HomeMy WebLinkAboutResolution No. 19-7866 - Purchase and Sale Agreement w-NADG Waypoint Downey LP•;1 0001A[W=K4q• •; • ri•
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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.
THEREFORE, COUNCILOF OF DOWNEY DOES
HEREBY RESOLVE • •
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.
SECTION 3. The City Clerk shall certify to the adoption of this Resolution.
APPROVED AND ADOPTED this 12th day of February, 2019.
9R6KDRIGUEZ, Mayor
rlv*"
�AA��ALICIA DUARTE, C
City Clerk
I i A
PAGE 2
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of
the City of Downey at a Regular Meeting held on the 12 th day of February, 2019, by the
following vote, to wit:
AYES: Council Members: Ashton, Frometa, Pacheco, Saab, Mayor Rodriguez
NOES: Council Member: None.
ABSENT: Council Member: None.
ABSTAIN: Council Member: None.
-AZA?- L I �Cl A D �UA RT TE, C M �C
City Clerk
RESOLUTION3 :.
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (this "Agreement") is made and entered into as of December , 2018 for
reference purposes only, by and between THE CITY OF DOWNEY, a municipal corporation
("Seller" or "City"), and NADGAVAYPOINT DOWNEY, LP, a Delaware limited partnership,
("Buyer"). The date upon which both Buyer and Seller have executed this Agreement and
delivered the same to one another, shall hereinafter be referred to as the "Effective Date".
IN CONSIDERATION of the respective agreements heremiafter set forth, Seller aiii
Buyer hereby agree as follows:
1. Purchase and Sale of Prop�g�rt. Seller hereby agrees to sell "AS -IS" and convey
to Buyer, and Buyer hereby agrees to purchase from Seller, subject to the terms and conditions
set forth herein, the following (collectively, the "Property"):
That certain real property consisting of approximately 3,500 square feet and located
8850 Imperial Highway, in the City of Downey, County of Los Angeles, State
California, on a portion of the 4,390 square foot parcel commonly referred to
Assessor's Parcel Number 6263-001-900, all as more fully described in Exhibit A (t
"Landtogether with all rights, privileges, easements or appurtenances to or affecti
the Land (collectively, the "Appurtenances"). Seller shall retain approximately 8
square feet of the existing 4,390 sguare foot parcel for purposes of a public right of way.
Ing I I U I &V I .If Ed MGM i I I 10 M C-11
0i Within three (3) business days following the Effective Date, Seller
and Buyer shall open an escrow *in connection herewith ("Escrow") at Security Land Escrow,
Downey, California, Attn: Lawrence Garces, Escrow Officer (Phone:) 562-862-2129, Ext: 226
email: larry@ security 1944. c om)("E scrow Holder"), and Buyer shall deposit into Escrow the
amount of Thirteen Thousand Dollars ($13,000.00) ("Deposit") *in cash or other 'immediately
available funds.
with this Agreement.
@i) The Deposit shall be nonrefundable to Buyer upon expiration 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. The
Deposit shall be held by the Escrow Holder and shall be credited against the Purchase Price at
the Closing.
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(1v) On or before the Closing, if this Agreement has not been earlier
terminated, Buyer shall deposit into Escrow cash or other immediately available funds in the
amount of the balance of the Purchase Price, less any credits due Buyer hereunder (the "Closing
Amount"). The Closing Amount shall be applied towards the Purchase Price at the Closing.
3. Title to the Propel-tv.
(a) Title Review. At the Closing, Seller shall cause to be conveyed to Buyer
fee simple title to the Property by duly executed and acknowledged grant deed substantially in
the form attached hereto as Exhibit C and incorporated herein by this reference (the "Grant
Deed") as well as a duly executed Bill of Sale for the Personal Property, if any. As used in this
Agreement, Closing (the "Closing") shall be deemed to occur upon the recording of the Deed.
Evidence of delivery of fee simple title shall be the issuance by Escrow Holder to Buyer of an
ALTA standard coverage owner's policy of title insurance in the amount of the Purchase Price,
insuring fee simple title to the Property in Buyer, subject only to such exceptions as Buyer shall
have approved as provided below (the "Title Policy"). The Title Policy shall provide full
co era e a ainst mechanics' and materi'atmen's liens and shall contain such s ecial endorsements
I oil a,
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4. Feasibility.
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local ordinances, but not includig the building pernuit 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 the
expiration of the Feasibility Period, to terminate this Agreement, which election shall be in
Buyer's sole and absolute discretion. If Buyer desires to terminate this Agreement pursuant to
this Sectioti 4(d) then before the expiration of the Feasibility Period, Buyer shall deliver written
notice to Seller of Buyer's election to terminate (the "Buyer's Notice to Terminate"). If Buyer
desires to proceed with the purchase of the Property subject to the remaining conditions set forth
in this Agreement, then on or before the expiration of the Feasibility Period, Buyer shall deliver
written notice to Seller of such election to proceed (the "Buyer's Notice to Proceed"), electing
to waive Buyer's right of termination pursuant to this Sectiog 4(d)- and proceed with the Closing
subject to the remaining conditions set forth in this Agreement. If Buyer falls to deliver either
Buyer's Notice to Terminate or Buyer's Notice to Proceed to Seller prior to the expiration of the
65186.00008\316423 56.6
Feasibility Period, then Buyer shall be deemed to have elected to proceed with this Agreement
and the Closing. In the event of the termination of this Agreement pursuant to this Section 4(0,
Escrow Holder shall release the Deposit to Buyer and neither party shall have any further
obligations to the other hereunder (except under provisions of this Agreement which specifically
state that they survive termination). Any cancellation fee or other costs of the Escrow Holder
and the Title Company resulting from termination of this Agreement for failure of a contingency
will be borne equally by Seller and Buyer, and each party must pay its own expenses.
(e) In the event Buyer elects to terminate this Agreement pursuant to
Section, 4(b), or if Closing does not occur for any reason, Buyer shall return all Seller's
Deliveries to Seller. Buyer further agrees that prior to Closing, Buyer shall provide Seller with
copies of all non -confidential and no-propnietary studies, reports, appraisals and other materials
commissioned by or prepared for Buyer relating to or regarding the Property ("Buyer's
Reports"), at no cost to Seller, and Buyer shall retain the Deposit. Notwithstanding the
foregoing, if Closing does not occur due to Buyer's breach of or default under this Agreemen)
that remains uncured, Seller shall retain the Deposit.
5. Seller's Deliveries. Within ten (10) days followmig the Effective Date, Seller shall
deliver, or cause to be delivered, the documents listed on Exhibit B, attached hereto ("Seller's
Deliveries"). Seller will not deliver any additional documents to Buyer with respect to the
Property but agrees to cooperate with Buyer with respect to obtaining Entitlements.
(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 remais
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.
@ 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) Conditions to Buver's Obli2ations. 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:
65 [86.00008\-11642356.6
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
@ 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.
(i) Seller shall have complied with all of Seller's pre -Closing duties
and obligations contained in this Agreement,
(rv) 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 Closing. 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 Comnuission the
(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 Date,
[**',uyer shall either waive any such Condition(s) Precedent that remain unsatisfied or, at Buyer's
sole election, terminate this Agreement, subject to the provisions of Section 8. If this Agreernew!
is terminated pursuant to this Section 7, Buyer shall retain the Deposit and the costs of Escrow
Holder and Title Company will be borne equally by Seller and Buyer, and each party will pay its
own expenses.
OMENS- �11 - elm
(a) SELLER'S REMEDIES - LIOWDATED DAi\,4AGES. IF THE SALE
OF THE PROPERTY PURSUANT To THIS AGREEMENT IS NOT CONSUMMATED
11LECAUSE OF A CANCELLATION OF THIS AGREEMENT AFTER FEASIBILITY
APPROVAL OR UPON DEFAULT UNDER THIS AGREEMENT ON THE PART OF
11',UYER, THE DEPOSIT, AND ALL BUYER'S REPORTS, SHALL BE RETAINED BY
65186.000081-31642356 6 5
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INITIALS: Seller
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(b) Birver 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
o-,cfion. as its sole and exclusive remedip -at law or' I'
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
termination) / 1 :1` Deposit 1. be returned to icontinue 1 Agreement "i tf seek
the equitable remedy of specific performance; or (111) waive the alleged default and proceed to
Closing under this Agreement without adjustment of the Purchase Price. Notwithstanding the
foregoing, 1" event thatand intentionallydefaultsin its obligations un
PropertyAgreement for the purpose of preventing Buyer from purchasing the Property and specific
performance is unavailable as a remedy because of Seller's willful and intentional default.—.Bu4per-
shall have the right to pursue any remedy at law or *in equity including, without limitation, a
claim for money damages. The foregoing options are mutually exclusive and are the exclusive
rights and remedies available to Buyer at law or in equity in the event of Seller's default under or
breach of this Agreement. Buyer waives any and all rights it may now or hereafter have to
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 (1) of this paragraph if Buyer falls to file suit
for specific performance against Seller in a court having jurisdiction *in the county and state in
which the located, it or before sixty 61': days following the date upon which
Closing was to have occurred.
65186 00008\31632356.6
Upon mutual execution • this Agreement, the •. hereto shall •-••
instructions to • Holder for consummation • the purchase contemplated hereby. Seller
and Buyer shall execute such supplemental Escrow instructions as may be appropriate to enable
Escrow Holder to comply with the terms • this Agreement, provided such supplemental Escrow
instructions are not in conflict with this Agreement as it may be amended in writing from time to
time. In the event
• any •r between the provisions • this Agreement .r• any
supplementary Escrow • signed by Buyer and Seller, the terms • this Agreement shall
control.
(b) The Closing shall take place (the "Closing Date") on the later of the date
that is thirty (30) days following the expiration of the Feasibility Period and satisfaction of the
Conditions Precedent but in r• event later than October 31, 2019.
At or before the Closing, Seller shall •- to • Holder • BuyiM
the following:
0i the duly executed and acknowledged Grant Deed for the Property
and the duly executed Bill of Sale;
@ 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;
@) 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.
(rv) 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
(1) the Closing Statement, duly executed by Buyer;
(11) the Closing Amount;
65 186.00008\31642356.6
(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.
The following are to be paid by Buyer or Seller or apportioned as of the
Closing Date, as follows:
01 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.
(ii) Costs and expenses of Escrow incurred in this transaction shall be
(1) Seller shall pay all sales, use and documentary transfa
(2) Seller shall pay the premium for a standard ALTA
coverage if desired;
(3) Seller and Buyer shall each pay one-half (1/2) of the
Escrow fees, recording fees and related expenses;
(4) all other costs of escrow shall be paid equally by Buyer and
Seller.
(ii) The provisions of this SUbparaili-aTji (if -shall survive the Closing.
10. Revresentations. Warranties and Covenants of Setter. As of the date hereof and
again as of Closing, Seller represent and warrants to Buyer as follows:
(a) Existence and -Good Standina. 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
Closing will be legal, valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms. Seller has obtained all necessary authorizations,
6 5 186 MOO 4 \31642 3 56.6
approvals and consents to the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
(b) No Actioti. Seller has not received notice of any attachments, execution
proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization :•::
other proceeding pending against Seller, nor are any such proceedings contemplated by Seller;
(c) No Refresentations as to Prot)ertv. There are no representations,
agreements, arrangements, or circumstances, oral or w-fitten, between the parties relating to the
subject matter contained in this Agreement that are not fully expressed in the Agreement, and,
exce-,tt as �,et
tr warranty concerning any matter or thing affecting or 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
• Buyer's independent investigation • the Property, its use, development potential and
suitability for Buyer's "intended use, including (without limitation) the following: the feasibility
Yc L
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
.1`• • current or required 'infrastructure or other improvements on, near •: affecting the
Property; any surface, soil, subsoil, fill or other physical conditions of or affecting the Property,
such as climate, geolo vater or mine al conditions.-. the condition of title to the
Property; the existence of governmental laws, statutes, rules, regulations, ordinances, limitations,
restrictions or requirements concerning the use, density, location or suitability of the Property for
any existing or proposed development thereof including but not 111mited to zoning, building,
subdivision, environmental or other such regulations; the necessity or availability of any general
•.: speci ic plan amendments, rezoning, zoning variances, conditional use permits, building
permits, environmental impact reports, parcel • subdivision maps and public reports,
requirements of any improvement agreements; requirements • 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 • any required
Permits; the presence • endangered plant • animal species f• the Property; and all • the
matters concerning the condition, use, development • sale • the Property.
(e) UtWation'. Seller has received no notice of any litigation or proceeding
pending agaist the Property, including, without Ininitation, any foreclosure proceeding, tax
protest action, bankruptcy or receivership action.
Enlinent DonialuXondepuiation. No condemnation or eminent domain
proceedings are now pending • threatened concerning the Property, and Seller has received f:•.:
notice from any governmental or quasi -governmental agency or authority or potential condemnoi
concerning any right-of-way, utility or • taking which may affect the r:•f.
65186.00008\31642356.6 4
(g) Contracts, Leases '. There are no contracts, leases, or other agreements
affecting the Property. All bills and other payments due from Seller with respect to the
ownership, operation, and maintenance • the Property have been •: will be by Closing) paid in
ftill, other than real property taxes as contemplated above.
(h) Qperation. Seller agrees to operate and maintain the Property
substantially in accordance with the Seller's past practices with respect • the Property.
10 Consents and Aporovals, No Violation. To the Seller's actual knowledge,
neither the execution and delivery of this Agreement by Seller nor the consummation by Seller
of the transactions contemplated hereby will (1) require Seller to file or register with, notify or
obtain any permit, authorization, consent or approval of any governmental, quasi -governmental
• regulatory authority, with the exception of obtaining approval of this Agreement by the City
Council of the City, of Downey and except to the extent required by Seller to comply with the
terms of this Section 10; or (11) conflict with or breach any provisions of the organizational
documents of Seller. Seller has received no notice of any: (x) violation or breach of any
provision of, or default (or an event which, with notice or lapse of time or both, would constitute
a default) under any note, bond, mortgage, indenture, deed of trust, license, franchise, permit,
lease, contract, agreement or other instrument, commitment or obligation to which Seller is a
party pertaining to the Property; or (y) violation of any order, writ, injunction, decree, judgment,
statute, law or ruling of any court or governmental authority applicable to the Property.
Comracts. Seller shall not execute any new contract or amend •
terminate any existing contract without Buyer's prior written approval, which shall not be
unreasonably withheld.
(k) Leases. Seller shall not execute any new lease or amend, terminate or
accept the surrender of any lease without Buyer's prior written approval, which shall not be
unreasonably withheld.
(l) Zonitig. The Property is a part of the Imperial Highway overlay which is
currently in process. Except for the Imperial Highway overlay, which Seller agrees to keep
Buyer reasonably informed of, Seller shall not initiate or consent to any material zoning
reclassification of the Property or any material change to any approved site plan, special use
penult, planned unit development approval or other land use entitlement affecting the Property
unless requested by Buyer.
11. Representattotis, Warranties and Covenatits of Buyer. Buyer hereby represen
• warrants to Seller as follows: I
(a) Buyer is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Delaware and registered to do business in the State of
California. This Agreement and all documents executed by Buyer which are to be delivered to
Seller at the Closing are and at the time of Closing will be duly authorized, executed and
delivered b; Buar are and at the time of Closing will be legal valid and binding, obligations f
WORAW 111W, 01160,11
65136 00008\31642356.6 10
is subject. Buyer has obtained all necessary authorizations, approvals and consents to the
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby.
(b) Buyer warrants that Buyer is a sophisticated owner and buyer of real
property, and Buyer and its consultants are familiar and experienced with requirements for the
development of real property. Buyer has examined the Property or will have done so by Closing,
is or will be familiar with its physical condition, and accepts the Property in an "AS -IS"
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.
(d) The Property is being sold "AS -IS" and with all faults.
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 rely solely upon its own investigation and inspection of the Property and the improvements
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 the
.?nd shall be deemed made as of the date of this Agreement or such writing and again at the
Closing, shall be deemed to be material, and unless expressly provided to the contrary shall
survive the execution and delivery of this Agreement, the Deed and the Closing.
MENEW "01
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,
includmig Seller's reasonable attorney fees, costs, and expenses, arismig from the acts or activities
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 indemnity shall survive
termination of this Agreement.
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
rmnor to such inspection �except for anij changes to the Provem, caused bw Seller or its agents or
employees). Prior to any entry on the Property Buyer or its consultant shall at 'its sole cost obtai
a policy of liability insurance with a combined single limit in an amount not less than One
Million Dollars ($ 1,000,000); Seller shall be named as an additional insured on said policy; and
F*-',uyer or its consultants shall famish to Seller a certificate of 'insurance confirming such
coverage.
(a) In the event a governmental entity commences eminent domain
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 by written notice to Seller withi
ten (10) busmiess 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
under this Agreement.
(b) In the event a governmental entity commences eminent domain
proceedings to take any part of the Property after the date hereof and prior to the Closing and this
Agreement is not terminated pursuant to iSection 15 (a, then the Closing shall occur as scheduled
notwithstanding such proceeding; provided, however, that Seller's interest in all awards anismig
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 Section 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. Sellet's Cooveration with Buyer. 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 anW Condition Prece bq&lh�, je
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 Precedent.
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
65186,00008131642356.6 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 firider'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
through whom anrl such other broker or finder makes a claim shall hold harmless. indemnij�r, ani
defend the other party hereto, its successors and assigns, agents, employees, officers and
directors- and the Property, from andMainst any and all obli
gations. liabilities- claims demand -s_. -
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 Sectiori 18 shall survive
the Closing or termination of this Agreement.
19. Professional Fees. In the event legal action is commenced to enforce or interpret
any of the terms or provisions of this Agreement, the prevailing party in such action shall be
entitled to an award of reasonable attorney's fees and costs incurred in connection with the
ryrosecution or defense Alf :4!aid action. In .•1 •:1'. the igevailing4map shall be entitled to recover
any actual accounting, engineering or other professional fees reasonably incurred in said action
or proceeding.
20. Publicitv and Confidentiality. Buyer and Seller each agree that prior to the
Closing, the terms of the transaction contemplated by this Agreement, 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 Sectiou 20
shall prevent Buyer or Seller from disclosing or accessing any information 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 auditing disclosure requirement; (c) in connection with performance by either
party 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 assignees in or of the transaction contemplated by this
Agreement or such party's rights therein.
HIMMER"MR-M �-* �
(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, (11) one business day after being deposited with Federal Express or another
reliable overnight courier service for next day delivery, (111) 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 (1v) two business days after being deposited 'in the United
States mail, registered or certified mail, postage prepaid, return receipt required, and addressed
as follows (or such other address as either party may from time to time specify in writing to th-e
other in accordance herewith):
65186.00008\3 1642356.6 13
If to Seller: The City of Downey
11111 Brookshire Avenue
Downey, CA 90241
An: 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
E -Mail: ruben.duran@bbklaw.com
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: crLiller((t-),,wiekDilllllDs.collI
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 A . Buyer shall have the right to assign this
Agreement to any entity controlling, controlled by or under common control with Buyer without
Seller's consent or approval, and otherwise Buyer shall have the right to assign this Agreement to
any entity subject to Seller's prior approval, which approval shall not be unreasonably withheld,
conditioned or delayed. Any such assignee shall assume all obligations of Buyer hereunder;
however, Buyer shall remain liable for all obligations hereunder. Seller shall have the right t4
assign this Agreement. Except as otherwise permitted by this paragraph, neither this Agreement
nor the rights of either party hereunder may be assigned by either party. This Agreement shall be
binding upon, and miure to the benefit of, the parties hereto and their respective successors, heirs,
administrators and assigns.
(c) Amendments. This Agreement may be amended or modified only by
written instrument executed by Seller and Buyer.
65186.00008\31642356.6 14
(d) Goveming Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
(e) Construction. Headings at the beginning of each Section and
subparagraph are solely for the convenience of the parties and are not a part of the Agreement.
This Agreement shall not be construed as if it had been prepared by one of the parties, but rather
as if both parties had prepared the same. Unless otherwise indicated, all references to Sections
and subparagraphs are to this Agreement. All exhibits referred to in this Agreement are attached
and incorporated by this reference.
No Joint Venture. This Agreement shall not create a partnership or Joint
venture relationship between Buyer and Seller.
(g) Section 1031 Exchann. 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,
ided that (i) Seller shall not be required to acquire any substitute property, ii)
provi I I (ii such exchange
shall not affect the representations, warranties, liabilities and obligations of the parties to each
other under this Agreement, (111) Seller shall not incur any additional cost, expense or liability in
connection with such exchange (other than expenses of reviewing and executing documents
rewired in connection with such exchawei and 6� no dates in this Agreement will be extended
UN d ICSJ.IL LIX litg LO Lilt: UMMU13; COXMI11CU T.1 LU: 11F
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
acquisition of the Property by Buyer or the exchange accommodation titleholder, as the case may
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) Mlemer of Prior At-yreenients. This Agreement and the exhibits attached
hereto constitute the entire ag-,reement between the j2arties and sILQersede all j2nor a eements and
I'll 1111111 11 r- I I a I I
01 Time of the Essence. Time is of the essence of this Agreement. As used
in this Agreement, a "business day" shall mean a day which is not a Saturday, Sunday or
recognized federal or state holiday. If the last date for performance by either party under this
Agreement occurs on a day which is not a business day, than the last date for such performance
shall be extended to the next occurring business day.
65186.00008\31642356.6 15
6) Severabilltv. 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) Further 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.
(l) ExIiibits. All exhibits attached hereto and referred to herein are
incorporated herein as though set forth at length.
(m) Captions. 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 - Obl],Lation To Third 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.
(6) 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) Integ?retation. This Agreement has been negotiated at arm's length and
between persons (or their representatives) sophisticated and knowledgeable *in the matters dealt
with in this Agreement. Accordingly, any rule of law (including California Civil Code § 1654
and any successor statute) or legal decision that would require interpretation of any ambiguities
against the party that has drafted it is not applicable and is waived. The provisions of this
Agreement shall be interpreted in a reasonable manner to effect the purpose of the parties and
this Agreement.
(q) Coutiterparts/F cs1mi1e/.PDF SimiatUrOS. 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 riot be signatories to the same
counterpart or counterparts. The Parties may integrate their respective counterparts by attachig
the signature pages of each separate counterpart to a smgle 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.
65186.0000813 1642356.6 16
(r) WAtVLR OL� &RX THE PARTIES HERETO SHALL
AND THEY HEREBY DO INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY
MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS AGREEMENT AND/OR ANY CLAIM OR INJURY OR DAMAGE
RELATED THERETO.
(s) No Third Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended to confer any rights or remedies under or by reason of this Agreement on
any person other than the parties to it and their respective permitted successors and assigns, nor
is anything in this Agreement intended to relieve or discharge any obligation of any third person
to any party to this Agreement or give any third person any night of subrogation or action over
against any party to this Agreement.
(t) No M,arketni,.�,. Seller agrees not to market, show, or list the Property to
any other prospective buyer during the term of this Agreement.
65186M008\31642356-6 17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
written below.
CITY OF DO\N I NEY, a municipal corporation
&
By:
Name: Gilbert A. Livas
Its: City Manager
Date: 02/14/2019
BEST BEST & KRIEGER Lf P—
By: 6k, -(f
S eci.al C klu),sel A? V er A-, Pa
P '
Date: '—�— -® 00 1
L4111 #
row ErvIrSIMIT" RM11111 1041to MqUill I
i'4 110
UIVErvirtlAvAT011
By:
Name: Scott Silberberg
Its: Authorized Signing Officer
Date:
65136.00008\31642356.6 18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
written below.
By:
Name:
Its: City Manager
Date:
Approved as to Form
By:
Special Counsel
Date:
rig F17 -1111i LIAIVIV10111 Oil Gwnts U4101111 so 9.1
By: NADG/WAYPOINT DOWNY GP, LLC,
a DelaVP invited Liability Company
By:
Name: Steve Preston
Its: Authorized Signing Officer
Date: L"",
65186.00008\31642356.6 18
65186 00008131642356.6
10,14:11
004441 a 113 1
1. Natural Hazards Disclosure Report
2. Survey of the Property conducted on by
3. Geotechnical reports in Seller's possession
�. Phase I Environmental Report, if any
65186.00008\3 1642356 6
EXHIBIT C I
• • DEE
WSMAMU -A- Uam-
111011 DATA m I q 211 M wkej :4 01:4 91111 F-11 I M to]
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APNs:
A4%
urant 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 I
MOSEMBIM
ME
III ;Iliji
the following described real property in the City of County of
State of California:
SEE ATTACHED EXHIBIT A.
Dated: —, 20_ , a
By:
(Name)
(Title)
65186.00008\31642356.6
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 (Seal)
65186.00008\31642 356.6
1*1114:110,1wo
This form is provided so that the Buyer and/or Seller in this transaction can certify compliance
with the Foreign Investment Real Property Tax Act to the • •" and/or Buyer. Buyer
("Transferee") must retain a copy of this document until after the fifth taxable year following
the transfer.
Section 1445 of the Internal Revenue Code of 1986, as amended ("Code") provides that --
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 titte to a U.S. real property interest under local law) will be the transferor of the property
and not the disregarded entity. To inform 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
roiromulgated thereunder).
2. The Transferor is not a disregarded entity as defined in Income Tax Regulation
Section 1.1445-2(b)(2)(111).
W -Mr. RIMM
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, • both.
Under penalties of perjury I declare that I have examined this Certification and to the best of my
knowledge and belief it is true, correct and complete, and I further declare that I have authority
to sign this document on behalf of the Transferor.
Date: 120 TRANSFEROR:
M
65186.00008\31642356.6