with such exchange (other than expenses of reviewing and executing documents
re,v,uired in connection with such exchange)g_and_( iy_), no dates in this Agreement will be extenAki
as a result thereof. Notwithstanding anything to the contrary contained in the foregoing, if Buyer
so elects to close the acquisition of the Property as an exchange, then (A) Buyer, at its sole
option, may delegate its obligations to acquire the Property under this Agreement, and may
assign its rights to receive the Property from Seller, to an Intermediary or to an exchange
accommodation titleholder, as the case may be; (B) such delegation and assignment shall in no
way reduce, modify or otherwise affect the obligations of Buyer pursuant to this Agreement;
(C) Buyer shall remain fully liable for its obligations under this Agreement as if such delegation
and assignment shall not have taken place; (D) Intermediary or exchange accommodation
titleholder, as the case may be, shall have no liability to Seller; and (E) the closing of the
ftnry
be, shall be undertaken by direct deed from Seller (or, if applicable, from other affiliates of Seller
whom Seller will cause to execute such deeds) to Buyer (or to exchange accommodation
titleholder, as the case may be).
(h) Mcrsycr of Prior Agreements. This Agreement and the exhibits attach,919
hereto constitute the entire'agreement between the parties and supersede all prior agreements a
understandings between the parties relating to the subject matter hereof, including witho
limitation, any letters of intent previously executed or submitted by either or both of the parti
hereto, which shall be of no further force or effect upon execution of this Agreement.
01 Time ofthe Essence. Time is of the essence of this Agreement. As usA-9
in this Agreement, a "business day" shall mean a day which is not a Saturday, Sunday
recognized federal or state holiday. If the last date for performance by either party under th
Agreement occurs on a day which is not a business day, than the last date for such perfornman
shall be extended to the next occurring business day. I
65186.00008\31642356.6 15
6) Severability. If any provision of this Agreement, or the application
thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction
to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as
applied to other persons, places and circumstances shall remain in full force and effect.
(k) Furtlier Assurances. Each of the parties shall execute and deliver any and
all additional papers, documents and other assurances and shall do any and all acts and things
reasonably necessary in connection with the performance of their obligations hereunder and to
carry out the intent of the parties.
(D Exhibits. All exhibits attached hereto and referred to herein are
incorporated herein as though set forth at length.
O Ciiptions. The captions appearing at the commencement of the sections
and paragraphs hereof are descriptive only and for convenience in reference. Should there be
any conflict between any such caption and the section at the head of which it appears, the section
and paragraph and not such caption shall control and govern in the construction of this
Agreement.
(n) No Obli- To 'I'lifi-d Parties, Execution and delivery of this
Agreement shall not be deemed to confer any rights upon, directly, indirectly or by way of
subrogation, nor obligate either of the parties hereto to, any person or entity other than each
other.
(o) Waiver. The waiver by any party to this Agreement of the breach of any
provision of this Agreement shall not be deemed a continuing waiver or a waiver of any
subsequent breach, whether of the same or another provision of this Agreement.
(p) Imer,pretatioti. This Agreement has been negotiated at ann's length ar?T
between persons (or their representatives) sophisticated and knowledgeable in the matters de
with in this Agreement. Accordingly, any rule of law (including California Civil Code § 16
and any successor statute) or legal decision that would require interpretation of any ambiguiti
against the party that has drafted it is not applicable and is waived. The provisions of th
Agreement shall be interpreted in a reasonable manner to effect the purpose of the parties
this Agreement. I
(q) Coutitet-parts/f,acsitiiiie�I.PDF SH-niatures. This Agreement may be
executed in counterparts and when so executed by the Parties, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument that shall be
binding upon the Parties, notwithstanding that the Parties may not be signatories to the same
counterpart or counterparts. The Parties may integrate their respective counterparts by attaching
the signature pages of each separate counterpart to a single counterpart. In order to expedite the
transaction contemplated herein, facsimile or pdf signatures may be used in place of original
signatures on this Agreement. Seller and Buyer intend to be bound by the signatures on the
facsimile or pdf document, are aware that the other party will rely on the facsimile or pdf
signatures, and hereby waive any defenses to the enforcement of the terms of this Agreement
based on the form of signature.
65186.00008\31642356 6 16
W:,,t1VEjj Q Jt!RN' T111A — THE PARTIES HERETO SHALIA
L
AND THEY HEREBY DO INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGH
BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON AN
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTIE11'
WITH THIS AGREEMENT AND/OR ANY CLAIM OR INJURY OR DAMA
RELATED THERETO.
(s) No Third Pariv Betiericiaries. Nothing in this Agreement, express
implied, is intended to confer any rights or remedies under or by reason of this Agreement
any person other than the parties to it and their respective permitted successors and assigns, n
I
is anything in this Agreement intended to relieve or discharge any obligation of any third pers
to any party to this Agreement or give any third person any right of subrogation or action ovil..
against any party to this Agreement. I
(t) No Marketing. Seller agrees not to market, show, or list the Property
M
any other prospective buyer during the term of this Agreement.
6518 6.00008\3 16423 56 k 17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
written below.
UVIAM
1
91•li lilll�j I I I �
NNSWO)a � 11 FIN I
Its: City Manager
Date:
BEST BEST & KRIEGER
By:
S1 xiaC" 111scl
Date:
I R1. 0
rqu rawl r., layr. Irma I I I I I I U-11 a I N will I I I
& 9 1 09 v
111V'Af
By:
Name: Scott Silberberg
Its: Authorized Signing Officer
Date:
65186.00008\31642356.6 18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
written below.
[411 was) a Pielky',711"I wa=m- M--=
By:
Name:
Its: City Manager
Date:
Approved as to Form
By:
Special Counsel
Date:
M... I & 1. a
No REM U&TAVVION oil I HUM E frolvil 1M.
By: NADG/WAY POINT DOWNY GP, LLC,
a Delaware Limited Liability Company
By: P,
Name: Steve Orqtoll'i
Its: Authorized Signing Officer
Date:
65186.00008\31642356.6 18
65186.00009\31642356.6
1. Natural Hazards Disclosure Report
2. Survey of the Property conducted on by
3. Geotechnical reports in Seller's possession
4. Phase I Environmental Report, if any
65186.00008\31642356.6
U6111*111:12,
r
►• ► 1 V asiel9j Q M LTA ; a
EXHIBIT C
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APNs:
Grant Deed
The undersigned Grantor(s) declare(s):
Documentary transfer tax is $
❑ Computed on full value of property conveyed, or
❑ Computed on full value less value of liens and encumbrances remaining at time of sale.
❑ Unincorporated area ❑ City of
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
4a
hereby GRANT(S) to
a
the following described real property in the City of County of
State of California:
SEE ATTACHED EXHIBIT A.
f
Dated: , 20 " a
By: _
(Name)
___ ....... (Title )
65186.00009\31642356.6
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of )
On before me, Notary Public
(insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
65186.00008\31642356.6
110.1 ", :311a
TRANSFEROR'S CF'RTIFICATION OF NON -FOREIGN STATt_J$
This form is provided so that the Buyer and/or Seller in this transaction can certify complian�"
with the Foreign Investment in Real Property Tax Act to the Escrow Agent and/or Buyer. Buy
("Transferee") must retain a copy of this document until after the fifth taxable year followi
the transfer. I
Section 1445 of the Internal Revenue Code of 1986, as amended ("Code") provides that a
transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.
For U.S. tax purposes (including section 1445), the owner of a disregarded entity (which has
legal title to a U.S. real property interest under local law) will be the transferor of the property
and not the disregarded entity. To info rin Transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest, the undersigned hereby certifies the following on
behalf of ("Transferor"):
1. The Transferor is not a foreign corporation, foreign partnership, foreign trust, foreign
estate or foreign person (as those terms are defined in the Code and the Income Tax Regulations
promulgated thereunder).
2. The Transferor is not a disregarded entity as defined in Income Tax Regulation
Section 1. 1445-2(b)(2)(iii).
3. The Transferor's U.S. employer or tax identification number is
4. The Transferor's office address is
The Transferor understands that this Certification may be disclosed to the Internal Revenue
Service by the Transferee and that any false statement contained herein could be punished by
fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this Certification and to the best of n,8
knowledge and belief it is true, correct and complete, and I further declare that I have authorili
to sign this document on behalf of the Transferor. 0
Date: 1 20® TRANSFEROR:
M
65186.00008\316423 5 6.6